This Supplementary Order Paper proposes the following amendments to the Commerce (Cartels and Other Matters) Amendment Bill (the Bill):

• the replacement of new section 30C of the Commerce Act 1986 (the principal Act), which comprises transitional provisions concerning existing arrangements entered into before the enactment of the Bill. The amendments proposed are to give full effect to the transitional regime as intended, which is to provide that, in relation to these arrangements,—

  • proceedings for a contravention of the new provision against giving effect to a cartel provision (new section 30(1)(b)), proceedings for banning orders or injunctions (sections 80C (as amended by the Bill) and 81), and private proceedings for damages (section 82) cannot be brought in relation to conduct occurring during a 9-month transitional period starting on the date that new section 30 comes into force. However, section 30 (relating to price-fixing provisions) and sections 31 to 33 (providing for exemptions from the application of section 30), as now in force, continue to apply to these arrangements during the transitional period. In relation to conduct occurring during the 9-month period, proceedings can therefore continue to be brought under section 80, 80C, 81, or 82, as now in force, and the penalties, remedies, and other orders that can be imposed or made under the current law will continue to apply in those proceedings:

  • proceedings cannot be brought for a contravention of new section 80A occurring during the transitional period. However, section 80A, as now in force, also continues to apply during the transitional period. This has the effect that bodies corporate are prohibited from indemnifying directors, former directors, and others for liability for payment of pecuniary penalties for a contravention in relation to section 30, as currently in force, occurring during the 9-month period, or costs incurred for defending or settling any proceeding relating to such liability. Proceedings for a contravention of section 80A occurring during the transitional period can be brought under section 80B of the principal Act, and the penalties, remedies, and other orders that can be imposed under the current law will continue to apply in those proceedings also:

• inserting new clause 26 to clarify that, for the purposes of bringing and completing proceedings relating to conduct engaged in before the provisions of the Bill came into force, the principal Act’s provisions continue to have effect as if they had not been amended.