Prepared by the Office of Parliamentary Counsel, Canberra
Competition and Consumer Act 2010
No. 51, 1974
Compilation No. 99
Compilation date: 1 January 2015
Includes amendments up to: Act No. 109, 2014
Registered: 15 January 2015
This compilation is in 3 volumes
Volume 1: sections 1–119
Volume 2: sections 10.01–179
Volume 3: Schedules
Endnotes
Each volume has its own contents
This compilation includes commenced amendments made by Act No. 107,
2014
ComLaw Authoritative Act C2015C00019
About this compilation
This compilation
This is a compilation of the Competition and Consumer Act 2010 that shows the
text of the law as amended and in force on 1 January 2015 (the compilation
date).
This compilation was prepared on 5 January 2015.
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but
not commenced at, the compilation date are underlined in the endnotes. For
more information on any uncommenced amendments, see the series page on
ComLaw for the compiled law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on ComLaw for the
compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.
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Contents
Part X—International liner cargo shipping 1
Division 1—Preliminary 1
10.01 Objects of Part...................................................................1
10.01A Simplified outline..............................................................2
10.02 Interpretation .....................................................................3
10.02A Inland terminals...............................................................11
10.03 Designated shipper bodies...............................................12
Division 2—Additional restrictive trade practice provisions
applying to ocean carriers 15
10.04 Application of section 46 in relation to conference
agreements.......................................................................15
Division 3—Minimum standards for conference agreements 16
10.06 Application of Australian law to outwards
conference agreements and withdrawal from
agreements.......................................................................16
10.07 Minimum levels of shipping services to be
specified in conference agreements .................................16
10.08 Conference agreements may include only certain
restrictive trade practice provisions .................................16
10.09 Where may consequences of conference
agreements not complying with minimum
standards be found?.........................................................18
Division 4—Registers and files and public inspection of them 19
10.10 Registers and conference agreement files open to
public inspection .............................................................19
10.11 What registers are to be kept by the Registrar? ...............19
10.12 What conference agreement files are to be kept by
the Registrar? ..................................................................19
10.13 What register is to be kept by the Commission?..............20
Division 5—Exemptions from certain restrictive trade practice
prohibitions 21
Subdivision A—Exemptions relating to conference agreements 21
10.14 Exemptions apply only to certain activities .....................21
10.15 When do exemptions commence to apply in
relation to registered conference agreements? .................21
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10.16 Exemptions do not apply to variations of
conference agreement unless varying agreement
registered .........................................................................22
10.17 Exemptions from sections 44ZZRF, 44ZZRG,
44ZZRJ, 44ZZRK and 45................................................22
10.17A Exemptions from sections 44ZZRF, 44ZZRG,
44ZZRJ, 44ZZRK and 45 for freight rate
agreements.......................................................................23
10.18 Exemption from section 47 .............................................24
10.18A Exemptions from section 47 for freight rate
agreements.......................................................................25
Subdivision B—Exemptions relating to loyalty agreements 26
10.19 Exemptions from sections 44ZZRF, 44ZZRG,
44ZZRJ, 44ZZRK and 45................................................26
10.20 Exemption from section 47 .............................................26
10.21 Exemptions cease to apply in relation to a shipper
at the shipper’s option .....................................................26
Subdivision D—Other exemptions 27
10.24 Exemptions from sections 44ZZRF, 44ZZRG,
44ZZRJ, 44ZZRK, 45 and 47 in relation to certain
negotiations .....................................................................27
10.24A Exemptions from sections 44ZZRF, 44ZZRG,
44ZZRJ, 44ZZRK, 45 and 47 in relation to
stevedoring contracts.......................................................27
Division 6—Registration of conference agreements 29
Subdivision A—Provisional registration 29
10.25 Application for provisional registration of
conference agreement......................................................29
10.26 How application is to be made and verified ....................29
10.27 Copy of agreement to be filed with application etc. ........29
10.27A Copy of conference agreement to be given to
designated peak shipper body..........................................30
10.28 Decision on application for provisional registration........31
10.29 Parties to conference agreement to negotiate
minimum level of shipping services after
provisional registration of agreement ..............................33
Subdivision B—Final registration 35
10.30 Application for final registration of conference
agreement ........................................................................35
10.31 How application is to be made and verified ....................35
10.32 Copy of agreement to be filed with application etc. ........35
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10.33 Decision on application for final registration ..................36
Subdivision C—Confidentiality requests 38
10.34 Request for confidentiality ..............................................38
10.35 Abstract to accompany request for confidentiality ..........38
10.36 Examination of abstract...................................................38
10.37 Decision on request for confidentiality............................39
10.38 Application for registration to be returned where
request for confidentiality refused etc. ............................40
Subdivision D—Miscellaneous 40
10.39 Application also to be made for registration of
varying conference agreements .......................................40
10.40 Notification of happening of affecting events prior
to final registration etc.....................................................41
Division 7—Obligations of ocean carriers in relation to
registered conference agreements 43
10.41 Parties to registered conference agreement to
negotiate with certain designated shipper bodies
etc. ...................................................................................43
10.42 Application to be made for registration of varying
conference agreements ....................................................45
10.43 Parties to registered conference agreement to
notify happening of affecting events etc..........................45
Division 8—Powers of Minister in relation to registered
conference agreements 47
10.44 Powers exercisable by Minister in relation to
registered conference agreements etc. .............................47
10.45 Circumstances in which Minister may exercise
powers in relation to registered conference
agreements.......................................................................48
10.46 Action to be taken where powers exercised by
Minister without first obtaining Commission
report ...............................................................................52
10.47 Investigation and report by Commission on
reference by Minister.......................................................53
10.48 Investigation and report by Commission on own
initiative or on application by affected person.................53
10.49 Undertakings by parties to registered conference
agreement ........................................................................55
10.49A Enforcement of undertakings ..........................................55
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Division 9—Obligations of non-conference ocean carriers with
substantial market power 57
10.50 Investigations by Commission into market power
of ocean carriers ..............................................................57
10.51 Determination by Minister of market power of
ocean carriers...................................................................57
10.52 Non-conference ocean carrier with substantial
market power to negotiate with certain designated
shipper bodies etc. ...........................................................58
10.53 Non-conference ocean carrier with substantial
market power not to hinder Australian flag
shipping operators etc......................................................60
Division 10—Powers of Minister in relation to non-conference
ocean carriers with substantial market power 61
10.54 Powers exercisable by Minister in relation to
obligations of non-conference ocean carriers with
substantial market power .................................................61
10.55 Circumstances in which Minister may exercise
powers .............................................................................61
10.56 Action to be taken where powers exercised by
Minister without first obtaining Commission
report ...............................................................................62
10.57 Investigation and report by Commission on
reference by Minister.......................................................63
10.58 Investigation and report by Commission on
application by affected person.........................................63
10.59 Undertakings by ocean carrier .........................................64
10.60 Enforcement of orders and undertakings .........................65
Division 11—Unfair pricing practices 66
10.61 Powers exercisable by Minister in relation to
pricing practices etc.........................................................66
10.62 Circumstances in which Minister may exercise
powers .............................................................................66
10.63 Investigation and report by Commission .........................67
10.64 Undertakings not to engage in pricing practices..............67
10.65 Enforcement of orders and undertakings .........................68
10.66 Determination of normal freight rates for shipping
services............................................................................68
10.67 Determination of whether practice contrary to
national interest ...............................................................69
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Division 12—Registration of ocean carrier agents 71
10.68 Ocean carrier who provides international liner
cargo shipping services to have registered agent .............71
10.69 Representation of ocean carrier by registered agent ........71
10.70 Application by ocean carrier for registration of
agent ................................................................................72
10.71 Registration of agent .......................................................72
10.72 Change of agent etc. ........................................................73
Division 12A—Exemption orders for inwards conference
agreements etc. 74
10.72A Exemption orders for inwards conference
agreements etc. ................................................................74
10.72B Criteria for making exemption order ...............................75
10.72C Duration of exemption order may be limited...................75
10.72D Conditions of exemption order ........................................75
Division 13—General provisions relating to registers and
conference agreement files 76
10.73 Form of registers and conference agreement files ...........76
10.74 Deletion of entries wrongly existing in certain
registers ...........................................................................76
10.75 Deletion of obsolete entries in certain registers ...............76
10.76 Correction of clerical errors and other mistakes in
certain registers etc. .........................................................76
Division 14—Administration 77
10.77 Registrar of Liner Shipping .............................................77
10.78 Appointment of Registrar etc. .........................................77
10.79 Acting Registrar ..............................................................77
10.80 Registrar and staff to be public servants ..........................77
10.81 Delegation by Minister ....................................................77
10.82 Delegation by Registrar...................................................78
Division 14A—Review of decisions of Commission 79
10.82A Review by Tribunal .........................................................79
10.82B Functions and powers of Tribunal ...................................79
10.82C Provisions that do not apply in relation to a
Tribunal review ...............................................................80
Division 14B—Review of decisions of Minister 81
10.82D Review by Tribunal .........................................................81
10.82E Functions and powers of Tribunal ...................................82
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10.82F Modifying register after Tribunal review ........................82
10.82G Provisions that do not apply in relation to a
Tribunal review ...............................................................83
Division 15—Miscellaneous 84
10.83 Act not to affect rights under Freedom of
Information Act ...............................................................84
10.84 Review of decisions of Registrar.....................................84
10.85 Statement to accompany notices of Registrar ..................84
10.86 Evidence..........................................................................85
10.87 Notification by Commission of references etc.................85
10.88 Exclusion of documents etc. from register of
Commission investigations..............................................86
10.89 Disclosure of confidential information............................87
10.90 Fees .................................................................................89
10.91 Application of Part XID and section 155 to
investigations under Part .................................................89
Part XI—Application of the Australian Consumer Law as a
law of the Commonwealth 90
Division 1—Preliminary 90
130 Definitions.......................................................................90
130A Expressions defined in Schedule 2 ..................................92
Division 2—Application of the Australian Consumer Law as a
law of the Commonwealth 93
Subdivision A—Application of the Australian Consumer Law 93
131 Application of the Australian Consumer Law in
relation to corporations etc. .............................................93
131A Division does not apply to financial services ..................94
131B Division does not apply to interim bans imposed
by State or Territory Ministers ........................................94
131C Saving of other laws and remedies ..................................95
Subdivision B—Effect of other Commonwealth laws on the
Australian Consumer Law 95
131D Effect of Part VIB on Chapter 5 of the Australian
Consumer Law ................................................................95
131E Application of the Legislative Instruments Act
2003.................................................................................96
131F Section 4AB of the Crimes Act does not apply ...............97
131G Application of the Criminal Code ...................................97
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Division 3—Conferences for proposed bans and recall notices 98
Subdivision A—Conference requirements before a ban or
compulsory recall 98
132 Commonwealth Minister must issue a proposed
ban notice ........................................................................98
132A Commonwealth Minister must issue a proposed
recall notice .....................................................................99
132B Commonwealth Minister to be notified if no
person wishes a conference to be held...........................100
132C Notification of conference.............................................100
132D Recommendation after conclusion of conference..........100
Subdivision B—Conference requirements after an interim ban is
imposed 102
132E Opportunity for a conference after an interim ban
has been imposed by the Commonwealth Minister .......102
132F Notification of conference.............................................102
132G Recommendation after conclusion of conference..........103
Subdivision C—Conduct of conferences 103
132H Conduct of conferences .................................................103
Subdivision D—Miscellaneous 105
132J Interim ban and recall notice without delay in case
of danger to the public...................................................105
132K Copy of notices under this Division to be given to
suppliers ........................................................................105
Division 4—Enforcement 107
Subdivision A—Inspectors 107
133 Appointment of inspectors ............................................107
133A Identity cards .................................................................107
Subdivision B—Premises to which the public is given access 108
133B Power to enter premises to which the public has
access—consumer goods...............................................108
133C Power to enter premises to which the public has
access—product related services ...................................109
Subdivision C—Disclosure notices relating to the safety of goods
or services 110
133D Power to obtain information etc. ...................................110
133E Self-incrimination..........................................................111
133F Compliance with disclosure notices ..............................112
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133G False or misleading information etc. .............................112
Subdivision D—Court orders relating to the destruction etc. of
goods 113
133H Court orders relating to consumer goods that do
not comply with a safety standard etc............................113
133J Recovery of reasonable costs of seizing, and
destroying or disposing of, consumer goods .................114
Division 5—Infringement notices 115
134 Purpose and effect of this Division................................115
134A Issuing an infringement notice ......................................115
134B Matters to be included in an infringement notice ..........116
134C Amount of penalty.........................................................117
134D Effect of compliance with an infringement notice.........121
134E Effect of failure to comply with an infringement
notice.............................................................................122
134F Infringement notice compliance period for
infringement notice........................................................122
134G Withdrawal of an infringement notice ...........................123
Division 6—Search, seizure and entry 125
Subdivision A—Powers of inspectors 125
135 Inspector may enter premises ........................................125
135A Search-related powers of inspectors ..............................126
135B Inspector may ask questions and seek production
of documents .................................................................128
135C Failure to answer questions or produce documents .......128
135D Persons assisting inspectors...........................................129
135E Use of force in executing a search warrant ....................130
135F Announcement before entry under warrant ...................130
135G Inspector must be in possession of search warrant ........131
Subdivision B—Obligations of inspectors 131
135H Consent..........................................................................131
135J Details of search warrant etc. must be given to the
occupier of the premises ................................................131
Subdivision C—Occupier’s etc. rights and responsibilities 132
135K Occupier etc. entitled to observe execution of
search warrant ...............................................................132
135L Occupier etc. to provide inspector etc. with
facilities and assistance .................................................132
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135M Receipts for seized consumer goods and
equipment......................................................................133
135N Return of seized consumer goods and equipment..........133
135P Judge may permit consumer goods or equipment
to be retained .................................................................134
Subdivision D—Provisions relating to seizure 135
135Q Recovery of reasonable costs of seizing consumer
goods or equipment .......................................................135
135R Destruction or disposal of seized consumer goods
or equipment..................................................................135
Subdivision E—Embargo notices 136
135S Embargo notices ............................................................136
135T Embargo period for embargo notices ............................138
135U Multiple embargo notices for the same consumer
goods or product related services ..................................139
135V Power of inspectors to secure consumer goods .............139
135W Power of inspectors to secure equipment used to
supply product related services......................................139
135X Consent to supply etc. embargoed consumer goods
etc. .................................................................................140
135Y Compliance with embargo notices ................................140
Subdivision F—Issue of search warrants 141
135Z Issue of search warrants ................................................141
136 Search warrants by telephone, fax etc. ..........................142
136A Offence relating to warrants by telephone, fax etc. .......144
Subdivision G—Miscellaneous 145
136B Powers of judges ...........................................................145
Division 7—Remedies 146
137 Limit on occupational liability ......................................146
137A Contributory acts or omissions to reduce
compensation in defective goods actions.......................147
137B Reduction of the amount of loss or damage if the
claimant fails to take reasonable care ............................148
137C Limits on recovery of amounts for death or
personal injury...............................................................148
137D Compensation orders etc. arising out of unfair
contract terms ................................................................149
137E Limits on compensation orders etc. for death or
personal injury...............................................................150
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137F Court may make orders for the purpose of
preserving money or other property held by a
person ............................................................................151
137G Compliance with orders made under section 137F........154
137H Finding in proceedings to be evidence ..........................154
Division 8—Jurisdictional matters 156
138 Conferring jurisdiction on the Federal Court.................156
138A Conferring jurisdiction on the Federal Circuit
Court..............................................................................156
138B Conferring jurisdiction on State and Territory
Courts ............................................................................157
138C Transfer of matters by the Federal Court.......................157
138D Transfer of matters by a State or Territory court ...........158
138E Transfer of proceedings to Family Court.......................159
Division 9—Miscellaneous 162
139 Intervention by the Commission....................................162
139A Terms excluding consumer guarantees from
supplies of recreational services ....................................162
139B Conduct of directors, employees or agents of
bodies corporate ............................................................163
139C Conduct of employees or agents of persons other
than bodies corporate.....................................................164
139D Enforcement and recovery of certain fines ....................165
139DA Application of section 229 of the Australian
Consumer Law to a person other than a body
corporate........................................................................166
139E Cessation of enforcement orders etc..............................167
139F Compensation for acquisition of property .....................168
139G Regulations....................................................................168
Part XIAA—Application of the Australian Consumer Law as a
law of a State or Territory 170 140 Definitions.....................................................................170
140A Object of this Part..........................................................171
140B The applied Australian Consumer Law .........................172
140C Federal Court may exercise jurisdiction under
application laws of Territories.......................................172
140D Exercise of jurisdiction under cross-vesting
provisions ......................................................................172
140E Commonwealth consent to conferral of functions
etc. on Commonwealth entities .....................................172
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140F How duty is imposed.....................................................173
140G When an application law imposes a duty.......................174
140H Application laws may operate concurrently with
this Act ..........................................................................174
140J No doubling-up of liabilities .........................................174
140K References in instruments to the Australian
Consumer Law ..............................................................175
Part XIA—The Competition Code 176 150A Definitions.....................................................................176
150B Objects of this Part ........................................................177
150C The Competition Code ..................................................177
150D Federal Court may exercise jurisdiction under
application laws of Territories.......................................178
150E Exercise of jurisdiction under cross-vesting
provisions ......................................................................178
150F Commonwealth consent to conferral of functions
etc. on Commonwealth entities .....................................178
150FA How duty is imposed.....................................................179
150FB When an application law imposes a duty.......................180
150G Application laws may operate concurrently with
this Act ..........................................................................180
150H No doubling-up of liabilities .........................................180
150I References in instruments to the Competition
Code ..............................................................................181
150J Authorisations etc. under this Act may relate also
to Competition Code .....................................................181
150K Gazettal of jurisdictions that excessively modify
the Code ........................................................................181
Part XIB—The Telecommunications Industry:
Anti-competitive conduct and record-keeping rules 182
Division 1—Introduction 182
151AA Simplified outline..........................................................182
151AB Definitions.....................................................................183
151AC Extension to external Territories ...................................185
151AD Continuity of partnerships .............................................185
151AE Additional operation of Part ..........................................185
151AF Telecommunications market .........................................186
151AG When a body corporate is related to a partnership.........186
151AH Degree of power in a telecommunications market ........187
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151AI Interpretation of Part IV or VII not affected by this
Part ................................................................................189
Division 2—Anti-competitive conduct 190
151AJ Anti-competitive conduct ..............................................190
151AK The competition rule .....................................................193
Division 3—Competition notices and exemption orders 194
Subdivision A—Competition notices 194
151AKA Part A competition notices ............................................194
151AL Part B competition notices.............................................195
151AM Competition notice to be given to carrier or
carriage service provider ...............................................196
151AN Evidentiary effect of competition notice .......................196
151AO Duration of Part A competition notice...........................196
151AOA Variation of competition notice.....................................197
151AOB Revocation of competition notice..................................197
151AP Guidelines .....................................................................197
151AQ Commission to act expeditiously...................................198
151AQA Stay of proceedings relating to competition notices ......198
151AQB Advisory notices............................................................199
151AR Register of competition notices .....................................200
Subdivision B—Exemption orders 201
151AS Exemption orders ..........................................................201
151AT Form of application .......................................................201
151AU Further information .......................................................202
151AV Withdrawal of application .............................................202
151AW Commission must publicise receipt of applications.......202
151AX Commission may refuse to consider application if
it relates to the same conduct as an authorisation
application .....................................................................202
151AY Commission may refuse to consider application if
it relates to the same conduct as a Part VII
notification ....................................................................203
151AZ Commission may convene conference to discuss
application .....................................................................204
151BA Commission must grant or reject application ................204
151BB Commission to give opportunity for submissions .........204
151BC Criteria for making exemption order .............................204
151BD Notification of decision .................................................206
151BE Duration of exemption order may be limited.................206
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151BF Conditions of exemption order ......................................206
151BG Revocation of exemption order .....................................207
151BH Register of exemption orders.........................................207
Subdivision C—Miscellaneous 209
151BJ Conduct includes proposed conduct ..............................209
Division 4—Tariff filing 210
151BK Tariff filing directions ...................................................210
151BL Specification of goods and services...............................212
151BM Notification of reasons ..................................................212
151BN Duration of direction may be limited.............................213
151BO Revocation of direction .................................................213
151BP Variation of direction ....................................................213
151BQ Public access to tariff information.................................214
151BR Register of tariff filing directions ..................................214
151BT Meaning of terms and conditions ..................................215
Division 5—Tariff filing by Telstra 217
151BTA Tariff filing by Telstra ...................................................217
Division 6—Record-keeping rules and disclosure directions 219
151BU Commission may make record-keeping rules................219
151BUAA Minister may give directions to Commission ................220
151BUAB Request for disclosure ...................................................222
151BUA Commission gives access to reports ..............................222
151BUB Carrier or carriage service provider gives access to
reports............................................................................225
151BUC Carrier or carriage service provider gives access to
periodic reports..............................................................228
151BUD Exemption of reports from access requirements............232
151BUDA Commission gives access to Ministerially-directed
reports............................................................................233
151BUDB Carrier or carriage service provider gives access to
Ministerially-directed reports ........................................235
151BUDC Carrier or carriage service provider gives access to
Ministerially-directed periodic reports ..........................237
151BUE Access via the internet...................................................240
151BUF Self-incrimination..........................................................240
151BV Incorrect records............................................................240
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Division 7—Enforcement of the competition rule, tariff filing
directions, record-keeping rules and disclosure
directions 242
151BW Person involved in a contravention of the
competition rule, a tariff filing direction, a
record-keeping rule or a disclosure direction ................242
151BX Pecuniary penalties for breach of the competition
rule, a tariff filing direction, a record-keeping rule
or a disclosure direction ................................................242
151BY Civil action for recovery of pecuniary penalties............244
151BZ Criminal proceedings not to be brought for
contraventions of the competition rule, tariff filing
directions, record-keeping rules or disclosure
directions.......................................................................245
151CA Injunctions.....................................................................246
151CB Orders to disclose information or publish an
advertisement—breach of the competition rule.............248
151CC Actions for damages—breach of the competition
rule ................................................................................248
151CD Finding of fact in proceedings to be evidence ...............249
151CE Other orders—compensation for breach of the
competition rule.............................................................249
151CF Conduct by directors, employees or agents ...................251
Division 8—Disclosure of documents by Commission 252
151CG Disclosure of documents by Commission .....................252
Division 9—Treatment of partnerships 254
151CH Treatment of partnerships..............................................254
Division 10—Review of decisions 255
151CI Review by Tribunal .......................................................255
151CJ Functions and powers of Tribunal .................................256
151CK Provisions that do not apply in relation to a
Tribunal review .............................................................257
Division 11—Reviews of competitive safeguards within the
telecommunications industry 258
151CL Reviews of competitive safeguards within the
telecommunications industry.........................................258
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Division 12—Monitoring of telecommunications charges paid by
consumers 259
151CM Monitoring of telecommunications charges paid by
consumers......................................................................259
Division 12A—Reports about competition in the
telecommunications industry 261
151CMA Public reports about competition in the
telecommunications industry.........................................261
151CMB Confidential reports about competition in the
telecommunications industry.........................................262
151CMC Examples of matters that may be specified in a
determination under section 151CMA or 151CMB.......262
Division 15—Voluntary undertakings given by Telstra 264
151CQ Voluntary undertakings given by Telstra.......................264
Division 16—NBN corporations 265
151DA Authorised conduct—subsection 51(1) .........................265
151DB Listed points of interconnection ....................................270
Part XIC—Telecommunications access regime 271
Division 1—Introduction 271
152AA Simplified outline..........................................................271
152AB Object of this Part..........................................................273
152AC Definitions.....................................................................275
152AD This Part binds the Crown .............................................279
152AE Extension to external Territories ...................................279
152AF Access ...........................................................................279
152AG Access seeker ................................................................280
152AGA Designated superfast telecommunications network.......280
152AH Reasonableness—terms and conditions.........................284
152AI When public inquiry commences ..................................284
152AJ Interpretation of Part IIIA not affected by this Part .......285
152AK Operation of Parts IV and VII not affected by this
Part ................................................................................285
Division 2—Declared services 286
152AL Declared services...........................................................286
152ALA Duration of declaration..................................................292
152AM Inquiries about proposals to declare services ................295
152AN Combined inquiries about proposals to declare
services..........................................................................295
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152AO Variation or revocation of declaration...........................296
152AQ Register of declared services .........................................296
152AQC Compensation for acquisition of property .....................297
Division 3—Standard access obligations 298
Subdivision A—Category A standard access obligations 298
152AR Category A standard access obligations ........................298
152ARA Layer 2 bitstream services to be supplied on a
non-discriminatory basis ...............................................302
152ARB Layer 2 bitstream services—carriers and carriage
service providers to carry on related activities on a
non-discriminatory basis ...............................................304
152ASA Anticipatory class exemptions from category A
standard access obligations............................................305
152ATA Anticipatory individual exemptions from category
A standard access obligations........................................307
152AU Individual exemptions—request for further
information....................................................................311
152AXA Statement of reasons for decision—specification
of documents .................................................................312
Subdivision B—Category B standard access obligations 312
152AXB Category B standard access obligations ........................312
152AXC NBN corporation to supply declared services on a
non-discriminatory basis ...............................................315
152AXD NBN corporation to carry on related activities on a
non-discriminatory basis ...............................................316
Subdivision C—Compliance with standard access obligations 317
152AY Compliance with standard access obligations................317
152AYA Ancillary obligations—confidential information...........318
152AZ Carrier licence condition ...............................................319
152BA Service provider rule .....................................................320
152BB Judicial enforcement of standard access
obligations .....................................................................320
152BBAA Judicial enforcement of conditions and limitations
of exemption determinations and orders........................322
152BBA Commission may give directions in relation to
negotiations ...................................................................322
152BBB Enforcement of directions .............................................324
152BBC Commission’s role in negotiations ................................325
152BBD Reaching agreement on terms and conditions of
access ............................................................................326
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Division 4—Access determinations 327
Subdivision A—Commission may make access determinations 327
152BC Access determinations...................................................327
152BCA Matters that the Commission must take into
account ..........................................................................329
152BCB Restrictions on access determinations ...........................330
152BCC Access agreements prevail over inconsistent
access determinations ....................................................334
152BCCA Final migration plan prevails over inconsistent
access determinations ....................................................334
152BCD Fixed principles provisions............................................335
152BCE Access determinations may be set out in the same
document .......................................................................337
152BCF Duration of access determination ..................................337
152BCG Interim access determinations .......................................341
152BCGA Stay of access determinations........................................342
Subdivision B—Public inquiries about proposals to make access
determinations 342
152BCH Access determination to be made after public
inquiry ...........................................................................342
152BCI When public inquiry must be held.................................342
152BCJ Combined inquiries about proposals to make
access determinations ....................................................345
152BCK Time limit for making an access determination.............346
Subdivision C—Variation or revocation of access determinations 347
152BCN Variation or revocation of access determinations ..........347
Subdivision D—Compliance with access determinations 349
152BCO Carrier licence condition ...............................................349
152BCP Service provider rule .....................................................349
Subdivision E—Private enforcement of access determinations 349
152BCQ Private enforcement of access determinations...............349
152BCR Consent injunctions .......................................................350
152BCS Interim injunctions ........................................................350
152BCT Factors relevant to granting a restraining
injunction.......................................................................350
152BCU Factors relevant to granting a mandatory
injunction.......................................................................351
152BCV Discharge or variation of injunction or other order .......351
Subdivision F—Register of Access Determinations 351
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152BCW Register of Access Determinations................................351
Division 4A—Binding rules of conduct 353
Subdivision A—Commission may make binding rules of conduct 353
152BD Binding rules of conduct ...............................................353
152BDAA Matters that the Commission must take into
account ..........................................................................354
152BDA Restrictions on binding rules of conduct .......................356
152BDB Access agreements prevail over inconsistent
binding rules of conduct ................................................360
152BDC Duration of binding rules of conduct.............................360
152BDCA Final migration plan prevails over inconsistent
binding rules of conduct ................................................360
152BDD Commission must give copy of binding rules of
conduct to carrier etc. ....................................................360
152BDE Access determinations that are inconsistent with
binding rules of conduct ................................................361
152BDEA Stay of binding rules of conduct....................................361
Subdivision B—Compliance with binding rules of conduct 361
152BDF Carrier licence condition ...............................................361
152BDG Service provider rule .....................................................361
Subdivision C—Private enforcement of binding rules of conduct 362
152BDH Private enforcement of binding rules of conduct ...........362
152BDI Consent injunctions .......................................................363
152BDJ Interim injunctions ........................................................363
152BDK Factors relevant to granting a restraining
injunction.......................................................................363
152BDL Factors relevant to granting a mandatory
injunction.......................................................................364
152BDM Discharge or variation of injunction or other order .......364
Subdivision D—Register of Binding Rules of Conduct 364
152BDN Register of Binding Rules of Conduct...........................364
Division 4B—Access agreements 366
152BE Access agreements ........................................................366
152BEA Quarterly reports about access agreements....................368
152BEB Commission may request copy of access
agreement or variation agreement .................................369
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152BEBA NBN corporation to give the Commission a
statement about the differences between an access
agreement and a standard form of access
agreement ......................................................................370
152BEBB NBN corporation to give the Commission a
statement about the differences between an access
agreement and a special access undertaking..................371
152BEBC NBN corporation to give the Commission a
statement about the differences between an access
agreement and an access determination.........................373
152BEBD Register of NBN Access Agreement Statements...........374
152BEBE Layer 2 bitstream services—carrier or carriage
service provider to give the Commission a
statement about the differences between an access
agreement and a special access undertaking..................375
152BEBF Layer 2 bitstream services—carrier or carriage
service provider to give the Commission a
statement about the differences between an access
agreement and an access determination.........................377
152BEBG Register of Layer 2 Bitstream Access Agreement
Statements .....................................................................379
152BEC Carrier licence condition ...............................................379
152BED Service provider rule .....................................................380
Division 5—Access undertakings 381
Subdivision B—Special access undertakings 381
152CBA What is a special access undertaking? ..........................381
152CBAA Fixed principles terms and conditions ...........................384
152CBB Further information about undertaking..........................388
152CBC Commission to accept or reject access undertaking.......389
152CBCA Serial undertakings ........................................................392
152CBD Criteria for accepting access undertaking......................392
152CBDA Variation of special access undertaking ........................395
152CBE Extension of access undertaking....................................395
152CBF Duration of access undertaking .....................................397
152CBG Variation of access undertakings ...................................397
152CBH Further information about variation of access
undertaking....................................................................399
152CBI Voluntary withdrawal of undertaking............................400
152CBIA Special access undertakings prevail over
inconsistent access determinations ................................400
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152CBIB Special access undertakings prevail over
inconsistent binding rules of conduct ............................401
152CBIC Access agreements prevail over special access
undertakings ..................................................................401
152CBJ Proposed service............................................................401
Subdivision C—General provisions 401
152CC Register of access undertakings.....................................401
152CD Enforcement of access undertakings .............................402
152CDA Deferral of consideration of an access undertaking
etc. .................................................................................402
Division 6—Ministerial pricing determinations 403
152CH Ministerial pricing determinations.................................403
152CI Undertakings, access determinations and binding
rules of conduct that are inconsistent with
Ministerial pricing determinations.................................403
152CJ Register of Ministerial pricing determinations ..............404
Division 6A—Supply of services by NBN corporations 405
152CJA Supply of services by NBN corporations ......................405
152CJB Mandatory NBN services ..............................................406
152CJC Carrier licence condition ...............................................408
152CJD Service provider rule .....................................................408
152CJE Judicial enforcement of obligations...............................408
152CJF Standard form of access agreement ...............................409
152CJG When NBN corporation is not capable of
supplying a carriage service ..........................................409
Division 6B—Explanatory material relating to
anti-discrimination provisions 410
152CJH Explanatory material relating to
anti-discrimination provisions .......................................410
Division 7—Relationship between this Part and Part IIIA 411
152CK Relationship between this Part and Part IIIA.................411
Division 10—Hindering the fulfilment of a standard access
obligation etc. 412
152EF Prohibition on hindering the fulfilment of a
standard access obligation etc........................................412
152EG Enforcement of prohibition on hindering the
fulfilment of a standard access obligation etc................412
152EH Consent injunctions .......................................................413
152EI Interim injunctions ........................................................413
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152EJ Factors relevant to granting a restraining
injunction.......................................................................414
152EK Factors relevant to granting a mandatory
injunction.......................................................................414
152EL Discharge or variation of injunction or other order .......414
Division 10A—Procedural Rules 415
152ELA Procedural Rules ...........................................................415
152ELB Public consultation ........................................................416
152ELC Plan for the development of Procedural Rules ..............416
Division 11—Miscellaneous 417
152ELD Compensation for acquisition of property .....................417
152EM Continuity of partnerships .............................................417
152EN Treatment of partnerships..............................................417
152EO Conduct by directors, servants or agents .......................418
152EOA Review of operation of this Part etc. .............................419
152EP Regulations about fees for inspection etc. of
registers .........................................................................420
152EQ Assistance to independent telecommunications
adjudicator.....................................................................420
152ER Voluntary undertakings given by Telstra.......................421
Part XID—Search and seizure 422
Division 1—Preliminary 422
154 Simplified outline..........................................................422
154A Definitions.....................................................................422
Division 2—Appointment of inspectors and identity cards 425
154B Appointment of inspectors ............................................425
154C Identity cards .................................................................425
Division 3—Entry to premises with consent 427
154D Entry with consent.........................................................427
154E Powers in relation to premises.......................................427
154F Operation of electronic equipment at premises .............428
Division 4—Entry to premises under a search warrant 430
Subdivision A—Powers available under a search warrant 430
154G The things that are authorised by a search warrant ........430
154GA Removing things for examination or processing ...........431
154H Operation of electronic equipment at premises .............432
154J Securing electronic equipment for use by experts .........434
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Subdivision B—Availability of assistance and use of force in
executing a search warrant 435
154K Authorisation of officers assisting .................................435
154L Availability of assistance and use of force in
executing a search warrant ............................................435
Subdivision C—Obligations of executing officer and officers
assisting 436
154M Announcement before entry ..........................................436
154N Details of warrant to be given to occupier .....................436
Subdivision D—Occupier’s rights and responsibilities 436
154P Occupier entitled to observe search being
conducted ......................................................................436
154Q Occupier to provide reasonable facilities and
assistance.......................................................................437
154R Answering of questions or producing evidential
material..........................................................................437
154RA Person with computer knowledge to assist access
etc. .................................................................................438
Subdivision E—General provisions relating to seizure 439
154S Copies of seized things to be provided ..........................439
154T Receipts for things seized or moved under warrant .......439
154U Return of seized things ..................................................439
154V Magistrate may permit a thing to be retained ................440
154W Disposal of things if there is no owner or owner
cannot be located...........................................................441
Subdivision F—Search warrants 441
154X Issue of search warrants ................................................441
154Y Search warrants by telephone, fax etc. ..........................443
154Z Offences relating to warrants.........................................445
Subdivision G—Powers of magistrates 446
154ZA Powers conferred on magistrates ...................................446
Division 5—General provisions relating to electronic equipment 447
154ZB Operation of electronic equipment at premises .............447
154ZC Compensation for damage to electronic equipment.......447
Part XII—Miscellaneous 449 155 Power to obtain information, documents and
evidence ........................................................................449
155AAA Protection of certain information...................................452
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155AA Protection of Part VB information.................................459
155A Power to obtain information and documents in
New Zealand relating to trans-Tasman markets ............460
155B Australian Competition and Consumer
Commission may receive information and
documents on behalf of New Zealand Commerce
Commission...................................................................460
156 Inspection of documents by Commission......................462
157 Disclosure of documents by Commission .....................463
157AA Disclosure of documents by Tribunal in relation to
merger authorisations ....................................................465
157A Disclosure of information by Commission ....................467
157B Disclosure of protected cartel information to a
court or tribunal.............................................................467
157C Disclosure of protected cartel information to a
party to court proceedings etc........................................470
157D General powers of a court..............................................473
158 Protection of members of Tribunal, counsel and
witnesses .......................................................................474
159 Incriminating answers ...................................................474
160 Failure of witness to attend............................................475
161 Refusal to be sworn or to answer questions...................475
162 Contempt .......................................................................476
162A Intimidation etc. ............................................................477
163 Prosecutions ..................................................................477
163A Declarations and orders .................................................478
165 Inspection of, furnishing of copies of, and
evidence of, documents .................................................482
166 Certificates as to furnishing of particulars to
Commission...................................................................483
167 Judicial notice................................................................484
170 Legal and financial assistance .......................................485
171 Annual report by Commission.......................................486
171A Charges by the Commission ..........................................487
171B Division 3 of Part IIIA does not confer judicial
power on the Commission .............................................488
172 Regulations....................................................................488
173 Authorisation for the purposes of subsection 51(1).......490
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Part XIII—Application and transitional provisions relating to
the competition provisions 491
Division 1—Cartel conduct 491
174 Definitions.....................................................................491
175 Giving effect after the commencement time to a
cartel provision in existence before that time ................491
176 Proceedings relating to price-fixing contraventions
taking place before the commencement time.................491
177 Authorisations in force before the commencement
time................................................................................491
178 Notifications in force before the commencement
time................................................................................492
Division 2—Application of amendments made by the
Competition and Consumer Legislation
Amendment Act 2011 494
179 Amendments of section 50 ............................................494
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Part X—International liner cargo shipping
Division 1—Preliminary
10.01 Objects of Part
(1) The principal objects of this Part are:
(a) to ensure that Australian exporters have continued access to
outwards liner cargo shipping services of adequate frequency
and reliability at freight rates that are internationally
competitive; and
(b) to promote conditions in the international liner cargo
shipping industry that encourage stable access to export
markets for exporters in all States and Territories; and
(c) to ensure that efficient Australian flag shipping is not
unreasonably hindered from normal commercial participation
in any outwards liner cargo shipping trade; and
(d) as far as practicable, to extend to Australian importers in each
State and Territory the protection given by this Part to
Australian exporters.
(2) It is the intention of the Parliament that the principal objects of this
Part should be achieved:
(a) by permitting continued conference operations while
enhancing the competitive environment for international liner
cargo shipping services through the provision of adequate
and appropriate safeguards against abuse of conference
power, particularly by:
(i) enacting additional restrictive trade practice provisions
applying to ocean carriers;
(ii) requiring conference agreements to meet certain
minimum standards;
(iii) making conference agreements generally publicly
available;
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(iv) permitting only partial and conditional exemption from
restrictive trade practice prohibitions; and
(v) requiring conferences to take part in negotiations with
representative shipper bodies;
(b) through increased reliance on private commercial and legal
processes and a reduced level of government regulation of
routine commercial matters; and
(c) by the exercise of jurisdiction, consistent with international
law:
(i) over ocean carriers who have a substantial connection
with Australia because they provide international liner
cargo shipping services; and
(ii) to enable remedies for contravention of the provisions
of this Part to be enforced within Australia.
10.01A Simplified outline
The following is a simplified outline of this Part:
• This Part sets up a system for regulating international liner cargo shipping services.
• The main components of that system are as follows:
(a) registration of conference agreements;
(b) regulation of non-conference ocean carriers with
substantial market power;
(c) regulation of unfair pricing practices;
(d) registration of agents of ocean carriers.
• The parties to a conference agreement relating to international liner cargo shipping services may apply for the registration of
the agreement.
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• If the conference agreement is registered, the parties will be given partial and conditional exemptions from:
(a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK
(cartel conduct); and
(b) section 45 (contracts etc. that restrict dealings or
affect competition); and
(c) section 47 (exclusive dealing).
• The parties to a registered conference agreement are required to negotiate with, and provide information to, representative
shipper bodies.
• The Commission may investigate whether grounds exist for the Minister to deregister a conference agreement.
• The main ground for deregistration is a breach by the parties to the agreement of requirements imposed on them by this
Part.
10.02 Interpretation
(1) In this Part, unless the contrary intention appears:
agreement means any contract, agreement, arrangement or
understanding, whether made in or outside Australia.
ancillary service, in relation to a scheduled cargo shipping service,
means:
(a) an inter-terminal transport service; or
(b) a stevedoring service; or
(c) a service provided outside Australia;
that:
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(d) relates to the cargo transported, or to be transported, on the
scheduled cargo shipping service; and
(e) is provided by, or on behalf of, the provider of the scheduled
cargo shipping service.
association includes a body corporate.
Australian exporter means a person who exports goods from
Australia.
Australian flag shipping operator means a person who:
(a) is an Australian citizen or a body corporate incorporated by
or under the law of the Commonwealth or of a State or
Territory;
(b) provides, or proposes to provide, shipping services; and
(c) normally uses, or proposes normally to use, in providing the
services only:
(i) a ship that is registered in Australia; or
(ii) 2 or more ships, all or most of which are registered in
Australia.
Australian importer means a person who imports goods into
Australia.
authorised officer means an officer of the Department who is
authorised, in writing, by the Minister for the purposes of this Part.
conference means an unincorporated association of 2 or more
ocean carriers carrying on 2 or more businesses each of which
includes, or is proposed to include, the provision of outwards liner
cargo shipping services or inwards liner cargo shipping services.
conference agreement means:
(a) an outwards conference agreement; or
(b) an inwards conference agreement.
designated inwards peak shipper body means an association
specified in a notice under subsection 10.03(2A).
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designated inwards secondary shipper body means an association
specified in a notice under subsection 10.03(2B).
designated inwards shipper body means:
(a) a designated inwards peak shipper body; or
(b) a designated inwards secondary shipper body.
designated outwards peak shipper body means an association
specified in a notice under subsection 10.03(1).
designated outwards secondary shipper body means an association
specified in a notice under subsection 10.03(2).
designated outwards shipper body means:
(a) a designated outwards peak shipper body; or
(b) a designated outwards secondary shipper body.
designated port area means the area within the limits of a port
appointed under section 15 of the Customs Act 1901, being the
limits fixed under that section.
designated secondary shipper body means:
(a) a designated outwards secondary shipper body; or
(b) a designated inwards secondary shipper body.
designated shipper body means:
(a) a designated outwards shipper body; or
(b) a designated inwards shipper body.
exemption order means an order under section 10.72A.
freight rate agreement means a conference agreement that consists
of or includes freight rate charges.
freight rate charges:
(a) in relation to an outwards conference agreement—means
those parts of the conference agreement that specify freight
rates (including base freight rates, surcharges, rebates and
allowances) for outwards liner cargo shipping services; and
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(b) in relation to an inwards conference agreement—means those
parts of the conference agreement that specify freight rates
(including base freight rates, surcharges, rebates and
allowances) for inwards liner cargo shipping services.
handling cargo includes a service that is related to handling of
cargo.
inland terminal has the meaning given by section 10.02A.
international liner cargo shipping service means:
(a) an outwards liner cargo shipping service; or
(b) an inwards liner cargo shipping service.
inter-terminal transport service means a service for the transport
of various types of general cargo:
(a) from an inland terminal to a port terminal; or
(b) from a port terminal to an inland terminal; or
(c) from a port terminal to another port terminal;
and includes the handling of the cargo within any of those
terminals.
inwards conference agreement means an agreement between
members of a conference in relation to inwards liner cargo
shipping services provided, or proposed to be provided, by them,
and includes an inwards varying conference agreement.
inwards liner cargo shipping service means an inwards scheduled
cargo shipping service and, if the inwards scheduled cargo
shipping service is part of a terminal-to-terminal service, includes
an ancillary service that relates to the inwards scheduled cargo
shipping service.
inwards loyalty agreement means an agreement:
(a) between an ocean carrier or conference and a shipper or
designated inwards shipper body; and
(b) that makes provision, in relation to inwards liner cargo
shipping services, having the purpose or effect of giving
certain benefits to the shipper, or a shipper represented by the
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designated inwards shipper body, if the shipper ships with the
ocean carrier, or members of the conference:
(i) all or particular cargo, or a particular portion of all or
particular cargo, shipped by the shipper; or
(ii) a particular quantity of cargo or of particular cargo.
inwards scheduled cargo shipping service means a scheduled
cargo shipping service where the transport of the cargo by sea
commences from a place outside Australia and ends at a place in
Australia.
inwards varying conference agreement means an agreement:
(a) that varies an inwards conference agreement; or
(b) that otherwise affects an inwards conference agreement
(including an agreement referred to in subsection (4)).
loyalty agreement means:
(a) an outwards loyalty agreement; or
(b) an inwards loyalty agreement.
ocean carrier means a person who provides, or proposes to
provide, international liner cargo shipping services.
outwards conference agreement means an agreement between
members of a conference in relation to outwards liner cargo
shipping services provided, or proposed to be provided, by them,
and includes an outwards varying conference agreement.
outwards liner cargo shipping service means an outwards
scheduled cargo shipping service and, if the outwards scheduled
cargo shipping service is part of a terminal-to-terminal service,
includes an ancillary service that relates to the outwards scheduled
cargo shipping service.
outwards loyalty agreement means an agreement:
(a) between an ocean carrier or conference and a shipper or
designated outwards shipper body; and
(b) that makes provision, in relation to outwards liner cargo
shipping services, having the purpose or effect of giving
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certain benefits to the shipper, or a shipper represented by the
designated outwards shipper body, if the shipper ships with
the ocean carrier, or members of the conference:
(i) all or particular cargo, or a particular portion of all or
particular cargo, shipped by the shipper; or
(ii) a particular quantity of cargo or of particular cargo.
outwards scheduled cargo shipping service means a scheduled
cargo shipping service where the transport of the cargo by sea
commences from a place in Australia and ends at a place outside
Australia.
outwards varying conference agreement means an agreement:
(a) that varies an outwards conference agreement; or
(b) that otherwise affects an outwards conference agreement
(including an agreement referred to in subsection (3)).
port terminal means:
(a) the area within the limits of a wharf appointed under
section 15 of the Customs Act 1901, being the limits fixed
under that section; or
(b) a terminal facility within the limits of a designated port area.
pricing practice means the fixing, controlling or maintaining by an
ocean carrier of prices charged for, or the giving or allowing by an
ocean carrier of discounts, allowances, rebates or credits in relation
to, outwards liner cargo shipping services or inwards liner cargo
shipping services provided by the ocean carrier.
provisionally registered conference agreement means a
conference agreement that is provisionally registered under this
Part.
registered agent, in relation to an ocean carrier, means the person
specified in the register of ocean carrier agents as the agent of the
ocean carrier.
registered conference agreement means a conference agreement
that is finally registered under this Part.
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registered non-conference ocean carrier with substantial market
power means an ocean carrier specified in the register of
non-conference ocean carriers with substantial market power.
Registrar means the Registrar of Liner Shipping.
scheduled cargo shipping service means a scheduled service for
the transport of various types of general cargo by sea on particular
routes, generally by container and generally at predetermined
freight rates.
stevedoring service means:
(a) the loading or unloading of cargo into or from a ship; or
(b) the handling of cargo within a port terminal.
terminal-to-terminal service means:
(a) an outwards scheduled cargo shipping service, together with
any ancillary service that relates to the outwards scheduled
cargo shipping service; or
(b) an inwards scheduled cargo shipping service, together with
any ancillary service that relates to the inwards scheduled
cargo shipping service.
vary, in relation to a conference agreement, includes vary by way
of:
(a) omitting or altering any of the provisions of, or parties to, the
agreement;
(b) adding new provisions or parties to the agreement; or
(c) substituting new provisions or parties for any of the
provisions of, or parties to, the agreement.
varying conference agreement means:
(a) an outwards varying conference agreement; or
(b) an inwards varying conference agreement.
(2) A reference in this Part to the minimum level of outwards liner
cargo shipping services provided, or proposed to be provided,
under an outwards conference agreement includes a reference to
the frequency of sailings, cargo carrying capacity, and ports of call,
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of outwards liner cargo shipping services provided, or proposed to
be provided, under the agreement.
(2A) A reference in this Part to the minimum level of inwards liner
cargo shipping services provided, or proposed to be provided,
under an inwards conference agreement includes a reference to the
frequency of sailings, cargo carrying capacity, and ports of call, of
inwards liner cargo shipping services provided, or proposed to be
provided, under the agreement.
(3) A reference in this Part to an agreement that affects an outwards
conference agreement includes a reference to an agreement
between parties to the conference agreement or between parties to
the conference agreement and other ocean carriers:
(a) that affects the conduct of parties to the conference
agreement in relation to outwards liner cargo shipping
services provided, or proposed to be provided, under the
conference agreement;
(b) that affects the minimum level of outwards liner cargo
shipping services provided, or proposed to be provided,
under the conference agreement; or
(c) that otherwise affects:
(i) the operation, or proposed operation, of the conference
agreement; or
(ii) outwards liner cargo shipping services provided, or
proposed to be provided, under the conference
agreement.
(4) A reference in this Part to an agreement that affects an inwards
conference agreement includes a reference to an agreement
between parties to the conference agreement or between parties to
the conference agreement and other ocean carriers:
(a) that affects the conduct of parties to the conference
agreement in relation to inwards liner cargo shipping services
provided, or proposed to be provided, under the conference
agreement; or
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(b) that affects the minimum level of inwards liner cargo
shipping services provided, or proposed to be provided,
under the conference agreement; or
(c) that otherwise affects:
(i) the operation, or proposed operation, of the conference
agreement; or
(ii) inwards liner cargo shipping services provided, or
proposed to be provided, under the conference
agreement.
(5) For the purposes of this Part (except where the contrary intention
appears), if:
(a) an ancillary service relates to a scheduled cargo shipping
service; and
(b) the ancillary service is provided on behalf of the provider of
the scheduled cargo shipping service by a third person;
the ancillary service is taken to be provided by the provider of the
scheduled cargo shipping service instead of by the third person.
10.02A Inland terminals
(1) The Minister may, by legislative instrument, declare that a
specified facility is an inland terminal for the purposes of this Part.
(2) The facility must be in Australia, but outside a designated port
area.
(3) In making a declaration under subsection (1), the Minister must
have regard to the following matters:
(a) whether the facility is under the control of a person who is, or
of persons each of whom is:
(i) an ocean carrier; or
(ii) a person who provides services at the facility at the
request of an ocean carrier;
(b) whether the facility is used for either or both of the following
purposes:
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(i) assembling export cargoes for transport to a port
terminal located at the port where the cargoes are to be
loaded onto ships for export;
(ii) delivering imported cargoes to importers or their
representatives;
(c) any other matters that the Minister thinks are relevant.
(4) In making a declaration under subsection (1), the Minister must not
give preference (within the meaning of section 99 of the
Constitution) to one State or part of a State over another State or
part of a State.
(5) A declaration under subsection (1) has effect accordingly.
10.03 Designated shipper bodies
(1) If the Minister is of the opinion that an association represents the
interests, in relation to outwards liner cargo shipping services, of
Australian shippers generally, the Minister may, by legislative
instrument, declare that the association is a designated outwards
peak shipper body for the purposes of this Part.
(2) If the Minister is of the opinion:
(a) that an association represents the interests, in relation to
outwards liner cargo shipping services, of all or any of the
following kinds of persons:
(i) Australian shippers in a particular trade;
(ii) Australian shippers of particular kinds of goods;
(iii) shippers in a particular part of Australia;
(iv) producers of goods of a kind exported, or proposed to
be exported, from Australia; and
(b) that it is desirable that the association be a designated
outwards secondary shipper body for the purposes of this
Part;
the Minister may, by legislative instrument, declare that the
association is a designated outwards secondary shipper body for
the purposes of this Part.
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(2A) If the Minister is of the opinion that an association represents the
interests, in relation to inwards liner cargo shipping services, of
Australian shippers generally, the Minister may, by legislative
instrument, declare that the association is a designated inwards
peak shipper body for the purposes of this Part.
(2B) If the Minister is of the opinion:
(a) that an association represents the interests, in relation to
inwards liner cargo shipping services, of all or any of the
following kinds of persons:
(i) Australian shippers in a particular trade;
(ii) Australian shippers of particular kinds of goods;
(iii) shippers in a particular part of Australia; and
(b) that it is desirable that the association be a designated
inwards secondary shipper body for the purposes of this Part;
the Minister may, by legislative instrument, declare that the
association is a designated inwards secondary shipper body for the
purposes of this Part.
(3) Where the Minister declares that an association is a designated
outwards peak shipper body, a designated inwards peak shipper
body, a designated outwards secondary shipper body or a
designated inwards secondary shipper body for the purposes of this
Part, the Registrar shall enter particulars of the association in the
register of designated shipper bodies.
(4) The particulars entered in the register shall include whether the
association is a designated outwards peak shipper body, a
designated inwards peak shipper body, a designated outwards
secondary shipper body or a designated inwards secondary shipper
body.
(5) The Minister may, by legislative instrument, make guidelines to be
applied by the Registrar in the exercise of the Registrar’s powers to
nominate designated secondary shipper bodies for the purposes of
sections 10.29, 10.41 and 10.52.
(6) The Registrar shall enter particulars of any nomination of a
designated secondary shipper body for the purposes of
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section 10.29, 10.41 or 10.52 in the register of designated shipper
bodies.
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Section 10.04
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Division 2—Additional restrictive trade practice provisions
applying to ocean carriers
10.04 Application of section 46 in relation to conference agreements
(1) For the purposes of section 46, if the parties to a conference
agreement together have a substantial degree of power in a market
in which any party to the agreement provides international liner
cargo shipping services under the agreement, each party to the
conference agreement shall be taken to have a substantial degree of
power in the market.
(2) In subsection (1):
conference agreement means an agreement between members of a
conference in relation to international liner cargo shipping services
provided, or proposed to be provided, by them, and includes an
agreement that varies such an agreement.
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Section 10.06
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Division 3—Minimum standards for conference
agreements
10.06 Application of Australian law to outwards conference
agreements and withdrawal from agreements
(1) An outwards conference agreement must expressly provide for a
question arising under the agreement in relation to an outwards
liner cargo shipping service provided, or proposed to be provided,
under the agreement to be determined in Australia in accordance
with Australian law unless the parties and the Minister agree, in
writing, to the particular question being otherwise determined.
(2) An outwards conference agreement must expressly permit any
party to the agreement to withdraw from the agreement on
reasonable notice without penalty.
10.07 Minimum levels of shipping services to be specified in
conference agreements
(1) An outwards conference agreement must contain provisions
specifying the minimum level of outwards liner cargo shipping
services to be provided under the agreement.
(2) An inwards conference agreement must contain provisions
specifying the minimum level of inwards liner cargo shipping
services to be provided under the agreement.
Note: See also paragraph 10.33(1)(b) and section 10.72A.
10.08 Conference agreements may include only certain restrictive
trade practice provisions
(1) If a conference agreement includes a provision:
(aa) that is a provision where the following conditions are
satisfied in relation to the provision:
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(i) the purpose/effect condition set out in
subsection 44ZZRD(2);
(ii) the competition condition set out in
subsection 44ZZRD(4); or
(ab) that is a provision where the following conditions are
satisfied in relation to the provision:
(i) the purpose condition set out in subsection 44ZZRD(3);
(ii) the competition condition set out in
subsection 44ZZRD(4); or
(a) that is an exclusionary provision; or
(b) that has the purpose, or has or is likely to have the effect, of
substantially lessening competition (within the meaning of
section 45);
the provision, so far as it is covered by paragraph (aa), (ab), (a) or
(b), must either:
(c) deal only with the following matters:
(i) the fixing or other regulation of freight rates;
(ii) the pooling or apportionment of earnings, losses or
traffic;
(iii) the restriction or other regulation of the quantity or kind
of cargo to be carried by parties to the agreement;
(iv) the restriction or other regulation of the entry of new
parties to the agreement; or
(d) be necessary for the effective operation of the agreement and
of overall benefit to:
(i) in the case of an outwards conference agreement—
Australian exporters; or
(ii) in the case of an inwards conference agreement—
Australian importers.
(2) If a conference agreement includes a provision that permits or
requires the practice of exclusive dealing (within the meaning of
section 47), the provision, so far as it permits or requires that
practice, must be necessary for the effective operation of the
agreement and of overall benefit to:
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Section 10.09
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(a) in the case of an outwards conference agreement—Australian
exporters; or
(b) in the case of an inwards conference agreement—Australian
importers.
Note: See also paragraph 10.33(1)(ba) and section 10.72A.
(3) This section does not apply in relation to a provision of a
conference agreement so far as the provision requires or permits a
party to the agreement to enter into a loyalty agreement.
10.09 Where may consequences of conference agreements not
complying with minimum standards be found?
The consequences of a conference agreement not complying with
this Division are to be found in the following provisions:
(a) section 10.28 (decision on application for provisional
registration);
(b) section 10.33 (decision on application for final registration);
(c) section 10.45 (circumstances in which Minister may exercise
powers in relation to registered conference agreements).
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Section 10.10
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Division 4—Registers and files and public inspection of
them
10.10 Registers and conference agreement files open to public
inspection
(1) The registers and conference agreement files kept by the Registrar
and the Commission under this Part are open to public inspection.
(2) A person is entitled, on application to the Registrar or the
Commission, as the case requires, and payment of the prescribed
fee, to obtain a copy of the whole or any part of:
(a) an entry in a register kept under this Part; or
(b) a conference agreement file kept under this Part.
10.11 What registers are to be kept by the Registrar?
(1) The Registrar shall keep:
(a) a register of conference agreements; and
(b) a register of designated shipper bodies; and
(c) a register of non-conference ocean carriers with substantial
market power; and
(d) a register of obligations concerning unfair pricing practices;
and
(e) a register of ocean carrier agents; and
(f) a register of exemption orders.
(2) An entry in a register must contain such particulars as are
prescribed in relation to the register.
10.12 What conference agreement files are to be kept by the
Registrar?
(1) The Registrar shall keep a file, to be known as the conference
agreement file, for each conference agreement (other than a
varying conference agreement).
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Section 10.13
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(2) The conference agreement file for a conference agreement must
include:
(a) documents filed with the Registrar under Division 6 in
relation to the agreement or any relevant varying conference
agreement (other than any part of a document that is not open
to public inspection);
(b) abstracts accepted by the Registrar under section 10.36 in
relation to such documents (being abstracts of those parts of
the documents that are not open to public inspection); and
(c) notifications given to the Registrar under subsection 10.40(1)
or 10.43(1) in relation to the agreement or any relevant
varying conference agreement.
10.13 What register is to be kept by the Commission?
(1) The Commission shall keep a register of Commission
investigations.
(2) Subject to section 10.88, the register of Commission investigations
shall contain:
(a) references given to the Commission by the Minister under
subsections 10.47(1), 10.50(1), 10.57(1) and 10.63(1);
(b) particulars of decisions made by the Commission under
subsections 10.48(2), 10.48(2A) and 10.58(2) to hold
investigations;
(c) requests made to the Commission by the Minister under
subsections 10.48(3) and 10.58(3);
(d) documents given to the Commission in relation to
investigations by it under this Part;
(e) particulars of oral submissions made to the Commission in
relation to such investigations; and
(f) reports given to the Minister by the Commission in relation
to such investigations.
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Exemptions from certain restrictive trade practice prohibitions Division 5
Section 10.14
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Division 5—Exemptions from certain restrictive trade
practice prohibitions
Subdivision A—Exemptions relating to conference agreements
10.14 Exemptions apply only to certain activities
(1) Subject to this section, the exemptions provided by this
Subdivision apply only in relation to the following parts of an
outwards liner cargo shipping service or an inwards liner cargo
shipping service:
(a) the parts of the service that consist of the transport of the
cargo by sea;
(b) stevedoring services;
(c) activities that take place outside Australia.
(2) The exemptions provided by this Subdivision extend to the fixing
of charges for an inter-terminal transport service where the service
is part of an outwards liner cargo shipping service or an inwards
liner cargo shipping service.
(3) The exemptions provided by this Subdivision extend to the
determination of common terms and conditions for bills of lading
for use in relation to an outwards liner cargo shipping service or an
inwards liner cargo shipping service.
(4) To avoid doubt, the exemptions provided by this Subdivision do
not extend to any dealings between the parties to a conference
agreement and a person who provides ancillary services on behalf
of the provider of a scheduled cargo shipping service.
10.15 When do exemptions commence to apply in relation to
registered conference agreements?
(1) The exemptions provided by this Subdivision (other than
sections 10.17A and 10.18A) apply in relation to the operation of a
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registered outwards conference agreement only after the end of
30 days after the conference agreement is finally registered.
(2) The exemptions provided by this Subdivision (other than
sections 10.17A and 10.18A) apply in relation to the operation of a
registered inwards conference agreement only after whichever is
the later of the following times:
(a) the end of 30 days after the conference agreement is finally
registered;
(b) the commencement of Part 2 of Schedule 1 to the Trade
Practices Amendment (International Liner Cargo Shipping)
Act 2000.
10.16 Exemptions do not apply to variations of conference
agreement unless varying agreement registered
Where a registered conference agreement is varied or otherwise
affected by a varying conference agreement (other than an
agreement that consists solely of freight rate charges), the
exemptions provided by this Subdivision (other than
sections 10.17A and 10.18A) apply only in relation to the operation
of the registered conference agreement itself, and not that
agreement as varied or otherwise affected, unless the varying
conference agreement has been finally registered.
10.17 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ,
44ZZRK and 45
(1) Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the
making of a contract or arrangement, or the arriving at an
understanding, if:
(a) the contract, arrangement or understanding is a conference
agreement; and
(b) the parties apply for its provisional registration under this
Part within 30 days after the making of the contract or
arrangement or arriving at the understanding.
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(2) Sections 44ZZRG, 44ZZRK and 45 do not apply in relation to
conduct engaged in by a party to a registered conference agreement
so far as the conduct gives effect to a provision of the agreement in
relation to an outwards liner cargo shipping service or an inwards
liner cargo shipping service.
10.17A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ,
44ZZRK and 45 for freight rate agreements
(1) Sections 44ZZRF, 44ZZRJ and 45 do not apply to the making of
freight rate charges in a freight rate agreement if:
(a) the freight rates (including base freight rates, surcharges,
rebates and allowances) specified in the freight rate
agreement are for outwards liner cargo shipping services
provided under a single registered outwards conference
agreement after the end of 30 days after the last-mentioned
agreement is finally registered; and
(b) the parties to the freight rate agreement are the same as the
parties to the registered outwards conference agreement.
(2) Sections 44ZZRF, 44ZZRJ and 45 do not apply to the making of
freight rate charges in a freight rate agreement if:
(a) the freight rates (including base freight rates, surcharges,
rebates and allowances) specified in the freight rate
agreement are for inwards liner cargo shipping services
provided under a single registered inwards conference
agreement after whichever is the later of the following times:
(i) the end of 30 days after the last-mentioned agreement is
finally registered;
(ii) the commencement of Part 2 of Schedule 1 to the Trade
Practices Amendment (International Liner Cargo
Shipping) Act 2000; and
(b) the parties to the freight rate agreement are the same as the
parties to the registered inwards conference agreement.
(3) Sections 44ZZRG, 44ZZRK and 45 do not apply to conduct
engaged in by a party to a freight rate agreement, so far as the
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conduct gives effect to freight rate charges in the freight rate
agreement, if:
(a) the freight rates (including base freight rates, surcharges,
rebates and allowances) specified in the freight rate
agreement are for outwards liner cargo shipping services
provided under a single registered outwards conference
agreement after the end of 30 days after the last-mentioned
agreement is finally registered; and
(b) the parties to the freight rate agreement are the same as the
parties to the registered outwards conference agreement.
(4) Sections 44ZZRG, 44ZZRK and 45 do not apply to conduct
engaged in by a party to a freight rate agreement, so far as the
conduct gives effect to freight rate charges in the freight rate
agreement, if:
(a) the freight rates (including base freight rates, surcharges,
rebates and allowances) specified in the freight rate
agreement are for inwards liner cargo shipping services
provided under a single registered inwards conference
agreement after whichever is the later of the following times:
(i) the end of 30 days after the last-mentioned agreement is
finally registered;
(ii) the commencement of Part 2 of Schedule 1 to the Trade
Practices Amendment (International Liner Cargo
Shipping) Act 2000; and
(b) the parties to the freight rate agreement are the same as the
parties to the registered inwards conference agreement.
10.18 Exemption from section 47
(1) Section 47 does not apply in relation to conduct engaged in by a
party to a registered conference agreement so far as the conduct
gives effect to a provision of the agreement in relation to an
outwards liner cargo shipping service or an inwards liner cargo
shipping service.
(2) The exemption provided by subsection (1) does not apply in
relation to subsections 47(6) and (7).
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10.18A Exemptions from section 47 for freight rate agreements
(1) Section 47 does not apply to conduct engaged in by a party to a
freight rate agreement, so far as the conduct gives effect to freight
rate charges in the freight rate agreement, if:
(a) the freight rates (including base freight rates, surcharges,
rebates and allowances) specified in the freight rate
agreement are for outwards liner cargo shipping services
provided under a single registered outwards conference
agreement after the end of 30 days after the last-mentioned
agreement is finally registered; and
(b) the parties to the freight rate agreement are the same as the
parties to the registered outwards conference agreement.
(2) Section 47 does not apply to conduct engaged in by a party to a
freight rate agreement, so far as the conduct gives effect to freight
rate charges in the freight rate agreement, if:
(a) the freight rates (including base freight rates, surcharges,
rebates and allowances) specified in the freight rate
agreement are for inwards liner cargo shipping services
provided under a single registered inwards conference
agreement after whichever is the later of the following times:
(i) the end of 30 days after the last-mentioned agreement is
finally registered;
(ii) the commencement of Part 2 of Schedule 1 to the Trade
Practices Amendment (International Liner Cargo
Shipping) Act 2000; and
(b) the parties to the freight rate agreement are the same as the
parties to the registered inwards conference agreement.
(3) The exemptions provided by subsections (1) and (2) do not apply
in relation to subsections 47(6) and (7).
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Section 10.19
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Subdivision B—Exemptions relating to loyalty agreements
10.19 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ,
44ZZRK and 45
(1) Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the
making of a contract or arrangement, or the arriving at an
understanding, if the contract, arrangement or understanding is a
loyalty agreement.
(2) Sections 44ZZRG, 44ZZRK and 45 do not apply in relation to
conduct engaged in by a party to a loyalty agreement so far as the
conduct gives effect to a provision of the agreement in relation to
an outwards liner cargo shipping service or an inwards liner cargo
shipping service.
10.20 Exemption from section 47
(1) Section 47 does not apply in relation to conduct engaged in by a
party to a loyalty agreement in relation to another party to the
agreement so far as the conduct gives effect to a provision of the
agreement in relation to an outwards liner cargo shipping service or
an inwards liner cargo shipping service.
(2) The exemption provided by subsection (1) does not apply in
relation to subsections 47(6) and (7).
10.21 Exemptions cease to apply in relation to a shipper at the
shipper’s option
The exemptions provided by this Subdivision in relation to the
operation of a loyalty agreement cease to apply in relation to
conduct engaged in by an ocean carrier in relation to a shipper if
the shipper notifies, as prescribed, the Commission and each ocean
carrier who is a party to the agreement that the shipper no longer
wishes the exemptions to apply.
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Section 10.24
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Subdivision D—Other exemptions
10.24 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ,
44ZZRK, 45 and 47 in relation to certain negotiations
(1) Sections 44ZZRF, 44ZZRJ, 45 and 47 do not apply in relation to
conduct engaged in by an ocean carrier, conference, shipper or
designated shipper body so far as the conduct relates to the
determination of terms and conditions of loyalty agreements.
(2) Sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 do not
apply in relation to conduct engaged in by an ocean carrier,
conference, shipper or designated shipper body so far as the
conduct relates to the obligations of an ocean carrier under any of
the following provisions:
(a) section 10.29 (parties to conference agreement to negotiate
minimum level of shipping services after provisional
registration of agreement);
(b) section 10.41 (parties to registered conference agreement to
negotiate with certain designated shipper bodies etc.);
(c) section 10.52 (non-conference ocean carrier with substantial
market power to negotiate with certain designated shipper
bodies etc.).
(3) The exemptions provided by this section do not apply in relation to
subsections 47(6) and (7).
10.24A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ,
44ZZRK, 45 and 47 in relation to stevedoring contracts
(1) Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the
making of a stevedoring contract.
Note: For stevedoring contract, see subsection (5).
(2) Sections 44ZZRG, 44ZZRK, 45 and 47 do not apply in relation to
conduct engaged in by a party to a stevedoring contract so far as
the conduct gives effect to a provision of the contract.
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(3) Sections 44ZZRF, 44ZZRJ, 45 and 47 do not apply in relation to
conduct engaged in by an ocean carrier or a stevedoring operator
so far as the conduct relates to the determination of terms and
conditions of a stevedoring contract.
Note: For stevedoring operator, see subsection (5).
(3A) The exemptions provided by this section do not extend to any
dealings between stevedoring operators.
(4) The exemptions provided by this section do not apply in relation to
subsections 47(6) and (7).
(5) In this section:
stevedoring contract means a contract between:
(a) an ocean carrier; and
(b) a stevedoring operator;
under which the stevedoring operator provides, or arranges for the
provision of, stevedoring services to the ocean carrier in
connection with cargo transported on international liner cargo
shipping services provided by the ocean carrier.
stevedoring operator means a person who:
(a) provides, or proposes to provide; or
(b) arranges for the provision of, or proposes to arrange for the
provision of;
stevedoring services in connection with cargo transported on
international liner cargo shipping services.
ComLaw Authoritative Act C2015C00019
International liner cargo shipping Part X
Registration of conference agreements Division 6
Section 10.25
Competition and Consumer Act 2010 29
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 6—Registration of conference agreements
Subdivision A—Provisional registration
10.25 Application for provisional registration of conference
agreement
(1) The parties to a conference agreement may apply for its provisional
registration under this Part.
(2) The application must comply with the following provisions:
(a) subsections 10.26(1) and (2) (how application is to be made
and verified);
(b) section 10.27 (copy of agreement to be filed with application
etc.).
10.26 How application is to be made and verified
(1) An application for the provisional registration of a conference
agreement must be:
(a) in the appropriate prescribed form;
(b) made to the Registrar in accordance with the regulations; and
(c) accompanied by the appropriate prescribed fee.
(2) The application must comply with any regulations requiring its
verification (in whole or part) by or on behalf of the applicants.
(3) The application may be made by a party to the agreement on behalf
of the party and other parties to the agreement.
10.27 Copy of agreement to be filed with application etc.
(1) Subject to subsections (1A) and (1B), an application for the
provisional registration of a conference agreement must be
accompanied by:
ComLaw Authoritative Act C2015C00019
Part X International liner cargo shipping
Division 6 Registration of conference agreements
Section 10.27A
30 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(a) a complete copy of the agreement so far as it is in writing
(including all provisions of the agreement so far as they are
in writing); and
(b) a written memorandum that fully sets out the agreement so
far as it is not in writing (including all provisions of the
agreement so far as they are not in writing);
other than any parts of the agreement that relate to the minimum
level of:
(c) in the case of an outwards conference agreement—outwards
liner cargo shipping services to be provided under the
agreement or an outwards conference agreement that is
varied or otherwise affected by the agreement; or
(d) in the case of an inwards conference agreement—inwards
liner cargo shipping services to be provided under the
agreement or an inwards conference agreement that is varied
or otherwise affected by the agreement.
(1A) The copy of the agreement referred to in paragraph (1)(a) need not
include the freight rate charges in the agreement.
(1B) The written memorandum referred to in paragraph (1)(b) need not
include the freight rate charges in the agreement.
(2) A document that accompanies an application for the provisional
registration of a conference agreement must comply with any
regulations requiring its verification (in whole or part) by or on
behalf of the applicants.
10.27A Copy of conference agreement to be given to designated peak
shipper body
(1) If:
(a) the parties to an outwards conference agreement apply for its
provisional registration; and
(b) at the time of the application, there is a designated outwards
peak shipper body;
the parties must give the designated outwards peak shipper body a
copy of:
ComLaw Authoritative Act C2015C00019
International liner cargo shipping Part X
Registration of conference agreements Division 6
Section 10.28
Competition and Consumer Act 2010 31
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(c) the complete copy of the agreement referred to in
paragraph 10.27(1)(a); and
(d) the written memorandum referred to in
paragraph 10.27(1)(b);
as soon as practicable after the application is made.
(2) If:
(a) the parties to an inwards conference agreement apply for its
provisional registration; and
(b) at the time of the application, there is a designated inwards
peak shipper body;
the parties must give the designated inwards peak shipper body a
copy of:
(c) the complete copy of the agreement referred to in
paragraph 10.27(1)(a); and
(d) the written memorandum referred to in
paragraph 10.27(1)(b);
as soon as practicable after the application is made.
10.28 Decision on application for provisional registration
(1) If the Registrar is satisfied:
(a) that an application has properly been made for the
provisional registration of a conference agreement; and
(aa) in the case of an outwards conference agreement—that
subsection 10.27A(1) has been complied with, or does not
apply to the agreement; and
(ab) in the case of an inwards conference agreement—that
subsection 10.27A(2) has been complied with, or does not
apply to the agreement; and
(b) in the case of an outwards conference agreement—that the
agreement complies with section 10.06 (application of
Australian law to outwards conference agreements and
withdrawal from agreements) or, if the agreement varies or
otherwise affects another conference agreement, that the
other conference agreement as varied or affected complies
with that section; and
ComLaw Authoritative Act C2015C00019
Part X International liner cargo shipping
Division 6 Registration of conference agreements
Section 10.29
32 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(ba) in the case of an inwards conference agreement that was in
force at the commencement of this paragraph—that there are
no circumstances that, under the regulations, are taken to be
special circumstances for the purposes of this paragraph; and
(c) that provisional registration of the agreement is not prevented
by one or more of the following provisions:
(i) section 10.38 (application for registration to be returned
where request for confidentiality refused etc.);
(ii) section 10.39 (application also to be made for
registration of varying agreements);
(iii) subsection 10.40(1) (notification of happening of
affecting events prior to final registration etc.);
the Registrar shall, within 14 days after the making of the
application, provisionally register the agreement by entering in the
register of conference agreements:
(d) particulars of the agreement; and
(e) a notation to the effect that the agreement has been
provisionally registered.
(2) If the Registrar is not so satisfied, the Registrar shall, within that 14
day period, refuse to provisionally register the agreement.
(3) When the Registrar provisionally registers the agreement or refuses
to provisionally register the agreement, the Registrar shall
immediately notify the applicants.
(4) If the Registrar provisionally registers the agreement, the Registrar
must give the Commission a copy of:
(a) the complete copy of the agreement referred to in
paragraph 10.27(1)(a); and
(b) the written memorandum referred to in
paragraph 10.27(1)(b).
ComLaw Authoritative Act C2015C00019
International liner cargo shipping Part X
Registration of conference agreements Division 6
Section 10.29
Competition and Consumer Act 2010 33
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
10.29 Parties to conference agreement to negotiate minimum level of
shipping services after provisional registration of
agreement
(1) The parties to a provisionally registered outwards conference
agreement shall:
(a) take part in negotiations with the designated outwards peak
shipper bodies or, if there is not at that time a designated
outwards peak shipper body, the designated outwards
secondary shipper bodies nominated by the Registrar for the
purposes of the agreement for the purposes of this section, in
relation to the minimum level of outwards liner cargo
shipping services to be provided under the agreement
(including any provisions of the agreement that affect the
level of those services) and consider the matters raised, and
representations made, by the shipper bodies;
(b) if a shipper body requests the parties to make available for
the purposes of the negotiations any information reasonably
necessary for those purposes and itself makes available for
those purposes any such information requested by the
parties—make the information available to the shipper body;
and
(c) provide an authorised officer with such information as the
officer requires relating to the negotiations, notify an
authorised officer of meetings to be held in the course of the
negotiations, permit an authorised officer to be present at the
meetings, and consider suggestions made by an authorised
officer.
(1A) The parties to a provisionally registered inwards conference
agreement must:
(a) take part in negotiations with:
(i) the designated inwards peak shipper bodies; or
(ii) if there is not at that time a designated inwards peak
shipper body—the designated inwards secondary
shipper bodies nominated by the Registrar for the
ComLaw Authoritative Act C2015C00019
Part X International liner cargo shipping
Division 6 Registration of conference agreements
Section 10.29
34 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
purposes of the agreement for the purposes of this
section;
in relation to the minimum level of inwards liner cargo
shipping services to be provided under the agreement
(including any provisions of the agreement that affect the
level of those services) and consider the matters raised, and
representations made, by the shipper bodies; and
(b) if a shipper body requests the parties to make available for
the purposes of the negotiations any information reasonably
necessary for those purposes and itself makes available for
those purposes any such information requested by the
parties—make the information available to the shipper body;
and
(c) provide an authorised officer with such information as the
officer requires relating to the negotiations, notify an
authorised officer of meetings to be held in the course of the
negotiations, permit an authorised officer to be present at the
meetings, and consider suggestions made by an authorised
officer.
(1B) Subsections (1) and (1A) do not apply in relation to a conference
agreement unless, within 14 days after the provisional registration
of the agreement, the shipper bodies notify, as prescribed, the
Registrar and the parties to the agreement that they wish to have
negotiations in relation to the agreement.
(2) Subsections (1) and (1A) do not apply in relation to a conference
agreement if the shipper bodies notify, as prescribed, the Registrar
and the parties to the agreement that they do not wish to have
negotiations in relation to the agreement.
(3) The nomination of a designated secondary shipper body for the
purposes of a provisionally registered conference agreement must
be made by written notice given to the parties to the agreement.
ComLaw Authoritative Act C2015C00019
International liner cargo shipping Part X
Registration of conference agreements Division 6
Section 10.30
Competition and Consumer Act 2010 35
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Subdivision B—Final registration
10.30 Application for final registration of conference agreement
(1) The parties to a provisionally registered conference agreement may
apply for its final registration under this Part.
(2) The application must comply with the following provisions:
(a) subsections 10.31(1) and (2) (how application is to be made
and verified);
(b) section 10.32 (copy of agreement to be filed with application
etc.).
10.31 How application is to be made and verified
(1) An application for the final registration of a conference agreement
must be:
(a) in the appropriate prescribed form;
(b) made to the Registrar in accordance with the regulations; and
(c) accompanied by the appropriate prescribed fee.
(2) The application must comply with any regulations requiring its
verification (in whole or part) by or on behalf of the applicants.
(3) The application may be made by a party to the agreement on behalf
of the party and other parties to the agreement.
10.32 Copy of agreement to be filed with application etc.
(1) Subject to subsections (1A) and (1B), an application for the final
registration of a conference agreement must be accompanied by:
(a) a complete copy of the agreement so far as it is in writing
(including all provisions of the agreement so far as they are
in writing); and
(b) a written memorandum that fully sets out the agreement so
far as it is not in writing (including all provisions of the
agreement so far as they are not in writing).
ComLaw Authoritative Act C2015C00019
Part X International liner cargo shipping
Division 6 Registration of conference agreements
Section 10.33
36 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(1A) The copy of the agreement referred to in paragraph (1)(a) need not
include the freight rate charges in the agreement.
(1B) The written memorandum referred to in paragraph (1)(b) need not
include the freight rate charges in the agreement.
(2) A document that accompanies an application for the final
registration of a conference agreement must comply with any
regulations requiring its verification (in whole or part) by or on
behalf of the applicants.
10.33 Decision on application for final registration
(1) If the Registrar is satisfied:
(a) that an application has properly been made for the final
registration of a conference agreement; and
(b) any of the following subparagraphs applies:
(i) that the agreement complies with section 10.07
(minimum levels of shipping services to be specified in
conference agreements) or, if the agreement varies or
otherwise affects another conference agreement, that the
other conference agreement as varied or affected
complies with section 10.07;
(ii) that section 10.07 does not apply in relation to the
agreement because of an exemption order;
(iii) that the agreement is an inwards conference agreement
that was in force at the commencement of this
subparagraph; and
(ba) any of the following subparagraphs applies:
(i) that the agreement complies with section 10.08
(conference agreements may include only certain
restrictive trade practice provisions) or, if the agreement
varies or otherwise affects another conference
agreement, that the other conference agreement as
varied or affected complies with section 10.08;
(ii) that section 10.08 does not apply in relation to the
agreement because of an exemption order;
ComLaw Authoritative Act C2015C00019
International liner cargo shipping Part X
Registration of conference agreements Division 6
Section 10.33
Competition and Consumer Act 2010 37
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(iii) that the agreement is an inwards conference agreement
that was in force at the commencement of this
subparagraph; and
(c) in the case of an outwards conference agreement—that
subsection 10.29(1) (parties to conference agreement to
negotiate minimum level of shipping services after
provisional registration of agreement) has been complied
with, or does not apply, in relation to the agreement; and
(ca) in the case of an inwards conference agreement—that
subsection 10.29(1A) (parties to conference agreement to
negotiate minimum level of shipping services after
provisional registration of agreement) has been complied
with, or does not apply, in relation to the agreement; and
(d) that final registration of the agreement is not prevented by
one or more of the following provisions:
(i) section 10.38 (application for registration to be returned
where request for confidentiality refused etc.);
(ii) section 10.39 (application also to be made for
registration of varying conference agreements);
(iii) subsection 10.40(1) (notification of happening of
affecting events prior to final registration etc.);
the Registrar shall, within 14 days after the making of the
application, finally register the agreement by entering in the
register of conference agreements a notation to the effect that the
agreement has been finally registered.
(2) If the Registrar is not so satisfied, the Registrar shall, within that
14 day period, refuse to finally register the agreement.
(3) When the Registrar finally registers the agreement or refuses to
finally register the agreement, the Registrar shall immediately
notify the applicants.
(4) If the Registrar finally registers the agreement, the Registrar must
give the Commission a copy of:
(a) the complete copy of the agreement referred to in
paragraph 10.32(1)(a); and
ComLaw Authoritative Act C2015C00019
Part X International liner cargo shipping
Division 6 Registration of conference agreements
Section 10.34
38 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(b) the written memorandum referred to in
paragraph 10.32(1)(b).
Subdivision C—Confidentiality requests
10.34 Request for confidentiality
(1) An application for the provisional or final registration of a
conference agreement may include a request that a specified part of
the application, or of a document accompanying the application,
not be open to public inspection under this Part.
(2) If such a request is included in the application, the application must
include a statement of reasons in support of the request.
10.35 Abstract to accompany request for confidentiality
(1) Where a request is made under section 10.34 that a part of the
application in which the request is included, or of a document
accompanying the application, not be open to public inspection
under this Part, the application must be accompanied by an abstract
of the part of the application or other document in relation to which
the request is made.
(2) The abstract must:
(a) be in the appropriate prescribed form; and
(b) comply with any regulations requiring its verification (in
whole or part) by or on behalf of the applicants.
10.36 Examination of abstract
(1) Where:
(a) a request is properly made under section 10.34 that a part of a
document not be open to public inspection under this Part;
and
(b) the request is accompanied by an abstract of the part of the
document;
the Registrar shall first determine whether to accept the abstract.
ComLaw Authoritative Act C2015C00019
International liner cargo shipping Part X
Registration of conference agreements Division 6
Section 10.37
Competition and Consumer Act 2010 39
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(2) If the Registrar is satisfied:
(a) that the abstract adequately describes the scope of the part of
the document; and
(b) that the abstract complies with subsection 10.35(2);
the Registrar shall accept the abstract.
(3) If the Registrar is not so satisfied, the Registrar shall:
(a) refuse to accept the abstract; and
(b) refuse the request and immediately notify the applicants of
the decision.
10.37 Decision on request for confidentiality
(1) If:
(a) the Registrar is satisfied that a request has properly been
made under section 10.34 that a part of a document not be
open to public inspection under this Part;
(b) the Registrar has, under section 10.36, accepted an abstract
for the part of the document; and
(c) the Registrar is also satisfied, on the basis of the statement of
reasons in support of the request that is included in the
application for provisional or final registration of the
conference agreement concerned:
(i) in the case of an outwards conference agreement—that
granting the request would not disadvantage Australian
exporters; and
(ia) in the case of an inwards conference agreement—that
granting the request would not disadvantage Australian
importers; and
(ii) that the request is justified because disclosure of the part
of the document would disclose:
(A) trade secrets;
(B) information (other than trade secrets) having a
commercial value that would be, or could
reasonably be expected to be, destroyed or
diminished if the information were disclosed; or
ComLaw Authoritative Act C2015C00019
Part X International liner cargo shipping
Division 6 Registration of conference agreements
Section 10.38
40 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(C) any other information concerning a person in
relation to the person’s business or professional
affairs, or concerning the business, commercial
or financial affairs of an organisation or
undertaking, the disclosure of which would, or
could reasonably be expected to, unreasonably
affect the person adversely in relation to the
person’s lawful business or professional affairs
or the organisation or undertaking in relation to
its lawful business, commercial or financial
affairs;
the Registrar shall, within 14 days after the making of the request,
direct that the part of the document not be open to public
inspection under this Part.
(2) If the Registrar is not so satisfied, the Registrar shall, within that
14 day period, refuse the request and immediately notify the
applicants of the decision.
10.38 Application for registration to be returned where request for
confidentiality refused etc.
Where:
(a) an application for the provisional or final registration of a
conference agreement includes a request under section 10.34
that a part of a document not be open to public inspection
under this Part; and
(b) the request is refused by the Registrar;
the Registrar shall also refuse the application, and shall return the
application, and any documents that accompanied the application,
to the applicants.
Subdivision D—Miscellaneous
10.39 Application also to be made for registration of varying
conference agreements
(1) Subject to subsection (2), if:
ComLaw Authoritative Act C2015C00019
International liner cargo shipping Part X
Registration of conference agreements Division 6
Section 10.40
Competition and Consumer Act 2010 41
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(a) application has been made for the provisional or final
registration of a conference agreement (in this section called
the original agreement), but the original agreement has not
been finally registered; and
(b) another conference agreement that varies or otherwise affects
the original agreement is or has been made or arrived at;
the Registrar shall not provisionally or finally register the original
agreement unless application has been made for the provisional
registration of the other conference agreement.
(2) Subsection (1) does not apply if the conference agreement referred
to in paragraph (1)(b) consists solely of freight rate charges.
10.40 Notification of happening of affecting events prior to final
registration etc.
(1) If:
(a) application has been made for the provisional or final
registration of a conference agreement, but the agreement has
not been finally registered; and
(b) either of the following subparagraphs applies:
(i) the proposed operation of the conference agreement is
affected, or outwards liner cargo shipping services or
inwards liner cargo shipping services proposed to be
provided under the agreement are affected, by the
happening of an event or otherwise than by a varying
conference agreement;
(ii) parties to the conference agreement have made or
arrived at an agreement with other ocean carriers that
affects outwards liner cargo shipping services or
inwards liner cargo shipping services provided, or that
would, but for the agreement, have been provided, by
the other ocean carriers;
the Registrar shall not provisionally or finally register the original
agreement unless the parties to the agreement have notified the
Registrar of the matter.
(2) The notice must be:
ComLaw Authoritative Act C2015C00019
Part X International liner cargo shipping
Division 6 Registration of conference agreements
Section 10.40
42 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(a) in the appropriate prescribed form; and
(b) given to the Registrar in accordance with the regulations.
(3) The notice must comply with any regulations requiring its
verification (in whole or part).
(4) Where the parties to a conference agreement give a notice under
subsection (1), the Registrar may make such variations (if any) to
the particulars entered in the register of conference agreements in
relation to the agreement as the Registrar considers necessary or
desirable to take account of the notice.
ComLaw Authoritative Act C2015C00019
International liner cargo shipping Part X
Obligations of ocean carriers in relation to registered conference agreements Division 7
Section 10.41
Competition and Consumer Act 2010 43
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 7—Obligations of ocean carriers in relation to
registered conference agreements
10.41 Parties to registered conference agreement to negotiate with
certain designated shipper bodies etc.
(1) The parties to a registered conference agreement shall:
(a) take part in negotiations with a relevant designated shipper
body in relation to negotiable shipping arrangements
(including any provisions of the agreement that affect those
arrangements) whenever reasonably requested by the shipper
body, and consider the matters raised, and representations
made, by the shipper body;
(b) if the shipper body requests the parties to make available for
the purposes of the negotiations any information reasonably
necessary for those purposes and itself makes available for
those purposes any such information requested by the
parties—make the information available to the shipper body;
and
(c) provide an authorised officer with such information as the
officer requires relating to the negotiations, notify an
authorised officer of meetings to be held in the course of the
negotiations, permit an authorised officer to be present at the
meetings, and consider suggestions made by an authorised
officer.
(2) The parties to the agreement shall give each relevant designated
shipper body at least 30 days notice of any change in negotiable
shipping arrangements unless the shipper body agrees to a lesser
period of notice for the change.
(3) In this section:
eligible Australian contract means:
(a) a contract entered into in Australia; or
(b) a contract where questions arising under the contract are to
be determined in accordance with Australian law.
ComLaw Authoritative Act C2015C00019
Part X International liner cargo shipping
Division 7 Obligations of ocean carriers in relation to registered conference agreements
Section 10.41
44 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
freight rates includes base freight rates, surcharges, rebates and
allowances.
negotiable shipping arrangements:
(a) in relation to an outwards conference agreement—means the
arrangements for, or the terms and conditions applicable to,
outwards liner cargo shipping services provided, or proposed
to be provided, under the conference agreement (including,
for example, freight rates, charges for inter-terminal transport
services, frequency of sailings and ports of caln( � or
(b) in relation to an inwards conference agreement—means:
(i) the arrangements for, or the terms and conditions
applicable to, inwards liner cargo shipping services
provided, or proposed to be provided, under the
conference agreement (including, for example, freight
rates, charges for inter-terminal transport services,
frequency of sailings and ports of call), where those
arrangements or those terms and conditions, as the case
may be, are embodied in an eligible Australian contract;
or
(ii) the arrangements for, or the terms and conditions
applicable to, the parts of the inwards liner cargo
shipping services provided, or proposed to be provided,
under the conference agreement that consist of activities
that take place on land in Australia (including, for
example, terminal handling charges and charges for
inter-terminal transport services).
relevant designated shipper body:
(a) in relation to an outwards conference agreement—means:
(i) a designated outwards peak shipper body; or
(ii) a designated outwards secondary shipper body
nominated by the Registrar (by written notice given to
the parties to the agreement) for the purposes of the
agreement for the purposes of this section; or
(b) in relation to an inwards conference agreement—means:
(i) a designated inwards peak shipper body; or
ComLaw Authoritative Act C2015C00019
International liner cargo shipping Part X
Obligations of ocean carriers in relation to registered conference agreements Division 7
Section 10.42
Competition and Consumer Act 2010 45
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(ii) a designated inwards secondary shipper body nominated
by the Registrar (by written notice given to the parties to
the agreement) for the purposes of the agreement for the
purposes of this section.
10.42 Application to be made for registration of varying conference
agreements
(1) Subject to subsection (3), where a conference agreement that varies
or otherwise affects a registered conference agreement is made or
arrived at, application shall be made for its provisional registration.
(2) The application must be made within 30 days after the making of
or arriving at the agreement.
(3) Subsection (1) does not apply to a conference agreement that
consists solely of freight rate charges.
10.43 Parties to registered conference agreement to notify
happening of affecting events etc.
(1) Where:
(a) the operation, or proposed operation, of a registered
conference agreement is affected, or outwards liner cargo
shipping services or inwards liner cargo shipping services
provided, or proposed to be provided, under the agreement
are affected, by the happening of an event or otherwise than
by a varying conference agreement; or
(b) parties to a registered conference agreement make or arrive at
an agreement with other ocean carriers that affects outwards
liner cargo shipping services or inwards liner cargo shipping
services provided, or that would, but for the agreement, have
been provided, by the other ocean carriers;
the parties to the registered conference agreement shall notify the
Registrar of the matter.
(2) The notice must be:
(a) in the appropriate prescribed form; and
ComLaw Authoritative Act C2015C00019
Part X International liner cargo shipping
Division 7 Obligations of ocean carriers in relation to registered conference agreements
Section 10.43
46 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(b) given to the Registrar in accordance with the regulations
within 30 days after the operation, or proposed operation, of
the agreement is affected, the services are affected or the
agreement is made or arrived at, as the case may be.
(3) The notice must comply with any regulations requiring its
verification (in whole or part).
(4) Where the parties to a registered conference agreement give a
notice under subsection (1), the Registrar may make such
variations (if any) to the particulars entered in the register of
conference agreements in relation to the agreement as the Registrar
considers necessary or desirable to take account of the notice.
ComLaw Authoritative Act C2015C00019
International liner cargo shipping Part X
Powers of Minister in relation to registered conference agreements Division 8
Section 10.44
Competition and Consumer Act 2010 47
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 8—Powers of Minister in relation to registered
conference agreements
10.44 Powers exercisable by Minister in relation to registered
conference agreements etc.
(1) Subject to sections 10.45 and 10.46, the Minister may direct the
Registrar:
(a) to cancel the registration of a registered conference
agreement; or
(b) to cancel the registration of a registered conference
agreement so far as it relates to:
(i) a particular provision of the agreement;
(ii) a particular party to the agreement; or
(iii) particular conduct.
(2) Where the Minister gives a direction under subsection (1), the
Registrar shall immediately enter particulars of the direction in the
register of conference agreements.
(3) On the entry in the register of conference agreements of particulars
of a direction to cancel the registration of a registered conference
agreement, the exemptions provided by Subdivision A of
Division 5 cease to apply in relation to the agreement.
(4) On the entry in the register of conference agreements of particulars
of a direction to cancel the registration of a registered conference
agreement so far as it relates to a particular provision of the
agreement, the exemptions provided by Subdivision A of
Division 5 cease to apply in relation to the provision.
(5) On the entry in the register of conference agreements of particulars
of a direction to cancel the registration of a registered conference
agreement so far as it relates to a particular party to the agreement,
the exemptions provided by Subdivision A of Division 5 cease to
apply in relation to the party.
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Section 10.45
48 Competition and Consumer Act 2010
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(6) On the entry in the register of conference agreements of particulars
of a direction to cancel the registration of a registered conference
agreement so far as it relates to particular conduct, the exemptions
provided by Subdivision A of Division 5 cease to apply in relation
to conduct of that kind in relation to the agreement.
(7) A direction under subsection (1) must be given in writing, and the
Registrar shall serve a copy of the direction on the parties to the
conference agreement concerned.
(8) If:
(a) the Commission reports to the Minister under section 10.47
or 10.48 in relation to either or both of the matters referred to
in subparagraphs 10.45(1)(a)(viii) and (ix); and
(b) after taking the report into account, the Minister is satisfied
of either or both of those matters and decides to give a
direction under subsection (1);
the Minister must:
(c) prepare a statement about the decision; and
(d) cause:
(i) a copy of the statement; and
(ii) a copy of the Commission’s report;
to be laid before each House of the Parliament within 15
sittings days of that House after the decision was made.
10.45 Circumstances in which Minister may exercise powers in
relation to registered conference agreements
(1) The Minister shall not give a direction under subsection 10.44(1) in
relation to a registered conference agreement unless:
(a) the Minister is satisfied of one or more of the following
matters:
(i) in the case of an outwards conference agreement—that
the agreement does not comply with section 10.06
(application of Australian law to outwards conference
agreements and withdrawal from agreements);
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Section 10.45
Competition and Consumer Act 2010 49
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(ia) that section 10.07 (minimum levels of shipping services
to be specified in conference agreements) applies to the
agreement, and that the agreement does not comply with
that section;
(ib) that section 10.08 (conference agreements may include
only certain restrictive trade practice provisions) applies
to the agreement, and that the agreement does not
comply with that section;
(ii) that section 10.41 (parties to registered conference
agreement to negotiate with certain designated shipper
bodies etc.) applies to the parties to the agreement, and
that the parties have contravened, or propose to
contravene, that section;
(iia) that parties to the agreement have contravened, or
propose to contravene, subsection 10.43(1) (parties to
registered conference agreement to notify happening of
affecting events etc.);
(iii) that section 10.42 (application to be made for
registration of varying conference agreements) has not
been complied with in relation to a conference
agreement that varies or otherwise affects the
agreement;
(iv) that parties to the agreement have given effect to or
applied, or propose to give effect to or apply, the
agreement without due regard to the need for outwards
liner cargo shipping services or inwards liner cargo
shipping services provided under the agreement to be:
(A) efficient and economical; and
(B) provided at the capacity and frequency
reasonably required to meet the needs of
shippers who use, and shippers who may
reasonably be expected to need to use, the
services;
(v) in the case of an outwards conference agreement—that
parties to the agreement have given effect to or applied,
or propose to give effect to or apply, the agreement in a
manner that prevents or hinders an Australian flag
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Division 8 Powers of Minister in relation to registered conference agreements
Section 10.45
50 Competition and Consumer Act 2010
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shipping operator from engaging efficiently in the
provision of outwards liner cargo shipping services to
an extent that is reasonable;
(vi) that provisional or final registration of the agreement
was granted on the basis of a statement or information
that was false or misleading in a material particular;
(vii) that parties to the agreement have breached an
undertaking given by the parties to the agreement under
section 10.49;
(viii) that subsection (3) applies to parties to the agreement;
(ix) that subsection (4) applies to parties to the agreement;
and
(aa) if the Minister is satisfied of either or both of the matters
referred to in subparagraphs (1)(a)(viii) and (ix)—at least
21 days before giving the direction, the Minister served on
each party to the agreement a written notice of his or her
intention to give the direction; and
(b) the Minister has carried on or attempted to carry on, either
personally or through authorised officers, consultations with
the parties to the agreement directed at obtaining an
undertaking or action by the parties that would have made a
direction under subsection 10.44(1) unnecessary; and
(c) either of the following subparagraphs applies:
(i) the Commission has reported to the Minister under
section 10.47 or 10.48 in relation to matters referred to
in paragraph (a) of which the Minister is satisfied and
the Minister has taken the report into account;
(ii) the Minister is satisfied that the special circumstances of
the case make it desirable to give the direction before he
or she receives such a report from the Commission.
(2) For the purposes of subparagraph (1)(a)(v), in determining what is
reasonable, have regard to:
(a) the national interest; and
(b) the interests of the following:
(i) Australian shippers generally;
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Powers of Minister in relation to registered conference agreements Division 8
Section 10.45
Competition and Consumer Act 2010 51
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(ii) Australian shippers in a particular trade;
(iii) Australian shippers of particular kinds of goods;
(iv) shippers in a particular part of Australia; and
(c) any other relevant matters.
(3) This subsection applies to the parties to a registered conference
agreement if:
(a) the agreement includes a provision that is covered by
paragraph 10.08(1)(aa) or (b); and
(b) the parties to the agreement have engaged in conduct, or
propose to engage in conduct, to give effect to or apply the
provision; and
(c) that conduct or proposed conduct has not resulted in, or is
unlikely to result in, a benefit to the public that outweighs the
detriment to the public constituted by any lessening of
competition that:
(i) has resulted, or is likely to result, from the conduct; or
(ii) would result, or be likely to result, if the proposed
conduct were engaged in; and
(d) there are exceptional circumstances that warrant the giving of
a direction under subsection 10.44(1).
(4) This subsection applies to the parties to a registered conference
agreement if:
(a) the parties to the agreement have prevented, or are proposing
to prevent, the entry of a prospective party to the agreement;
and
(b) the prevention or proposed prevention is unreasonable; and
(c) the prevention or proposed prevention is contrary to the
interests of any or all of the following:
(i) Australian shippers generally;
(ii) Australian shippers in a particular trade;
(iii) Australian shippers of particular kinds of goods;
(iv) shippers in a particular part of Australia;
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Division 8 Powers of Minister in relation to registered conference agreements
Section 10.46
52 Competition and Consumer Act 2010
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(v) in the case of an outwards conference agreement—
producers of goods of a kind exported, or proposed to
be exported, from Australia.
10.46 Action to be taken where powers exercised by Minister
without first obtaining Commission report
(1) Where the Minister gives a direction under subsection 10.44(1)
before receiving a report under section 10.47 or 10.48 in relation to
matters referred to in paragraph 10.45(1)(a) of which the Minister
was satisfied before giving the direction, the Minister shall
immediately refer the matters to the Commission under
section 10.47.
(2) The Commission shall report to the Minister within a period of not
more than 60 days in relation to those matters and any other
matters that the Commission is then investigating under this
Division in relation to the conference agreement concerned.
(3) If, after taking the Commission’s report into account, the Minister
is satisfied of one or more of the matters referred to in
paragraph 10.45(1)(a), the Minister may, within 21 days after
receiving the Commission’s report, direct the Registrar not to take
action under subsection (4) in relation to the agreement, and may
also give such further directions under subsection 10.44(1) in
relation to the agreement as the Minister considers appropriate.
(4) The Registrar shall delete the particulars of the direction under
subsection 10.44(1) from the register of conference agreements at
the end of 21 days after the Minister receives the Commission’s
report unless the Minister has given a direction under
subsection (3) in relation to the agreement.
(5) On the deletion of the particulars of the direction, Subdivision A of
Division 5 applies in relation to the agreement to the extent to
which it would have applied but for the entry of the particulars.
(6) Subsection (1) shall not be taken by implication to limit the matters
that may be referred to the Commission under section 10.47.
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Section 10.47
Competition and Consumer Act 2010 53
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(7) A direction under subsection (3) must be given in writing, and the
Registrar must serve a copy of the direction on the parties to the
conference agreement concerned.
(8) If, after taking the Commission’s report into account:
(a) the Minister is satisfied of either or both of the matters
referred to in subparagraphs 10.45(1)(a)(viii) and (ix); and
(b) the Minister decides to give a direction under subsection (3);
the Minister must:
(c) prepare a statement about the decision; and
(d) cause:
(i) a copy of the statement; and
(ii) a copy of the Commission’s report;
to be laid before each House of the Parliament within 15
sittings days of that House after the decision was made.
10.47 Investigation and report by Commission on reference by
Minister
(1) The Minister may refer to the Commission for investigation and
report the question whether grounds exist for the Minister to be
satisfied in relation to a registered conference agreement of one or
more specified matters referred to in paragraph 10.45(1)(a).
(2) The Commission shall hold an investigation into the question and
report to the Minister.
(3) In its investigation, the Commission shall give special
consideration to any matters specified in the reference as matters to
be given special consideration by the Commission.
10.48 Investigation and report by Commission on own initiative or
on application by affected person
(1) A person affected by the operation of a registered conference
agreement may apply to the Commission for an investigation into
the question whether grounds exist for the Minister to be satisfied
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Section 10.48
54 Competition and Consumer Act 2010
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in relation to the agreement of one or more specified matters
referred to in paragraph 10.45(1)(a).
(2) If subsection (1) applies, the Commission may hold an
investigation into the question, and, if it decides to do so, it shall
inform the Minister of its decision and report to the Minister.
(2A) The Commission may, on its own initiative, hold an investigation
into the question whether grounds exist for the Minister to be
satisfied in relation to a registered conference agreement of either
or both of the matters referred to in subparagraphs 10.45(1)(a)(viii)
and (ix).
(2B) If subsection (2A) applies, the Commission must inform the
Minister of its decision to hold an investigation and report to the
Minister.
(3) In its investigation, the Commission shall give special
consideration to such matters (if any) as the Minister requests it to
give special consideration.
(4) A request under subsection (3) must be made in writing.
(5) Without limiting subsection (1), each of the following persons shall
be taken to be a person affected by the operation of a registered
conference agreement:
(a) a party to the agreement;
(b) a designated shipper body;
(c) in the case of an outwards conference agreement—an
Australian flag shipping operator;
(d) a shipper who uses, or may reasonably be expected to need to
use, outwards liner cargo shipping services or inwards liner
cargo shipping services provided, or proposed to be provided,
under the agreement;
(e) an association representing shippers who use, or may
reasonably be expected to need to use, such services.
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Section 10.49
Competition and Consumer Act 2010 55
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10.49 Undertakings by parties to registered conference agreement
(1) The parties to a registered conference agreement may, at any time,
offer to give an undertaking to do, or not to do, a specified act or
thing.
(2) The offer must be:
(a) in the appropriate prescribed form; and
(b) made to the Minister in accordance with the regulations.
(3) If the Minister accepts the offer, the Minister may do one or more
of the following:
(a) revoke any reference made to the Commission under
section 10.47 in relation to the agreement;
(b) direct the Commission, in writing, to cease holding any
investigation being held by it under section 10.48 in relation
to the agreement;
(c) revoke any direction given under subsection 10.44(1) in
relation to the agreement.
(4) If the Minister accepts the offer, the parties shall be taken to have
given the undertaking, and the Registrar shall immediately register
the undertaking by entering particulars of it in the register of
conference agreements.
(5) If the Minister revokes a direction given under subsection 10.44(1),
the Registrar shall immediately include in the register a notation to
the effect that the direction has been revoked.
(6) On the inclusion of the notation, Subdivision A of Division 5
applies in relation to the agreement to the extent to which it would
have applied but for the entry of the particulars of the direction.
10.49A Enforcement of undertakings
(1) A party to a registered conference agreement must not contravene
an undertaking given under section 10.49.
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Division 8 Powers of Minister in relation to registered conference agreements
Section 10.49A
56 Competition and Consumer Act 2010
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(2) Part VI applies in relation to subsection (1) as if that subsection
were a provision of Part IV.
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Obligations of non-conference ocean carriers with substantial market power Division 9
Section 10.50
Competition and Consumer Act 2010 57
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Division 9—Obligations of non-conference ocean carriers
with substantial market power
10.50 Investigations by Commission into market power of ocean
carriers
(1) The Minister may refer to the Commission for investigation and
report the question whether an ocean carrier has a substantial
degree of market power in the provision of outwards liner cargo
shipping services or inwards liner cargo shipping services on a
trade route otherwise than because the ocean carrier is a party to a
conference agreement.
(2) The Commission shall hold an investigation into the question and
report to the Minister.
(3) In its investigation, the Commission shall give special
consideration to any matters specified in the reference as matters to
be given special consideration by the Commission.
10.51 Determination by Minister of market power of ocean carriers
(1) Where:
(a) the Commission reports to the Minister under section 10.50
that an ocean carrier has a substantial degree of market power
in the provision of outwards liner cargo shipping services or
inwards liner cargo shipping services on a trade route
otherwise than because the ocean carrier is a party to a
conference agreement; or
(b) an ocean carrier agrees, in writing, to the Minister giving a
direction under this subsection in relation to the ocean carrier
in relation to a trade route;
the Minister may direct the Registrar to register the ocean carrier as
a non-conference ocean carrier with substantial market power in
relation to the trade route.
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Division 9 Obligations of non-conference ocean carriers with substantial market power
Section 10.52
58 Competition and Consumer Act 2010
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(2) Where the Minister gives a direction under subsection (1), the
Registrar shall immediately enter particulars of the ocean carrier
and the trade route in the register of non-conference ocean carriers
with substantial market power.
(3) A direction under subsection (1) must be in writing, and the
Registrar shall serve a copy of the direction on the ocean carrier
concerned.
10.52 Non-conference ocean carrier with substantial market power
to negotiate with certain designated shipper bodies etc.
(1) A registered non-conference ocean carrier with substantial market
power shall:
(a) take part in negotiations with a relevant designated shipper
body in relation to negotiable shipping arrangements
whenever reasonably requested by the shipper body, and
consider the matters raised, and representations made, by the
shipper body;
(b) if the shipper body requests the ocean carrier to make
available for the purposes of the negotiations any information
reasonably necessary for those purposes and itself makes
available for those purposes any such information requested
by the ocean carrier—make the information available to the
shipper body; and
(c) provide an authorised officer with such information as the
officer requires relating to the negotiations, notify an
authorised officer of meetings to be held in the course of the
negotiations, permit an authorised officer to be present at the
meetings, and consider suggestions made by an authorised
officer.
(2) The ocean carrier shall give each relevant designated shipper body
at least 30 days notice of any change in negotiable shipping
arrangements unless the shipper body agrees to a lesser period of
notice for the change.
(3) In this section:
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Obligations of non-conference ocean carriers with substantial market power Division 9
Section 10.52
Competition and Consumer Act 2010 59
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eligible Australian contract means:
(a) a contract entered into in Australia; or
(b) a contract where questions arising under the contract are to
be determined in accordance with Australian law.
freight rates includes base freight rates, surcharges, rebates and
allowances.
negotiable shipping arrangements means:
(a) the arrangements for, or the terms and conditions applicable
to, outwards liner cargo shipping services provided, or
proposed to be provided, by the ocean carrier on the relevant
trade route (including, for example, freight rates, charges for
inter-terminal transport services, frequency of sailings and
ports of caln( � or
(b) the arrangements for, or the terms and conditions applicable
to, inwards liner cargo shipping services provided, or
proposed to be provided, by the ocean carrier on the relevant
trade route (including, for example, freight rates, charges for
inter-terminal transport services, frequency of sailings and
ports of call), where those arrangements or those terms and
conditions, as the case may be, are embodied in an eligible
Australian contract; or
(c) the arrangements for, or the terms and conditions applicable
to, the parts of the inwards liner cargo shipping services
provided, or proposed to be provided, by the ocean carrier on
the relevant trade route that consist of activities that take
place on land in Australia (including, for example, terminal
handling charges and charges for inter-terminal transport
services).
relevant designated shipper body:
(a) in relation to negotiations connected with outwards liner
cargo shipping services—means:
(i) a designated outwards peak shipper body; or
(ii) a designated outwards secondary shipper body
nominated by the Registrar (by written notice given to
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Division 9 Obligations of non-conference ocean carriers with substantial market power
Section 10.53
60 Competition and Consumer Act 2010
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the ocean carrier) for the purposes of the relevant trade
route; or
(b) in relation to negotiations connected with inwards liner cargo
shipping services—means:
(i) a designated inwards peak shipper body; or
(ii) a designated inwards secondary shipper body nominated
by the Registrar (by written notice given to the ocean
carrier) for the purposes of the relevant trade route.
relevant trade route means the trade route specified in relation to
the ocean carrier in the register of non-conference ocean carriers
with substantial market power.
10.53 Non-conference ocean carrier with substantial market power
not to hinder Australian flag shipping operators etc.
(1) A registered non-conference ocean carrier with substantial market
power shall not prevent or hinder an Australian flag shipping
operator from engaging efficiently in the provision of outwards
liner cargo shipping services to an extent that is reasonable.
(2) For the purposes of subsection (1), in determining what is
reasonable, have regard to:
(a) the national interest; and
(b) the interests of the following:
(i) Australian shippers generally;
(ii) Australian shippers in a particular trade;
(iii) Australian shippers of particular kinds of goods;
(iv) shippers in a particular part of Australia; and
(c) any other relevant matters.
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Powers of Minister in relation to non-conference ocean carriers with substantial market
power Division 10
Section 10.54
Competition and Consumer Act 2010 61
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Division 10—Powers of Minister in relation to
non-conference ocean carriers with substantial
market power
10.54 Powers exercisable by Minister in relation to obligations of
non-conference ocean carriers with substantial market
power
(1) Subject to sections 10.55 and 10.56, the Minister may, by writing
served on a registered non-conference ocean carrier with
substantial market power, order the ocean carrier to comply with
any of the ocean carrier’s obligations under Division 9.
(2) Where the Minister makes an order under subsection (1), the
Registrar shall immediately enter particulars of the order in the
register of non-conference ocean carriers with substantial market
power.
10.55 Circumstances in which Minister may exercise powers
The Minister shall not make an order under subsection 10.54(1)
unless:
(a) the Minister is satisfied of either or both of the following
matters:
(i) that section 10.52 (non-conference ocean carrier with
substantial market power to negotiate with certain
designated shipper bodies etc.) applies to the ocean
carrier concerned, and that the ocean carrier has
contravened, or proposes to contravene, that section;
(ii) that the ocean carrier concerned has contravened, or
proposes to contravene, section 10.53 (non-conference
ocean carrier with substantial market power not to
hinder Australian flag shipping operators etc.);
(b) the Minister has carried on or attempted to carry on, either
personally or through authorised officers, consultations with
the ocean carrier directed at obtaining an undertaking or
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Division 10 Powers of Minister in relation to non-conference ocean carriers with
substantial market power
Section 10.56
62 Competition and Consumer Act 2010
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action by the ocean carrier that would have made an order
under subsection 10.54(1) unnecessary; and
(c) either of the following subparagraphs applies:
(i) the Commission has reported to the Minister under
section 10.57 or 10.58 in relation to matters referred to
in paragraph (a) of which the Minister is satisfied and
the Minister has taken the report into account;
(ii) the Minister is satisfied that the special circumstances of
the case make it desirable to make the order before he or
she receives such a report from the Commission.
10.56 Action to be taken where powers exercised by Minister
without first obtaining Commission report
(1) Where the Minister makes an order under subsection 10.54(1)
before receiving a report under section 10.57 or 10.58 in relation to
matters referred to in paragraph 10.55(a) of which the Minister was
satisfied before making the order, the Minister shall immediately
refer the matters to the Commission under section 10.57.
(2) The Commission shall report to the Minister within a period of not
more than 60 days in relation to those matters and any other
matters that the Commission is then investigating under this
Division in relation to the ocean carrier concerned.
(3) If, after taking the Commission’s report into account, the Minister
is satisfied of one or more of the matters referred to in
paragraph 10.55(a), the Minister may, within 21 days after
receiving the Commission’s report, direct the Registrar not to take
action under subsection (4) in relation to the ocean carrier, and may
also make such further orders under subsection 10.54(1) in relation
to the ocean carrier as the Minister considers appropriate.
(4) The Registrar shall delete the particulars of the order under
subsection 10.54(1) from the register of non-conference ocean
carriers with substantial market power at the end of 21 days after
the Minister receives the Commission’s report unless the Minister
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Section 10.57
Competition and Consumer Act 2010 63
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has given a direction under subsection (3) in relation to the ocean
carrier.
(5) Subsection (1) shall not be taken by implication to limit the matters
that may be referred to the Commission under section 10.57.
(6) A direction under subsection (3) must be given in writing, and the
Registrar must serve a copy of the direction on the ocean carrier.
10.57 Investigation and report by Commission on reference by
Minister
(1) The Minister may refer to the Commission for investigation and
report the question whether grounds exist for the Minister to be
satisfied in relation to a registered non-conference ocean carrier
with substantial market power of one or more specified matters
referred to in paragraph 10.55(a).
(2) The Commission shall hold an investigation into the question and
report to the Minister.
(3) In its investigation, the Commission shall give special
consideration to any matters specified in the reference as matters to
be given special consideration by the Commission.
10.58 Investigation and report by Commission on application by
affected person
(1) A person affected by the conduct of a registered non-conference
ocean carrier with substantial market power may apply to the
Commission for an investigation into the question whether grounds
exist for the Minister to be satisfied in relation to the ocean carrier
of one or more specified matters referred to in paragraph 10.55(a).
(2) The Commission may hold an investigation into the question, and,
if it decides to do so, it shall inform the Minister of its decision and
report to the Minister.
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Division 10 Powers of Minister in relation to non-conference ocean carriers with
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Section 10.59
64 Competition and Consumer Act 2010
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(3) In its investigation, the Commission shall give special
consideration to such matters (if any) as the Minister requests it to
give special consideration.
(4) A request under subsection (3) must be made in writing.
(5) Without limiting subsection (1), each of the following persons shall
be taken to be a person affected by the conduct of a registered
non-conference ocean carrier with substantial market power:
(a) a designated shipper body;
(b) in the case of an investigation relating to outwards liner cargo
shipping services—an Australian flag shipping operator;
(c) a shipper who uses, or may reasonably be expected to need to
use, outwards liner cargo shipping services or inwards liner
cargo shipping services provided, or proposed to be provided,
on the trade route specified in relation to the ocean carrier in
the register of non-conference ocean carriers with substantial
market power;
(d) an association representing shippers who use, or may
reasonably be expected to need to use, such services.
10.59 Undertakings by ocean carrier
(1) A registered non-conference ocean carrier with substantial market
power may, at any time, offer to give an undertaking to do, or not
to do, a specified act or thing.
(2) The offer must be:
(a) in the appropriate prescribed form; and
(b) made to the Minister in accordance with the regulations.
(3) If the Minister accepts the offer, the Minister may do one or more
of the following:
(a) revoke any reference made to the Commission under
section 10.57 in relation to the ocean carrier;
(b) direct the Commission, in writing, to cease holding any
investigation being held by it under section 10.58 in relation
to the ocean carrier;
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Powers of Minister in relation to non-conference ocean carriers with substantial market
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Section 10.60
Competition and Consumer Act 2010 65
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(c) revoke any order made under subsection 10.54(1) in relation
to the ocean carrier.
(4) If the Minister accepts the offer, the ocean carrier shall be taken to
have given the undertaking, and the Registrar shall immediately
register the undertaking by entering particulars of it in the register
of non-conference ocean carriers with substantial market power.
(5) If the Minister revokes an order made under subsection 10.54(1),
the Registrar shall immediately include in the register a notation to
the effect that the order has been revoked.
10.60 Enforcement of orders and undertakings
(1) An ocean carrier shall not contravene an order made under
subsection 10.54(1) or an undertaking given under section 10.59.
(2) Part VI applies in relation to subsection (1) as if that subsection
were a provision of Part IV.
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Division 11 Unfair pricing practices
Section 10.61
66 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 11—Unfair pricing practices
10.61 Powers exercisable by Minister in relation to pricing practices
etc.
(1) Subject to section 10.62, the Minister may, by writing served on an
ocean carrier, order the ocean carrier not to engage in a pricing
practice.
(2) Where the Minister makes an order under subsection (1), the
Registrar shall immediately enter particulars of the order in the
register of obligations concerning unfair pricing practices.
10.62 Circumstances in which Minister may exercise powers
The Minister shall not make an order under subsection 10.61(1)
unless:
(a) the Minister is satisfied:
(i) that the ocean carrier concerned has engaged in the
pricing practice concerned in relation to outwards liner
cargo shipping services or inwards liner cargo shipping
services provided on a particular trade route;
(ii) that the practice has resulted in the freight rates charged
by the ocean carrier for all or some outwards liner cargo
shipping services or inwards liner cargo shipping
services provided on the trade route being less than
normal freight rates for services of that kind (as
determined in accordance with section 10.66);
(iii) that the practice is of such a magnitude or such a
recurring or systematic character that it has prevented or
hindered, or threatens to prevent or hinder, the provision
of outwards liner cargo shipping services or inwards
liner cargo shipping services on the trade route that are:
(A) efficient and economical; and
(B) provided at the capacity and frequency
reasonably required to meet the needs of
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Unfair pricing practices Division 11
Section 10.63
Competition and Consumer Act 2010 67
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
shippers who use, and shippers who may
reasonably be expected to need to use, the
services; and
(iv) that the practice is contrary to the national interest (as
determined in accordance with section 10.67);
(b) the Minister has carried on or attempted to carry on, either
personally or through authorised officers, consultations with
the ocean carrier directed at obtaining an undertaking or
action by the ocean carrier that would have made an order
under subsection 10.61(1) unnecessary; and
(c) the Commission has reported to the Minister under
section 10.63 in relation to the ocean carrier in relation to
outwards liner cargo shipping services or inwards liner cargo
shipping services provided on the trade route and the
Minister has taken the report into account.
10.63 Investigation and report by Commission
(1) The Minister may, on the complaint of an affected person or
otherwise, refer to the Commission for investigation and report the
question whether grounds exist for the Minister to be satisfied, in
relation to an ocean carrier in relation to outwards liner cargo
shipping services or inwards liner cargo shipping services provided
on a trade route, of the matters referred to in paragraph 10.62(a).
(2) The Commission shall hold an investigation into the question and
report to the Minister.
(3) In its investigation, the Commission shall give special
consideration to any matters specified in the reference as matters to
be given special consideration by the Commission.
10.64 Undertakings not to engage in pricing practices
(1) An ocean carrier may, at any time, offer to give an undertaking:
(a) not to engage in a pricing practice; and
(b) to give the Registrar such information as the Registrar from
time to time requires (verified as the Registrar requires) for
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Division 11 Unfair pricing practices
Section 10.65
68 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
the purpose of ascertaining whether the ocean carrier is
engaging in, or has engaged in, the pricing practice.
(2) The offer must be:
(a) in the appropriate prescribed form; and
(b) made to the Minister in accordance with the regulations.
(3) If the Minister accepts the offer, the Minister may do either or both
of the following:
(a) revoke any reference made to the Commission under
subsection 10.63(1) in relation to the ocean carrier;
(b) revoke any order made under subsection 10.61(1) in relation
to the ocean carrier.
(4) If the Minister accepts the offer, the ocean carrier shall be taken to
have given the undertaking, and the Registrar shall immediately
register the undertaking by entering particulars of it in the register
of obligations concerning unfair pricing practices.
(5) If the Minister revokes an order made under subsection 10.61(1),
the Registrar shall immediately include in the register a notation to
the effect that the order has been revoked.
10.65 Enforcement of orders and undertakings
(1) An ocean carrier shall not contravene an order made under
subsection 10.61(1) or an undertaking given under section 10.64.
(2) Part VI applies in relation to subsection (1) as if that subsection
were a provision of Part IV.
10.66 Determination of normal freight rates for shipping services
(1) The normal freight rates for outwards liner cargo shipping services
or inwards liner cargo shipping services provided on a trade route
are, subject to subsection (2), the freight rates actually charged in
the ordinary course of shipping business for the same or similar
services on the same or a comparable trade route by ocean carriers
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Unfair pricing practices Division 11
Section 10.67
Competition and Consumer Act 2010 69
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who do not enjoy non-commercial advantages given by a
government (including a government of a foreign country).
(2) If such actual freight rates do not exist or it is not possible to
ascertain satisfactorily what they are, the normal freight rates for
the services may be determined by:
(a) comparing the costs of the ocean carrier concerned and
comparable ocean carriers who do not enjoy non-commercial
advantages given by a government (including a government
of a foreign country); and
(b) allowing reasonable margins of profit.
(3) The comparison shall:
(a) take into account all costs incurred in the ordinary course of
shipping business, whether the costs are fixed or variable;
and
(b) allow for reasonable overhead expenses.
10.67 Determination of whether practice contrary to national
interest
(1) In determining whether a pricing practice in relation to outwards
liner cargo shipping services is contrary to the national interest,
regard shall be had, in particular, to:
(a) the effect that the practice has had, or is likely to have, in
relation to:
(i) continued access by Australian exporters to outwards
liner cargo shipping services of adequate frequency and
reliability at freight rates that are internationally
competitive; and
(ii) stable access to export markets for exporters in all
States and Territories;
(b) the extent to which any advantages provided by the practice
or similar practices are enjoyed by competitors of Australian
exporters; and
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Division 11 Unfair pricing practices
Section 10.67
70 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(c) the effect that denial of any advantages provided by the
practice would have on the competitiveness of Australian
industries.
(2) Subsection (3) applies when determining whether a pricing practice
in relation to inwards liner cargo shipping services is contrary to
the national interest.
(3) Regard must be had, in particular, to the effect that the practice has
had, or is likely to have, in relation to continuous stable access by
Australian importers in all States and Territories to inwards liner
cargo shipping services that:
(a) are of adequate frequency and reliability; and
(b) are at freight rates that are internationally competitive.
ComLaw Authoritative Act C2015C00019
International liner cargo shipping Part X
Registration of ocean carrier agents Division 12
Section 10.68
Competition and Consumer Act 2010 71
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 12—Registration of ocean carrier agents
10.68 Ocean carrier who provides international liner cargo shipping
services to have registered agent
(1) Every ocean carrier who provides international liner cargo shipping
services shall, at all times, be represented for the purposes of this
Act by a person who:
(a) is an individual resident in Australia;
(b) has been appointed by the ocean carrier as the ocean carrier’s
agent for the purposes of this Act; and
(c) is specified in the register of ocean carrier agents as the ocean
carrier’s agent.
(2) An ocean carrier who, without reasonable excuse, contravenes
subsection (1) is guilty of an offence punishable, on conviction, by
a fine not exceeding:
(a) in the case of a natural person—$2,000; and
(b) in the case of a body corporate—$10,000.
10.69 Representation of ocean carrier by registered agent
(1) Everything done by or in relation to an ocean carrier’s registered
agent in that capacity shall, for the purposes of this Act, be taken to
be done by or in relation to the ocean carrier.
(2) Without limiting subsection (1), a document required or permitted
to be served on, or given to, an ocean carrier under or for the
purposes of this Act (including the process of any court) may be
served on, or given to, the ocean carrier by serving it on, or giving
it to, the ocean carrier’s registered agent.
(3) A document that is, under subsection (2), permitted to be served
on, or given to, an ocean carrier’s registered agent may be served
on, or given to, the agent by:
(a) delivering it to the agent personally; or
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Division 12 Registration of ocean carrier agents
Section 10.70
72 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(b) leaving it at, or sending it by pre-paid post to, the address for
service specified in relation to the agent in the register of
ocean carrier agents.
(4) Subsection (3) does not affect:
(a) the operation of any other law of the Commonwealth, or any
law of a State or Territory, that authorises the service of a
document otherwise than as provided in that subsection; or
(b) the power of a court to authorise service of a document
otherwise than as provided in that subsection.
10.70 Application by ocean carrier for registration of agent
(1) An ocean carrier may apply for the registration of a person as the
ocean carrier’s agent for the purposes of this Act.
(2) The person must:
(a) be an individual resident in Australia;
(b) have been appointed by the ocean carrier as the ocean
carrier’s agent for the purposes of this Act; and
(c) have an address for service in Australia.
(3) The application must be:
(a) made to the Registrar;
(b) made in the prescribed form and in accordance with the
regulations; and
(c) accompanied by the prescribed fee.
10.71 Registration of agent
(1) Where an ocean carrier properly applies under section 10.70 for the
registration of an agent, the Registrar shall register the agent by
entering particulars of the ocean carrier and the agent in the
register of ocean carrier agents.
(2) The particulars entered in the register must include:
(a) the name of the ocean carrier; and
(b) the name, and address for service, of the agent.
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Registration of ocean carrier agents Division 12
Section 10.72
Competition and Consumer Act 2010 73
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10.72 Change of agent etc.
(1) An ocean carrier may, by notice given to the Registrar:
(a) revoke the appointment of the ocean carrier’s registered
agent and, subject to subsection (2), appoint a new agent for
the purposes of this Act;
(b) change the address for service of the ocean carrier’s
registered agent to another address in Australia; or
(c) request the Registrar to vary any of the particulars entered in
the register of ocean carrier agents in relation to the ocean
carrier.
(2) A new agent appointed under paragraph (1)(a) must:
(a) be an individual resident in Australia; and
(b) have an address for service in Australia.
(3) A notice under paragraph (1)(a), (b) or (c):
(a) must be in the appropriate prescribed form;
(b) must be given to the Registrar in accordance with the
regulations; and
(c) may be expressed to take effect on and from a specified
future day.
(4) Where an ocean carrier properly gives a notice under
paragraph (1)(a) or (b), the Registrar shall immediately make such
variations to the particulars entered in the register of ocean carrier
agents in relation to the ocean carrier as are necessary to give effect
to the notice.
(5) Where an ocean carrier properly gives a notice under
paragraph (1)(c), the Registrar shall make such variations (if any)
to the particulars entered in the register of ocean carrier agents in
relation to the ocean carrier as the Registrar considers necessary or
desirable to give effect to the notice.
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Division 12A Exemption orders for inwards conference agreements etc.
Section 10.72A
74 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 12A—Exemption orders for inwards conference
agreements etc.
10.72A Exemption orders for inwards conference agreements etc.
(1) The Minister may, by legislative instrument, make an order
exempting:
(a) a specified inwards conference agreement; or
(b) specified inwards liner cargo shipping services; or
(c) specified conduct in relation to the provision, or proposed
provision, of inwards liner cargo shipping services;
from the scope of any or all of the eligible regulatory provisions.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(2) The Registrar must enter particulars of any order under
subsection (1) in the register of exemption orders.
(4) For the purposes of this section, each of the following provisions is
an eligible regulatory provision:
(a) subsection 10.07(2);
(b) section 10.08;
(c) paragraph 10.28(1)(ba);
(d) subsection 10.29(1A);
(e) section 10.40;
(f) section 10.41;
(g) section 10.43;
(h) subparagraph 10.45(1)(a)(iv);
(i) subsection 10.45(3);
(j) subsection 10.45(4);
(k) section 10.52;
(l) subparagraph 10.62(a)(i).
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Exemption orders for inwards conference agreements etc. Division 12A
Section 10.72B
Competition and Consumer Act 2010 75
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10.72B Criteria for making exemption order
(1) The Minister must not make an exemption order unless the
Minister is of the opinion that it is in the national interest to make
the order.
(2) For the purposes of subsection (1), in determining what is in the
national interest, the Minister must have regard to each of the
following:
(a) Australia’s international relations;
(b) Australia’s international obligations;
(c) any relevant principle of international law or practice;
(d) the interests of Australian exporters;
(e) the interests of Australian importers;
(f) any other relevant matters.
10.72C Duration of exemption order may be limited
(1) An exemption order may be expressed to be in force for a period
specified in the order.
(2) Subsection (1) does not prevent the revocation of an exemption
order in accordance with subsection 33(3) of the Acts
Interpretation Act 1901.
10.72D Conditions of exemption order
An exemption order may be expressed to be subject to such
conditions as are specified in the order.
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Division 13 General provisions relating to registers and conference agreement files
Section 10.73
76 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 13—General provisions relating to registers and
conference agreement files
10.73 Form of registers and conference agreement files
(1) The registers and conference agreement files kept by the Registrar
may be kept in such form (whether or not documentary form) as
the Registrar considers appropriate.
(2) The register of Commission investigations may be kept in such
form (whether or not documentary form) as the Commission
considers appropriate.
10.74 Deletion of entries wrongly existing in certain registers
Where the Registrar is satisfied that an entry wrongly exists in a
register kept by the Registrar, the Registrar shall delete the entry.
10.75 Deletion of obsolete entries in certain registers
Where the Registrar is satisfied that an entry in a register kept by
the Registrar is obsolete, the Registrar may delete the entry.
10.76 Correction of clerical errors and other mistakes in certain
registers etc.
Where the Registrar is satisfied that a clerical error or other
mistake exists in particulars entered in a register kept by the
Registrar or that matters included in particulars entered in a register
kept by the Registrar are obsolete, the Registrar may vary the
particulars for the purpose of correcting the error or mistake or
removing the obsolete matters.
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Administration Division 14
Section 10.77
Competition and Consumer Act 2010 77
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Division 14—Administration
10.77 Registrar of Liner Shipping
There shall be a Registrar of Liner Shipping.
10.78 Appointment of Registrar etc.
The Registrar shall be appointed by the Minister, and holds office
during the pleasure of the Minister.
10.79 Acting Registrar
The Minister may appoint a person to act as Registrar:
(a) during a vacancy in the office of Registrar (whether or not an
appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Registrar is
absent from duty or from Australia or is, for any other
reason, unable to perform the duties of the office.
10.80 Registrar and staff to be public servants
The Registrar, and any staff of the Registrar, shall be persons
engaged under the Public Service Act 1999.
10.81 Delegation by Minister
The Minister may, by signed writing, delegate to the Registrar, or
to a person occupying a specified office in the Department, all or
any of the Minister’s powers under or in relation to this Part (other
than powers under sections 10.02A and 10.03, subsections 10.06(1)
and 10.44(1), sections 10.46, 10.47, 10.48 and 10.50,
subsection 10.54(1), sections 10.56, 10.57 and 10.58,
subsection 10.61(1) and sections 10.63 and 10.72A).
ComLaw Authoritative Act C2015C00019
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Division 14 Administration
Section 10.82
78 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
10.82 Delegation by Registrar
The Registrar may, by signed writing, delegate to a person
occupying a specified office in the Department all or any of the
Registrar’s powers under this Part.
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International liner cargo shipping Part X
Review of decisions of Commission Division 14A
Section 10.82A
Competition and Consumer Act 2010 79
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 14A—Review of decisions of Commission
10.82A Review by Tribunal
(1) For the purposes of this section, each of the following decisions of
the Commission is a reviewable decision:
(a) a decision to refuse to hold an investigation under
subsection 10.48(2) or 10.58(2);
(b) a decision under section 10.88 to:
(i) exclude a document, or the particulars of a submission,
from the register of Commission investigations; or
(ii) refuse to exclude a document, or the particulars of a
submission, from the register of Commission
investigations.
(2) If the Commission makes a reviewable decision:
(a) a person whose interests are affected by the decision; or
(b) a designated shipper body;
may apply in writing to the Tribunal for a review of the decision.
(3) An application under this section for a review of a decision must be
made within 21 days after the Commission made the decision.
(4) If the Tribunal receives an application under this section for a
review of a decision, the Tribunal must review the decision.
10.82B Functions and powers of Tribunal
(1) On a review of a decision of the Commission of a kind mentioned
in section 10.82A, the Tribunal may make a decision affirming,
setting aside or varying the decision of the Commission and, for
the purposes of the review, may perform all the functions and
exercise all the powers of the Commission.
(2) A decision by the Tribunal affirming, setting aside or varying a
decision of the Commission is taken for the purposes of this Act
(other than this Division) to be a decision of the Commission.
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Division 14A Review of decisions of Commission
Section 10.82C
80 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(3) For the purposes of a review by the Tribunal, the member of the
Tribunal presiding at the review may require the Commission to
give such information, make such reports and provide such other
assistance to the Tribunal as the member specifies.
(4) For the purposes of a review, the Tribunal may have regard to any
information given, documents produced or evidence given to the
Commission in connection with the making of the decision to
which the review relates.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
10.82C Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the
Tribunal of a decision of the Commission of a kind mentioned in
section 10.82A.
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International liner cargo shipping Part X
Review of decisions of Minister Division 14B
Section 10.82D
Competition and Consumer Act 2010 81
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 14B—Review of decisions of Minister
10.82D Review by Tribunal
(1) For the purposes of this section, each of the following decisions of
the Minister is a reviewable decision:
(a) a decision to:
(i) give; or
(ii) refuse to give;
a direction under subsection 10.44(1), subsection 10.46(3),
paragraph 10.49(3)(b), subsection 10.51(1),
subsection 10.56(3) or paragraph 10.59(3)(b);
(b) a decision under section 10.49, 10.59 or 10.64 to:
(i) accept an offer; or
(ii) refuse to accept an offer;
(c) a decision under paragraph 10.49(3)(a), 10.59(3)(a) or
10.64(3)(a) to:
(i) revoke a reference; or
(ii) refuse to revoke a reference;
(d) a decision under paragraph 10.49(3)(c) to:
(i) revoke a direction; or
(ii) refuse to revoke a direction;
(e) a decision to:
(i) make; or
(ii) refuse to make;
an order under subsection 10.54(1) or 10.61(1);
(f) a decision under paragraph 10.59(3)(c) or 10.64(3)(b) to:
(i) revoke an order; or
(ii) refuse to revoke an order.
(2) If the Minister makes a reviewable decision:
(a) a person whose interests are affected by the decision; or
(b) a designated shipper body;
may apply in writing to the Tribunal for a review of the decision.
ComLaw Authoritative Act C2015C00019
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Division 14B Review of decisions of Minister
Section 10.82E
82 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(3) An application under this section for a review of a decision must be
made within 21 days after the Minister made the decision.
(4) If the Tribunal receives an application under this section for a
review of a decision, the Tribunal must review the decision.
10.82E Functions and powers of Tribunal
(1) On a review of a decision of the Minister of a kind mentioned in
section 10.82D, the Tribunal may make a decision affirming,
setting aside or varying the decision of the Minister and, for the
purposes of the review, may perform all the functions and exercise
all the powers of the Minister.
(2) A decision by the Tribunal affirming, setting aside or varying a
decision of the Minister is taken for the purposes of this Act (other
than this Division) to be a decision of the Minister.
(3) For the purposes of a review by the Tribunal, the member of the
Tribunal presiding at the review may request the Minister to give
such information, make such reports and provide such other
assistance to the Tribunal as the member specifies. The Minister
must comply with such a request.
(4) For the purposes of a review, the Tribunal may have regard to any
information given, documents produced or evidence given to the
Minister in connection with the making of the decision to which
the review relates.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
10.82F Modifying register after Tribunal review
(1) If:
(a) the Tribunal decides to set aside or vary a decision of the
Minister; and
(b) a register kept by the Registrar is not consistent with the
decision of the Tribunal;
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Review of decisions of Minister Division 14B
Section 10.82G
Competition and Consumer Act 2010 83
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the Minister must direct the Registrar to take such action, by way
of modifying the register, as is necessary to ensure that the register
is consistent with the Tribunal’s decision.
(2) The Registrar must comply with a direction under subsection (1).
(3) If, in accordance with subsection (2), the Registrar:
(a) deletes particulars of a direction under subsection 10.44(1)
from the register of conference agreements; or
(b) includes in the register of conference agreements a notation
to the effect that a direction under subsection 10.44(1) has
been set aside;
Subdivision A of Division 5 applies in relation to the conference
agreement concerned to the extent to which that Subdivision would
have applied but for the entry of the particulars of the direction.
10.82G Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the
Tribunal of a decision of the Minister of a kind mentioned in
section 10.82D.
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Division 15 Miscellaneous
Section 10.83
84 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 15—Miscellaneous
10.83 Act not to affect rights under Freedom of Information Act
Nothing in this Part affects a right that a person may have under
the Freedom of Information Act 1982.
10.84 Review of decisions of Registrar
(1) Application may be made to the Administrative Appeals Tribunal
for review of a reviewable decision.
(2) In subsection (1):
decision has the same meaning as in the Administrative Appeals
Tribunal Act 1975.
reviewable decision means a decision of the Registrar under this
Part, other than:
(a) a decision to provisionally or finally register a conference
agreement; or
(b) a decision as to the form of a register.
10.85 Statement to accompany notices of Registrar
(1) Where the Registrar makes a reviewable decision (within the
meaning of section 10.84) and gives to a person whose interests are
affected by the decision written notice of the making of the
decision, the notice must include:
(a) a statement to the effect that application may be made to the
Administrative Appeals Tribunal under the Administrative
Appeals Tribunal Act 1975 for review of a decision of the
Registrar under this Part; and
(b) a statement to the effect that a person who is entitled to apply
to the Administrative Appeals Tribunal for review of a
decision may, under section 28 of that Act, request a
statement that includes reasons for the decision.
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Miscellaneous Division 15
Section 10.86
Competition and Consumer Act 2010 85
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(2) Paragraph (1)(b) does not apply in relation to a case to which
subsection 28(4) of the Administrative Appeals Tribunal Act 1975
applies.
(3) A contravention of subsection (1) in relation to a decision does not
affect the validity of the decision.
10.86 Evidence
(1) A certificate signed by the Registrar stating any matter in relation
to the registration under this Part of an ocean carrier, ocean
carrier’s agent, conference agreement, direction, undertaking,
determination or order, or any other matter in relation to a register,
or conference agreement file, kept by the Registrar under this Part,
is prima facie evidence of the matter.
(2) Without limiting subsection (1), the matters that may be certified
under that subsection include:
(a) whether an ocean carrier, ocean carrier’s agent, conference
agreement, undertaking, determination or order is or is not
registered under this Part;
(b) the name and address for service of an ocean carrier’s agent;
and
(c) the provisions and other particulars of a conference
agreement, direction, undertaking, determination or order.
(3) A document purporting to be a certificate under subsection (1)
shall, unless the contrary is established, be taken to be such a
certificate and to have been properly given.
10.87 Notification by Commission of references etc.
The Commission may make public, in such manner as it considers
appropriate:
(a) receipt of references under subsections 10.47(1), 10.50(1),
10.57(1) and 10.63(1); and
(b) decisions made by it under subsections 10.48(2), 10.48(2A)
and 10.58(2) to hold investigations.
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10.88 Exclusion of documents etc. from register of Commission
investigations
(1) Where:
(a) a person gives a document to the Commission in relation to
an investigation; or
(b) a person makes an oral submission to the Commission in
relation to an investigation;
the person may, at the same time, request that the document, or the
particulars of the submission, be excluded from the register
because of the confidential nature of matters contained in the
document or submission.
(2) If the Commission is satisfied that the request is justified because
disclosure of matters contained in the document or submission
would disclose:
(a) trade secrets;
(b) information (other than trade secrets) having a commercial
value that would be, or could reasonably be expected to be,
destroyed or diminished if the information were disclosed; or
(c) any other information concerning a person in relation to the
person’s business or professional affairs, or concerning the
business, commercial or financial affairs of an organisation
or undertaking, the disclosure of which would, or could
reasonably be expected to, unreasonably affect the person
adversely in relation to the person’s lawful business or
professional affairs or the organisation or undertaking in
relation to its lawful business, commercial or financial
affairs;
the Commission shall exclude the document, or the particulars of
the submission, from the register.
(3) If:
(a) the Commission refuses a request to exclude a document
from the register; and
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(b) the person who gave the document requests the Commission
to return it;
the Commission shall return the document and, in that case,
paragraph 10.13(2)(d) does not apply in relation to the document.
(4) If:
(a) the Commission refuses a request to exclude the particulars
of an oral submission from the register; and
(b) the person who made the submission withdraws it;
paragraph 10.13(2)(e) does not apply in relation to the submission.
(5) If the Commission is satisfied that it is otherwise desirable to do
so, the Commission may exclude a document, or the particulars of
a submission, from the register.
(6) If a person makes a request under subsection (1), the document or
the particulars of the submission concerned must not be included in
the register until the Commission has dealt with the request.
(7) In this section:
document includes a part of a document.
investigation means an investigation under section 10.47, 10.48,
10.50, 10.57, 10.58 or 10.63.
register means the register of Commission investigations.
submission includes a part of a submission.
10.89 Disclosure of confidential information
(1) In this section:
court includes any tribunal, authority or person having power to
require the production of documents or the answering of questions.
give includes permit access to.
officer means a person who is or has been:
(a) the Registrar;
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(b) a member of the staff assisting the Registrar; or
(c) a person to whom powers under this Part have been delegated
by the Minister or the Registrar.
produce includes permit access to.
(2) This section applies in relation to information if the information
relates to a person and was obtained by an officer, either directly or
indirectly, from a part of a document filed with the Registrar, being
a part that is not open to public inspection.
(3) This section applies in relation to a part of a document filed with
the Registrar, being a part that is not open to public inspection.
(4) An officer shall not:
(a) make a record of any information to which this section
applies;
(b) divulge or communicate to a person any information to
which this section applies; or
(c) give a person a part of a document to which this section
applies;
unless the record is made, the information divulged or
communicated or the part of the document given:
(d) for the purposes of this Act; or
(e) in relation to the performance of a duty or the exercise of a
power under or in relation to this Act.
Penalty: $5,000 or imprisonment for 2 years, or both.
(5) Subsection (4) applies in relation to the divulging or
communicating of information whether directly or indirectly, but
does not apply in relation to the divulging or communicating of
information to, or the giving of a part of a document to, the
Minister.
(6) An officer shall not be required:
(a) to produce in a court a part of a document to which this
section applies; or
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(b) to divulge or communicate to a court any information to
which this section applies;
except so far as it is necessary to do so for the purposes of carrying
into effect the provisions of this Act.
10.90 Fees
(1) The regulations may prescribe fees for the purposes of this Part,
including fees payable on applications and requests made under
this Part.
(2) The regulations shall not fix fees exceeding:
(a) in the case of an application for provisional registration of a
conference agreement—$1,200; and
(b) in the case of an application for final registration of a
conference agreement—$700; and
(c) in the case of an application for the registration of a person as
an ocean carrier’s agent—$160; and
(ca) in the case of variation of the register of ocean carrier agents
following a notice under subsection 10.72(1)—$160; and
(d) in the case of an application to obtain a copy of, the whole or
any part of, an entry in a register kept under this Part or a
conference agreement file kept under this Part—$200.
10.91 Application of Part XID and section 155 to investigations
under Part
(1) Part XID and section 155 apply in relation to an investigation by
the Commission under this Part as if the investigation were an
investigation by the Commission relating to a matter that
constitutes, or may constitute, a contravention of this Act.
(2) Subsection (1) shall not be taken to limit by implication any
powers that the Commission has apart from that subsection.
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Part XI Application of the Australian Consumer Law as a law of the Commonwealth
Division 1 Preliminary
Section 130
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Part XI—Application of the Australian Consumer
Law as a law of the Commonwealth
Division 1—Preliminary
130 Definitions
In this Part:
associate: a person (the first person) is an associate of another
person if:
(a) the first person holds money or other property on behalf of
the other person; or
(b) if the other person is a body corporate—the first person is a
wholly-owned subsidiary (within the meaning of the
Corporations Act 2001) of the other person.
Australian Consumer Law means Schedule 2 as applied under
Subdivision A of Division 2 of this Part.
Chairperson has the same meaning as in subsection 4(1).
corporation has the same meaning as in subsection 4(1).
disclosure notice: see subsection 133D(3).
embargo notice: see subsection 135S(1).
embargo period for an embargo notice means the period specified
in the embargo notice under paragraph 135S(3)(c) or (d).
enforcement order: see paragraph 139D(1)(b).
Family Court Judge means a Judge of the Family Court (including
the Chief Judge, the Deputy Chief Judge, a Judge Administrator or
a Senior Judge).
Federal Court means the Federal Court of Australia.
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infringement notice means an infringement notice issued under
subsection 134A(1).
infringement notice compliance period: see subsection 134F(1).
infringement notice provision: see subsection 134A(2).
inspector means a person who is appointed as an inspector under
subsection 133(1).
listed corporation has the meaning given by section 9 of the
Corporations Act 2001.
member of the Commission has the same meaning as in
subsection 4(1).
occupational liability: see subsection 137(5).
personal injury includes:
(a) prenatal injury; and
(b) impairment of a person’s physical or mental condition; and
(c) disease;
but does not include an impairment of a person’s mental condition
unless the impairment consists of a recognised psychiatric illness.
person assisting: see subsection 135D(2).
professional standards law: see subsection 137(4).
proposed ban notice: see subsection 132(1).
proposed recall notice: see subsection 132A(1).
reckless conduct: see subsection 139A(5).
recreational services: see subsection 139A(2).
search-related powers: see subsections 135A(1) and (2).
search warrant means a warrant issued or signed under
section 135Z or 136.
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Division 1 Preliminary
Section 130A
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smoking has the same meaning as in the Tobacco Advertising
Prohibition Act 1992.
state of mind, of a person, includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the
person; and
(b) the person’s reasons for the person’s intention, opinion,
belief or purpose.
tobacco product has the same meaning as in the Tobacco
Advertising Prohibition Act 1992.
130A Expressions defined in Schedule 2
An expression has the same meaning in this Part as in Schedule 2.
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Division 2—Application of the Australian Consumer Law
as a law of the Commonwealth
Subdivision A—Application of the Australian Consumer Law
131 Application of the Australian Consumer Law in relation to
corporations etc.
(1) Schedule 2 applies as a law of the Commonwealth to the conduct
of corporations, and in relation to contraventions of Chapter 2, 3 or
4 of Schedule 2 by corporations.
Note: Sections 5 and 6 of this Act extend the application of this Part (and
therefore extend the application of the Australian Consumer Law as a
law of the Commonwealth).
(2) Without limiting subsection (1):
(a) section 21 of Schedule 2 also applies as a law of the
Commonwealth in relation to:
(i) a supply or possible supply of goods or services by any
person to a corporation (other than a listed public
company); or
(ii) an acquisition or possible acquisition of goods or
services from any person by a corporation (other than a
listed public company); and
(b) section 147 of Schedule 2 also applies as a law of the
Commonwealth to, and in relation to, a corporation as a
supplier referred to in that section; and
(c) Division 2 of Part 5-1 of Schedule 2 also applies as a law of
the Commonwealth to and in relation to a person if the other
person referred to in section 219 of Schedule 2 is a
corporation.
(3) The table of contents in Schedule 2 is additional information that is
not part of this Act. Information in the table may be added to or
edited in any published version of this Act.
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Division 2 Application of the Australian Consumer Law as a law of the
Commonwealth
Section 131A
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131A Division does not apply to financial services
(1) Despite section 131, this Division does not apply (other than in
relation to the application of Part 5-5 of Schedule 2 as a law of the
Commonwealth) to the supply, or possible supply, of services that
are financial services, or of financial products.
(2) Without limiting subsection (1):
(a) Part 2-1 of Schedule 2 and sections 34 and 156 of Schedule 2
do not apply to conduct engaged in in relation to financial
services; and
(b) Part 2-3 of Schedule 2 does not apply to, or in relation to:
(i) contracts that are financial products; or
(ii) contracts for the supply, or possible supply, of services
that are financial services; and
(c) if a financial product consists of or includes an interest in
land—the following provisions of Schedule 2 do not apply to
that interest:
(i) section 30;
(ii) paragraphs 32(1)(c) and (d) and (2)(c) and (d);
(iii) paragraphs 50(1)(c) and (d);
(iv) section 152;
(v) subparagraphs 154(1)(b)(iii) and (iv) and (2)(b)(iii) and
(iv);
(vi) subparagraphs 168(1)(b)(iii) and (iv); and
(d) sections 39 and 161 of Schedule 2 do not apply to:
(i) a credit card that is part of, or that provides access to, a
credit facility that is a financial product; or
(ii) a debit card that allows access to an account that is a
financial product.
131B Division does not apply to interim bans imposed by State or
Territory Ministers
Despite section 131, this Division does not apply to an interim ban
that is not imposed by the Commonwealth Minister.
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131C Saving of other laws and remedies
(1) This Part is not intended to exclude or limit the concurrent
operation of any law, whether written or unwritten, of a State or a
Territory.
(2) Section 73 of the Australian Consumer Law does not operate in a
State or a Territory to the extent necessary to ensure that no
inconsistency arises between:
(a) that section; and
(b) a provision of a law of the State or Territory that would, but
for this subsection, be inconsistent with that section.
(3) Despite subsection (1):
(a) if an act or omission of a person is both:
(i) an offence against this Part or the Australian Consumer
Law; and
(ii) an offence against a law of a State or a Territory; and
(b) the person is convicted of either of those offences;
he or she is not liable to be convicted of the other of those
offences.
(4) Except as expressly provided by this Part or the Australian
Consumer Law, nothing in this Part or the Australian Consumer
Law is taken to limit, restrict or otherwise affect any right or
remedy a person would have had if this Part and the Australian
Consumer Law had not been enacted.
Subdivision B—Effect of other Commonwealth laws on the
Australian Consumer Law
131D Effect of Part VIB on Chapter 5 of the Australian Consumer
Law
Chapter 5 of the Australian Consumer Law has effect subject to
Part VIB.
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Section 131E
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131E Application of the Legislative Instruments Act 2003
(1) The following instruments made under the Australian Consumer
Law by the Commonwealth Minister are to be made by legislative
instrument:
(a) a determination under subsection 66(1) (display notices);
(b) a notice under subsection 104(1) or 105(1) (safety standards);
(c) a notice under subsection 109(1) or (2) (interim bans);
(d) a notice under section 111 (extensions of interim bans);
(e) a notice under section 113 (revocation of interim bans);
(f) a notice under subsection 114(1) or (2) (permanent bans);
(g) a notice under section 117 (revocation of permanent bans);
(h) a notice under subsection 122(1) (recall notices);
(i) a notice under subsection 134(1) or 135(1) (information
standards).
(2) The following instruments made under the Australian Consumer
Law are not legislative instruments:
(a) an approval given under paragraph 106(5)(b) (approval to
export);
(b) an approval given under paragraph 118(5)(b) (approval to
export);
(c) a notice under subsection 128(3) (voluntary recalls);
(d) a notice under subsection 129(1) or (2) (safety warning
notices);
(e) a notice under subsection 130(1) (announcement of results of
an investigation);
(f) a notice under subsection 223(1) or (2) (public warning
notices).
(3) To avoid doubt, an instrument made under the Australian
Consumer Law by a responsible Minister who is not the
Commonwealth Minister, or a regulator that is not the
Commission, is not a legislative instrument.
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131F Section 4AB of the Crimes Act does not apply
Section 4AB of the Crimes Act 1914 does not apply to any
provision of this Part or the Australian Consumer Law.
131G Application of the Criminal Code
Corporate criminal responsibility
(1) Part 2.5 of the Criminal Code does not apply to an offence against
this Part or the Australian Consumer Law.
Mistake of fact defence
(2) Section 9.2 of the Criminal Code does not apply to an offence
against Chapter 4 of the Australian Consumer Law.
Note: Section 207 of the Australian Consumer Law provides a mistake of
fact defence for offences under Chapter 4 of the Australian Consumer
Law.
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Division 3 Conferences for proposed bans and recall notices
Section 132
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Division 3—Conferences for proposed bans and recall
notices
Subdivision A—Conference requirements before a ban or
compulsory recall
132 Commonwealth Minister must issue a proposed ban notice
(1) The Commonwealth Minister must issue a proposed ban notice if
the Commonwealth Minister proposes to impose an interim ban, or
a permanent ban:
(a) on consumer goods of a particular kind; or
(b) on product related services of a particular kind.
(2) Subsection (1) does not apply in relation to an interim ban if the
Commonwealth Minister has issued a notice under section 132J
certifying that the ban should be imposed without delay.
(3) The proposed ban notice must:
(a) be in writing; and
(b) be published on the internet; and
(c) set out a copy of a draft notice for the imposition of the
interim ban or permanent ban; and
(d) set out a summary of the reasons for the proposed imposition
of the ban; and
(e) invite any person who supplies, or proposes to supply:
(i) consumer goods of that kind; or
(ii) product related services of that kind;
to notify the Commission, in writing and within a period
specified in the notice, if the person wishes the Commission
to hold a conference in relation to the proposed imposition of
the ban.
(4) The period specified in the proposed ban notice under
paragraph (3)(e):
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(a) must be a period of at least 10 days, or such longer period as
the Commonwealth Minister specifies in the notice; and
(b) must not commence before the day on which the notice is
published.
(5) A proposed ban notice is not a legislative instrument.
132A Commonwealth Minister must issue a proposed recall notice
(1) The Commonwealth Minister must issue a proposed recall notice
if the Commonwealth Minister proposes to issue a recall notice for
consumer goods of a particular kind.
(2) Subsection (1) does not apply in relation to a recall notice if the
Commonwealth Minister has issued a notice under section 132J
certifying that the recall notice should be issued without delay.
(3) The proposed recall notice must:
(a) be in writing; and
(b) be published on the internet; and
(c) set out a copy of a draft recall notice; and
(d) set out a summary of the reasons for the proposed issue of the
recall notice; and
(e) invite any person who supplies, or proposes to supply,
consumer goods of that kind to notify the Commission, in
writing and within a period specified in the notice, if the
person wishes the Commission to hold a conference in
relation to the proposed issue of the recall notice.
(4) The period specified in the proposed recall notice under
paragraph (3)(e):
(a) must be a period of at least 10 days, or such longer period as
the Commonwealth Minister specifies in the notice; and
(b) must not commence before the day on which the notice is
published.
(5) A proposed recall notice is not a legislative instrument.
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Section 132B
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132B Commonwealth Minister to be notified if no person wishes a
conference to be held
(1) If no person notifies the Commission in accordance with a
proposed ban notice, or a proposed recall notice, that the person
wishes the Commission to hold a conference, the Commission
must, in writing, notify the Commonwealth Minister of that fact.
(2) A notice under subsection (1) is not a legislative instrument.
132C Notification of conference
(1) If one or more persons notify the Commission in accordance with a
proposed ban notice, or a proposed recall notice, that they wish the
Commission to hold a conference, the Commission must:
(a) appoint a day, time and place for the holding of the
conference; and
(b) give written notice to the Commonwealth Minister, and to
each person who so notified the Commission, of that day,
time and place.
(2) The day appointed must be at least 5 days, but not more than 14
days, after the end of the period:
(a) for a proposed ban notice—specified under
paragraph 132(3)(e); or
(b) for a proposed recall notice—specified under
paragraph 132A(3)(e).
(3) A notice under paragraph (1)(b) is not a legislative instrument.
132D Recommendation after conclusion of conference
(1) As soon as is practicable after the conclusion of a conference held
under this Subdivision in relation to the proposed imposition of an
interim ban or permanent ban, the Commission must:
(a) by written notice given to the Commonwealth Minister,
recommend that the Commonwealth Minister:
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(i) impose the ban in the same terms as the draft notice
referred to in paragraph 132(3)(c); or
(ii) impose the ban with such modifications to that notice as
are specified by the Commission; or
(iii) not impose the ban; and
(b) cause a copy of the notice given under paragraph (a) to be
given to each person who was present or represented at the
conference.
(2) As soon as is practicable after the conclusion of a conference held
under this Subdivision in relation to the proposed issue of a recall
notice, the Commission must:
(a) by written notice given to the Commonwealth Minister,
recommend that the Commonwealth Minister:
(i) issue the recall notice in the same terms as the draft
recall notice referred to in paragraph 132A(3)(c); or
(ii) issue the recall notice with such modifications to that
draft recall notice as are specified by the Commission;
or
(iii) not issue the recall notice; and
(b) cause a copy of the notice given under paragraph (a) to be
given to each person who was present or represented at the
conference.
(3) The Commonwealth Minister must:
(a) have regard to a recommendation made under
paragraph (1)(a) or (2)(a); and
(b) if he or she decides to act otherwise than in accordance with
the recommendation—the Commonwealth Minister must, by
written notice published on the internet, set out the reasons
for his or her decision.
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Section 132E
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Subdivision B—Conference requirements after an interim ban
is imposed
132E Opportunity for a conference after an interim ban has been
imposed by the Commonwealth Minister
(1) This section applies if:
(a) an interim ban on consumer goods of a particular kind, or on
product related services of a particular kind, is in force; and
(b) the interim ban was imposed by the Commonwealth
Minister; and
(c) before the ban was imposed, the Commonwealth Minister
published a notice under section 132J certifying that the
interim ban should be imposed without delay.
(2) The Commonwealth Minister must, by written notice published on
the internet, invite any person who supplied, or proposes to supply:
(a) consumer goods of that kind; or
(b) product related services of that kind;
to notify the Commission, in writing and within a period specified
in the notice, if the person wishes the Commission to hold a
conference in relation to the interim ban.
(3) The period specified in the notice under subsection (2):
(a) must be a period of at least 10 days, or such longer period as
the Commonwealth Minister specifies in the notice; and
(b) must not commence before the day on which the notice is
published.
(4) A notice under subsection (2) is not a legislative instrument.
132F Notification of conference
(1) If one or more persons notify the Commission in accordance with a
notice published under subsection 132E(2) that they wish the
Commission to hold a conference, the Commission must:
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(a) appoint a day, time and place for the holding of the
conference; and
(b) give written notice to the Commonwealth Minister, and to
each person who so notified the Commission, of that day,
time and place.
(2) The day appointed must be at least 5 days, but not more than 14
days, after the end of the period specified in the notice under
subsection 132E(2).
(3) A notice under paragraph (1)(b) is not a legislative instrument.
132G Recommendation after conclusion of conference
(1) As soon as is practicable after the conclusion of a conference held
under this Subdivision in relation to an interim ban, the
Commission must:
(a) by written notice given to the Commonwealth Minister,
recommend that the interim ban remain in force, be varied or
be revoked; and
(b) cause a copy of the notice to be given to each person who
was present or represented at the conference.
(2) The Commonwealth Minister must:
(a) have regard to a recommendation made under
paragraph (1)(a); and
(b) if he or she decides to act otherwise than in accordance with
the recommendation—the Commonwealth Minister must, by
written notice published on the internet, set out the reasons
for his or her decision.
Subdivision C—Conduct of conferences
132H Conduct of conferences
(1) At a conference held under Subdivision A or B of this Division:
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(a) the Commission must be represented by a member or
members of the Commission who are nominated by the
Chairperson; and
(b) each person who notified the Commission in accordance with
whichever of the following is applicable:
(i) a proposed ban notice;
(ii) a proposed recall notice;
(iii) a notice under subsection 132E(2);
is entitled to be present or to be represented; and
(c) any other person whose presence at the conference is
considered by the Commission to be appropriate is entitled to
be present or to be represented; and
(d) the Commonwealth Minister is, or a person or persons
nominated in writing by the Commonwealth Minister are,
entitled to be present; and
(e) the procedure to be followed must be as determined by the
Commission.
(2) The Commission must cause a record of the proceedings at the
conference to be kept.
(3) The Commission must, as far as is practicable, ensure that each
person who is entitled to be present, or who is representing such a
person, at the conference is given a reasonable opportunity at the
conference to present his or her case and in particular:
(a) to inspect any documents (other than a document that
contains particulars of a secret formula or process) which the
Commission proposes to consider for the purpose of making
a recommendation after the conclusion of the conference; and
(b) to make submissions in relation to those documents.
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Section 132J
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Subdivision D—Miscellaneous
132J Interim ban and recall notice without delay in case of danger to
the public
(1) If it appears to the Commonwealth Minister that consumer goods
of a particular kind create an imminent risk of death, serious illness
or serious injury, he or she may, by written notice published on the
internet, certify that:
(a) an interim ban on consumer goods of that kind should be
imposed without delay; or
(b) a recall notice for consumer goods of that kind should be
issued without delay.
(2) If it appears to the Commonwealth Minister that product related
services of a particular kind create an imminent risk of death,
serious illness or serious injury, he or she may, by written notice
published on the internet, certify that an interim ban on services of
that kind should be imposed without delay.
(3) If:
(a) the Commonwealth Minister publishes a notice under
subsection (1) or (2); and
(b) action of any kind has been taken under Subdivision A of this
Division in relation to the interim ban or recall notice, but no
recommendation has been made under section 132D;
the Commonwealth Minister may impose the interim ban, or issue
the recall notice, without regard to that action.
(4) A notice under subsection (1) or (2) is not a legislative instrument.
132K Copy of notices under this Division to be given to suppliers
(1) If the Commonwealth Minister:
(a) issues a proposed ban notice; or
(b) issues a proposed recall notice; or
(c) publishes a notice under subsection 132E(2); or
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(d) publishes a notice under subsection 132J(1) or (2);
he or she must cause a copy of the notice to be given to each
person who, to the knowledge of the Commonwealth Minister,
supplies the consumer goods, or the product related services, to
which the notice relates.
(2) The copy must be given:
(a) within 2 days after the publication or issue of the notice; or
(b) if it is not practicable to give the copy within that period—as
soon as practicable after the end of that period.
(3) A failure to comply with subsection (1) does not invalidate the
notice.
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Section 133
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Division 4—Enforcement
Subdivision A—Inspectors
133 Appointment of inspectors
(1) The Chairperson may, in writing, appoint a member of the staff
assisting the Commission as an inspector.
(2) The Chairperson must not appoint a person as an inspector unless
the Chairperson is satisfied that the person has suitable
qualifications and experience to exercise properly the powers of an
inspector.
(3) An inspector must, in exercising powers as an inspector, comply
with any directions of the Chairperson.
(4) If a direction under subsection (3) is given in writing, the direction
is not a legislative instrument.
133A Identity cards
(1) The Chairperson must issue an identity card to a person appointed
as an inspector.
Form of identity card
(2) The identity card must:
(a) be in the form prescribed by the regulations; and
(b) contain a recent photograph of the person.
Offence
(3) A person commits an offence if:
(a) the person has been issued with an identity card under
subsection (1); and
(b) the person ceases to be an inspector; and
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(c) the person does not, as soon as practicable after so ceasing,
return the identity card to the Chairperson.
Penalty: 1 penalty unit.
(4) An offence against subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Defence: card lost or destroyed
(5) Subsection (3) does not apply if the identity card was lost or
destroyed.
Note: A defendant bears an evidential burden in relation to the matter in this
subsection: see subsection 13.3(3) of the Criminal Code.
Inspector must carry card
(6) An inspector issued with an identity card under subsection (1) must
carry his or her identity card at all times when exercising powers as
an inspector.
Subdivision B—Premises to which the public is given access
133B Power to enter premises to which the public has access—
consumer goods
(1) An inspector may enter premises in or from which a person, in
trade or commerce, supplies consumer goods, if the public has
access to the premises at the time of entry, for the purpose of
ascertaining whether:
(a) any of those consumer goods will or may cause injury to any
person; or
(b) a reasonably foreseeable use (including a misuse) of those
consumer goods will or may cause injury to any person;
and remain on the premises for such a purpose while the public has
access to the premises.
(2) While on the premises, the inspector may:
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(a) take photographs of:
(i) any of those consumer goods; or
(ii) equipment used in the manufacturing, processing or
storage any of those consumer goods; and
(b) inspect, handle and measure any of those consumer goods;
and
(c) purchase any of those consumer goods.
133C Power to enter premises to which the public has access—
product related services
(1) An inspector may enter premises in or from which a person, in
trade or commerce, supplies product related services, if the public
has access to the premises at the time of entry, for the purposes of
ascertaining whether:
(a) as a result of any of those product related services being
supplied, any consumer goods will or may cause injury to
any person; or
(b) a reasonably foreseeable use (including a misuse) of any
consumer goods, to which any of those product related
services relate, will or may cause injury to any person as a
result of those services being supplied;
and remain on the premises for such a purpose while the public has
access to the premises.
(2) While on the premises, the inspector may:
(a) take photographs of:
(i) the premises; or
(ii) equipment used to supply any of those product related
services; and
(b) inspect, handle and measure such equipment; and
(c) purchase any of those product related services.
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Section 133D
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Subdivision C—Disclosure notices relating to the safety of
goods or services
133D Power to obtain information etc.
Consumer goods
(1) The Commonwealth Minister or an inspector may give a disclosure
notice to a person (the supplier) who, in trade or commerce,
supplies consumer goods of a particular kind if the person giving
the notice has reason to believe:
(a) that:
(i) consumer goods of that kind will or may cause injury to
any person; or
(ii) a reasonably foreseeable use (including a misuse) of
consumer goods of that kind will or may cause injury to
any person; and
(b) that the supplier is capable of giving information, producing
documents or giving evidence in relation to those consumer
goods.
Product related services
(2) The Commonwealth Minister or an inspector may give a disclosure
notice to a person (the supplier) who, in trade or commerce,
supplies product related services of a particular kind if the person
giving the notice has reason to believe:
(a) that:
(i) as a result of services of that kind being supplied,
consumer goods of a particular kind will or may cause
injury to any person; or
(ii) a reasonably foreseeable use (including a misuse) of
consumer goods of a particular kind, to which such
services relate, will or may cause injury to any person as
a result of such services being supplied; and
(b) that the supplier is capable of giving information, producing
documents or giving evidence in relation to those services.
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Section 133E
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Disclosure notice
(3) A disclosure notice is a written notice requiring the supplier:
(a) to give, in writing signed by the supplier, any such
information to the person specified in the notice:
(i) in the manner specified in the notice; and
(ii) within such reasonable time as is specified in the notice;
or
(b) to produce, in accordance with such reasonable requirements
as are specified in the notice, any such documents to the
person specified in the notice; or
(c) to appear before the person specified in the notice at such
reasonable time, and at such place, as is specified in the
notice:
(i) to give any such evidence, on oath or affirmation; and
(ii) to produce any such documents.
(4) The person specified in the notice may be:
(a) the Commonwealth Minister; or
(b) an inspector (whether or not that inspector gave the notice).
133E Self-incrimination
(1) A person is not excused from:
(a) giving information or evidence; or
(b) producing a document;
as required by a disclosure notice given to the person on the ground
that the information or evidence, or production of the document,
might tend to incriminate the person or expose the person to a
penalty.
(2) However, in the case of an individual:
(a) the information or evidence given, or the document
produced; and
(b) giving the information or evidence, or producing the
document;
are not admissible in evidence against the individual:
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(c) in any proceedings instituted by the individual; or
(d) in any criminal proceedings, other than proceedings against
the individual for an offence against section 133F or 133G.
133F Compliance with disclosure notices
(1) A person commits an offence if:
(a) the person is given a disclosure notice; and
(b) the person refuses or fails to comply with the notice.
Penalty:
(a) if the person is a body corporate—200 penalty units; or
(b) if the person is not a body corporate—40 penalty units.
(2) Subsection (1) does not apply if the person complies with the
disclosure notice to the extent to which the person is capable of
complying with the notice.
Note: A defendant bears an evidential burden in relation to the matter in this
subsection: see subsection 13.3(3) of the Criminal Code.
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
133G False or misleading information etc.
A person commits an offence if:
(a) the person gives information, evidence or a document in
purported compliance with a disclosure notice; and
(b) the person does so knowing that the information, evidence or
document is false or misleading in a material particular.
Penalty:
(a) if the person is a body corporate—300 penalty units; or
(b) if the person is not a body corporate—60 penalty units or
imprisonment for 12 months, or both.
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Section 133H
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Subdivision D—Court orders relating to the destruction etc. of
goods
133H Court orders relating to consumer goods that do not comply
with a safety standard etc.
(1) If a court is satisfied that:
(a) a person possesses or has control of consumer goods of a
particular kind; and
(b) any of the following apply:
(i) the consumer goods do not comply with a safety
standard that is in force for consumer goods of that kind
and the cause of that non-compliance cannot be
remedied;
(ii) a permanent ban on consumer goods of that kind is in
force;
(iii) a recall notice for consumer goods of that kind is in
force and a defect or dangerous characteristic of such
consumer goods identified in the notice cannot be
remedied;
the court may, on the application of an inspector, make an order of
a kind referred to in subsection (2).
(2) The court may make an order under subsection (1) authorising one
or more inspectors to do the following in accordance with any
requirements specified in the order:
(a) to enter the premises of the person that are specified in the
order;
(b) to search the premises for consumer goods of a kind specified
in the order;
(c) to seize any such consumer goods that are found at those
premises;
(d) to destroy or otherwise dispose of any such consumer goods
that are so seized.
(3) Before making an application under subsection (1), the inspector
must:
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(a) take reasonable steps to discover who has an interest in the
consumer goods; and
(b) if it is practicable to do so, notify each person whom the
inspector believes to have such an interest of the proposed
application.
(4) A person notified under subsection (3) is entitled to be heard in
relation to the application.
133J Recovery of reasonable costs of seizing, and destroying or
disposing of, consumer goods
(1) If an inspector seizes, and destroys or otherwise disposes of,
consumer goods in accordance with an order made under
subsection 133H(1):
(a) the person from whom the consumer goods were seized; or
(b) if that person is not entitled to possess the consumer goods—
the owner of the consumer goods;
is liable to pay an amount equal to the costs reasonably incurred by
the inspector in seizing, and in destroying or disposing of, the
consumer goods.
(2) An amount payable by a person under subsection (1):
(a) is a debt due by the person to the Commonwealth; and
(b) may be recovered by action in a court of competent
jurisdiction.
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Section 134
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Division 5—Infringement notices
134 Purpose and effect of this Division
(1) The purpose of this Division is to provide for the issue of an
infringement notice to a person for an alleged contravention of an
infringement notice provision as an alternative to proceedings for
an order under section 224 of the Australian Consumer Law.
(2) This Division does not:
(a) require an infringement notice to be issued to a person for an
alleged contravention of an infringement notice provision; or
(b) affect the liability of a person to proceedings under Chapter 4
or Part 5-2 of the Australian Consumer Law in relation to an
alleged contravention of an infringement notice provision if:
(i) an infringement notice is not issued to the person for the
alleged contravention; or
(ii) an infringement notice issued to a person for the alleged
contravention is withdrawn under section 134G; or
(c) prevent a court from imposing a higher penalty than the
penalty specified in the infringement notice if the person
does not comply with the notice.
134A Issuing an infringement notice
(1) If the Commission has reasonable grounds to believe that a person
has contravened an infringement notice provision, the Commission
may issue an infringement notice to the person.
(2) Each of the following provisions of the Australian Consumer Law
is an infringement notice provision:
(a) a provision of Part 2-2;
(b) a provision of Part 3-1 (other than subsection 32(1), 35(1) or
36(1), (2) or (3) or section 40 or 43);
(c) subsection 66(2);
(d) a provision of Division 2 of Part 3-2 (other than section 85);
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(e) a provision of Division 3 of Part 3-2 (other than
subsection 96(2));
(f) subsection 100(1) or (3), 101(3) or (4), 102(2) or 103(2);
(g) subsection 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2),
(3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6),
131(1), 132(1), 136(1), (2) or (3) or 137(1) or (2);
(h) subsection 221(1) or 222(1).
(3) The Commission must not issue more than one infringement notice
to the person for the same alleged contravention of the
infringement notice provision.
(4) The infringement notice does not have any effect if the notice:
(a) is issued more than 12 months after the day on which the
contravention of the infringement notice provision is alleged
to have occurred; or
(b) relates to more than one alleged contravention of an
infringement notice provision by the person.
134B Matters to be included in an infringement notice
An infringement notice must:
(a) be identified by a unique number; and
(b) state the day on which it is issued; and
(c) state the name and address of the person to whom it is issued;
and
(d) identify the Commission; and
(e) state how the Commission may be contacted; and
(f) give details of the alleged contravention by the person,
including:
(i) the date of the alleged contravention; and
(ii) the particular infringement notice provision that was
allegedly contravened; and
(g) state the maximum pecuniary penalty that the court could
order the person to pay under section 224 of the Australian
Consumer Law for the alleged contravention; and
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(h) specify the penalty that is payable in relation to the alleged
contravention; and
(i) state that the penalty is payable within the infringement
notice compliance period for the notice; and
(j) state that the penalty is payable to the Commission on behalf
of the Commonwealth; and
(k) explain how payment of the penalty is to be made; and
(l) explain the effect of sections 134D, 134E, 134F and 134G.
134C Amount of penalty
The penalty to be specified in an infringement notice that is to be
issued to a person, in relation to an alleged contravention of a
provision of the Australian Consumer Law, must be a penalty
equal to the amount worked out using the following table:
Amount of penalty
Item If the infringement notice is
for an alleged contravention
of one of the following
provisions of the Australian
Consumer Law ...
the amount is ...
1 a provision of Part 2-2 (a) if the person is a listed
corporation—600
penalty units; or
(b) if the person is a body
corporate other than a
listed corporation—60
penalty units; or
(c) if the person is not a
body corporate—12
penalty units.
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Amount of penalty
Item If the infringement notice is
for an alleged contravention
of one of the following
provisions of the Australian
Consumer Law ...
the amount is ...
2 a provision of Part 3-1 (other
than subsection 32(1), 35(1),
36(1), (2) or (3), section 40 or
43 or subsection 47(1))
(a) if the person is a listed
corporation—600
penalty units; or
(b) if the person is a body
corporate other than a
listed corporation—60
penalty units; or
(c) if the person is not a
body corporate—12
penalty units.
3 subsection 47(1) (a) if the person is a body
corporate—10 penalty
units; or
(b) if the person is not a
body corporate—2
penalty units.
4 subsection 66(2) (a) if the person is a body
corporate—55 penalty
units; or
(b) if the person is not a
body corporate—11
penalty units.
5 a provision of Division 2 of
Part 3-2 (other than
section 85)
(a) if the person is a body
corporate—60 penalty
units; or
(b) if the person is not a
body corporate—12
penalty units.
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Amount of penalty
Item If the infringement notice is
for an alleged contravention
of one of the following
provisions of the Australian
Consumer Law ...
the amount is ...
6 a provision of Division 3 of
Part 3-2 (other than
subsection 96(2))
(a) if the person is a body
corporate—55 penalty
units; or
(b) if the person is not a
body corporate—11
penalty units.
7 subsection 100(1) or (3) or
101(3) or (4)
(a) if the person is a body
corporate—20 penalty
units; or
(b) if the person is not a
body corporate—4
penalty units.
8 subsection 102(2) or 103(2) (a) if the person is a body
corporate—60 penalty
units; or
(b) if the person is not a
body corporate—12
penalty units.
9 subsection 106(1), (2), (3) or
(5), 107(1) or (2), 118(1), (2),
(3) or (5), 119(1) or (2)
(a) if the person is a listed
corporation—600
penalty units; or
(b) if the person is a body
corporate other than a
listed corporation—60
penalty units; or
(c) if the person is not a
body corporate—12
penalty units.
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Amount of penalty
Item If the infringement notice is
for an alleged contravention
of one of the following
provisions of the Australian
Consumer Law ...
the amount is ...
10 subsection 125(4) (a) if the person is a body
corporate—30 penalty
units; or
(b) if the person is not a
body corporate—6
penalty units.
11 subsection 127(1) or (2) (a) if the person is a listed
corporation—600
penalty units; or
(b) if the person is a body
corporate other than a
listed corporation—60
penalty units; or
(c) if the person is not a
body corporate—12
penalty units.
12 subsection 128(2) or (6),
131(1) or 132(1)
(a) if the person is a body
corporate—30 penalty
units; or
(b) if the person is not a
body corporate—6
penalty units.
13 subsection 136(1), (2) or (3)
or 137(1) or (2)
(a) if the person is a listed
corporation—600
penalty units; or
(b) if the person is a body
corporate other than a
listed corporation—60
penalty units; or
(c) if the person is not a
body corporate—12
penalty units.
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Amount of penalty
Item If the infringement notice is
for an alleged contravention
of one of the following
provisions of the Australian
Consumer Law ...
the amount is ...
14 subsection 221(1) (a) if the person is a body
corporate—30 penalty
units; or
(b) if the person is not a
body corporate—6
penalty units.
15 subsection 222(1) (a) if the person is a body
corporate—50 penalty
units; or
(b) if the person is not a
body corporate—10
penalty units.
134D Effect of compliance with an infringement notice
(1) This section applies if:
(a) an infringement notice for an alleged contravention of an
infringement notice provision is issued to a person; and
(b) the person pays the penalty specified in the infringement
notice within the infringement notice compliance period and
in accordance with the notice; and
(c) the infringement notice is not withdrawn under section 134G.
(2) The person is not, merely because of the payment, regarded as:
(a) having contravened the infringement notice provision; or
(b) having been convicted of an offence constituted by the same
conduct that constituted the alleged contravention of the
infringement notice provision.
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(3) No proceedings (whether criminal or civil) may be started or
continued against the person, by or on behalf of the
Commonwealth, in relation to:
(a) the alleged contravention of the infringement notice
provision; or
(b) an offence constituted by the same conduct that constituted
the alleged contravention.
134E Effect of failure to comply with an infringement notice
If:
(a) an infringement notice for an alleged contravention of an
infringement notice provision is issued to a person; and
(b) the person fails to pay the penalty specified in the
infringement notice within the infringement notice
compliance period and in accordance with the notice; and
(c) the infringement notice is not withdrawn under section 134G;
the person is liable to proceedings under Chapter 4 or Part 5-2 of
the Australian Consumer Law in relation to the alleged
contravention of the infringement notice provision.
134F Infringement notice compliance period for infringement notice
(1) Subject to this section, the infringement notice compliance period
for an infringement notice is the period of 28 days beginning on the
day after the day on which the infringement notice is issued by the
Commission.
(2) The Commission may extend, by notice in writing, the
infringement notice compliance period for the notice if the
Commission is satisfied that it is appropriate to do so.
(3) Only one extension may be given and the extension must not be for
longer than 28 days.
(4) Notice of the extension must be given to the person who was
issued the infringement notice.
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Section 134G
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(5) A failure to comply with subsection (4) does not affect the validity
of the extension.
(6) If the Commission extends the infringement notice compliance
period for an infringement notice, a reference in this Division to
the infringement notice compliance period for an infringement
notice is taken to be a reference to the infringement notice
compliance period as so extended.
134G Withdrawal of an infringement notice
Representations to the Commission
(1) The person to whom an infringement notice has been issued for an
alleged contravention of an infringement notice provision may
make written representations to the Commission seeking the
withdrawal of the infringement notice.
(2) Evidence or information that the person, or a representative of the
person, gives to the Commission in the course of making
representations under subsection (1) is not admissible in evidence
against the person or representative in any proceedings (other than
proceedings for an offence based on the evidence or information
given being false or misleading).
Withdrawal by the Commission
(3) The Commission may, by written notice (the withdrawal notice)
given to the person to whom an infringement notice was issued,
withdraw the infringement notice if the Commission is satisfied
that it is appropriate to do so.
(4) Subsection (3) applies whether or not the person has made
representations seeking the withdrawal.
Content of withdrawal notices
(5) The withdrawal notice must state:
(a) the name and address of the person; and
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(b) the day on which the infringement notice was issued to the
person; and
(c) that the infringement notice is withdrawn; and
(d) that proceedings under Chapter 4 or Part 5-2 of the
Australian Consumer Law may be started or continued
against the person in relation to:
(i) the alleged contravention of the infringement notice
provision; or
(ii) an offence constituted by the same conduct that
constituted the alleged contravention.
Time limit for giving withdrawal notices
(6) To be effective, the withdrawal notice must be given to the person
within the infringement notice compliance period for the
infringement notice.
Refunds
(7) If the infringement notice is withdrawn after the person has paid
the penalty specified in the infringement notice, the Commission
must refund to the person an amount equal to the amount paid.
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Search, seizure and entry Division 6
Section 135
Competition and Consumer Act 2010 125
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Division 6—Search, seizure and entry
Subdivision A—Powers of inspectors
135 Inspector may enter premises
Consumer goods
(1) If an inspector has reason to believe that:
(a) consumer goods of a particular kind will or may cause injury
to any person; or
(b) a reasonably foreseeable use (including a misuse) of
consumer goods of a particular kind will or may cause injury
to any person;
the inspector may, for the purposes of ascertaining the matter
referred to in paragraph (a) or (b):
(c) enter any premises in or from which the inspector has reason
to believe that a person supplies consumer goods of that kind
in trade or commerce; and
(d) exercise search-related powers in relation to the premises.
Product related services
(2) If an inspector has reason to believe that:
(a) as a result of product related services of a particular kind
being supplied, consumer goods of a particular kind will or
may cause injury to any person; or
(b) a reasonably foreseeable use (including a misuse) of
consumer goods of a particular kind, to which product related
services of a particular kind relate, will or may cause injury
to any person as a result of such services being supplied;
the inspector may, for the purposes of ascertaining the matter
referred to in paragraph (a) or (b):
(c) enter any premises in or from which the inspector has reason
to believe that a person supplies product related services of
that kind in trade or commerce; and
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Division 6 Search, seizure and entry
Section 135A
126 Competition and Consumer Act 2010
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(d) exercise search-related powers in relation to the premises.
Limitation on entry
(3) However, the inspector is not entitled to enter premises under
subsection (1) or (2) unless:
(a) the occupier of the premises has consented to the entry and
the inspector has shown his or her identity card if required by
the occupier; or
(b) the entry is made under a search warrant; or
(c) the entry is made in circumstances in which the exercise of
search-related powers is required without delay in order to
protect life or public safety.
Note: For requirements relating to the occupier’s consent, see section 135H.
135A Search-related powers of inspectors
Search-related powers—consumer goods
(1) The following are the search-related powers that an inspector may
exercise, under subsection 135(1), in relation to premises in or
from which the inspector has reason to believe that a person
supplies consumer goods of a particular kind:
(a) if entry to the premises is under a search warrant—the power
to seize consumer goods of that kind;
(b) the power to inspect, handle and measure consumer goods of
that kind;
(c) the power to take samples of consumer goods of that kind;
(d) the power:
(i) to inspect, handle and read any documents relating to
consumer goods of that kind; and
(ii) to make copies of, or take extracts from, those
documents;
(e) the power:
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Section 135A
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(i) to inspect, handle and measure equipment used in the
manufacturing, processing or storage of consumer
goods of that kind; and
(ii) if entry to the premises is under a search warrant—to
seize such equipment;
(f) the power to make any still or moving image or any
recording of:
(i) consumer goods of that kind; or
(ii) the premises; or
(iii) any equipment referred to in subparagraph (e)(i).
Search-related powers—product related services
(2) The following are the search-related powers that an inspector may
exercise, under subsection 135(2), in relation to premises in or
from which the inspector has reason to believe that a person
supplies product related services of a particular kind:
(a) the power:
(i) to inspect, handle and read any documents relating to
services of that kind; and
(ii) to make copies of, or take extracts from, those
documents;
(b) the power:
(i) to inspect, handle and measure equipment used to
supply services of that kind; and
(ii) if entry to the premises is under a search warrant—to
seize such equipment;
(c) the power to make any still or moving image or any
recording of:
(i) any consumer goods to which product related services
of that kind relate; or
(ii) the premises; or
(iii) any equipment referred to in subparagraph (b)(i).
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Division 6 Search, seizure and entry
Section 135B
128 Competition and Consumer Act 2010
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135B Inspector may ask questions and seek production of
documents
Entry with consent etc.
(1) If an inspector enters premises because the occupier of the
premises consents to the entry or in the circumstances referred to in
paragraph 135(3)(c), the inspector may ask the occupier to:
(a) answer any questions relating to the reasons for the inspector
entering the premises that are put by the inspector; and
(b) produce any document relating to the reasons for the
inspector entering the premises that is requested by the
inspector.
Entry under a search warrant
(2) If an inspector enters premises under a search warrant, the
inspector may require any person on the premises to:
(a) answer any questions relating to the reasons for the inspector
entering the premises that are put by the inspector; and
(b) produce any document relating to the reasons for the
inspector entering the premises that is requested by the
inspector.
135C Failure to answer questions or produce documents
(1) A person commits an offence if:
(a) the person is subject to a requirement under
subsection 135B(2); and
(b) the person fails to comply with the requirement.
Penalty:
(a) if the person is a body corporate—150 penalty units; or
(b) if the person is not a body corporate—30 penalty units.
(2) A person is not excused from:
(a) answering a question; or
(b) producing a document;
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Section 135D
Competition and Consumer Act 2010 129
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as required under subsection 135B(2) on the ground that the
answer, or production of the document, might tend to incriminate
the person or expose the person to a penalty.
(3) However, in the case of an individual:
(a) the answer, or the document produced; and
(b) giving the answer, or producing the document;
are not admissible in evidence against the individual in any
criminal proceedings other than:
(c) proceedings for any offence against subsection (1); or
(d) proceedings for an offence based on the answer or document
being false or misleading; or
(e) proceedings for an offence based on the obstruction of public
officials.
(4) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
135D Persons assisting inspectors
Inspectors may be assisted by other persons
(1) An inspector may, in entering premises under section 135 and in
exercising search-related powers in relation to the premises, be
assisted by other persons if that assistance is necessary and
reasonable.
(2) A person giving such assistance is a person assisting the inspector.
Powers of a person assisting the inspector
(3) A person assisting the inspector may:
(a) enter the premises; and
(b) exercise search-related powers in relation to the premises, but
only in accordance with a direction given to the person by the
inspector.
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Division 6 Search, seizure and entry
Section 135E
130 Competition and Consumer Act 2010
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(4) A power exercised by a person assisting the inspector as mentioned
in subsection (3) is taken for all purposes to have been exercised by
the inspector.
135E Use of force in executing a search warrant
In executing a search warrant, an inspector executing the warrant
may use such force against persons and things as is necessary and
reasonable in the circumstances.
135F Announcement before entry under warrant
(1) An inspector must, before entering premises under a search
warrant:
(a) announce that he or she is authorised to enter the premises;
and
(b) show his or her identity card to the occupier of the premises,
or to another person who apparently represents the occupier,
if the occupier or other person is present at the premises; and
(c) give any person at the premises an opportunity to allow entry
to the premises.
(2) However, an inspector is not required to comply with
subsection (1) if he or she believes on reasonable grounds that
immediate entry to the premises is required:
(a) to ensure the safety of a person (including the inspector or a
person assisting the inspector); or
(b) to ensure that the effective execution of the warrant is not
frustrated.
(3) If:
(a) the inspector does not comply with subsection (1) because of
subsection (2); and
(b) the occupier of the premises, or another person who
apparently represents the occupier, is present at the premises;
the inspector must, as soon as practicable after entering the
premises, show his or her identity card to the occupier or other
person.
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Section 135G
Competition and Consumer Act 2010 131
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135G Inspector must be in possession of search warrant
If a search warrant is being executed in relation to premises, an
inspector executing the warrant must be in possession of:
(a) the warrant issued under section 135Z or a copy of that
warrant; or
(b) the form of warrant completed under subsection 136(7), or a
copy of that form.
Subdivision B—Obligations of inspectors
135H Consent
(1) An inspector must, before obtaining the consent of an occupier of
premises for the purposes of paragraph 135(3)(a), inform the
occupier that the occupier may refuse consent.
(2) A consent has no effect unless the consent is voluntary.
(3) If an inspector enters premises because the occupier of the
premises consented to the entry, the inspector, and a person
assisting the inspector, must leave the premises if the consent
ceases to have effect.
135J Details of search warrant etc. must be given to the occupier of
the premises
If:
(a) a search warrant is being executed in relation to premises;
and
(b) the occupier of the premises, or another person who
apparently represents the occupier, is present at the premises;
an inspector executing the warrant must, as soon as practicable:
(c) do one of the following:
(i) if the warrant was issued under section 135Z—make a
copy of the warrant available to the occupier or other
person (which need not include the signature of the
judge who issued it);
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Division 6 Search, seizure and entry
Section 135K
132 Competition and Consumer Act 2010
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(ii) if the warrant was signed under section 136—make a
copy of the form of warrant completed under
subsection 136(7) available to the occupier or other
person; and
(d) inform the occupier or other person of the rights and
responsibilities of the occupier or other person under
Subdivision C.
Subdivision C—Occupier’s etc. rights and responsibilities
135K Occupier etc. entitled to observe execution of search warrant
(1) If:
(a) a search warrant is being executed in relation to premises;
and
(b) the occupier of the premises, or another person who
apparently represents the occupier, is present at the premises;
the occupier or other person is entitled to observe the execution of
the warrant.
(2) The right to observe the execution of the search warrant ceases if
the occupier or other person impedes that execution.
(3) This section does not prevent the execution of the search warrant in
2 or more areas of the premises at the same time.
135L Occupier etc. to provide inspector etc. with facilities and
assistance
(1) A person commits an offence if:
(a) the person is:
(i) the occupier of premises to which a search warrant
relates; or
(ii) another person who apparently represents the occupier
of those premises; and
(b) the person fails to provide:
(i) an inspector executing the warrant; and
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Section 135M
Competition and Consumer Act 2010 133
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(ii) a person assisting the inspector;
with all reasonable facilities and assistance for the effective
exercise of their powers.
Penalty:
(a) if the person is a body corporate—600 penalty units; or
(b) if the person is not a body corporate—120 penalty units or
imprisonment for 2 years, or both.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
135M Receipts for seized consumer goods and equipment
(1) If consumer goods are seized under a search warrant, an inspector
must provide a receipt for the goods.
(2) If equipment is seized under a search warrant, an inspector must
provide a receipt for the equipment.
(3) One receipt may cover:
(a) consumer goods and equipment that have been so seized; and
(b) 2 or more kinds of consumer goods or equipment that have
been so seized.
135N Return of seized consumer goods and equipment
(1) Subject to any order under section 135P, if an inspector seizes
consumer goods or equipment under a search warrant, the inspector
must take reasonable steps to return the consumer goods or
equipment if:
(a) the reason for the seizure no longer exists; or
(b) the period of 60 days after the seizure ends;
whichever happens first.
(2) Subsection (1) does not apply if:
(a) the consumer goods are, or the equipment is, forfeited or
forfeitable to the Commonwealth; or
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Division 6 Search, seizure and entry
Section 135P
134 Competition and Consumer Act 2010
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(b) the consumer goods are, or the equipment is, the subject of a
dispute as to ownership.
(3) If, apart from this subsection, the inspector would be required to
take reasonable steps to return consumer goods or equipment under
subsection (1) because of paragraph (b) of that subsection, the
inspector is not required to do so if:
(a) the return of the consumer goods or equipment could cause
an imminent risk of death, serious illness or serious injury; or
(b) the inspector is otherwise authorised (by a law, or an order of
a court, of the Commonwealth or of a State or a Territory) to
retain, destroy, dispose of or otherwise deal with the
consumer goods or equipment.
(4) Consumer goods that are required to be returned under this section
must be returned to the person from whom they were seized (or to
the owner if that person is not entitled to possess them).
(5) Equipment that is required to be returned under this section must
be returned to the person from whom it was seized (or to the owner
if that person is not entitled to possess it).
135P Judge may permit consumer goods or equipment to be
retained
(1) An inspector who has seized consumer goods or equipment under a
search warrant may, before the end of the period referred to in
paragraph 135N(1)(b), apply to a judge of the Federal Court for an
order that the inspector may retain the consumer goods or
equipment for a further period of up to 60 days.
(2) If:
(a) an application to a judge is made under subsection (1); and
(b) the judge is satisfied that it is necessary in all the
circumstances for the inspector to continue to retain the
consumer goods or equipment;
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Search, seizure and entry Division 6
Section 135Q
Competition and Consumer Act 2010 135
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the judge may order that the inspector may retain the consumer
goods or equipment for a further period (not exceeding 60 days)
specified in the order.
(3) Before making the application under subsection (1), the inspector
must:
(a) take reasonable steps to discover who has an interest in the
retention of the consumer goods or equipment; and
(b) if it is practicable to do so, notify each person whom the
inspector believes to have such an interest of the proposed
application.
Subdivision D—Provisions relating to seizure
135Q Recovery of reasonable costs of seizing consumer goods or
equipment
(1) If an inspector seizes consumer goods or equipment under a search
warrant:
(a) the person from whom the consumer goods were seized, or
the equipment was seized; or
(b) if that person is not entitled to possess the consumer goods or
equipment—the owner of the consumer goods or equipment;
is liable to pay an amount equal to the costs reasonably incurred by
the inspector in seizing the consumer goods or equipment.
(2) An amount payable by a person under subsection (1):
(a) is a debt due by the person to the Commonwealth; and
(b) may be recovered by action in a court of competent
jurisdiction.
135R Destruction or disposal of seized consumer goods or
equipment
(1) If:
(a) an inspector seizes consumer goods, or equipment used to
supply product-related services, under a search warrant; and
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Section 135S
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(b) apart from this section, the inspector is required to return the
consumer goods or equipment to a person; and
(c) either:
(i) the inspector cannot, despite making reasonable efforts,
locate the person; or
(ii) the person has refused to take possession of the
consumer goods or equipment;
a court may, on the application of the inspector, make an order
authorising the inspector to destroy or otherwise dispose of the
consumer goods or equipment.
(2) If subparagraph (1)(c)(ii) applies, the inspector must, before
making an application under subsection (1), inform the person
referred to in that subparagraph that the inspector proposes to make
an application under that subsection.
(3) If:
(a) an order is made under subsection (1); and
(b) subparagraph (1)(c)(ii) applies;
the person referred to in that subparagraph is liable to pay an
amount equal to the costs reasonably incurred by the inspector in
destroying or disposing of the consumer goods or equipment.
(4) An amount payable by a person under subsection (3):
(a) is a debt due by the person to the Commonwealth; and
(b) may be recovered by action in a court of competent
jurisdiction.
Subdivision E—Embargo notices
135S Embargo notices
(1) An inspector who enters premises under a search warrant may give
an embargo notice to the occupier of the premises.
(2) The inspector may give the notice to the occupier of the premises:
(a) by causing a copy of the notice to be served on the occupier;
or
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Section 135S
Competition and Consumer Act 2010 137
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(b) if the occupier cannot be located after all reasonable steps
have been taken to do so—by:
(i) causing a copy of the notice to be served on a person on
the premises who is reasonably believed to be in regular
contact with the occupier; or
(ii) causing a copy of the notice to be affixed to the
premises, or to a thing on the premises, in a prominent
position.
(3) The embargo notice must:
(a) be in writing; and
(b) specify the consumer goods, or product related services, to
which the notice relates; and
(c) if the notice relates to consumer goods—state that the
specified consumer goods must not be:
(i) supplied in or from the premises; or
(ii) transferred, moved, altered, destroyed or otherwise
interfered with;
during the period specified in the notice; and
(d) if the notice relates to product related services—state that the
specified product related services must not be supplied in or
from the premises during the period specified in the notice;
and
(e) explain the effect of section 135V or 135W.
(4) Despite anything in any other law, a contract for a supply of
consumer goods or product related services that is prohibited by an
embargo notice is void.
(5) If consumer goods are supplied in contravention of an embargo
notice:
(a) the supplier must immediately return or refund to the person
who acquired the goods any consideration (or the value of
any consideration) that that person gave:
(i) under an agreement for the supply; or
(ii) under a related contract or instrument; and
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Section 135T
138 Competition and Consumer Act 2010
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(b) if the goods have been removed from the premises in which
they were subject to the embargo notice—the person who
acquired the goods must:
(i) return the goods to the premises; or
(ii) notify the supplier of the place where the supplier may
collect the goods; and
(c) if subparagraph (b)(ii) applies—the supplier must collect the
goods from the place notified to the supplier, and return them
to the premises.
135T Embargo period for embargo notices
Embargo period
(1) Subject to this section, the embargo period for an embargo notice
must not be longer than:
(a) if the inspector giving the notice secures consumer goods
under section 135V or secures equipment under
section 135W—24 hours; or
(b) otherwise—28 days.
Extensions of embargo period
(2) An inspector may, before the embargo period ends, apply to a
judge of the Federal Court for an extension of the period.
(3) If an inspector intends to make an application under subsection (2),
the inspector must, before making the application, notify the
occupier of the premises to which the embargo notice relates of
that intention.
(4) The occupier of the premises is entitled to be heard in relation to
the application.
(5) The judge may extend the embargo period for a specified period if
the judge is satisfied that the extension is necessary in all the
circumstances.
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Section 135U
Competition and Consumer Act 2010 139
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135U Multiple embargo notices for the same consumer goods or
product related services
An inspector must not give an embargo notice in relation to
consumer goods, or product related services, of a particular kind if:
(a) an embargo notice (the earlier embargo notice) has already
been given in relation to consumer goods, or product related
services, of that kind; and
(b) the embargo period for the earlier embargo notice did not end
at least 5 days ago.
135V Power of inspectors to secure consumer goods
If:
(a) an embargo notice relates to consumer goods; and
(b) the inspector who gives the notice believes on reasonable
grounds that it is necessary to secure the consumer goods in
order to ensure that the notice is complied with;
the inspector may, during the embargo period for the embargo
notice, do anything that the inspector thinks is necessary to secure
those consumer goods (whether by locking them up, placing a
guard or otherwise).
135W Power of inspectors to secure equipment used to supply
product related services
If:
(a) an embargo notice relates to product related services; and
(b) the inspector who gives the notice believes on reasonable
grounds that it is necessary to secure equipment used to
supply the services in order to ensure that the notice is
complied with;
the inspector may, during the embargo period for the embargo
notice, do anything that the inspector thinks is necessary to secure
that equipment (whether by locking it up, placing a guard or
otherwise).
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Section 135X
140 Competition and Consumer Act 2010
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135X Consent to supply etc. embargoed consumer goods etc.
(1) If an embargo notice relating to consumer goods has been given,
the owner of the goods or another person who has an interest in the
goods may, in writing, request consent to do any of the following:
(a) to supply the goods;
(b) to transfer, move, alter, destroy or otherwise interfere with
the goods.
(2) If an embargo notice relating to product related services has been
given, the following persons may, in writing, request consent to
supply the services:
(a) the person who would, but for the embargo notice, supply the
services;
(b) another person whose interests would be affected if the
services were not supplied.
(3) If a request for consent is made under subsection (1) or (2), the
requested consent may be given, in writing, by the Commonwealth
Minister, the Chairperson or any inspector.
(4) A consent given under subsection (3) is not a legislative
instrument.
135Y Compliance with embargo notices
(1) A person commits an offence if:
(a) the person knows that an embargo notice has been given; and
(b) the person, contrary to the embargo notice, does an act or
omits to do an act.
Penalty:
(a) if the person is a body corporate—200 penalty units; or
(b) if the person is not a body corporate—40 penalty units.
(2) A person commits an offence if:
(a) the person knows that an embargo notice has been given; and
(b) the person causes another person:
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Section 135Z
Competition and Consumer Act 2010 141
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(i) to do an act that is contrary to the embargo notice; or
(ii) contrary to the embargo notice, to omit to do an act.
Penalty:
(a) if the person is a body corporate—200 penalty units; or
(b) if the person is not a body corporate—40 penalty units.
(3) Subsection (1) or (2) does not apply in relation to:
(a) an act done in accordance with a consent given under
section 135X; or
(b) if the embargo notice relates to consumer goods—an act
done for the purpose of protecting or preserving the
consumer goods; or
(c) if the embargo notice relates to product related services—an
act done for the purpose of protecting or preserving
equipment used to supply the services.
Note: A defendant bears an evidential burden in relation to the matter in this
subsection: see subsection 13.3(3) of the Criminal Code.
(4) Strict liability applies to paragraphs (1)(b) and (2)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Subdivision F—Issue of search warrants
135Z Issue of search warrants
Application for warrant
(1) An inspector may apply to a judge of the Federal Court for a
warrant in relation to premises.
Issue of warrant
(2) The judge may issue the warrant if:
(a) an affidavit has been given to the judge setting out the
grounds on which the issue of the warrant is being sought;
and
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Section 136
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(b) the applicant, or some other person, has given to the judge
such further information (if any) as the judge requires
concerning the grounds on which the issue of the warrant is
being sought; and
(c) the judge is satisfied that there are reasonable grounds for
issuing the warrant.
Content of warrant
(3) The warrant must:
(a) specify the purpose for which the warrant is issued; and
(b) describe the premises to which the warrant relates; and
(c) state that the warrant is issued under this section; and
(d) name one or more inspectors; and
(e) authorise the inspector or inspectors so named:
(i) to enter the premises; and
(ii) to exercise search-related powers in relation to the
premises; and
(f) state whether the entry is authorised to be made at any time
of the day or night, or during specified hours of the day or
night; and
(g) specify a day (which must not be more than 7 days after the
day the warrant is issued) on which the warrant ceases to be
in force.
136 Search warrants by telephone, fax etc.
Application for warrant
(1) An inspector may apply to a judge of the Federal Court by
telephone, fax or other electronic means for a warrant under
section 135Z in relation to premises if the inspector believes on
reasonable grounds that the delay that would occur if an
application were made in person would frustrate the effective
execution of the warrant.
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Search, seizure and entry Division 6
Section 136
Competition and Consumer Act 2010 143
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Voice communication
(2) The judge may require communication by voice to the extent that it
is practicable in the circumstances.
Affidavit
(3) Before applying for the warrant, the inspector must prepare an
affidavit of the kind mentioned in paragraph 135Z(2)(a).
(4) If it is necessary to do so, the inspector may apply for the warrant
before the affidavit has been sworn.
Signing of warrant
(5) If the judge is satisfied:
(a) after considering the terms of the affidavit; and
(b) after receiving such further information (if any) as the judge
requires concerning the grounds on which the issue of the
warrant is being sought;
that there are reasonable grounds for issuing the warrant, the judge
may complete and sign the same warrant that the judge would issue
under section 135Z if the application had been made under that
section.
Notification
(6) If the judge completes and signs the warrant, the judge must inform
the inspector, by telephone, fax or other electronic means, of:
(a) the terms of the warrant; and
(b) the day on which and the time at which the warrant was
signed.
Form of warrant
(7) The inspector must then complete a form of warrant in the same
terms as the warrant completed and signed by the judge, stating on
the form the name of the judge and the day on which and the time
at which the warrant was signed.
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Part XI Application of the Australian Consumer Law as a law of the Commonwealth
Division 6 Search, seizure and entry
Section 136A
144 Competition and Consumer Act 2010
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Completed form of warrant to be given to judge
(8) The inspector must also, not later than the day after the day on
which the warrant ceased to be in force or the day of execution of
the warrant, whichever is the earlier, send to the judge:
(a) the form of warrant completed by the inspector; and
(b) the affidavit referred to in subsection (3), which must have
been duly sworn.
Attachment
(9) The judge must attach to the documents provided under
subsection (8) the warrant signed by the judge.
Authority of warrant
(10) A form of warrant duly completed under subsection (7) is authority
for the same powers as are authorised by the warrant signed by the
judge.
(11) If:
(a) it is material, in any proceedings, for a court to be satisfied
that an exercise of a power was authorised by this section;
and
(b) the warrant signed by the judge authorising the exercise of
the power is not produced in evidence;
the court must assume, unless the contrary is proved, that the
exercise of the power was not authorised by such a warrant.
136A Offence relating to warrants by telephone, fax etc.
An inspector commits an offence if the inspector:
(a) states in a document that purports to be a form of warrant
under section 136 the name of a judge unless that judge
signed the warrant; or
(b) states on a form of warrant under that section a matter that, to
the inspector’s knowledge, departs in a material particular
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Search, seizure and entry Division 6
Section 136B
Competition and Consumer Act 2010 145
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from the terms of the warrant signed by the judge under that
section; or
(c) purports to execute, or presents to another person, a
document that purports to be a form of warrant under that
section that the inspector knows:
(i) has not been approved by a judge under that section; or
(ii) departs in a material particular from the terms of a
warrant signed by a judge under that section; or
(d) gives to a judge a form of warrant under that section that is
not the form of warrant that the inspector purported to
execute.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
Subdivision G—Miscellaneous
136B Powers of judges
Powers conferred personally
(1) A power conferred on a judge by this Division is conferred on the
judge:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2) The judge need not accept the power conferred.
Protection and immunity
(3) A judge exercising a power conferred by this Division has the
same protection and immunity as if he or she were exercising the
power:
(a) as the court of which the judge is a member; or
(b) as a member of the court of which the judge is a member.
ComLaw Authoritative Act C2015C00019
Part XI Application of the Australian Consumer Law as a law of the Commonwealth
Division 7 Remedies
Section 137
146 Competition and Consumer Act 2010
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Division 7—Remedies
137 Limit on occupational liability
State or Territory professional standards law limits liability
(1) A professional standards law of a State, the Australian Capital
Territory or the Northern Territory applies to limit occupational
liability relating to an action for a contravention of section 18 of
the Australian Consumer Law in the same way as it limits
occupational liability arising under a law of the State or Territory.
(2) However, the professional standards law applies for that purpose:
(a) only in relation to a scheme that was prescribed by the
regulations at the time (the contravention time) of the
contravention; and
(b) as if the scheme were in force under that law at the
contravention time, in the form the scheme would have been
in if:
(i) the scheme had not been amended or revoked under that
law since the scheme was first prescribed; and
(ii) any additions, omissions, substitutions and other
modifications prescribed by the regulations at the
contravention time had been made to the scheme.
Operation of choice of law rules
(3) For the purposes of working out whether a professional standards
law of a particular State or Territory applies under subsection (1) in
relation to a particular contravention of section 18 of the Australian
Consumer Law, choice of law rules operate in relation to the
contravention in the same way as they operate in relation to a tort.
Professional standards laws
(4) A professional standards law is a law that provides for the
limitation of occupational liability by reference to schemes for
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Remedies Division 7
Section 137A
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limiting that liability that were formulated and published in
accordance with that law.
Occupational liability
(5) Occupational liability is civil liability arising directly or
vicariously from anything done or omitted by a person who:
(a) does or omits to do the thing in the course of his or her
profession, trade or occupation; and
(b) is a member of a body:
(i) that represents the interests of persons who have the
same profession, trade or occupation; and
(ii) whose membership is limited principally to such
persons.
137A Contributory acts or omissions to reduce compensation in
defective goods actions
(1) If the loss or damage to which a defective goods action under
section 138 or 139 of the Australian Consumer Law relates was
caused by both:
(a) an act or omission of:
(i) the individual who suffers the injuries referred to in that
section; or
(ii) a person for whom that individual is responsible; and
(b) a safety defect of the goods to which the action relates;
the amount of the loss or damage is to be reduced to such extent
(which may be to nil) as the court thinks fit having regard to that
individual’s share in the responsibility for the loss or damage.
(2) If the loss or damage to which a defective goods action under
section 140 or 141 of the Australian Consumer Law relates was
caused by both:
(a) an act or omission of:
(i) the person who suffered the loss or damage; or
(ii) another person for whom that person is responsible; and
(b) a safety defect of the goods to which the action relates;
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Part XI Application of the Australian Consumer Law as a law of the Commonwealth
Division 7 Remedies
Section 137B
148 Competition and Consumer Act 2010
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the amount of the loss or damage is to be reduced to such extent
(which may be to nil) as the court thinks fit having regard to the
person’s share in the responsibility for the loss or damage.
137B Reduction of the amount of loss or damage if the claimant fails
to take reasonable care
If:
(a) a person (the claimant) makes a claim under
subsection 236(1) of the Australian Consumer Law in
relation to economic loss, or damage to property, suffered by
the claimant because of the conduct of another person; and
(b) the conduct contravened section 18 of the Australian
Consumer Law; and
(c) the claimant suffered the loss or damage as result:
(i) partly of the claimant’s failure to take reasonable care;
and
(ii) partly of the conduct of the other person; and
(d) the other person did not intend to cause the loss or damage
and did not fraudulently cause the loss or damage;
the amount of the loss or damage that the claimant may recover
under subsection 236(1) of the Australian Consumer Law is to be
reduced to the extent to which a court thinks just and equitable
having regard to the claimant’s share in the responsibility for the
loss or damage.
137C Limits on recovery of amounts for death or personal injury
(1) A person is not entitled to recover an amount of loss or damage by
action under subsection 236(1) of the Australian Consumer Law to
the extent to which:
(a) the action would be based on the conduct contravening a
provision of Part 2-1 or 3-1 of the Australian Consumer Law;
and
(b) the loss or damage is, or results from, death or personal
injury; and
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Remedies Division 7
Section 137D
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(c) the death or personal injury does not result from smoking or
other use of tobacco products.
(2) Divisions 2 and 7 of Part VIB of this Act apply to an action under
subsection 236(1) of the Australian Consumer Law for loss or
damage a person suffers to the extent to which:
(a) the action is based on the conduct contravening a provision
of Part 2-1 or 3-1 of the Australian Consumer Law; and
(b) the loss or damage is, or results from, death or personal
injury; and
(c) the death or personal injury results from smoking or other use
of tobacco products;
as if the action were a proceeding to which Part VIB of this Act
applied.
Note 1: Division 2 of Part VIB of this Act deals with the limitation periods
that apply for claims for damages or compensation for death or
personal injury and, to the extent to which that Division is applied to
the action by this subsection, it overrides subsection 236(2) of the
Australian Consumer Law.
Note 2: Division 7 of Part VIB of this Act deals with structured settlements for
claims for damages or compensation for death or personal injury.
137D Compensation orders etc. arising out of unfair contract terms
In determining whether to make an order under subsection 237(1)
or 238(1) of the Australian Consumer Law in relation to:
(a) a contravention of a provision of Part 2-2 of the Australian
Consumer Law; or
(b) a term of a consumer contract that has been declared under
section 250 of the Australian Consumer Law to be an unfair
term;
the court may have regard to the conduct of the parties to the
proceeding referred to in that subsection since the contravention
occurred or the declaration was made.
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Part XI Application of the Australian Consumer Law as a law of the Commonwealth
Division 7 Remedies
Section 137E
150 Competition and Consumer Act 2010
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137E Limits on compensation orders etc. for death or personal
injury
(1) A court must not make an order under subsection 237(1) or 238(1)
of the Australian Consumer Law to compensate a person for loss or
damage the person suffers because of the conduct of another
person to the extent to which:
(a) the action would be based on the conduct contravening a
provision of Part 2-1 or 3-1 of the Australian Consumer Law;
and
(b) the loss or damage is, or results from, death or personal
injury; and
(c) the death or personal injury does not result from smoking or
other use of tobacco products.
(2) Division 2 of Part VIB of this Act applies to an application for an
order under subsection 237(1) of the Australian Consumer Law to
compensate a person for loss or damage the person suffers because
of the conduct of another person to the extent to which:
(a) the action would be based on the conduct contravening a
provision of Part 2-1 or 3-1 of the Australian Consumer Law;
and
(b) the loss or damage is, or results from, death or personal
injury; and
(c) the death or personal injury results from smoking or other use
of tobacco products;
as if the proceeding in relation to the application were a proceeding
to which Part VIB of this Act applies and as if the making of the
application were the commencement of the proceeding.
Note: Division 2 of Part VIB of this Act deals with the limitation periods
that apply for claims for damages or compensation for death or
personal injury and, to the extent to which that Division is applied to
the application by this subsection, it overrides subsection 237(3) of the
Australian Consumer Law.
(3) Division 7 of Part VIB of this Act applies to a proceeding in which
an order under subsection 237(1) or 238(1) of the Australian
Consumer Law to compensate a person for loss or damage the
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Application of the Australian Consumer Law as a law of the Commonwealth Part XI
Remedies Division 7
Section 137F
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person suffers because of the conduct of another person is made, to
the extent to which:
(a) the action would be based on the conduct contravening a
provision of Part 2-1 or Part 3-1 of the Australian Consumer
Law; and
(b) the loss or damage is, or results from, death or personal
injury; and
(c) the death or personal injury results from smoking or other use
of tobacco products;
as if the proceeding were a proceeding to which Part VIB of this
Act applied.
Note: Division 7 of Part VIB of this Act deals with structured settlements for
claims for damages or compensation for death or personal injury.
137F Court may make orders for the purpose of preserving money
or other property held by a person
(1) A court may, on the application of the Commonwealth Minister or
the Commission, make an order or orders mentioned in
subsection (3) if:
(a) proceedings of a kind referred to in subsection (2) have been
taken against a person, or proceedings of a kind referred to in
paragraph (2)(d) may be taken against a person; and
(b) the court is satisfied that it is necessary or desirable to make
the order or orders for the purpose of preserving money or
other property held by, or on behalf of, the person if the
person is liable, or may become liable, under the Australian
Consumer Law:
(i) to pay money by way of a fine, damages, compensation,
refund or otherwise; or
(ii) to transfer, sell or refund other property; and
(c) the court is satisfied that the making of such an order or
orders will not unduly prejudice the rights and interests of
any other person.
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Part XI Application of the Australian Consumer Law as a law of the Commonwealth
Division 7 Remedies
Section 137F
152 Competition and Consumer Act 2010
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Kinds of proceedings taken against the person
(2) For the purposes of paragraph (1)(a), the kinds of proceedings
taken against the person are:
(a) proceedings against the person for an offence against a
provision of Chapter 4 of the Australian Consumer Law; or
(b) an application under section 232 of the Australian Consumer
Law for an injunction against the person in relation to:
(i) a contravention of a provision of Chapter 2, 3 or 4 of the
Australian Consumer Law; or
(ii) a term of a consumer contract in relation to which a
declaration under section 250 of the Australian
Consumer Law has been made; or
(c) an action under subsection 236(1) of the Australian
Consumer Law against the person in relation to a
contravention of a provision of Part 2-1 or Chapter 3 of the
Australian Consumer Law; or
(d) an application for an order under subsection 237(1) or 239(1)
of the Australian Consumer Law against a person in relation
to:
(i) a contravention of a provision of Chapter 2, 3 or 4 of the
Australian Consumer Law; or
(ii) a term of a consumer contract in relation to which a
declaration under section 250 of the Australian
Consumer Law has been made.
Kinds of orders that may be made
(3) The court may make the following orders under subsection (1) of
this section in a relation to money or other property held by, or on
behalf of, a person (the respondent):
(a) an order prohibiting, either absolutely or subject to
conditions, a person who is indebted to the respondent, or to
an associate of the respondent, from making a payment, in
total or partial discharge of the debt:
(i) to the respondent; or
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Remedies Division 7
Section 137F
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(ii) to another person at the direction or request of the
respondent;
(b) an order prohibiting, either absolutely or subject to
conditions, a person who is holding money or other property
on behalf of the respondent, or on behalf of an associate of
the respondent:
(i) from paying all or any of the money to the respondent,
or to another person at the direction or request of the
respondent; or
(ii) from transferring the other property to the respondent,
or to another person at the direction or request of the
respondent, or otherwise parting with possession of that
property;
(c) an order prohibiting, either absolutely or subject to
conditions, the taking or sending by any person of money of
the respondent, or of an associate of the respondent, to a
place outside the State or Territory in which the money is
held;
(d) an order prohibiting, either absolutely or subject to
conditions, the taking, sending or transfer by any person of
other property of the respondent, or of an associate of the
respondent, to a place outside the State or Territory in which
that property is located;
(e) if the respondent is a natural person—an order appointing a
receiver or trustee of the property, or of part of the property,
of the respondent with such powers as are specified in the
order.
Operation of order
(4) If the court makes such an order, the order operates:
(a) for the period specified in the order (which must not be
longer than 30 days if the application for the order was an ex
parte application); or
(b) if proceedings in relation to which the order is made are
concluded before the end of that period—until the conclusion
of those proceedings.
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Part XI Application of the Australian Consumer Law as a law of the Commonwealth
Division 7 Remedies
Section 137G
154 Competition and Consumer Act 2010
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Other
(5) This section:
(a) has effect subject to the Bankruptcy Act 1966; and
(b) does not affect any other powers of the court.
137G Compliance with orders made under section 137F
(1) A person commits an offence if:
(a) an order made under section 137F applies to the person; and
(b) the person contravenes, or refuses or fails to comply with, the
order.
Penalty:
(a) if the person is a body corporate—900 penalty units; or
(b) if the person is not a body corporate—180 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
137H Finding in proceedings to be evidence
(1) In an action against a person under subsection 236(1) of the
Australian Consumer Law:
(a) a finding of a fact by a court to which subsection (3) of this
section applies is prima facie evidence of that fact; and
(b) the finding may be proved by production of a document
under the seal of the court from which the finding appears.
(2) In proceedings for an order against a person under
subsection 237(1) or 239(1) of the Australian Consumer Law:
(a) a finding of a fact by a court to which subsection (3) of this
section applies is prima facie evidence of that fact; and
(b) the finding may be proved by production of a document
under the seal of the court from which the finding appears.
(3) This subsection applies to a finding of a fact by a court that is made
in proceedings under section 228, 232, 246, 247 or 248 of the
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Remedies Division 7
Section 137H
Competition and Consumer Act 2010 155
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Australian Consumer Law, or for an offence against a provision of
Chapter 4 of the Australian Consumer Law, in which the person
has been found:
(a) to have contravened a provision of Chapter 2, 3 or 4 of the
Australian Consumer Law; or
(b) to have attempted to contravene such a provision; or
(c) to have aided, abetted, counselled or procured a person to
contravene such a provision; or
(d) to have induced, or attempted to induce, a person, whether by
threats or promises or otherwise, to contravene such a
provision; or
(e) to have been in any way, directly or indirectly, knowingly
concerned in, or party to, the contravention by a person of
such a provision; or
(f) to have conspired with others to contravene such a provision.
ComLaw Authoritative Act C2015C00019
Part XI Application of the Australian Consumer Law as a law of the Commonwealth
Division 8 Jurisdictional matters
Section 138
156 Competition and Consumer Act 2010
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Division 8—Jurisdictional matters
138 Conferring jurisdiction on the Federal Court
(1) Jurisdiction is conferred on the Federal Court in relation to any
matter arising under this Part or the Australian Consumer Law in
respect of which a civil proceeding has been instituted under this
Part or the Australian Consumer Law.
(2) The jurisdiction conferred by subsection (1) on the Federal Court is
exclusive of the jurisdiction of any other court other than:
(a) the jurisdiction of the Federal Circuit Court under
section 138A; and
(b) the jurisdiction of the several courts of the States and
Territories under section 138B; and
(c) the jurisdiction of the High Court under section 75 of the
Constitution.
138A Conferring jurisdiction on the Federal Circuit Court
(1) Subject to this section, jurisdiction is conferred on the Federal
Circuit Court in relation to any matter arising under this Part or the
Australian Consumer Law in respect of which a civil proceeding is
instituted by a person other than the Commonwealth Minister.
(2) If proceedings under Part 3-5, or section 236, of the Australian
Consumer Law are instituted in, or transferred to, the Federal
Circuit Court, the Federal Circuit Court does not have jurisdiction
to award an amount for loss or damage that exceeds:
(a) $750,000; or
(b) if another amount is specified in the regulations—that other
amount.
Note: For transfers from the Federal Court to the Federal Circuit Court: see
section 32AB of the Federal Court of Australia Act 1976.
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Section 138B
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138B Conferring jurisdiction on State and Territory Courts
(1) Jurisdiction is conferred on the several courts of the States and
Territories in relation to any matter arising under this Part or the
Australian Consumer Law in respect of which a civil proceeding is
instituted by a person other than the Commonwealth Minister or
the Commission.
(2) However, subsection (1) does not apply in relation to a matter
arising under:
(a) Division 3 of Part 3-1 of the Australian Consumer Law; or
(b) Part 3-5 of the Australian Consumer Law.
(3) The jurisdiction conferred by subsection (1) on the several courts
of the States is conferred within the limits of their several
jurisdictions, whether those limits are as to locality, subject matter
or otherwise.
(4) The jurisdiction conferred by subsection (1) on the several courts
of the Territories is conferred to the extent that the Constitution
permits.
(5) This section is not to be taken to enable an inferior court of a State
or a Territory to grant a remedy other than a remedy of a kind that
the court is able to grant under the law of that State or Territory.
138C Transfer of matters by the Federal Court
(1) Subject to subsections (2) and (3), if:
(a) a civil proceeding instituted by a person (other than the
Commonwealth Minister or the Commission) is pending in
the Federal Court; and
(b) a matter for determination in the proceeding arises under this
Part or the Australian Consumer Law;
the Federal Court may, on the application of a party to the
proceeding or of its own motion, transfer the matter, and any other
matter for determination in the proceeding, to a court of a State or a
Territory.
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Division 8 Jurisdictional matters
Section 138D
158 Competition and Consumer Act 2010
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(2) The Federal Court must not transfer a matter to another court under
subsection (1) unless:
(a) the other court has power to grant the remedies sought before
the Federal Court in the matter; and
(b) it appears to the Federal Court that:
(i) the matter arises out of, or is related to, a proceeding
that is pending in the other court; or
(ii) it is otherwise in the interests of justice that the matter
be determined by the other court.
(3) Subsection (1) does not apply in relation to a matter arising under:
(a) Division 3 of Part 3-1 of the Australian Consumer Law; or
(b) Part 3-5 of the Australian Consumer Law.
(4) If the Federal Court transfers a matter to another court under
subsection (1):
(a) further proceedings in the matter must be as directed by the
other court; and
(b) the judgment of the other court in the matter is enforceable
throughout Australia and the external Territories as if it were
a judgment of the Federal Court.
138D Transfer of matters by a State or Territory court
(1) This section applies if:
(a) a proceeding is pending in a court (other than the Supreme
Court) of a State or a Territory; and
(b) a matter for determination in the proceeding arises under this
Part or the Australian Consumer Law, other than under:
(i) Division 3 of Part 3-1 of the Australian Consumer Law;
or
(ii) Part 3-5 of the Australian Consumer Law; or
(iii) Chapter 4 of the Australian Consumer Law.
(2) The court must, if directed to do so by the Federal Court, transfer
to the Federal Court:
(a) the matter; and
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Section 138E
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(b) such other matters for determination in the proceeding, the
determination of which would (apart from any law of a State
or of the Northern Territory relating to cross-vesting of
jurisdiction) be within the jurisdiction of the Federal Court,
as the Federal Court determines.
(3) Subject to subsection (4), the court may, on the application of a
party to the proceeding or of its own motion, transfer the matter to
a court (other than the Supreme Court) of another State or
Territory.
(4) The court (the first court) must not transfer a matter to another
court under subsection (3) unless:
(a) the other court has power to grant the remedies sought before
the first court in the matter; and
(b) it appears to the first court that:
(i) the matter arises out of, or is related to, a proceeding
that is pending in the other court; or
(ii) it is otherwise in the interests of justice that the matter
be determined by the other court.
(5) If the court transfers a matter to another court under subsection (3),
further proceedings in the matter must be as directed by the other
court.
138E Transfer of proceedings to Family Court
(1) If:
(a) a civil proceeding is pending in the Federal Court; and
(b) a matter for determination in the proceeding arises under this
Part or the Australian Consumer Law, other than under:
(i) Division 3 of Part 3-1 of the Australian Consumer Law;
or
(ii) Part 3-5 of the Australian Consumer Law;
the Federal Court may, on the application of a party to the
proceeding or of its own motion, transfer the proceeding to the
Family Court.
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Division 8 Jurisdictional matters
Section 138E
160 Competition and Consumer Act 2010
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(2) Subject to subsection (3), if a proceeding is transferred to the
Family Court under subsection (1):
(a) the Family Court has jurisdiction to hear and determine the
proceeding; and
(b) the Family Court also has jurisdiction to hear and determine
matters not otherwise within its jurisdiction (whether because
of paragraph (a) or otherwise):
(i) that are associated with matters arising in the
proceeding; or
(ii) that, apart from subsection 32(1) of the Federal Court of
Australia Act 1976, the Federal Court would have had
jurisdiction to hear and determine in the proceeding; and
(c) the Family Court may, in and in relation to the proceeding:
(i) grant such remedies; and
(ii) make orders of such kinds; and
(iii) issue, and direct the issue of, writs of such kinds;
as the Federal Court could have granted, made, issued or
directed the issue of, in and in relation to the proceeding; and
(d) remedies, orders and writs granted, made or issued by the
Family Court in and in relation to the proceeding have effect,
and may be enforced by the Family Court, as if they had been
granted, made or issued by the Federal Court; and
(e) appeals lie from judgments of the Family Court given in and
in relation to the proceeding as if the judgments were
judgments of the Federal Court constituted by a single Judge
of that Court, and do not otherwise lie; and
(f) subject to paragraphs (a) to (e) of this subsection, this Act,
the regulations, the Federal Court of Australia Act 1976, the
Rules of Court made under that Act, and other laws of the
Commonwealth, apply in and in relation to the proceeding as
if:
(i) a reference to the Federal Court (other than in the
expression the Court or a Judge) included a reference
to the Family Court; and
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(ii) a reference to a Judge of the Federal Court (other than
in the expression the Court or a Judge) included a
reference to a Family Court Judge; and
(iii) a reference to the expression the Court or a Judge when
used in relation to the Federal Court included a
reference to a Family Court Judge sitting in Chambers;
and
(iv) a reference to a Registrar of the Federal Court included
a reference to a Registrar of the Family Court; and
(v) any other necessary changes were made.
(3) If any difficulty arises in the application of paragraphs (2)(c), (d)
and (f) in or in relation to a particular proceeding, the Family Court
may, on the application of a party to the proceeding or of its own
motion, give such directions, and make such orders, as it considers
appropriate to resolve the difficulty.
(4) An appeal does not lie from a decision of the Federal Court in
relation to the transfer of a proceeding under this Act to the Family
Court.
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Division 9 Miscellaneous
Section 139
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Division 9—Miscellaneous
139 Intervention by the Commission
(1) The Commission may, with the leave of a court and subject to any
conditions imposed by the court, intervene in any proceeding
instituted under this Part or the Australian Consumer Law.
(2) If the Commission intervenes in a proceeding, the Commission is
taken to be a party to the proceeding and has all the rights, duties
and liabilities of such a party.
139A Terms excluding consumer guarantees from supplies of
recreational services
(1) A term of a contract for the supply of recreational services to a
consumer by a person is not void under section 64 of the Australian
Consumer Law only because the term excludes, restricts or
modifies, or has the effect of excluding, restricting or modifying:
(a) the application of all or any of the provisions of Subdivision
B of Division 1 of Part 3-2 of the Australian Consumer Law;
or
(b) the exercise of a right conferred by such a provision; or
(c) any liability of the person for a failure to comply with a
guarantee that applies under that Subdivision to the supply.
(2) Recreational services are services that consist of participation in:
(a) a sporting activity or a similar leisure time pursuit; or
(b) any other activity that:
(i) involves a significant degree of physical exertion or
physical risk; and
(ii) is undertaken for the purposes of recreation, enjoyment
or leisure.
(3) This section does not apply unless the exclusion, restriction or
modification is limited to liability for:
(a) death; or
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(b) a physical or mental injury of an individual (including the
aggravation, acceleration or recurrence of such an injury of
the individuan( � or
(c) the contraction, aggravation or acceleration of a disease of an
individual; or
(d) the coming into existence, the aggravation, acceleration or
recurrence of any other condition, circumstance, occurrence,
activity, form of behaviour, course of conduct or state of
affairs in relation to an individual:
(i) that is or may be harmful or disadvantageous to the
individual or community; or
(ii) that may result in harm or disadvantage to the individual
or community.
(4) This section does not apply if the exclusion, restriction or
modification would apply to significant personal injury suffered by
a person that is caused by the reckless conduct of the supplier of
the recreational services.
(5) The supplier’s conduct is reckless conduct if the supplier:
(a) is aware, or should reasonably have been aware, of a
significant risk that the conduct could result in personal
injury to another person; and
(b) engages in the conduct despite the risk and without adequate
justification.
139B Conduct of directors, employees or agents of bodies corporate
(1) If, in a proceeding under this Part or the Australian Consumer Law
in respect of conduct that is engaged in by a body corporate and to
which this Part or the Australian Consumer Law applies, it is
necessary to establish the state of mind of the body corporate, it is
sufficient to show:
(a) that a director, employee or agent of the body corporate
engaged in that conduct within the scope of the actual or
apparent authority of the director, employee or agent; and
(b) that the director, employee or agent had that state of mind.
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(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within
the scope of the actual or apparent authority of the director,
employee or agent; or
(b) by any other person:
(i) at the direction of a director, employee or agent of the
body corporate; or
(ii) with the consent or agreement (whether express or
implied) of such a director, employee or agent;
if the giving of the direction, consent or agreement is within
the scope of the actual or apparent authority of the director,
employee or agent;
is taken, for the purposes of this Part or the Australian Consumer
Law, to have been engaged in also by the body corporate.
139C Conduct of employees or agents of persons other than bodies
corporate
(1) If, in a proceeding under this Part or the Australian Consumer Law
in respect of conduct that is engaged in by a person (the principal)
other than a body corporate and to which this Part or the Australian
Consumer Law applies, it is necessary to establish the state of mind
of the principal, it is sufficient to show:
(a) that an employee or agent of the principal engaged in that
conduct within the scope of the actual or apparent authority
of the employee or agent; and
(b) the employee or agent had that state of mind.
(2) Any conduct engaged in on behalf of a person (the principal) other
than a body corporate:
(a) by an employee or agent of the principal within the scope of
the actual or apparent authority of the employee or agent; or
(b) by any other person:
(i) at the direction of an employee or agent of the principal;
or
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(ii) with the consent or agreement (whether express or
implied) of such an employee or agent;
if the giving of the direction, consent or agreement is within
the scope of the actual or apparent authority of the employee
or agent;
is taken, for the purposes of this Part or the Australian Consumer
Law, to have been engaged in also by the principal.
(3) If:
(a) a person other than a body corporate is convicted of an
offence; and
(b) subsection (1) or (2) applied in relation to the conviction on
the basis that the person was the principal mentioned in that
subsection; and
(c) the person would not have been convicted of the offence if
that subsection had not been enacted;
the person is not liable to be punished by imprisonment for that
offence.
139D Enforcement and recovery of certain fines
(1) If a person defaults in paying a fine that has been imposed on the
person for an offence against a provision of Chapter 4 of the
Australian Consumer Law or section 137G of this Act, a court
may:
(a) exercise any power that the court has apart from this section
in relation to the enforcement and recovery of the fine; or
(b) make an order (the enforcement order), on the application of
the Commonwealth Minister or the Commission, declaring
that the fine is to have effect, and may be enforced, as if it
were a judgment debt under a judgment of the court.
(2) If:
(a) the court makes an enforcement order; and
(b) the person gives security for the payment of the fine;
the court must cancel the enforcement order.
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(3) If the court makes an enforcement order, the court may, at any time
before the enforcement order is executed:
(a) allow the person a specified time in which to pay the fine; or
(b) allow the person to pay the fine by specified instalments.
(4) If the court allows the person a specified time in which to pay the
fine:
(a) the enforcement order must not be executed unless the person
fails to pay the fine within that time; and
(b) if the person pays the fine within that time—the enforcement
order is taken to have been discharged.
(5) If the court allows the person to pay the fine by specified
instalments:
(a) the enforcement order must not be executed unless the person
fails to pay such an instalment at or before the time when it
becomes payable; and
(b) if the person pays all those instalments—the enforcement
order is taken to have been discharged.
(6) The term of a sentence of imprisonment imposed by an order under
a law of a State or a Territory applied by section 15A of the Crimes
Act 1914 (including an order described in subsection 15A(1AA) of
that Act) in respect of a fine is to be calculated at the rate of one
day’s imprisonment for each $25 of the amount of the fine that is
from time to time unpaid.
139DA Application of section 229 of the Australian Consumer Law
to a person other than a body corporate
If, as a result of the operation of Part 2.4 of the Criminal Code, a
person other than a body corporate is:
(a) convicted of an offence (the relevant offence) against
subsection 229(1) of the Australian Consumer Law; or
(b) convicted of an offence (the relevant offence) against
section 11.4 of the Criminal Code in relation to an offence
referred to in subsection 229(1) of the Australian Consumer
Law;
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the relevant offence is taken to be punishable on conviction by a
fine not exceeding $550.
139E Cessation of enforcement orders etc.
(1) Subject to this section, an enforcement order in relation to a fine
ceases to have effect:
(a) on payment of the fine; or
(b) if the fine is not paid—on full compliance with the
enforcement order.
(2) Subject to this section, if a person is required under one or more
enforcement orders to serve periods of imprisonment, those periods
must be served consecutively.
(3) If:
(a) a person would, but for this subsection, be required under one
or more enforcement orders that relate to 3 or more fines to
serve periods of imprisonment that in aggregate are longer
than 3 years; and
(b) those fines were imposed (whether or not in the same
proceedings) for offences constituted by contraventions:
(i) that occurred within a period of 2 years; and
(ii) that appear to a court to have been of the same nature or
of a substantially similar nature;
the court must, by order, declare that the enforcement order or
orders cease to have effect in respect of those fines after the person
has served an aggregate of 3 years’ imprisonment.
(4) If subsection (3) would, but for this subsection, apply to a person
with respect to offences committed by the person within 2 or more
overlapping periods of 2 years, the court must make an order under
that subsection in relation to only one of those periods.
(5) The order under subsection (4) must relate to the period which
would give the person the maximum benefit under subsection (3).
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(6) For the purposes of subsection (4), the court may vary or revoke an
order made under subsection (3).
139F Compensation for acquisition of property
(1) If the operation of this Part (including Schedule 2 as applied by this
Part) would result in an acquisition of property from a person
otherwise than on just terms, the Commonwealth is liable to pay a
reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount
of the compensation, the person may institute proceedings in the
Federal Court for the recovery from the Commonwealth of such
reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in
paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the
Constitution.
139G Regulations
(1) The Governor-General may make regulations prescribing matters:
(a) required or permitted by Schedule 2 to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or
giving effect to that Schedule.
(2) Before the Governor-General makes a regulation for the purposes
of paragraph 25(n) of Schedule 2 prescribing a kind of term of a
consumer contract, or a kind of effect that such a term has, the
Commonwealth Minister must take into consideration:
(a) the detriment that a term of that kind would cause to
consumers; and
(b) the impact on business generally of prescribing that kind of
term or effect; and
(c) the public interest.
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(3) Before the Governor-General makes a regulation under
subsection (1) for the purposes of paragraph 65(1)(a) of Schedule 2
in relation to supplies of a particular kind, the Commonwealth
Minister must be satisfied that:
(a) the laws of the Commonwealth; and/or
(b) the laws of the States and Territories;
adequately provide for consumer rights in relation to supplies of
that kind.
(4) The regulations may, either unconditionally or subject to such
conditions as are specified in the regulations, exempt from the
application of Schedule 2 or of specified provisions of Schedule 2:
(a) conduct engaged in by a specified organisation or body that
performs functions in relation to the marketing of primary
products; or
(b) any of the following:
(i) a specified contract or proposed contract made;
(ii) contracts included in a specified class of contracts
made;
(iii) specified conduct entered into;
pursuant to or for the purposes of a specified agreement,
arrangement or understanding between the Government of
Australia and the Government of a foreign country; or
(c) prescribed conduct engaged in in the course of a business
carried on by the Commonwealth or by a prescribed authority
of the Commonwealth.
(5) Strict compliance with a form of application or notice prescribed
for the purposes of Schedule 2 is not, and is taken never to have
been, required and substantial compliance is, and is taken always to
have been, sufficient.
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Part XIAA Application of the Australian Consumer Law as a law of a State or
Territory
Section 140
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Part XIAA—Application of the Australian
Consumer Law as a law of a State or
Territory
140 Definitions
In this Part:
application law means:
(a) a law of a participating jurisdiction that applies the applied
Australian Consumer Law, either with or without
modifications, as a law of the participating jurisdiction; or
(b) any regulations or other legislative instrument made under a
law described in paragraph (a); or
(c) the applied Australian Consumer Law, applying as a law of
the participating jurisdiction, either with or without
modifications.
applied Australian Consumer Law means (according to the
context):
(a) the text described in section 140B; or
(b) that text, applying as a law of a participating jurisdiction,
either with or without modifications.
apply, in relation to the applied Australian Consumer Law, means
apply the applied Australian Consumer Law by reference:
(a) as in force from time to time; or
(b) as in force at a particular time.
Commonwealth entity means:
(a) an authority of the Commonwealth; or
(b) an officer of the Commonwealth.
imposes a duty has the meaning given by section 140G.
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modifications includes additions, omissions and substitutions.
officer, in relation to the Commonwealth, includes the following:
(a) a Minister;
(b) a person who holds:
(i) an office established by or under an Act; or
(ii) an appointment made under an Act; or
(iii) an appointment made by the Governor-General or a
Minister but not under an Act;
(c) a person who is a member or officer of an authority of the
Commonwealth;
(d) a person who is:
(i) in the service or employment of the Commonwealth, or
of an authority of the Commonwealth; or
(ii) employed or engaged under an Act.
participating jurisdiction means a participating State or
participating Territory.
participating State means a State that is a party to the
Intergovernmental Agreement for the Australian Consumer Law
and applies the applied Australian Consumer Law as a law of the
State, either with or without modifications.
participating Territory means a Territory that is a party to the
Intergovernmental Agreement for the Australian Consumer Law
and applies the applied Australian Consumer Law as a law of the
Territory, either with or without modifications.
Territory means the Australian Capital Territory or the Northern
Territory.
140A Object of this Part
The object of this Part is to facilitate the application of the
Australian Consumer Law by participating States and participating
Territories.
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Section 140B
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140B The applied Australian Consumer Law
The applied Australian Consumer Law consists of:
(a) Schedule 2; and
(b) the regulations made under section 139G of this Act.
140C Federal Court may exercise jurisdiction under application
laws of Territories
The Federal Court may exercise jurisdiction (whether original or
appellate) conferred on that Court by an application law of a
Territory with respect to matters arising under the applied
Australian Consumer Law.
140D Exercise of jurisdiction under cross-vesting provisions
This Part does not affect the operation of any other law of the
Commonwealth, or any law of a State or Territory, relating to
cross-vesting of jurisdiction.
140E Commonwealth consent to conferral of functions etc. on
Commonwealth entities
(1) An application law may confer functions or powers, or impose
duties, on a Commonwealth entity for the purposes of the applied
Australian Consumer Law.
Note: Section 140G sets out when such a law imposes a duty on a
Commonwealth entity.
(2) Subsection (1) does not authorise the conferral of a function or
power, or the imposition of a duty, by an application law to the
extent to which:
(a) the conferral or imposition, or the authorisation, would
contravene any constitutional doctrines restricting the duties
that may be imposed on the Commonwealth entity; or
(b) the authorisation would otherwise exceed the legislative
power of the Commonwealth.
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(3) The Commonwealth entity cannot perform a duty or function, or
exercise a power, under an application law unless the conferral of
the function or power, or the imposition of the duty, is in
accordance with an agreement between the Commonwealth and the
State or Territory concerned.
140F How duty is imposed
Application
(1) This section applies if an application law purports to impose a duty
on a Commonwealth entity.
Note: Section 140G sets out when such a law imposes a duty on a
Commonwealth entity.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law
of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State
or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is
consistent with the constitutional doctrines restricting the
duties that may be imposed on the entity.
Note: If this subsection applies, the duty will be taken to be imposed by
force of the law of the State or Territory (the Commonwealth having
consented under section 140E to the imposition of the duty by that
law).
Commonwealth legislative power sufficient to support duty but
State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it
is necessary that the duty be imposed by a law of the
Commonwealth (rather than by the law of the State or Territory),
the duty is taken to be imposed by this Act to the extent necessary
to ensure that validity.
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(4) If, because of subsection (3), this Act is taken to impose the duty, it
is the intention of the Parliament to rely on all powers available to
it under the Constitution to support the imposition of the duty by
this Act.
(5) The duty is taken to be imposed by this Act in accordance with
subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the
duties that may be imposed on the entity.
(6) Subsections (1) to (5) do not limit section 140E.
140G When an application law imposes a duty
For the purposes of this Part, an application law imposes a duty on
a Commonwealth entity if:
(a) the law confers a function or power on the entity; and
(b) the circumstances in which the function or power is
conferred give rise to an obligation on the entity to perform
the function or to exercise the power.
140H Application laws may operate concurrently with this Act
This Act is not intended to exclude the operation of any application
law, to the extent that the application law is capable of operating
concurrently with this Act.
140J No doubling-up of liabilities
(1) If:
(a) an act or omission is an offence against this Act and is also
an offence against an application law; and
(b) the offender has been punished for the offence under the
application law;
the offender is not liable to be punished for the offence against this
Act.
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(2) If a person has been ordered to pay a pecuniary penalty under an
application law, the person is not liable to a pecuniary penalty
under this Act in respect of the same conduct.
140K References in instruments to the Australian Consumer Law
(1) A reference in any instrument to the Australian Consumer Law is a
reference to:
(a) the Australian Consumer Law as applied under Division 2 of
Part XI; and
(b) the applied Australian Consumer Laws of any or all of the
participating jurisdictions.
(2) Subsection (1) has effect except so far as the contrary intention
appears in the instrument or the context of the reference otherwise
requires.
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Part XIA The Competition Code
Section 150A
176 Competition and Consumer Act 2010
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Part XIA—The Competition Code
150A Definitions
In this Part, unless the contrary intention appears:
application law means:
(a) a law of a participating jurisdiction that applies the
Competition Code, either with or without modifications, as a
law of the participating jurisdiction; or
(b) any regulations or other legislative instrument made under a
law described in paragraph (a); or
(c) the Competition Code, applying as a law of the participating
jurisdiction, either with or without modifications.
apply, in relation to the Competition Code, means apply the
Competition Code by reference:
(a) as in force from time to time; or
(b) as in force at a particular time.
Commonwealth entity means:
(a) an authority of the Commonwealth; or
(b) an officer of the Commonwealth.
Competition Code means (according to the context):
(a) the text described in section 150C; or
(b) that text, applying as a law of a participating jurisdiction,
either with or without modifications.
modifications includes additions, omissions and substitutions.
officer, in relation to the Commonwealth, includes the following:
(a) a Minister;
(b) a person who holds:
(i) an office established by or under an Act;
(ii) an appointment made under an Act;
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(iii) an appointment made by the Governor-General or a
Minister but not under an Act;
(c) a person who is a member or officer of an authority of the
Commonwealth;
(d) a person who is in the service or employment of the
Commonwealth, or of an authority of the Commonwealth, or
is employed or engaged under an Act.
participating jurisdiction means a participating State or Territory.
participating State means a State that is a party to the Conduct
Code Agreement and applies the Competition Code as a law of the
State, either with or without modifications.
participating Territory means a Territory that is a party to the
Conduct Code Agreement and applies the Competition Code as a
law of the Territory, either with or without modifications.
Schedule version of Part IV means the text that is set out in Part 1
of Schedule 1 to this Act.
Territory means the Australian Capital Territory or the Northern
Territory.
150B Objects of this Part
The objects of this Part are:
(a) to facilitate the application of the Competition Code by
participating Territories; and
(b) to facilitate the application of the Competition Code by
participating States.
150C The Competition Code
(1) The Competition Code consists of:
(a) the Schedule version of Part IV;
(b) the remaining provisions of this Act (except sections 2A, 5, 6
and 172), so far as they would relate to the Schedule version
if the Schedule version were substituted for Part IV;
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(c) the regulations under this Act, so far as they relate to any
provision covered by paragraph (a) or (b).
(2) For the purpose of forming part of the Competition Code, the
provisions referred to in paragraphs (1)(b) and (c) are to be
modified as necessary to fit in with the Schedule version of
Part IV. In particular, references to corporations are to include
references to persons who are not corporations.
150D Federal Court may exercise jurisdiction under application
laws of Territories
The Federal Court may exercise jurisdiction (whether original or
appellate) conferred on that Court by an application law of a
Territory with respect to matters arising under the Competition
Code.
150E Exercise of jurisdiction under cross-vesting provisions
This Part does not affect the operation of any other law of the
Commonwealth, or any law of a State or Territory, relating to
cross-vesting of jurisdiction.
150F Commonwealth consent to conferral of functions etc. on
Commonwealth entities
(1) An application law may confer functions or powers, or impose
duties, on a Commonwealth entity for the purposes of the
Competition Code.
Note: Section 150FB sets out when such a law imposes a duty on a
Commonwealth entity.
(2) Subsection (1) does not authorise the conferral of a function or
power, or the imposition of a duty, by an application law to the
extent to which:
(a) the conferral or imposition, or the authorisation, would
contravene any constitutional doctrines restricting the duties
that may be imposed on the Commonwealth entity; or
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(b) the authorisation would otherwise exceed the legislative
power of the Commonwealth.
(3) The Commonwealth entity cannot perform a duty or function, or
exercise a power, under an application law unless the conferral of
the function or power, or the imposition of the duty, is in
accordance with an agreement between the Commonwealth and the
State or Territory concerned.
150FA How duty is imposed
Application
(1) This section applies if an application law purports to impose a duty
on a Commonwealth entity.
Note: Section 150FB sets out when such a law imposes a duty on a
Commonwealth entity.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law
of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State
or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is
consistent with the constitutional doctrines restricting the
duties that may be imposed on the entity.
Note: If this subsection applies, the duty will be taken to be imposed by
force of the law of the State or Territory (the Commonwealth having
consented under section 150F to the imposition of the duty by that
law).
Commonwealth legislative power sufficient to support duty but
State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it
is necessary that the duty be imposed by a law of the
Commonwealth (rather than by the law of the State or Territory),
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the duty is taken to be imposed by this Act to the extent necessary
to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose the duty, it
is the intention of the Parliament to rely on all powers available to
it under the Constitution to support the imposition of the duty by
this Act.
(5) The duty is taken to be imposed by this Act in accordance with
subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the
duties that may be imposed on the entity.
(6) Subsections (1) to (5) do not limit section 150F.
150FB When an application law imposes a duty
For the purposes of sections 150F and 150FA, an application law
imposes a duty on a Commonwealth entity if:
(a) the law confers a function or power on the entity; and
(b) the circumstances in which the function or power is
conferred give rise to an obligation on the entity to perform
the function or to exercise the power.
150G Application laws may operate concurrently with this Act
This Act is not intended to exclude the operation of any application
law, to the extent that the application law is capable of operating
concurrently with this Act.
150H No doubling-up of liabilities
(1) If:
(a) an act or omission is an offence against this Act and is also
an offence against an application law; and
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(b) the offender has been punished for the offence under the
application law;
the offender is not liable to be punished for the offence against this
Act.
(2) If a person has been ordered to pay a pecuniary penalty under an
application law, the person is not liable to a pecuniary penalty
under this Act in respect of the same conduct.
150I References in instruments to the Competition Code
(1) A reference in any instrument to the Competition Code is a
reference to the Competition Codes of any or all of the
participating jurisdictions.
(2) Subsection (1) has effect except so far as the contrary intention
appears in the instrument or the context of the reference otherwise
requires.
150J Authorisations etc. under this Act may relate also to
Competition Code
The validity of an authorisation, notification, clearance or any
other thing given or done for the purposes of this Act is not
affected only because it was given or done also for the purposes of
the Competition Code.
150K Gazettal of jurisdictions that excessively modify the Code
(1) If the Minister is satisfied that the laws of a participating
jurisdiction have made significant modifications to the
Competition Code in its application to persons within the
legislative competence of the participating jurisdiction, the
Minister may publish a notice in the Gazette stating that the
Minister is so satisfied.
(2) The Minister may, by further notice in the Gazette, revoke a notice
published under subsection (1).
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Section 151AA
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Part XIB—The Telecommunications Industry:
Anti-competitive conduct and
record-keeping rules
Division 1—Introduction
151AA Simplified outline
The following is a simplified outline of this Part:
• This Part sets up a special regime for regulating anti-competitive conduct in the telecommunications industry.
The regime applies in addition to Part IV.
• The Part sets out the circumstances in which carriers and carriage service providers are said to engage in
anti-competitive conduct.
• A carrier or carriage service provider must not engage in anti-competitive conduct. This rule is called the competition
rule.
• The Commission may issue a notice stating that a specified carrier or carriage service provider has engaged, or is
engaging, in anti-competitive conduct. The notice is called a
Part A competition notice.
• Proceedings for the enforcement of the competition rule (other than proceedings for injunctive relief) must not be instituted
unless the alleged conduct is of a kind dealt with in a Part A
competition notice that was in force at the time when the
alleged conduct occurred.
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• The Commission may issue a notice stating that a specified carrier or carriage service provider has contravened, or is
contravening, the competition rule. The notice is called a Part
B competition notice.
• A Part B competition notice is prima facie evidence of the matters in the notice.
• The Commission may make an order exempting specified conduct from the scope of the definition of anti-competitive
conduct. The order is called an exemption order.
• Carriers and carriage service providers may be directed to file tariff information with the Commission. The direction is
called a tariff filing direction.
• The Commission may make record-keeping rules that apply to carriers and carriage service providers.
• Carriers and carriage service providers may be directed by the Commission to make certain reports available. The direction
is called a disclosure direction.
151AB Definitions
In this Part, unless the contrary intention appears:
ACMA means the Australian Communications and Media
Authority.
anti-competitive conduct has the meaning given by section 151AJ.
carriage service has the same meaning as in the
Telecommunications Act 1997.
carriage service provider has the same meaning as in the
Telecommunications Act 1997.
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carrier has the same meaning as in the Telecommunications Act
1997.
carrier licence has the same meaning as in the
Telecommunications Act 1997.
competition notice means:
(a) a Part A competition notice; or
(b) a Part B competition notice.
competition rule means the rule set out in section 151AK.
content service has the same meaning as in the
Telecommunications Act 1997.
data processing device means any article or material (for example,
a disk) from which information is capable of being reproduced,
with or without the aid of any other article or device.
disclosure direction means a direction under
subsection 151BUB(2), 151BUC(2), 151BUDB(2) or
151BUDC(2).
eligible partnership has the same meaning as in the
Telecommunications Act 1997.
exemption order means an order under section 151BA.
facility has the same meaning as in the Telecommunications Act
1997.
Federal Court means the Federal Court of Australia.
listed carriage service has the same meaning as in the
Telecommunications Act 1997.
Ministerially-directed report has the meaning given by
section 151BUAA.
NBN corporation has the same meaning as in the National
Broadband Network Companies Act 2011.
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Section 151AC
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Part A competition notice means a notice issued under
subsection 151AKA(1) or (2).
Part B competition notice means a notice issued under
subsection 151AL(1).
person includes a partnership.
Note: Section 151CH sets out additional rules about partnerships.
record-keeping rule means a rule under section 151BU.
service provider rule has the same meaning as in the
Telecommunications Act 1997.
tariff filing direction means a direction under section 151BK.
telecommunications market has the meaning given by
section 151AF.
151AC Extension to external Territories
This Part, and the other provisions of this Act so far as they relate
to this Part, extend to each eligible Territory (within the meaning
of the Telecommunications Act 1997).
151AD Continuity of partnerships
For the purposes of this Part, a change in the composition of a
partnership does not affect the continuity of the partnership.
151AE Additional operation of Part
(1) Without prejudice to its effect apart from this section, this Part also
has effect as provided by this section.
(2) This Part has, by force of this subsection, the effect it would have
if:
(a) any references in this Part to a carrier were, by express
provision, confined to a carrier that is a corporation; and
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(b) any references in this Part to a carriage service provider were,
by express provision, confined to a carriage service provider
that is a corporation.
(3) In addition to the effect that this Part has as provided by
subsection (2), this Part has, by force of this subsection, the effect
it would have if subsections 151AJ(2) and (3) were, by express
provision, confined in their operation to engaging in conduct to the
extent to which the conduct takes place in the course of or in
relation to:
(a) trade or commerce between Australia and places outside
Australia; or
(b) trade or commerce among the States; or
(c) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(d) the supply of goods or services to the Commonwealth or an
authority or instrumentality of the Commonwealth.
151AF Telecommunications market
For the purposes of this Part, a telecommunications market is a
market in which any of the following goods or services are
supplied or acquired:
(a) carriage services;
(b) goods or services for use in connection with a carriage
service;
(c) access to facilities;
(d) content services.
Note: Market has a meaning affected by section 4E.
151AG When a body corporate is related to a partnership
For the purposes of this Part, if:
(a) a carrier or a carriage service provider is a partnership; and
(b) a body corporate is related to a partner in the partnership;
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the body corporate is taken to be related to the carrier or carriage
service provider, as the case requires.
151AH Degree of power in a telecommunications market
(1) For the purposes of this Part, if:
(a) a body corporate is related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) the body corporate has a substantial degree of power in a
telecommunications market;
the carrier or carriage service provider, as the case requires, is
taken to have a substantial degree of power in that market.
(2) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to the one:
(i) carrier; or
(ii) carriage service provider; and
(b) those bodies corporate together have a substantial degree of
power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is
taken to have a substantial degree of power in that market.
(3) For the purposes of this Part, if:
(a) a body corporate is related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) the body corporate and the carrier or carriage service
provider, as the case may be, together have a substantial
degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is
taken to have a substantial degree of power in that market.
(4) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to:
(i) a carrier; or
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(ii) a carriage service provider; and
(b) those bodies corporate and that carrier or carriage service
provider, as the case may be, together have a substantial
degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is
taken to have a substantial degree of power in that market.
(5) In determining, for the purposes of this Part, the degree of power
that a person has, or that persons have, in a telecommunications
market, regard must be had to the extent to which the conduct of
the person or any of those persons in that market is constrained by
the conduct of:
(a) competitors, or potential competitors, of the person or of any
of those persons in that market; or
(b) persons to whom or from whom the person or any of those
persons supplies or acquires goods or services in that market.
(5A) In determining, for the purposes of this Part, the degree of power
that a person has, or that persons have, in a telecommunications
market, regard may be had to the power that the person has, or that
the persons have, in that market that results from:
(a) any contracts, arrangements or understandings, or proposed
contracts, arrangements or understandings, that the person
has or may have, or that the persons have or may have, with
another party or parties; and
(b) any covenants, or proposed covenants, that the person is or
would be, or that the persons are or would be, bound by or
entitled to the benefit of.
(6) Subsections (5) and (5A) do not, by implication, limit the matters
to which regard may be had in determining, for the purposes of this
Part, the degree of power that a person has, or that persons have, in
a telecommunications market.
(6A) For the purposes of this Part, without limiting the matters to which
the Court may have regard for the purpose of determining whether
a person has a substantial degree of power in a telecommunications
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market, a person may have a substantial degree of power in a
telecommunications market even though:
(a) the person does not substantially control the market; or
(b) the person does not have absolute freedom from constraint by
the conduct of:
(i) competitors, or potential competitors, of the person in
that market; or
(ii) persons to whom or from whom the person supplies or
acquires goods or services in that market.
(6B) To avoid doubt, for the purposes of this Part, more than 1 person
may have a substantial degree of power in a telecommunications
market.
(7) In this Part:
(a) a reference to power is a reference to market power; and
(b) a reference to power in relation to, or to conduct in, a
telecommunications market is a reference to power, or to
conduct, in that market either as a supplier or as an acquirer
of goods or services in that market.
151AI Interpretation of Part IV or VII not affected by this Part
In determining the meaning of a provision of Part IV or VII, the
provisions of this Part are to be ignored.
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Division 2 Anti-competitive conduct
Section 151AJ
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Division 2—Anti-competitive conduct
151AJ Anti-competitive conduct
(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.
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(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 44ZZRJ,
44ZZRK, 45, 45B, 46, 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 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48, the following
assumptions are to be made:
(a) the assumption that each reference to a corporation in:
(i) those sections; and
(ii) sections 44ZZRL and 44ZZRM;
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 44ZZRN 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, 45B, 46, 47 or 48, the
following assumptions are to be made:
(a) the assumption that the expression ―or any body corporate
related to such a corporation‖ were omitted from
subsection 45(3);
(b) the assumption that the expression ―or a body corporate
related to the corporation‖ were omitted from
paragraph 45(4)(b);
(c) the assumption that the expression ―or of a body corporate
that is related to the corporation‖ were omitted from
paragraphs 46(1)(a) and (1AA)(a);
(d) the assumption that subsection 46(2) had not been enacted;
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Section 151AJ
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(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 44ZZRJ,
44ZZRK, 45, 45B, 46, 47 or 48:
(a) because an authorisation is in force; or
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Section 151AK
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(b) because of the operation of subsection 44ZZRL(1) or 45(8A)
or section 93; or
(c) because of the operation of subsection 45(9); or
(d) because of the operation of subsection 45B(8); or
(e) because of the operation of section 44ZZRM.
(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).
151AK The competition rule
(1) A carrier or carriage service provider must not engage in
anti-competitive conduct.
(2) For the purposes of this Part, the rule set out in subsection (1) is to
be known as the competition rule.
Note: For enforcement of the competition rule, see Division 7.
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Section 151AKA
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Division 3—Competition notices and exemption orders
Subdivision A—Competition notices
151AKA Part A competition notices
Particular anti-competitive conduct
(1) The Commission may issue a written notice stating that a specified
carrier or carriage service provider has engaged, or is engaging, in
a specified instance of anti-competitive conduct.
Kind of anti-competitive conduct
(2) The Commission may issue a written notice stating that a specified
carrier or carriage service provider has engaged, or is engaging, in
at least one instance of anti-competitive conduct of a kind
described in the notice.
Part A competition notice
(3) A notice under subsection (1) or (2) is to be known as a Part A
competition notice.
Part A competition notices under subsection (2)
(4) For the purposes of this Part, a kind of anti-competitive conduct
described in a Part A competition notice under subsection (2) is
taken to be conduct of a kind dealt with in the notice.
(5) To avoid doubt, a Part A competition notice under subsection (2) is
not required to specify any instance of anti-competitive conduct.
(6) In deciding how to describe a kind of anti-competitive conduct in a
Part A competition notice under subsection (2), the Commission
may have regard to:
(a) whether the carrier or carriage service provider concerned
could, by varying its conduct, continue to engage in
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Section 151AL
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anti-competitive conduct and avoid proceedings against it
under one or more provisions of Division 7; and
(b) any other matters that the Commission thinks are relevant.
Threshold for issuing Part A competition notices
(7) The Commission may issue a Part A competition notice under
subsection (1) that specifies an instance of anti-competitive
conduct if the Commission has reason to believe that the carrier or
carriage service provider concerned has engaged, or is engaging, in
that instance of anti-competitive conduct.
(8) The Commission may issue a Part A competition notice under
subsection (2) that describes a kind of anti-competitive conduct if
the Commission has reason to believe that the carrier or carriage
service provider concerned has engaged, or is engaging, in at least
one instance of anti-competitive conduct of that kind.
Procedural fairness
(9) The Commission is not required to observe any requirements of
procedural fairness in relation to the issue of a Part A competition
notice.
Note: For the effect of a Part A competition notice, see
subsections 151BY(3), 151CB(3), 151CC(3) and 151CE(5).
151AL Part B competition notices
(1) The Commission may issue a written notice:
(a) stating that a specified carrier or carriage service provider has
contravened, or is contravening, the competition rule; and
(b) setting out particulars of that contravention.
(2) A notice under subsection (1) is to be known as a Part B
competition notice.
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Section 151AM
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Threshold for issuing Part B competition notices
(3) The Commission may issue a Part B competition notice relating to
a particular contravention if the Commission has reason to believe
that the carrier or carriage service provider concerned has
committed, or is committing, the contravention.
Notice may be issued after proceedings have been instituted
(4) To avoid doubt, a Part B competition notice may be issued even if
any relevant proceedings under Division 7 have been instituted.
Note: For the effect of a Part B competition notice, see
subsection 151AN(1).
151AM Competition notice to be given to carrier or carriage service
provider
As soon as practicable after issuing a competition notice, the
Commission must give a copy of the competition notice to the
carrier or carriage service provider concerned.
151AN Evidentiary effect of competition notice
(1) In any proceedings under, or arising out of, this Part, a Part B
competition notice is prima facie evidence of the matters in the
notice.
(2) A document purporting to be a competition notice must, unless the
contrary is established, be taken to be a competition notice and to
have been properly issued.
(3) The Commission may certify that a document is a copy of a
competition notice.
(4) This section applies to the certified copy as if it were the original.
151AO Duration of Part A competition notice
(1) A Part A competition notice comes into force:
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(a) when it is issued; or
(b) if the notice specifies a later time—at that later time;
and, unless sooner revoked, remains in force until the end of the
period specified in the notice. The period must not be longer than
12 months.
(2) If a Part A competition notice expires, this Part does not prevent
the Commission from issuing a fresh Part A competition notice
under section 151AKA that relates to the same matter as the
expired notice.
151AOA Variation of competition notice
(1) If a competition notice is in force in relation to a carrier or carriage
service provider, the Commission may vary the competition notice
so long as the variation is of a minor nature.
(2) If a Part A competition notice is in force in relation to a carrier or
carriage service provider, the Commission may vary the
competition notice by omitting the time at which the notice is
expressed to come into force and substituting a later time.
(3) If a competition notice is varied, the Commission must give the
carrier or carriage service provider concerned a written notice
setting out the terms of the variation.
151AOB Revocation of competition notice
(1) The Commission may revoke a competition notice.
(2) If a competition notice is revoked, the Commission must give the
carrier or carriage service provider concerned a written notice
stating that the notice has been revoked.
151AP Guidelines
(1) In deciding whether to issue a competition notice, the Commission
must have regard to:
(a) any guidelines in force under subsection (2); and
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Section 151AQ
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(b) such other matters as the Commission considers relevant.
(2) The Commission must, by written instrument, formulate guidelines
for the purposes of subsection (1).
(3) Guidelines under subsection (2) must address the appropriateness
of the Commission issuing a competition notice as opposed to the
Commission taking other action under this Act.
(4) The Commission must take all reasonable steps to ensure that
guidelines under subsection (2) comply with subsection (3) within
12 months after the commencement of this subsection.
151AQ Commission to act expeditiously
(1) If the Commission has reason to suspect that a carrier or carriage
service provider has contravened, or is contravening, the
competition rule, the Commission must act expeditiously in
deciding whether to issue a competition notice in relation to that
contravention.
(2) A failure to comply with subsection (1) does not affect the validity
of a competition notice.
151AQA Stay of proceedings relating to competition notices
(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the
Administrative Decisions (Judicial Review) Act 1977 do not apply
to a decision to issue a competition notice.
(2) If a person applies to the Federal Court under subsection 39B(1) of
the Judiciary Act 1903 for a writ or injunction in relation to a
decision to issue a competition notice, the Court must not make
any orders staying or otherwise affecting the operation or
implementation of the decision pending the finalisation of the
application. However, this subsection does not apply to an order
under subsection (3).
(3) If:
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Section 151AQB
Competition and Consumer Act 2010 199
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(a) either:
(i) a person applies to the Federal Court under the
Administrative Decisions (Judicial Review) Act 1977 for
review of a decision to issue a competition notice; or
(ii) a person applies to the Federal Court under
subsection 39B(1) of the Judiciary Act 1903 for a writ
or injunction in relation to a decision to issue a
competition notice; and
(b) any relevant proceedings have been instituted under
Division 7 of this Part;
the Federal Court or a Judge of the Federal Court may, by order, on
such conditions as the Court or the Judge thinks fit, stay those
proceedings.
(4) If:
(a) a person applies to the Federal Circuit Court under the
Administrative Decisions (Judicial Review) Act 1977 for
review of a decision to issue a competition notice; and
(b) any relevant proceedings have been instituted under
Division 7 of this Part;
the Federal Circuit Court or a Judge of the Federal Circuit Court
may, by order, on such conditions as the Court or the Judge thinks
fit, stay those proceedings.
151AQB Advisory notices
Issue of advisory notice
(1) The Commission may give a carrier or carriage service provider a
written notice (an advisory notice) advising the carrier or provider
of the action it should take, or consider taking, in order to ensure
that it does not engage, or continue to engage, in anti-competitive
conduct.
(2) The Commission does not have a duty to consider whether to issue
an advisory notice in relation to:
(a) a particular instance of anti-competitive conduct; or
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Section 151AR
200 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(b) a particular kind of anti-competitive conduct;
before it issues a Part A competition notice in relation to that
instance or kind of conduct.
Nature of advisory notice
(3) An advisory notice is an instrument of an advisory character.
Varying or revoking advisory notice
(5) The Commission may vary or revoke an advisory notice.
(6) If an advisory notice is varied, the Commission must give the
carrier or carriage service provider concerned a written notice
setting out the terms of the variation.
(7) If an advisory notice is revoked, the Commission must give the
carrier or carriage service provider concerned a written notice
stating that the advisory notice has been revoked.
Publication of advisory notice
(8) If the Commission is satisfied that:
(a) the publication of an advisory notice would result, or be
likely to result, in a benefit to the public; and
(b) that benefit would outweigh any substantial prejudice to the
commercial interests of a person that would result, or be
likely to result, if the advisory notice were published;
the Commission may publish the advisory notice in such manner as
it thinks fit.
151AR Register of competition notices
(1) The Commission must keep a Register in relation to competition
notices.
(2) The Register must include particulars of all competition notices
(including notices that have expired).
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Section 151AS
Competition and Consumer Act 2010 201
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(3) The Register may be maintained by electronic means.
(4) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(5) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or
taken an extract from, the Register if the Commission gives the
person a printout of, or of the relevant parts of, the Register.
(6) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
Subdivision B—Exemption orders
151AS Exemption orders
(1) A person may apply to the Commission for an order exempting
specified conduct of the person from the scope of section 151AJ
(which deals with anti-competitive conduct). The order is called an
exemption order.
(2) An exemption order is not invalid only because the conduct
specified in the order is conduct of a kind that, apart from the
order, is outside the scope of section 151AJ (which deals with
anti-competitive conduct).
151AT Form of application
An application for an exemption order must be:
(a) in writing; and
(b) in a form approved in writing by the Commission; and
(c) accompanied by the prescribed fee.
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Section 151AU
202 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
151AU Further information
(1) The Commission may request an applicant for an exemption order
to give the Commission further information about the application.
(2) The Commission may refuse to consider the application until the
applicant gives the Commission the information.
(3) The Commission may withdraw its request for further information,
in whole or in part.
151AV Withdrawal of application
An applicant for an exemption order may withdraw the application
by written notice given to the Commission.
151AW Commission must publicise receipt of applications
If the Commission receives an application for an exemption order,
the Commission must publicise the receipt of the application in
such manner as it thinks fit.
151AX Commission may refuse to consider application if it relates to
the same conduct as an authorisation application
(1) This section applies if:
(a) the Commission receives, or has received, an application for
an exemption order; and
(b) the Commission receives, or has received, an application for
an authorisation under Division 1 of Part VII; and
(c) the application for the exemption order and the application
for the authorisation relate to the same conduct.
(2) The Commission may refuse to:
(a) consider the application for the exemption order; or
(b) convene a conference under section 151AZ to discuss the
application for the exemption order;
until:
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Section 151AY
Competition and Consumer Act 2010 203
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(c) the Commission has made a determination under section 90
in relation to the application for the authorisation; or
(d) if the Commission makes such a determination—the expiry
of the time limit allowed for a person to apply to the Tribunal
for a review of the determination; or
(e) if a person applies to the Tribunal for a review of the
determination—the review (including any court proceedings
arising out of the review) is finalised.
151AY Commission may refuse to consider application if it relates to
the same conduct as a Part VII notification
(1) This section applies if:
(a) the Commission receives, or has received, an application for
an exemption order; and
(b) the Commission receives, or has received, a notice under
subsection 93(1) or 93AB(1A) or (1); and
(c) the application for the exemption order and the notice relate
to the same conduct.
(2) The Commission may refuse to:
(a) consider the application for the exemption order; or
(b) convene a conference under section 151AZ to discuss the
application for the exemption order;
until:
(c) the Commission decides whether or not to give a notice
under subsection 93(3) or (3A) or 93AC(1) or (2); or
(d) if the Commission gives such a notice—the expiry of the
time limit allowed for a person to apply to the Tribunal for
review of the decision; or
(e) if a person applies to the Tribunal for a review of the
decision—the review (including any court proceedings
arising out of the review) is finalised.
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Division 3 Competition notices and exemption orders
Section 151AZ
204 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
151AZ Commission may convene conference to discuss application
(1) If the Commission receives an application for an exemption order,
the Commission may convene a conference to discuss the
application.
(2) If the Commission decides to convene a conference, the
Commission must give:
(a) the applicant (or a representative of the applicant); and
(b) any other persons whom the Commission considers
interested;
a reasonable opportunity to attend and take part in the conference.
(3) This Act does not prevent a conference under this section from
being combined with a conference under section 90A or 93A if the
combined conference relates to the same conduct.
151BA Commission must grant or reject application
If the Commission receives an application for an exemption order,
the Commission must either:
(a) make the order; or
(b) refuse to make the order.
151BB Commission to give opportunity for submissions
Before making an exemption order, the Commission must give:
(a) the applicant; and
(b) any other person whom the Commission considers interested;
a reasonable opportunity to make submissions to the Commission
about the order.
151BC Criteria for making exemption order
(1) The Commission must not make an exemption order in relation to
particular conduct of a person unless it is satisfied that:
(a) both:
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Section 151BC
Competition and Consumer Act 2010 205
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(i) the conduct will result, or is likely to result, in a benefit
to the public; and
(ii) that benefit outweighs, or will outweigh, the detriment
to the public constituted by any lessening of competition
that will result, or is likely to result, from engaging in
the conduct; or
(b) the conduct is not anti-competitive conduct.
(2) In determining whether the Commission is satisfied about the
matters referred to in paragraph (1)(a), the Commission may have
regard to the following matters:
(a) the extent to which the conduct relates to the supply of goods
or services on favourable terms and conditions to:
(i) a financially disadvantaged individual; or
(ii) an individual who is disadvantaged on health grounds;
or
(iii) a registered charity; or
(iiia) a community organisation that is a not-for-profit entity
and is not a charity; or
(iv) an educational institution; or
(v) a health facility;
(b) the extent to which the conduct relates to the supply of goods
or services for:
(i) community, charitable or educational purposes; or
(ii) the promotion of health or safety;
on favourable terms and conditions;
(c) the need to satisfy any applicable universal service
obligation;
(d) the extent to which the conduct prevents or reduces, or is
likely to prevent or reduce, pollution or other forms of
degradation of environmental amenity;
(e) the extent to which the conduct contributes, or is likely to
contribute, to technical innovation, or the development of
new goods or services, by Australian industry.
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Division 3 Competition notices and exemption orders
Section 151BD
206 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(3) Subsection (2) does not, by implication, limit the matters to which
the Commission may have regard.
(4) The Commission must not make an exemption order in relation to
particular conduct of a person if:
(a) the conduct is in contravention of section 46; and
(b) subsection 46(6) does not apply to the conduct.
(5) Subsections 151AJ(4) and (5) apply for the purposes of
subsection (4) of this section in a corresponding way to the way in
which they apply for the purposes of subsection 151AJ(3).
(6) In this section:
environment includes all aspects of the surroundings of human
beings, whether affecting human beings as individuals or in social
groupings.
151BD Notification of decision
(1) If the Commission makes an exemption order, the Commission
must give the applicant a written notice setting out the order and
the reasons for the order.
(2) If the Commission refuses to make an exemption order, the
Commission must give the applicant a written notice stating that
the order has been refused and setting out the reasons for the
refusal.
151BE Duration of exemption order may be limited
An exemption order may be expressed to be in force for a period
specified in the order.
151BF Conditions of exemption order
An exemption order may be expressed to be subject to such
conditions as are specified in the order.
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Section 151BG
Competition and Consumer Act 2010 207
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151BG Revocation of exemption order
(1) If:
(a) an exemption order is in force in relation to a person; and
(b) the Commission is satisfied that:
(i) the order was made on the basis of information that was
false or misleading in a material particular; or
(ii) a condition to which the order is subject has been
contravened; or
(iii) there has been a material change of circumstances since
the order was made;
the Commission may revoke the order.
(2) The Commission must not revoke an exemption order unless the
Commission has first:
(a) published a draft notice of revocation and invited people to
make submissions to the Commission on the draft notice; and
(b) considered any submissions that were received within the
time limit specified by the Commission when it published the
draft notice.
(3) The Commission may make a further exemption order under
section 151BA in substitution for the revoked order.
(4) If the Commission revokes an exemption order relating to a person,
the Commission must give the person a written notice stating that
the order has been revoked and setting out the reasons for the
revocation.
(5) A revocation of an exemption order takes effect:
(a) at the time when notice of the revocation is given; or
(b) if a later time is specified in the notice of the revocation—at
that later time.
151BH Register of exemption orders
(1) The Commission must keep a Register in relation to exemption
orders.
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Division 3 Competition notices and exemption orders
Section 151BH
208 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(2) The Register must include the following:
(a) particulars of all exemption orders (including orders that
have expired);
(b) applications for exemption orders received by the
Commission (including applications that have been
withdrawn);
(c) particulars of decisions refusing to make exemption orders;
(d) particulars of decisions revoking, or refusing to revoke,
exemption orders;
(e) particulars of the Commission’s reasons for making
exemption orders.
(3) Despite subsection (2), the Register must not set out information
covered by subsection (2) if the disclosure of the information could
reasonably be expected to prejudice substantially the commercial
interests of the person, or any of the persons, to whom the
information relates.
(4) The Register may be maintained by electronic means.
(5) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(6) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or
taken an extract from, the Register if the Commission gives the
person a printout of, or of the relevant parts of, the Register.
(7) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
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Section 151BJ
Competition and Consumer Act 2010 209
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Subdivision C—Miscellaneous
151BJ Conduct includes proposed conduct
A reference in this Division to conduct includes a reference to
proposed conduct.
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Division 4 Tariff filing
Section 151BK
210 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 4—Tariff filing
151BK Tariff filing directions
(1) This section applies to a person who is a carrier or carriage service
provider if the Commission is satisfied that the person has a
substantial degree of power in a telecommunications market.
(2) The Commission may give the person a written direction that:
(a) contains a statement to the effect that any or all of the
following are within the scope of the direction:
(i) specified carriage services;
(ii) specified ancillary goods;
(iii) specified ancillary services; and
(b) complies with subsection (3), (4) or (5).
The direction is called a tariff filing direction.
Note: For enforcement of tariff filing directions, see Division 7.
(3) A direction complies with this subsection if it contains a
requirement that if, at the time the direction is given, the person has
charges for goods or services within the scope of the direction, the
person must give the Commission, within the period and in the
form specified in the direction, a written statement setting out such
information about those charges as is specified in the direction.
(4) A direction complies with this subsection if it contains a
requirement that the person must, at least 7 days before:
(a) imposing a new charge for goods or services within the scope
of the direction at any time when the direction is in force; or
(b) varying a charge for goods or services within the scope of the
direction at any time when the direction is in force; or
(c) ceasing to impose a charge for goods or services within the
scope of the direction at any time when the direction is in
force;
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Section 151BK
Competition and Consumer Act 2010 211
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
give the Commission, in the form specified in the direction, a
written statement setting out such information about the person’s
intentions as is specified in the direction.
Note: See subsection (6) for a special rule relating to this subsection.
(5) A direction complies with this subsection if it contains a
requirement that, in the event that the person:
(a) imposes a new charge for goods or services within the scope
of the direction at any time when the direction is in force; or
(b) varies a charge for goods or services within the scope of the
direction at any time when the direction is in force; or
(c) ceases to impose a charge for goods or services within the
scope of the direction at any time when the direction is in
force;
the person must give the Commission:
(d) within such period after the imposition, variation or
cessation, as the case may be, as is specified in the direction;
and
(e) in the form specified in the direction;
a written statement setting out such information about the
imposition, variation or cessation, as the case may be, as is
specified in the direction.
(6) The Commission may, on the application of the person, make a
written determination that subsection (4) has effect, in relation to a
specified matter, as if the reference in that subsection to 7 days
were a reference to such shorter period as is specified in the
determination. The determination has effect accordingly.
(7) This section does not, by implication, limit section 87B or 155.
(8) This section does not prevent 2 or more tariff filing directions
being given to the same person at the same time.
(9) For the purposes of this section, information relating to the terms
and conditions on which goods or services have been, are being or
are proposed to be supplied is taken to be information relating to
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Division 4 Tariff filing
Section 151BL
212 Competition and Consumer Act 2010
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charges that have been imposed, are being imposed or are proposed
to be imposed for those goods or services.
(10) A tariff filing direction given before 1 July 1997 comes into force
on 1 July 1997.
(11) In this section:
ancillary goods means goods for use in connection with a carriage
service.
ancillary service means a service for use in connection with a
carriage service.
variation, in relation to a charge, means a variation of the nature of
the charge or the amount of the charge, or both.
151BL Specification of goods and services
(1) Goods or services may be specified in a tariff filing direction by
reference to any or all of the following:
(a) the nature of the goods or services;
(b) the customers to whom the goods or services are, or are
proposed to be, supplied (whether those customers are
identified by name, by inclusion in a specified class or in any
other way);
(c) the kinds of terms and conditions on which the goods or
services are, or are proposed to be, supplied.
(2) Subsection (1) does not, by implication, limit the ways in which
goods and services may be specified in a tariff filing direction.
151BM Notification of reasons
If the Commission gives a tariff filing direction to a person, the
Commission must give the person a written notice setting out the
reasons for the direction.
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Section 151BN
Competition and Consumer Act 2010 213
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151BN Duration of direction may be limited
A tariff filing direction may be expressed to cease to be in force at
a time ascertained in accordance with the direction.
Note: A time specified in accordance with the direction may be the time of
occurrence of a specified event or the time when a specified condition
is satisfied.
151BO Revocation of direction
(1) If a tariff filing direction relating to a person is in force, the
Commission may revoke the direction.
(2) The Commission must give the person a written notice stating that
the direction has been revoked.
(3) A revocation of a tariff filing direction takes effect:
(a) at the time when the notice of revocation is given; or
(b) if a later time is specified in the notice of revocation—at that
later time.
151BP Variation of direction
(1) If a tariff filing direction relating to a person is in force, the
Commission may vary the direction.
(2) The Commission must give the person a written notice setting out:
(a) the terms of the variation; and
(b) the reasons for the variation.
(3) A variation of a tariff filing direction takes effect:
(a) at the time when the notice of variation is given; or
(b) if a later time is specified in the notice of variation—at that
later time.
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Section 151BQ
214 Competition and Consumer Act 2010
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151BQ Public access to tariff information
(1) This section applies to a particular item of information given to the
Commission by a person (the first person) in accordance with a
tariff filing direction.
(2) If the Commission is satisfied that:
(a) the disclosure of the information would result, or be likely to
result, in a benefit to the public; and
(b) that benefit would outweigh both:
(i) the detriment to the public constituted by any lessening
of competition that would result, or be likely to result, if
the information were disclosed; and
(ii) any substantial prejudice to the commercial interests of
a person that would result, or be likely to result, if the
information were disclosed;
the Commission must give the first person a written notice stating
that the Commission intends to make copies of the information,
together with copies of the direction, available for inspection and
purchase by the public.
(3) If the Commission gives the first person a notice under
subsection (2), the Commission must make copies of the
information, together with copies of the direction, available for
inspection and purchase by the public:
(a) as soon as practicable after the end of the 7-day period that
began when the notice was given to the first person; or
(b) if the Commission decides that the information and direction
should not be made available during a further period of up to
14 days—after the end of that further period.
151BR Register of tariff filing directions
(1) The Commission must keep a Register in relation to tariff filing
directions.
(2) The Register must include the following:
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Section 151BT
Competition and Consumer Act 2010 215
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(a) particulars of all tariff filing directions (including directions
that have expired);
(b) particulars of all revocations of tariff filing directions;
(c) particulars of all variations of tariff filing directions.
(3) The Register may be maintained by electronic means.
(4) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(5) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or
taken an extract from, the Register if the Commission gives the
person a printout of, or of the relevant parts of, the Register.
(6) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
151BT Meaning of terms and conditions
In this Division:
terms and conditions, in relation to the supply of goods or
services, includes:
(a) charges for the supply of the goods or services; and
(b) any discounts, allowances, rebates or credits given or allowed
in relation to the supply of the goods or services; and
(c) any commissions or similar benefits (whether monetary or
otherwise) payable or given in relation to the supply of the
goods or services; and
(d) the supply of other goods or services, where the other goods
or services are supplied in connection with the
first-mentioned goods or services; and
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Division 4 Tariff filing
Section 151BT
216 Competition and Consumer Act 2010
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(e) the making of payments for such other goods or services.
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Section 151BTA
Competition and Consumer Act 2010 217
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Division 5—Tariff filing by Telstra
151BTA Tariff filing by Telstra
(1) This section applies to a charge for a basic carriage service.
(2) At least 7 days before:
(a) imposing a new charge; or
(b) varying a charge; or
(c) ceasing to impose a charge;
Telstra must give the Commission, in a form approved in writing
by the Commission, a written statement setting out such
information about Telstra’s intentions as the Commission requires.
(3) The Commission may, on the application of Telstra, make a written
determination that subsection (2) has effect, in relation to a
specified matter, as if the reference in that subsection to 7 days
were a reference to such shorter period as specified in the
determination.
(4) A determination under subsection (3) has effect accordingly.
(5) Divisions 6 and 7 apply to a contravention of subsection (2) in a
corresponding way to the way in which they apply to a
contravention of a tariff filing direction.
(6) This section does not, by implication, limit the application of
Division 4 to Telstra.
(7) The Commission may, by written notice given to Telstra, exempt a
charge for a specified basic carriage service from the scope of
subsection (2).
(8) A basic carriage service may be specified for the purposes of
subsection (7) by reference to any or all of the following:
(a) the customers to whom the services are, or are proposed to
be, supplied;
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Division 5 Tariff filing by Telstra
Section 151BTA
218 Competition and Consumer Act 2010
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(b) the kinds of terms and conditions on which the services are,
or are proposed to be, supplied.
(9) Subsection (8) does not, by implication, limit subsection (7).
(10) An exemption under subsection (7) may be unconditional or
subject to such conditions (if any) as are specified in the
exemption.
(11) Section 151BQ applies to information given to the Commission
under this section in a corresponding way to the way in which it
applies to information given to the Commission in accordance with
a tariff filing direction.
(13) In this section:
basic carriage service has the meaning given by section 174 of the
Telecommunications Act 1991, as in force before 1 July 1997, but
does not include a service supplied to an existing carrier.
existing carrier means a person who held a general
telecommunications licence, or a public mobile licence, that was in
force under the Telecommunications Act 1991 immediately before
1 July 1997.
terms and conditions has the same meaning as in section 151BT.
variation, in relation to a charge, means a variation of the nature of
the charge or the amount of the charge, or both.
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The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Record-keeping rules and disclosure directions Division 6
Section 151BU
Competition and Consumer Act 2010 219
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Division 6—Record-keeping rules and disclosure directions
151BU Commission may make record-keeping rules
(1) The Commission may, by written instrument, make rules for and in
relation to requiring one or more specified carriers or one or more
specified carriage service providers to keep and retain records.
Rules under this subsection may also require those carriers or
carriage service providers to prepare reports consisting of
information contained in those records. Rules under this subsection
may also require those carriers or carriage service providers to give
any or all of the reports to the Commission. Rules under this
subsection are to be known as record-keeping rules.
Note 1: Carriers and carriage service providers may be specified by name, by
inclusion in a specified class or in any other way.
Note 2: For enforcement of the record-keeping rules, see Division 7.
(2) The rules may specify the manner and form in which the records
are to be kept.
(2A) The rules may specify the manner and form in which reports are to
be prepared.
(2B) The rules may provide for:
(a) the preparation of reports as and when required by the
Commission; or
(b) the preparation of periodic reports relating to such regular
intervals as are specified in the rules.
(2C) The rules may require or permit a report prepared in accordance
with the rules to be given to the Commission, in accordance with
specified software requirements and specified authentication
requirements:
(a) on a specified kind of data processing device; or
(b) by way of a specified kind of electronic transmission.
(2D) Subsections (2), (2A), (2B) and (2C) do not limit subsection (1).
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Division 6 Record-keeping rules and disclosure directions
Section 151BUAA
220 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(3) If the rules apply to a particular carrier or carriage service provider,
the Commission must give the carrier or provider a copy of the
rules.
(4) The Commission must not exercise its powers under this section so
as to require the keeping or retention of records unless the records
contain, or will contain, information that is relevant to:
(a) ascertaining whether the competition rule has been, or is
being, complied with; or
(b) ascertaining whether tariff filing directions have been, or are
being, complied with; or
(c) the operation of this Part (other than this Division); or
(d) the operation of Part XIC (which deals with access); or
(da) the operation of the National Broadband Network Companies
Act 2011 or regulations under that Act; or
(e) the operation of Division 3 of Part 20 of the
Telecommunications Act 1997 (which deals with Rules of
Conduct relating to dealings with international
telecommunications operators); or
(f) the operation of Part 9 of the Telecommunications (Consumer
Protection and Service Standards) Act 1999 (which deals
with regulation of Telstra’s charges).
(5) Record-keeping rules made before 1 July 1997 come into force on
1 July 1997.
(6) This section does not limit section 155 (which is about the general
information-gathering powers of the Commission).
151BUAA Minister may give directions to Commission
(1) The Minister may give written directions to the Commission in
relation to the exercise of its powers under section 151BU,
151BUDA, 151BUDB or 151BUDC.
(1A) The Minister may only give a direction under subsection (1) that:
(a) requires the Commission to exercise its powers under
section 151BU, 151BUDA, 151BUDB or 151BUDC; or
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The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
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Record-keeping rules and disclosure directions Division 6
Section 151BUAB
Competition and Consumer Act 2010 221
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(b) requires the Commission to exercise its powers under
section 151BU, 151BUDA, 151BUDB or 151BUDC in a
particular way.
(1B) The Minister may give a written direction to the Commission
requiring it, in the event that it receives a specified
Ministerially-directed report, to:
(a) prepare a specified kind of analysis of the report; and
(b) publish the analysis within a specified period after receiving
the report.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(1C) The Minister may give a written direction to the Commission
requiring it, in the event that it receives a report in a specified
series of Ministerially-directed periodic reports, to:
(a) prepare a specified kind of analysis of the report; and
(b) publish the analysis within a specified period after receiving
the report.
(2) The Commission must comply with a direction under this section.
(3) If:
(a) a record-keeping rule is made as a result of a direction under
subsection (1); and
(b) the rule requires the preparation of a report;
then:
(c) the rule must contain a statement to the effect that the rule
was made as a result of a Ministerial direction; and
(d) a report prepared under the rule is to be known as a
Ministerially-directed report.
(4) A direction under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
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Part XIB The Telecommunications Industry: Anti-competitive conduct and record-
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Division 6 Record-keeping rules and disclosure directions
Section 151BUAB
222 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
151BUAB Request for disclosure
(1) A person may request the Commission to exercise its powers
under:
(a) section 151BUA or 151BUB in relation to a particular report;
or
(b) section 151BUC in relation to a particular series of periodic
reports.
(2) The request must be in writing.
(3) The Commission must consider the request.
(4) However, the Commission need not consider the request if it
considers that the request is frivolous, vexatious or was not made
in good faith.
151BUA Commission gives access to reports
(1) This section applies to a particular report given to the Commission
by a carrier, or a carriage service provider, in accordance with the
record-keeping rules.
Criteria for disclosure
(2) If the Commission is satisfied that the disclosure of the report, or
the disclosure of particular extracts from the report, would be
likely to:
(a) promote competition in markets for listed carriage services;
or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(iia) the National Broadband Network Companies Act 2011
or regulations under that Act; or
(iii) Division 3 of Part 20 of the Telecommunications Act
1997 (which deals with Rules of Conduct relating to
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The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Record-keeping rules and disclosure directions Division 6
Section 151BUA
Competition and Consumer Act 2010 223
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dealings with international telecommunications
operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection
and Service Standards) Act 1999 (which deals with
regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider
concerned:
(c) a written notice stating that the Commission intends to make
copies of the report or extracts, together with other relevant
material (if any) specified in the notice, available for
inspection and purchase by the public as soon as practicable
after the end of the period specified in the notice; or
(d) a written notice stating that the Commission intends to make
copies of the report or extracts, together with other relevant
material (if any) specified in the notice, available for
inspection and purchase:
(i) by such persons as are specified in the notice; and
(ii) on such terms and conditions (if any) as are specified in
the notice;
as soon as practicable after the end of the period specified in
the notice.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
Period specified in notice
(3) The period specified in a notice under subsection (2) must run for
at least 28 days after the notice was given.
Criteria for giving notice
(4) In deciding whether to give a notice under subsection (2), the
Commission must have regard to:
(a) the legitimate commercial interests of the carrier or carriage
service provider concerned; and
(b) such other matters as the Commission considers relevant.
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Part XIB The Telecommunications Industry: Anti-competitive conduct and record-
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Division 6 Record-keeping rules and disclosure directions
Section 151BUA
224 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Consultation before giving notice
(5) The Commission must not give the carrier or carriage service
provider concerned a notice under subsection (2) unless the
Commission has first:
(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the notice under
subsection (2); and
(ii) inviting the carrier or carriage service provider to make
a submission to the Commission on the draft by a
specified time limit; and
(b) considered any submission that was received within that time
limit.
The time limit specified in a notice under paragraph (a) must be at
least 28 days after the notice was given.
Public access
(6) If the Commission gives the carrier or carriage service provider
concerned a notice under paragraph (2)(c), the Commission:
(a) must make copies of the report or extracts, together with the
other material (if any) specified in the notice, available for
inspection and purchase by the public as soon as practicable
after the end of the period specified in the notice; and
(b) may also give a written direction to the carrier or carriage
service provider concerned requiring it to take such action as
is specified in the direction to inform the public, or such
persons as are specified in the direction, that the report is, or
the extracts are, so available.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
(7) A person must comply with a direction under paragraph (6)(b).
Limited access
(8) If the Commission gives the carrier or carriage service provider
concerned a notice under paragraph (2)(d), the Commission must:
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The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Record-keeping rules and disclosure directions Division 6
Section 151BUB
Competition and Consumer Act 2010 225
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(a) make copies of the report or extracts, together with the other
material (if any) specified in the notice, available for
inspection and purchase by the persons specified in the notice
as soon as practicable after the end of the period specified in
the notice; and
(b) take reasonable steps to inform the persons who inspect or
purchase copies of the report or extracts of the terms and
conditions (if any) that are specified in the notice.
(9) If, in accordance with subsection (8), a person inspects or
purchases a copy of the report or extracts, the person must comply
with the terms and conditions (if any) that are specified in the
notice concerned.
Offences
(10) A person who contravenes subsection (7) is guilty of an offence
punishable on conviction by a fine not exceeding 20 penalty units.
(11) A person who contravenes subsection (9) is guilty of an offence
punishable on conviction by a fine not exceeding 100 penalty units.
151BUB Carrier or carriage service provider gives access to reports
(1) This section applies to a report prepared by a carrier, or a carriage
service provider, in accordance with the record-keeping rules.
Disclosure direction
(2) If the Commission is satisfied that the disclosure of the report, or
the disclosure of particular extracts from the report, would be
likely to:
(a) promote competition in markets for listed carriage services;
or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
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Part XIB The Telecommunications Industry: Anti-competitive conduct and record-
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Division 6 Record-keeping rules and disclosure directions
Section 151BUB
226 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(iia) the National Broadband Network Companies Act 2011
or regulations under that Act; or
(iii) Division 3 of Part 20 of the Telecommunications Act
1997 (which deals with Rules of Conduct relating to
dealings with international telecommunications
operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection
and Service Standards) Act 1999 (which deals with
regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider
concerned:
(c) a written direction requiring it to make copies of the report or
extracts, together with other relevant material (if any)
specified in the direction, available for inspection and
purchase by the public as soon as practicable after the end of
the period specified in the direction; or
(d) a written direction requiring it to make copies of the report or
extracts, together with other relevant material (if any)
specified in the direction, available for inspection and
purchase:
(i) by such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in
the direction;
as soon as practicable after the end of the period specified in
the direction.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
(3) The period specified in a direction under subsection (2) must run
for at least 28 days after the direction was given.
(4) A direction under paragraph (2)(d) is also taken to require the
carrier or carriage service provider concerned to take reasonable
steps to inform the persons who inspect or purchase copies of the
report or extracts of the terms and conditions (if any) that are
specified in the direction.
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The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Record-keeping rules and disclosure directions Division 6
Section 151BUB
Competition and Consumer Act 2010 227
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Criteria for giving direction
(5) In deciding whether to give a direction under subsection (2), the
Commission must have regard to:
(a) the legitimate commercial interests of the carrier or carriage
service provider concerned; and
(b) such other matters as the Commission considers relevant.
Consultation before giving direction
(6) The Commission must not give the carrier or carriage service
provider concerned a direction under subsection (2) unless the
Commission has first:
(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the direction; and
(ii) inviting the carrier or carriage service provider to make
a submission to the Commission on the draft by a
specified time limit; and
(b) considered any submission that was received within that time
limit.
The time limit specified in the notice must be at least 28 days after
the notice was given.
Direction to give information about availability of report
(7) If the Commission gives the carrier or carriage service provider
concerned a direction under paragraph (2)(c), the Commission may
also give it a written direction requiring it to take such action as is
specified in the direction to inform the public that the report is, or
extracts are, available for inspection and purchase.
(8) If the Commission gives the carrier or carriage service provider
concerned a direction under paragraph (2)(d), the Commission may
also give it a written direction requiring it to take such action as is
specified in the direction to inform the persons specified in the
paragraph (2)(d) direction that the report is, or the extracts are,
available for inspection and purchase.
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Part XIB The Telecommunications Industry: Anti-competitive conduct and record-
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Division 6 Record-keeping rules and disclosure directions
Section 151BUC
228 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(9) A person must comply with a direction under subsection (7) or (8).
Reasonable charge
(10) The price charged by the carrier or carriage service provider
concerned for the purchase of a copy of the report or extracts and
the other material (if any) must not exceed the reasonable costs
incurred by the carrier or carriage service provider concerned in
making the copy of the report or extracts and the other material (if
any) available for purchase.
Compliance with terms and conditions
(11) If, in accordance with a direction under paragraph (2)(d), a person
inspects or purchases a copy of the report or extracts, the person
must comply with the terms and conditions (if any) that are
specified in the direction.
Offences
(12) A person who contravenes subsection (9) is guilty of an offence
punishable on conviction by a fine not exceeding 20 penalty units.
(13) A person who contravenes subsection (11) is guilty of an offence
punishable on conviction by a fine not exceeding 100 penalty units.
Section 151BUC does not limit this section
(14) Section 151BUC does not limit this section.
151BUC Carrier or carriage service provider gives access to
periodic reports
(1) This section applies to a particular series of periodic reports that
are required to be prepared by a carrier, or a carriage service
provider, in accordance with the record-keeping rules.
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The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Record-keeping rules and disclosure directions Division 6
Section 151BUC
Competition and Consumer Act 2010 229
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Disclosure direction
(2) If the Commission is satisfied that the disclosure of each of the
reports in that series, or the disclosure of particular extracts from
each of the reports in that series, would be likely to:
(a) promote competition in markets for listed carriage services;
or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(iia) the National Broadband Network Companies Act 2011
or regulations under that Act; or
(iii) Division 3 of Part 20 of the Telecommunications Act
1997 (which deals with Rules of Conduct relating to
dealings with international telecommunications
operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection
and Service Standards) Act 1999 (which deals with
regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider
concerned:
(c) a written direction requiring it to make copies of each of
those reports or extracts, together with other relevant material
(if any) specified in the direction, available for inspection and
purchase by the public by such times as are ascertained in
accordance with the direction; or
(d) a written direction requiring it to make copies of each of
those reports or extracts, together with other relevant material
(if any) specified in the direction, available for inspection and
purchase:
(i) by such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in
the direction;
by such times as are ascertained in accordance with the
direction.
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Division 6 Record-keeping rules and disclosure directions
Section 151BUC
230 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Note 1: For example, a direction under paragraph (2)(c) could require that
each report in a particular series of quarterly reports be made available
by the 28th day after the end of the quarter to which the report relates.
Note 2: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
(3) In the case of the first report in the series (or extracts from that
report), the applicable time ascertained in accordance with a
direction under subsection (2) must be later than the 28th day after
the day on which the direction was given.
(4) A direction under paragraph (2)(d) is also taken to require the
carrier or carriage service provider concerned to take reasonable
steps to inform the persons who inspect or purchase copies of the
report or extracts of the terms and conditions (if any) that are
specified in the direction.
Criteria for giving direction
(5) In deciding whether to give a direction under subsection (2), the
Commission must have regard to:
(a) the legitimate commercial interests of the carrier or carriage
service provider concerned; and
(b) such other matters as the Commission considers relevant.
Consultation before giving direction
(6) The Commission must not give the carrier or carriage service
provider concerned a direction under subsection (2) unless the
Commission has first:
(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the direction; and
(ii) inviting the carrier or carriage service provider to make
a submission to the Commission on the draft by a
specified time limit; and
(b) considered any submission that was received within that time
limit.
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Part XIB
Record-keeping rules and disclosure directions Division 6
Section 151BUC
Competition and Consumer Act 2010 231
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The time limit specified in the notice must be at least 28 days after
the notice was given.
Direction to give information about availability of reports
(7) If the Commission gives the carrier or carriage service provider
concerned a direction under paragraph (2)(c), the Commission may
also give it a written direction requiring it to take such action as is
specified in the direction to inform the public that each of those
reports is, or extracts are, available for inspection and purchase.
(8) If the Commission gives the carrier or carriage service provider
concerned a direction under paragraph (2)(d), the Commission may
also give it a written direction requiring it to take such action as is
specified in the direction to inform the persons specified in the
paragraph (2)(d) direction that each of those reports is, or the
extracts are, available for inspection and purchase.
(9) A person must comply with a direction under subsection (7) or (8).
Reasonable charge
(10) The price charged by the carrier or carriage service provider
concerned for the purchase of a copy of the report or extracts and
the other material (if any) must not exceed the reasonable costs
incurred by the carrier or carriage service provider concerned in
making the copy of the report or extracts and the other material (if
any) available for purchase.
Compliance with terms and conditions
(11) If, in accordance with a direction under paragraph (2)(d), a person
inspects or purchases a copy of the report or extracts, the person
must comply with the terms and conditions (if any) that are
specified in the direction.
Offences
(12) A person who contravenes subsection (9) is guilty of an offence
punishable on conviction by a fine not exceeding 20 penalty units.
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Division 6 Record-keeping rules and disclosure directions
Section 151BUD
232 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(13) A person who contravenes subsection (11) is guilty of an offence
punishable on conviction by a fine not exceeding 100 penalty units.
151BUD Exemption of reports from access requirements
Full exemption
(1) The Commission may, by legislative instrument, make a
determination exempting specified reports from the scope of
sections 151BUA, 151BUB and 151BUC, either:
(a) unconditionally; or
(b) subject to such conditions (if any) as are specified in the
determination.
The determination has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(2) If all of the information contained in a report (the first report) is, or
is to be, set out in a report under Division 12A, the first report is
exempt from the scope of sections 151BUA, 151BUB and
151BUC.
Partial exemption
(3) The Commission may, by legislative instrument, make a
determination that specified information is exempt information for
the purposes of this section, either:
(a) unconditionally; or
(b) subject to such conditions (if any) as are specified in the
determination.
The determination has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(4) If some, but not all, of the information contained in a report is, or is
to be, set out in a report under Division 12A, so much of the
information as is, or is to be, set out in the Division 12A report is
exempt information for the purposes of this section.
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Record-keeping rules and disclosure directions Division 6
Section 151BUDA
Competition and Consumer Act 2010 233
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(5) If a report contains exempt information, sections 151BUA,
151BUB and 151BUC apply as if:
(a) the exempt information were not part of the report; and
(b) so much of the report as does not consist of the exempt
information were a report in its own right.
151BUDA Commission gives access to Ministerially-directed reports
(1) This section applies to a particular Ministerially-directed report
given to the Commission by a carrier, or a carriage service
provider, in accordance with the record-keeping rules.
Public access
(2) The Commission:
(a) may make:
(i) copies of the report or copies of extracts from the report;
and
(ii) such other relevant material (if any) as the Commission
determines;
available to the public; and
(b) may also give a written direction to the carrier or provider
requiring it to take such action as is specified in the direction
to inform the public, or such persons as are specified in the
direction, that the report is, or the extracts are, so available.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
Limited access
(3) The Commission may make:
(a) copies of the report or copies of extracts from the report; and
(b) such other relevant material (if any) as the Commission
determines;
available:
(c) to particular persons; and
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Division 6 Record-keeping rules and disclosure directions
Section 151BUDA
234 Competition and Consumer Act 2010
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(d) on such terms and conditions (if any) as the Commission
determines.
(4) If subsection (3) applies, the Commission must take reasonable
steps to inform the persons who access copies of the report or
extracts of the terms and conditions (if any) on which the copies
are available.
(5) If, in accordance with subsection (3), a person accesses a copy of
the report or extracts, the person must comply with the terms and
conditions (if any) on which the copy is available.
Offences
(6) A person is guilty of an offence if:
(a) the person is subject to a direction under paragraph (2)(b);
and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(7) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (5);
and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(8) The Commission may only exercise a power under this section as
required by a direction in force under section 151BUAA.
Application of section 151BUA
(9) This section does not limit section 151BUA.
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Record-keeping rules and disclosure directions Division 6
Section 151BUDB
Competition and Consumer Act 2010 235
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
151BUDB Carrier or carriage service provider gives access to
Ministerially-directed reports
(1) This section applies to a Ministerially-directed report prepared by a
carrier, or a carriage service provider, in accordance with the
record-keeping rules.
Disclosure direction
(2) The Commission may give the carrier or provider:
(a) a written direction requiring it to make copies of the report or
copies of particular extracts from the report, together with
other relevant material (if any) specified in the direction,
available:
(i) to the public; and
(ii) in the manner specified in the direction; and
(iii) as soon as practicable after the end of the period
specified in the direction; or
(b) a written direction requiring it to make copies of the report or
copies of particular extracts from the report, together with
other relevant material (if any) specified in the direction,
available:
(i) to such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in
the direction; and
(iii) in the manner specified in the direction; and
(iv) as soon as practicable after the end of the period
specified in the direction.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
(3) A direction under paragraph (2)(b) is also taken to require the
carrier or provider to take reasonable steps to inform the persons
who access the copies of the report or extracts of the terms and
conditions (if any) that are specified in the direction.
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Division 6 Record-keeping rules and disclosure directions
Section 151BUDB
236 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Direction to give information about availability of report
(4) If the Commission gives the carrier or provider a direction under
paragraph (2)(a), the Commission may also give it a written
direction requiring it to take such action as is specified in the
direction to inform the public:
(a) that the report is, or extracts are, available; and
(b) of the way in which the report or extracts may be accessed.
(5) If the Commission gives the carrier or provider a direction under
paragraph (2)(b), the Commission may also give it a written
direction requiring it to take such action as is specified in the
direction to inform the persons specified in the paragraph (2)(b)
direction that:
(a) the report is, or the extracts are, available; and
(b) of the way in which the report or extracts may be accessed.
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a person
accesses a copy of the report or extracts, the person must comply
with the terms and conditions (if any) that are specified in the
direction.
Offences
(7) A person is guilty of an offence if:
(a) the person is subject to a direction under subsection (4) or
(5); and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(8) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (6);
and
(b) the person does an act or omits to do an act; and
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Record-keeping rules and disclosure directions Division 6
Section 151BUDC
Competition and Consumer Act 2010 237
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(9) The Commission may only exercise a power under this section as
required by a direction in force under section 151BUAA.
Application of section 151BUB
(10) This section does not limit section 151BUB.
Application of section 151BUDC
(11) Section 151BUDC does not limit this section.
151BUDC Carrier or carriage service provider gives access to
Ministerially-directed periodic reports
(1) This section applies to a particular series of Ministerially-directed
periodic reports that are required to be prepared by a carrier, or a
carriage service provider, in accordance with the record-keeping
rules.
Disclosure direction
(2) The Commission may give the carrier or provider:
(a) a written direction requiring it to make copies of each of the
reports in that series or copies of particular extracts from
each of the reports in that series, together with other relevant
material (if any) specified in the direction, available:
(i) to the public; and
(ii) in the manner specified in the direction; and
(iii) by such times as are ascertained in accordance with the
direction; or
(b) a written direction requiring it to make copies of each of the
reports in the series or copies of particular extracts from each
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Part XIB The Telecommunications Industry: Anti-competitive conduct and record-
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Division 6 Record-keeping rules and disclosure directions
Section 151BUDC
238 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
of the reports in the series, together with other relevant
material (if any) specified in the direction, available:
(i) to such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in
the direction; and
(iii) in the manner specified in the direction; and
(iv) by such times as are ascertained in accordance with the
direction.
Note 1: For example, a direction under paragraph (2)(a) could require that
each report in a particular series of quarterly reports be made available
by the 28th day after the end of the quarter to which the report relates.
Note 2: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
(3) A direction under paragraph (2)(b) is also taken to require the
carrier or provider to take reasonable steps to inform the persons
who access the copies of the report or extracts of the terms and
conditions (if any) that are specified in the direction.
Direction to give information about availability of report
(4) If the Commission gives the carrier or provider a direction under
paragraph (2)(a), the Commission may also give it a written
direction requiring it to take such action as is specified in the
direction to inform the public:
(a) that each of those reports is, or extracts are, available; and
(b) of the way in which those reports or extracts may be
accessed.
(5) If the Commission gives the carrier or provider a direction under
paragraph (2)(b), the Commission may also give it a written
direction requiring it to take such action as is specified in the
direction to inform the persons specified in the paragraph (2)(b)
direction:
(a) that each of those reports is, or extracts are, available; and
(b) of the way in which those reports or extracts may be
accessed.
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Part XIB
Record-keeping rules and disclosure directions Division 6
Section 151BUDC
Competition and Consumer Act 2010 239
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a person
accesses a copy of the report or extracts, the person must comply
with the terms and conditions (if any) that are specified in the
direction.
Offences
(7) A person is guilty of an offence if:
(a) the person is subject to a direction under subsection (4) or
(5); and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(8) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (6);
and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(9) The Commission may only exercise a power under this section as
required by a direction in force under section 151BUAA.
Application of section 151BUC
(10) This section does not limit section 151BUC.
Application of section 151BUDB
(11) Section 151BUDB does not limit this section.
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Division 6 Record-keeping rules and disclosure directions
Section 151BUE
240 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
151BUE Access via the internet
If the Commission, a carrier or a carriage service provider is
required under this Division to make copies of a report, extracts or
other material available for inspection and purchase, the
Commission, carrier or carriage service provider, as the case may
be, may comply with that requirement by making the report,
extracts or other material available for inspection and purchase on
the internet.
151BUF Self-incrimination
(1) An individual is not excused from giving a report under the
record-keeping rules, or from making a report or extracts available
under this Division, on the ground that the report or extracts might
tend to incriminate the individual or expose the individual to a
penalty.
(2) However:
(a) giving the report or making the report or extracts available;
or
(b) any information, document or thing obtained as a direct or
indirect consequence of giving the report or making the
report or extracts available;
is not admissible in evidence against the individual in:
(c) criminal proceedings other than proceedings under, or arising
out of, section 151BV; or
(d) proceedings under section 151BY for recovery of a pecuniary
penalty in relation to a contravention of a disclosure
direction.
151BV Incorrect records
(1) A person must not, in purported compliance with a requirement
imposed by the record-keeping rules, make a record of any matter
or thing in such a way that it does not correctly record the matter or
thing.
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Record-keeping rules and disclosure directions Division 6
Section 151BV
Competition and Consumer Act 2010 241
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(2) A person who contravenes subsection (1) is guilty of an offence
punishable on conviction by imprisonment for a term not
exceeding 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
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Division 7 Enforcement of the competition rule, tariff filing directions, record-keeping
rules and disclosure directions
Section 151BW
242 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 7—Enforcement of the competition rule, tariff
filing directions, record-keeping rules and
disclosure directions
151BW Person involved in a contravention of the competition rule, a
tariff filing direction, a record-keeping rule or a
disclosure direction
A reference in this Division to a person involved in a contravention
of the competition rule, a tariff filing direction, a record-keeping
rule or a disclosure direction is a reference to a person who:
(a) has aided, abetted, counselled or procured the contravention;
or
(b) has induced, whether by threats or promises or otherwise, the
contravention; or
(c) has been in any way, directly or indirectly, knowingly
concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
151BX Pecuniary penalties for breach of the competition rule, a
tariff filing direction, a record-keeping rule or a
disclosure direction
(1) If the Federal Court is satisfied that a person:
(a) has contravened the competition rule, a tariff filing direction,
a record-keeping rule or a disclosure direction; or
(b) has attempted to contravene the competition rule, a tariff
filing direction, a record-keeping rule or a disclosure
direction; or
(c) has been involved in a contravention of the competition rule,
a tariff filing direction, a record-keeping rule or a disclosure
direction;
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Section 151BX
Competition and Consumer Act 2010 243
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
the Court may order the person to pay to the Commonwealth such
pecuniary penalty, in respect of each contravention, as the Court
determines to be appropriate.
(2) In determining a pecuniary penalty, the Court must have regard to
all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a
result of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in
proceedings under this Act to have engaged in any similar
conduct.
(3) The pecuniary penalty payable under subsection (1) by a body
corporate is not to exceed:
(a) in the case of a contravention of the competition rule—for
each contravention:
(i) if the contravention continued for more than 21 days—
the sum of $31 million and $3 million for each day in
excess of 21 that the contravention continued; or
(ii) otherwise—the sum of $10 million and $1 million for
each day that the contravention continued; or
(b) in the case of a contravention of a tariff filing direction—$10
million for each contravention; or
(c) in the case of a contravention of a record-keeping rule or of a
disclosure direction—$250,000 for each contravention.
(4) The pecuniary penalty payable under subsection (1) by a person
other than a body corporate is not to exceed:
(a) in the case of a contravention of a record-keeping rule or of a
disclosure direction—$50,000 for each contravention; or
(b) in any other case—$500,000 for each contravention.
(5) If conduct constitutes a contravention of:
(a) 2 or more tariff filing directions; or
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Division 7 Enforcement of the competition rule, tariff filing directions, record-keeping
rules and disclosure directions
Section 151BY
244 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(b) 2 or more record-keeping rules; or
(c) 2 or more disclosure directions;
proceedings may be instituted under this Act against a person in
relation to the contravention of any one or more of the tariff filing
directions, record-keeping rules or disclosure directions. However,
the person is not liable to more than one pecuniary penalty under
this section in respect of the same conduct.
(6) If a person’s conduct gives rise to a liability to pay a pecuniary
penalty under:
(a) this Part; and
(b) Part VI;
proceedings relating to the conduct may be instituted against the
person under this Part or under Part VI. However, the person is not
liable to more than one pecuniary penalty in respect of the same
conduct.
151BY Civil action for recovery of pecuniary penalties
(1) The Commission may institute a proceeding in the Federal Court
for the recovery on behalf of the Commonwealth of a pecuniary
penalty referred to in section 151BX.
(2) A proceeding under subsection (1) may be commenced within 6
years after the contravention.
(3) A proceeding under subsection (1) must not be instituted in relation
to:
(a) a contravention of the competition rule; or
(b) attempting to contravene the competition rule; or
(c) aiding, abetting, counselling or procuring a person to
contravene the competition rule; or
(d) inducing, or attempting to induce, whether by threats,
promises or otherwise, a person to contravene the
competition rule; or
ComLaw Authoritative Act C2015C00019
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Section 151BZ
Competition and Consumer Act 2010 245
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(e) being in any way, directly or indirectly, knowingly concerned
in, or party to, a contravention by a person of the competition
rule; or
(f) conspiring with others to contravene the competition rule;
unless:
(g) in a case where paragraph (a) applies—the alleged conduct is
of a kind dealt with in a Part A competition notice that was in
force in relation to the carrier or carriage service provider
concerned at the time when the alleged conduct occurred; or
(h) in any other case—the alleged conduct is related to conduct
of a kind dealt with in a Part A competition notice that was in
force in relation to the carrier or carriage service provider
concerned at the time when the alleged conduct occurred.
151BZ Criminal proceedings not to be brought for contraventions of
the competition rule, tariff filing directions,
record-keeping rules or disclosure directions
(1) Criminal proceedings do not lie against a person only because the
person:
(a) has contravened the competition rule, a tariff filing direction,
a record-keeping rule or a disclosure direction; or
(b) has attempted to contravene the competition rule, a tariff
filing direction, a record-keeping rule or a disclosure
direction; or
(c) has been involved in a contravention of the competition rule,
a tariff filing direction, a record-keeping rule or a disclosure
direction.
(2) To avoid doubt, this section does not affect the operation of
Division 137 of the Criminal Code in respect of tariff information.
(3) To avoid doubt, subsection (1) does not apply in relation to
proceedings for an offence against section 44ZZRF or 44ZZRG.
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Division 7 Enforcement of the competition rule, tariff filing directions, record-keeping
rules and disclosure directions
Section 151CA
246 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
151CA Injunctions
(1) Subject to subsection (3), if the Federal Court is satisfied that a
person has engaged, or is proposing to engage, in conduct that
constitutes or would constitute:
(a) a contravention of the competition rule, a tariff filing
direction, a record-keeping rule or a disclosure direction; or
(b) attempting to contravene the competition rule, a tariff filing
direction, a record-keeping rule or a disclosure direction; or
(c) aiding, abetting, counselling or procuring a person to
contravene the competition rule, a tariff filing direction, a
record-keeping rule or a disclosure direction; or
(d) inducing, or attempting to induce, whether by threats,
promises or otherwise, a person to contravene the
competition rule, a tariff filing direction, a record-keeping
rule or a disclosure direction; or
(e) being in any way, directly or indirectly, knowingly concerned
in, or party to, the contravention by a person of the
competition rule, a tariff filing direction, a record-keeping
rule or a disclosure direction; or
(f) conspiring with others to contravene the competition rule, a
tariff filing direction, a record-keeping rule or a disclosure
direction;
the Court may, on the application of the Commission or any other
person, grant an injunction in such terms as the Court determines to
be appropriate.
(2) If:
(a) an application for an injunction under subsection (1) has been
made; and
(b) the Court determines it to be appropriate to do so;
the Court may grant an injunction by consent of all the parties to
the proceedings, whether or not the Court is satisfied that a person
has engaged, or is proposing to engage, in conduct of a kind
mentioned in subsection (1).
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Section 151CB
Competition and Consumer Act 2010 247
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(3) If, in the opinion of the Court it is desirable to do so, the Court may
grant an interim injunction pending determination of an application
under subsection (1).
(4) The Court may rescind or vary an injunction granted under
subsection (1) or (3).
(5) The power of the Court to grant an injunction restraining a person
from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends
to engage again, or to continue to engage, in conduct of that
kind; and
(b) whether or not the person has previously engaged in conduct
of that kind; and
(c) whether or not there is an imminent danger of substantial
damage to any person if the first-mentioned person engages
in conduct of that kind.
(6) The power of the Court to grant an injunction requiring a person to
do an act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends
to refuse or fail again, or to continue to refuse or fail, to do
that act or thing; and
(b) whether or not the person has previously refused or failed to
do that act or thing; and
(c) whether or not there is an imminent danger of substantial
damage to any person if the first-mentioned person refuses or
fails to do that act or thing.
(7) If the Commission makes an application to the Court for the grant
of an injunction under this section, the Court must not require the
applicant or any other person, as a condition of granting an interim
injunction, to give any undertakings as to damages.
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Division 7 Enforcement of the competition rule, tariff filing directions, record-keeping
rules and disclosure directions
Section 151CB
248 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
151CB Orders to disclose information or publish an
advertisement—breach of the competition rule
(1) If, on the application of the Commission, the Federal Court is
satisfied that a person (the first person) has engaged in conduct
constituting a contravention of the competition rule, the Court may
make either or both of the following orders:
(a) an order requiring the first person, or a person involved in the
contravention, to disclose to the public, or to one or more
specified persons, in such manner as is specified in the order,
specified information, where the information is:
(i) in the possession of the first person; or
(ii) information to which the first person has access;
(b) an order requiring the first person, or a person involved in the
contravention, to publish, at the person’s own expense, in a
manner and at times specified in the order, advertisements
the terms of which are specified in, or are to be determined in
accordance with, the order.
(2) Subsection (1) does not limit section 151CA.
(3) An application under subsection (1) must not be made in relation to
a contravention of the competition rule unless the alleged conduct
is of a kind dealt with in a Part A competition notice that was in
force in relation to the carrier or carriage service provider
concerned at the time when the alleged conduct occurred.
151CC Actions for damages—breach of the competition rule
(1) A person who suffers loss or damage by conduct of another person
that was done in contravention of the competition rule may recover
the amount of the loss or damage by action against:
(a) that other person; or
(b) any person involved in the contravention.
(2) An action under subsection (1) may be commenced at any time
within 3 years after the date on which the cause of action accrued.
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Section 151CD
Competition and Consumer Act 2010 249
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(3) An action under subsection (1) must not be brought in relation to a
contravention of the competition rule unless the alleged conduct is
of a kind dealt with in a Part A competition notice that was in force
in relation to the carrier or carriage service provider concerned at
the time when the alleged conduct occurred.
151CD Finding of fact in proceedings to be evidence
(1) This section applies to a finding of any fact by a court made in
proceedings under section 151BY, 151CA or 151CB in which a
person has been found to have contravened, or to have been
involved in a contravention of, the competition rule or a tariff filing
direction.
(2) In:
(a) a proceeding under section 151CC against the person; or
(b) an application under subsection 151CE(1) for an order
against the person;
the finding:
(c) is prima facie evidence of that fact; and
(d) may be proved by production of a document under the seal of
the court from which the finding appears.
151CE Other orders—compensation for breach of the competition
rule
(1) If, in a proceeding instituted under this Division in relation to a
contravention of the competition rule, the Federal Court finds that
a person who is a party to the proceeding has suffered, or is likely
to suffer, loss or damage by conduct of another person that was
engaged in in contravention of the competition rule, the Court may,
on the application of a party to the proceedings, make such orders
as it thinks appropriate against:
(a) the person who engaged in the conduct; or
(b) a person who was involved in the contravention;
if the Court considers that the orders concerned will:
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Section 151CE
250 Competition and Consumer Act 2010
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(c) compensate the first-mentioned person, in whole or in part,
for the loss or damage; or
(d) prevent or reduce the loss or damage.
(2) The Federal Court may make an order under subsection (1)
whether or not it:
(a) grants an injunction under section 151CA; or
(b) makes an order under section 151BX, 151CB or 151CC.
(3) Subsection (1) does not, by implication, limit section 151CA.
(4) The Federal Court’s orders include, but are not limited to, the
following:
(a) an order declaring the whole or any part of:
(i) a contract made between the person who suffered, or is
likely to suffer, the loss or damage and the person who
engaged in the conduct or a person who was involved in
the contravention constituted by the conduct; or
(ii) a collateral arrangement relating to such a contract;
to be void and, if the Court thinks fit, to have been void ab
initio or at all times on and after such date before the date on
which the order is made as is specified in the order;
(b) an order varying such a contract or arrangement in such
manner as is specified in the order and, if the Court thinks fit,
declaring the contract or arrangement to have had effect as so
varied on and after such date before the date on which the
order is made as is so specified;
(c) an order refusing to enforce any or all of the provisions of
such a contract or collateral arrangement;
(d) an order directing:
(i) the person who engaged in the conduct; or
(ii) a person who was involved in the contravention
constituted by the conduct;
to refund money or return property to the person who
suffered the loss or damage;
ComLaw Authoritative Act C2015C00019
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Section 151CF
Competition and Consumer Act 2010 251
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(e) an order directing:
(i) the person who engaged in the conduct; or
(ii) a person who was involved in the contravention
constituted by the conduct;
to pay to the person who suffered the loss or damage the
amount of the loss or damage;
(f) an order directing:
(i) the person who engaged in the conduct; or
(ii) a person who was involved in the contravention
constituted by the conduct;
at the person’s own expense, to supply specified goods or
services to the person who suffered, or is likely to suffer, the
loss or damage.
(5) An application under subsection (1) must not be made in relation to
a contravention of the competition rule unless the alleged conduct
is of a kind dealt with in a Part A competition notice that was in
force in relation to the carrier or carriage service provider
concerned at the time when the alleged conduct occurred.
(6) The powers conferred on the Federal Court by this section in
relation to a contract do not affect any powers that any other court
may have in relation to the contract in proceedings instituted in that
other court in respect of the contract.
151CF Conduct by directors, employees or agents
Part 32 of the Telecommunications Act 1997 applies in relation to
proceedings under this Division in a corresponding way to the way
in which it applies to proceedings under that Act (as defined by
section 574 of that Act).
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Division 8 Disclosure of documents by Commission
Section 151CG
252 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 8—Disclosure of documents by Commission
151CG Disclosure of documents by Commission
(1) This section applies to a person if:
(a) the person makes an application to the Commission for an
exemption order; or
(b) under section 151BG, the Commission gives the person an
opportunity to make a submission to the Commission about a
proposal to revoke an exemption order; or
(c) the Commission institutes a proceeding against the person
under Division 7.
(2) The Commission must, at the request of the person and on payment
of the fee (if any) specified in the regulations, give to the person:
(a) a copy of each document that has been given to, or obtained
by, the Commission in connection with the matter to which
the application, proposal or proceeding relates and tends to
establish the person’s case; and
(b) a copy of any other document in the possession of the
Commission that comes to the attention of the Commission
in connection with the matter and to which the application,
proposal or proceeding relates and tends to establish the
person’s case;
so long as the document is not obtained from the person or
prepared by an officer or professional adviser of the Commission.
(3) If the Commission does not comply with a request under
subsection (2), the Federal Court must, upon application by the
person, make an order directing the Commission to comply with
the request. This rule has effect subject to subsection (4).
(4) The Federal Court may refuse to make an order under
subsection (3) about a document or a part of a document if the
Federal Court considers it inappropriate to make the order on the
grounds that the disclosure of the contents of the document or part
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Disclosure of documents by Commission Division 8
Section 151CG
Competition and Consumer Act 2010 253
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of the document would prejudice any person, or for any other
reason.
(5) Before the Federal Court gives a decision on an application under
subsection (3), the Federal Court may require any documents to be
produced to it for inspection.
(6) An order under this section may be expressed to be subject to such
conditions as are specified in the order.
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Division 9 Treatment of partnerships
Section 151CH
254 Competition and Consumer Act 2010
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Division 9—Treatment of partnerships
151CH Treatment of partnerships
This Part applies to a partnership as if the partnership was a person,
but it applies with the following changes:
(a) obligations that would be imposed on the partnership are
imposed instead on each partner, but may be discharged by
any of the partners;
(b) any offence against this Part that would otherwise be
committed by the partnership is taken to have been
committed by each partner who:
(i) aided, abetted, counselled or procured the relevant act or
omission; or
(ii) was in any way knowingly concerned in, or party to, the
relevant act or omission (whether directly or indirectly
and whether by any act or omission of the partner).
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Part XIB
Review of decisions Division 10
Section 151CI
Competition and Consumer Act 2010 255
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Division 10—Review of decisions
151CI Review by Tribunal
(1) If the Commission makes a decision under section 151BA to refuse
to make an exemption order relating to conduct of a person, the
person may apply to the Tribunal for a review of the decision.
(2) If the Commission makes a decision under section 151BG to
revoke an exemption order relating to conduct of a person, the
person may apply to the Tribunal for a review of the decision.
(3) If the Commission makes a decision under section 151BQ to make
information obtained from a person available for inspection and
purchase, the person may apply to the Tribunal for a review of the
decision.
(3A) If the Commission:
(a) makes a decision under section 151BUA to make a report
obtained from a person, or an extract from such a report,
available for inspection and purchase; or
(b) makes a decision under section 151BUB or 151BUC to give
a person a written direction to make a report or extract
available for inspection and purchase;
the person may apply to the Tribunal for a review of the decision.
(4) An application under this section for a review of a decision must
be:
(a) in writing; and
(b) in the case of an application under subsection (1) or (2)—
made within 21 days after the Commission made the
decision; and
(c) in the case of an application under subsection (3)—made
within 7 days after the Commission made the decision; and
(d) in the case of an application under subsection (3A)—made
within 28 days after the Commission made the decision.
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Division 10 Review of decisions
Section 151CJ
256 Competition and Consumer Act 2010
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(5) If the Tribunal receives an application under this section for a
review of a decision, the Tribunal must review the decision.
151CJ Functions and powers of Tribunal
Decision on review
(1) On a review of a decision of the Commission of a kind mentioned
in section 151CI, the Tribunal may make a decision:
(a) in any case—affirming the Commission’s decision; or
(b) in the case of a review of a decision of the Commission under
section 151BA refusing to make an exemption order—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, making an
exemption order; or
(c) in the case of a review of a decision of the Commission under
section 151BG to revoke an exemption order—setting aside
the Commission’s decision; or
(d) in the case of a review of a decision of the Commission under
section 151BQ, 151BUA, 151BUB or 151BUC—setting
aside or varying the Commission’s decision;
and, for the purposes of the review, the Tribunal may perform all
the functions and exercise all the powers of the Commission.
(2) A decision by the Tribunal:
(a) affirming a decision of the Commission; or
(b) setting aside a decision of the Commission; or
(c) made in substitution for a decision of the Commission; or
(d) varying a decision of the Commission;
is taken, for the purposes of this Act (other than this Division), to
be a decision of the Commission.
Conduct of review
(3) For the purposes of a review by the Tribunal, the member of the
Tribunal presiding at the review may require the Commission to
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Review of decisions Division 10
Section 151CK
Competition and Consumer Act 2010 257
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give such information, make such reports and provide such other
assistance to the Tribunal as the member specifies.
(4) For the purposes of a review, the Tribunal may have regard to any
information given, documents produced or evidence given to the
Commission in connection with the making of the decision to
which the review relates.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
151CK Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the
Tribunal of a decision of the Commission of a kind mentioned in
section 151CI.
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Division 11 Reviews of competitive safeguards within the telecommunications industry
Section 151CL
258 Competition and Consumer Act 2010
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Division 11—Reviews of competitive safeguards within the
telecommunications industry
151CL Reviews of competitive safeguards within the
telecommunications industry
(1) The Commission must review, and report each financial year to the
Minister on, competitive safeguards within the telecommunications
industry, including:
(a) matters relating to the operation of this Part and Part XIC;
and
(b) such other matters relating to competition in the
telecommunications industry as the Commission thinks
appropriate.
(2) The Commission must give a report under subsection (1) to the
Minister as soon as practicable after the end of the financial year
concerned.
(3) The Commission must, if directed in writing to do so by the
Minister, review, and report to the Minister on, specified matters
relating to competitive safeguards within the telecommunications
industry.
(4) The Commission must give a report under subsection (3) to the
Minister before the end of the period specified in the direction.
(5) The Minister must cause a copy of a report under this section to be
laid before each House of the Parliament within 15 sitting days of
that House after receiving the report.
(6) This section applies to a financial year ending on or after 30 June
1998.
(7) In this section:
telecommunications industry has the same meaning as in the
Telecommunications Act 1997.
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Monitoring of telecommunications charges paid by consumers Division 12
Section 151CM
Competition and Consumer Act 2010 259
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Division 12—Monitoring of telecommunications charges
paid by consumers
151CM Monitoring of telecommunications charges paid by
consumers
(1) The Commission must monitor, and report each financial year to
the Minister on:
(a) charges paid by consumers for the following goods and
services:
(i) listed carriage services;
(ii) goods for use in connection with a listed carriage
service;
(iii) services for use in connection with a listed carriage
service; and
(b) the adequacy of Telstra’s compliance with Part 9 of the
Telecommunications (Consumer Protection and Service
Standards) Act 1999 (which deals with price control
arrangements for Telstra); and
(c) the adequacy of each universal service provider’s compliance
with Division 11 of Part 2 of the Telecommunications
(Consumer Protection and Service Standards) Act 1999
(which deals with regulation of universal service charges).
(2) The Commission must give a report under subsection (1) to the
Minister as soon as practicable after the end of the financial year
concerned.
(3) The Minister must cause a copy of a report under subsection (1) to
be laid before each House of the Parliament within 15 sitting days
of that House after receiving the report.
(4) This section applies to a financial year ending on or after 30 June
1998.
(5) In this section:
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Part XIB The Telecommunications Industry: Anti-competitive conduct and record-
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Division 12 Monitoring of telecommunications charges paid by consumers
Section 151CM
260 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
listed carriage service has the same meaning as in the
Telecommunications Act 1997.
universal service provider has the same meaning as in the
Telecommunications (Consumer Protection and Service Standards)
Act 1999.
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Part XIB
Reports about competition in the telecommunications industry Division 12A
Section 151CMA
Competition and Consumer Act 2010 261
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Division 12A—Reports about competition in the
telecommunications industry
151CMA Public reports about competition in the
telecommunications industry
(1) The Commission must monitor, and report to the Minister on, such
matters relating to competition in the telecommunications industry
as are specified in a written determination made by the Minister for
the purposes of this subsection.
Note: For examples of matters that may be specified in a determination
under subsection (1), see section 151CMC.
(2) Reports under subsection (1) are to be given to the Minister in
respect of such regular intervals as are specified in a written
determination made by the Minister for the purposes of this
subsection.
(3) Reports under subsection (1) must comply with such requirements
in relation to the protection of confidential information as are
specified in a written determination made by the Minister for the
purposes of this subsection. For this purpose, information is
confidential information if, and only if, the publication of the
information could reasonably be expected to prejudice
substantially the commercial interests of a person.
(4) The Commission must give a report under subsection (1) to the
Minister as soon as practicable after the end of the regular interval
to which the report relates.
(5) The Minister must cause a copy of a report under subsection (1) to
be laid before each House of the Parliament within 15 sitting days
of that House after receiving the report.
(6) A determination under this section is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act 1901.
(7) In this section:
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Division 12A Reports about competition in the telecommunications industry
Section 151CMB
262 Competition and Consumer Act 2010
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telecommunications industry has the same meaning as in the
Telecommunications Act 1997.
151CMB Confidential reports about competition in the
telecommunications industry
(1) The Commission must monitor, and report to the Minister on, such
matters relating to competition in the telecommunications industry
as are specified in a written determination made by the Minister for
the purposes of this subsection.
Note: For examples of matters that may be specified in a determination
under subsection (1), see section 151CMC.
(2) Reports under subsection (1) are to be given to the Minister in
respect of such regular intervals as are specified in a written
determination made by the Minister for the purposes of this
subsection.
(3) The Commission must give a report under subsection (1) to the
Minister as soon as practicable after the end of the regular interval
to which the report relates.
(4) A determination under this section is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act 1901.
(5) In this section:
telecommunications industry has the same meaning as in the
Telecommunications Act 1997.
151CMC Examples of matters that may be specified in a
determination under section 151CMA or 151CMB
The following are examples of matters that may be specified in a
determination under subsection 151CMA(1) or 151CMB(1):
(a) charges for:
(i) carriage services; or
(ii) goods for use in connection with a carriage service; or
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Reports about competition in the telecommunications industry Division 12A
Section 151CMC
Competition and Consumer Act 2010 263
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(iii) services for use in connection with a carriage service;
(b) carriers’ and carriage service providers’ respective shares of
the total supply of:
(i) carriage services; or
(ii) goods for use in connection with a carriage service; or
(iii) services for use in connection with a carriage service;
(c) carriers’ and carriage service providers’ revenues relating to
their respective shares of the total supply of:
(i) carriage services; or
(ii) goods for use in connection with a carriage service; or
(iii) services for use in connection with a carriage service;
(d) other indicators (whether quantitative or qualitative) relating
to the supply of:
(i) carriage services; or
(ii) goods for use in connection with a carriage service; or
(iii) services for use in connection with a carriage service.
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Division 15 Voluntary undertakings given by Telstra
Section 151CQ
264 Competition and Consumer Act 2010
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Division 15—Voluntary undertakings given by Telstra
151CQ Voluntary undertakings given by Telstra
Scope
(1) This section applies if an undertaking given by Telstra is in force
under section 577A, 577C or 577E of the Telecommunications Act
1997.
Note 1: Section 577A of the Telecommunications Act 1997 deals with
undertakings about structural separation.
Note 2: Section 577C of the Telecommunications Act 1997 deals with
undertakings about hybrid fibre-coaxial networks.
Note 3: Section 577E of the Telecommunications Act 1997 deals with
undertakings about subscription television broadcasting licences.
Commission must have regard to Telstra’s conduct
(2) If Telstra has engaged, or is required to engage, in conduct in order
to comply with the undertaking, then, in performing a function, or
exercising a power, under this Part in relation to Telstra, the
Commission must have regard to the conduct to the extent that the
conduct is relevant.
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NBN corporations Division 16
Section 151DA
Competition and Consumer Act 2010 265
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Division 16—NBN corporations
151DA Authorised conduct—subsection 51(1)
Objects
(1) The objects of this section are:
(a) to promote the national interest in structural reform of the
telecommunications industry; and
(b) to promote uniform national pricing of eligible services
supplied by NBN corporations by authorising, for the
purposes of subsection 51(1), certain conduct engaged in by
NBN corporations.
Note 1: If conduct is authorised for the purposes of subsection 51(1), the
conduct is disregarded in deciding whether a person has contravened
Part IV.
Note 2: See also subsection 151AJ(10).
Authorised conduct—points of interconnection
(2) If:
(a) an NBN corporation is a carrier or carriage service provider;
and
(b) the NBN corporation:
(i) owns or controls one or more facilities; or
(ii) is a nominated carrier in relation to one or more
facilities; and
(c) the NBN corporation refuses to permit interconnection of
those facilities at a particular location with one or more
facilities of:
(i) a service provider; or
(ii) a utility; and
(d) the location is not a listed point of interconnection; and
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Division 16 NBN corporations
Section 151DA
266 Competition and Consumer Act 2010
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(e) the refusal is reasonably necessary to achieve uniform
national pricing of eligible services supplied by the NBN
corporation to service providers and utilities;
the refusal is authorised for the purposes of subsection 51(1).
Note: For listed point of interconnection, see section 151DB.
Authorised conduct—bundling of designated access services
(3) If:
(a) an NBN corporation is a carrier or carriage service provider;
and
(b) the NBN corporation:
(i) refuses to supply; or
(ii) refuses to offer to supply;
a designated access service to a service provider or utility
unless the service provider or utility acquires, or agrees to
acquire, one or more other designated access services (other
than voice telephony facilitation services) from the NBN
corporation; and
(c) the refusal is reasonably necessary to achieve uniform
national pricing of eligible services supplied by the NBN
corporation to service providers and utilities;
the refusal is authorised for the purposes of subsection 51(1).
Authorised conduct—uniform national pricing
(4) If an NBN corporation engages in conduct that is reasonably
necessary to achieve uniform national pricing of eligible services
supplied by the NBN corporation to service providers and utilities,
that conduct is authorised for the purposes of subsection 51(1).
Uniform national pricing
(5) For the purposes of this section, uniform national pricing of an
eligible service supplied, or offered to be supplied, by an NBN
corporation to service providers and utilities is achieved, if, and
only if, the price-related terms and conditions on which the NBN
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NBN corporations Division 16
Section 151DA
Competition and Consumer Act 2010 267
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corporation supplies, or offers to supply, the eligible service to
service providers and utilities are the same throughout Australia.
(6) For the purposes of this section, in determining whether there is
uniform national pricing of an eligible service supplied, or offered
to be supplied, by an NBN corporation, disregard any
discrimination by the NBN corporation against another person on
the grounds that the NBN corporation has reasonable grounds to
believe that the other person would fail, to a material extent, to
comply with the terms and conditions on which the NBN
corporation supplies, or on which the NBN corporation is
reasonably likely to supply, the eligible service.
(6A) Examples of grounds for believing as mentioned in subsection (6)
include:
(a) evidence that the other person is not creditworthy; and
(b) repeated failures by the other person to comply with the
terms and conditions on which the same or a similar eligible
service has been supplied (whether or not by the NBN
corporation).
(7) For the purposes of this section, in determining whether eligible
services are characterised as:
(a) the same eligible service; or
(b) different eligible services;
it is immaterial whether the services are supplied, or offered to be
supplied, using:
(c) the same facilities or kinds of facilities; or
(d) different facilities or kinds of facilities.
(8) For example, the same eligible service could be supplied, or
offered to be supplied, using:
(a) an optical fibre line; or
(b) terrestrial radiocommunications equipment; or
(c) a satellite.
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Division 16 NBN corporations
Section 151DA
268 Competition and Consumer Act 2010
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Definitions
(9) In this section:
access virtual circuit service means an eligible service that is
known as:
(a) an access virtual circuit service; or
(b) the access virtual circuit component of a fibre access service.
connectivity virtual circuit service means an eligible service that is
known as:
(a) a connectivity virtual circuit service; or
(b) the connectivity virtual circuit component of a fibre access
service.
designated access service means:
(a) an access virtual circuit service; or
(b) a connectivity virtual circuit service; or
(c) a network-network interface service; or
(d) a user network interface service; or
(e) a voice telephony facilitation service.
eligible service has the same meaning as in section 152AL.
listed point of interconnection has the meaning given by
section 151DB.
network-network interface service means an eligible service that is
known as:
(a) a network-network interface service; or
(b) the network-network interface component of a fibre access
service.
nominated carrier has the same meaning as in the
Telecommunications Act 1997.
point of interconnection means a location for the interconnection
of facilities.
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NBN corporations Division 16
Section 151DA
Competition and Consumer Act 2010 269
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price-related terms and conditions means terms and conditions
relating to price or a method of ascertaining price.
service provider has the same meaning as in the
Telecommunications Act 1997.
special access undertaking has the same meaning as in Part XIC.
telecommunications industry has the same meaning as in the
Telecommunications Act 1997.
uniform national pricing has the meaning given by subsections (5)
and (6).
use, in relation to a facility, means use:
(a) in isolation; or
(b) in conjunction with one or more other things.
user network interface service means an eligible service that is
known as:
(a) a user network interface service; or
(b) the user network interface service component of a fibre
access service.
utility means:
(a) Airservices Australia; or
(b) a State or Territory transport authority; or
(c) a rail corporation (within the meaning of the National
Broadband Network Companies Act 2011); or
(d) an electricity supply body (within the meaning of that Act);
or
(e) a gas supply body (within the meaning of that Act); or
(f) a water supply body (within the meaning of that Act); or
(g) a sewerage services body (within the meaning of that Act); or
(h) a storm water drainage services body (within the meaning of
that Act); or
(i) a State or Territory road authority (within the meaning of that
Act).
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Division 16 NBN corporations
Section 151DB
270 Competition and Consumer Act 2010
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voice telephony facilitation service means a service that facilitates
the supply of a carriage service that is a carriage service for the
purpose of voice telephony.
151DB Listed points of interconnection
(1) The Commission:
(a) must prepare a written list setting out points of
interconnection; and
(b) may, by writing, vary that list.
(2) For the purposes of this Division, a point of interconnection
specified in a list in force under subsection (1) is a listed point of
interconnection.
(2A) The Commission must not vary a list under subsection (1) except
with the agreement of an NBN corporation.
(2B) Subsection (2A) ceases to have effect when the Communications
Minister makes a declaration under section 48 of the National
Broadband Network Companies Act 2011 that, in the
Communications Minister’s opinion, the national broadband
network should be treated as built and fully operational.
(2C) For the purposes of subsection (2B), Communications Minister
has the same meaning as in the National Broadband Network
Companies Act 2011.
(3) The Commission must publish on its website a copy of a list in
force under subsection (1).
(4) A list under subsection (1) is not a legislative instrument.
(5) A variation of a list under subsection (1) is not a legislative
instrument.
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Telecommunications access regime Part XIC
Introduction Division 1
Section 152AA
Competition and Consumer Act 2010 271
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Part XIC—Telecommunications access regime
Division 1—Introduction
152AA Simplified outline
The following is a simplified outline of this Part:
• This Part sets out a telecommunications access regime.
• A carriage service, or a related service, supplied, or capable of being supplied, by a carrier (other than an NBN
corporation) or a carriage service provider (other than an
NBN corporation) is a declared service if:
(a) the Commission has declared the service to be a
declared service; or
(b) the service is supplied by the carrier or carriage
service provider, and a special access undertaking
given by the carrier or carriage service provider is
in operation in relation to the service.
• A carriage service, or a related service, supplied, or capable of being supplied, by an NBN corporation is a declared
service if:
(a) the Commission has declared the service to be a
declared service; or
(b) the NBN corporation has formulated a standard
form of access agreement that relates to access to
the service; or
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Division 1 Introduction
Section 152AA
272 Competition and Consumer Act 2010
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(c) the service is supplied by the NBN corporation,
and a special access undertaking given by the NBN
corporation is in operation in relation to the
service.
• Carriers and carriage service providers who provide declared services are required to comply with standard access
obligations in relation to those services.
• The standard access obligations facilitate the provision of access to declared services by service providers in order that
service providers can provide carriage services and/or
content services.
• The terms and conditions on which carriers and carriage service providers are required to comply with the standard
access obligations are subject to agreement.
• If agreement cannot be reached, but the carrier or carriage service provider has given an access undertaking, the terms
and conditions are as set out in the access undertaking.
• If agreement cannot be reached, no access undertaking is in operation, but the Commission has made binding rules of
conduct, the terms and conditions are as specified in the
binding rules of conduct.
• If agreement cannot be reached, no access undertaking is in operation, and no binding rules of conduct have been made,
the terms and conditions are as specified in an access
determination made by the Commission.
• A carrier, carriage service provider or related body must not prevent or hinder the fulfilment of a standard access
obligation.
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Introduction Division 1
Section 152AB
Competition and Consumer Act 2010 273
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Note: Even though this section mentions binding rules of conduct, binding
rules of conduct may only be made if the Commission considers that
there is an urgent need to do so.
152AB Object of this Part
Object
(1) The object of this Part is to promote the long-term interests of
end-users of carriage services or of services provided by means of
carriage services.
Promotion of the long-term interests of end-users
(2) For the purposes of this Part, in determining whether a particular
thing promotes the long-term interests of end-users of either of the
following services (the listed services):
(a) carriage services;
(b) services supplied by means of carriage services;
regard must be had to the extent to which the thing is likely to
result in the achievement of the following objectives:
(c) the objective of promoting competition in markets for listed
services;
(d) the objective of achieving any-to-any connectivity in relation
to carriage services that involve communication between
end-users;
(e) the objective of encouraging the economically efficient use
of, and the economically efficient investment in:
(i) the infrastructure by which listed services are supplied;
and
(ii) any other infrastructure by which listed services are, or
are likely to become, capable of being supplied.
Subsection (2) limits matters to which regard may be had
(3) Subsection (2) is intended to limit the matters to which regard may
be had.
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Division 1 Introduction
Section 152AB
274 Competition and Consumer Act 2010
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Promoting competition
(4) In determining the extent to which a particular thing is likely to
result in the achievement of the objective referred to in
paragraph (2)(c), regard must be had to the extent to which the
thing will remove obstacles to end-users of listed services gaining
access to listed services.
Subsection (4) does not limit matters to which regard may be had
(5) Subsection (4) does not, by implication, limit the matters to which
regard may be had.
Encouraging efficient use of infrastructure etc.
(6) In determining the extent to which a particular thing is likely to
result in the achievement of the objective referred to in
paragraph (2)(e), regard must be had to the following matters:
(a) whether it is, or is likely to become, technically feasible for
the services to be supplied and charged for, having regard to:
(i) the technology that is in use, available or likely to
become available; and
(ii) whether the costs that would be involved in supplying,
and charging for, the services are reasonable or likely to
become reasonable; and
(iii) the effects, or likely effects, that supplying, and
charging for, the services would have on the operation
or performance of telecommunications networks;
(b) the legitimate commercial interests of the supplier or
suppliers of the services, including the ability of the supplier
or suppliers to exploit economies of scale and scope;
(c) the incentives for investment in:
(i) the infrastructure by which the services are supplied;
and
(ii) any other infrastructure by which the services are, or are
likely to become, capable of being supplied.
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Subsection (6) does not limit matters to which regard may be had
(7) Subsection (6) does not, by implication, limit the matters to which
regard may be had.
Investment risks
(7A) For the purposes of paragraph (6)(c), in determining incentives for
investment, regard must be had to the risks involved in making the
investment.
(7B) Subsection (7A) does not, by implication, limit the matters to
which regard may be had.
Achieving any-to-any connectivity
(8) For the purposes of this section, the objective of any-to-any
connectivity is achieved if, and only if, each end-user who is
supplied with a carriage service that involves communication
between end-users is able to communicate, by means of that
service, with each other end-user who is supplied with the same
service or a similar service, whether or not the end-users are
connected to the same telecommunications network.
152AC Definitions
In this Part, unless the contrary intention appears:
access has the meaning given by section 152AF.
access agreement has the meaning given by section 152BE.
access determination means a determination under section 152BC.
access seeker has the meaning given by section 152AG.
access undertaking means a special access undertaking.
ACMA means the Australian Communications and Media
Authority.
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binding rules of conduct means rules made under
subsection 152BD(1).
carriage service has the same meaning as in the
Telecommunications Act 1997, and includes a proposed carriage
service.
carriage service provider has the same meaning as in the
Telecommunications Act 1997.
carrier has the same meaning as in the Telecommunications Act
1997.
carrier licence has the same meaning as in the
Telecommunications Act 1997.
category A standard access obligation has the meaning given by
section 152AR.
category B standard access obligation has the meaning given by
section 152AXB.
conditional-access customer equipment means customer
equipment that:
(a) consists of or incorporates a conditional access system that
allows a service provider to determine whether an end-user is
able to receive a particular service; and
(b) either:
(i) is for use in connection with the supply of a content
service; or
(ii) is of a kind specified in the regulations.
constitutional corporation means a corporation to which
paragraph 51(xx) of the Constitution applies.
content service has the same meaning as in the
Telecommunications Act 1997, and includes a proposed content
service.
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customer equipment has the same meaning as in the
Telecommunications Act 1997.
data processing device means any article or material (for example,
a disk) from which information is capable of being reproduced,
with or without the aid of any other article or device.
declared service has the meaning given by section 152AL.
designated superfast telecommunications network has the
meaning given by section 152AGA.
facility has the same meaning as in the Telecommunications Act
1997.
Federal Court means the Federal Court of Australia.
final access determination means an access determination other
than an interim access determination.
final migration plan has the same meaning as in the
Telecommunications Act 1997.
fixed principles provision has the meaning given by
section 152BCD.
fixed principles term or condition has the meaning given by
section 152CBAA.
interim access determination means an access determination that
is expressed to be an interim access determination.
Layer 2 bitstream service has the same meaning as in the
Telecommunications Act 1997.
Ministerial pricing determination means a determination under
section 152CH.
modifications includes additions, omissions and substitutions.
national broadband network has the same meaning as in the
National Broadband Network Companies Act 2011.
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NBN Co has the same meaning as in the National Broadband
Network Companies Act 2011.
NBN corporation has the same meaning as in the National
Broadband Network Companies Act 2011.
nominated carrier has the same meaning as in the
Telecommunications Act 1997.
person includes a partnership.
Note: Section 152EN sets out additional rules about partnerships.
Procedural Rules means Procedural Rules made under
section 152ELA.
quarter means a period of 3 months ending on 31 March, 30 June,
30 September or 31 December.
service provider has the same meaning as in the
Telecommunications Act 1997.
special access undertaking means an undertaking under
Subdivision B of Division 5.
standard access obligation means:
(a) a category A standard access obligation; or
(b) a category B standard access obligation.
superfast carriage service has the same meaning as in section 141
of the Telecommunications Act 1997.
telecommunications network has the same meaning as in the
Telecommunications Act 1997.
variation agreement has the meaning given by
subsection 152BE(3).
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152AD This Part binds the Crown
(1) The following provisions of this Act bind the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital
Territory and of the Northern Territory:
(a) this Part;
(b) the other provisions of this Act so far as they relate to this
Part.
(2) This Part does not make the Crown liable to be prosecuted for an
offence.
(3) The protection in subsection (2) does not apply to an authority of
the Commonwealth or an authority of a State or Territory.
152AE Extension to external Territories
This Part, and the other provisions of this Act so far as they relate
to this Part, extend to each eligible Territory (within the meaning
of the Telecommunications Act 1997).
152AF Access
(1) A reference in this Part to access, in relation to a declared service,
is a reference to access by a service provider in order that the
service provider can provide carriage services and/or content
services.
(2) For the purposes of this Part, anything done by a carrier or carriage
service provider in fulfilment of a standard access obligation is
taken to be an aspect of access to a declared service.
(3) For the purposes of this Part, if an access determination imposes a
requirement on a carrier or carriage service provider as mentioned
in paragraph 152BC(3)(e), anything done by the carrier or provider
in fulfilment of the requirement is taken to be an aspect of access
to a declared service.
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152AG Access seeker
(1) This section sets out the circumstances in which a person is taken
to be an access seeker in relation to a declared service for the
purposes of this Part.
(2) A service provider is an access seeker in relation to a declared
service if the provider makes, or proposes to make, a request in
relation to that service under section 152AR (which deals with the
category A standard access obligations) or section 152AXB (which
deals with the category B standard access obligations), whether or
not:
(a) the request is refused; or
(b) the request is being complied with.
(3) A service provider is an access seeker in relation to a declared
service if:
(a) the provider wants access to the service; or
(b) the provider wants to change some aspect of the provider’s
existing access to the service; or
(c) the supplier of the service wants to change some aspect of the
provider’s existing access to the service.
152AGA Designated superfast telecommunications network
(1) For the purposes of this Part, if:
(a) a telecommunications network is used, or is proposed to be
used, to supply one or more Layer 2 bitstream services
wholly or principally to residential or small business
customers, or prospective residential or small business
customers, in Australia; and
(b) the network is used, or is proposed to be used, to supply a
superfast carriage service wholly or principally to residential
or small business customers, or prospective residential or
small business customers, in Australia; and
(c) the network is not the national broadband network; and
(d) either:
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(i) the network came into existence on or after 1 January
2011; or
(ii) the network was altered or upgraded on or after
1 January 2011 and, as a result of the alteration or
upgrade, the network became capable of being used to
supply a superfast carriage service to residential or
small business customers, or prospective residential or
small business customers, in Australia;
the network is a designated superfast telecommunications
network.
(2) A network is not a designated superfast telecommunications
network for the purposes of this Part if, under subsection 141A(1)
of the Telecommunications Act 1997, the network is exempt from
section 141 of that Act.
Note: Section 141 of the Telecommunications Act 1997 deals with the
supply of Layer 2 bitstream services.
Deemed networks
(3) For the purposes of this section, if:
(a) a telecommunications network is altered or upgraded on or
after 1 January 2011; and
(b) as a result of the alteration or upgrade, a part of the network
became capable of being used to supply a superfast carriage
service to residential or small business customers, or
prospective residential or small business customers, in
Australia;
then:
(c) that part is taken to be a network in its own right; and
(d) the network referred to in paragraph (c) is taken to have come
into existence on or after 1 January 2011.
(4) For the purposes of this section, if:
(a) a telecommunications network is extended on or after
1 January 2011; and
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(b) the extended part of the network is capable of being used to
supply a superfast carriage service to residential or small
business customers, or prospective residential or small
business customers, in Australia;
then:
(c) the extended part is taken to be a network in its own right;
and
(d) the network referred to in paragraph (c) is taken to have come
into existence on or after 1 January 2011.
(5) If:
(a) a part of the infrastructure of a telecommunications network
is situated in a particular area that is being or was developed
as a particular stage of a real estate development project
(within the ordinary meaning of that expression); and
(b) the network is extended to another area that is being, or is to
be, developed as another stage of the project;
subsection (4) does not apply to the extension.
(6) If:
(a) a telecommunications network was in existence immediately
before 1 January 2011; and
(b) the network is extended on or after 1 January 2011; and
(c) no point on the infrastructure of the extension is located more
than:
(i) 1 kilometre; or
(ii) if a longer distance is specified in the regulations—that
longer distance;
from a point on the infrastructure of the network as the
network stood immediately before 1 January 2011;
subsection (4) does not apply to the extension.
(7) The regulations may provide that subsection (4) does not apply to a
specified extension of a telecommunications network.
Note: For specification by class, see the Acts Interpretation Act 1901.
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Certain installations and connections are not taken to be an
extension, alteration or upgrade
(8) For the purposes of this section, if:
(a) a line is or was installed for the purposes of connecting
particular premises to a telecommunications network; and
(b) the installation of the line enables or enabled the occupier of
the premises to become a customer in relation to carriage
services supplied using the network; and
(c) the premises are in close proximity to a line that forms part of
the infrastructure of the network; and
(d) the network is capable of being used to supply a superfast
carriage service; and
(e) the network came into existence before 1 January 2011;
neither the installation of the line mentioned in paragraph (a), nor
the connection of the premises, is taken to be an extension,
alteration or upgrade of the network.
Small business customer
(9) For the purposes of this section, small business customer means:
(a) a customer who is a small business employer (within the
meaning of the Fair Work Act 2009); or
(b) a customer who:
(i) carries on a business; and
(ii) does not have any employees.
For the purposes of paragraph (a), it is to be assumed that each
reference in section 23 of the Fair Work Act 2009 to a national
system employer were a reference to an employer (within the
ordinary meaning of that expression).
Alteration
(10) For the purposes of this section, an alteration of a
telecommunications network does not include an extension of the
network.
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Upgrade
(11) For the purposes of this section, an upgrade of a
telecommunications network does not include an extension of the
network.
152AH Reasonableness—terms and conditions
(1) For the purposes of this Part, in determining whether particular
terms and conditions are reasonable, regard must be had to the
following matters:
(a) whether the terms and conditions promote the long-term
interests of end-users of carriage services or of services
supplied by means of carriage services;
(b) the legitimate business interests of the carrier or carriage
service provider concerned, and the carrier’s or provider’s
investment in facilities used to supply the declared service
concerned;
(c) the interests of persons who have rights to use the declared
service concerned;
(d) the direct costs of providing access to the declared service
concerned;
(e) the operational and technical requirements necessary for the
safe and reliable operation of a carriage service, a
telecommunications network or a facility;
(f) the economically efficient operation of a carriage service, a
telecommunications network or a facility.
(2) Subsection (1) does not, by implication, limit the matters to which
regard may be had.
152AI When public inquiry commences
For the purposes of this Part, a public inquiry held by the
Commission under Part 25 of the Telecommunications Act 1997
commences when the Commission publishes the notice under
section 498 of that Act about the inquiry.
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152AJ Interpretation of Part IIIA not affected by this Part
In determining the meaning of a provision of Part IIIA, the
provisions of this Part (other than section 152CK) are to be
ignored.
152AK Operation of Parts IV and VII not affected by this Part
This Part does not affect the operation of Parts IV and VII.
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Division 2—Declared services
152AL Declared services
Eligible service
(1) For the purposes of this section, an eligible service is:
(a) a listed carriage service (within the meaning of the
Telecommunications Act 1997); or
(b) a service that facilitates the supply of a listed carriage service
(within the meaning of that Act);
where the service is supplied, or is capable of being supplied, by a
carrier or a carriage service provider (whether to itself or to other
persons).
Declaration made after public inquiry—services not supplied by an
NBN corporation
(3) The Commission may, by written instrument, declare that a
specified eligible service is a declared service if:
(a) the Commission has held a public inquiry under Part 25 of
the Telecommunications Act 1997 about a proposal to make
the declaration; and
(b) the Commission has prepared a report about the inquiry
under section 505 of the Telecommunications Act 1997; and
(c) the report was published during the 180-day period ending
when the declaration was made; and
(d) the Commission is satisfied that the making of the
declaration will promote the long-term interests of end-users
of carriage services or of services provided by means of
carriage services.
Note: Eligible services may be specified by name, by inclusion in a specified
class or in any other way.
(3A) A declaration under subsection (3) does not apply to an eligible
service to the extent to which the service is supplied, or is capable
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of being supplied, by an NBN corporation (whether to itself or to
other persons).
(3B) Before commencing to hold a public inquiry under Part 25 of the
Telecommunications Act 1997 about a proposal to make a
declaration under subsection (3) in relation to an eligible service,
the Commission must consider whether to hold a public inquiry
under that Part about a proposal to make a declaration under
subsection (8A) in relation to the service.
Note: For combined public inquiries, see section 152AN.
Mandatory declaration—Layer 2 bitstream service
(3C) As soon as practicable after the commencement of this subsection,
the Commission must declare under subsection (3) that a specified
Layer 2 bitstream service is a declared service.
(3D) A declaration mentioned in subsection (3C) has no effect except to
the extent (if any) to which the Layer 2 bitstream service is
supplied using a designated superfast telecommunications network.
Note: For designated superfast telecommunications network, see
section 152AGA.
(3E) Paragraphs (3)(a) to (d) do not apply to a declaration mentioned in
subsection (3C).
(3F) If a Layer 2 bitstream service is declared as mentioned in
subsection (3C), that subsection does not, by implication, prevent
the Commission from making a declaration under subsection (3) in
relation to another Layer 2 bitstream service.
(3G) If a Layer 2 bitstream service is declared as mentioned in
subsection (3C), that subsection does not, by implication, prevent
the Commission from making another declaration under
subsection (3) in relation to the same Layer 2 bitstream service.
(3H) The other declaration mentioned in subsection (3G) has no effect
except to the extent (if any) to which the Layer 2 bitstream service
is supplied otherwise than by using a designated superfast
telecommunications network.
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Declaration has effect
(4) A declaration under subsection (3) has effect accordingly.
Gazettal of declaration
(5) A copy of a declaration under subsection (3) is to be published in
the Gazette.
Related services
(6) A reference in paragraph (1)(b) to a service that facilitates the
supply of a carriage service does not include a reference to the use
of intellectual property except to the extent that it is an integral but
subsidiary part of the first-mentioned service.
Services covered by special access undertakings—services not
supplied by an NBN corporation
(7) If:
(a) a person (other than an NBN corporation) gives the
Commission a special access undertaking in relation to a
service or a proposed service; and
(b) the undertaking is in operation; and
(c) the person supplies the service or proposed service (whether
to itself or to other persons);
the service supplied by the person is a declared service. To avoid
doubt, if the undertaking is subject to limitations, the service
supplied by the person is a declared service only to the extent to
which the service falls within the scope of the limitations.
(8) The Commission may declare a service under subsection (3) even
if the service is, to any extent, covered by subsection (7).
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Declaration made after public inquiry—services supplied by an
NBN corporation
(8A) The Commission may, by written instrument, declare that a
specified eligible service, to the extent to which the service is
supplied, or is capable of being supplied, by a specified NBN
corporation (whether to itself or to other persons), is a declared
service if:
(a) the Commission has held a public inquiry under Part 25 of
the Telecommunications Act 1997 about a proposal to make
the declaration; and
(b) the Commission has prepared a report about the inquiry
under section 505 of the Telecommunications Act 1997; and
(c) the report was published during the 180-day period ending
when the declaration was made; and
(d) the Commission is satisfied that the making of the
declaration will promote the long-term interests of end-users
of carriage services or of services provided by means of
carriage services.
If the Commission does so, the declared service relates to the NBN
corporation for the purposes of subsections 152AXB(2) and
152AXC(7).
Note: Eligible services may be specified by name, by inclusion in a specified
class or in any other way.
(8B) A declaration under subsection (8A) has effect accordingly.
(8C) A copy of a declaration under section (8A) is to be published in the
Gazette.
(8CA) Subsection (3C) does not, by implication, prevent a Layer 2
bitstream service from being declared under subsection (8A).
Services supplied by an NBN corporation—standard form of
access agreement
(8D) If:
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(a) an eligible service is supplied, or is capable of being
supplied, by an NBN corporation (whether to itself or to
other persons); and
(b) the NBN corporation is a carrier or a carriage service
provider; and
(c) the NBN corporation has formulated a standard form of
access agreement that relates to access to the service; and
(d) the standard form of access agreement is available on the
NBN corporation’s website;
then:
(e) the service, to the extent to which it is supplied, or is capable
of being supplied, by the NBN corporation (whether to itself
or to other persons) is a declared service; and
(f) the declared service relates to the NBN corporation for the
purposes of subsections 152AXB(2) and 152AXC(7).
Services covered by special access undertakings—services
supplied by an NBN corporation
(8E) If:
(a) an NBN corporation gives the Commission a special access
undertaking in relation to a service or a proposed service; and
(b) the undertaking is in operation; and
(c) the NBN corporation supplies the service or proposed service
(whether to itself or to other persons);
then:
(d) the service supplied by the NBN corporation is a declared
service; and
(e) the declared service relates to the NBN corporation for the
purposes of subsections 152AXB(2) and 152AXC(7).
To avoid doubt, if the undertaking is subject to limitations, the
service supplied by the NBN corporation is a declared service only
to the extent to which the service falls within the scope of the
limitations.
(8F) The Commission may declare a service under subsection (8A) even
if the service is, to any extent, covered by subsection (8E).
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Declaration is not a legislative instrument
(9) A declaration under this section is not, and is taken never to have
been, a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
(10) A variation of a declaration made under this section is not, and is
taken never to have been, a legislative instrument for the purposes
of the Legislative Instruments Act 2003.
(11) A revocation of a declaration made under this section is not, and is
taken never to have been, a legislative instrument for the purposes
of the Legislative Instruments Act 2003.
(12) If:
(a) a declaration was made under this section before the
commencement of this subsection; and
(b) the declaration ceased to be in force before the
commencement of this subsection;
then:
(c) the declaration is taken never to have been a legislative
instrument for the purposes of the Legislative Instruments Act
2003; and
(d) if the declaration was varied or revoked before the
commencement of this subsection—the variation or
revocation is taken never to have been a legislative
instrument for the purposes of the Legislative Instruments Act
2003.
(13) For the purposes of paragraph (12)(b), assume that the Legislative
Instruments Act 2003 had never been enacted.
(14) Subsections (9) to (12) are enacted for the avoidance of doubt.
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152ALA Duration of declaration
Expiry date
(1) A declaration under section 152AL (other than a declaration
mentioned in subsection 152AL(3C)) must specify an expiry date
for the declaration.
(2) In specifying an expiry date, the Commission must have regard to:
(a) the principle that the expiry date for a declaration should
occur in the period:
(i) beginning 3 years after the declaration was made; and
(ii) ending 5 years after the declaration was made;
unless, in the Commission’s opinion, there are circumstances
that warrant the expiry date occurring in a shorter or longer
period; and
(b) such other matters (if any) as the Commission considers
relevant.
(3) Subsection (2) has effect subject to subsection (4).
Extension of expiry date
(4) The Commission may, by notice published in the Gazette, extend
or further extend the expiry date of a specified declaration under
section 152AL, so long as the extension or further extension is for
a period of not more than 5 years.
Duration of declaration
(5) Unless sooner revoked, a declaration under section 152AL (other
than a declaration mentioned in subsection 152AL(3C)) ceases to
be in force on the expiry date of the declaration.
(5A) A declaration mentioned in subsection 152AL(3C) remains in force
indefinitely.
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Fresh declaration
(6) If a declaration under section 152AL expires, this Part does not
prevent the Commission from making a fresh declaration under
section 152AL in the same terms as the expired declaration.
(6A) If the fresh declaration comes into force immediately after the
expiry of the expired declaration, the fresh declaration is taken to
be a declaration that replaces the expired declaration.
Public inquiry during 18-month period ending on the expiry date of
a declaration
(7) The Commission must:
(a) during the 18-month period ending on the expiry date of a
declaration, hold a public inquiry under Part 25 of the
Telecommunications Act 1997 about:
(i) whether to extend or further extend the expiry date of
the declaration; and
(ii) whether to revoke the declaration; and
(iii) whether to vary the declaration; and
(iv) whether to allow the declaration to expire without
making a new declaration under section 152AL; and
(v) whether to allow the declaration to expire and then to
make a new declaration under section 152AL; and
(vi) whether to extend or further extend the expiry date of a
declaration by a period of not more than 12 months and
then to allow the declaration to expire without making a
new declaration under section 152AL; and
(b) prepare a report about the inquiry under section 505 of the
Telecommunications Act 1997; and
(c) publish the report during the 180-day period ending on the
expiry date of the first-mentioned declaration.
(8) If:
(a) after holding a public inquiry under subsection (7) in relation
to a declaration, the Commission allows the declaration to
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expire and then makes a new declaration under
section 152AL; and
(b) the report mentioned in paragraph (7)(b) was published
during the 180-day period ending when the new declaration
was made;
the Commission is taken to have complied with paragraphs
152AL(3)(a), (b) and (c), or paragraphs 152AL(8A)(a), (b) and (c),
as the case requires, in relation to the new declaration.
(9) If:
(a) after holding a public inquiry under subsection (7) in relation
to a declaration, the Commission revokes or varies the
declaration; and
(b) the report mentioned in paragraph (7)(b) was published
during the 180-day period ending at the time of the
revocation or variation;
the Commission is taken to have complied with paragraphs
152AL(3)(a), (b) and (c), or paragraphs 152AL(8A)(a), (b) and (c),
as the case requires, in relation to the revocation or variation (as
those paragraphs apply to the power of revocation and variation
because of subsection 152AO(1)).
Extension notice is not a legislative instrument
(10) A notice under subsection (4) is not, and is taken never to have
been, a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
(11) If:
(a) a declaration was made under section 152AL before the
commencement of this subsection; and
(b) a notice relating to the declaration was published under
subsection (4) of this section before the commencement of
this subsection; and
(c) the declaration ceased to be in force before the
commencement of this subsection;
the notice is taken never to have been a legislative instrument for
the purposes of the Legislative Instruments Act 2003.
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(12) For the purposes of paragraph (11)(c), assume that the Legislative
Instruments Act 2003 had never been enacted.
(13) Subsections (10) and (11) are enacted for the avoidance of doubt.
152AM Inquiries about proposals to declare services
(1) This section applies to a public inquiry of a kind mentioned in
paragraph 152AL(3)(a) or (8A)(a) or 152ALA(7)(a).
(2) The Commission may hold the inquiry:
(a) on its own initiative; or
(b) if requested in writing to do so by a person.
(3) The Commission does not have a duty to consider whether to hold
a public inquiry of a kind mentioned in paragraph 152AL(3)(a) or
(8A)(a) if the Commission is requested to do so by a person.
(4) The Commission must give the ACMA a copy of the report about
the inquiry prepared in accordance with section 505 of the
Telecommunications Act 1997.
(5) If the inquiry is held at the request of a person, the Commission
must give the person a copy of the report about the inquiry
prepared under section 505 of the Telecommunications Act 1997.
152AN Combined inquiries about proposals to declare services
(1) The Commission may decide to combine 2 or more public inquiries
of a kind mentioned in paragraph 152AL(3)(a), or (8A)(a) or
152ALA(7)(a).
(2) If the Commission makes such a decision:
(a) the Commission may publish a single notice relating to the
combined inquiry under section 498 of the
Telecommunications Act 1997; and
(b) the Commission may prepare a single discussion paper about
the combined inquiry under section 499 of that Act; and
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(c) the Commission may hold hearings relating to the combined
inquiry under section 501 of that Act; and
(d) the Commission must ensure that each inquiry is covered by
a report under section 505 of that Act, whether the report
relates:
(i) to a single one of those inquiries; or
(ii) to any 2 or more of those inquiries.
152AO Variation or revocation of declaration
(1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a
power conferred on the Commission by section 152AL, but it
applies with the following changes.
(1A) If:
(a) a declaration under section 152AL relates to a particular
service; and
(b) in the Commission’s opinion, the service is of minor
importance;
the Commission is not required to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
revoke the declaration.
(3) If a variation of a declaration under subsection 152AL(3) or (8A) is
a variation that, under the Procedural Rules, is taken to be a
variation of a minor nature, the Commission is not required to hold
a public inquiry under Part 25 of the Telecommunications Act 1997
about the proposed variation.
(4) The Commission must not vary or revoke a declaration mentioned
in subsection 152AL(3C).
Note: Subsection 152AL(3C) deals with Layer 2 bitstream services.
152AQ Register of declared services
(1) The Commission must keep a Register in relation to declarations
under section 152AL.
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(2) The Register must include the following:
(a) particulars of all such declarations (including declarations
that have been revoked);
(b) particulars of variations and revocations of such declarations;
(c) copies of reports prepared in accordance with section 505 of
the Telecommunications Act 1997 in relation to inquiries
mentioned in paragraph 152AL(3)(a) or (8A)(a) or
152ALA(7)(a) of this Act.
(3) The Register is to be maintained by electronic means.
(4) The Register is to be made available for inspection on the
Commission’s website.
(5) The Register is not a legislative instrument.
152AQC Compensation for acquisition of property
(1) If the operation of any or all of the following provisions:
(a) subsection 152AL(9), (10), (11), (12), (13) or (14);
(b) subsection 152ALA(10), (11), (12) or (13);
would result in an acquisition of property from a person otherwise
than on just terms, the Commonwealth is liable to pay a reasonable
amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount
of the compensation, the person may institute proceedings in the
Federal Court for the recovery from the Commonwealth of such
reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in
paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the
Constitution.
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Division 3—Standard access obligations
Subdivision A—Category A standard access obligations
152AR Category A standard access obligations
(1) This section sets out the category A standard access obligations.
Access provider and active declared services
(2) For the purposes of this section, if a carrier (other than an NBN
corporation) or a carriage service provider (other than an NBN
corporation) supplies declared services, whether to itself or to other
persons:
(a) the carrier or provider is an access provider; and
(b) the declared services are active declared services.
Supply of active declared service to service provider
(3) An access provider must, if requested to do so by a service
provider:
(a) supply an active declared service to the service provider in
order that the service provider can provide carriage services
and/or content services; and
(b) take all reasonable steps to ensure that the technical and
operational quality of the active declared service supplied to
the service provider is equivalent to that which the access
provider provides to itself; and
(c) take all reasonable steps to ensure that the service provider
receives, in relation to the active declared service supplied to
the service provider, fault detection, handling and
rectification of a technical and operational quality and timing
that is equivalent to that which the access provider provides
to itself.
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Limit on paragraph (3)(a) obligation
(4) Paragraph (3)(a) does not impose an obligation to the extent (if
any) to which the imposition of the obligation would have any of
the following effects:
(a) preventing a service provider who already has access to the
declared service from obtaining a sufficient amount of the
service to be able to meet the service provider’s reasonably
anticipated requirements, measured at the time when the
request was made;
(b) preventing the access provider from obtaining a sufficient
amount of the service to be able to meet the access provider’s
reasonably anticipated requirements, measured at the time
when the request was made;
(c) preventing a person from obtaining, by the exercise of a
pre-request right, a sufficient level of access to the declared
service to be able to meet the person’s actual requirements;
(d) depriving any person of a protected contractual right;
(e) preventing Telstra from complying with an undertaking in
force under section 577A, 577C or 577E of the
Telecommunications Act 1997; or
(f) if a final migration plan is in force—requiring Telstra to
engage in conduct in connection with matters covered by the
final migration plan.
Ordering and provisioning—paragraph (3)(b)
(4A) To avoid doubt, ordering and provisioning are taken to be aspects
of technical and operational quality referred to in paragraph (3)(b).
(4B) The regulations may provide that, for the purposes of
subsection (4A), a specified act or thing is taken to be ordering.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(4C) The regulations may provide that, for the purposes of
subsection (4A), a specified act or thing is taken to be
provisioning.
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Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
Interconnection of facilities
(5) If an access provider:
(a) owns or controls one or more facilities; or
(b) is a nominated carrier in relation to one or more facilities;
the access provider must, if requested to do so by a service
provider:
(c) permit interconnection of those facilities with the facilities of
the service provider for the purpose of enabling the service
provider to be supplied with active declared services in order
that the service provider can provide carriage services and/or
content services; and
(d) take all reasonable steps to ensure that:
(i) the technical and operational quality and timing of the
interconnection is equivalent to that which the access
provider provides to itself; and
(ii) if a standard is in force under section 384 of the
Telecommunications Act 1997—the interconnection
complies with the standard; and
(e) take all reasonable steps to ensure that the service provider
receives, in relation to the interconnection, fault detection,
handling and rectification of a technical and operational
quality and timing that is equivalent to that which the access
provider provides to itself.
Provision of billing information
(6) If a service provider uses active declared services supplied by an
access provider in accordance with subsection (3), the access
provider must, if requested to do so by the service provider, give
the service provider billing information in connection with matters
associated with, or incidental to, the supply of those active declared
services.
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Timing and content of billing information
(7) The billing information referred to in subsection (6) must:
(a) be given at such times or intervals as are ascertained in
accordance with the regulations; and
(b) be given in a manner and form ascertained in accordance
with the regulations; and
(c) set out such particulars as are ascertained in accordance with
the regulations.
Conditional-access customer equipment
(8) If an access provider supplies an active declared service by means
of conditional-access customer equipment, the access provider
must, if requested to do so by a service provider who has made a
request referred to in subsection (3), supply to the service provider
any service that is necessary to enable the service provider to
supply carriage services and/or content services by means of the
active declared service and using the equipment.
Exceptions
(9) This section does not impose an obligation on an access provider if
there are reasonable grounds to believe that:
(a) the access seeker would fail, to a material extent, to comply
with the terms and conditions on which the access provider
complies, or on which the access provider is reasonably
likely to comply, with that obligation; or
(b) the access seeker would fail, in connection with that
obligation, to protect:
(i) the integrity of a telecommunications network; or
(ii) the safety of individuals working on, or using services
supplied by means of, a telecommunications network or
a facility.
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Examples—paragraph (9)(a) grounds
(10) Examples of grounds for believing as mentioned in
paragraph (9)(a) include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the access provider).
Starting date for obligations
(11) An obligation imposed by this section does not arise before 1 July
1997.
Definitions
(12) In this section:
pre-request right, in relation to a request made for the purposes of
paragraph (3)(a), means a right under a contract that was in force at
the time when the request was made.
protected contractual right means a right under a contract that was
in force at the beginning of 13 September 1996.
152ARA Layer 2 bitstream services to be supplied on a
non-discriminatory basis
No discrimination between access seekers
(1) If a Layer 2 bitstream service is:
(a) supplied using a designated superfast telecommunications
network; and
(b) a declared service;
a carrier (other than an NBN corporation) or carriage service
provider (other than an NBN corporation) must not, in complying
with any of its category A standard access obligations in relation to
the service, discriminate between access seekers.
Note: For explanatory material, see section 152CJH.
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(2) The rule in subsection (1) does not prevent discrimination against
an access seeker if the carrier or carriage service provider has
reasonable grounds to believe that the access seeker would fail, to a
material extent, to comply with the terms and conditions on which
the carrier or carriage service provider complies, or on which the
carrier or carriage service provider is reasonably likely to comply,
with the relevant obligation.
(3) Examples of grounds for believing as mentioned in subsection (2)
include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the carrier or carriage
service provider).
No discrimination by a carrier or carriage service provider in
favour of itself
(7) If:
(a) a Layer 2 bitstream service is:
(i) supplied using a designated superfast
telecommunications network; and
(ii) a declared service; and
(b) the carrier (other than an NBN corporation) or carriage
service provider (other than an NBN corporation) supplies, or
is capable of supplying, the service to itself and to other
persons; and
(c) the carrier or carriage service provider is subject to a
category A standard access obligation in relation to the
service;
the carrier or carriage service provider must not discriminate in
favour of itself in relation to the supply of the service.
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152ARB Layer 2 bitstream services—carriers and carriage service
providers to carry on related activities on a
non-discriminatory basis
Scope
(1) This section applies to a carrier or carriage service provider if:
(a) a Layer 2 bitstream service is:
(i) supplied using a designated superfast
telecommunications network; and
(ii) a declared service; and
(b) the carrier or provider is subject to a category A standard
access obligation in relation to the service.
No discrimination
(2) The carrier or provider must not, in carrying on any of the
following activities, discriminate between access seekers:
(a) developing a new eligible service;
(b) enhancing a declared service;
(c) extending or enhancing the capability of a facility or
telecommunications network by means of which a declared
service is, or is to be, supplied;
(d) planning for a facility or telecommunications network by
means of which a declared service is, or is to be, supplied;
(e) an activity that is preparatory to the supply of a declared
service;
(f) an activity that is ancillary or incidental to the supply of a
declared service;
(g) giving information to service providers about any of the
above activities.
Note: For explanatory material, see section 152CJH.
Definition
(6) In this section:
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eligible service has the same meaning as in section 152AL.
152ASA Anticipatory class exemptions from category A standard
access obligations
Determination providing for exemption
(1) The Commission may, by written instrument, determine that, in the
event that a specified service or proposed service becomes an
active declared service, each of the members of a specified class of
carrier or of a specified class of carriage service provider are
exempt from any or all of the obligations referred to in
section 152AR, to the extent to which the obligations relate to the
active declared service.
(1A) A service or a proposed service must not be specified in a
determination under this section if, at the time when the
determination is made, the service or proposed service is a declared
service.
(2) A determination under this section may be unconditional or subject
to such conditions or limitations as are specified in the
determination.
Note: For judicial enforcement of conditions and limitations, see
section 152BBAA.
(2A) A determination under this section may:
(a) provide that the determination must not be varied; or
(b) provide that the determination must not be varied except in
such circumstances as are specified in the determination.
(2B) A determination under this section may:
(a) provide that the determination must not be revoked; or
(b) provide that the determination must be revoked except in
such circumstances as are specified in the determination.
(3) A determination under this section has effect accordingly.
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Criteria for making determination
(4) The Commission must not make a determination under this section
unless the Commission is satisfied that the making of the
determination will promote the long-term interests of end-users of
carriage services or of services supplied by means of carriage
services.
Expiry time of determination
(8) A determination under this section must specify the expiry time of
the determination. If a determination expires, this Part does not
prevent the Commission from making a fresh determination under
this section in the same terms as the expired determination.
(9) The expiry time of the determination may be described by
reference to the end of a period beginning when the service or
proposed service becomes an active declared service.
(10) Subsection (9) does not, by implication, limit subsection (8).
Consultation
(11) If, in the Commission’s opinion, the making of a determination
under this section is likely to have a material effect on the interests
of a person, then, before making the determination, the
Commission must first:
(a) publish a draft of the determination and invite people to make
submissions to the Commission on the question of whether
the draft determination should be made; and
(b) consider any submissions that were received within the time
limit specified by the Commission when it published the
draft determination.
Variation or revocation of determination
(11A) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a
power conferred on the Commission by subsection (1), but it
applies with the following changes.
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(11B) A provision referred to in paragraph (2A)(a) or (b) or (2B)(a) or (b)
cannot be varied or removed.
(11C) A determination under this section must not be varied or revoked
in a manner that is inconsistent with a provision referred to in
paragraph (2A)(a) or (b) or (2B)(a) or (b).
Determination is not a legislative instrument
(12) A determination made under subsection (1) is not a legislative
instrument.
Definition
(13) In this section:
active declared service has the same meaning as in section 152AR.
152ATA Anticipatory individual exemptions from category A
standard access obligations
Application for exemption order
(1) A person who is, or expects to be, a carrier or a carriage service
provider may apply to the Commission for a written order that, in
the event that a specified service or proposed service becomes an
active declared service, the person is exempt from any or all of the
obligations referred to in section 152AR, to the extent to which the
obligations relate to the active declared service.
(2) An application under subsection (1) must be:
(a) in writing; and
(b) in a form approved in writing by the Commission for the
purposes of this paragraph.
(2A) Before the Commission makes a decision under subsection (3) in
relation to the application, the applicant may, by written notice
given to the Commission within the time allowed by the Procedural
Rules, modify the application, so long as the modification is a
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modification that, under the Procedural Rules, is taken to be a
modification of a minor nature.
Commission must make exemption order or refuse application
(3) After considering the application, the Commission must:
(a) make a written order that, in the event that the service or
proposed service becomes an active declared service, the
applicant is exempt from one or more of the obligations
referred to in section 152AR, to the extent to which the
obligations relate to the active declared service; or
(b) refuse the application.
(3A) A service or a proposed service must not be specified in an order
under paragraph (3)(a) if, at the time when the order is made, the
service or proposed service is a declared service.
(4) An order under paragraph (3)(a) may be unconditional or subject to
such conditions or limitations as are specified in the order.
Note: For judicial enforcement of conditions and limitations, see
section 152BBAA.
(4A) An order under paragraph (3)(a) may:
(a) provide that the order must not be varied; or
(b) provide that the order must not be varied except in such
circumstances as are specified in the order.
(4B) An order under paragraph (3)(a) may:
(a) provide that the order must not be revoked; or
(b) provide that the order must not be revoked except in such
circumstances as are specified in the order.
(5) An order under paragraph (3)(a) has effect accordingly.
Criteria for making exemption order
(6) The Commission must not make an order under paragraph (3)(a)
unless the Commission is satisfied that the making of the order will
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promote the long-term interests of end-users of carriage services or
of services provided by means of carriage services.
Serial applications
(7) If:
(a) a person makes an application (the first application) under
subsection (1) for an order in relation to a service or
proposed service; and
(b) the Commission refuses the first application; and
(c) the person subsequently makes another application under
subsection (1); and
(d) the Commission is satisfied that:
(i) the first application and the other application have
material similarities; or
(ii) the grounds on which the person made the first
application are materially similar to the grounds on
which the person has made the other application;
the Commission may refuse to consider the other application.
Expiry time for exemption order
(10) An order under paragraph (3)(a) must specify the expiry time for
the order. If an order expires, this Part does not prevent the
Commission from making a fresh order under paragraph (3)(a) in
the same terms as the expired order.
(10A) The expiry time for the order may be described by reference to the
end of a period beginning when the service or proposed service
becomes an active declared service.
(10B) Subsection (10A) does not, by implication, limit subsection (10).
