Commonwealth: Trade Practices Legislation Amendment Act (No. 1) 2007 (Cth)

Trade Practices Legislation Amendment Act (No. 1) 2007 No. 159, 2007 An Act to amend the Trade Practices Act 1974, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Deputy Chairpersons Trade Practices Act 1974 Schedule 2—Misuse of market power Part 1—Amendment of the Trade Practices Act 1974 Part 2—Application provisions Schedule 3—Unconscionable conduct Australian Securities and Investments Commission Act 2001 Trade Practices Act 1974 Trade Practices Legislation Amendment Act (No. 1) 2007 No. 159, 2007 An Act to amend the Trade Practices Act 1974, and for related purposes [Assented to 24 September 2007] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Trade Practices Legislation Amendment Act (No. 1) 2007. 2 Commencement This Act commences on the day after it receives the Royal Assent. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Deputy Chairpersons Trade Practices Act 1974 1 Subsection 4(1) (definition of Deputy Chairperson) Omit "the Deputy Chairperson", substitute "a Deputy Chairperson". 2 Subsection 10(1) Omit "the Deputy Chairperson", substitute "a Deputy Chairperson". Note: The heading to section 10 is replaced by the heading "Deputy Chairpersons". 3 Subsection 10(1A) Omit "the Deputy Chairperson", substitute "a Deputy Chairperson". 4 No effect on existing appointment The amendments made by items 2 and 3 of this Schedule do not affect the validity of an appointment under subsection 10(1) of the Trade Practices Act 1974 that is in force immediately before the commencement of this item. 5 Subsection 10(4) Omit "The Deputy Chairperson", substitute "A Deputy Chairperson". 6 At the end of section 10 Add: (5) Not more than 2 persons may hold office as Deputy Chairperson at any one time. 7 Paragraphs 11(2)(a) and (b) Repeal the paragraphs, substitute: (a) if there are 2 Deputy Chairpersons available to act as Chairperson, the Minister may appoint 1 of them to act as Chairperson during the absence of the Chairperson; or (b) if there is only 1 Deputy Chairperson available to act as Chairperson, that Deputy Chairperson is to act as Chairperson during the absence of the Chairperson; or (c) if there are no Deputy Chairpersons or none of the Deputy Chairpersons are available to act as Chairperson, the Minister may appoint a member of the Commission to act as Chairperson during the absence of the Chairperson, but any such appointment ceases to have effect if a person is appointed as a Deputy Chairperson or a Deputy Chairperson becomes available to act as Chairperson. 8 Subsection 18(4) Repeal the subsection, substitute: (4) In the absence of the Chairperson from a meeting of the Commission: (a) if there are 2 Deputy Chairpersons available to preside at the meeting—the Chairperson may nominate 1 of them to preside at the meeting; or (b) if there is only 1 Deputy Chairperson available to preside at the meeting—that Deputy Chairperson is to preside at the meeting. 9 Paragraph 18(6)(a) Omit "the Deputy Chairperson", substitute "a Deputy Chairperson". 10 Subsection 19(5) Omit "the Deputy Chairperson is present", substitute "a Deputy Chairperson is presiding". 11 Paragraph 154D(1)(a) Omit "the Deputy Chairperson", substitute "a Deputy Chairperson". 12 Subsection 155(1) Omit "the Deputy Chairperson", substitute "a Deputy Chairperson". 13 Subsection 155A(1) Omit "the Deputy Chairperson", substitute "a Deputy Chairperson". Schedule 2—Misuse of market power Part 1—Amendment of the Trade Practices Act 1974 1 Subsection 46(1) After "of that power", insert "in that or any other market". 1A After subsection 46(1) Insert: (1AA) A corporation that has a substantial share of a market must not supply, or offer to supply, goods or services for a sustained period at a price that is less than the relevant cost to the corporation of supplying such goods or services, for the purpose of: (a) eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market; or (b) preventing the entry of a person into that or any other market; or (c) deterring or preventing a person from engaging in competitive conduct in that or any other market. (1AB) For the purposes of subsection (1AA), without limiting the matters to which the Court may have regard for the purpose of determining whether a corporation has a substantial share of a market, the Court may have regard to the number and size of the competitors of the corporation in the market. 1B Subsection 46(1A) Omit "subsection (1)", substitute "subsections (1) and (1AA)". 1C Paragraph 46(1A)(a) Omit "paragraph (1)(a)", substitute "paragraphs (1)(a) and (1AA)(a)". 