Section 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.

Introduced by Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009

Operative: 24 July 2009

Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013) (bid rigging)

Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876
First criminal cartel conviction; $25m penalty (50%discount for guilty plea)

Introduction of the provision

The insertion of this provision was part of the package of reforms introducing criminal penalties for cartel conduct. The reforms also created a parallel civil cartel prohibition, replacing the former s 45A which dealt directly with price-fixing.

The reforms were initially recommend by the Dawson Committee as part of its 2002-2003 inquiry into the Competition Law provisions of the Trade Practices Act.

Consideration by the Courts

In CDPP v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 Justice Wigney briefly considered the meaning of some words in 44ZZRB, focussing on the meaning of the word likely. Although nothing turned on this in the case (which involved a guilty plea) his Honour expressed concerns about the possibly 'bizarre' consequences that might flow from the definition of the word likeky in s 44ZZRB:

likely: Curiously, the word “likely” is defined as including a “possibility that is not remote”, but only when used in relation to a supply of goods or services, an acquisition of goods or services, the production of goods or the capacity to supply goods. That definition would appear to extend the ordinary meaning of the word “likely”. That expanded definition would clearly apply to the word “likely” where it is used in some of the paragraphs of s 44ZZRD(2) and (3) in relation to the purpose/effect condition and purpose condition: for example, it would apply to the use of the word in s 44ZZRD(2)(c), which refers to “goods or services supplied, or likely to be supplied”. Issues may arise in relation to whether the definition of “likely” applies to other uses of the word in s 44ZZRD, including where it is used in the description of the competition condition in s 44ZZRD(4). The competition condition may be satisfied if 2 or more parties to the relevant contract, arrangement or understanding “are or are likely to be … in competition with each other in relation to … the supply of those goods or services”: s 44ZZRD(4)(a) and (c). On one view, at least, the use of the word “likely” in that particular phrase is not “in relation to” a supply of goods or services or any of the other elements of the definition in s 44ZZRB. Equally, however, it would be just a little bit bizarre if the word “likely” could have a different meaning in s 44ZZRD depending on the exact context in which it is used. Fortunately, it is unnecessary for present purposes to resolve any such arcane issues that may arise from the definition of “likely”. [paragraph 180]

More informaton

See further information and resources on the cartel page.