Commonwealth: Trade Practices Amendment Act 1977 (Cth)

TRADE PRACTICES AMENDMENT ACT 1 977 No. 81 of 1977 An Act relating to Trade Practices. BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:— Short title, &c. 1. (1) This Act may be cited as the Trade Practices Amendment Act 1977. (2) The Trade Practices Act 1974 is in this Act referred to as the Principal Act. Commencement. 2. This Act shall come into operation on 1 July 1977. Repeal of expired commencement provisions. 3. Section 2 of the Principal Act is repealed. 4. Before section 3 of the Principal Act the following section is inserted:— Application of Act to Commonwealth and Commonwealth authorities. "2a. (1) Subject to this section, this Act (other than Part X) binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth. "(2) Subject to the succeeding provisions of this section, this Act applies as if— (a) the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and (b) each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Commonwealth) in so far as it carries on a business, were a corporation. "(3) Nothing in this Act renders the Crown in right of the Commonwealth liable to be prosecuted for an offence. "(4) Part IV does not apply in relation to the business carried on by the Commonwealth in developing, and disposing of interests in, land in the Australian Capital Territory.". Interpretation. 5. Section 4 of the Principal Act is amended— (a) by inserting in sub-section (1), before the definition of "authorization", the following definitions:— "'acquire' includes— (a) in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hire-purchase; and (b) in relation to services—accept; 'arrive at', in relation to an understanding, includes reach or enter into; 'authority of the Commonwealth' means— (a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or (b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest;"; (b) by inserting in sub-section (1), after the definition of "authorization", the following definition:— "'business' includes a business not carried on for profit;"; (c) by omitting from sub-section (1) the definitions of "commencing date", "Commission" and "Companies Ordinance" and substituting the following definitions:— "'commencing date' means 1 October 1974; 'Commission' means the Trade Practices Commission established by section 6a, and includes a member of the Commission or a Division of the Commission performing functions of the Commission;"; (d) by omitting from sub-section (1) the definition of "conduct"; (e) by inserting in sub-section (1), after the definition of "Court", the following definitions: — " 'covenant' means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land), and 'proposed covenant' has a corresponding meaning; 'debenture' includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a body corporate, whether constituting a charge on property of the body corporate or not;"; (f) by omitting from sub-section (1) the definitions of "engage in conduct" and "financial corporation" and substituting the following definition: — "'financial corporation' means a financial corporation within the meaning of paragraph 51 (xx) of the Constitution and includes a body corporate that carries on as its sole or principal business the business of banking (other than State banking not extending beyond the limits of the State concerned) or insurance (other than State insurance not extending beyond the limits of the State concerned);"; (g) by omitting from sub-section (1) the definitions of "full-time member of the Commission" and "give effect to" and substituting the following definition:— "'give effect to', in relation to a provision of a contract, arrangement or understanding, includes do an act or thing in pursuance of or in accordance with or enforce or purport to enforce;"; (h) by omitting from sub-section (1) the definitions of "market", "meeting" and "member of the Commission" and substituting the following definition:— "'member of the Commission' includes the Chairman and a person appointed to act as a member of the Commission but does not include an associate member of the Commission;"; (j) by omitting from sub-section (1) the definition of "practice of exclusive dealing" and substituting the following definition:— "'practice of exclusive dealing' means the practice of exclusive dealing referred to in sub-section 47(2), (3), (4), (5), (6), (7), (8) or (9);"; (k) by inserting in sub-section (1), after the definition of "price", the following definition: — "'provision', in relation to an understanding, means any matter forming part of the understanding;"; (l) by inserting in sub-section (1), after the definition of "Registrar", the following definition: — "'require', in relation to the giving of a covenant, means require or demand the giving of a covenant, whether by way of making a contract containing the covenant or otherwise, and whether or not a covenant is given in pursuance of the requirement or demand;"; (m) by omitting from sub-section (1) the definitions of "services" and "share" and substituting the following definitions:— "'services' includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under— (a) a contract for or in relation to— (i) the performance of work (including work of a professional nature), whether with or without the supply of goods; (ii) the provision of, or of the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or (iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; (b) a contract of insurance; (c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or (d) any contract for or in relation to the lending of moneys, but does not include rights or benefits being the supply of goods or the performance of work under a contract of service; 'share' includes stock;"; (n) by adding at the end of sub-section (1) the following definition:— "'unsolicited services' means services supplied to a person without any request made by him or on his behalf."; and (o) by omitting sub-sections (2), (3) and (4) and substituting the following sub-sections:— "(2) In this Act— (a) a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant; (b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), shall be read as a reference to the doing of or the refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant; (c) a reference to refusing to do an act includes a reference to— (i) refraining (otherwise than inadvertently) from doing that act; or (ii) making it known that that act will not be done; and (d) a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be. "(3) Where a provision of this Act is expressed to render a provision of a contract, or to render a covenant, unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect notwithstanding that— (a) at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or (b) the provision of the contract or the covenant will not or may not have that effect at a later time. "(4) In this Act— (a) a reference to the acquisition of shares in the capital of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such shares; and (b) a reference to the acquisition of assets of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such assets but does not include a reference to an acquisition by way of charge only or an acquisition in the ordinary course of business.". 