Commonwealth: Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth)

Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 No. 59, 2009 An Act to amend the Trade Practices Act 1974, and for other purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Amendments relating to cartel conduct etc. Proceeds of Crime Act 2002 Telecommunications (Interception and Access) Act 1979 Trade Practices Act 1974 Schedule 2—Other amendments Part 1—Amendments Trade Practices Act 1974 Part 2—Application Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 No. 59, 2009 An Act to amend the Trade Practices Act 1974, and for other purposes [Assented to 26 June 2009] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 26 June 2009 2. Schedule 1 The 28th day after the day on which this Act receives the Royal Assent. 24 July 2009 3. Schedule 2, items 1 to 49 The 28th day after the day on which this Act receives the Royal Assent. 24 July 2009 4. Schedule 2, items 50 and 51 The day after this Act receives the Royal Assent. 27 June 2009 5. Schedule 2, items 52 and 53 The 28th day after the day on which this Act receives the Royal Assent. 24 July 2009 Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments relating to cartel conduct etc. Proceeds of Crime Act 2002 1 Section 338 (after paragraph (ec) of the definition of serious offence) Insert: (ed) an offence against either of the following sections of the Trade Practices Act 1974: (i) section 44ZZRF (making a contract etc. containing a cartel provision); (ii) section 44ZZRG (giving effect to a cartel provision); or Telecommunications (Interception and Access) Act 1979 2 After subsection 5D(5A) Insert: Cartel offences (5B) An offence is also a serious offence if it is: (a) an offence against section 44ZZRF or 44ZZRG of the Trade Practices Act 1974; or (b) an offence under subsection 79(1) of the Trade Practices Act 1974 that relates to an offence covered by paragraph (a); or (c) an offence against section 44ZZRF or 44ZZRG of the text set out in Part 1 of the Schedule to the Trade Practices Act 1974, so far as that section applies as a law of a State, the Northern Territory or the Australian Capital Territory; or (d) an offence under subsection 79(1) of the Trade Practices Act 1974 (so far as that subsection applies as a law of a State, the Northern Territory or the Australian Capital Territory) that relates to an offence covered by paragraph (c). Note: Offences covered by paragraph (c) or (d) form part of the Competition Code of the State or Territory concerned. Trade Practices Act 1974 3 Subsection 4(1) Insert: cartel provision has the meaning given by section 44ZZRD. 4 Subsection 5(1) Repeal the subsection, substitute: (1) Each of the following provisions: (a) Part IV; (b) Part IVA; (c) Part V (other than Division 1AA); (d) Part VB; (e) Part VC; (f) the remaining provisions of this Act (to the extent to which they relate to any of the provisions covered by paragraph (a), (b), (c), (d) or (e)); extends to the engaging in conduct outside Australia by: (g) bodies corporate incorporated or carrying on business within Australia; or (h) Australian citizens; or (i) persons ordinarily resident within Australia. Note: The heading to section 5 is altered by omitting "and VC" and substituting ", VC etc.". 5 Subsection 5(4) Omit "or the Commission", substitute ", the Commission or the Director of Public Prosecutions". 6 At the end of paragraph 6(2)(a) Add "and". 7 Paragraph 6(2)(b) Omit "sections 45", substitute "sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45". 8 At the end of paragraph 6(2)(b) Add "and". 9 At the end of paragraph 6(2)(c) Add "and". 10 At the end of paragraph 6(2)(d) Add "and". 11 At the end of paragraph 6(2)(e) Add "and". 12 At the end of paragraph 6(2)(ea) Add "and". 13 At the end of paragraph 6(2)(eb) Add "and". 14 After subsection 6(2B) Insert: (2C) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if: (a) the reference in paragraph 44ZZRD(2)(c) to goods or services supplied, or likely to be supplied, were, by express provision, confined to goods or services supplied, or likely to be supplied, to corporations or classes of corporations; and (b) the reference in paragraph 44ZZRD(2)(d) to goods or services acquired, or likely to be acquired, were, by express provision, confined to goods or services acquired, or likely to be acquired, from corporations or classes of corporations; and (c) the reference in paragraph 44ZZRD(2)(e) to goods or services re‑supplied, or likely to be re‑supplied, were, by express provision, confined to goods or services re‑supplied, or likely to be re‑supplied, to corporations or classes of corporations; and (d) the reference in paragraph 44ZZRD(2)(f) to goods or services likely to be re‑supplied were, by express provision, confined to goods or services likely to be re‑supplied to corporations or classes of corporations; and (e) the following paragraphs were added at the end of subsection 44ZZRD(2): "; or (g) goods or services re‑supplied, or likely to be re‑supplied, by corporations or classes of corporations to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or (h) goods or services