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Commonwealth act
This Act has been repealed and is no longer in force. It is retained for historical reference.
The law creates a public enforcement regime — a Commissioner, Trade Practices Tribunal and registrars — to identify, investigate and restrain specified inter‑business agreements and practices (including resale price maintenance and collusive tendering), with registration, disclosure and compulsory‑information duties and civil, criminal and contempt remedies. It also establishes a special filing and control regime for overseas cargo shipping.
It affects corporations, trade associations, shipowners and regulators by imposing compliance costs, investigatory oversight and broad administrative discretion in assessing what is “contrary to the public interest.”
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Direct links to the current provisions in Restrictive Trade Practices Act 1971.
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
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Restrictive Trade Practices
No. 138 of 1971
An Act to preserve Competition in Trade and Commerce to the extent required by the Public Interest.
[Assented to 20 December 1971]
BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—
Part I.—Preliminary.
Short title.
1. This Act may be cited as the Restrictive Trade Practices Act 1971.
Commencement.
2. This Act shall come into operation on a date to be fixed by Proclamation.
Parts.
3. This Act is divided into Parts, as follows:—
Part I.—Preliminary (Sections 1–6).
Part II.—Constitution of the Trade Practices Tribunal (Sections 7–21).
Part III.—The Commissioner, the Registrar of the Tribunal and other Officers (Sections 22–34).
Part IV.—Examinable Agreements and Practices (Sections 35–39).
Part V.—Registration of certain Agreements (Sections 40–45).
Part VI.—Examination of Agreements and Practices by the Tribunal.
Division 1.—General (Sections 46–58).
Division 2.—Negative Clearances (Sections 59–60).
Division 3.—Review of Determinations and Judicial Determination of Questions of Law (Sections 61–65).
Part VII.—Resale Price Maintenance.
Division 1.—The Unlawful Practice of Resale Price Maintenance (Sections 66–71).
Division 2.—Exemptions (Sections 72–75).
Division 3.—General (Sections 76–77).
Part VIII.—Enforcement of Orders of the Tribunal (Sections 78–80).
Part IX.—Provisions relating to the Tribunal.
Division 1.—Procedure and Evidence (Sections 81–87).
Division 2.—General (Sections 88–92).
Division 3.—Offences in relation to the Tribunal (Sections 93–95).
Part X.—Collusive Tendering and Collusive Bidding (Sections 96–98).
Part XL—Civil Remedies (Sections 99–103).
Part XII.—Overseas Cargo Shipping.
Division 1.—Preliminary (Sections 104–108).
Division 2.—Filing of Conference Agreements (Sections 109–115).
Division 3.—Powers in relation to Conference Agreements (Sections 116–121).
Division 4.—Powers in relation to Individual Shipowners (Sections 122–125).
Division 5.—General (Sections 126–134).
Division 6.—Civil Remedies in relation to Overseas Cargo Shipping (Sections 135–137).
Part XIII.—Interpretative Provisions (Sections 138–143).
Part XIV.—Transitional Provisions (Sections 144–159).
Part XV.—Miscellaneous (Sections 160–170).
Repeal.
4.—(1.) The following Acts are repealed:—
Trade Practices Act 1965;
Trade Practices Act 1966;
Trade Practices Act 1967;
Trade Practices Act 1971.
(2.) Nothing in the last preceding sub-section revives the operation of an Act, or of a section of an Act, referred to in sub-section (2a.), (3.) or (4.), of section 4 of the Trade Practices Act 1965–1971 or affects the provision made by sub-sections (6.) and (7.) of that section for the citation of the Seat of Government {Administration) Act 1910–1965 or of the Northern Territory (Administration) Act 1910–1967.
Definitions.