6. After section 4 of the Principal Act the following sections are inserted: — Subsidiary, holding and related bodies corporate. "4a. (1) For the purposes of this Act, a body corporate shall, subject to sub-section (3), be deemed to be a subsidiary of another body corporate if— (a) that other body corporate— (i) controls the composition of the board of directors of the first-mentioned body corporate; (ii) is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first-mentioned body corporate; or (iii) holds more than one-half of the allotted share capital of the first-mentioned body corporate (excluding any part of that allotted share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or (b) the first-mentioned body corporate is a subsidiary of any body corporate that is that other body corporate's subsidiary (including any body corporate that is that other body corporate's subsidiary by another application or other applications of this paragraph). "(2) For the purposes of sub-section (1), the composition of a body corporate's board of directors shall be deemed to be controlled by another body corporate if that other body corporate, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other body corporate shall be deemed to have power to make such an appointment if— (a) a person cannot be appointed as a director without the exercise in his favour by that other body corporate of such a power; or (b) a person's appointment as a director follows necessarily from his being a director or other officer of that other body corporate. "(3) In determining whether a body corporate is a subsidiary of another body corporate— (a) any shares held or power exercisable by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it; (b) subject to paragraphs (c) and (d), any shares held or power exercisable— (i) by any person as a nominee for that other body corporate (except where that other body corporate is concerned only in a fiduciary capacity); or (ii) by, or by a nominee for, a subsidiary of that other body corporate, not being a subsidiary that is concerned only in a fiduciary capacity, shall be treated as held or exercisable by that other body corporate; (c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned body corporate, or of a trust deed for securing any allotment of such debentures, shall be disregarded; and (d) any shares held or power exercisable by, or by a nominee for, that other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other body corporate if the ordinary business of that other body corporate or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business. "(4) A reference in this Act to the holding company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary. "(5) Where a body corporate— (a) is the holding company of another body corporate; (b) is a subsidiary of another body corporate; or (c) is a subsidiary of the holding company of another body corporate, that first-mentioned body corporate and that other body corporate shall, for the purposes of this Act, be deemed to be related to each other. "(6) In proceedings under this Act, whether in the Court or before the Tribunal or the Commission, it shall be presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other. Consumers. "4b. (1) For the purposes of this Act, unless the contrary intention appears— (a) a person shall be taken to have acquired particular goods as a consumer if, and only if— (i) the price paid or payable by the person for the goods did not exceed the prescribed amount; or (ii) where that price exceeded the prescribed amount—the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption, and the person did not acquire the goods, or hold himself out as acquiring the goods, for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land; and (b) a person shall be taken to have acquired particular services as a consumer if, and only if— (i) the price paid or payable by the person for the services did not exceed the prescribed amount; or (ii) where that price exceeded the prescribed amount—the services were of a kind ordinarily acquired for personal, domestic or household use or consumption. "(2) For the purposes of sub-section (1)— (a) the prescribed amount is $15,000 or, if a greater amount is prescribed for the purposes of this paragraph, that greater amount; (b) if a person acquired goods together with other property or with services, or with both other property and services, and a specified price was not allocated to the goods in the contract under which they were acquired, the price paid or payable by the person for the goods shall be taken to have been the amount that was the market value of the goods at the time when that contract was entered into; and (c) if a person acquired services together with property or with other services, or with both property and other services, and a specified price was not allocated to the first-mentioned services in the contract under which they were acquired, the price paid or payable by the person for the first-mentioned services shall be taken to have been the amount that was the market value of those services at the time when that contract was entered into. "(3) Where it is alleged in any proceeding under this Act or in any other proceeding in respect of a matter arising under this Act that a person was a consumer in relation to particular goods or services, it shall be presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services. Acquisition, supply and re-supply. "4c. In this Act, unless the contrary intention appears— (a) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods; (b) a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services; (c) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both; (d) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; and (e) a reference to the re-supply of goods acquired from a person includes a reference to— (i) a supply of the goods to another person in