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For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if:

      (a) either of the following conditions is satisfied in relation to the provision:

      (i) the purpose/effect condition set out in subsection (2);

      (ii) the purpose condition set out in subsection (3); and

      (b) the competition condition set out in subsection (4) is satisfied in relation to the provision.

      Purpose/effect condition

      (2) The purpose/effect condition is satisfied if the provision has the purpose, or has or is likely to have the effect, of directly or indirectly:

      (a) fixing, controlling or maintaining; or

      (b) providing for the fixing, controlling or maintaining of;

      the price for, or a discount, allowance, rebate or credit in relation to:

      (c) goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or

      (d) goods or services acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or

      (e) goods or services re-supplied, or likely to be re-supplied, by persons or classes of persons to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or

      (f) goods or services likely to be re-supplied by persons or classes of persons to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding.

      Note 1: The purpose/effect condition can be satisfied when a provision is considered with related provisions — see subsection (8).

      Note 2: Party has an extended meaning — see section 44ZZRC.

      Purpose condition

      (3) The purpose condition is satisfied if the provision has the purpose of directly or indirectly:

      (a) preventing, restricting or limiting:

      (i) the production, or likely production, of goods by any or all of the parties to the contract, arrangement or understanding; or

      (ii) the capacity, or likely capacity, of any or all of the parties to the contract, arrangement or understanding to supply services; or

      (iii) the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or

      (b) allocating between any or all of the parties to the contract, arrangement or understanding:

      (i) the persons or classes of persons who have acquired, or who are likely to acquire, goods or services from any or all of the parties to the contract, arrangement or understanding; or

      (ii) the persons or classes of persons who have supplied, or who are likely to supply, goods or services to any or all of the parties to the contract, arrangement or understanding; or

      (iii) the geographical areas in which goods or services are supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or

      (iv) the geographical areas in which goods or services are acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or

      (c) ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services:

      (i) one or more parties to the contract, arrangement or understanding bid, but one or more other parties do not; or

      (ii) 2 or more parties to the contract, arrangement or understanding bid, but at least 2 of them do so on the basis that one of those bids is more likely to be successful than the others; or

      (iii) 2 or more parties to the contract, arrangement or understanding bid, but not all of those parties proceed with their bids until the suspension or finalisation of the request for bids process; or

      (iv) 2 or more parties to the contract, arrangement or understanding bid and proceed with their bids, but at least 2 of them proceed with their bids on the basis that one of those bids is more likely to be successful than the others; or

      (v) 2 or more parties to the contract, arrangement or understanding bid, but a material component of at least one of those bids is worked out in accordance with the contract, arrangement or understanding.

      Note 1: For example, subparagraph (3)(a)(iii) will not apply in relation to a roster for the supply of after-hours medical services if the roster does not prevent, restrict or limit the supply of services.

      Note 2: The purpose condition can be satisfied when a provision is considered with related provisions — see subsection (9).

      Note 3: Party has an extended meaning — see section 44ZZRC.

      Competition condition

      (4) The competition condition is satisfied if at least 2 of the parties to the contract, arrangement or understanding:

      (a) are or are likely to be; or

      (b) but for any contract, arrangement or understanding, would be or would be likely to be;

      in competition with each other in relation to:

      (c) if paragraph (2)(c) or (3)(b) applies in relation to a supply, or likely supply, of goods or services — the supply of those goods or services; or

      (d) if paragraph (2)(d) or (3)(b) applies in relation to an acquisition, or likely acquisition, of goods or services — the acquisition of those goods or services; or

      (e) if paragraph (2)(e) or (f) applies in relation to a re-supply, or likely re-supply, of goods or services — the supply of those goods or services to that re-supplier; or

      (f) if subparagraph (3)(a)(i) applies in relation to preventing, restricting or limiting the production, or likely production, of goods — the production of those goods; or

      (g) if subparagraph (3)(a)(ii) applies in relation to preventing, restricting or limiting the capacity, or likely capacity, to supply services — the supply of those services; or

      (h) if subparagraph (3)(a)(iii) applies in relation to preventing, restricting or limiting the supply, or likely supply, of goods or services — the supply of those goods or services; or

      (i) if paragraph (3)(c) applies in relation to a supply of goods or services — the supply of those goods or services; or

      (j) if paragraph (3)(c) applies in relation to an acquisition of goods or services — the acquisition of those goods or services.

      Note: Party has an extended meaning — see section 44ZZRC.

      Immaterial whether identities of persons can be ascertained

      (5) It is immaterial whether the identities of the persons referred to in paragraph (2)(e) or (f) or subparagraph (3)(a)(iii), (b)(i) or (ii) can be ascertained.

      Recommending prices etc.

      (6) For the purposes of this Division, a provision of a contract, arrangement or understanding is not taken:

      (a) to have the purpose mentioned in subsection (2); or

      (b) to have, or be likely to have, the effect mentioned in subsection (2);

      by reason only that it recommends, or provides for the recommending of, a price, discount, allowance, rebate or credit.

      Immaterial whether particular circumstances or particular conditions

      (7) It is immaterial whether:

      (a) for the purposes of subsection (2), subparagraph (3)(a)(iii) and paragraphs (3)(b) and (c) — a supply or acquisition happens, or a likely supply or likely acquisition is to

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