Trade Practices Act 1974 (Cth)

Summary

The TPA was enacted in 1974 replacing the Restrictive Trade Practices Act 1971. Some key points of interest include:

• The Commission was the Trade Practices Commission and the Tribunal the Trade Practices Tribunal

• In section 45 prohibits contracts, arrangements or understandings in 'restraint of trade or commerce' (s 45(2)) where they had a 'significant
  effect on competition' (s 45(4)) [rather than the current 'substantial lessening of competition' test]

• Price fixing provisions were prohibited per se (s 45(4)) unless their impact on competition was 'slight' (s 45(3))

• There was no specific prohibition on exclusionary provisions (boycotts)

• Section 46 referred to 'monopolization' rather than misuse of market power and, instead of 'market power', the phrase 'in a position substantially to control a market' is adopted.

• Section 47 applies to a more restricted range of conduct

• Price discrimination is prohibited

• The merger provision (section 50) does not contain a set of criteria to be considered when determining if conduct substantially lessens competition.

• Penalty for a corporation was originally $250,000 per offence.

• Authorisation was not possible for price fixing and for other authorisation applications proof of 'substantial benefit' was required.

• A broader range of clearance/notification options were available (including for mergers).

Section 3 of the Act repealed the Restrictive Trade Practices Act 1971 and the Restrictive Trade Practices Act 1972.

The provisions most relevant to competition law are extracted below.

There was no objects clause in the original Act, but in his Second Reading Speech, then Attorney-General, Senator Lionel Murphy, stated that its purpose was 'to control restrictive trade practices and monopolies and to protect consumers from unfair commercial practices.' (Parliamentary Debates, Senate, 30 July 1974, page 540)

Part IV

Restrictive Trade Practices

Section 45

(1) A contract in restraint of trade or commerce that was made before the commencement of this sub-section 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 enter into an understanding, in restraint of trade or commerce; or

(b)  give effect to a contract, arrangement or understanding to the extent that it is in restraint of trade or commerce, whether the contract or arrangement was made or the understanding was entered into before or after the commencement of this sub- section.

(3) A contract, arrangement or understanding having the purpose or effect of fixing, controlling or maintaining the price for, or any discount, allowance or rebate in relation to, any goods or services supplied by the parties to the contract, arrangement or understanding, or by any of them, in competition with each other to persons not being parties to the contract, arrangement or understanding is not in restraint of trade or commerce for the purposes of this Act if the restraint has such a slight effect on competition between the parties to the contract, arrangement or understanding, and on competition between those parties or any of them and other persons, as to be insignificant.

(4) A contract, arrangement or understanding that is not of the kind referred to in sub-section (3) is not in restraint of trade or commerce for the purposes of this Act unless the restraint has or is likely to have a significant effect on competition between the parties to the contract, arrangement or understanding or on competition between those parties or any of them and other persons.

(5) This section does not apply to a contract, arrangement or understanding in so far as-

(a)  the contract, arrangement or understanding is of a kind referred to in sub-section 47 (2) or constitutes the practice of exclusive dealing as mentioned in sub-section 47 (3) or (4); or

(b)  the contract, arrangement or understanding is prohibited by section 48 or would be prohibited by 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.

(6) This section does not apply to a contract in so far as the contract provides for the acquisition of shares in the capital, or of assets, of a body corporate, being an acquisition that does not constitute a contravention of section 50 by reason that an authorization is in force in respect of the acquisition or by reason of the operation of section 94.

(7) This section does not apply to a contract, arrangement or understanding the only parties to which are two or more bodies corporate that are related to each other.

(8) The making by a corporation of a contract in relation to which sub-section 88 (1) applies is not a contravention of sub-section (2) if-

(a)  the contract is subject to a condition that the contract will not come into force unless and until-

(i)  the corporation is granted an authorization to continue to be a party to the contract; or

(ii)  the Commission gives a notice in writing to the corporation under sub-section 92 (2) in relation to the contract; and

(b)  the corporation either applies for the grant of such an authorization, or gives a notice to the Commission under sub-section 92 (1) in relation to the contract, within 7 days after the contract is made, but nothing in this sub-section prevents the giving effect by a corporation to such a contract from constituting a contravention of sub-section (2).