an altered form or condition; and (ii) a supply to another person of goods in which the first-mentioned goods have been incorporated. Exclusionary provisions. "4d. (1) A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if— (a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and (b) the provision has the purpose of preventing, restricting or limiting— (i) the supply of goods or services to, or the acquisition of goods or services from, particular persons; or (ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons in particular circumstances or on particular conditions, by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate. "(2) A person shall be deemed to be competitive with another person for the purposes of this section if the first-mentioned person or a body corporate that is related to that person is, or is likely to be, in competition, in relation to the supply or acquisition of goods or services, with the other person or with a body corporate that is related to the other person. Market. "4e. For the purposes of this Act, 'market' means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first-mentioned goods or services. References to purpose or reason. "4f. For the purposes of this Act— (a) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, or a covenant or a proposed covenant, shall be deemed to have had, or to have, a particular purpose if— (i) the provision was included in the contract, arrangement or understanding or is to be included in the proposed contract, arrangement or understanding, or the covenant was required to be given or the proposed covenant is to be required to be given, as the case may be, for that purpose or for purposes that included or include that purpose; and (ii) that purpose was or is a substantial purpose; and (b) a person shall be deemed to have engaged or to engage in conduct for a particular purpose or a particular reason if— (i) the person engaged or engages in the conduct for purposes that included or include that purpose or for reasons that included or include that reason, as the case may be; and (ii) that purpose or reason was or is a substantial purpose or reason. Lessening of competition to include preventing or hindering competition. "4g. For the purposes of this Act, references to the lessening of competition shall be read as including references to preventing or hindering competition. Application of Act in relation to leases and licences of land and buildings. "4h. In this Act— (a) a reference to a contract shall be construed as including a reference to a lease of, or a licence in respect of, land or a building or part of a building and shall be so construed notwithstanding the express references in this Act to such leases or licences; (b) a reference to making or entering into a contract, in relation to such a lease or licence, shall be read as a reference to granting or taking the lease or licence; and (c) a reference to a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence. Joint ventures. "4j. In this Act— (a) a reference to a joint venture is a reference to an activity in trade or commerce— (i) carried on jointly by two or more persons, whether or not in partnership; or (ii) carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate; and (b) a reference to a contract or arrangement made or understanding arrived at, or to a proposed contract or arrangement to be made or proposed understanding to be arrived at, for the purposes of a joint venture shall, in relation to a joint venture by way of an activity carried on by a body corporate as mentioned in sub-paragraph (a) (ii), be read as including a reference to the memorandum and articles of association, rules or other document that constitute or constitutes, or are or is to constitute, that body corporate. Loss or damage to include injury. "4k. In this Act— (a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and (b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury. Severability. "4l. If the making of a contract after the commencement of this section contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 87, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision is severable. Savings of law relating to restraint of trade and breaches of confidence. "4m. This Act does not affect the operation of— (a) the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Act; or (b) the law relating to breaches of confidence, but nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Act.". Additional operation of Act. 7. Section 6 of the Principal Act is amended— (a) by omitting from paragraph (b) of sub-section (2) the words and figures "sections 46, 60 and 61, sub-sections 64(3) and (4) "and substituting the words, figures and letters "sections 45, 45b, 45d, 46, 60 and 61, sub-sections 64 (3) and (4), section 75a"; (b) by omitting paragraphs (d) and (e) of sub-section (2) and substituting the following paragraphs: — "(d) in sub-section 45(1) and sub-paragraph 87(3)(a)(i) the words 'in so far as it confers rights or benefits or imposes duties or obligations on a corporation' were omitted; "(e) in sub-section 45b(1) and sub-paragraph 87(3)(a)(ii) the words 'in so far as it confers rights or benefits or imposes duties or obligations on a corporation or on a person associated with a corporation' were omitted;"; (c) by inserting in paragraph (f) of sub-section (2), before the word and figures "section 60", the words, figures and letter "subsection 53a(2) and"; and (d) by omitting paragraph (h) of sub-section (2) and substituting the following paragraph: — "(h) subject to paragraphs (d), (e), (f) and (g), a reference in this Act to a corporation, except a reference in section 4, 48, 50 or 81 or sub-section 88(9), included a reference to a person not being a corporation.". 