1D Paragraph 46(1A)(b) After "paragraphs (1)(b) and (c)", insert "and (1AA)(b) and (c)". 2 After subsection 46(3) Insert: (3A) In determining for the purposes of this section the degree of power that a body corporate or bodies corporate has or have in a market, the Court may have regard to the power the body corporate or bodies corporate has or have in that market that results from: (a) any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the body corporate or bodies corporate has or have, or may have, with another party or other parties; and (b) any covenants, or proposed covenants, that the body corporate or bodies corporate is or are, or would be, bound by or entitled to the benefit of. (3B) Subsections (3) and (3A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this section, the degree of power that a body corporate or bodies corporate has or have in a market. (3C) For the purposes of this section, without limiting the matters to which the Court may have regard for the purpose of determining whether a body corporate has a substantial degree of power in a market, a body corporate may have a substantial degree of power in a market even though: (a) the body corporate does not substantially control the market; or (b) the body corporate does not have absolute freedom from constraint by the conduct of: (i) competitors, or potential competitors, of the body corporate in that market; or (ii) persons to whom or from whom the body corporate supplies or acquires goods or services in that market. (3D) To avoid doubt, for the purposes of this section, more than 1 corporation may have a substantial degree of power in a market. 3 After subsection 46(4) Insert: (4A) Without limiting the matters to which the Court may have regard for the purpose of determining whether a corporation has contravened subsection (1), the Court may have regard to: (a) any conduct of the corporation that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the corporation of supplying such goods or services; and (b) the reasons for that conduct. 4 After subsection 151AH(5) Insert: (5A) In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard may be had to the power that the person has, or that the persons have, in that market that results from: (a) any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the person has or may have, or that the persons have or may have, with another party or parties; and (b) any covenants, or proposed covenants, that the person is or would be, or that the persons are or would be, bound by or entitled to the benefit of. 5 Subsection 151AH(6) Omit "Subsection (5), does not", substitute "Subsections (5) and (5A) do not". 6 After subsection 151AH(6) Insert: (6A) For the purposes of this Part, without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial degree of power in a telecommunications market, a person may have a substantial degree of power in a telecommunications market even though: (a) the person does not substantially control the market; or (b) the person does not have absolute freedom from constraint by the conduct of: (i) competitors, or potential competitors, of the person in that market; or (ii) persons to whom or from whom the person supplies or acquires goods or services in that market. (6B) To avoid doubt, for the purposes of this Part, more than 1 person may have a substantial degree of power in a telecommunications market. 7 Subparagraphs 151AJ(2)(b)(i) and (ii) After "of that power", insert "in that or any other market". 8 After subsection 151AJ(2) Insert: (2A) Without limiting the matters to which regard may be had for the purpose of determining whether a carrier or carriage service provider has engaged in anti‑competitive conduct as defined in subsection (2), regard may be had to: (a) any conduct of the carrier or carriage service provider that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the carrier or carriage service provider of supplying such goods or services; and (b) the reasons for that conduct. 8A Paragraph 151AJ(5)(c) Omit "paragraph 46(1)(a)", substitute "paragraphs 46(1)(a) and (1AA)(a)". 9 Subsection 46(1) of the Schedule After "of that power", insert "in that or any other market". 9A After subsection 46(1) of the Schedule Insert: (1AA) A person that has a substantial share of a market must not supply, or offer to supply, goods or services for a sustained period at a price that is less than the relevant cost to the person of supplying such goods or services, for the purpose of: (a) eliminating or substantially damaging a competitor of the person or of a body corporate that is related to the person in that or any other market; or (b) preventing the entry of a person into that or any other market; or (c) deterring or preventing a person from engaging in competitive conduct in that or any other market. (1AB) For the purposes of subsection (1AA), without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial share of a market, the Court may have regard to the number and size of the competitors of the person in the market. 