likely to be re‑supplied by corporations or classes of corporations to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding."; and (f) the reference in subparagraph 44ZZRD(3)(a)(i) to the production, or likely production, of goods were, by express provision, confined to the production, or likely production, of goods for supply to corporations or classes of corporations; and (g) the reference in subparagraph 44ZZRD(3)(a)(ii) to the supply of services were, by express provision, confined to the supply of services to corporations or classes of corporations; and (h) each reference in subparagraphs 44ZZRD(3)(a)(iii), (b)(i) and (ii) to persons or classes of persons were, by express provision, confined to corporations or classes of corporations; and (i) the reference in subparagraph 44ZZRD(3)(b)(iii) to the geographical areas in which goods or services are supplied, or likely to be supplied, were, by express provision, confined to the geographical areas in which goods or services are supplied, or likely to be supplied, to corporations or classes of corporations; and (j) the reference in subparagraph 44ZZRD(3)(b)(iv) to the geographical areas in which goods or services are acquired, or likely to be acquired, were, by express provision, confined to the geographical areas in which goods or services are acquired, or likely to be acquired, from corporations or classes of corporations; and (k) the reference in paragraph 44ZZRD(3)(c) to the supply or acquisition of goods or services were, by express provision, confined to supply of goods or services to, or the acquisition of goods or services from, corporations or classes of corporations; and (l) the reference in paragraph 44ZZRD(4)(e) to paragraph (2)(e) or (f) included a reference to paragraph (2)(g) or (h); and (m) section 44ZZRD also provided that it is immaterial whether the identities of the corporations referred to in subsection (2) or (3) of that section can be ascertained; and (n) each reference in the following provisions of this Act: (i) Division 1 of Part IV (other than section 44ZZRD); (ii) any other provision (other than section 4, 44ZZRD, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV; to a corporation included a reference to a person not being a corporation. For the purposes of this subsection, likely and production have the same meaning as in Division 1 of Part IV. (2D) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if: (a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of, or relates to, a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; and (b) each reference in the following provisions of this Act: (i) Division 1 of Part IV; (ii) any other provision (other than section 4, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV; to a corporation included a reference to a person not being a corporation. (2E) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if: (a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in, or relates to: (i) a Territory; or (ii) a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); and (b) each reference in the following provisions of this Act: (i) Division 1 of Part IV; (ii) any other provision (other than section 4, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV; to a corporation included a reference to a person not being a corporation. 15 Subsection 6(3) Omit "subsection (2)", substitute "another subsection of this section". 16 Subsection 6(4) Omit "subsections (2) and (3)", substitute "another subsection of this section". 17 After subsection 6(5) Insert: (5A) Despite anything in section 44ZZRF or 44ZZRG, if a body corporate other than a corporation is convicted of an offence against that section (as that section applies because of this section), the offence is taken to be punishable on conviction as if the body corporate were a corporation. (5B) Despite anything in section 44ZZRF or 44ZZRG, if a person other than a body corporate is convicted of an offence against that section (as that section applies because of this section), the offence is taken to be punishable on conviction by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both. 18 Subsection 6AA(2) Omit "or Division 7 of Part XIB", substitute ", Division 7 of Part XIB, or section 44ZZRF or 44ZZRG". 19 Part IV (after heading) Insert: Division 1—Cartel conduct Subdivision A—Introduction 44ZZRA Simplified outline The following is a simplified outline of this Division: • This Division sets out parallel offences and civil penalty provisions relating to cartel conduct. • A corporation must not make, or give effect to, a contract, arrangement or understanding that contains a cartel provision. • A cartel provision is a provision relating to: (a) price‑fixing; or (b) restricting outputs in the production and supply chain; or (c) allocating customers, suppliers or territories; or (d) bid‑rigging; by parties that are, or would otherwise be, in competition with each other. 