8. (1) Section 7 of the Principal Act is repealed and the following sections are substituted:— Establishment of Commission. "6a. (1) Upon the commencement of this section the Commission established by the Trade Practices Act 1974 as in force immediately before the commencement of this section ceases to exist and there is established by this section a Commission by the name of the Trade Practices Commission. "(2) The Commission— (a) is a body corporate, with perpetual succession; (b) shall have an official seal; (c) may acquire, hold and dispose of real and personal property; and (d) may sue or be sued in its corporate name. Constitution of Commission. "7. (1) The Commission shall consist of a Chairman and such number of other members as are from time to time appointed in accordance with this Act. "(2) The members of the Commission shall be appointed by the Governor-General and shall be so appointed as full-time members. "(3) A person shall not be appointed as a member of the Commission unless he appears to the Governor-General to be qualified for appointment by virtue of his knowledge of, or experience in, industry, commerce, economics, law or public administration.". (2) Any documents that were furnished under the Principal Act to the Commission established by that Act shall be deemed for the purposes of that Act as amended by this Act to have been furnished to the Trade Practices Commission established by that Act as so amended and, subject to that Act as so amended, that last-mentioned Commission is entitled to obtain and retain custody of those documents. (3) Where, immediately before the commencement of this section, the Commission established by the Principal Act was a party to or intervener in a proceeding in a court, the Trade Practices Commission established by the Principal Act as amended by this Act shall be deemed to be substituted for the first-mentioned Commission as a party to or intervener in that proceeding. (4) The power of the Trade Practices Commission established by the Principal Act as amended by this Act to institute any proceeding in the Court extends to the institution of a proceeding in respect of conduct engaged in before the commencement of this Act. (5) Section 167 of the Principal Act as amended by this Act applies in relation to the official signature of a person who has held the office of Chairman, Deputy Chairman or member of the Commission that was established by the Principal Act and in relation to the official seal of that Commission in like manner as it applies in relation to the official signature of a person who holds the office of Chairman, Deputy Chairman or member of the Trade Practices Commission established by the Principal Act as amended by this Act and in relation to the official seal of that last-mentioned Commission, respectively. (6) The Trade Practices Commission established by the Principal Act as amended by this Act shall, not later than 31 August 1977, furnish to the Minister, for presentation to the Parliament, a report with respect to the operations in the year ending on 30 June 1977 of the Trade Practices Commission established by the Principal Act. Terms and conditions of appointment. 9. Section 8 of the Principal Act is amended by omitting from sub-section (2) the words "the Chairman or as a full-time member" (where-ever occurring) and substituting the words "a member". 10. After section 8 of the Principal Act the following section is inserted: — Associate members. "8a. (1) The Minister may appoint persons to be associate members of the Commission. "(2) An associate member of the Commission shall be appointed for such period not exceeding 5 years as is specified in the instrument of his appointment, but is eligible for re-appointment. "(3) Subject to this Part, an associate member of the Commission holds office on such terms and conditions as the Minister determines. "(4) The Chairman may, by writing signed by him, direct that, for the purposes of the exercise of the powers of the Commission under this Act in relation to a specified matter, not being an exercise of those powers by a Division of the Commission, a specified associate member of the Commission or specified associate members of the Commission shall be deemed to be a member or members of the Commission and, in that case, unless the contrary intention appears, a reference in this Act to a member of the Commission shall, for the purposes only of the exercise of the powers of the Commission in relation to that matter, be construed as including a reference to that associate member of the Commission or each of those associate members of the Commission, as the case may be. "(5) Associate members of the Commission shall be deemed to be members of the Commission for the purposes of section 19. "(6) For the purpose of the determination by the Commission of an application for an authorization or the making by the Commission of any decision for the purposes of sub-section 93(3), the Chairman shall consider— (a) whether he should give a direction under sub-section (4) of this section; or (b) in the case of a matter in relation to which the Chairman proposes to give a direction under sub-section 19(1), whether he should direct that the Division concerned is to include an associate member of the Commission or associate members of the Commission. "(7) Nothing in sub-section (4) or (5) deems an associate member of the Commission to be a member of the Commission for any purpose related to the preparation of a report by the Commission under section 171.". Remuneration. 11. Section 9 of the Principal Act is amended by adding at the end thereof the following sub-section:— "(3) In this section, 'member of the Commission' includes an associate member of the Commission.". Deputy Chairman. 12. Section 10 of the Principal Act is amended by omitting from sub-section (1) the word "full-time". Leave of absence. 13. Section 12 of the Principal Act is amended by omitting the words "the Chairman or a full-time member" and substituting the words "a member". 14. Sections 13 and 14 of the Principal Act are repealed and the following sections substituted: — Termination of appointment of members of the Commission. "13. (1) The Governor-General may terminate the appointment of a member of the Commission for misbehaviour or physical or mental incapacity. "(2) If a member of the Commission— (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; (b) fails to comply with his obligations under section 17; (c) engages in any paid employment outside the duties of his office; or (d) is absent from duty, except on leave of absence granted by the Minister, for 14 consecutive days or for 28 days in any 12 months, the Governor-General shall terminate the appointment of that member of the Commission. Termination of appointment of associate members of the Commission. "14. (1) The Minister may terminate the appointment of an associate member of the Commission for misbehaviour or physical or mental incapacity. "(2) If an associate member of the Commission— (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; or (b) fails to comply with his obligations under section 17, the Minister shall terminate the appointment of that associate member of the Commission.". Resignation. 15. Section 15 of the Principal Act is amended by adding at the end thereof the following sub-section:— "(2) An associate member of the Commission may resign his office by writing signed by him and delivered to the Minister.". Disclosure of financial interests. 