AUSTRALIA Law and Practice Contributed by: Scott Colvin, Warren Scott and Lachlan Speirs, Archer Scott Lawyers
consequences, including the risk that the transaction is void and significant penalties, as follows: • for corporations up to the greater of AUD50 million, three times the benefit, or 30% of Australian turno - ver during the period of the breach; and • for individuals up to AUD2.5 million. Premature integration or co-ordination between the parties before clearance also carries risk. 6.3 Cartels Part IV of the Competition and Consumer Act 2010 (Cth) prohibits cartel conduct, including price fixing, restricting outputs, allocating markets or customers and rigging bids, both as criminal offences and as civil contraventions, with the Commonwealth Direc - tor of Public Prosecutions prosecuting serious cases. The Act also prohibits anti-competitive agreements and concerted practices, and exclusive dealing, that have the purpose or effect of substantially lessening competition. The prohibitions have extraterritorial reach, applying to conduct engaged in outside Australia by bodies corporate carrying on business in Australia, and to conduct affecting a market in Australia. Penalties mir - ror those for the merger regime, and an individual con - victed of a criminal cartel offence may be imprisoned for up to ten years, in addition to receiving fines. An immunity and co-operation policy is available to the first participant in a cartel to come forward. 6.4 Abuse of Dominant Position Australia prohibits the misuse of market power under Section 46 of the Competition and Consumer Act 2010 (Cth): a corporation that has a substantial degree of power in a market must not engage in conduct that has the purpose, effect or likely effect of substantially lessening competition. There is no separate prohibi - tion on abuse of dominance, and no general prohibi - tion on the abuse of economic dependence of the kind found in some civil law systems. Imbalances in commercial dealings are instead addressed through other tools, including:
• the prohibitions on unconscionable conduct in the Australian Consumer Law; • the regime for unfair contract terms in standard- form consumer and small business contracts; and • prescribed industry codes such as the Franchising Code. The regulator continues to advocate for a general pro - hibition on unfair trading practices to capture con - duct that distorts decision-making but is not presently unlawful. Contraventions of the unilateral conduct prohibition attract the same penalties as other com - petition contraventions. Patents are governed by the Patents Act 1990 (Cth) and registered by IP Australia. A standard patent pro - tects an invention that is novel, involves an inventive step and is useful, for a term of 20 years, extendable to 25 years for certain pharmaceutical patents. New innovation patents are no longer available, although innovation patents granted before the phase-out con - tinue until they expire. Protection is obtained by application and examina - tion leading to grant. Infringement is enforced by pro - ceedings in the Federal Court, and remedies include injunctions, damages or an account of profits, and delivery up or destruction of infringing articles. 7.2 Trade Marks Trade marks are governed by the Trade Marks Act 1995 (Cth) and registered by IP Australia. A sign that distinguishes goods or services may be registered for an initial period of ten years and renewed indefi - nitely, giving the owner the exclusive right to use the mark, and to authorise others to use it. Registration is enforced by infringement proceedings, and unreg - istered marks and get-up are protected by the tort of passing off and by the misleading-conduct provisions of the Australian Consumer Law. 7. Intellectual Property 7.1 Patents Trade marks are central to franchising, because the brand is the core asset of a franchise system. Fran - chisors register their marks and license them to fran -
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