Competition and Consumer Act. Australia
circumstances or on particular conditions; and
(b) for the purposes of subparagraph (3)(a)(i) — the production happens, or the likely production is to happen, in particular circumstances or on particular conditions; and
(c) for the purposes of subparagraph (3)(a)(ii) — the capacity exists, or the likely capacity is to exist, in particular circumstances or on particular conditions.
Considering related provisions — purpose/effect condition
(8) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose, or to have or be likely to have the effect, mentioned in subsection (2) if the provision, when considered together with any or all of the following provisions:
(a) the other provisions of the contract, arrangement or understanding;
(b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first-mentioned contract, arrangement or understanding;
has that purpose, or has or is likely to have that effect.
Considering related provisions — purpose condition
(9) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose mentioned in a paragraph of subsection (3) if the provision, when considered together with any or all of the following provisions:
(a) the other provisions of the contract, arrangement or understanding;
(b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first-mentioned contract, arrangement or understanding;
has that purpose.
Purpose/effect of a provision
(10) For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose, or not to have or to be likely to have the effect, mentioned in subsection (2) by reason only of:
(a) the form of the provision; or
(b) the form of the contract, arrangement or understanding; or
(c) any description given to the provision, or to the contract, arrangement or understanding, by the parties.
Purpose of a provision
(11) For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose mentioned in a paragraph of subsection (3) by reason only of:
(a) the form of the provision; or
(b) the form of the contract, arrangement or understanding; or
(c) any description given to the provision, or to the contract, arrangement or understanding, by the parties.
44ZZRE Meaning of expressions in other provisions of this Act
In determining the meaning of an expression used in a provision of this Act (other than this Division, subsection 6(2C), paragraph 76(1A)(aa) or subsection 93AB(1A)), this Division is to be disregarded.
Subdivision B
Offences etc.
44ZZRF Making a contract etc. containing a cartel provision
Offence
(1) A corporation commits an offence if:
(a) the corporation makes a contract or arrangement, or arrives at an understanding; and
(b) the contract, arrangement or understanding contains a cartel provision.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) The fault element for paragraph (1)(b) is knowledge or belief.
Penalty
(3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:
(a) $10,000,000;
(b) if the court can determine the total value of the benefits that:
(i) have been obtained by one or more persons; and
(ii) are reasonably attributable to the commission of the offence;
3 times that total value;
(c) if the court cannot determine the total value of those benefits — 10 % of the corporation’s annual turnover during the 12-month period ending at the end of the month in which the corporation committed, or began committing, the offence.
Indictable offence
(4) An offence against subsection (1) is an indictable offence.
44ZZRG Giving effect to a cartel provision
Offence
(1) A corporation commits an offence if:
(a) a contract, arrangement or understanding contains a cartel provision; and
(b) the corporation gives effect to the cartel provision.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) The fault element for paragraph (1)(a) is knowledge or belief.
Penalty
(3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:
(a) $10,000,000;
(b) if the court can determine the total value of the benefits that:
(i) have been obtained by one or more persons; and
(ii) are reasonably attributable to the commission of the offence;
3 times that total value;
(c) if the court cannot determine the total value of those benefits — 10 % of the corporation’s annual turnover during the 12-month period ending at the end of the month in which the corporation committed, or began committing, the offence.
Pre-commencement contracts etc.
(4) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section.
Indictable offence
(5) An offence against subsection (1) is an indictable offence.
44ZZRH Determining guilt
(1) A corporation may be found guilty of an offence against section 44ZZRF or 44ZZRG even if:
(a) each other party to the contract, arrangement or understanding is a person who is not criminally responsible; or
(b) subject to subsection (2), all other parties to the contract, arrangement or understanding have been acquitted of the offence.
Note: Party has an extended meaning — see section 44ZZRC.
(2) A corporation cannot be found guilty of an offence against section 44ZZRF or 44ZZRG if:
(a) all other parties to the contract, arrangement or understanding have been acquitted of such an offence; and
(b) a finding of guilt would be inconsistent with their acquittal.
44ZZRI Court may make related civil orders
If a prosecution against a person for an offence against section 44ZZRF or 44ZZRG is being, or has been, heard by a court, the court may:
(a)