16. Section 17 of the Principal Act is amended— (a) by omitting sub-section (2) and substituting the following sub-section: — "(2) Where an interest is so disclosed to the Chairman and— (a) in case of an interest in a business—the person carrying on the business; or (b) in the case of an interest in a body corporate—that body corporate, is concerned in a matter before the Commission, being a matter in the determination of which the member who has the interest is or will be participating, the Chairman shall cause the interest to be disclosed to the public."; and (b) by adding at the end thereof the following sub-section:— "(4) In this section, 'member of the Commission' includes an associate member of the Commission.". Repeal of sections 20 to 24. 17. Sections 20 to 24, inclusive, of the Principal Act are repealed. Rights of public servants appointed as members of Commission. 18. Section 26 of the Principal Act is amended by omitting the words "Chairman or as a full-time member" (wherever occurring) and substituting the words "a member". Functions of Commission in relation to dissemination of information, law reform and research. 19. Section 28 of the Principal Act is amended by omitting from paragraph (e) of sub-section (1) the words "of the Commonwealth or of the Territories" and substituting the words "in force in Australia". Commission to comply with directions of Minister and requirements of the Parliament. 20. Section 29 of the Principal Act is amended by omitting sub-section (1) and substituting the following sub-section:— "(1) The Minister may— (a) give directions as to matters to be given special consideration by the Commission in determining applications for authorizations or in making decisions for the purposes of paragraph 93(3)(a) or (b); and (b) give directions to the Commission in connexion with the performance of its functions or the exercise of its powers under this Act, not including, except as mentioned in paragraph (a), functions or powers related directly or indirectly to Part VII, and the Commission shall comply with any directions so given.". Qualifications of members of Tribunal. 21. Section 31 of the Principal Act is amended— (a) by omitting sub-section (1) and substituting the following sub-section:— "(1) A person shall not be appointed as a presidential member of the Tribunal unless he is a Judge of a Federal Court, not being the High Court or a court of an external Territory."; and (b) by inserting in sub-section (2), after the word "commerce", the words", economics, law". Remuneration of members of Tribunal. 22. (1) Section 33 of the Principal Act is amended by omitting sub-sections (1) and (4). (2) For the avoidance of doubt, it is hereby declared that the Judges' Pensions Act 1968 applies, and shall be deemed always to have applied, to and in relation to a President of the Trade Practices Tribunal who retired as a Judge of the Australian Industrial Court as if he had been Chief Judge of that Court immediately before his retirement. Suspension and removal of members of Tribunal. 23. Section 35 of the Principal Act is amended by omitting from sub-section (2) the word "Attorney-General" and substituting the word "Minister". Staff of Tribunal. 24. Section 44 of the Principal Act is amended by omitting from sub-section (2) the word "Attorney-General" and substituting the word "Minister". 25. Sections 45, 46 and 47 of the Principal Act are repealed and the following sections substituted:— Contracts, arrangements or understandings restricting dealings or affecting competition. "45. (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) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or (b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision— (i) is an exclusionary provision; or (ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition. "(3) For the purposes of this section and section 45a, 'competition', in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, means competition in any market in which a corporation that is a party to the contract, arrangement or understanding or would be a party to the proposed contract, arrangement or understanding, or any body corporate related to such a corporation, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services. "(4) For the purposes of the application of this section in relation to a particular corporation, a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding shall be deemed to have or to be likely to have the effect of substantially lessening competition if that provision and any one or more of the following provisions, namely— (a) the other provisions of that contract, arrangement or understanding or proposed contract, arrangement or understanding; and (b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the corporation or a body corporate related to the corporation is or would be a party, together have or are likely to have that effect. "(5) This section does not apply to or in relation to— (a) a provision of a contract where the provision constitutes a covenant to which section 45b applies or, but for sub-section 45b(9), would apply; (b) a provision of a proposed contract where the provision would constitute a covenant to which section 45b would apply or, but for sub-section 45b(9), would apply; or (c) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding in so far as the provision relates to conduct that contravenes section 48 or would contravene that section if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods are to be sold or are to be advertised, displayed or offered for sale. "(6) The making of a contract, arrangement or understanding does not constitute a contravention of this section by reason that the contract, arrangement or understanding contains a provision the giving effect to which would, or would but for the operation of sub-section 88(8) or section 93, constitute a contravention of section 47 and this section does not apply to or in relation to the giving effect to a provision of a contract, arrangement or understanding by way of— (a) engaging in conduct that contravenes, or would but for the operation of sub-section 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 sub-section 47(2), (4), (6) or (8), being an act done by a person at a time when— (i) an authorization under sub-section 88 (8) is in force in relation to conduct engaged in by that person on that condition; or (ii) by reason of sub-section 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. "(7) This section does not apply to or in