9B Subsection 46(1A) of the Schedule Omit "subsection (1)", substitute "subsections (1) and (1AA)". 9C Paragraph 46(1A)(a) of the Schedule Omit "paragraph (1)(a)", substitute "paragraphs (1)(a) and (1AA)(a)". 9D Paragraph 46(1A)(b) of the Schedule After "paragraphs (1)(b) and (c)", insert "and (1AA)(b) and (c)". 10 After subsection 46(3) of the Schedule Insert: (3A) In determining for the purposes of this section the degree of power that a person (the first person) or bodies corporate has or have in a market, the Court may have regard to the power the first person or bodies corporate has or have in that market that results from: (a) any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the first person or bodies corporate has or have, or may have, with another party or other parties; and (b) any covenants, or proposed covenants, that the first person or bodies corporate is or are, or would be, bound by or entitled to the benefit of. (3B) Subsections (3) and (3A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this section, the degree of power that a person or bodies corporate has or have in a market. (3C) For the purposes of this section, without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial degree of power in a market, a person may have a substantial degree of power in a market even though: (a) the person does not substantially control the market; or (b) the person does not have absolute freedom from constraint by the conduct of: (i) competitors, or potential competitors, of the person in that market; or (ii) persons to whom or from whom the person supplies or acquires goods or services in that market. (3D) To avoid doubt, for the purposes of this section, more than 1 person may have a substantial degree of power in a market. 11 After subsection 46(4) of the Schedule Insert: (4A) Without limiting the matters to which the Court may have regard for the purpose of determining whether a person has contravened subsection (1), the Court may have regard to: (a) any conduct of the person that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the person of supplying such goods or services; and (b) the reasons for that conduct. Part 2—Application provisions 12 Application of amendments (1) The amendments made by items 1, 2 and 3 of this Schedule apply in relation to contraventions of section 46 of the Trade Practices Act 1974 (as amended by this Act) that occur after the commencement of those items. (2) The amendments made by items 4 to 8 of this Schedule apply in relation to contraventions of section 151AK of the Trade Practices Act 1974 (as amended by this Act) that occur after the commencement of those items. (3) The amendments made by items 9, 10 and 11 of this Schedule apply in relation to contraventions of section 46 of the Schedule to the Trade Practices Act 1974 (as amended by this Act) that occur after the commencement of those items. Schedule 3—Unconscionable conduct Australian Securities and Investments Commission Act 2001 1 After paragraph 12CC(2)(j) Insert: (ja) whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the service recipient for the supply of the financial services; and 2 After paragraph 12CC(3)(j) Insert: (ja) whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the business supplier for the acquisition of the financial services; and 3 Subsection 12CC(8) Omit "$3,000,000", substitute "$10,000,000". 4 Subsection 12CC(9) Omit "$3,000,000", substitute "$10,000,000". Trade Practices Act 1974 5 After paragraph 51AC(3)(j) Insert: (ja) whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the business consumer for the supply of the goods or services; and 6 After paragraph 51AC(4)(j) Insert: (ja) whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the small business supplier for the acquisition of the goods or services; and 7 Subsection 51AC(9) Omit "$3,000,000", substitute "$10,000,000". 8 Subsection 51AC(10) Omit "$3,000,000", substitute "$10,000,000". 9 Application of amendments The amendments made by this Schedule apply in relation to conduct engaged in after the commencement of the amendments in relation to contracts for the supply or acquisition of goods or services made before or after commencement. [Minister's second reading speech made in— House of Representatives on 20 June 2007 Senate on 9 August 2007] (131/07)