Section 46 Monopolization

(1) A corporation that is in a position substantially to control a market for goods or services shall not take advantage of the power in relation to that market that it has by virtue of being in that position-

(a)  to eliminate or substantially to damage a competitor in that market or in another market;

(b)  to prevent the entry of a person into that market or into another market; or

(c)  to deter or prevent a person from engaging in competitive behaviour in that market or in another market.

(2) For the purposes of this section, a corporation shall be deemed to be in a position substantially to control a market for goods or services if that corporation and any related corporation or related corporations are together in a position substantially to control that market.

(3) For the purposes of this section, a reference to a corporation being in a position substantially to control a market for goods or services includes a reference to a corporation which, by reason of its share of the market, or of its share of the market combined with availability of technical knowledge, raw materials or capital, has the power to determine the prices, or control the production or distribution, of a substantial part of the goods or services in that market.

(4) This section does not prevent a corporation from-

(a)  engaging, during the period of 4 months immediately following the date fixed under sub-section 2 (3), in conduct that is of a kind referred to in sub-section 45 (2) or 47 (1) but to which that sub-section does not apply by reason of the fact that the conduct is engaged in before the expiration of that period; or

(b)  engaging, after the expiration of that period, in conduct that does not constitute a contravention of any of the following sections, namely, sections 45, 47 and 50, by reason that an authorization is in force in respect of the conduct or by reason of the operation of section 92, 93 or 94.

Section 47 Exclusive dealing

(1) Subject to this section, a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing.

(2) A corporation engages in the practice of exclusive dealing if the corporation-

(a)  supplies any goods or services;

(b)  charges a price for the supply of any goods or services; or

(c)  gives or allows a discount, allowance, rebate or credit in relation to the supply of any goods or services, on the condition, or subject to a contract, arrangement or understanding, that the person to whom the corporation supplies the goods or services-

(d)  will not, or will to a limited extent only, acquire goods or services from a competitor of the corporation; or

(e)  in the case where the corporation supplies goods-

(i)  will not, or will to a limited extent only, supply any of the goods to particular persons or to persons included in a particular class of persons;

or

(ii)  will not, or will to a limited extent only, in particular places supply any of the goods to other persons.

(3) A corporation also engages in the practice of exclusive dealing if the corporation requires, as a condition of the supply to a person of goods or services of a kind that it could not lawfully supply but for the issue or grant to the corporation of a licence, permit, authority or registration under a law of Australia, that the person acquire all or a part of his requirements of other goods or services directly or indirectly from the corporation.

(4) A corporation also engages in the practice of exclusive dealing if the corporation requires, as a condition of the supply to a person of goods or services, that the person acquire all or a part of his requirements of other goods or services directly or indirectly from a second person.

(5) Sub-section (1) does not apply to the practice of exclusive dealing constituted by a corporation engaging in conduct of a kind referred to in sub-section (2) unless the engaging by the corporation in that conduct is likely to have the effect of substantially lessening competition in a market for goods or services.

(6) This section does not apply with respect to any conduct engaged in by a body corporate by way of restricting dealings by another body corporate if those bodies corporate are related to each other.

Section 48 Resale price maintenance

A corporation or other person shall not engage in the practice of resale price maintenance.

Section 49 Price discrimination

(1) A corporation shall not, in trade or commerce, discriminate between purchasers of goods of like grade and quality in relation to-

(a)  the prices charged for the goods;

(b)  any discounts, allowances, rebates or credits given in relation to the supply of the goods;

(c)  the provision of services or facilities in respect of the goods; or

(d)  the making of payments for services or facilities provided in respect of the goods, if the discrimination is of such magnitude or is of such a recurring or systematic character that it is likely to have the effect of substantially lessening competition in a market for goods, being a market in which the corporation supplies, or those persons supply, goods.

(2) Sub-section (1) does not apply in relation to a discrimination if-

(a)  the discrimination makes only reasonable allowance for differences in the cost or likely cost of manufacture, distribution, sale or delivery resulting from the differing places to which, methods by which or quantities in which the goods are supplied to the purchasers; or

(b)  the discrimination is constituted by the doing of an act in good faith to meet a price or benefit offered by a competitor of the supplier.

(3) In any proceeding for a contravention of sub-section (1), the onus of establishing that that sub-section does not apply in relation to a discrimination by reason of sub-section (2) is on the party asserting that sub-section (1) does not so apply.

