Competition and Consumer Act - Australia

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to (5) (inclusive) of the Criminal Code apply in relation to paragraph (1)(a) in the same way that they apply in relation to subsection 11.2(1) of the Criminal Code.

      (1B) Subsections 11.5(2) to (5) (inclusive) of the Criminal Code apply in relation to paragraph (1)(d) in the same way that they apply in relation to the offence of conspiracy under subsection 11.5(1) of the Criminal Code.

      (5) Subsections 11.1(1), 11.2(1), 11.2A(1), and 11.4(1) of the Criminal Code do not apply in relation to an offence against a cartel offence provision.

      (7) In this section:

      cartel offence provision means section 44ZZRF or 44ZZRG.

      79A Enforcement and recovery of certain fines

      (1) If:

      (a) a fine has been imposed on a person for:

      (i) an offence against section 44ZZRF, 44ZZRG, 154Q or 155; or

      (ii) an offence against section 149.1 of the Criminal Code that relates to Part XID; and

      (b) the person defaults in payment of the fine;

      a Court may:

      (c) exercise any power that the Court has apart from this section with respect to the enforcement and recovery of fines imposed by the Court; or

      (d) make an order, on the application of the Minister or the Commission, declaring that the fine is to have effect, and may be enforced, as if it were a judgment debt under a judgment of the Court.

      (2) Where a person in relation to whom an order is made under subsection (1) in respect of a fine gives security for the payment of the fine, the Court shall cancel the order in respect of the fine.

      (3) Where the Court makes an order in relation to a person in respect of a fine, the Court may, at any time before the order is executed in respect of the fine, allow the person a specified time in which to pay the fine or allow the person to pay the fine by specified instalments, and, in that case:

      (a) the order shall not be executed unless the person fails to pay the fine within that time or fails to pay an instalment at or before the time when it becomes payable, as the case may be; and

      (b) if the person pays the fine within that time or pays all the instalments, as the case may be, the order shall be deemed to have been discharged in respect of the fine.

      (4) Subject to subsection (7), an order under subsection (1) in respect of a fine ceases to have effect:

      (a) on payment of the fine; or

      (b) if the fine is not paid — on full compliance with the order.

      (5) The term of a sentence of imprisonment imposed by an order under a law of a State or Territory applied by section 15A of the Crimes Act 1914 (including an order described in subsection 15A(1AA) of that Act) in respect of a fine shall be calculated at the rate of one day’s imprisonment for each $25 of the amount of the fine that is from time to time unpaid.

      (6) Subject to subsection (7), where a person is required to serve periods of imprisonment by virtue of an order or orders under subsection (1) in respect of 2 or more fines, those periods of imprisonment shall be served consecutively.

      (7) Subject to subsection (8), where:

      (a) a person would, but for this subsection, be required by virtue of an order or orders under subsection (1) in respect of 3 or more fines to serve periods of imprisonment in respect of those fines exceeding in the aggregate 3 years; and

      (b) those fines were imposed (whether or not in the same proceedings) for offences constituted by contraventions that occurred within a period of 2 years, being contraventions that appear to the Court to have been of the same nature or a substantially similar nature;

      the Court shall, by order, declare that the order or orders shall cease to have effect in respect of those fines after the person has served an aggregate of 3 years’ imprisonment in respect of those fines.

      (8) Where subsection (7) would, but for this subsection, apply to a person with respect to offences committed by the person within 2 or more overlapping periods of 2 years, the Court shall make an order under that subsection with respect to one only of those periods, being whichever period would give the person the maximum benefit from the application of that subsection.

      (9) For the purposes of subsection (8), the Court may vary or revoke an order made under subsection (7).

      (11) This section applies only in relation to fines imposed for offences committed after the commencement of this section.

      79B Preference must be given to compensation for victims

      If the Court considers that:

      (a) it is appropriate to order a person (the defendant):

      (i) to pay a pecuniary penalty under section 76; or

      (ii) to impose a fine under section 44ZZRF or 44ZZRG;

      in respect of a contravention, or an involvement in a contravention, of this Act; and

      (b) it is appropriate to order the defendant to pay compensation to a person who has suffered loss or damage in respect of the contravention or the involvement; and

      (c) the defendant does not have sufficient financial resources to pay both the pecuniary penalty or fine and the compensation;

      the Court must give preference to making an order for compensation.

      80 Injunctions

      (1) Subject to subsections (1A), (1AAA) and (1B), where, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:

      (a) a contravention of a provision of:

      (i) Part IV; or

      (ii) Division 2 or 5 of Part IVB; or

      (b) attempting to contravene such a provision; or

      (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or

      (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or

      (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

      (f) conspiring with others to contravene such a provision;

      the Court may grant an injunction in such terms as the Court determines to be appropriate.

      Note: Section 87AA provides that, if boycott conduct is involved in proceedings, the Court must have regard to certain matters in exercising its powers under this Part. (Boycott conduct is defined in subsection 87AA(2).)

      (1AA) Where an application for an injunction under subsection (1) has been made, whether before or after the commencement of this subsection, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1).

      (1A) A person other than the Commission is not entitled to make an application under subsection (1) for an injunction by reason that a person has contravened or attempted to contravene or is proposing to contravene, or has been or is proposing to be involved in a contravention of, section 50.

      (1AAA) Subject to subsection (1B), a person other than the Minister or the Commission may not apply for an injunction on the ground of:

      (a) a person’s actual, attempted or proposed contravention of section 50A; or

      (b) a person’s actual or proposed involvement in a contravention of section 50A.

      (1B) Where the Tribunal

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