5. In this Act, unless the contrary intention appears—
“business” includes a profession;
“consumer” includes a person to whom services are supplied;
“corporation” means a corporation that is a foreign corporation, a trading corporation formed within the limits of the Commonwealth or a financial corporation so formed;
“deal with” means supply goods or services to, or acquire goods or services from, and other references to dealing or dealings have corresponding meanings;
“Deputy President” means a Deputy President of the Tribunal, and includes a person appointed to act as a Deputy President of the Tribunal;
“Deputy Registrar” means a Deputy Registrar of the Tribunal, and includes a person appointed to act as a Deputy Registrar of the Tribunal;
“document” includes a book or writing;
“goods” includes—
(a) ships, aircraft and other vehicles;
(b) animals, including fish;
(c) minerals, trees and crops, whether on, under or attached to land or not; and
(d) gas and electricity;
“member” means a member of the Tribunal, and includes the President and a person appointed to act as a member;
“order” includes a refusal to make an order;
“person” includes a body corporate, whether a corporation or not, as well as a natural person;
“practice” includes a single act or transaction;
“presidential member” means the President or a Deputy President;
“price” includes a charge of any description;
“relevant restriction”, in relation to an examinable agreement—
(a) means the restriction under the agreement by reason of which the agreement is an examinable agreement; or
(b) if there are several restrictions under the agreement by reason of any of which the agreement is an examinable agreement, means either or any of those restrictions,
but does not include so much of the operation of a restriction as is required by this Act to be disregarded in determining whether the agreement is an examinable agreement;
“restriction” includes any negative obligation, whether absolute or not and whether express or implied;
“services” includes, without limiting the generality of that expression, the rights or benefits that are to be provided under an agreement for—
(a) the performance of work (otherwise than under a contract of service), whether with or without the supply of goods;
(b) the provision of, or of the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(c) the conferring of rights or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;
“supply” includes—
(a) in relation to goods—supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase; and
(b) in relation to services—provide, grant or confer,
and “supplied” and “supplier” have corresponding meanings;
“Territory” means the Australian Capital Territory, the Territory accepted by the Jervis Bay Territory Acceptance Act 1915 or the Northern Territory of Australia;
“the Commissioner” means the Commissioner of Trade Practices, and includes a person appointed to act as the Commissioner of Trade Practices;
“the Court” means the Commonwealth Industrial Court;
“the practice of resale price maintenance” means the practice of resale price maintenance referred to in Part VII;
“the President” means the President of the Tribunal, and includes a person appointed to act as President of the Tribunal;
“the Register” means the Register of Trade Agreements kept under this Act, and includes a part of that Register;
“the Registrar” means the Registrar of the Tribunal, and includes a person appointed to act as the Registrar of the Tribunal;
“the Tribunal” means the Trade Practices Tribunal established by this Act, and includes a member or Division of that Tribunal, performing functions of that Tribunal.
Crown not bound.
6. This Act does not bind the Crown in right of the Commonwealth, or of a State.
Part II.—Constitution of the Trade Practices Tribunal.
Constitution of Tribunal.
7.—(1.) There is hereby established a Trade Practices Tribunal, which shall consist of a President and such number of Deputy Presidents and other members as are appointed in accordance with this section.
(2.) A member of the Tribunal shall be appointed by the Governor-General.
Qualifications of members.
8.—(1.) A person shall not be appointed as a presidential member unless he is—
(a) a Judge of a Federal Court, not being the High Court or a court of a Territory of the Commonwealth not forming part of the Commonwealth; or
(b) a person who has the status of a Judge of the Court.
(2.) A person shall not be appointed as a member other than a presidential member unless he appears to the Governor-General to be qualified for appointment by virtue of his knowledge of, or experience in, industry, commerce or public administration.
Terms and conditions of appointment.
9.—(1.) Subject to this Part, a member holds office for such period, not exceeding seven years, as is specified in the instrument of his appointment, but is eligible for re-appointment.
(2.) Subject to this Part, the Governor-General may, in the instrument of appointment of a member, specify terms and conditions of appointment, which may include term and conditions making provision, to the exclusion of any other provision that would be applicable, with respect to leave of absence and pensions or retiring allowances.
Remuneration and allowances.
10.—(1.) The President shall, if he is not the Chief Judge of the Commonwealth Industrial Court or the President of the Commonwealth Conciliation and Arbitration Commission, be paid additional remuneration at the rate of Two thousand dollars per annum and an additional annual allowance at the rate of Five hundred dollars per annum.
(2.) A member other than a presidential member shall be paid remuneration at the rate of Two thousand six hundred dollars per annum and, in addition, Thirty-five dollars in respect of each day on which he sits as a member of a Division of the Tribunal for the purpose of hearing and determining proceedings.
(3.) No remuneration or allowance referred to in either of the last two preceding sub-sections shall be diminished during a term of office.
Travelling allowances.
11. A member shall be paid such allowances in respect of travelling expenses as are prescribed.
Acting appointments.
12.—(1.) Where the President is, or is expected to be, absent from duty, or there is a vacancy in the office of President, the Attorney-General may appoint a Deputy President or an acting Deputy President to act as President during the absence or until the filling of the vacancy.
