151BXPecuniary penalties for breach of the competition rule, a record-keeping rule or a disclosure direction

151BX Pecuniary penalties for breach of the competition rule, a record‑keeping rule or a disclosure direction

(1) If the Federal Court is satisfied that a person:

(a) has contravened the competition rule, a record‑keeping rule or a disclosure direction; or

(b) has attempted to contravene the competition rule, a record‑keeping rule or a disclosure direction; or

(c) has been involved in a contravention of the competition rule, a record‑keeping rule or a disclosure direction;

the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate.

(2) In determining a pecuniary penalty, the Court must have regard to all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered as a result of the contravention; and

(c) the circumstances in which the contravention took place; and

(d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

(3) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed:

(a) in the case of a contravention of the competition rule—for each contravention, the greater of the following:

(i) if the contravention continued for 21 days or fewer—the sum of $100 million and $1 million for each day that the contravention continued;

(ii) if the contravention continued for more than 21 days—the sum of $121 million and $3 million for each day in excess of 21 that the contravention continued;

(iii) if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the contravention—3 times the value of that benefit;

(iv) if the Court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the contravention; or

(c) in the case of a contravention of a record‑keeping rule or of a disclosure direction—$250,000 for each contravention.

(4) The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed:

(a) in the case of a contravention of a record‑keeping rule or of a disclosure direction—$50,000 for each contravention; or

(b) in the case of a contravention of the competition rule—$2.5 million for each contravention.

(5) If conduct constitutes a contravention of: