Contracts, arrangements or understandings that restrict dealings or affect competition
45 Contracts, arrangements or understandings that restrict dealings or affect competition
A corporation must not:
make a contract or arrangement, or arrive at an understanding, if 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
give effect to a provision of a contract, arrangement or understanding, if that provision has the purpose, or has or is likely to have the effect, of substantially lessening competition; or
engage with one or more persons in a concerted practice that has the purpose, or has or is likely to have the effect, of substantially lessening competition.
Paragraph (1)(b) applies in relation to contracts or arrangements made, or understandings arrived at, before or after the commencement of this section.
For the purposes of this section, competition means:
in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding—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; or
in relation to a concerted practice—competition in any market in which:
a corporation that is a party to the practice; 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 practice, supply or acquire, or be likely to supply or acquire, goods or services.
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:
the other provisions of that contract, arrangement or understanding or proposed contract, arrangement or understanding; and
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.
This section does not apply to or in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, or to or in relation to a concerted practice, in so far as the provision or practice relates to:
conduct that contravenes section 48; or
conduct that would contravene section 48 if subsection 48(2) did not apply; or
conduct that would contravene section 48 if it were not authorised under section 88; or
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.
The making of a contract, arrangement or understanding does not constitute a contravention of this section because the contract, arrangement or understanding contains a provision the giving effect to which would, or would apart from subsection 47(10) or section 88 or 93, constitute a contravention of section 47.
This section does not apply to or in relation to the giving effect to a provision of a contract, arrangement or understanding, or to or in relation to engaging in a concerted practice, by way of:
engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or section 88 or 93 contravene, section 47; or
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:
an authorisation under section 88 is in force in relation to conduct engaged in by that person on that condition; or
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
a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.
The following conduct:
the making of a dual listed company arrangement;
the giving effect to a provision of a dual listed company arrangement;
does not contravene this section if the conduct would, or would apart from section 88, contravene section 49.
This section does not apply to or in relation to:
a contract, arrangement or understanding to the extent that the contract, arrangement or understanding directly or indirectly provides for; or
a proposed contract, arrangement or understanding to the extent that the proposed contract, arrangement or understanding would directly or indirectly provide for; or
a concerted practice to the extent that the practice directly involves;
the acquisition of any shares in the capital of a body corporate or any assets of a person or a notified acquisition.
This section does not apply to or in relation to:
a contract, arrangement or understanding, or
a proposed contract, arrangement or understanding; or
a concerted practice;
the only parties to which are or would be bodies corporate that are related to each other.
This section does not apply to or in relation to a concerted practice if the only persons engaging in it are or would be:
the Crown in right of the Commonwealth and one or more authorities of the Commonwealth; or
the Crown in right of a State or Territory and one or more authorities of that State or Territory.
Subsection (1) does not apply to a corporation engaging in conduct described in that subsection if:
the corporation has given the Commission a collective bargaining notice under subsection 93AB(1) describing the conduct; and
the notice is in force under section 93AD.
The making by a corporation of a contract is not a contravention of subsection (1) to the extent that the contract provides for an acquisition, if the contract is subject to a condition that the provision of the contract will not come into force unless and until the acquisition becomes a notified acquisition.
Nothing in subsection (8B) prevents the giving effect by a corporation to such a provision of a contract from constituting a contravention of subsection (1).
The making by a corporation of a contract that contains a provision in relation to which the corporation intends to apply for an authorisation under section 88 is not a contravention of subsection (1) of this section if:
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
the corporation applies for the grant of such an authorisation within 14 days after the contract is made;
but nothing in this subsection prevents the giving effect by a corporation to such a provision from constituting a contravention of subsection (1).
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