44ZZRB Definitions In this Division: annual turnover, of a body corporate during a 12‑month period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12‑month period, other than: (a) supplies made from any of those bodies corporate to any other of those bodies corporate; or (b) supplies that are input taxed; or (c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999); or (d) supplies that are not made in connection with an enterprise that the body corporate carries on; or (e) supplies that are not connected with Australia. Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act. benefit includes any advantage and is not limited to property. bid includes: (a) tender; and (b) the taking, by a potential bidder or tenderer, of a preliminary step in a bidding or tendering process. evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. likely, in relation to any of the following: (a) a supply of goods or services; (b) an acquisition of goods or services; (c) the production of goods; (d) the capacity to supply services; includes a possibility that is not remote. obtaining includes: (a) obtaining for another person; and (b) inducing a third person to do something that results in another person obtaining. party has a meaning affected by section 44ZZRC. production includes manufacture, processing, treatment, assembly, disassembly, renovation, restoration, growing, raising, mining, extraction, harvesting, fishing, capturing and gathering. 44ZZRC Extended meaning of party For the purposes of this Division, if a body corporate is a party to a contract, arrangement or understanding (otherwise than because of this section), each body corporate related to that body corporate is taken to be a party to that contract, arrangement or understanding. 44ZZRD Cartel provisions (1) 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 happen, in particular circumstances or on particular conditions; and (b) for the purposes of subparagraph (3)(a)(i)—the production happens, or the likely production is to happen, in particular circumstances or on particular conditions; and (c) for the purposes of subparagraph (3)(a)(ii)—the capacity exists, or the likely capacity is to exist, in particular circumstances or on particular conditions. Considering related provisions—purpose/effect condition (8) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose, or to have or be likely to have the effect, mentioned in subsection (2) if the provision, when considered together with any or all of the following provisions: (a) the other provisions of the contract, arrangement or understanding; (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first‑mentioned contract, arrangement or understanding; has that purpose, or has or is likely to have that effect. Considering related provisions—purpose condition (9) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose mentioned in a paragraph of subsection (3) if the provision, when considered together with any or all of the following provisions: (a) the other provisions of the contract, arrangement or understanding; (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first‑mentioned contract, arrangement or understanding; has that purpose. Purpose/effect of a provision (10) For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose, or not to have or to be likely to have the effect, mentioned in subsection (2) by reason only of: (a) the form of the provision; or (b) the form of the contract, arrangement or understanding; or (c) any description given to the provision, or to the contract, arrangement or understanding, by the parties. Purpose of a provision (11) For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose mentioned in a paragraph of subsection (3) by reason only of: (a) the form of the provision; or (b) the form of the contract, arrangement or understanding; or (c) any description given to the provision, or to the contract, arrangement or understanding, by the parties. 44ZZRE Meaning of expressions in other provisions of this Act In determining the meaning of an expression used in a provision of this Act (other than this Division, subsection 6(2C), paragraph 76(1A)(aa) or subsection 93AB(1A)), this Division is to be disregarded. Subdivision B—Offences etc. 44ZZRF Making a contract etc. containing a cartel provision Offence (1) A corporation commits an offence if: (a) the corporation makes a contract or arrangement, or arrives at an understanding; and (b) the contract, arrangement or understanding contains a cartel provision. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) The fault element for paragraph (1)(b) is knowledge or belief. Penalty (3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following: (a) $10,000,000; (b) if the court can determine the total value of the benefits that: (i) have been obtained by one or more persons; and (ii) are reasonably attributable to the commission of the offence; 3 times that total value; (c) if the court cannot determine the total value of those benefits—10% of the corporation's annual turnover during the 12‑month period ending at the end of the month in which the corporation committed, or began committing, the offence. Indictable offence (4) An offence against subsection (1) is an indictable offence. 