Competition and Consumer Act. Australia

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СКАЧАТЬ style="font-size:15px;">      (i) $10,000,000;

      (ii) if the court can determine the total value of the benefits that have been obtained (within the meaning of Division 1 of Part IV) by one or more persons and that are reasonably attributable to the act or omission — 3 times that total value;

      (iii) if the Court cannot determine the total value of those benefits — 10 % of the annual turnover (within the meaning of Division 1 of Part IV) of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the act or omission occurred; and

      (a) for each act or omission to which this section applies that relates to section 45D, 45DB, 45E or 45EA — $750,000; and

      (b) for each act or omission to which this section applies that relates to any other provision of Part IV — the greatest of the following:

      (i) $10,000,000;

      (ii) 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 act or omission — 3 times the value of that benefit;

      (iii) if the Court cannot determine the value of that benefit — 10 % of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the act or omission occurred; and

      (c) for each act or omission to which this section applies that relates to section 95AZN — $33,000; and

      (d) for each other act or omission to which this section applies — $10,000,000.

      Note: For annual turnover, see subsection (5).

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

      (a) for each act or omission to which this section applies that relates to section 95AZN — $6,600; and

      (b) for each other act or omission to which this section applies — $500,000.

      (2) Nothing in subsection (1) authorises the making of an order against an individual because the individual has contravened or attempted to contravene, or been involved in a contravention of, section 45D, 45DA, 45DB, 45E or 45EA.

      (3) If conduct constitutes a contravention of two or more provisions of Part IV (other than section 44ZZRF or 44ZZRG), a proceeding may be instituted under this Act against a person in relation to the contravention of any one or more of the provisions but a person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

      (4) The single pecuniary penalty that may be imposed in accordance with subsection (3) in respect of conduct that contravenes provisions to which 2 or more of the limits in paragraphs (1A)(aa), (a) and (b) apply is an amount up to the highest of those limits.

      Annual turnover

      (5) For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is 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 that 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.

      (6) Expressions used in subsection (5) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

      76A Defence to proceedings under section 76 relating to a contravention of section 95AZN

      (1) In this section:

      contravention, in relation to a section, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section.

      (2) In proceedings against a person (the respondent) under section 76 in relation to an alleged contravention of section 95AZN, it is a defence if the respondent establishes:

      (a) that the contravention in respect of which the proceedings were instituted was due to reasonable mistake; or

      (b) that the contravention in respect of which the proceedings were instituted was due to reasonable reliance on information supplied by another person; or

      (c) that:

      (i) the contravention in respect of which the proceedings were instituted was due to the act or default of another person, to an accident or to some other cause beyond the respondent’s control; and

      (ii) the respondent took reasonable precautions and exercised due diligence to avoid the contravention.

      (3) In paragraphs (2)(b) and (c), another person does not include a person who was:

      (a) a servant or agent of the respondent; or

      (b) if the respondent is a body corporate — a director, servant or agent of the respondent;

      at the time when the alleged contravention occurred.

      76B What happens if substantially the same conduct is a contravention of Part IV or section 95AZN and an offence?

      (1) In this section:

      contravention, in relation to a section or Part, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section or Part.

      pecuniary penalty order means an order under section 76 for the payment of a pecuniary penalty.

      (2) The Court must not make a pecuniary penalty order against a person in relation to a contravention of Part IV or section 95AZN if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

      (3) Proceedings for a pecuniary penalty order against a person in relation to a contravention of Part IV or section 95AZN are stayed if:

      (a) criminal proceedings are started or have already been started against the person for an offence; and

      (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

      The proceedings for the pecuniary penalty order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.

      (4) Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of Part IV or section СКАЧАТЬ