(4) A person shall not, in trade or commerce-

(a)  knowingly induce or attempt to induce a corporation to discriminate in a manner prohibited by sub-section (1); or

(b)  enter into any transaction that to his knowledge would result in his receiving the benefit of a discrimination that is prohibited by that sub-section.

(5) In any proceeding against a person for a contravention of sub-section (4), it is a defence if that person establishes that he reasonably believed that, by reason of sub-section (2), the discrimination concerned was not prohibited by sub-section (1).

Section 50 Mergers

(1) A corporation shall not acquire, directly or indirectly, any shares in the capital, or any assets, of a body corporate where the acquisition is likely to have the effect of substantially lessening competition in a market for goods or services.

(2) This section does not apply to an acquisition of assets of a body corporate in the ordinary course of business.

(3) Where-

(a) a corporation has entered into a contract to acquire shares in the capital, or assets, of a body corporate;

(b)  the contract is subject to a condition that the contract will not come into force unless and until-

(i)  the corporation is granted an authorization to acquire the shares or assets; or

(ii)  sub-section 94 (3) applies in relation to the acquisition of the shares or assets; and

(c)  the corporation applied for the grant of such an authorization, or gave a notice of the proposed acquisition to the Commission under sub-section 94 (1), before the expiration of 7 days after the contract was entered into or the expiration of 14 days after the commencing date, whichever was the later,an acquisition of the shares or assets shall not be regarded for the purposes of this Act as having taken place in pursuance of the contract before-

(d)  in a case where the corporation applied for the grant of an authorization-the application for the authorization is disposed of;

(e)  in a case where the corporation gave a notice to the Commission under sub-section 94 (1)-

(i)  the Commission gives notice to the corporation as mentioned in paragraph 94 (3) (a); or

(ii)  a period of 30 days elapses after the corporation gave the notice to the Commission; or

(f)  the contract ceases to be subject to the condition, whichever first happens.

(4) For the purposes of sub-section (3), an application for an authorization shall be taken to be disposed of-

(a)  in a case to which paragraph (b) of this sub-section does not apply-at the expiration of 14 days after the period in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the authorization; or

(b)  if an application is made to the Tribunal for a review of the determination by the Commission of the application for the authorization-at the expiration of 14 days after the date of the making by the Tribunal of a determination on the review.

Section 51 Exceptions

(1) In determining whether a contravention of a provision of this Part has been committed, regard shall not be had-

(a) to any act or thing that is, or is of a kind, specifically authorized or approved by, or by regulations under, an Act other than an Act relating to patents, trade marks, designs or copyrights;

(b) in the case of acts or things done in a State-except as provided by the regulations, to any act or thing that is, or is of a kind, specifically authorized or approved by, or by regulations under, an Act passed by the Parliament of that State; or

(c) in the case of acts or things done in a Territory-to any act or thing that is, or is of a kind, specifically authorized or approved by, or by regulations under, an Ordinance of that Territory.

(2) In determining whether a contravention of a provision of this Part other than section 48 has been committed, regard shall not be had-

(a) to any act done, or to any provision of a contract, in relation to the remuneration, conditions of employment, hours of work or working conditions of employees, or to any act done by employees or by an organisation of employees not being an act done in the course of the carrying on of a business of the employer of those employees or of a business of that organisation;

(b) to any provision of a contract, being a contract of service or a contract for the provision of services, under which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which he may engage during, or after the termination of, the contract;

(c) to any provision of a contract, or any arrangement or understanding, obliging a person to comply with or apply standards of dimension, design, quality or performance prepared or approved by the Standards Association of Australia or by a prescribed association or body;

(d) to any provision of a contract, or any arrangement or understanding, between partners none of whom is a body corporate in relation to the terms of the partnership or the conduct of the partnership business or in relation to competition between the partnership and a party to the contract, arrangement or understanding while he is, or after he ceases to be, a partner;

(e) in the case of a contract for the sale of a business or of shares in the capital of a body corporate carrying on a business-to any provision of the contract that is solely for the protection of the purchaser in respect of the goodwill of the business;

(f) to any acts done, otherwise than in the course of trade or commerce, in concert by ultimate users or consumers of goods or services against the suppliers of those goods or services; or

(g) to any act or thing that relates exclusively to the export of goods from Australia or to the supply of services outside Australia, being an act or thing done in pursuance of an agreement of which full and accurate particulars were furnished to the Commission before the act or thing was done.

