Competition and Consumer Act 2010 (Cth)
Section 75B
Interpretation
[see note 2*]
The provision
(1) A reference in this Part to a person involved in a contravention of a provision of Part IV, IVA, IVB, V or VC, or of section 55B, 60C, 60K or 9e, shall be read as a reference to a person who:
(a) has aided, abetted, counselled or procured the contravention;
(b) has induced, whether by threats or promises or otherwise, the contravention;
(c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
(2) In this Part, unless the contrary intention appears:
(a) a reference to the Court in relation to a matter is a reference to any court having jurisdiction in the matter;
(b) a reference to the Federal Court is a reference to the Federal Court of Australia; and
(c) a reference to a judgment is a reference to a judgment, decree or order, whether final or interlocutory..
Note 2
Note 2 provides, relevantly:
Subsection ... 75B(1), - Schedule 5 (items 36, 50, 54 (Note), 65, 71, 74, 90 and 96) of the Trade Practices Amendment
(Australian Consumer Law) Act (No. 2) 2010 (No. 103, 2010) provide as follows:Schedule 5
...
50 Subsection 75B(1)
Omit "Part IV, IVA, IVB, V or VC, or of section 95AZN or of the Australian Consumer Law", substitute "Part IV or IVB, or of section 95AZN".
Legislative history
Amended by Competition and Consumer Amendment (Competition Policy Reform) Act 2017
Omit “95AZN”, substitute “92”.
Amended by Competition and Consumer Amendment (Payment Surcharges) Act 2016 (Act 9 of 2016)
More forthcoming
Commentary
In Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235, involving claims of bid rigging, Justice Gordon noted that there can be no accessorial liability under s 75B were the primary contravention is not established. Once this is established, a 'person [including a body corporate] will only be regarded as involved in a contravention within the meaning of s 75B if the person intentionally participated in the contravention' and this includes 'actual, not constructive, knowledge of the essential matters that make up the contravention' (para 289). However:
[para 289] 'It is unnecessary to prove that the respondent knew that his or her actual participation was a breach of the CCA and ... where there is a combination of suspicious circumstances and a failure to make enquiry, it may be possible to infer knowledge ... Constructive knowledge is not sufficient ...'