44ZZRG Giving effect to a cartel provision Offence (1) A corporation commits an offence if: (a) a contract, arrangement or understanding contains a cartel provision; and (b) the corporation gives effect to the cartel provision. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) The fault element for paragraph (1)(a) is knowledge or belief. Penalty (3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following: (a) $10,000,000; (b) if the court can determine the total value of the benefits that: (i) have been obtained by one or more persons; and (ii) are reasonably attributable to the commission of the offence; 3 times that total value; (c) if the court cannot determine the total value of those benefits—10% of the corporation's annual turnover during the 12‑month period ending at the end of the month in which the corporation committed, or began committing, the offence. Pre‑commencement contracts etc. (4) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section. Indictable offence (5) An offence against subsection (1) is an indictable offence. 44ZZRH Determining guilt (1) A corporation may be found guilty of an offence against section 44ZZRF or 44ZZRG even if: (a) each other party to the contract, arrangement or understanding is a person who is not criminally responsible; or (b) subject to subsection (2), all other parties to the contract, arrangement or understanding have been acquitted of the offence. Note: Party has an extended meaning—see section 44ZZRC. (2) A corporation cannot be found guilty of an offence against section 44ZZRF or 44ZZRG if: (a) all other parties to the contract, arrangement or understanding have been acquitted of such an offence; and (b) a finding of guilt would be inconsistent with their acquittal. 44ZZRI Court may make related civil orders If a prosecution against a person for an offence against section 44ZZRF or 44ZZRG is being, or has been, heard by a court, the court may: (a) grant an injunction under section 80 against the person in relation to: (i) the conduct that constitutes, or is alleged to constitute, the offence; or (ii) other conduct of that kind; or (b) make an order under section 86C, 86D, 86E or 87 in relation to the offence. Subdivision C—Civil penalty provisions 44ZZRJ Making a contract etc. containing a cartel provision A corporation contravenes this section if: (a) the corporation makes a contract or arrangement, or arrives at an understanding; and (b) the contract, arrangement or understanding contains a cartel provision. Note: For enforcement, see Part VI. 44ZZRK Giving effect to a cartel provision (1) A corporation contravenes this section if: (a) a contract, arrangement or understanding contains a cartel provision; and (b) the corporation gives effect to the cartel provision. Note: For enforcement, see Part VI. (2) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section. Subdivision D—Exceptions 44ZZRL Conduct notified (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply to a corporation in relation to a contract, arrangement or understanding containing a cartel provision, in so far as: (a) the cartel provision: (i) has the purpose, or has or is likely to have the effect, mentioned in subsection 44ZZRD(2); or (ii) has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c); and (b) the corporation has given the Commission a collective bargaining notice under subsection 93AB(1A) setting out particulars of the contract, arrangement or understanding; and (c) the notice is in force under section 93AD. 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. 44ZZRM Cartel provision subject to grant of authorisation (1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the making of a contract that contains a cartel provision 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 authorisation to give effect to the provision; and (b) the corporation applies for the grant of such an authorisation within 14 days after the contract is made. 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 bears an evidential burden in relation to that matter. 44ZZRN Contracts, arrangements or understandings between related bodies corporate (1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding if the only parties to the contract, arrangement or understanding are bodies corporate that are related to each other. 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. 44ZZRO Joint ventures—prosecution (1) Sections 44ZZRF and 44ZZRG do not apply in relation to a contract containing a cartel provision if: (a) the cartel provision is for the purposes of a joint venture; and (b) the joint venture is for the production and/or supply of goods or services; and (c) in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the contract; and (d) in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the contract for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note 1: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code). Note 2: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (1A) Section 44ZZRF does not apply in relation to an arrangement or understanding containing a cartel provision if: (a) the arrangement or understanding is not a contract; and (b) when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding: (i) intended the