Competition and Consumer Act - Australia

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Covenants affecting competition

      (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract containing a cartel provision, in so far as the cartel provision constitutes a covenant to which section 45B applies or, but for subsection 45B(9), would apply.

      Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).

      (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter.

      44ZZRR Resale price maintenance

      (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision relates to:

      (a) conduct that contravenes section 48; or

      (b) conduct that would contravene section 48 but for the operation of subsection 88(8A); or

      (c) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply.

      Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).

      (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter.

      44ZZRS Exclusive dealing

      (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as giving effect to the cartel provision would, or would but for the operation of subsection 47(10) or 88(8) or section 93, constitute a contravention of section 47.

      Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (3) of this section).

      (2) Sections 44ZZRG and 44ZZRK do not apply in relation to the giving effect to a cartel provision by way of:

      (a) engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or 88(8) or section 93 contravene, section 47; or

      (b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when:

      (i) an authorisation under subsection 88(8) is in force in relation to conduct engaged in by that person on that condition; or

      (ii) by reason of subsection 93(7), conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or

      (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.

      Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code and subsection (3) of this section).

      (3) A person who wishes to rely on subsection (1) or (2) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter.

      44ZZRT Dual listed company arrangement

      (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as:

      (a) the contract, arrangement or understanding is a dual listed company arrangement; and

      (b) the making of the contract, arrangement or understanding would, or would apart from subsection 88(8B), contravene section 49.

      Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (3) of this section).

      (2) Sections 44ZZRG and 44ZZRK do not apply in relation to the giving effect to a cartel provision, in so far as:

      (a) the cartel provision is a provision of a dual listed company arrangement; and

      (b) the giving effect to the cartel provision would, or would apart from subsection 88(8B), contravene section 49.

      Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code and subsection (3) of this section).

      (3) A person who wishes to rely on subsection (1) or (2) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter.

      44ZZRU Acquisition of shares or assets

      (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision provides directly or indirectly for the acquisition of:

      (a) any shares in the capital of a body corporate; or

      (b) any assets of a person.

      Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).

      (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter.

      44ZZRV Collective acquisition of goods or services by the parties to a contract, arrangement or understanding

      (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as:

      (a) the cartel provision has the purpose, or has or is likely to have the effect, mentioned in subsection 44ZZRD(2); and

      (b) either:

      (i) the cartel provision relates to the price for goods or services to be collectively acquired, whether directly or indirectly, by the parties to the contract, arrangement or understanding; or

      (ii) the cartel provision is for the joint advertising of the price for the re-supply of goods or services so acquired.

      Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).

      (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter.

      Division 2

      Other provisions

      45 Contracts, arrangements or understandings that restrict dealings or affect competition

      (1) If a provision of a contract made before the commencement of the Trade Practices Amendment Act 1977:

      (a) is an exclusionary provision; or

      (b) has the purpose, or has or is likely to have the effect, of substantially lessening competition;

      that provision is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a corporation.

      (2) A corporation shall not:

      (a) make a contract or arrangement, or arrive at an understanding, if:

      (i) the proposed contract, arrangement or understanding contains an exclusionary provision; or

      (ii)

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