Commonwealth Numbered Acts

TRADE PRACTICES ACT 1974 No. 51, 1974 - SECT 45

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).