arrangement or understanding to be a contract; and (ii) reasonably believed that the arrangement or understanding was a contract; and (c) the cartel provision is for the purposes of a joint venture; and (d) the joint venture is for the production and/or supply of goods or services; and (e) in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and (f) in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note 1: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code). Note 2: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (1B) Section 44ZZRG does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if: (a) the arrangement or understanding is not a contract; and (b) when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding: (i) intended the arrangement or understanding to be a contract; and (ii) reasonably believed that the arrangement or understanding was a contract; and (c) when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and (d) the cartel provision is for the purposes of a joint venture; and (e) the joint venture is for the production and/or supply of goods or services; and (f) in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and (g) in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note 1: A defendant bears an evidential burden in relation to the matter in subsection (1B) (see subsection 13.3(3) of the Criminal Code). Note 2: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. Notice to prosecutor (2) A person is not entitled to rely on subsection (1), (1A) or (1B) in a trial for an offence unless, within 28 days after the day on which the person is committed for trial, the person gives the prosecutor: (a) a written notice setting out: (i) the facts on which the person proposes to rely for the purpose of discharging the evidential burden borne by the person in relation to the matter in subsection (1), (1A) or (1B), as the case may be; and (ii) the names and address of any witnesses whom the person proposes to call for the purpose of discharging the evidential burden borne by the person in relation to the matter in subsection (1), (1A) or (1B), as the case may be; and (b) certified copies of any documents which the person proposes to adduce or point to for the purpose of discharging the evidential burden borne by the person in relation to the matter in subsection (1), (1A) or (1B), as the case may be. (3) If the trial of a person for an offence is being, or is to be, held in a court, the court may, by order: (a) exempt the person from compliance with subsection (2); or (b) extend the time within which the person is required to comply with subsection (2). (4) For the purposes of paragraph (2)(b), a certified copy of a document is a copy of the document certified to be a true copy by: (a) a Justice of the Peace; or (b) a commissioner for taking affidavits. 44ZZRP Joint ventures—civil penalty proceedings (1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a contract containing a cartel provision if: (a) the cartel provision is for the purposes of a joint venture; and (b) the joint venture is for the production and/or supply of goods or services; and (c) in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the contract; and (d) in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the contract for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (1A) Section 44ZZRJ does not apply in relation to an arrangement or understanding containing a cartel provision if: (a) the arrangement or understanding is not a contract; and (b) when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding: (i) intended the arrangement or understanding to be a contract; and (ii) reasonably believed that the arrangement or understanding was a contract; and (c) the cartel provision is for the purposes of a joint venture; and (d) the joint venture is for the production and/or supply of goods or services; and (e) in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and (f) in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (1B) Section 44ZZRK does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if: (a) the arrangement or understanding is not a contract; and (b) when the arrangement was made, or the understanding was arrived at, each party to the arrangement or understanding: (i) intended the arrangement or understanding to be a contract; and (ii) reasonably believed that the arrangement or understanding was a contract; and (c) when the cartel provision was given effect to, each party to the arrangement or understanding reasonably believed that the arrangement or understanding was a contract; and (d) the cartel provision is for the purposes of a joint venture; and (e) the joint venture is for the production and/or supply of goods or services; and (f) in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the arrangement or understanding; and (g) in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (e) jointly by means of: (i) their joint control; or (ii) their ownership of shares in the capital; of that body corporate. Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. (2) A person who wishes to rely on subsection (1), (1A) or (1B) bears an evidential burden in relation to that matter. 44ZZRQ 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 20 Subsection 45(3) Omit "and section 45A". 21 Section 45A Repeal the section. 22 At the end of subparagraph 76(1)(a)(i) Add "(other than section 44ZZRF or 44ZZRG)". 23 Before paragraph 76(1A)(a) Insert: (aa) for each act or omission to which this section applies that relates to section 44ZZRJ or 44ZZRK—the greatest of the following: (i) $10,000,000; (ii) if the court can determine the total value of the benefits that have been obtained (within the meaning of Division 1 of Part IV) by one or more persons and that are reasonably attributable to the act or omission—3 times that total value; (iii) if the Court cannot determine the total value of those benefits—10% of the annual turnover (within the meaning of Division 1 of Part IV) of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the act or omission occurred; and 24 Subsection 76(3) After "Part IV", insert "(other than section 44ZZRF or 44ZZRG)". 25 Subsection 76(4) Omit "the 2 limits in paragraphs (1A)(a) and (b) apply is an amount up to the higher", substitute "2 or more of the limits in paragraphs (1A)(aa), (a) and (b) apply is an amount up to the highest". 26 Subsection 76B(1) (definition of contravention) After "section" (wherever occurring), insert "or Part". Note: The heading to section 76B is altered by inserting "Part IV or" before "section 75AYA". 27 Subsections 76B(2), (3), (4) and (5) Before "section 75AYA", insert "Part IV or". 28 At the end of section 76B Add: (6) In this section: offence means an offence against a law of the Commonwealth, a State or a Territory. 29 Section 76D Repeal the section. 30 Subparagraph 78(a)(i) Repeal the subparagraph, substitute: (i) a provision of Part IV (other than section 44ZZRF or 44ZZRG); (ia) a provision of Part V (other than section 65Q or 65R or subsection 65F(9)); 31 Before paragraph 79(1)(a) Insert: (aa) attempts to contravene; or Note: The heading to section 79 is altered by inserting "section 44ZZRF or 44ZZRG or" after "against". 32 Subsection 79(1) Before "a provision of", insert "a cartel offence provision or". 33 Subsection 79(1) Omit "punishable accordingly.", substitute: punishable: (e) in a case where: (i) the provision is a cartel offence provision; and (ii) the person is not a body corporate; by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both; or (f) in any other case—accordingly. 34 After subsection 79(1) Insert: (1AA) For the purposes of the application of subsection (1) to a case where: (a) the provision is a cartel offence provision; and (b) the person is a body corporate other than a corporation; assume that each reference in paragraph 44ZZRF(3)(c) or 44ZZRG(3)(c) to a corporation were read as a reference to a body corporate. (1AB) Subsections 11.1(2) to (6) (inclusive) of the Criminal Code apply in relation to paragraph (1)(aa) in the same way that they apply in relation to the offence of attempt under subsection 11.1(1) of the Criminal Code. 35 Subsection 79(5) Before "a provision of", insert "a cartel offence provision or". 36 At the end of section 79 Add: (7) In this section: cartel offence provision means section 44ZZRF or 44ZZRG. 37 Subsection 79A(1) Omit "section 65Q", substitute "section 44ZZRF, 44ZZRG, 65Q". 38 Subparagraph 79B(a)(ii) After "under", insert "section 44ZZRF or 44ZZRG or". 39 At the end of section 80 Add: (9) If the Director of Public Prosecutions makes an application to the Court for the grant of an injunction under this section in relation to: (a) a person's contravention, or proposed contravention, of section 44ZZRF or 44ZZRG; or (b) a person's involvement, or proposed involvement, in a contravention of section 44ZZRF or 44ZZRG; the Court must not require the Director of Public Prosecutions or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages. 40 Section 83 After "offence against", insert "section 44ZZRF or 44ZZRG or". 41 Subsection 84(1) Repeal the subsection, substitute: (1) If, in: (a) a prosecution for an offence against section 44ZZRF or 44ZZRG in respect of conduct engaged in by a body corporate; or (b) a proceeding under this Part in respect of conduct engaged in by a body corporate, being conduct in relation to which section 44ZZRJ, 44ZZRK, 46 or 46A or Part IVA, IVB, V, VB or VC applies; it is necessary to establish the state of mind of the body corporate, it is sufficient to show that: (c) a director, employee or agent of the body corporate engaged in that conduct; and (d) the director, employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and (e) the director, employee or agent had that state of mind. Note: The heading to section 84 is altered by omitting "servants" and substituting "employees". 42 Subsection 84(2) Omit "servant" (wherever occurring), substitute "employee". 