Consultation
(11) If, in the Commission’s opinion, the making of an order under
paragraph (3)(a) is likely to have a material effect on the interests
of a person, then, before making the order, the Commission must
first:
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(a) publish the application for the order and invite people to
make submissions to the Commission on the question of
whether the order should be made; and
(b) consider any submissions that were received within the time
limit specified by the Commission when it published the
application.
Commission to make decision within 6 months
(12) If the Commission does not make a decision on an application
under this section within 6 months after receiving the application,
the Commission is taken to have made, at the end of that 6-month
period, an order under paragraph (3)(a) in accordance with the
terms of the application.
(13) In calculating the 6-month period referred to in subsection (12),
disregard:
(a) if the Commission has published the application under
subsection (11)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the
Commission when it published the application; and
(b) if the Commission has requested further information under
section 152AU in relation to the application—a day during
any part of which the request, or any part of the request,
remains unfulfilled.
Extension of decision-making period
(14) The Commission may, by written notice given to the applicant,
extend or further extend the 6-month period referred to in
subsection (12), so long as:
(a) the extension or further extension is for a period of not more
than 3 months; and
(b) the notice includes a statement explaining why the
Commission has been unable to make a decision on the
application within that 6-month period or that 6-month period
as previously extended, as the case may be.
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(15) As soon as practicable after the Commission gives a notice under
subsection (14), the Commission must cause a copy of the notice to
be made available on the internet.
Notification of refusal of application
(16) If the Commission makes a decision refusing an application under
subsection (1), the Commission must give the applicant a written
statement setting out the reasons for the refusal.
(16A) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a
power conferred on the Commission by paragraph (3)(a), but it
applies with the following changes.
(16B) A provision referred to in paragraph (4A)(a) or (b) or (4B)(a) or (b)
cannot be varied or removed.
(16C) An order under paragraph (3)(a) must not be varied or revoked in a
manner that is inconsistent with a provision referred to in (4A)(a)
or (b) or (4B)(a) or (b).
Definition
(18) In this section:
active declared service has the same meaning as in section 152AR.
152AU Individual exemptions—request for further information
(1) This section applies to an application under
subsection 152ATA(1).
(2) The Commission may request the applicant to give the
Commission further information about the application.
(2A) If:
(a) the Procedural Rules make provision for or in relation to a
time limit for giving the information; and
(b) the applicant does not give the Commission the information
within the time limit allowed by the Procedural Rules;
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the Commission may, by written notice given to the applicant,
refuse the application.
(2B) Subsection (2A) has effect despite anything in this Division.
(3) If the Procedural Rules do not make provision for or in relation to a
time limit for giving the information, the Commission may refuse
to consider the application until the applicant gives the
Commission the information.
(4) The Commission may withdraw its request for further information,
in whole or in part.
152AXA Statement of reasons for decision—specification of
documents
If the Commission:
(a) makes a decision under section 152ATA; and
(b) gives a person a written statement setting out the reasons for
the decision;
the statement must specify the documents that the Commission
examined in the course of making the decision.
Subdivision B—Category B standard access obligations
152AXB Category B standard access obligations
(1) This section sets out the category B standard access obligations.
Supply of declared service to service provider
(2) If:
(a) an NBN corporation is a carrier or carriage service provider;
and
(b) under subsection 152AL(8A), (8D) or (8E), a declared
service relates to the NBN corporation;
the NBN corporation must, if requested to do so by a service
provider, supply the service to the service provider in order that the
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service provider can provide carriage services and/or content
services.
Note: For declared services, see subsections 152AL(8A), (8D) and (8E).
Limit on subsection (2) obligations
(3) Subsection (2) does not impose an obligation to the extent (if any)
to which the imposition of the obligation would have any of the
following effects:
(a) preventing a service provider who already has access to the
declared service from obtaining a sufficient amount of the
service to be able to meet the service provider’s reasonably
anticipated requirements, measured at the time when the
request was made;
(b) preventing the NBN corporation from obtaining a sufficient
amount of the service to be able to meet the NBN
corporation’s reasonably anticipated requirements, measured
at the time when the request was made;
(c) preventing a person from obtaining, by the exercise of a
pre-request right, a sufficient level of access to the declared
service to be able to meet the person’s actual requirements.
(3A) Subsection (2) does not impose an obligation on an NBN
corporation to supply a service in circumstances where a refusal by
the NBN corporation to supply the service is authorised under
section 151DA for the purposes of subsection 51(1).
Interconnection of facilities
(4) If:
(a) an NBN corporation is a carrier or carriage service provider;
and
(b) the NBN corporation:
(i) owns or controls one or more facilities; or
(ii) is a nominated carrier in relation to one or more
facilities;
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the NBN corporation must, if requested to do so by a service
provider:
(c) permit interconnection of those facilities with the facilities of
the service provider for the purpose of enabling the service
provider to be supplied with declared services in order that
the service provider can provide carriage services and/or
content services; and
(d) take all reasonable steps to ensure that, if a standard is in
force under section 384 of the Telecommunications Act 1997,
the interconnection complies with the standard.
(4A) Subsection (4) does not apply to an interconnection at a location
that is not a listed point of interconnection (within the meaning of
section 151DB).
Conditional-access customer equipment
(5) If:
(a) an NBN corporation is a carrier or carriage service provider;
and
(b) the NBN corporation supplies a declared service by means of
conditional-access customer equipment;
the NBN corporation must, if requested to do so by a service
provider who has made a request referred to in subsection (2),
supply to the service provider any service that is necessary to
enable the service provider to supply carriage services and/or
content services by means of the declared service and using the
equipment.
Exceptions
(6) This section does not impose an obligation on an NBN corporation
if there are reasonable grounds to believe that:
(a) the access seeker would fail, to a material extent, to comply
with the terms and conditions on which the NBN corporation
complies, or on which the NBN corporation is reasonably
likely to comply, with that obligation; or
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(b) the access seeker would fail, in connection with that
obligation, to protect:
(i) the integrity of a telecommunications network; or
(ii) the safety of individuals working on, or using services
supplied by means of, a telecommunications network or
a facility.
Examples—paragraph (6)(a) grounds
(7) Examples of grounds for believing as mentioned in
paragraph (6)(a) include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the NBN corporation).
Definition
(8) In this section:
pre-request right, in relation to a request made for the purposes of
subsection (2), means a right under a contract that was in force at
the time when the request was made.
152AXC NBN corporation to supply declared services on a
non-discriminatory basis
No discrimination between access seekers
(1) An NBN corporation must not, in complying with any of its
category B standard access obligations, discriminate between
access seekers.
Note: For explanatory material, see section 152CJH.
(2) The rule in subsection (1) does not prevent discrimination against
an access seeker if the NBN corporation has reasonable grounds to
believe that the access seeker would fail, to a material extent, to
comply with the terms and conditions on which the NBN
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corporation complies, or on which the NBN corporation is
reasonably likely to comply, with the relevant obligation.
(3) Examples of grounds for believing as mentioned in subsection (2)
include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the NBN corporation).
No discrimination by an NBN corporation in favour of itself
(7) If:
(a) an NBN corporation is a carrier or carriage service provider;
and
(b) under subsection 152AL(8A), (8D) or (8E), a declared
service relates to the NBN corporation; and
(c) the NBN corporation is subject to a category B standard
access obligation in relation to the service;
the NBN corporation must not discriminate in favour of itself in
relation to the supply of the service.
Authorised conduct
(12) If conduct is authorised under section 151DA for the purposes of
subsection 51(1), the conduct is taken not to be discrimination for
the purposes of this section.
152AXD NBN corporation to carry on related activities on a
non-discriminatory basis
(1) An NBN corporation must not, in carrying on any of the following
activities, discriminate between access seekers:
(a) developing a new eligible service;
(b) enhancing a declared service;
(c) extending or enhancing the capability of a facility or
telecommunications network by means of which a declared
service is, or is to be, supplied;
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(d) planning for a facility or telecommunications network by
means of which a declared service is, or is to be, supplied;
(e) an activity that is preparatory to the supply of a declared
service;
(f) an activity that is ancillary or incidental to the supply of a
declared service;
(g) giving information to service providers about any of the
above activities.
Note: For explanatory material, see section 152CJH.
(5A) If conduct is authorised under section 151DA for the purposes of
subsection 51(1), the conduct is taken not to be discrimination for
the purposes of this section.
Definition
(6) In this section:
eligible service has the same meaning as in section 152AL.
Subdivision C—Compliance with standard access obligations
152AY Compliance with standard access obligations
(1) This section applies if a carrier or carriage service provider is
required to comply with any or all of the standard access
obligations.
(2) The carrier or carriage service provider must comply with the
obligations:
(a) if an access agreement between:
(i) the carrier or carriage service provider, as the case
requires; and
(ii) the access seeker;
is in operation and specifies terms and conditions about a
particular matter—on such terms and conditions relating to
that matter as are set out in the agreement; or
(b) if:
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(i) paragraph (a) does not apply in relation to terms and
conditions about a particular matter; and
(ii) a special access undertaking given by the carrier or
carriage service provider is in operation, and the
undertaking specifies terms and conditions about that
matter—on such terms and conditions relating to that
matter as are set out in the undertaking; or
(c) if:
(i) neither paragraph (a) nor (b) applies to terms and
conditions about a particular matter; and
(ii) binding rules of conduct specify terms and conditions
about that matter;
on such terms and conditions relating to that matter as are set
out in the binding rules of conduct; or
(d) if:
(i) none of the above paragraphs applies to terms and
conditions about a particular matter; and
(ii) an access determination specifies terms and conditions
about that matter;
on such terms and conditions relating to that matter as are set
out in the access determination.
Note 1: Sections 152BCC, 152BDB, 152BDE, 152CBIA, 152CBIB and
152CBIC, which deal with inconsistency, should be read and applied
before this section is read and applied.
Note 2: Even though subsection (2) mentions binding rules of conduct,
binding rules of conduct may only be made if the Commission
considers that there is an urgent need to do so.
Note 3: For transitional provisions, see Division 2 of Part 2 of Schedule 1 to
the Telecommunications Legislation Amendment (Competition and
Consumer Safeguards) Act 2010.
152AYA Ancillary obligations—confidential information
If:
(a) a carrier or carriage service provider is required to comply
with a standard access obligation that arose because of a
request made by an access seeker; and
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(b) at or after the time when the request was made, the access
seeker gives particular information to the carrier or carriage
service provider to enable the carrier or carriage service
provider to comply with the standard access obligation; and
(c) at or before the time when the information was given, the
access seeker gave the carrier or carriage service provider a
written notice to the effect that:
(i) that information; or
(ii) a class of information that includes that information;
is to be regarded as having been given on a confidential basis
for the purpose of enabling the carrier or carriage service
provider to comply with the standard access obligation;
the carrier or carriage service provider must not, without the
written consent of the access seeker, use that information for a
purpose other than enabling the carrier or carriage service provider
to comply with:
(d) the standard access obligation; or
(e) any other standard access obligation that arose because of a
request made by the access seeker; or
(f) any other obligation imposed by a law.
152AZ Carrier licence condition
A carrier licence held by a carrier is subject to a condition that the
carrier must comply with:
(a) any standard access obligations that are applicable to the
carrier; and
(aa) any rule in section 152ARA, 152ARB, 152AXC or 152AXD
that is applicable to the carrier; and
(b) any obligations under section 152AYA that are applicable to
the carrier.
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152BA Service provider rule
(1) In addition to the rules mentioned in section 98 of the
Telecommunications Act 1997, the rule set out in subsection (2) of
this section is a service provider rule for the purposes of that Act.
(2) A carriage service provider must comply with:
(a) any standard access obligations that are applicable to the
provider; and
(aa) any rule in section 152ARA, 152ARB, 152AXC or 152AXD
that is applicable to the provider; and
(b) any obligations under section 152AYA that are applicable to
the provider.
152BB Judicial enforcement of standard access obligations
(1) If the Federal Court is satisfied that a carrier or carriage service
provider has contravened any of the standard access obligations
that are applicable to the carrier or provider, the Court may, on the
application of:
(a) the Commission; or
(b) any person whose interests are affected by the contravention;
make all or any of the following orders:
(c) an order directing the carrier or provider to comply with the
obligation;
(d) an order directing the carrier or provider to compensate any
other person who had suffered loss or damage as a result of
the contravention;
(e) any other order that the Court thinks appropriate.
(1AA) If the Federal Court is satisfied that a carrier or carriage service
provider has contravened the rule in subsection 152ARA(1) or (7)
or 152ARB(2), the Court may, on the application of:
(a) the Commission; or
(b) any person whose interests are affected by the contravention;
make all or any of the following orders:
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(c) an order directing the carrier or provider to comply with the
obligation;
(d) an order directing the carrier or provider to compensate any
other person who had suffered loss or damage as a result of
the contravention;
(e) any other order that the Court thinks appropriate.
(1AB) If the Federal Court is satisfied that an NBN corporation has
contravened the rule in subsection 152AXC(1) or (7) or
152AXD(1), the Court may, on the application of:
(a) the Commission; or
(b) any person whose interests are affected by the contravention;
make all or any of the following orders:
(c) an order directing the NBN corporation to comply with that
rule;
(d) an order directing the NBN corporation to compensate any
other person who had suffered loss or damage as a result of
the contravention;
(e) any other order that the Court thinks appropriate.
(1A) If the Federal Court is satisfied that a carrier or carriage service
provider has contravened an obligation imposed by
section 152AYA, the Court may, on the application of:
(a) the Commission; or
(b) the access seeker who gave the information concerned;
make all or any of the following orders:
(c) an order directing the carrier or carriage service provider to
comply with the obligation;
(d) an order directing the carrier or carriage service provider to
compensate any other person who has suffered loss or
damage as a result of the contravention;
(e) any other order that the Court thinks appropriate.
(2) The Federal Court may discharge or vary an order granted under
this section.
(3) This section does not limit section 152BBAA.
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152BBAA Judicial enforcement of conditions and limitations of
exemption determinations and orders
(1) If the Federal Court is satisfied that a person has contravened any
of the conditions or limitations of:
(a) a determination under section 152ASA; or
(b) an order under section 152ATA;
the Court may, on the application of:
(c) the Commission; or
(d) any person whose interests are affected by the contravention;
make all or any of the following orders:
(e) an order directing the person to comply with the condition or
limitation;
(f) an order directing the person to compensate any other person
who had suffered loss or damage as a result of the
contravention;
(g) any other order that the Court thinks appropriate.
(2) The Federal Court may discharge or vary an order granted under
this section.
(3) This section does not limit section 152BB.
152BBA Commission may give directions in relation to negotiations
(1) This section applies if a carrier or carriage service provider is
required to comply with any or all of the standard access
obligations.
(2) If the following parties:
(a) the carrier or carriage service provider, as the case requires;
(b) the access seeker;
propose to negotiate, or are negotiating, with a view to agreeing on
terms and conditions as mentioned in paragraph 152AY(2)(a), the
Commission may, for the purposes of facilitating those
negotiations, if requested in writing to do so by either party, give a
party a written procedural direction requiring the party to do, or
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refrain from doing, a specified act or thing relating to the conduct
of those negotiations.
(3) The following are examples of the kinds of procedural directions
that may be given under subsection (2):
(a) a direction requiring a party to give relevant information to
the other party;
(b) a direction requiring a party to carry out research or
investigations in order to obtain relevant information;
(c) a direction requiring a party not to impose unreasonable
procedural conditions on the party’s participation in
negotiations;
(d) a direction requiring a party to respond in writing to the other
party’s proposal or request in relation to the time and place of
a meeting;
(e) a direction requiring a party, or a representative of a party, to
attend a mediation conference;
(f) a direction requiring a party, or a representative of a party, to
attend a conciliation conference.
(4) For the purposes of paragraph (3)(c), if a party (the first party)
imposes, as a condition on the first party’s participation in
negotiations, a requirement that the other party must not disclose to
the Commission any or all information, or the contents of any or all
documents, provided in the course of negotiations, that condition is
taken to be an unreasonable procedural condition on the first
party’s participation in those negotiations.
(5) A person must not contravene a direction under subsection (2).
(6) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (5); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (5); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (5); or
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(d) conspire with others to effect a contravention of
subsection (5).
(7) In deciding whether to give a direction under subsection (2), the
Commission must have regard to:
(a) any guidelines in force under subsection (8); and
(b) such other matters as the Commission considers relevant.
(8) The Commission may, by written instrument, formulate guidelines
for the purposes of subsection (7).
(9) In addition to its effect apart from this subsection, this section also
has the effect it would have if:
(a) each reference to a carrier were, by express provision,
confined to a carrier that is a constitutional corporation; and
(b) each reference to a carriage service provider were, by express
provision, confined to a carriage service provider that is a
constitutional corporation; and
(c) each reference to an access seeker were, by express
provision, confined to an access seeker that is a constitutional
corporation.
152BBB Enforcement of directions
(1) If the Federal Court is satisfied that a person has contravened
subsection 152BBA(5) or (6), the Court may order the person to
pay to the Commonwealth such pecuniary penalty, in respect of
each contravention, as the Court determines to be appropriate.
(2) In determining the pecuniary penalty, the Court must have regard
to all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a
result of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in
proceedings under this Act to have engaged in any similar
conduct.
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(3) The pecuniary penalty payable under subsection (1) by a body
corporate is not to exceed $250,000 for each contravention.
(4) The pecuniary penalty payable under subsection (1) by a person
other than a body corporate is not to exceed $50,000 for each
contravention.
(5) The Commission may institute a proceeding in the Federal Court
for the recovery on behalf of the Commonwealth of a pecuniary
penalty referred to in subsection (1).
(6) A proceeding under subsection (5) may be commenced within
6 years after the contravention.
(7) Criminal proceedings do not lie against a person only because the
person has contravened subsection 152BBA(5) or (6).
152BBC Commission’s role in negotiations
(1) This section applies if a carrier or carriage service provider is
required to comply with any or all of the standard access
obligations.
(2) If the following parties:
(a) the carrier or carriage service provider, as the case requires;
(b) the access seeker;
propose to negotiate, or are negotiating, with a view to agreeing on
terms and conditions as mentioned in paragraph 152AY(2)(a), the
parties may jointly request the Commission in writing to arrange
for a representative of the Commission to attend, or mediate at,
those negotiations.
(3) The Commission may comply with the request if the Commission
considers that compliance with the request would be likely to
facilitate those negotiations.
(4) For the purposes of this section, each of the following persons may
be a representative of the Commission:
(a) a member, or associate member, of the Commission; or
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(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
152BBD Reaching agreement on terms and conditions of access
(1) The Commission must, in exercising its powers under
sections 152BBA and 152BBC in relation to any of the category A
standard access obligations, have regard to the desirability of
access providers (within the meaning of section 152AR) and access
seekers agreeing on terms and conditions as mentioned in
paragraph 152AY(2)(a) in a timely manner.
(2) The Commission must, in exercising its powers under
sections 152BBA and 152BBC in relation to any of the category B
standard access obligations, have regard to the desirability of NBN
corporations and access seekers agreeing on terms and conditions
as mentioned in paragraph 152AY(2)(a) in a timely manner.
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Division 4—Access determinations
Subdivision A—Commission may make access determinations
152BC Access determinations
(1) The Commission may make a written determination relating to
access to a declared service.
(2) A determination under subsection (1) is to be known as an access
determination.
(3) An access determination may:
(a) specify any or all of the terms and conditions on which a
carrier or carriage service provider is to comply with any or
all of the standard access obligations applicable to the carrier
or provider; or
(b) specify any other terms and conditions of an access seeker’s
access to the declared service; or
(c) require a carrier or carriage service provider to comply with
any or all of the standard access obligations applicable to the
carrier or provider in a manner specified in the determination;
or
(d) require a carrier or carriage service provider to extend or
enhance the capability of a facility by means of which the
declared service is supplied; or
(e) impose other requirements on a carrier or carriage service
provider in relation to access to the declared service; or
(f) specify the terms and conditions on which a carrier or
carriage service provider is to comply with any or all of those
other requirements; or
(g) require access seekers to accept, and pay for, access to the
declared service; or
(h) provide that any or all of the obligations referred to in
section 152AR are not applicable to a carrier or carriage
service provider, either:
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(i) unconditionally; or
(ii) subject to such conditions or limitations as are specified
in the determination; or
(i) restrict or limit the application to a carrier or carriage service
provider of any or all of the obligations referred to in
section 152AR; or
(j) deal with any other matter relating to access to the declared
service.
(4) Subsection (3) does not limit subsection (1).
(4AA) Paragraphs (3)(h) and (i) do not apply to an access determination
that relates to a declared service that is a Layer 2 bitstream service
supplied using a designated superfast telecommunications network.
(4A) An access determination may be expressed to be an NBN-specific
access determination.
(4B) An access determination does not apply in relation to access to a
declared service to the extent to which the service is supplied, or is
capable of being supplied, by an NBN corporation unless the
access determination is expressed to be an NBN-specific access
determination.
(4C) If an access determination is expressed to be an NBN-specific
access determination, the access determination does not apply in
relation to access to a declared service to the extent to which the
service is supplied, or is capable of being supplied, by a person
other than an NBN corporation.
(5) An access determination may make different provision with respect
to:
(a) different carriers or carriage service providers; or
(b) different classes of carriers or carriage service providers; or
(c) different access seekers; or
(d) different classes of access seekers.
(6) Subsection (5) does not, by implication, limit subsection 33(3A) of
the Acts Interpretation Act 1901.
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(7) An access determination may provide for the Commission to
perform functions, and exercise powers, under the determination.
(8) Terms and conditions specified in an access determination as
mentioned in paragraph (3)(a), (b) or (f) must include terms and
conditions relating to price or a method of ascertaining price.
(9) An access determination is not a legislative instrument.
152BCA Matters that the Commission must take into account
(1) The Commission must take the following matters into account in
making an access determination:
(a) whether the determination will promote the long-term
interests of end-users of carriage services or of services
supplied by means of carriage services;
(b) the legitimate business interests of a carrier or carriage
service provider who supplies, or is capable of supplying, the
declared service, and the carrier’s or provider’s investment in
facilities used to supply the declared service;
(c) the interests of all persons who have rights to use the
declared service;
(d) the direct costs of providing access to the declared service;
(e) the value to a person of extensions, or enhancement of
capability, whose cost is borne by someone else;
(f) the operational and technical requirements necessary for the
safe and reliable operation of a carriage service, a
telecommunications network or a facility;
(g) the economically efficient operation of a carriage service, a
telecommunications network or a facility.
(2) If a carrier or carriage service provider who supplies, or is capable
of supplying, the declared service supplies one or more other
eligible services, then, in making an access determination that is
applicable to the carrier or provider, as the case may be, the
Commission may take into account:
(a) the characteristics of those other eligible services; and
(b) the costs associated with those other eligible services; and
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(c) the revenues associated with those other eligible services;
and
(d) the demand for those other eligible services.
(3) The Commission may take into account any other matters that it
thinks are relevant.
(4) This section does not apply to an interim access determination.
(5) In this section:
eligible service has the same meaning as in section 152AL.
152BCB Restrictions on access determinations
(1) The Commission must not make an access determination that
would have any of the following effects:
(a) preventing a service provider who already has access to the
declared service from obtaining a sufficient amount of the
service to be able to meet the service provider’s reasonably
anticipated requirements, measured at the time when the
access seeker made a request in relation to the service under
section 152AR or 152AXB;
(b) preventing a carrier or carriage service provider from
obtaining a sufficient amount of the service to be able to
meet the carrier’s or provider’s reasonably anticipated
requirements, measured at the time when the access seeker
made a request in relation to the service under section 152AR
or 152AXB;
(c) preventing a person from obtaining, by the exercise of a
pre-determination right, a sufficient level of access to the
declared service to be able to meet the person’s actual
requirements;
(d) depriving any person of a protected contractual right;
(e) resulting in an access seeker becoming the owner (or one of
the owners) of any part of a facility without the consent of
the owner of the facility;
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(f) requiring a person (other than an access seeker) to bear an
unreasonable amount of the costs of:
(i) extending or enhancing the capability of a facility; or
(ii) maintaining extensions to or enhancements of the
capability of a facility;
(g) requiring a carrier or carriage service provider to provide an
access seeker with access to a declared service if there are
reasonable grounds to believe that:
(i) the access seeker would fail, to a material extent, to
comply with the terms and conditions on which the
carrier or provider provides, or is reasonably likely to
provide, that access; or
(ii) the access seeker would fail, in connection with that
access, to protect the integrity of a telecommunications
network or to protect the safety of individuals working
on, or using services supplied by means of, a
telecommunications network or a facility.
(2) Examples of grounds for believing as mentioned in
subparagraph (1)(g)(i) include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the carrier or carriage
service provider).
(3) The Commission must not make an access determination that is
inconsistent with any of the standard access obligations that are, or
will be, applicable to a carrier or carriage service provider.
(3A) If a final migration plan is in force, the Commission must not make
an access determination that would have the effect of requiring
Telstra to engage in conduct in connection with matters covered by
the final migration plan.
(3B) The Commission must not make an access determination that
would have the effect of:
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(a) requiring an NBN corporation to engage in conduct that is
inconsistent with conduct authorised under
subsection 151DA(2) or (3) for the purposes of
subsection 51(1); or
(b) preventing an NBN corporation from giving a refusal that is
authorised under subsection 151DA(3) for the purposes of
subsection 51(1).
(3C) The Commission must not make an access determination that
would have the effect of preventing an NBN corporation from
engaging in conduct that is reasonably necessary to achieve
uniform national pricing of eligible services supplied by the NBN
corporation to service providers and utilities.
(3D) In subsection (3C), eligible services, uniform national pricing and
utilities have the same meaning as in section 151DA.
(4) If the Commission makes an access determination that has the
effect of depriving a person (the second person) of a
pre-determination right to require the carrier or provider to provide
access to the declared service to the second person, the
determination must also require the access seeker:
(a) to pay to the second person such amount (if any) as the
Commission considers is fair compensation for the
deprivation; and
(b) to reimburse the carrier or provider and the Commonwealth
for any compensation that the carrier or provider or the
Commonwealth agrees, or is required by a court order, to pay
to the second person as compensation for the deprivation.
(4A) The Commission must not make an access determination that:
(a) relates to any or all of the category B standard access
obligations applicable to an NBN corporation; and
(b) has the effect (whether direct or indirect) of discriminating
between access seekers.
Note: For explanatory material, see section 152CJH.
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(4B) Subsection (4A) does not prevent discrimination against an access
seeker if the Commission has reasonable grounds to believe that
the access seeker would fail, to a material extent, to comply with
the terms and conditions on which the NBN corporation complies,
or on which the NBN corporation is reasonably likely to comply,
with the relevant obligation.
(4C) Examples of grounds for believing as mentioned in subsection (4B)
include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the NBN corporation).
(4G) The Commission must not make an access determination that:
(a) relates to a declared service that is:
(i) a Layer 2 bitstream service; and
(ii) supplied using a designated superfast
telecommunications network; and
(iii) supplied by a carrier (other than an NBN corporation) or
a carriage service provider (other than an NBN
corporation); and
(b) has the effect (whether direct or indirect) of discriminating
between access seekers.
Note: For explanatory material, see section 152CJH.
(4H) Subsection (4G) does not prevent discrimination against an access
seeker if the Commission has reasonable grounds to believe that
the access seeker would fail, to a material extent, to comply with
the terms and conditions on which the carrier or carriage service
provider complies, or on which the carrier or carriage service
provider is reasonably likely to comply, with the relevant
obligation.
(4J) Examples of grounds for believing as mentioned in
subsection (4H) include:
(a) evidence that the access seeker is not creditworthy; and
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(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the carrier or carriage
service provider).
(5) An access determination is of no effect to the extent to which it
contravenes subsection (1), (3), (3A), (3B), (3C), (4A) or (4G).
(6) In this section:
pre-determination right means a right under a contract that was in
force:
(a) if the access determination is one of a series of 2 or more
successive access determinations—immediately before the
first access determination came into force; or
(b) otherwise—immediately before the access determination
came into force.
protected contractual right means a right under a contract that was
in force at the beginning of 13 September 1996.
152BCC Access agreements prevail over inconsistent access
determinations
If an access determination is applicable to the following parties:
(a) a carrier or carriage service provider;
(b) an access seeker;
the access determination has no effect to the extent to which it is
inconsistent with an access agreement that is applicable to those
parties.
152BCCA Final migration plan prevails over inconsistent access
determinations
If a final migration plan is in force, an access determination has no
effect to the extent to which it would have the effect of:
(a) preventing Telstra from complying with the final migration
plan; or
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(b) requiring Telstra to engage in conduct in connection with
matters covered by the final migration plan.
152BCD Fixed principles provisions
(1) An access determination may include a provision that is specified
in the determination to be a fixed principles provision.
(2) If a fixed principles provision is included in an access
determination, the determination must provide that a specified date
is the nominal termination date for the fixed principles provision.
The nominal termination date may be later than the expiry date for
the determination.
(3) If:
(a) an access determination (the replacement access
determination) is expressed to replace a previous access
determination; and
(b) the previous access determination included a fixed principles
provision; and
(c) the nominal termination date for the fixed principles
provision is later than the day on which the replacement
access determination comes into force;
then:
(d) the replacement access determination must include a
provision in the same terms as the fixed principles provision;
and
(e) the provision must be specified in the replacement access
determination to be a fixed principles provision; and
(f) the nominal termination date for the fixed principles
provision so included in the replacement access
determination must be the same as, or later than, the nominal
termination date for the fixed principles provision included in
the previous access determination; and
(g) if the previous access determination provided that the
previous access determination must not be varied so as to
alter or remove the fixed principles provision—the
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replacement access determination must provide that the
replacement access determination must not be varied so as to
alter or remove the fixed principles provision; and
(h) if the previous access determination provided that the
previous access determination must not be varied so as to
alter or remove the fixed principles provision except in such
circumstances as are specified in the previous access
determination:
(i) the replacement access determination must provide that
the replacement access determination must not be varied
so as to alter or remove the fixed principles provision
except in such circumstances as are specified in the
replacement access determination; and
(ii) those circumstances must be the same as the
circumstances specified in the previous access
determination.
(4) If:
(a) a fixed principles provision is included in an access
determination; and
(b) the access determination ceases to be in force before the
nominal termination date for the fixed principles provision;
the fixed principles provision ceases to be in force when the access
determination ceases to be in force.
Note: Even though a fixed principles provision ceases to be in force when
the access determination ceases to be in force, subsection (3) requires
that a replacement access determination include a provision in the
same terms as the fixed principles provision.
(5) If a fixed principles provision is included in an access
determination, the access determination must:
(a) provide that the access determination must not be varied so
as to alter or remove the fixed principles provision; or
(b) provide that the access determination must not be varied so
as to alter or remove the fixed principles provision except in
such circumstances as are specified in the access
determination.
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152BCE Access determinations may be set out in the same document
Two or more access determinations may be set out in the same
document.
152BCF Duration of access determination
(1) An access determination relating to access to a declared service:
(a) comes into force on the day specified in the determination as
the day on which the determination is to come into force; and
(b) unless sooner revoked, ceases to be in force on the expiry
date for the determination.
(2) The specified day may be earlier than the day on which the
determination was made.
(2A) The specified day must not be earlier than the date of
commencement of this section.
(3) If the declared service is covered by a declaration under
section 152AL, and the declaration is not a fresh declaration that
replaces a previous declaration, the specified day must not be
earlier than the day on which the declaration came into force.
(3A) If the declared service is covered by subsection 152AL(7), the
specified day must not be earlier than the day on which the service
became a declared service under that subsection.
(3B) If the declared service is covered by subsection 152AL(8D), the
specified day must not be earlier than the day on which the service
became a declared service under that subsection.
(3C) If the declared service is covered by subsection 152AL(8E), the
specified day must not be earlier than the day on which the service
became a declared service under that subsection.
(4) If:
(a) an access determination is expressed to replace a previous
access determination relating to access to the declared
service; and
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(b) the previous access determination is not an interim access
determination;
the specified day must be the first day after the expiry of the
previous access determination.
(4A) If:
(a) an access determination is expressed to replace a previous
access determination relating to access to the declared
service; and
(b) the previous access determination is an interim access
determination; and
(c) the declared service is covered by a declaration under
section 152AL;
the specified day must not be earlier than the day on which the
declaration came into force.
Expiry date
(5) An access determination must specify an expiry date for the
determination.
(6) In specifying an expiry date for an access determination, the
Commission must have regard to:
(a) in a case where the declared service is covered by a
declaration under section 152AL—the principle that the
expiry date for the determination should be the same as the
expiry date for the declaration (as that declaration stood at
the time when the access determination was made) unless, in
the Commission’s opinion, there are circumstances that
warrant the specification of another date as the expiry date
for the access determination; and
(b) such other matters (if any) as the Commission considers
relevant.
(7) If an access determination expires, this Part does not prevent the
Commission from making a fresh access determination under
section 152BC in the same terms as the expired access
determination.
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Automatic revocation of access determination
(8) If:
(a) an access determination relating to access to a declared
service is in force; and
(b) the declared service is covered by a declaration under
section 152AL, and the declaration ceases to be in force; and
(c) the Commission does not make a fresh declaration under
section 152AL that replaces the declaration referred to in
paragraph (b) of this subsection;
the access determination is taken to be revoked at the time of the
cessation.
(9) If:
(a) an access determination relating to access to a declared
service is in force; and
(b) the declared service is covered by a declaration under
section 152AL, and the declaration is revoked; and
(c) the Commission does not make a fresh declaration under
section 152AL that replaces the declaration referred to in
paragraph (b) of this subsection;
the access determination is taken to be revoked at the time of the
revocation of the declaration.
(9A) If:
(a) an interim access determination relating to access to a
declared service is in force; and
(b) a final access determination relating to access to the declared
service comes into force;
the interim access determination is taken to be revoked at the time
when the final access determination comes into force.
Extension of access determination
(10) If:
(a) an access determination (the original access determination)
relating to access to a declared service is in force; and
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(b) the Commission has commenced to hold a public inquiry
under Part 25 of the Telecommunications Act 1997 about a
proposal to make another access determination in relation to
access to the service; and
(c) the Commission considers that it will make the other access
determination, but will not be in a position to do so before
the expiry date for the original access determination;
the Commission may, by writing, declare that the expiry date for
the original access determination is taken to be the day
immediately before the day on which the other access
determination comes into force.
(11) The Commission must publish a declaration under subsection (10)
on the Commission’s website.
(12) If:
(a) after holding a public inquiry under subsection 152ALA(7) in
relation to a section 152AL declaration, the Commission:
(i) extends or further extends the expiry date for the
declaration by a period of not more than 12 months; and
(ii) decides to allow the declaration to expire after the end
of that period; and
(b) an access determination is in force in relation to access to the
declared service;
the Commission may, by writing, extend the expiry date for the
access determination by the same period.
(13) The Commission must publish an instrument under subsection (12)
on the Commission’s website.
(14) The Commission is not required to observe any requirements of
procedural fairness in relation to a decision under subsection (10)
or (12).
(15) A declaration under subsection (10) is not a legislative instrument.
(16) An instrument under subsection (12) is not a legislative instrument.
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152BCG Interim access determinations
(1) If:
(a) the Commission makes a declaration under section 152AL
after the commencement of this section; and
(b) the declaration is not a fresh declaration that replaces a
previous declaration; and
(c) the Commission has commenced to hold a public inquiry
under Part 25 of the Telecommunications Act 1997 about a
proposal to make an access determination in relation to
access to the declared service; and
(d) either:
(i) the Commission considers that it is unlikely that a final
access determination in relation to access to the service
will be made within 6 months after the commencement
of the public inquiry; or
(ii) the Commission considers that there is an urgent need to
make an access determination in relation to access to the
service before the completion of the public inquiry;
the Commission must make an interim access determination in
relation to access to the service.
(2) If:
(a) a declaration is in force under section 152AL; and
(b) no access determination has previously been made in relation
to access to the declared service;
the Commission may make an interim access determination in
relation to access to the service.
(3) The day specified in an interim access determination as the day on
which the determination is to come into force must not be earlier
than the day on which the declaration mentioned in
paragraph (1)(a) or (2)(a), as the case may be, came into force.
(4) The Commission is not required to observe any requirements of
procedural fairness in relation to the making of an interim access
determination.
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(5) The Commission must not make an interim access determination
otherwise than in accordance with this section.
152BCGA Stay of access determinations
(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the
Administrative Decisions (Judicial Review) Act 1977 do not apply
to a decision of the Commission to make an access determination.
(2) If a person applies to the Federal Court under subsection 39B(1) of
the Judiciary Act 1903 for a writ or injunction in relation to a
decision of the Commission to make an access determination, the
Court must not make any orders staying or otherwise affecting the
operation or implementation of the decision pending the
finalisation of the application.
Subdivision B—Public inquiries about proposals to make access
determinations
152BCH Access determination to be made after public inquiry
(1) The Commission must not make an access determination unless:
(a) the Commission has held a public inquiry under Part 25 of
the Telecommunications Act 1997 about a proposal to make
the determination; and
(b) the Commission has prepared a report about the inquiry
under section 505 of the Telecommunications Act 1997; and
(c) the report was published during the 180-day period ending
when the determination was made.
(2) Subsection (1) does not apply to an interim access determination.
(3) Subsection (1) has effect subject to section 152BCI.
152BCI When public inquiry must be held
(1) If:
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(a) the Commission makes a declaration under section 152AL
after the commencement of this section; and
(b) no access determination has previously been made in relation
to access to the declared service;
the Commission must, within 30 days after the declaration is made,
commence to hold a public inquiry under Part 25 of the
Telecommunications Act 1997 about a proposal to make an access
determination relating to access to the declared service.
(2) If:
(a) a declaration is in force under section 152AL immediately
after the commencement of this section; and
(b) no access determination has previously been made in relation
to access to the declared service;
the Commission must, during the 12-month period beginning at the
commencement of this section, commence to hold a public inquiry
under Part 25 of the Telecommunications Act 1997 about a
proposal to make an access determination relating to access to the
declared service.
(3) If:
(a) a declaration is in force under section 152AL; and
(b) an access determination has previously been made in relation
to access to the declared service;
the Commission must, during the period:
(c) beginning 18 months before the expiry date for the access
determination; and
(d) ending 6 months before the expiry date for the access
determination;
commence to hold a public inquiry under Part 25 of the
Telecommunications Act 1997 about a proposal to make an access
determination relating to access to the declared service.
(4) Subsection (3) has effect subject to subsections (5), (6) and (7).
(5) If:
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(a) a declaration (the current declaration) is in force under
section 152AL; and
(b) an access determination has previously been made in relation
to access to the declared service; and
(c) the expiry date of the current declaration is extended or
further extended for a period of not more than 12 months;
and
(d) the Commission decides to allow the current declaration to
expire without making a new declaration under
section 152AL;
the Commission is not required to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
make an access determination relating to access to the declared
service.
(6) If:
(a) a declaration is in force under section 152AL; and
(b) an access determination (the current determination) is in
force in relation to access to the declared service; and
(c) the Commission commences to hold a public inquiry under
subsection 152ALA(7) in relation to the declaration;
then:
(d) the Commission may defer holding a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal
to make an access determination relating to access to the
declared service until the Commission decides whether to
extend or further extend the expiry date for the declaration;
and
(e) if the Commission decides to extend or further extend the
expiry date for the declaration—the Commission must
commence to hold such a public inquiry before the expiry
date for the current access determination; and
(f) if the Commission decides not to extend or further extend the
expiry date for the declaration—the Commission is not
required to hold such a public inquiry.
(7) If:
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(a) a declaration is in force under section 152AL; and
(b) an access determination has previously been made in relation
to access to the declared service; and
(c) after holding a public inquiry under subsection 152ALA(7) in
relation to the declaration, the Commission decides to allow
the declaration to expire without making a new declaration
under section 152AL;
the Commission is not required to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
make an access determination relating to access to the declared
service.
Note: If a service is a declared service under subsection 152AL(7) (which
deals with special access undertakings), there is no need for the
Commission to make a declaration of the service under
section 152AL.
(8) Despite anything else in this section, if:
(a) the Commission makes binding rules of conduct that relate to
access to a declared service; and
(b) no access determination is in force in relation to access to the
declared service;
the Commission must, within 30 days after the binding rules of
conduct are made, commence to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
make an access determination relating to access to the declared
service.
152BCJ Combined inquiries about proposals to make access
determinations
(1) The Commission may decide to combine 2 or more public inquiries
of a kind mentioned in section 152BCH.
(2) If the Commission makes such a decision:
(a) the Commission may publish a single notice relating to the
combined inquiry under section 498 of the
Telecommunications Act 1997; and
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(b) the Commission may prepare a single discussion paper about
the combined inquiry under section 499 of that Act; and
(c) the Commission may hold hearings relating to the combined
inquiry under section 501 of that Act; and
(d) the Commission must ensure that each inquiry is covered by
a report under section 505 of that Act, whether the report
relates:
(i) to a single one of those inquiries; or
(ii) to any 2 or more of those inquiries.
152BCK Time limit for making an access determination
(1) This section applies if the Commission commences to hold a public
inquiry under Part 25 of the Telecommunications Act 1997 about a
proposal to make an access determination, and the declared service
to which the access determination relates is not covered by
subsection 152AL(8D).
(2) The Commission must make a final access determination within 6
months after that commencement.
Extension of decision-making period
(3) The Commission may, by written notice published on its website,
extend or further extend the 6-month period referred to in
subsection (2), so long as:
(a) the extension or further extension is for a period of not more
than 6 months; and
(b) the notice includes a statement explaining why the
Commission has been unable to make a final access
determination within that 6-month period or that 6-month
period as previously extended, as the case may be.
Note: The Commission may be required to make an interim access
determination—see section 152BCG.
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Subdivision C—Variation or revocation of access
determinations
152BCN Variation or revocation of access determinations
(1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a
power conferred on the Commission by section 152BC, but it
applies with the following changes.
(2) The Commission is not required to hold a public inquiry under
Part 25 the Telecommunications Act 1997 about a proposal to vary
an access determination if:
(a) the variation is of a minor nature; or
(b) each:
(i) carrier or carriage service provider; and
(ii) access seeker;
whose interests are likely to be affected by the variation has
consented in writing to the variation.
(3) The Commission is not required to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
revoke an access determination if the Commission is satisfied that
each:
(a) carrier or service provider; and
(b) access seeker;
whose interests are likely to be affected by the revocation has
consented in writing to the revocation.
(4) If a fixed principles provision is included in an access
determination:
(a) a provision referred to in paragraph 152BCD(5)(a) or (b)
cannot be varied or removed; and
(b) the access determination must not be varied in a manner that
is inconsistent with a provision referred to in
paragraph 152BCD(5)(a) or (b).
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(5) The Commission does not have a duty to consider whether to
exercise the power to vary or revoke an access determination,
whether the Commission is requested to do so by another person,
or in any other circumstances.
(6) If the Commission has commenced to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
vary an access determination, the Commission may alter the
proposed variation.
(7) Notice of the alteration is to be published in the same way in which
a notice relating to the public inquiry was published under
section 498 of the Telecommunications Act 1997.
(8) Subsection (7) does not apply in relation to an alteration if:
(a) the alteration is of a minor nature; or
(b) each:
(i) carrier or carriage service provider; and
(ii) access seeker;
whose interests are likely to be affected by the alteration has
consented in writing to the alteration.
(9) Despite anything else in this section, if:
(a) the Commission makes binding rules of conduct that relate to
access to a declared service; and
(b) an access determination is in force in relation to access to the
declared service;
the Commission must, within 30 days after the binding rules of
conduct are made, commence to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
vary the access determination.
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Section 152BCO
Competition and Consumer Act 2010 349
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Subdivision D—Compliance with access determinations
152BCO Carrier licence condition
A carrier licence held by a carrier is subject to a condition that the
carrier must comply with any access determinations that are
applicable to the carrier.
152BCP Service provider rule
(1) In addition to the rules mentioned in section 98 of the
Telecommunications Act 1997, the rule set out in subsection (2) of
this section is a service provider rule for the purposes of that Act.
(2) A carriage service provider must comply with any access
determinations that are applicable to the provider.
Subdivision E—Private enforcement of access determinations
152BCQ Private enforcement of access determinations
(1) If the Federal Court is satisfied, on the application of:
(a) an access seeker; or
(b) a carrier; or
(c) a carriage service provider;
that a person has engaged, is engaging, or is proposing to engage in
conduct that constitutes a contravention of an access determination,
the Court may make any or all of the following orders:
(d) an order granting an injunction on such terms as the Court
thinks appropriate:
(i) restraining the person from engaging in the conduct; or
(ii) if the conduct involves refusing or failing to do
something—requiring the person to do that thing;
(e) an order directing the person to compensate the applicant for
loss or damage suffered as a result of the contravention;
(f) any other order that the Court thinks appropriate.
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Division 4 Access determinations
Section 152BCR
350 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(2) The revocation or expiry of an access determination does not affect
any remedy under subsection (1) in respect of a contravention of
the access determination that occurred when the access
determination was in force.
(3) If the Federal Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular
conduct, or requiring a person to do anything, the Court may make
any other orders (including granting an injunction) that it thinks
appropriate against any other person who was involved in the
contravention concerned.
(4) A reference in this section to a person involved in the
contravention is a reference to a person who has:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced the contravention, whether through threats or
promises or otherwise; or
(c) been in any way (directly or indirectly) knowingly concerned
in or a party to the contravention; or
(d) conspired with others to effect the contravention.
152BCR Consent injunctions
On an application for an injunction under section 152BCQ, the
Federal Court may grant an injunction by consent of all of the
parties to the proceedings, whether or not the Court is satisfied that
the section applies.
152BCS Interim injunctions
The Federal Court may grant an interim injunction pending
determination of an application under section 152BCQ.
152BCT Factors relevant to granting a restraining injunction
The power of the Federal Court to grant an injunction under
section 152BCQ restraining a person from engaging in conduct
may be exercised whether or not:
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Section 152BCU
Competition and Consumer Act 2010 351
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(a) it appears to the Court that the person intends to engage
again, or to continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person engages in conduct of
that kind.
152BCU Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant an injunction under
section 152BCQ requiring a person to do a thing may be exercised
whether or not:
(a) it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person refuses or fails to do that
thing.
152BCV Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order
granted under this Subdivision.
Subdivision F—Register of Access Determinations
152BCW Register of Access Determinations
(1) The Commission is to maintain a register, to be known as the
Register of Access Determinations, in which the Commission
includes all access determinations in force.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Commission’s website.
(4) The Register is not a legislative instrument.
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Division 4 Access determinations
Section 152BCW
352 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(5) If the Commission is satisfied that:
(a) publication of a particular provision of an access
determination could reasonably be expected to prejudice
substantially the commercial interests of a person; and
(b) the prejudice outweighs the public interest in the publication
of the provision;
the Commission may remove the provision from the version of the
access determination that is included in the Register.
(6) If the Commission does so, the Commission must include in the
Register an annotation to that effect.
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Binding rules of conduct Division 4A
Section 152BD
Competition and Consumer Act 2010 353
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 4A—Binding rules of conduct
Subdivision A—Commission may make binding rules of
conduct
152BD Binding rules of conduct
(1) The Commission may make written rules that:
(a) specify any or all of the terms and conditions on which a
carrier or carriage service provider is to comply with any or
all of the standard access obligations applicable to the carrier
or provider in relation to a specified declared service; or
(b) require a carrier or carriage service provider to comply with
any or all of the standard access obligations applicable to the
carrier or provider in relation to a specified declared service
in a manner specified in the rules;
if the Commission considers that there is an urgent need to do so.
Note: For variation and revocation, see subsection 33(3) of the Acts
Interpretation Act 1901.
(2) Rules under subsection (1) are to be known as binding rules of
conduct.
(3) Binding rules of conduct may be of general application or may be
limited as provided in the rules.
(4) In particular, binding rules of conduct may be limited to:
(a) particular carriers or carriage service providers; or
(b) particular classes of carriers or carriage service providers; or
(c) particular access seekers; or
(d) particular classes of access seekers.
(4A) Binding rules of conduct may be expressed to be NBN-specific
binding rules of conduct.
(4B) Binding rules of conduct do not apply in relation to access to a
declared service to the extent to which the service is supplied, or is
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Part XIC Telecommunications access regime
Division 4A Binding rules of conduct
Section 152BDAA
354 Competition and Consumer Act 2010
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capable of being supplied, by an NBN corporation unless the
binding rules of conduct are expressed to be NBN-specific binding
rules of conduct.
(4C) If binding rules of conduct are expressed to be NBN-specific
binding rules of conduct, the binding rules of conduct do not apply
in relation to access to a declared service to the extent to which the
service is supplied, or is capable of being supplied, by a person
other than an NBN corporation.
(5) Subsection (4) does not, by implication, limit subsection 33(3A) of
the Acts Interpretation Act 1901.
(6) The Commission is not required to observe any requirements of
procedural fairness in relation to the making of binding rules of
conduct.
(7) The Commission does not have a duty to consider whether to make
binding rules of conduct, whether at the request of a person or in
any other circumstances.
(8) Binding rules of conduct may provide for the Commission to
perform functions, and exercise powers, under the rules.
(9) An instrument under subsection (1) is not a legislative instrument.
152BDAA Matters that the Commission must take into account
(1) The Commission must take the following matters into account in
making binding rules of conduct:
(a) whether the binding rules of conduct will promote the
long-term interests of end-users of carriage services or of
services supplied by means of carriage services;
(b) the legitimate business interests of a carrier or carriage
service provider who supplies, or is capable of supplying, the
declared service, and the carrier’s or provider’s investment in
facilities used to supply the declared service;
(c) the interests of all persons who have rights to use the
declared service;
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Section 152BDAA
Competition and Consumer Act 2010 355
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(d) the direct costs of providing access to the declared service;
(e) the value to a person of extensions, or enhancement of
capability, whose cost is borne by someone else;
(f) the operational and technical requirements necessary for the
safe and reliable operation of a carriage service, a
telecommunications network or a facility;
(g) the economically efficient operation of a carriage service, a
telecommunications network or a facility.
(2) If a carrier or carriage service provider who supplies, or is capable
of supplying, the declared service supplies one or more other
eligible services, then, in making binding rules of conduct that are
applicable to the carrier or provider, as the case may be, the
Commission may take into account:
(a) the characteristics of those other eligible services; and
(b) the costs associated with those other eligible services; and
(c) the revenues associated with those other eligible services;
and
(d) the demand for those other eligible services.
(3) The Commission may take into account any other matters that it
thinks are relevant.
(4) The Commission is not required by subsection (1) or (2) to take a
matter into account if it is not reasonably practicable for the
Commission to do so, having regard to the urgent need to make the
binding rules of conduct.
(5) For the purposes of taking a particular matter into account under
this section, the Commission is not required to obtain information,
or further information, that is not already in the possession of the
Commission if it is not reasonably practicable for the Commission
to do so, having regard to the urgent need to make the binding rules
of conduct.
(6) In this section:
eligible service has the same meaning as in section 152AL.
ComLaw Authoritative Act C2015C00019
Part XIC Telecommunications access regime
Division 4A Binding rules of conduct
Section 152BDA
356 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
152BDA Restrictions on binding rules of conduct
(1) The Commission must not make binding rules of conduct that
would have any of the following effects:
(a) preventing a service provider who already has access to the
declared service from obtaining a sufficient amount of the
service to be able to meet the service provider’s reasonably
anticipated requirements, measured at the time when the
access seeker made a request in relation to the service under
section 152AR or 152AXB;
(b) preventing a carrier or carriage service provider from
obtaining a sufficient amount of the service to be able to
meet the carrier’s or provider’s reasonably anticipated
requirements, measured at the time when the access seeker
made a request in relation to the service under section 152AR
or 152AXB;
(c) preventing a person from obtaining, by the exercise of a
pre-rules right, a sufficient level of access to the declared
service to be able to meet the person’s actual requirements;
(d) depriving any person of a protected contractual right;
(e) resulting in an access seeker becoming the owner (or one of
the owners) of any part of a facility without the consent of
the owner of the facility;
(f) requiring a person (other than an access seeker) to bear an
unreasonable amount of the costs of:
(i) extending or enhancing the capability of a facility; or
(ii) maintaining extensions to or enhancements of the
capability of a facility;
(g) requiring a carrier or carriage service provider to provide an
access seeker with access to a declared service if there are
reasonable grounds to believe that:
(i) the access seeker would fail, to a material extent, to
comply with the terms and conditions on which the
carrier or provider provides, or is reasonably likely to
provide, that access; or
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Section 152BDA
Competition and Consumer Act 2010 357
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(ii) the access seeker would fail, in connection with that
access, to protect the integrity of a telecommunications
network or to protect the safety of individuals working
on, or using services supplied by means of, a
telecommunications network or a facility.
(2) Examples of grounds for believing as mentioned in
subparagraph (1)(g)(i) include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the carrier or carriage
service provider).
(3) The Commission must not make binding rules of conduct that are
inconsistent with any of the standard access obligations that are, or
will be, applicable to a carrier or carriage service provider.
(3A) If a final migration plan is in force, the Commission must not make
binding rules of conduct that would have the effect of requiring
Telstra to engage in conduct in connection with matters covered by
the final migration plan.
(3B) The Commission must not make binding rules of conduct that
would have the effect of:
(a) requiring an NBN corporation to engage in conduct that is
inconsistent with conduct authorised under
subsection 151DA(2) or (3) for the purposes of
subsection 51(1); or
(b) preventing an NBN corporation from giving a refusal that is
authorised under subsection 151DA(3) for the purposes of
subsection 51(1).
(3C) The Commission must not make binding rules of conduct that
would have the effect of preventing an NBN corporation from
engaging in conduct that is reasonably necessary to achieve
uniform national pricing of eligible services supplied by the NBN
corporation to service providers and utilities.
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Part XIC Telecommunications access regime
Division 4A Binding rules of conduct
Section 152BDA
358 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(3D) In subsection (3C), eligible services, uniform national pricing and
utilities have the same meaning as in section 151DA.
(4) If the Commission makes binding rules of conduct that have the
effect of depriving a person (the second person) of a pre-rules right
to require the carrier or provider to provide access to the declared
service to the second person, the rules must also require the access
seeker:
(a) to pay to the second person such amount (if any) as the
Commission considers is fair compensation for the
deprivation; and
(b) to reimburse the carrier or provider and the Commonwealth
for any compensation that the carrier or provider or the
Commonwealth agrees, or is required by a court order, to pay
to the second person as compensation for the deprivation.
(4A) The Commission must not make binding rules of conduct that:
(a) relate to any or all of the category B standard access
obligations applicable to an NBN corporation; and
(b) have the effect (whether direct or indirect) of discriminating
between access seekers.
Note: For explanatory material, see section 152CJH.
(4B) Subsection (4A) does not prevent discrimination against an access
seeker if the Commission has reasonable grounds to believe that
the access seeker would fail, to a material extent, to comply with
the terms and conditions on which the NBN corporation complies,
or on which the NBN corporation is reasonably likely to comply,
with the relevant obligation.
(4C) Examples of grounds for believing as mentioned in subsection (4B)
include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the NBN corporation).
(4G) The Commission must not make binding rules of conduct that:
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Section 152BDA
Competition and Consumer Act 2010 359
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(a) relate to a declared service that is:
(i) a Layer 2 bitstream service; and
(ii) supplied using a designated superfast
telecommunications network; and
(iii) supplied by a carrier (other than an NBN corporation) or
a carriage service provider (other than an NBN
corporation); and
(b) have the effect (whether direct or indirect) of discriminating
between access seekers.
Note: For explanatory material, see section 152CJH.
(4H) Subsection (4G) does not prevent discrimination against an access
seeker if the Commission has reasonable grounds to believe that
the access seeker would fail, to a material extent, to comply with
the terms and conditions on which the carrier or carriage service
provider complies, or on which the carrier or carriage service
provider is reasonably likely to comply, with the relevant
obligation.
(4J) Examples of grounds for believing as mentioned in
subsection (4H) include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the carrier or carriage
service provider).
(5) Binding rules of conduct are of no effect to the extent to which
they contravene subsection (1), (3), (3A), (3B), (3C), (4A) or (4G).
(6) In this section:
pre-rules right means a right under a contract that was in force
immediately before the binding rules of conduct came into force.
protected contractual right means a right under a contract that was
in force at the beginning of 13 September 1996.
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Division 4A Binding rules of conduct
Section 152BDB
360 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
152BDB Access agreements prevail over inconsistent binding rules
of conduct
If binding rules of conduct are applicable to the following parties:
(a) a carrier or carriage service provider;
(b) an access seeker;
the binding rules of conduct have no effect to the extent to which
they are inconsistent with an access agreement that is applicable to
those parties.
152BDC Duration of binding rules of conduct
(1) Binding rules of conduct come into force on the day specified in
the rules as the day on which the rules are to come into force.
(2) Binding rules of conduct must specify an expiry date for the rules.
(3) An expiry date must occur in the 12-month period beginning when
the rules were made.
(4) Unless sooner revoked, binding rules of conduct cease to be in
force on the expiry date for the rules.
152BDCA Final migration plan prevails over inconsistent binding
rules of conduct
If a final migration plan is in force, binding rules of conduct have
no effect to the extent to which they would have the effect of:
(a) preventing Telstra from complying with the final migration
plan; or
(b) requiring Telstra to engage in conduct in connection with
matters covered by the final migration plan.
152BDD Commission must give copy of binding rules of conduct to
carrier etc.
If binding rules of conduct are limited to a particular carrier,
carriage service provider or access seeker, as soon as practicable
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Section 152BDE
Competition and Consumer Act 2010 361
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after making the rules, the Commission must give a copy of the
rules to the carrier, carriage service provider or access seeker, as
the case may be.
152BDE Access determinations that are inconsistent with binding
rules of conduct
If a provision of an access determination (other than a fixed
principles provision) is inconsistent with binding rules of conduct,
the provision has no effect to the extent of the inconsistency.
152BDEA Stay of binding rules of conduct
(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the
Administrative Decisions (Judicial Review) Act 1977 do not apply
to a decision of the Commission to make binding rules of conduct.
(2) If a person applies to the Federal Court under subsection 39B(1) of
the Judiciary Act 1903 for a writ or injunction in relation to a
decision of the Commission to make binding rules of conduct, the
Court must not make any orders staying or otherwise affecting the
operation or implementation of the decision pending the
finalisation of the application.
Subdivision B—Compliance with binding rules of conduct
152BDF Carrier licence condition
A carrier licence held by a carrier is subject to a condition that the
carrier must comply with any binding rules of conduct that are
applicable to the carrier.
152BDG Service provider rule
(1) In addition to the rules mentioned in section 98 of the
Telecommunications Act 1997, the rule set out in subsection (2) of
this section is a service provider rule for the purposes of that Act.
ComLaw Authoritative Act C2015C00019
Part XIC Telecommunications access regime
Division 4A Binding rules of conduct
Section 152BDH
362 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(2) A carriage service provider must comply with any binding rules of
conduct that are applicable to the provider.
Subdivision C—Private enforcement of binding rules of
conduct
152BDH Private enforcement of binding rules of conduct
(1) If the Federal Court is satisfied, on the application of:
(a) an access seeker; or
(b) a carrier; or
(c) a carriage service provider;
that a person has engaged, is engaging, or is proposing to engage in
conduct that constitutes a contravention of binding rules of
conduct, the Court may make any or all of the following orders:
(d) an order granting an injunction on such terms as the Court
thinks appropriate:
(i) restraining the person from engaging in the conduct; or
(ii) if the conduct involves refusing or failing to do
something—requiring the person to do that thing;
(e) an order directing the person to compensate the applicant for
loss or damage suffered as a result of the contravention;
(f) any other order that the Court thinks appropriate.
(2) The revocation or expiry of binding rules of conduct does not
affect any remedy under subsection (1) in respect of a
contravention of the rules that occurred when the rules were in
force.
(3) If the Federal Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular
conduct, or requiring a person to do anything, the Court may make
any other orders (including granting an injunction) that it thinks
appropriate against any other person who was involved in the
contravention concerned.
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Binding rules of conduct Division 4A
Section 152BDI
Competition and Consumer Act 2010 363
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(4) A reference in this section to a person involved in the
contravention is a reference to a person who has:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced the contravention, whether through threats or
promises or otherwise; or
(c) been in any way (directly or indirectly) knowingly concerned
in or a party to the contravention; or
(d) conspired with others to effect the contravention.
152BDI Consent injunctions
On an application for an injunction under section 152BDH, the
Federal Court may grant an injunction by consent of all of the
parties to the proceedings, whether or not the Court is satisfied that
the section applies.
152BDJ Interim injunctions
The Federal Court may grant an interim injunction pending
determination of an application under section 152BDH.
152BDK Factors relevant to granting a restraining injunction
The power of the Federal Court to grant an injunction under
section 152BDH restraining a person from engaging in conduct
may be exercised whether or not:
(a) it appears to the Court that the person intends to engage
again, or to continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person engages in conduct of
that kind.
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Part XIC Telecommunications access regime
Division 4A Binding rules of conduct
Section 152BDL
364 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
152BDL Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant an injunction under
section 152BDH requiring a person to do a thing may be exercised
whether or not:
(a) it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person refuses or fails to do that
thing.
152BDM Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order
granted under this Subdivision.
Subdivision D—Register of Binding Rules of Conduct
152BDN Register of Binding Rules of Conduct
(1) The Commission is to maintain a register, to be known as the
Register of Binding Rules of Conduct, in which the Commission
includes all binding rules of conduct in force.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Commission’s website.
(4) The Register is not a legislative instrument.
(5) If the Commission is satisfied that:
(a) publication of a particular provision of binding rules of
conduct could reasonably be expected to prejudice
substantially the commercial interests of a person; and
(b) the prejudice outweighs the public interest in the publication
of the provision;
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Section 152BDN
Competition and Consumer Act 2010 365
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the Commission may remove the provision from the version of the
rules that is included in the Register.
(6) If the Commission does so, the Commission must include in the
Register an annotation to that effect.
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Part XIC Telecommunications access regime
Division 4B Access agreements
Section 152BE
366 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 4B—Access agreements
152BE Access agreements
(1) For the purposes of this Part, an access agreement is an agreement,
where:
(a) the agreement is in writing; and
(b) the agreement is legally enforceable; and
(c) the agreement relates to access to a declared service; and
(d) the parties to the agreement are:
(i) an access seeker; and
(ii) the carrier or carriage service provider who supplies, or
proposes to supply, the declared service; and
(e) any of the following subparagraphs applies:
(i) the agreement embodies any or all of the terms and
conditions on which the carrier or carriage service
provider is to comply with any or all of the standard
access obligations applicable to the carrier or provider;
(ii) if an access determination imposes requirements on a
carrier or carriage service provider in relation to access
to the declared service, as mentioned in
paragraph 152BC(3)(e)—the agreement embodies any
or all of the terms and conditions on which the carrier or
carriage service provider is to comply with any or all of
those requirements;
(iii) the agreement embodies any other terms and conditions
of the access seeker’s access to the declared service;
(iv) the agreement requires the carrier or carriage service
provider to comply with any or all of the standard
access obligations applicable to the carrier or provider
in a manner specified in the agreement;
(v) the agreement requires the carrier or carriage service
provider to extend or enhance the capability of a facility
by means of which the declared service is supplied;
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Section 152BE
Competition and Consumer Act 2010 367
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(vi) the agreement imposes other requirements on the carrier
or carriage service provider in relation to access to the
declared service;
(vii) the agreement specifies the terms and conditions on
which the carrier or carriage service provider is to
comply with any or all of those other requirements;
(viii) the agreement requires the access seeker to accept, and
pay for, access to the declared service;
(ix) the agreement provides that any or all of the obligations
referred to in section 152AR are not applicable to the
carrier or carriage service provider, either
unconditionally or subject to such conditions or
limitations as are specified in the agreement;
(x) the agreement restricts or limits the application to the
carrier or carriage service provider of any or all of the
obligations referred to in section 152AR;
(xi) the agreement deals with any other matter relating to
access to the declared service.
