Competition and Consumer Act - Australia

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deterring or preventing a person from engaging in competitive conduct in an impact market.

      (2A) For the purposes of subsection (2):

      (a) the reference in paragraph (2)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and

      (b) the reference in paragraphs (2)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons.

      (3) If:

      (a) a body corporate that is related to a corporation has, or 2 or more bodies corporate each of which is related to the one corporation together have, a substantial degree of market power in a trans-Tasman market; or

      (b) a corporation and a body corporate that is, or a corporation and 2 or more bodies corporate each of which is, related to the corporation, together have a substantial degree of market power in a trans-Tasman market;

      the corporation is taken, for the purposes of this section, to have a substantial degree of market power in the trans-Tasman market.

      (4) In determining for the purposes of this section the degree of market power that a body corporate or bodies corporate has or have in a trans-Tasman market, the Federal Court is to have regard to the extent to which the conduct of the body corporate or of any of those bodies corporate, in the trans-Tasman market is constrained by the conduct of:

      (a) competitors, or potential competitors, of the body corporate, or of any of those bodies corporate, in the trans-Tasman market; or

      (b) persons to whom or from whom the body corporate, or any of those bodies corporate, supplies or acquires goods or services in the trans-Tasman market.

      (5) Without extending by implication the meaning of subsection (2), a corporation is not taken to contravene that subsection merely because it acquires plant or equipment.

      (6) This section does not prevent a corporation from engaging in conduct that does not constitute a contravention of any of the following sections, namely, sections 45, 45B, 47, 49 and 50, because an authorisation or clearance is in force or because of the operation of subsection 45(8A) or section 93.

      (7) Without limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a corporation may be taken to have taken advantage of its market power for a purpose referred to in subsection (2) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the corporation or of any other person or from other relevant circumstances.

      (8) It is the intention of the Parliament that this section, and the provisions of Parts VI and XII so far as they relate to a contravention of this section, should apply to New Zealand and New Zealand Crown corporations to the same extent, and in the same way, as they respectively apply under section 2A to the Commonwealth and authorities of the Commonwealth.

      (9) Subsection (8) has effect despite section 9 of the Foreign States Immunities Act 1985.

      46B No immunity from jurisdiction in relation to certain New Zealand laws

      (1) It is hereby declared, for the avoidance of doubt, that the Commonwealth, the States, the Australian Capital Territory and the Northern Territory, and their authorities, are not immune, and may not claim immunity, from the jurisdiction of the courts of Australia and New Zealand in relation to matters arising under sections 36A, 98H and 99A of the Commerce Act 1986 of New Zealand.

      (2) This section applies in and outside Australia.

      47 Exclusive dealing

      (1) Subject to this section, a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing.

      (2) A corporation engages in the practice of exclusive dealing if the corporation:

      (a) supplies, or offers to supply, goods or services;

      (b) supplies, or offers to supply, goods or services at a particular price; or

      (c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation;

      on the condition that the person to whom the corporation supplies, or offers or proposes to supply, the goods or services or, if that person is a body corporate, a body corporate related to that body corporate:

      (d) will not, or will not except to a limited extent, acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;

      (e) will not, or will not except to a limited extent, re-supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; or

      (f) in the case where the corporation supplies or would supply goods or services, will not re-supply the goods or services to any person, or will not, or will not except to a limited extent, re-supply the goods or services:

      (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or

      (ii) in particular places or classes of places or in places other than particular places or classes of places.

      (3) A corporation also engages in the practice of exclusive dealing if the corporation refuses:

      (a) to supply goods or services to a person;

      (b) to supply goods or services to a person at a particular price; or

      (c) to give or allow a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services to a person;

      for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate:

      (d) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation;

      (e) has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; or

      (f) has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired from the corporation to any person, or has re-supplied, or has not agreed not to re-supply, goods or services, or goods or services of a particular kind or description, acquired from the corporation:

      (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or

      (ii) in particular places or classes of places or in places other than particular places or classes of places.

      (4) A corporation also engages in the practice of exclusive dealing if the corporation:

      (a) acquires, or offers to acquire, goods or services; or

      (b) acquires, or offers to acquire, goods or services at a particular price;

      on the condition that the person from whom the corporation acquires or offers to acquire the goods or services or, if that person is a body corporate, a body corporate related to that body corporate will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description:

      (c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or

      (d) in particular places or classes of places or in places

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