43 Subsection 84(3) Repeal the subsection, substitute: (3) If, in: (a) a prosecution for an offence against section 44ZZRF or 44ZZRG in respect of conduct engaged in by a person other than a body corporate; or (b) a proceeding under this Part in respect of conduct engaged in by a person other than a body corporate, being conduct in relation to which section 44ZZRJ or 44ZZRK or Part IVA, IVB, V, VB or VC applies; it is necessary to establish the state of mind of the person, it is sufficient to show that: (c) an employee or agent of the person engaged in that conduct; and (d) the employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and (e) the employee or agent had that state of mind. 44 Paragraph 84(4)(a) Omit "a servant", substitute "an employee". 45 Paragraph 84(4)(a) Omit "the servant", substitute "the employee". 46 Paragraph 84(4)(b) Omit "a servant", substitute "an employee". 47 Paragraph 84(4)(b) Omit "the servant", substitute "the employee". 48 After subsection 84(4) Insert: (4A) If: (a) a person other than a body corporate is convicted of an offence; and (b) subsection (3) or (4) applied in relation to the conviction on the basis that the person was the person first mentioned in that subsection; and (c) the person would not have been convicted of the offence if that subsection had not been enacted; the person is not liable to be punished by imprisonment for that offence. 49 Subsection 86(1AA) Omit "Part or Division" (wherever occurring), substitute "Part, Division or section". 50 After subsection 86(3) Insert: (3A) The Supreme Court of a State is invested with federal jurisdiction with respect to any matter in respect of which a civil proceeding covered by section 44ZZRI is instituted in that Court. (3B) Subject to the Constitution, the Supreme Court of a Territory is conferred with jurisdiction with respect to any matter in respect of which a civil proceeding covered by section 44ZZRI is instituted in that Court. 51 After paragraph 86(4)(b) Insert: (ba) the jurisdiction of the Supreme Courts of the States under subsection (3A); and (bb) the jurisdiction of the Supreme Courts of the Territories under subsection (3B); and 52 After subsection 86C(1) Insert: (1A) The Court may, on application by the Director of Public Prosecutions, make one or more of the orders mentioned in subsection (2) in relation to a person who has engaged in contravening conduct that is: (a) a contravention of section 44ZZRF or 44ZZRG; or (b) an involvement in a contravention of section 44ZZRF or 44ZZRG. 53 Paragraph 86D(1)(b) Omit "under", substitute "against section 44ZZRF or 44ZZRG or". 54 After subsection 86D(1) Insert: (1A) The Court may, on application by the Director of Public Prosecutions, make an adverse publicity order in relation to a person who is guilty of an offence against section 44ZZRF or 44ZZRG. 55 After subsection 86E(1) Insert: (1A) On application by the Director of Public Prosecutions, the Court may make an order disqualifying a person from managing corporations for a period that the Court considers appropriate if: (a) the Court is satisfied that the person has contravened or has been involved in a contravention of section 44ZZRF or 44ZZRG; and (b) the Court is satisfied that the disqualification is justified. Note: Section 206EA of the Corporations Act 2001 provides that a person is disqualified from managing corporations if a court order is in force under this section. That Act contains various consequences for persons so disqualified. 56 Subsection 86E(2) After "determining", insert "under subsection (1) or (1A)". 57 Subsection 86E(3) Omit "this section", substitute "subsection (1)". 58 After subsection 86E(3) Insert: (3A) The Director of Public Prosecutions must notify ASIC if the Court makes an order under subsection (1A). The Director of Public Prosecutions must give ASIC a copy of the order. Note: ASIC must keep a register of persons who have been disqualified from managing corporations—see section 1274AA of the Corporations Act 2001. 59 Subsection 87(1) After "offence against", insert "section 44ZZRF or 44ZZRG or". 60 At the end of paragraph 87(1A)(b) Add "or". 61 After paragraph 87(1A)(b) Insert: (ba) on the application of the Director of Public Prosecutions in accordance with subsection (1BA) on behalf of one or more persons who have suffered, or who are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of section 44ZZRF or 44ZZRG; 62 After subsection 87(1B) Insert: (1BA) The Director of Public Prosecutions may make an application under paragraph (1A)(ba) on behalf of one or more persons identified in the application who: (a) have suffered, or are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of section 44ZZRF or 44ZZRG; and (b) have, before the application is made, consented in writing to the making of the application. 