(2.) Where a. presidential member (including the President) is, or is expected to be, absent from duty, the Governor-General may appoint a person qualified to be appointed as a presidential member to act as a Deputy President during the absence from duty of the member.
(3.) Where a member other than a presidential member is, or is expected to be, absent from duty, the Governor-General may appoint a person qualified to be appointed as a member other than a presidential member to act as such a member during the absence from duty of the member.
(4.) Where a person has been appointed under sub-section (2.) or (3.) of this section, the Governor-General may, by reason of pending proceedings or other special circumstances, direct, before the absent member resumes duty, that the person so appointed shall continue to act under the appointment after the resumption of duty by the absent member until the Governor-General terminates the appointment, but a person shall not continue to act as a member by virtue of this sub-section for more than, one year after the resumption of duty by the absent member.
(5.) Where a person has been appointed under this section to act as a member during the absence from duty of a member, and that member ceases to hold office without having resumed duty, the period of appointment of the person so appointed shall be deemed to continue until it is terminated by the Governor-General, or until the expiration of twelve months from the date on which the absent member ceases to hold office, whichever first happens.
Suspension and removal of members.
13.—(1.) The Governor-General may suspend a member from office on the ground of misbehaviour or physical or mental incapacity.
(2.) The Attorney-General shall cause a statement of the ground of the suspension to be laid before each House of the Parliament within seven sitting days of the House after the suspension.
(3.) Where such a statement has been laid before a House of the Parliament, that House may, within fifteen sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member should be restored to office and, if each House so passes such a resolution, the Governor-General shall terminate the suspension.
(4.) If, at the expiration of fifteen sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the Governor-General may remove the member from office.
(5.) If a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit, the Governor-General shall remove him from office.
(6.) A member shall not be removed from office except as provided by this section.
(7.) A presidential member ceases to hold office if he no longer holds office as a person referred to in paragraph (a) or paragraph (b) of sub-section (1.) of section 8 of this Act.
Resignation.
14. A member may resign his office by writing signed by him and delivered to the Governor-General.
Oath or affirmation of office.
15.—(1.) A member shall, before proceeding to discharge the duties of his office, take an oath or make an affirmation in accordance with the form of oath or affirmation in the First Schedule to this Act.
(2.) The oath or affirmation shall be taken or made before a Judge of a Federal Court or of the Supreme Court of a State.
Constitution of Tribunal for particular matters.
16.—(1.) Except as otherwise provided by this Act, the Tribunal shall, for the purpose of hearing and determining proceedings, be constituted by a Division of the Tribunal consisting of a presidential member and two members who are not presidential members.
(2.) Where, before the commencement of the hearing of proceedings to which the last preceding sub-section would be applicable, there is filed with the Registrar, in accordance with such requirements as to time or otherwise as are prescribed, a notice signed by or on behalf of all the parties, other than the Commissioner, that they have agreed that the proceedings shall be dealt with by the Tribunal constituted by a single presidential member, the Tribunal shall be constituted for the purpose of those proceedings by a single presidential member.
(3.) The Tribunal as constituted in accordance with the last preceding sub-section may continue to deal with proceedings notwithstanding that a further party is added to the proceedings after the commencement of the hearing.
(4.) The validity of a determination or order of the Tribunal purporting to be constituted by one or more members in accordance with this Act shall not be affected or called in question by reason of any defect or irregularity in the constitution of the Tribunal by that member or those members.
Arrangement of business.
17. The President may give directions as to the arrangement of the business of the Tribunal and the constitution of Divisions of the Tribunal.
Disclosure of financial interests of members.
18. When a member, other than a presidential member, is informed by the President that the President proposes that the member shall be a member of a Division of the Tribunal in any proceedings, the member shall, to the best of his knowledge, disclose to the President any direct or indirect pecuniary interest that the member has in any business carried on in Australia, or in any body corporate carrying on any such business, being an interest that could be in conflict with his duties as a member of the Tribunal in those proceedings.
Presidential member to preside.
19.—(1.) The President shall preside at proceedings of a Division of the Tribunal at which he is present.
(2.) At proceedings before a Division of the Tribunal at which the President is not present, the Deputy President present or, in the case of a Review Division, a Deputy President nominated by the President, shall preside.
Decision of questions.
20.—(1.) Subject to Division 3 of Part VI. (including that Division in its application by virtue of section 77 of this Act), a questi
This is an opening excerpt, not the complete document.