Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) This section sets out the 2 circumstances in which:
(a) a carrier; or
(b) a carriage service provider;
is said to engage in anti - competitive conduct for the purposes of this Part.
(2) A carrier or carriage service provider engages in anti - competitive conduct if the carrier or carriage service provider:
(a) has a substantial degree of power in a telecommunications market; and
(b) either:
(i) takes advantage of that power in that or any other market with the effect, or likely effect, of substantially lessening competition in that or any other telecommunications market; or
(ii) takes advantage of that power in that or any other market, and engages in other conduct on one or more occasions, with the combined effect, or likely combined effect, of substantially lessening competition in that or any other telecommunications market.
(2A) Without limiting the matters to which regard may be had for the purpose of determining whether a carrier or carriage service provider has engaged in anti - competitive conduct as defined in subsection (2), regard may be had to:
(a) any conduct of the carrier or carriage service provider that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the carrier or carriage service provider of supplying such goods or services; and
(b) the reasons for that conduct.
(3) A carrier or carriage service provider engages in anti - competitive conduct if the carrier or carriage service provider:
(a) engages in conduct in contravention of section 45AJ, 45AK, 45, 47 or 48; and
(b) the conduct relates to a telecommunications market.
(4) For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation, in determining whether conduct of the carrier or provider is in contravention of section 45AJ, 45AK, 45, 47 or 48, the following assumptions are to be made:
(a) the assumption that each reference to a corporation in:
(i) those sections; and
included a reference to a carrier, or a carriage service provider, that is not a corporation;
(b) the assumption that subsections 45(8) and 47(12) and section 45AN had not been enacted.
(5) For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation or a partnership, in determining whether conduct of the carrier or provider is in contravention of section 45, 47 or 48, the following assumptions are to be made:
(a) the assumption that subparagraphs 45(3)(a)(ii) and (b)(ii) had not been enacted;
(b) the assumption that the expression "or a body corporate related to the corporation" were omitted from paragraph 45(4)(b);
(e) the assumption that the expression "or from a competitor of a body corporate related to the corporation" were omitted from each of the following provisions:
(i) paragraphs 47(2)(d) and (e);
(ii) paragraphs 47(3)(d) and (e);
(iii) subparagraphs 47(8)(a)(i) and (ii);
(f) the assumption that the expression "not being a body corporate related to the corporation" were omitted from subsections 47(6) and (7) and paragraphs 47(8)(c) and 47(9)(d);
(g) the assumption that the expression "or from a competitor of a body corporate related to the corporation" were omitted from paragraphs 47(9)(a) and (b);
(h) the assumption that the expression ", or by a body corporate related to the corporation," were omitted from paragraph 47(10)(b);
(i) the assumption that the expression "or any body corporate related to that corporation" were omitted from subparagraph 47(13)(b)(i);
(j) the assumption that the expression "or any body corporate related to either of those corporations" were omitted from paragraph 47(13)(c) and the expression "any body corporate related to the last - mentioned corporation" were substituted;
(k) the assumption that the expression "where the second person mentioned in that paragraph is a corporation" were omitted from subsection 96(2).
(6) A person may be taken to have engaged in anti - competitive conduct even if the conduct involves the exercise, or proposed exercise, of an existing legal or equitable right (whether under a contract or otherwise).
(7) Despite anything in this section, a carrier or carriage service provider does not engage in anti - competitive conduct if that conduct does not constitute a contravention of section 45AJ, 45AK, 45, 47 or 48:
(a) because an authorisation is in force; or
(b) because of the operation of subsection 45AL(1) or 45(8A) or section 93; or
(c) because of the operation of subsection 45(9); or
(e) because of the operation of section 45AM.
(8) A carrier or carriage service provider does not engage in anti - competitive conduct if that conduct occurred before 1 July 1997.
(9) Despite anything in this section, a person does not engage in anti - competitive conduct if, under section 577BA of the Telecommunications Act 1997 , the conduct is authorised for the purposes of subsection 51(1) of this Act.
(10) Despite anything in this section, a person does not engage in anti - competitive conduct if, under section 151DA, the conduct is authorised for the purposes of subsection 51(1).