63 Section 87D (after paragraph (a) of the definition of plaintiff) Insert: (aa) if the proceeding is a proceeding that the Director of Public Prosecutions commences under paragraph 87(1A)(ba)—a person on whose behalf the Director of Public Prosecutions commences the proceeding; or 64 Before subsection 88(1) Insert: (1A) Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant an authorisation to the corporation: (a) to make a contract or arrangement, or arrive at an understanding, if a provision of the proposed contract, arrangement or understanding would be, or might be, a cartel provision; or (b) to give effect to a provision of a contract, arrangement or understanding if the provision is, or may be, a cartel provision; and, while such an authorisation remains in force: (c) in the case of an authorisation to make a contract or arrangement, or to arrive at an understanding—sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not prevent the corporation from making the contract or arrangement, or arriving at the understanding, in accordance with the authorisation; or (d) in the case of an authorisation to give effect to a provision of a contract, arrangement or understanding—sections 44ZZRG and 44ZZRK do not prevent the corporation from giving effect to the provision in accordance with the authorisation. 65 Subsection 88(10) Omit "subsection (1)", substitute "subsection (1A) or (1)". 66 After subsection 90(5) Insert: (5A) The Commission must not make a determination granting an authorisation under subsection 88(1A) in respect of a provision of a proposed contract, arrangement or understanding that would be, or might be, a cartel provision, unless the Commission is satisfied in all the circumstances: (a) that the provision would result, or be likely to result, in a benefit to the public; and (b) that the benefit would outweigh the detriment to the public constituted by any lessening of competition that would result, or be likely to result, if: (i) the proposed contract or arrangement were made, or the proposed understanding were arrived at; and (ii) the provision were given effect to. (5B) The Commission must not make a determination granting an authorisation under subsection 88(1A) in respect of a provision of a contract, arrangement or understanding that is or may be a cartel provision, unless the Commission is satisfied in all the circumstances: (a) that the provision has resulted, or is likely to result, in a benefit to the public; and (b) that the benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that has resulted, or is likely to result, from giving effect to the provision. 67 Subsection 91A(4) Omit "90(6)", substitute "90(5A), (5B), (6)". 68 Subsection 91B(5) Omit "90(6)", substitute "90(5A), (5B), (6)". 69 Subsection 91C(7) Omit "90(6)", substitute "90(5A), (5B), (6)". 70 Section 93AA (definition of collective bargaining notice) Omit "93AB(1)", substitute "93AB(1A) or (1)". 71 Before subsection 93AB(1) Insert: Notice to Commission—cartel provisions (1A) A corporation that: (a) has made, or proposes to make, a contract (the initial contract) that contains a cartel provision that: (i) has the purpose; or (ii) has or is likely to have the effect; mentioned in subsection 44ZZRD(2); or (b) has made, or proposes to make, a contract (the initial contract) that contains a cartel provision that has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c); or (c) proposes to give effect to a provision of a contract (the initial contract) where the provision is a cartel provision that: (i) has the purpose; or (ii) has or is likely to have the effect; mentioned in subsection 44ZZRD(2); or (d) proposes to give effect to a provision of a contract (the initial contract) where the provision is a cartel provision that has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c); may give the Commission a notice (the collective bargaining notice) setting out particulars of the contract or proposed contract, but only if the 3 requirements set out in subsections (2), (3) and (4) are satisfied. Note 1: Subsection (6) deals with the form etc. of a collective bargaining notice. Note 2: Section 93AD sets out when a collective bargaining notice comes into force. 72 Subsection 93AB(1) Omit "following 3 requirements", substitute "3 requirements set out in subsections (2), (3) and (4)". Note: The heading to subsection 93AB(1) is altered by adding at the end "—per se and competition provisions". 73 Before subsection 93AB(11) Insert: Purpose/effect of a provision (10B) Subsections 44ZZRD(6), (7), (8) and (10) apply for the purposes of paragraphs (1A)(a) and (c) in a corresponding way to the way in which they apply for the purposes of Division 1 of Part IV. Purpose of a provision (10C) Subsections 44ZZRD(7), (9) and (11) apply for the purposes of paragraphs (1A)(b) and (d) in a corresponding way to the way in which they apply for the purposes of Division 1 of Part IV. 74 Subsection 93AC(1) Omit "a collective bargaining notice in relation to". 75 Before paragraph 93AC(1)(a) Insert: (aa) a collective bargaining notice under subsection 93AB(1A) in relation to a contract, or proposed contract, containing a cartel provision of the kind referred to in that subsection; or Note: The heading to subsection 93AC(1) is altered by inserting "cartel provisions or" before "per se provisions". 76 Paragraph 93AC(1)(a) Before "a contract", insert "a collective bargaining notice under subsection 93AB(1) in relation to". 77 Paragraph 93AC(1)(a) Omit "provisions); or", substitute "provisions);". 78 Paragraph 93AC(1)(b) Repeal the paragraph. 79 Subsection 93AC(2) After "collective bargaining notice", insert "under subsection 93AB(1)". 80 Subsection 93AC(2) Omit "(other than a price fixing provision)". 81 Subsection 93AC(6) Repeal t