relation to a contract, arrangement or understanding in so far as the contract, arrangement or understanding provides, or to or in relation to a proposed contract, arrangement or understanding in so far as the proposed contract, arrangement or understanding would provide, directly or indirectly for the acquisition of any shares in the capital, or any assets, of a body corporate. "(8) This section does not apply to or in relation to a contract, arrangement or understanding, or a proposed contract, arrangement or understanding, the only parties to which are or would be bodies corporate that are related to each other. "(9) The making by a corporation of a contract that contains a provision in relation to which sub-section 88(1) applies is not a contravention of sub-section (2) of this section if— (a) the contract is subject to a condition that the provision will not come into force unless and until the corporation is granted an authorization to give effect to the provision; and (b) the corporation applies for the grant of such an authorization within 14 days after the contract is made, but nothing in this sub-section prevents the giving effect by a corporation to such a provision from constituting a contravention of sub-section (2). Contracts, arrangements or understanding in relation to prices. 45a. (1) Without limiting the generality of section 45, a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the effect, of substantially lessening competition if the provision has the purpose, or has or is likely to have the effect, as the case may be, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired or to be supplied or acquired by the parties to the contract, arrangement or understanding or the proposed parties to the proposed contract, arrangement or understanding, or by any of them, or by any bodies corporate that are related to any of them, in competition with each other. "(2) Sub-section (1) does not apply to a provision of a contract or arrangement made or of an understanding arrived at, or of a proposed contract or arrangement to be made or of a proposed understanding to be arrived at, for the purposes of a joint venture to the extent that the provision relates or would relate to— (a) the joint supply by the parties to the joint venture, or the supply by the parties to the joint venture in proportion to their respective interests in the joint venture, of goods jointly produced by those parties in pursuance of the joint venture; (b) the joint supply by the parties to the joint venture of services in pursuance of the joint venture; or (c) in the case of a joint venture carried on by a body corporate as mentioned in sub-paragraph 4j (a) (ii)— (i) the supply by that body corporate of goods produced by it in pursuance of the joint venture; or (ii) the supply by that body corporate of services in pursuance of the joint venture, not being services supplied on behalf of the body corporate by— (a) a person who is the owner of shares in the capital of the body corporate; or (b) a body corporate that is related to such a person. "(3) Sub-section (1) does not apply in relation to a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, to the extent that the provision recommends or provides for recommending, or would recommend or provide for recommending, the price for, or a discount, allowance, rebate or credit in relation to, goods or services, where the parties to the contract, arrangement or understanding, or the proposed parties to the proposed contract, arrangement or understanding, include— (a) not less than 50 persons (bodies corporate that are related to one another being counted as a single person) who supply, in trade or commerce, goods or services to which the provision applies; or (b) not less than 50 persons (bodies corporate that are related to one another being counted as a single person) who acquire, in trade or commerce, goods or services to which the provision applies. "(4) Sub-section (1) does not apply to a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, being a provision— (a) in relation to the price for goods or services to be collectively acquired, whether directly or indirectly, by parties to the contract, arrangement or understanding or by proposed parties to the proposed contract, arrangement or understanding; or (b) for the joint advertising of the price for the re-supply of goods so acquired. "(5) For the purposes of this Act, a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall not be taken not to have the purpose, or not to have or to be likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services by reason only of— (a) the form of, or of that provision of, the contract, arrangement or understanding or the proposed contract, arrangement or understanding; or (b) any description given to, or to that provision of, the contract, arrangement or understanding or the proposed contract, arrangement or understanding by the parties or proposed parties. "(6) For the purposes of this Act but without limiting the generality of sub-section (5), a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall not be taken not to have the purpose, or not to have or to be likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services by reason only that the provision recommends, or provides for the recommending of, such a price, discount, allowance, rebate or credit if in fact the provision has that purpose or has or is likely to have that effect. "(7) For the purposes of the preceding provisions of this section but without limiting the generality of those provisions, a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be deemed to have the purpose, or to have or to be likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods supplied as mentioned in sub-section (1) if the provision has the purpose, or has or is likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re-supply of the goods by persons to whom the goods are or would be supplied by the parties to the contract, arrangement or understanding or the proposed parties to the proposed contract, arrangement or understanding, or by any of them, or by any bodies corporate that are related to any of them. "(8) The reference in sub-section (1) to the supply or acquisition of goods or services by persons in competition with each other includes a reference to the supply or acquisition of goods or services by persons who, but for a provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with each other in relation to the supply or acquisition of the goods or services. Covenants affecting competition. "45b. (1) A covenant, whether