(3) In determining whether a contravention of a provision of this Part other than section 46 or 48 has been committed, regard shall not be had-

(a) in the case of a contract for or in respect of-

(i) a licence granted or to be granted by the proprietor, licensee or owner of a patent, a registered design or a copyright or by a person who has applied for a patent or for the registration of a design; or

(ii) an assignment of a patent, a registered design or a copyright or of the right to apply for a patent or for the registration of a design, to any condition of the licence or assignment relating exclusively to-

(iii) the invention to which the patent or application for a patent relates or articles made by the use of that invention;

(iv) goods in respect of which the design is or is proposed to be registered and to which it is applied; or

(v) the work or other subject matter in which the copyright subsists;

(b) in the case of a contract authorizing the use of a certification trade mark-to any provision included in the contract in accordance with rules applicable under Part XI of the Trade Marks Act 1955-1973; or

(c) in the case of a contract between the registered proprietor of a trade mark other than a certification trade mark and a person authorized by the contract to use the trade mark subject to registration as a registered user under Part IX of the Trade Marks Act 1955-1973-to any provision of the contract with respect to the kinds, qualities or standards of goods bearing the mark that may be produced or supplied.

Part VII

Authorizations and Clearances in Respect of Restrictive Trade Practices

Division 1 - Authorizations

Section 88 Power of Commission to grant authorizations

(1) Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant an authorization to the corporation to make a contract or arrangement, or enter into an understanding, that would be or might be in restraint of trade or commerce or to continue to be a party to a contract, arrangement or understanding that is or may be in restraint of trade or commerce, and, while such an authorization remains in force-

(a)  in the case of an authorization to make a contract or arrangement or to enter into an understanding-sub-section 45 (2) does not prevent the corporation from making the contract or arrangement or entering into the understanding in accordance with the authorization and giving effect to the contract or arrangement so made or the understanding so entered into;

(b)  in the case of an authorization to continue to be a party to a contract-

(i)  the contract is not unenforceable by reason of sub- section 45 (1); and

(ii)  sub-section 45 (2) does not prevent the corporation from giving effect to the contract; or

(c)  in the case of an authorization to continue to be a party to an arrangement or understanding-sub-section 45 (2) does not prevent the corporation from giving effect to the arrangement or understanding in accordance with the authorization.

(2) Sub-section (1) does not apply in relation to a contract, arrangement or understanding fixing or controlling, or providing for the fixing or controlling of, the price for, or any discount, allowance or rebate in relation to, any goods supplied by the parties to the contract, arrangement or understanding, or by any of them, in competition with each other, to persons not being parties to the contract, arrangement or understanding, other than a contract, arrangement or understanding between persons in connexion with the supply of goods by those persons on a joint basis or the supply by those persons of goods that have been produced, manufactured, mined or acquired by them on a joint basis.

(3) An authorization under sub-section (1) to make a contract or arrangement or enter into an understanding, or to continue to be a party to a contract, arrangement or understanding, may be expressed so as to apply to a corporation that becomes a party to the contract, arrangement or understanding after the authorization is granted.

(4) The Commission does not have power to grant an authorization under sub-section (1) to a corporation to make a contract or arrangement, or to enter into an understanding, if the contract or arrangement has already been made or the understanding has already been entered into.

(5) The Commission does not have power to grant an authorization under sub-section (1) to a corporation to continue to be a party to a contract, arrangement or understanding unless-

(a)  in the case of a contract-the requirements of paragraphs 45 (8) (a) and (b) have been complied with; or

(b)  the contract or arrangement was made, or the understanding was entered into, before the expiration of the period referred to in sub-section 2 (4)

and-

(i)  the authorization is granted before the expiration of that period; or

(ii)  the authorization is granted upon the expiration or revocation of another authorization granted to the corporation under sub-section (1) in relation to the contract, arrangement or understanding.

(6) Subject to this Part, the Commission may, upon application by a corporation, grant an authorization to the corporation to engage in conduct that would or may constitute engaging in the practice of exclusive dealing and, while such an authorization remains in force, section 47 does not prevent the corporation from engaging in that conduct in accordance with the authorization.