the covenant was given before or after the commencement of this section, is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a corporation or on a person associated with a corporation if the convenant has, or is likely to have, the effect of substantially lessening competition in any market in which the corporation or any person associated with the corporation supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the convenant, supply or acquire, or be likely to supply or acquire, goods or services. "(2) A corporation or a person associated with a corporation shall not— (a) require the giving of a covenant, or give a covenant, if the proposed covenant has the purpose, or would have or be likely to have the effect, of substantially lessening competition in any market in which— (i) the corporation, or any person associated with the corporation by virtue of paragraph (7)(b), supplies or acquires, is likely to supply or acquire, or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services; or (ii) any person associated with the corporation by virtue of the operation of paragraph (7)(a) supplies or acquires, is likely to supply or acquire, or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services, being a supply or acquisition in relation to which that person is, or would be, under an obligation to act in accordance with directions, instructions or wishes of the corporation; (b) threaten to engage in particular conduct if a person who, but for sub-section (1), would be bound by a covenant does not comply with the terms of the covenant; or (c) engage in particular conduct by reason that a person who, but for sub-section (1), would be bound by a covenant has. failed to comply, or proposes or threatens to fail to comply, with the terms of the covenant. "(3) Where a person— (a) issues an invitation to another person to enter into a contract containing a covenant; (b) makes an offer to another person to enter into a contract containing a covenant; or (c) makes it known that the person will not enter into a contract of a particular kind unless the contract contains a covenant of a particular kind or in particular terms, the first-mentioned person shall, by issuing that invitation, making that offer or making that fact known, be deemed to require the giving of the covenant. "(4) For the purposes of this section, a covenant or proposed covenant shall be deemed to have, or to be likely to have, the effect of substantially lessening competition in a market if the covenant or proposed covenant, as the case may be, would have, or be likely to have, that effect when taken together with the effect or likely effect on competition in that market of any other covenant or proposed covenant to the benefit of which— (a) a corporation that, or person who, is or would be, or but for sub-section (1) would be, entitled to the benefit of the first-mentioned covenant or proposed covenant; or (b) a person associated with the corporation referred to in paragraph (a) or a corporation associated with the person referred to in that paragraph, is or would be, or but for sub-section (1) would be, entitled. "(5) The requiring of the giving of, or the giving of, a covenant does not constitute a contravention of this section by reason that giving effect to the covenant would, or would but for the operation of sub-section 88(8) or section 93, constitute a contravention of section 47 and this section does not apply to or in relation to engaging in conduct in relation to a covenant by way of— (a) conduct that contravenes, or would but for the operation of sub-section 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 sub-section 47(2), (4), (6) or (8), being an act done by a person at a time when— (i) an authorization under sub-section 88(8) is in force in relation to conduct engaged in by that person on that condition; or (ii) by reason of sub-section 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. "(6) This section does not apply to or in relation to a covenant or proposed covenant where the only persons who are or would be respectively bound by, or entitled to the benefit of, the covenant or proposed covenant are persons who are associated with each other or are bodies corporate that are related to each other. "(7) For the purposes of this section, section 45c and sub-paragraph 87(3)(a)(ii), a person and a corporation shall be taken to be associated with each other in relation to a covenant or proposed covenant if, and only if— (a) the person is under an obligation (otherwise than in pursuance of the covenant or proposed covenant), whether formal or informal, to act in accordance with directions, instructions or wishes of the corporation in relation to the covenant or proposed covenant; or (b) the person is a body corporate in relation to which the corporation is in the position mentioned in sub-paragraph 4a(1)(a)(ii). "(8) The requiring by a person of the giving of, or the giving by a person of, a covenant in relation to which sub-section 88(5) applies is not a contravention of sub-section (2) of this section if— (a) the covenant is subject to a condition that the covenant will not come into force unless and until the person is granted an authorization to require the giving of, or to give, the covenant; and (b) the person applies for the grant of such an authorization within 14 days after the covenant is given, but nothing in this sub-section affects the application of paragraph (2)(b) or (c) in relation to the covenant. "(9) This section does not apply to or in relation to a covenant or proposed covenant if— (a) the sole or principal purpose for which the covenant was or is required to be given was or is to prevent the relevant land from being used otherwise than for residential purposes; (b) the person who required or requires the covenant to be given was or is a religious, charitable or public benevolent institution or a trustee for such an institution and the covenant was or is required to be given for or in accordance with the purposes or objects of that institution; or (c) the covenant was or is required to be given in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution. Covenants in relation to prices. "45c. (1) In the application of sub-section 45b(1) in relation to a covenant that has, or is likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired by the persons who are, or but for that sub-section would be, bound by or entitled to the benefit of the covenant, or by any of them, or by any persons associated with any of them, in competition with each other, that sub-section has effect as if the words 