(7) Subject to this Part, the Commission may, upon application by a corporation, grant an authorization to the corporation to acquire shares in the capital, or to acquire assets, of a body corporate and, while such an authorization remains in force, section 50 does not prevent the corporation from acquiring shares in the capital, or from acquiring assets, of the body corporate in accordance with the authorization.

Section 89 Procedure for applications

...

Section 90 Determination of applications for authorizations

...

Section 91 Grant, revocation and variation of authorizations

...

Division 2 - Clearances  

Section 92
Clearance of contracts, arrangements or understandings in restraint of trade or commerce

(1) A corporation that is a party to, or proposes to make, a contract or arrangement, or is a party to, or proposes to enter into, an understanding, that may be in restraint of trade or commerce, may give notice, as prescribed, of the contract, arrangement or understanding, or of the proposed contract, arrangement or understanding, to the Commission.

(2) Where a corporation so gives notice to the Commission, the Commission may at any time give notice in writing to the corporation stating that the Commission considers that any restraint of trade or commerce that results from the contract, arrangement or understanding or would result from the proposed contract, arrangement or understanding, does not have and is not likely to have, or would not have and would not be likely to have, a significant effect on competition, and, if the Commission gives such a notice, the contract, arrangement or understanding shall be deemed not to be in restraint of trade or commerce for the purposes of this Act.

(3) If, at any time after the Commission has given a notice under sub-section (2) to a corporation in relation to a contract, arrangement or understanding, or a proposed contract, arrangement or understanding, the Commission is satisfied that the notice was given on the basis of information that was false or misleading in a material particular or that there has been a material change of circumstances since the notice was given, the Commission may revoke the notice and, in that case, sub- section (2) ceases to operate, after the expiration of 30 days (or such longer period as the Commission by writing permits) after notice in writing of the revocation has been served on the corporation, to deem the contract, arrangement or understanding not to be in restraint of trade or commerce for the purposes of this Act.

Section 93
Clearance of exclusive dealing

(1) A corporation that proposes to engage in conduct of a kind referred to in sub-section 47 (2) may give notice, as prescribed, of the proposed conduct to the Commission.

(2) Where a corporation so gives notice to the Commission, the Commission may at any time give notice in writing to the corporation stating that the Commission considers that the engaging by the corporation in the proposed conduct would be likely to have the effect of substantially lessening competition in a market for goods or services.

(3) Where a corporation has given a notice to the Commission under sub-section (1), the engaging by the corporation in the conduct referred to in the notice shall not be taken, for the purposes of this Act, to be likely to have the effect of substantially lessening competition in a market for goods or services unless the Commission has given notice to the corporation under sub-section (2) in relation to the conduct and the conduct takes place more than 30 days (or such longer period as the Commission by writing permits) after the day on which the Commission gave the notice.

(4) Where-

(a)  a corporation has given a notice to the Commission under sub-section (1) in relation to proposed conduct; and

(b)  the Commission has given notice in writing to the corporation stating that the Commission considers that the engaging by the corporation in the proposed conduct would be likely to have the effect of substantially lessening competition in a market for goods or services, the corporation is not entitled to give a further notice under that sub- section to the Commission in relation to the same conduct or conduct to the like effect.

Section 94
Clearance of mergers

(1) A corporation that proposes to acquire shares in the capital, or assets, of a body corporate the acquisition of which by the corporation may be in contravention of section 50 may give notice, as prescribed, of the proposed acquisition to the Commission.

(2) Where a corporation so gives notice to the Commission, the Commission may, within 30 days after receiving the notice, give notice in writing to the corporation stating whether or not the Commission considers that the proposed acquisition would be likely to have the effect of substantially lessening competition in a market for goods or services.

(3) Where a corporation has given a notice to the Commission under sub-section (1) and-

(a)  the Commission gives notice to the corporation in accordance with sub-section (2) stating that the Commission considers that the proposed acquisition would not be likely to have the effect of substantially lessening competition in a market for goods or services; or

(b)  the Commission does not, within 30 days after receiving the notice, give a notice to the corporation in accordance with sub-section (2) in relation to the proposed acquisition, the acquisition of the shares or assets by the corporation shall, for the purposes of this Act, be deemed not to have the effect of substantially lessening competition in a market for goods or services.

Section 95
Register in relation to clearances

...