'if the covenant has, or is likely to have, the effect of substantially lessening competition in a market in which the corporation or any person associated with the corporation supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services' were omitted. "(2) In the application of sub-section 45b(2) in relation to a proposed covenant that has the purpose, or would have or be likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired by the persons who would, or would but for sub-section 45b(1), be bound by or entitled to the benefit of the proposed covenant, or by any of them, or by any persons associated with any of them, in competition with each other, paragraph 45b(2)(a) has effect as if all the words after the words 'require the giving of a covenant, or give a covenant' were omitted. "(3) For the purposes of this Act, a covenant shall not be taken not to have, or not to be likely to have, the effect, or a proposed covenant shall not be taken not to have the purpose, or not to have, or not to be likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services by reason only of— (a) the form of the covenant or proposed covenant; or (b) any description given to the covenant by any of the persons who are, or but for sub-section 45b(1) would be, bound by or entitled to the benefit of the covenant or any description given to the proposed covenant by any of the persons who would, or would but for sub-section 45b(1), be bound by or entitled to the benefit of the proposed covenant. "(4) For the purposes of the preceding provisions of this section, but without limiting the generality of those provisions— (a) a covenant shall be deemed to have, or to be likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods supplied as mentioned on sub-section (1) if the covenant has, or is likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re-supply of the goods by persons to whom the goods are. supplied by the persons who are, or but for sub-section. 45b(1) would be, bound by or entitled to the benefit of the covenant, or by any of them, or by any persons associated with any of them; and (b) a proposed covenant shall be deemed to have the purpose, or to have, or to be likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods supplied as mentioned in sub-section (2) if the proposed covenant has the purpose, or would have or be likely to have the effect, as the case may be, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re-supply of the goods by persons to whom the goods are supplied by the persons who would, or would but for sub-section 45b(1), be bound by or entitled to the benefit of the proposed covenant, or by any of them, or by any persons associated with any of them. "(5) The reference in sub-section (1) to the supply or acquisition of goods or services by persons in competition with each other includes a reference to the supply or acquisition of goods or services by persons who, but for a provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with each other in relation to the supply or acquisition of the goods or services. Secondary boycotts. "45d. (1) Subject to this section, a person shall not, in concert with another person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a corporation (not being an employer of the first-mentioned person), or the acquisition of goods or services by a third person from a corporation (not being an employer of the first-mentioned person), where the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing— (a) substantial loss or damage to the business of the corporation or of a body corporate that is related to the corporation; or (b) a substantial lessening of competition in any market in which the corporation or a body corporate that is related to the corporation supplies or acquires goods or services. "(2) Paragraph 4f(b) does not apply in relation to sub-section (1) of this section but a person shall be deemed to engage in conduct for a purpose mentioned in that sub-section if he engages in that conduct for purposes that include that purpose. "(3) A person shall not be taken to contravene, or to be involved in a contravention of, sub-section (1) by engaging in conduct where— (a) the dominant purpose for which the conduct is engaged in is substantially related to— (i) the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person; or (ii) an employer of that person having terminated, or taken action to terminate, the employment of that person or of another person employed by that employer; or (b) in the case of conduct engaged in by the following persons in concert with each other (and not in concert with any other person), that is to say— (i) an organization or organizations of employees, or an officer or officers of such an organization, or both such an organization or organizations and such an officer or officers; and (ii) an employee, or 2 or more employees who are employed by the one employer, the dominant purpose for which the conduct is engaged in is substantially related to— (iii) the remuneration, conditions of employment, hours of work or working conditions of the employee, or of any of the employees, referred to in sub-paragraph (ii); or (iv) the employer of the employee, or of the employees, referred to in sub-paragraph (ii) having terminated, or taken action to terminate, the employment of any of his employees. "(4) The application of sub-section (1) in relation to a person in respect of his engaging in conduct in concert with another person is not affected by reason that sub-section (3) operates to preclude the other person from being taken to contravene, or to be involved in a contravention of, sub-section (1) in respect of that conduct. "(5) If two or more persons (in this sub-section referred to as the 'participants') each of whom is a member or officer of the same organization of employees (being an organization that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment) engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with other persons, the organization shall be deemed for the purposes of this Act to engage in that conduct in concert with the participants, and so to engage in that conduct for the purpose or purposes for which that conduct is engaged in by the participants, unless the organization establishes that it took all reasonable steps to prevent the participants from engaging in that conduct. "(6) Where an organization of employees engages, or is deemed by sub-section (5) to engage, in conduct in concert with members or officers of the organization in contravention of sub-section (1)— (a) any loss or damage suffered by