(1A) Paragraph (1)(b) does not apply to the agreement to the extent (if
any) to which the agreement is covered by subparagraph (1)(e)(ix)
or (x).
(1B) Subparagraphs (1)(e)(ix) and (x) do not apply to an agreement that
relates to a declared service that is a Layer 2 bitstream service
supplied using a designated superfast telecommunications network.
(2) If:
(a) an agreement relates to access to an eligible service (within
the meaning of section 152AN( � and
(b) at the time the agreement was entered into to, the eligible
service was a not a declared service; and
(c) at a later time (the declaration time), the eligible service
becomes a declared service; and
(d) if the agreement had been entered into immediately after the
declaration time, the agreement would have been an access
agreement;
ComLaw Authoritative Act C2015C00019
Part XIC Telecommunications access regime
Division 4B Access agreements
Section 152BEA
368 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
the agreement becomes an access agreement immediately after the
declaration time.
(3) If:
(a) an access agreement is varied by another agreement (the
variation agreement); and
(b) the variation agreement is in writing; and
(c) the variation agreement is legally enforceable;
a reference in this Part to the access agreement is a reference to the
access agreement as varied by the variation agreement.
(4) It is immaterial whether an access agreement or variation
agreement was entered into before or after the commencement of
this section.
(5) An access agreement is not a legislative instrument.
(6) A variation agreement is not a legislative instrument.
152BEA Quarterly reports about access agreements
(1) Within 30 days after the end of each quarter, a carrier or carriage
service provider who supplies, or proposes to supply, a declared
service must give the Commission a written statement setting out
details of any access agreement in relation to the service in force at
any time during that quarter.
(2) The details that must be given under subsection (1) are:
(a) the parties to the agreement; and
(b) the service to which the agreement relates; and
(c) the date the agreement was entered into; and
(d) the period of the agreement; and
(e) if the agreement was varied during the quarter—the details
referred to in paragraphs (a) to (d) and (g) in relation to the
variation agreement; and
(f) if the agreement was terminated, rescinded or cancelled
before the expiry of the agreement—the date the agreement
was terminated, rescinded or cancelled; and
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Access agreements Division 4B
Section 152BEB
Competition and Consumer Act 2010 369
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(g) such information (if any) about the agreement as is specified
in an instrument in force under subsection (3).
(3) The Commission may, by writing, specify information for the
purposes of paragraph (2)(g).
(4) An instrument under subsection (3) (including the instrument as
amended) ceases to be in force 5 years after the day it is made
(unless it is revoked sooner).
(5) The Commission must publish an instrument under subsection (3)
on the Commission’s website.
(6) An instrument under subsection (3) is not a legislative instrument.
(7) The Commission may, by writing, require information in a
statement given to the Commission under this section to be verified
by statutory declaration.
(8) This section does not limit section 155.
152BEB Commission may request copy of access agreement or
variation agreement
(1) The Commission may, by writing, request a carrier or carriage
service provider who supplies, or proposes to supply, a declared
service to provide a copy of either or both of the following:
(a) an access agreement in relation to the service;
(b) a variation agreement for an access agreement in relation to
the service.
Note: The Procedural Rules may provide for the practice and procedure to
be followed by the Commission in making a request under this
subsection.
(2) The carrier or carriage service provider must provide a copy of the
document within 10 days after the day the request was made under
subsection (1).
(3) An instrument under subsection (1) is not a legislative instrument.
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Part XIC Telecommunications access regime
Division 4B Access agreements
Section 152BEBA
370 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(4) This section does not limit section 155.
152BEBA NBN corporation to give the Commission a statement
about the differences between an access agreement and a
standard form of access agreement
Access agreement
(1) If:
(a) an access agreement is covered by subsection 152BE(1); and
(b) the carrier or carriage service provider who supplies, or
proposes to supply, the declared service is an NBN
corporation; and
(c) immediately before the access agreement was entered into, a
standard form of access agreement relating to access to the
service was available on the NBN corporation’s website; and
(d) the terms and conditions set out in the access agreement are
not the same as the terms and conditions set out in the
standard form of access agreement;
the NBN corporation must, within 7 days after the day on which
the access agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(e) identifying the parties to the access agreement; and
(f) describing the differences between the terms and conditions
set out in the access agreement and the terms and conditions
set out in the standard form of access agreement; and
(j) setting out such other information (if any) about the access
agreement as is required by the form.
Variation agreement
(2) If:
(a) a variation agreement is entered into after the commencement
of this section; and
(b) the carrier or carriage service provider who supplies, or
proposes to supply, the service to which the relevant access
agreement relates is an NBN corporation; and
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Access agreements Division 4B
Section 152BEBB
Competition and Consumer Act 2010 371
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(c) immediately before the variation agreement was entered into,
a standard form of access agreement relating to access to the
service was available on the NBN corporation’s website; and
(d) the terms and conditions set out in the relevant access
agreement (as varied by the variation agreement) are not the
same as the terms and conditions set out in the standard form
of access agreement;
the NBN corporation must, within 7 days after the day on which
the variation agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(e) identifying the parties to the relevant access agreement (as
varied by the variation agreement); and
(f) describing the differences between the terms and conditions
set out in the relevant access agreement (as varied by the
variation agreement) and the terms and conditions set out in
the standard form of access agreement; and
(j) setting out such other information (if any) about the relevant
access agreement (as varied by the variation agreement) as is
required by the form.
152BEBB NBN corporation to give the Commission a statement
about the differences between an access agreement and a
special access undertaking
Access agreement
(1) If:
(a) an access agreement is covered by subsection 152BE(1); and
(b) the carrier or carriage service provider who supplies, or
proposes to supply, the declared service is an NBN
corporation; and
(c) immediately before the access agreement was entered into, a
special access undertaking that:
(i) relates to access to the service; and
(ii) was given by the NBN corporation;
was in operation; and
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Part XIC Telecommunications access regime
Division 4B Access agreements
Section 152BEBB
372 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(d) the terms and conditions set out in the access agreement are
not the same as the terms and conditions set out in the special
access undertaking;
the NBN corporation must, within 7 days after the day on which
the access agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(e) identifying the parties to the access agreement; and
(f) describing the differences between the terms and conditions
set out in the access agreement and the terms and conditions
set out in the special access undertaking; and
(j) setting out such other information (if any) about the access
agreement as is required by the form.
Variation agreement
(2) If:
(a) a variation agreement is entered into after the commencement
of this section; and
(b) the carrier or carriage service provider who supplies, or
proposes to supply, the service to which the relevant access
agreement relates is an NBN corporation; and
(c) immediately before the variation agreement was entered into,
a special access undertaking that:
(i) relates to access to the service; and
(ii) was given by the NBN corporation;
was in operation; and
(d) the terms and conditions set out in the relevant access
agreement (as varied by the variation agreement) are not the
same as the terms and conditions set out in the special access
undertaking;
the NBN corporation must, within 7 days after the day on which
the variation agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(e) identifying the parties to the relevant access agreement (as
varied by the variation agreement); and
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Access agreements Division 4B
Section 152BEBC
Competition and Consumer Act 2010 373
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(f) describing the differences between the terms and conditions
set out in the relevant access agreement (as varied by the
variation agreement) and the terms and conditions set out in
the special access undertaking; and
(j) setting out such other information (if any) about the relevant
access agreement (as varied by the variation agreement) as is
required by the form.
152BEBC NBN corporation to give the Commission a statement
about the differences between an access agreement and an
access determination
Access agreement
(1) If:
(a) an access agreement is covered by subsection 152BE(1); and
(b) the carrier or carriage service provider who supplies, or
proposes to supply, the declared service is an NBN
corporation; and
(c) immediately before the access agreement was entered into, an
access determination relating to access to the service was in
force; and
(d) the terms and conditions set out in the access agreement are
not the same as the terms and conditions set out in the access
determination;
the NBN corporation must, within 7 days after the day on which
the access agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(e) identifying the parties to the access agreement; and
(f) describing the differences between the terms and conditions
set out in the access agreement and the terms and conditions
set out in the access determination; and
(j) setting out such other information (if any) about the access
agreement as is required by the form.
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Part XIC Telecommunications access regime
Division 4B Access agreements
Section 152BEBD
374 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Variation agreement
(2) If:
(a) a variation agreement is entered into after the commencement
of this section; and
(b) the carrier or carriage service provider who supplies, or
proposes to supply, the service to which the relevant access
agreement relates is an NBN corporation; and
(c) immediately before the variation agreement was entered into,
an access determination relating to access to the service was
in force; and
(d) the terms and conditions set out in the relevant access
agreement (as varied by the variation agreement) are not the
same as the terms and conditions set out in the access
determination;
the NBN corporation must, within 7 days after the day on which
the variation agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(e) identifying the parties to the relevant access agreement (as
varied by the variation agreement); and
(f) describing the differences between the terms and conditions
set out in the relevant access agreement (as varied by the
variation agreement) and the terms and conditions set out in
the access determination; and
(j) setting out such other information (if any) about the relevant
access agreement (as varied by the variation agreement) as is
required by the form.
152BEBD Register of NBN Access Agreement Statements
(1) The Commission is to maintain a register, to be known as the
Register of NBN Access Agreement Statements, in which the
Commission includes all statements given to it under the following
provisions:
(a) section 152BEBA;
(b) section 152BEBB;
(c) section 152BEBC.
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Telecommunications access regime Part XIC
Access agreements Division 4B
Section 152BEBE
Competition and Consumer Act 2010 375
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Commission’s website.
(4) The Register is not a legislative instrument.
(5) If the Commission is satisfied that:
(a) publication of particular material contained in a statement
could reasonably be expected to prejudice substantially the
commercial interests of a person; and
(b) the prejudice outweighs the public interest in the publication
of the matter;
the Commission may remove the material from the version of the
statement that is included in the Register.
(6) If the Commission does so, the Commission must include in the
Register an annotation to that effect.
152BEBE Layer 2 bitstream services—carrier or carriage service
provider to give the Commission a statement about the
differences between an access agreement and a special
access undertaking
Access agreement
(1) If:
(a) an access agreement is covered by subsection 152BE(1); and
(b) the declared service to which the agreement relates is a Layer
2 bitstream service supplied using a designated superfast
telecommunications network; and
(c) the carrier or carriage service provider who supplies, or
proposes to supply, the declared service is not an NBN
corporation; and
(d) immediately before the access agreement was entered into, a
special access undertaking that:
(i) relates to access to the service; and
(ii) was given by the carrier or provider;
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Part XIC Telecommunications access regime
Division 4B Access agreements
Section 152BEBE
376 Competition and Consumer Act 2010
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was in operation; and
(e) the terms and conditions set out in the access agreement are
not the same as the terms and conditions set out in the special
access undertaking;
the carrier or provider must, within 7 days after the day on which
the access agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(f) identifying the parties to the access agreement; and
(g) describing the differences between the terms and conditions
set out in the access agreement and the terms and conditions
set out in the special access undertaking; and
(k) setting out such other information (if any) about the access
agreement as is required by the form.
Variation agreement
(2) If:
(a) a variation agreement is entered into after the commencement
of this section; and
(b) the declared service to which the relevant access agreement
relates is a Layer 2 bitstream service supplied using a
designated superfast telecommunications network; and
(c) the carrier or carriage service provider who supplies, or
proposes to supply, the service to which the relevant access
agreement relates is not an NBN corporation; and
(d) immediately before the variation agreement was entered into,
a special access undertaking that:
(i) relates to access to the service; and
(ii) was given by the carrier or provider;
was in operation; and
(e) the terms and conditions set out in the relevant access
agreement (as varied by the variation agreement) are not the
same as the terms and conditions set out in the special access
undertaking;
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Access agreements Division 4B
Section 152BEBF
Competition and Consumer Act 2010 377
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
the carrier or provider must, within 7 days after the day on which
the variation agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(f) identifying the parties to the relevant access agreement (as
varied by the variation agreement); and
(g) describing the differences between the terms and conditions
set out in the relevant access agreement (as varied by the
variation agreement) and the terms and conditions set out in
the special access undertaking; and
(k) setting out such other information (if any) about the relevant
access agreement (as varied by the variation agreement) as is
required by the form.
152BEBF Layer 2 bitstream services—carrier or carriage service
provider to give the Commission a statement about the
differences between an access agreement and an access
determination
Access agreement
(1) If:
(a) an access agreement is covered by subsection 152BE(1); and
(b) the declared service to which the agreement relates is a Layer
2 bitstream service supplied using a designated superfast
telecommunications network; and
(c) the carrier or carriage service provider who supplies, or
proposes to supply, the declared service is not an NBN
corporation; and
(d) immediately before the access agreement was entered into, an
access determination relating to access to the service was in
force; and
(e) the terms and conditions set out in the access agreement are
not the same as the terms and conditions set out in the access
determination;
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Part XIC Telecommunications access regime
Division 4B Access agreements
Section 152BEBF
378 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
the carrier or provider must, within 7 days after the day on which
the access agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(f) identifying the parties to the access agreement; and
(g) describing the differences between the terms and conditions
set out in the access agreement and the terms and conditions
set out in the access determination; and
(k) setting out such other information (if any) about the access
agreement as is required by the form.
Variation agreement
(2) If:
(a) a variation agreement is entered into after the commencement
of this section; and
(b) the declared service to which the relevant access agreement
relates is a Layer 2 bitstream service supplied using a
designated superfast telecommunications network; and
(c) the carrier or carriage service provider who supplies, or
proposes to supply, the service to which the relevant access
agreement relates is not an NBN corporation; and
(d) immediately before the variation agreement was entered into,
an access determination relating to access to the service was
in force; and
(e) the terms and conditions set out in the relevant access
agreement (as varied by the variation agreement) are not the
same as the terms and conditions set out in the access
determination;
the carrier or provider must, within 7 days after the day on which
the variation agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(f) identifying the parties to the relevant access agreement (as
varied by the variation agreement); and
(g) describing the differences between the terms and conditions
set out in the relevant access agreement (as varied by the
variation agreement) and the terms and conditions set out in
the access determination; and
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Access agreements Division 4B
Section 152BEBG
Competition and Consumer Act 2010 379
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(k) setting out such other information (if any) about the relevant
access agreement (as varied by the variation agreement) as is
required by the form.
152BEBG Register of Layer 2 Bitstream Access Agreement
Statements
(1) The Commission is to maintain a register, to be known as the
Register of Layer 2 Bitstream Access Agreement Statements, in
which the Commission includes all statements given to it under the
following provisions:
(a) section 152BEBE;
(b) section 152BEBF.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Commission’s website.
(4) The Register is not a legislative instrument.
(5) If the Commission is satisfied that:
(a) publication of particular material contained in a statement
could reasonably be expected to prejudice substantially the
commercial interests of a person; and
(b) the prejudice outweighs the public interest in the publication
of the matter;
the Commission may remove the material from the version of the
statement that is included in the Register.
(6) If the Commission does so, the Commission must include in the
Register an annotation to that effect.
152BEC Carrier licence condition
A carrier licence held by a carrier is subject to a condition that the
carrier must comply with sections 152BEA, 152BEB, 152BEBA,
152BEBB, 152BEBC, 152BEBE and 152BEBF.
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Division 4B Access agreements
Section 152BED
380 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
152BED Service provider rule
(1) In addition to the rules mentioned in section 98 of the
Telecommunications Act 1997, the rule set out in subsection (2) of
this section is a service provider rule for the purposes of that Act.
(2) A carriage service provider must comply with sections 152BEA,
152BEB, 152BEBA, 152BEBB, 152BEBC, 152BEBE and
152BEBF.
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Access undertakings Division 5
Section 152CBA
Competition and Consumer Act 2010 381
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 5—Access undertakings
Subdivision B—Special access undertakings
152CBA What is a special access undertaking?
Scope
(1) This section applies to:
(a) a person (other than an NBN corporation) who is, or expects
to be, a carrier or a carriage service provider supplying:
(i) a listed carriage service (within the meaning of the
Telecommunications Act 1997); or
(ii) a service that facilitates the supply of a listed carriage
service (within the meaning of that Act);
whether to itself or to other persons, so long as the service is
not a declared service; or
(b) a person who is an NBN corporation and who is, or expects
to be, a carrier or carriage service provider supplying or
capable of supplying:
(i) a listed carriage service (within the meaning of the
Telecommunications Act 1997); or
(ii) a service that facilitates the supply of a listed carriage
service (within the meaning of that Act);
whether to itself or to other persons, so long as:
(iii) the service is not a declared service under
subsection 152AL(8A); and
(iv) there is no access determination that applies in relation
to access to the service.
Undertaking
(2) The person may give a written undertaking (a special access
undertaking) to the Commission in connection with the provision
of access to the service.
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Division 5 Access undertakings
Section 152CBA
382 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(3) If paragraph (1)(a) applies, the undertaking must state that, in the
event that the person supplies the service (whether to itself or to
other persons), the person:
(a) agrees to be bound by the obligations referred to in
section 152AR, to the extent that those obligations would
apply to the person in relation to the service if the service
were treated as an active declared service; and
(b) undertakes to comply with the terms and conditions specified
in the undertaking in relation to the obligations referred to in
paragraph (a).
Note: The undertaking need not specify all terms and conditions—see
subparagraph 152AY(2)(b)(ii).
(3A) If paragraph (1)(b) applies, the undertaking must state that, in the
event that the person supplies, or becomes capable of supplying,
the service (whether to itself or to other persons), the person:
(a) agrees to be bound by the obligations referred to in
section 152AXB, to the extent that those obligations would
apply to the person in relation to the service if the service
were treated as a declared service; and
(b) undertakes to comply with the terms and conditions specified
in the undertaking in relation to the obligations referred to in
section 152AXB.
Note: The undertaking need not specify all terms and conditions—see
subparagraph 152AY(2)(b)(ii).
(3B) The undertaking may also state, in the event that the person
supplies the service (whether to itself or to other persons), the
person:
(a) will engage in specified conduct in relation to access to the
service; and
(b) will do so on such terms and conditions as are specified in
the undertaking.
(3C) If the person is an NBN corporation, the undertaking may also state
that the NBN corporation will engage in specified conduct in
relation to:
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Access undertakings Division 5
Section 152CBA
Competition and Consumer Act 2010 383
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(a) developing a new eligible service (within the meaning of
section 152AN( � or
(b) enhancing a declared service; or
(c) extending or enhancing the capability of a facility or
telecommunications network by means of which a declared
service is, or is to be, supplied; or
(d) planning for a facility or telecommunications network by
means of which a declared service is, or is to be, supplied; or
(e) an activity that is preparatory to the supply of a declared
service; or
(f) an activity that is ancillary or incidental to the supply of a
declared service; or
(g) giving information to service providers about any of the
above activities.
(3D) For the purposes of this Part, in determining whether the
undertaking relates to a particular service or proposed service,
disregard a statement included in the undertaking in accordance
with subsection (3C).
(4) The undertaking must be in a form approved in writing by the
Commission.
(5) The undertaking may be without limitations or may be subject to
such limitations as are specified in the undertaking.
Expiry time
(6) The undertaking must specify the expiry time of the undertaking.
(7) The expiry time of the undertaking may be described by reference
to the end of a period beginning:
(a) when the undertaking comes into operation; or
(b) when the person begins to supply the service (whether to
itself or to other persons).
(8) Subsection (7) does not, by implication, limit subsection (6).
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Division 5 Access undertakings
Section 152CBAA
384 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(9) The undertaking may provide for the person to extend, or further
extend, the expiry time of the undertaking, so long as:
(a) the extension or further extension is approved by the
Commission; and
(b) the undertaking sets out criteria that are to be applied by the
Commission in deciding whether to approve the extension or
further extension.
(10) If the undertaking expires, this Part does not prevent the person
from giving a fresh special access undertaking in the same terms as
the expired undertaking.
Commission may perform functions or exercise powers
(10A) If the undertaking provides for the Commission to perform
functions or exercise powers in relation to the undertaking, the
Commission may perform those functions, and exercise those
powers, in accordance with the undertaking.
Related services
(11) A reference in subparagraphs (1)(a)(ii) and (b)(ii) to a service that
facilitates the supply of a carriage service does not include a
reference to the use of intellectual property except to the extent that
it is an integral but subsidiary part of the first-mentioned service.
Definition
(12) In this section:
active declared service has the same meaning as in section 152AR
(disregarding subsection 152AL(7)).
Note: A service includes a proposed service—see section 152CBJ.
152CBAA Fixed principles terms and conditions
(1) A special access undertaking may provide that a term or condition
specified in the undertaking is a fixed principles term or condition
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Access undertakings Division 5
Section 152CBAA
Competition and Consumer Act 2010 385
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for a period that, under the undertaking, is expressed to be the
notional fixed period for the fixed principles term or condition.
(2) If the undertaking does so, the undertaking may also provide that
one or more specified circumstances are qualifying circumstances
in relation to the fixed principles term or condition.
(3) The notional fixed period for a fixed principles term or condition
must:
(a) begin when the undertaking comes into operation; and
(b) end:
(i) at the expiry time of the undertaking; or
(ii) if an earlier time is ascertained in accordance with the
undertaking—at that earlier time; or
(iii) if a later time is ascertained in accordance with the
undertaking—at that later time.
(4) If:
(a) a fixed principles term or condition is specified in a special
access undertaking; and
(b) the undertaking ceases to be in operation before the end of
the notional fixed period for the fixed principles term or
condition;
the fixed principles term or condition ceases to be in operation
when the undertaking ceases to be in operation.
Note: Even though the fixed principles term or condition ceases to be in
operation when the undertaking ceases to be in operation,
subsection (5) ensures that a fresh undertaking can include an identical
fixed principles term or condition.
Consequences—acceptance of other undertaking
(5) If:
(a) a special access undertaking (the original undertaking)
given by a person in relation to a particular service contained
a fixed principles term or condition (the original fixed
principles term or condition); and
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Part XIC Telecommunications access regime
Division 5 Access undertakings
Section 152CBAA
386 Competition and Consumer Act 2010
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(b) the original undertaking was accepted by the Commission;
and
(c) during the notional fixed period for the original fixed
principles term or condition, the person gives the
Commission another special access undertaking (the other
undertaking) in relation to the service; and
(d) the other undertaking contains a fixed principles term or
condition (the corresponding fixed principles term or
condition) that is identical to the original fixed principles
term or condition; and
(e) the notional fixed period for the corresponding fixed
principles term or condition ends at or before the end of the
notional fixed period for the original fixed principles term or
condition; and
(f) if there are qualifying circumstances in relation to the
original fixed principles term or condition:
(i) there are qualifying circumstances in relation to the
corresponding fixed principles term or condition; and
(ii) those qualifying circumstances are identical to the
qualifying circumstances in relation to the original fixed
principles term or condition; and
(g) if there are qualifying circumstances in relation to the
original fixed principles term or condition—none of those
circumstances exist;
then:
(h) the Commission must not reject the other undertaking for a
reason that concerns:
(i) the corresponding fixed principles term or condition; or
(ii) the notional fixed period for the corresponding fixed
principles term or condition; or
(iii) if there are qualifying circumstances in relation to the
corresponding fixed principles term or condition—the
specification of those circumstances; and
(i) paragraphs 152CBD(2)(a), (b), (c) and (ca) do not apply to:
(i) the corresponding fixed principles term or condition; or
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Section 152CBAA
Competition and Consumer Act 2010 387
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(ii) the notional fixed period for the corresponding fixed
principles term or condition; or
(iii) if there are qualifying circumstances in relation to the
corresponding fixed principles term or condition—those
circumstances; and
(j) if the corresponding fixed principles term or condition is the
only term or condition contained in the other undertaking—
paragraph 152CBD(2)(d) does not apply to the other
undertaking; and
(k) if the corresponding fixed principles term or condition is not
the only term or condition contained in the other
undertaking—subparagraph 152CBD(2)(d)(ii) does not
require the Commission to consider any submissions to the
extent to which they relate to:
(i) the corresponding fixed principles term or condition; or
(ii) the notional fixed period for the corresponding fixed
principles term or condition; or
(iii) if there are qualifying circumstances in relation to the
corresponding fixed principles term or condition—those
circumstances.
Consequences—variation of undertaking
(6) If:
(a) a special access undertaking given by a person in relation to a
particular service contains a fixed principles term or
condition (the original fixed principles term or condition);
and
(b) the undertaking has been accepted by the Commission; and
(c) during the notional fixed period for the original fixed
principles term or condition, the person gives the
Commission a variation of the undertaking; and
(d) the varied undertaking contains a fixed principles term or
condition (the corresponding fixed principles term or
condition) that is identical to the original fixed principles
term or condition; and
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Section 152CBB
388 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(e) the notional fixed period for the corresponding fixed
principles term or condition is identical to the notional fixed
period for the original fixed principles term or condition; and
(f) if there are qualifying circumstances in relation to the
original fixed principles term or condition:
(i) there are qualifying circumstances in relation to the
corresponding fixed principles term or condition; and
(ii) those qualifying circumstances are identical to the
qualifying circumstances in relation to the original fixed
principles term or condition; and
(g) if there are qualifying circumstances in relation to the
original fixed principles term or condition—none of those
circumstances exist;
the Commission must not reject the variation for a reason that
concerns:
(h) the corresponding fixed principles term or condition; or
(i) the notional fixed period for the corresponding fixed
principles term or condition; or
(j) if there are qualifying circumstances in relation to the
corresponding fixed principles term or condition—the
specification of those circumstances.
152CBB Further information about undertaking
(1) This section applies if a person gives a special access undertaking
to the Commission.
(2) The Commission may request the person to give the Commission
further information about the undertaking.
(2A) If:
(a) the Procedural Rules make provision for or in relation to a
time limit for giving the information; and
(b) the person does not give the Commission the information
within the time limit allowed by the Procedural Rules;
the Commission may, by written notice given to the person, reject
the undertaking.
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Section 152CBC
Competition and Consumer Act 2010 389
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(2B) Subsection (2A) has effect despite anything in this Division.
(2C) If the Commission makes a decision under subsection (2A) to
reject the undertaking, subsection 152CBC(5) has effect as if the
decision had been made under subsection 152CBC(2).
(3) If the Procedural Rules do not make provision for or in relation to a
time limit for giving the information, the Commission may refuse
to consider the undertaking until the person gives the Commission
the information.
(4) The Commission may withdraw its request for further information,
in whole or in part.
152CBC Commission to accept or reject access undertaking
(1) This section applies if a person gives a special access undertaking
to the Commission.
(1A) Before the Commission makes a decision under subsection (2) in
relation to the undertaking, the person may, by written notice given
to the Commission within the time allowed by the Procedural
Rules, modify the undertaking, so long as the modification is a
modification that, under the Procedural Rules, is taken to be of a
minor nature.
Decision to accept or reject undertaking
(2) After considering the undertaking, the Commission must:
(a) accept the undertaking; or
(b) reject the undertaking.
Notice of decision
(3) If the Commission accepts the undertaking, the Commission must
give the person a written notice stating that the undertaking has
been accepted.
(4) If the Commission rejects the undertaking, the Commission must
give the person a written notice:
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Section 152CBC
390 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(a) stating that the undertaking has been rejected; and
(b) setting out the reasons for the rejection.
Commission to make decision within 6 months
(5) If the Commission does not make a decision under subsection (2)
about the undertaking within 6 months after receiving the
undertaking, the Commission is taken to have made, at the end of
that 6-month period, a decision under subsection (2) to accept the
undertaking.
(6) In calculating the 6-month period referred to in subsection (5),
disregard:
(aa) if:
(i) the Commission has given a notice under
section 152CBDA in relation to the undertaking; and
(ii) no varied undertaking was given to the Commission in
response to the notice;
a day in the period specified in the notice; and
(ab) if:
(i) the Commission has given a notice under
section 152CBDA in relation to the undertaking; and
(ii) a varied undertaking was given to the Commission in
response to the notice; and
(iii) the Commission did not publish the varied undertaking
under paragraph 152CBD(2)(d);
a day in the period:
(iv) beginning on the day in which the notice was given; and
(v) ending when the varied undertaking was given to the
Commission in response to the notice; and
(ac) if:
(i) the Commission has given a notice under
section 152CBDA in relation to the undertaking; and
(ii) a varied undertaking was given to the Commission in
response to the notice; and
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Access undertakings Division 5
Section 152CBCA
Competition and Consumer Act 2010 391
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(iii) the varied undertaking was published under
paragraph 152CBD(2)(d);
a day in the period:
(iv) beginning on the day on which the notice was given;
and
(v) ending at the end of the time specified by the
Commission when it published the varied undertaking;
and
(a) if paragraph (ac) does not apply and the Commission has
published the undertaking under paragraph 152CBD(2)(d)—
a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the
Commission when it published the undertaking; and
(b) if the Commission has requested further information under
section 152CBB in relation to the undertaking—a day during
any part of which the request, or any part of the request,
remains unfulfilled.
Extension of decision-making period
(7) The Commission may, by written notice given to the person,
extend or further extend the 6-month period referred to in
subsection (5), so long as:
(a) the extension or further extension is for a period of not more
than 3 months; and
(b) the notice includes a statement explaining why the
Commission has been unable to make a decision on the
undertaking within that 6-month period or that 6-month
period as previously extended, as the case may be.
(8) As soon as practicable after the Commission gives a notice under
subsection (7), the Commission must cause a copy of the notice to
be made available on the internet.
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Part XIC Telecommunications access regime
Division 5 Access undertakings
Section 152CBCA
392 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
152CBCA Serial undertakings
If:
(a) a person gives a special access undertaking (the first special
access undertaking) to the Commission; and
(b) the Commission rejects the first special access undertaking;
and
(c) the person subsequently gives another special access
undertaking to the Commission; and
(d) the Commission is satisfied that any or all of the provisions
of the first special access application are materially similar to
any or all of the provisions of the other special access
undertaking;
the Commission may refuse to consider the other special access
undertaking.
152CBD Criteria for accepting access undertaking
(1) This section applies if a person gives the Commission a special
access undertaking relating to a service.
(2) The Commission must not accept the undertaking unless:
(a) if paragraph 152CBA(1)(a) applies—the Commission is
satisfied that:
(i) the terms and conditions referred to in
paragraph 152CBA(3)(b) would be consistent with the
obligations referred to in paragraph 152CBA(3)(a); and
(ii) those terms and conditions are reasonable; and
(b) if paragraph 152CBA(1)(b) applies—the Commission is
satisfied that:
(i) the terms and conditions referred to in
subsection 152CBA(3A) would be consistent with the
obligations referred to in section 152AXB; and
(ii) those terms and conditions are reasonable; and
(c) the Commission is satisfied that the undertaking is consistent
with any Ministerial pricing determination; and
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Access undertakings Division 5
Section 152CBD
Competition and Consumer Act 2010 393
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(ca) if subsection 152CBA(3B) applies—the Commission is
satisfied that:
(i) the conduct referred to in paragraph 152CBA(3B)(a)
will promote the long-term interests of end-users of
carriage services or of services supplied by means of
carriage services; and
(ii) the terms and conditions referred to in
paragraph 152CBA(3B)(b) are reasonable; and
(cb) if subsection 152CBA(3C) applies—the Commission is
satisfied that the conduct specified in accordance with that
subsection will promote the long-term interests of end-users
of carriage services or of services supplied by means of
carriage services; and
(d) the Commission has:
(i) published the undertaking and invited people to make
submissions to the Commission on the undertaking; and
(ii) considered any submissions that were received within
the time limit specified by the Commission when it
published the undertaking.
Note: Section 152AH contains a list of matters to be taken into account in
determining whether terms and conditions are reasonable.
(3) Subsection (2) has effect subject to subsection 152CBAA(5) (fixed
principles terms and conditions).
(4) If the undertaking provides that a term or condition specified in the
undertaking is a fixed principles term or condition for a period
that, under the undertaking, is expressed to be the notional fixed
period for the fixed principles term or condition, the Commission
must refuse to accept the undertaking if the Commission considers
that:
(a) the fixed principles term or condition should not be a fixed
principles term or condition; or
(b) that notional fixed period should not be the notional fixed
period for the fixed principles term or condition; or
(c) if the undertaking provides that one or more specified
circumstances are qualifying circumstances in relation to the
ComLaw Authoritative Act C2015C00019
Part XIC Telecommunications access regime
Division 5 Access undertakings
Section 152CBD
394 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
fixed principles term or condition—any of the qualifying
circumstances should not be qualifying circumstances in
relation to the fixed principles term or condition; or
(d) if the undertaking does not provide that particular
circumstances are qualifying circumstances in relation to the
fixed principles term or condition—those circumstances
should be qualifying circumstances in relation to the fixed
principles term or condition.
(5) Subsection (4) has effect subject to subsection 152CBAA(5) (fixed
principles terms and conditions).
(5A) If:
(a) the undertaking contains price-related terms and conditions
relating to the supply of a service; and
(b) the price-related terms and conditions are reasonably
necessary to achieve uniform national pricing of eligible
services supplied by the NBN corporation to service
providers and utilities;
then:
(c) the Commission must not reject the undertaking for a reason
that concerns the price-related terms and conditions; and
(d) paragraph (2)(b) does not apply to the price-related terms and
conditions.
(5B) In subsection (5A), eligible services, price-related terms and
conditions, uniform national pricing and utilities have the same
meaning as in section 151DA.
(5C) If a refusal is authorised under subsection 151DA(2) or (3) for the
purposes of subsection 51(1):
(a) the Commission must not reject the undertaking for a reason
that concerns that refusal; and
(b) paragraph (2)(b) of this section does not apply to that refusal.
(6) If a special access undertaking is given to the Commission in
response to a notice under section 152CBDA, the Commission is
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Access undertakings Division 5
Section 152CBDA
Competition and Consumer Act 2010 395
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
not required to publish the undertaking under paragraph (2)(d) of
this section unless the Commission is satisfied that:
(a) the variations specified in the notice are not of a minor
nature; or
(b) the variations specified in the notice are likely to have a
material adverse effect on the legitimate commercial interests
of any person.
152CBDA Variation of special access undertaking
(1) This section applies if a person gives a special access undertaking
(the original undertaking) to the Commission.
(2) The Commission may give the person a written notice stating that,
if the person:
(a) makes such variations to the original undertaking as are
specified in the notice; and
(b) gives the varied undertaking to the Commission within the
period specified in the notice;
the Commission will consider the varied undertaking under
section 152CBC as if the varied undertaking had been given to the
Commission instead of the original undertaking.
(3) If the person gives the Commission a varied undertaking in
response to the notice, the Commission must consider the varied
undertaking under section 152CBC as if the varied undertaking had
been given to the Commission instead of the original undertaking.
(4) The Commission does not have a duty to consider whether to give
a notice under subsection (2).
152CBE Extension of access undertaking
(1) This section applies if:
(a) a special access undertaking is given by a person; and
(b) the undertaking is in operation; and
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Section 152CBF
396 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(c) the undertaking provides for the person to extend the expiry
time of the undertaking, so long as the extension is approved
by the Commission; and
(d) the undertaking sets out criteria that are to be applied by the
Commission in deciding whether to approve the extension.
(2) The person may apply to the Commission for approval of the
extension. The application must be made in the 12-month period
ending at the expiry time.
(3) An application under subsection (2) must be:
(a) in writing; and
(b) in a form approved in writing by the Commission.
(4) After considering the application, the Commission must decide
whether to:
(a) approve the extension; or
(b) refuse to approve the extension.
(5) The Commission must approve the extension if the Commission is
satisfied that the criteria referred to in paragraph (1)(d) have been
met.
(6) If the Commission approves the extension, the Commission must
give the person a written notice stating that the extension has been
approved.
(7) If the Commission refuses to approve the extension, the
Commission must give the person a written notice:
(a) stating that the Commission has refused to approve the
extension; and
(b) setting out the reasons for the refusal.
(8) In this section, a reference to an extension includes a reference to a
further extension.
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Section 152CBF
Competition and Consumer Act 2010 397
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
152CBF Duration of access undertaking
(1) This section applies if a person gives the Commission a special
access undertaking relating to a service.
(2) If the Commission accepts the undertaking:
(a) the undertaking comes into operation at the time of
acceptance; and
(b) the undertaking continues in operation until:
(i) it expires; or
(ii) it is withdrawn as mentioned in section 152CBI;
even if, in the case of an undertaking covered by
subsection 152CBA(3), the service becomes an active
declared service.
(3) In this section:
active declared service has the same meaning as in section 152AR
(disregarding subsection 152AL(7)).
152CBG Variation of access undertakings
(1) This section applies if a special access undertaking given by a
person is in operation.
(2) The person may give the Commission a variation of the
undertaking.
(2A) Before the Commission makes a decision under subsection (3) in
relation to the variation, the person may, by written notice given to
the Commission within the time allowed by the Procedural Rules,
modify the variation, so long as the modification is a modification
that, under the Procedural Rules, is taken to be a modification of a
minor nature.
Decision to accept or reject variation
(3) After considering the variation, the Commission must decide to:
(a) accept the variation; or
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Section 152CBG
398 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(b) reject the variation.
(4) Section 152CBD applies to the variation in a corresponding way to
the way in which it applies to an undertaking. However, if the
variation is a variation that, under the Procedural Rules, is taken to
be a variation of a minor nature, the Commission is not required to
comply with paragraph 152CBD(2)(d) in relation to the variation.
(4A) Subsection (4) has effect subject to subsection 152CBAA(6) (fixed
principles terms and conditions).
Notice of decision
(5) If the Commission accepts the variation, the Commission must
give the person a written notice:
(a) stating that the variation has been accepted; and
(b) setting out the terms of the variation.
(6) If the Commission rejects the variation, the Commission must give
the person a written notice:
(a) stating that the variation has been rejected; and
(b) setting out the reasons for the rejection.
Commission to make decision within 6 months
(7) If the Commission does not make a decision under subsection (3)
about the variation within 6 months after receiving the variation,
the Commission is taken to have made, at the end of that 6-month
period, a decision under subsection (3) to accept the variation.
(8) In calculating the 6-month period referred to in subsection (7),
disregard:
(a) if the Commission has published the variation under
paragraph 152CBD(2)(d)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the
Commission when it published the variation; and
(b) if the Commission has requested further information under
section 152CBH in relation to the variation—a day during
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Section 152CBH
Competition and Consumer Act 2010 399
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
any part of which the request, or any part of the request,
remains unfulfilled.
Extension of decision-making period
(9) The Commission may, by written notice given to the person,
extend or further extend the 6-month period referred to in
subsection (7), so long as:
(a) the extension or further extension is for a period of not more
than 3 months; and
(b) the notice includes a statement explaining why the
Commission has been unable to make a decision on the
variation within that 6-month period or that 6-month period
as previously extended, as the case may be.
(10) As soon as practicable after the Commission gives a notice under
subsection (9), the Commission must cause a copy of the notice to
be made available on the internet.
152CBH Further information about variation of access undertaking
(1) This section applies if a person gives the Commission a variation
of a special access undertaking.
(2) The Commission may request the person to give the Commission
further information about the variation.
(2A) If:
(a) the Procedural Rules make provision for or in relation to a
time limit for giving the information; and
(b) the person does not give the Commission the information
within the time limit allowed by the Procedural Rules;
the Commission may, by written notice given to the person, reject
the variation.
(2B) Subsection (2A) has effect despite anything in this Division.
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Section 152CBI
400 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(2C) If the Commission makes a decision under subsection (2A) to
reject the variation, subsection 152CBG(7) has effect as if the
decision had been made under subsection 152CBG(3).
(3) If the Procedural Rules do not make provision for or in relation to a
time limit for giving the information, the Commission may refuse
to consider the variation until the person gives the Commission the
information.
(4) The Commission may withdraw its request for further information,
in whole or in part.
152CBI Voluntary withdrawal of undertaking
(1) This section applies if a special access undertaking given by a
person is in operation.
(2) The person may, by written notice given to the Commission,
withdraw the undertaking if:
(a) the service to which the undertaking relates is a declared
service when the notice is given; or
(b) both:
(i) the service to which the undertaking relates is not a
declared service when the notice is given; and
(ii) at least 12 months before the notice is given, the person
informed the Commission in writing that the person
proposed to withdraw the undertaking.
(3) For the purposes of this section, in determining whether a service is
a declared service, disregard subsections 152AL(7) and (8E).
152CBIA Special access undertakings prevail over inconsistent
access determinations
An access determination has no effect to the extent to which it is
inconsistent with a special access undertaking that is in operation.
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Section 152CBIB
Competition and Consumer Act 2010 401
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152CBIB Special access undertakings prevail over inconsistent
binding rules of conduct
Binding rules of conduct have no effect to the extent to which they
are inconsistent with a special access undertaking that is in
operation.
152CBIC Access agreements prevail over special access
undertakings
A special access undertaking has no effect to the extent to which it
is inconsistent with an access agreement.
152CBJ Proposed service
In this Subdivision, a reference to a service includes a reference to
a proposed service.
Subdivision C—General provisions
152CC Register of access undertakings
(1) The Commission is to maintain a Register in which the
Commission includes:
(a) all access undertakings that have been accepted by the
Commission (including those that are no longer in operation);
and
(b) all variations of access undertakings.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Commission’s website.
(4) The Register is not a legislative instrument.
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Section 152CD
402 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
152CD Enforcement of access undertakings
(1) This section applies if an access undertaking given by a person (the
first person) is in operation.
(2) If:
(a) the Commission; or
(b) any person (the affected person) whose interests are affected
by the undertaking;
thinks that the first person has breached the access undertaking, the
Commission or affected person may apply to the Federal Court for
an order under subsection (3).
(3) If the Federal Court is satisfied that the first person has breached
the undertaking, the Court may make all or any of the following
orders:
(a) an order directing the first person to comply with the
undertaking;
(b) an order directing the first person to compensate any other
person who has suffered loss or damage as a result of the
breach;
(c) any other order that the Court thinks appropriate.
(4) The Federal Court may discharge or vary an order granted under
this section.
152CDA Deferral of consideration of an access undertaking etc.
(1) The Procedural Rules may authorise the Commission to defer
consideration of:
(a) an access undertaking; or
(b) a variation of an access undertaking.
(2) Subsection (1) has effect despite anything in this Division.
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Ministerial pricing determinations Division 6
Section 152CH
Competition and Consumer Act 2010 403
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 6—Ministerial pricing determinations
152CH Ministerial pricing determinations
(1) The Minister may, by legislative instrument, make a determination
setting out principles dealing with price-related terms and
conditions relating to the standard access obligations. The
determination is to be known as a Ministerial pricing
determination.
Note 3A: Subsection 152CBD(2) provides that the Commission must not accept
a special access undertaking unless the undertaking is consistent with
any Ministerial pricing determination.
Note 4: Subsection 152CI(1) provides that a provision of an access
undertaking has no effect to the extent that the provision is
inconsistent with any Ministerial pricing determination.
Note 5: Subsection 152CI(2) provides that a provision of an access
determination has no effect to the extent that the provision is
inconsistent with any Ministerial pricing determination.
Note 5A: Subsection 152CI(3) provides that a provision of binding rules of
conduct have no effect to the extent that the provision is inconsistent
with any Ministerial pricing determination.
(3) In this section:
price-related terms and conditions means terms and conditions
relating to price or a method of ascertaining price.
152CI Undertakings, access determinations and binding rules of
conduct that are inconsistent with Ministerial pricing
determinations
(1) If a provision of an access undertaking is inconsistent with any
Ministerial pricing determination, the provision has no effect to the
extent of the inconsistency.
(2) If a provision of an access determination is inconsistent with any
Ministerial pricing determination, the provision has no effect to the
extent of the inconsistency.
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Division 6 Ministerial pricing determinations
Section 152CJ
404 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(3) If a provision of binding rules of conduct is inconsistent with any
Ministerial pricing determination, the provision has no effect to the
extent of the inconsistency.
152CJ Register of Ministerial pricing determinations
(1) The Commission must keep a Register of Ministerial pricing
determinations.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Commission’s website.
(4) The Register is not a legislative instrument.
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Supply of services by NBN corporations Division 6A
Section 152CJA
Competition and Consumer Act 2010 405
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 6A—Supply of services by NBN corporations
152CJA Supply of services by NBN corporations
(1) An NBN corporation must not supply an eligible service (within
the meaning of section 152AL) to another person unless:
(a) the service is a declared service under
subsection 152AL(8A); or
(b) both:
(i) the NBN corporation has formulated a standard form of
access agreement that relates to access to the service;
and
(ii) the standard form of access agreement is available on
the NBN corporation’s website; or
(c) both:
(i) a special access undertaking given by the NBN
corporation is in operation; and
(ii) the undertaking relates to the service.
(2) If:
(a) as the result of a request made by an access seeker under
section 152AXB, an NBN corporation is subject to a
category B standard access obligation in relation to a
declared service; and
(b) the NBN corporation has formulated a standard form of
access agreement that relates to access to the service; and
(c) the standard form of access agreement is available on the
NBN corporation’s website; and
(d) the access seeker requests the NBN corporation to enter into
an access agreement that:
(i) relates to access to the service; and
(ii) sets out terms and conditions that are the same as the
terms and conditions set out in the standard form of
access agreement;
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Division 6A Supply of services by NBN corporations
Section 152CJB
406 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
the NBN corporation must comply with the request mentioned in
paragraph (d).
Note: An NBN corporation will not be subject to a category B standard
access obligation in the circumstances set out in
subsection 152AXB(3) or (6).
(3) If an access seeker does not make a request under paragraph (2)(d),
this Part does not, by implication, prevent the NBN corporation
and the access seeker from entering into an access agreement that
sets out terms and conditions that are not the same as the terms and
conditions set out in the standard form of access agreement.
152CJB Mandatory NBN services
Scope
(1) This section applies if a condition of a carrier licence held by an
NBN corporation requires the NBN corporation to comply with
this section in relation to a specified eligible service (within the
meaning of section 152AL) that is supplied, or is capable of being
supplied, by the NBN corporation (whether to itself or other
persons).
Note 1: See section 41 of the National Broadband Network Companies Act
2011.
Note 2: For declaration of carrier licence conditions, see section 63 of the
Telecommunications Act 1997.
Compliance by NBN corporation
(2) The NBN corporation must, within 90 days after the carrier licence
condition comes into force:
(a) both:
(i) formulate a standard form of access agreement that
relates to access to the service; and
(ii) make the standard form of access agreement available
on the NBN corporation’s website; or
(b) give the Commission a special access undertaking in
connection with the provision of access to the service.
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Telecommunications access regime Part XIC
Supply of services by NBN corporations Division 6A
Section 152CJB
Competition and Consumer Act 2010 407
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(3) If:
(a) the NBN corporation, in accordance with paragraph (2)(b),
gives the Commission a special access undertaking in
connection with the provision of access to the service; and
(b) the Commission rejects the undertaking;
the NBN corporation must, within 90 days after the rejection of the
undertaking:
(c) formulate a standard form of access agreement that relates to
access to the service; and
(d) make the standard form of access agreement available on the
NBN corporation’s website.
(4) If the NBN corporation, in accordance with
(a) subparagraph (2)(a)(ii); or
(b) paragraph (3)(d);
makes a standard form of access agreement available on the NBN
corporation’s website, the NBN corporation must ensure that a
standard form of access agreement that:
(c) relates to access to the service; and
(d) is formulated by the NBN corporation;
is available on the NBN corporation’s website at all times during
the remainder of the period when the carrier licence condition is in
force.
(5) If:
(a) the NBN corporation, in accordance with paragraph (2)(b),
gives the Commission a special access undertaking in
connection with the provision of access to the service; and
(b) the Commission accepts the undertaking; and
(c) the undertaking subsequently ceases to be in operation;
the NBN corporation must ensure that a standard form of access
agreement that:
(d) relates to access to the service; and
(e) is formulated by the NBN corporation;
ComLaw Authoritative Act C2015C00019
Part XIC Telecommunications access regime
Division 6A Supply of services by NBN corporations
Section 152CJC
408 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
is available on the NBN corporation’s website at all times during
the remainder of the period when the carrier licence condition is in
force.
152CJC Carrier licence condition
A carrier licence held by an NBN corporation is subject to a
condition that the NBN corporation must comply with any rules in
section 152CJA that are applicable to the NBN corporation.
Note: See also section 62D of the Telecommunications Act 1997.
152CJD Service provider rule
(1) In addition to the rules mentioned in section 98 of the
Telecommunications Act 1997, the rule set out in subsection (2) of
this section is a service provider rule for the purposes of that Act.
(2) If an NBN corporation is a service provider, the NBN corporation
must comply with any rules in section 152CJA that are applicable
to the NBN corporation.
152CJE Judicial enforcement of obligations
(1) If the Federal Court is satisfied that an NBN corporation has
contravened an obligation imposed by section 152CJA or 152CJB,
the Court may, on the application of:
(a) the Commission; or
(b) any person whose interests are affected by the contravention;
make all or any of the following orders:
(c) an order directing the NBN corporation to comply with the
obligation;
(d) an order directing the NBN corporation to compensate any
other person who has suffered loss or damage as a result of
the contravention;
(e) any other order that the Court thinks appropriate.
(2) The Federal Court may discharge or vary an order granted under
this section.
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Telecommunications access regime Part XIC
Supply of services by NBN corporations Division 6A
Section 152CJF
Competition and Consumer Act 2010 409
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
152CJF Standard form of access agreement
For the purposes of this Part, if, at a particular time, a service is not
a declared service, a standard form of access agreement relating to
access to the service may be formulated by an NBN corporation at
that time on the assumption that the service is a declared service.
152CJG When NBN corporation is not capable of supplying a
carriage service
Condition of a carrier licence
(1) If a condition of a carrier licence held by an NBN corporation
prohibits the NBN corporation from supplying a specified carriage
service to carriers or service providers, then, for the purposes of:
(a) this Part; and
(b) subsections 41(1) and (2) of the National Broadband
Network Companies Act 2011;
the NBN corporation is taken not to be capable of supplying the
service.
Note: See subsection 41(3) of the National Broadband Network Companies
Act 2011.
Avoidance of doubt
(2) Subsection (1) is enacted for the avoidance of doubt.
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Part XIC Telecommunications access regime
Division 6B Explanatory material relating to anti-discrimination provisions
Section 152CJH
410 Competition and Consumer Act 2010
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Division 6B—Explanatory material relating to
anti-discrimination provisions
152CJH Explanatory material relating to anti-discrimination
provisions
The Commission must:
(a) as soon as practicable after the commencement of this
section, publish on its website explanatory material relating
to the following provisions:
(ia) section 152ARA;
(ib) section 152ARB;
(i) section 152AXC;
(ii) section 152AXD;
(iii) subsections 152BCB(4A) to (4C) and (4G) to (4J);
(iv) subsections 152BDA(4A) to (4C) and (4G) to (4J); and
(b) keep that statement up-to-date.
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Relationship between this Part and Part IIIA Division 7
Section 152CK
Competition and Consumer Act 2010 411
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Division 7—Relationship between this Part and Part IIIA
152CK Relationship between this Part and Part IIIA
(1) A notification must not be given under section 44S in relation to an
access dispute if:
(a) the dispute relates to one or more aspects of access to a
declared service (within the meaning of this Part); and
(b) the third party referred to in that section is a service provider
(within the meaning of this Part).
(2) The Commission must not accept an undertaking under
section 44ZZA that relates to a declared service (within the
meaning of this Part) if the terms and conditions set out in the
undertaking relate to the provision of access to one or more service
providers (within the meaning of this Part).
(3) If:
(a) an undertaking under section 44ZZA is in operation in
relation to a particular service; and
(b) at a particular time, the service becomes a declared service
(within the meaning of this Part);
the undertaking ceases to be in operation to the extent (if any) to
which it sets out terms and conditions relating to the provision of
access to one or more service providers (within the meaning of this
Part).
(4) For the purposes of this section, if a special access undertaking
given by a person other than an NBN corporation is in operation,
assume that subsection 152AL(7) has effect in relation to the
undertaking as if paragraph 152AL(7)(c) had not been enacted.
(5) For the purposes of this section, if a special access undertaking
given by an NBN corporation is in operation, assume that
subsection 152AL(8E) has effect in relation to the undertaking as if
paragraph 152AL(8E)(c) had not been enacted.
ComLaw Authoritative Act C2015C00019
Part XIC Telecommunications access regime
Division 10 Hindering the fulfilment of a standard access obligation etc.
Section 152EF
412 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 10—Hindering the fulfilment of a standard access
obligation etc.
152EF Prohibition on hindering the fulfilment of a standard access
obligation etc.
(1) A person must not engage in conduct for the purpose of preventing
or hindering the fulfilment of:
(a) a standard access obligation; or
(b) a requirement imposed by an access determination; or
(ba) a requirement imposed by binding rules of conduct;
if the person is:
(c) a carrier or a carriage service provider who supplies a
declared service; or
(d) a service provider to whom a declared service is being
supplied by a carrier or carriage service provider; or
(e) a body corporate that is related to a carrier or provider
referred to in paragraph (c) or (d).
(2) A person may be taken to have engaged in conduct for the purpose
referred to in subsection (1) even though, after all the evidence has
been considered, the existence of that purpose is ascertainable only
by inference from the conduct of the person or from other relevant
circumstances. This subsection does not limit the manner in which
the purpose of a person may be established for the purposes of
subsection (1).
(3) Subsection (1) does not have effect before 1 July 1997.
152EG Enforcement of prohibition on hindering the fulfilment of a
standard access obligation etc.
(1) If the Federal Court is satisfied, on the application of any person,
that another person (the obstructor) has engaged, is engaging, or is
proposing to engage in conduct constituting a contravention of
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Telecommunications access regime Part XIC
Hindering the fulfilment of a standard access obligation etc. Division 10
Section 152EH
Competition and Consumer Act 2010 413
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section 152EF, the Court may make all or any of the following
orders:
(a) an order granting an injunction on such terms as the Court
thinks appropriate:
(i) restraining the obstructor from engaging in the conduct;
or
(ii) if the conduct involves refusing or failing to do
something—requiring the obstructor to do that thing;
(b) an order directing the obstructor to compensate a person who
has suffered loss or damage as a result of the contravention;
(c) any other order that the Court thinks appropriate.
(2) If the Federal Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular
conduct, or requiring a person to do anything, the Court may make
any other orders (including granting an injunction) that it thinks
appropriate against any other person who was involved in the
contravention concerned.
152EH Consent injunctions
On an application for an injunction under section 152EG, the
Federal Court may grant an injunction by consent of all of the
parties to the proceedings, whether or not the Court is satisfied that
the section applies.
152EI Interim injunctions
(1) The Federal Court may grant an interim injunction pending
determination of an application under section 152EG.
(2) If the Commission makes an application under section 152EG to
the Federal Court for an injunction, the Court must not require the
Commission or any other person, as a condition of granting an
interim injunction, to give any undertakings as to damages.
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Part XIC Telecommunications access regime
Division 10 Hindering the fulfilment of a standard access obligation etc.
Section 152EJ
414 Competition and Consumer Act 2010
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152EJ Factors relevant to granting a restraining injunction
The power of the Federal Court to grant an injunction under
section 152EG restraining a person from engaging in conduct may
be exercised whether or not:
(a) it appears to the Court that the person intends to engage
again, or to continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person engages in conduct of
that kind.
152EK Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant an injunction under
section 152EG requiring a person to do a thing may be exercised
whether or not:
(a) it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person refuses or fails to do that
thing.
152EL Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order
granted under this Division.
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Telecommunications access regime Part XIC
Procedural Rules Division 10A
Section 152ELA
Competition and Consumer Act 2010 415
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Division 10A—Procedural Rules
152ELA Procedural Rules
(1) The Commission may, by written instrument, make rules:
(a) making provision for or in relation to the practice and
procedure to be followed by the Commission in performing
functions, or exercising powers, under this Part; or
(b) making provision for or in relation to all matters and things
incidental to any such practice or procedure, or necessary or
convenient to be prescribed for the conduct of any business
of the Commission under this Part; or
(c) prescribing matters required or permitted by any other
provision of this Part to be prescribed by the Procedural
Rules.
(2) Rules under subsection (1) are to be known as Procedural Rules.
(3) The Procedural Rules may make provision for or in relation to any
or all of the following:
(a) the confidentiality of information or documents given to the
Commission by:
(i) an applicant for an order under subsection 152ATA(1);
or
(ii) a person who gave the Commission an access
undertaking or a variation of an access undertaking;
(c) the form and content of applications, undertakings, variations
or other documents given to the Commission under this Part.
(4) Subsection (3) does not limit subsection (1).
(5) The Procedural Rules may make provision for or in relation to a
matter by empowering the Commission to make decisions of an
administrative character.
(6) Subsection (5) does not limit subsection (1).
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Part XIC Telecommunications access regime
Division 10A Procedural Rules
Section 152ELB
416 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
(8) An instrument under subsection (1) is a legislative instrument for
the purposes of the Legislative Instruments Act 2003.
Note: For variation and revocation of instruments under subsection (1), see
subsection 33(3) of the Acts Interpretation Act 1901.
152ELB Public consultation
(1) Before making any Procedural Rules, the Commission must:
(a) publish a draft of the Procedural Rules on the Commission’s
website and invite people to make submissions to the
Commission on the draft Procedural Rules; and
(b) consider any submissions that are received within the time
limit specified by the Commission when it published the
draft Procedural Rules.
(2) The time limit specified by the Commission must be at least 30
days after the day of publication of the draft Procedural Rules.
152ELC Plan for the development of Procedural Rules
(1) Within 6 months after the commencement of this section, the
Commission must:
(a) prepare a written plan setting out:
(i) an outline of the Commission’s proposals for making
Procedural Rules; and
(ii) an indicative timetable for making those Procedural
Rules; and
(b) make a copy of the plan available on the Commission’s
website.
(2) A failure to comply with the plan does not affect the validity of an
instrument under subsection 152ELA(1).
(3) The plan is not a legislative instrument for the purposes of the
Legislative Instruments Act 2003.
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Miscellaneous Division 11
Section 152ELD
Competition and Consumer Act 2010 417
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Division 11—Miscellaneous
152ELD Compensation for acquisition of property
(1) If the operation of this Part would result in an acquisition of
property from a person otherwise than on just terms, the
Commonwealth is liable to pay a reasonable amount of
compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount
of the compensation, the person may institute proceedings in a
court of competent jurisdiction for the recovery from the
Commonwealth of such reasonable amount of compensation as the
court determines.
(3) In this section:
acquisition of property has the same meaning as in
paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the
Constitution.
this Part includes Division 2 of Part 2 of Schedule 1 to the
Telecommunications Legislation Amendment (Competition and
Consumer Safeguards) Act 2010.
152EM Continuity of partnerships
For the purposes of this Part, a change in the composition of a
partnership does not affect the continuity of the partnership.
152EN Treatment of partnerships
This Part applies to a partnership as if the partnership were a
person, but it applies with the following changes:
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Division 11 Miscellaneous
Section 152EO
418 Competition and Consumer Act 2010
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(a) obligations that would be imposed on the partnership are
imposed instead on each partner, but may be discharged by
any of the partners;
(b) any offence against this Part that would otherwise be
committed by the partnership is taken to have been
committed by each partner who:
(i) aided, abetted, counselled or procured the relevant act or
omission; or
(ii) was in any way knowingly concerned in, or party to, the
relevant act or omission (whether directly or indirectly
and whether by any act or omission of the partner).
152EO Conduct by directors, servants or agents
(1) If, in a proceeding under this Part in respect of conduct engaged in
by a body corporate, it is necessary to establish the state of mind of
the body corporate in relation to particular conduct, it is sufficient
to show:
(a) that the conduct was engaged in by a director, servant or
agent of the body corporate within the scope of his or her
actual or apparent authority; and
(b) that the director, servant or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, servant or agent of the body corporate within
the scope of the person’s actual or apparent authority; or
(b) by any other person at the direction or with the consent or
agreement (whether express or implied) of a director, servant
or agent of the body corporate, if the giving of the direction,
consent or agreement is within the scope of the actual or
apparent authority of the director, servant or agent;
is taken for the purposes of this Part to have been engaged in also
by the body corporate, unless the body corporate establishes that
the body corporate took reasonable precautions and exercised due
diligence to avoid the conduct.
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Telecommunications access regime Part XIC
Miscellaneous Division 11
Section 152EOA
Competition and Consumer Act 2010 419
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(3) A reference in subsection (1) to the state of mind of a person
includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the
person; and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
(4) A reference in this section to a director of a body corporate
includes a reference to a constituent member of a body corporate
incorporated for a public purpose by a law of the Commonwealth,
of a State or of a Territory.
152EOA Review of operation of this Part etc.
(1) Before 30 June 2014, the Minister must cause to be conducted a
review of the operation of:
(a) this Part; and
(b) the remaining provisions of this Act so far as they relate to
this Part; and
(c) Division 2 of Part 2 of the National Broadband Network
Companies Act 2011; and
(d) the remaining provisions of the National Broadband Network
Companies Act 2011 so far as they relate to Division 2 of
Part 2 of that Act.
(1A) Without limiting subsection (1), a review under that subsection
must consider the following matters:
(a) the supply by NBN corporations of eligible services covered
by section 10, 11, 12, 13, 14, 15 or 16 of the National
Broadband Network Companies Act 2011;
(b) the types of eligible services that have been, are being, or are
proposed to be, supplied by NBN corporations.
(1B) For the purposes of subsection (1A), eligible service has the same
meaning as in section 152AL.
(2) A review under subsection (1) must make provision for public
consultation.
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Division 11 Miscellaneous
Section 152EP
420 Competition and Consumer Act 2010
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(3) The Minister must cause to be prepared a report of a review under
subsection (1).
(4) The Minister must cause copies of the report to be tabled in each
House of the Parliament within 15 sitting days of that House after
the completion of the preparation of the report.
152EP Regulations about fees for inspection etc. of registers
The regulations may make provision about the inspection of
registers maintained under this Part (including provision about
fees).
152EQ Assistance to independent telecommunications adjudicator
(1) For the purposes of this section, the independent
telecommunications adjudicator is a company that:
(a) is limited by guarantee; and
(b) is identified, in an undertaking in force under section 577A
of the Telecommunications Act 1997, as the independent
telecommunications adjudicator for the purpose of this
section.
(2) The Commission may assist the independent telecommunications
adjudicator.
(3) The assistance may include the following:
(a) the provision of information (including protected information
within the meaning of section 155AAA);
(b) the provision of advice;
(c) the making available of resources and facilities (including
secretariat services and clerical assistance).
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Miscellaneous Division 11
Section 152ER
Competition and Consumer Act 2010 421
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152ER Voluntary undertakings given by Telstra
Scope
(1) This section applies if an undertaking given by Telstra is in force
under section 577A, 577C or 577E of the Telecommunications Act
1997.
Note 1: Section 577A of the Telecommunications Act 1997 deals with
undertakings about structural separation.
Note 2: Section 577C of the Telecommunications Act 1997 deals with
undertakings about hybrid fibre-coaxial networks.
Note 3: Section 577E of the Telecommunications Act 1997 deals with
undertakings about subscription television broadcasting licences.
Commission must have regard to Telstra’s conduct
(2) If Telstra has engaged, or is required to engage, in conduct in order
to comply with the undertaking, then, in performing a function, or
exercising a power, under this Part in relation to Telstra, the
Commission must have regard to the conduct to the extent that the
conduct is relevant.
Commission must not prevent Telstra from complying with the
undertaking
(3) The Commission must not perform a function, or exercise a power,
under this Part so as to prevent Telstra from complying with the
undertaking.
ComLaw Authoritative Act C2015C00019
Part XID Search and seizure
Division 1 Preliminary
Section 154
422 Competition and Consumer Act 2010
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Part XID—Search and seizure
Division 1—Preliminary
154 Simplified outline
The following is a simplified outline of this Part:
• This Part sets out an enforcement regime for the purposes of
finding out whether there has been a contravention of this Act,
Part 20 of the Telecommunications Act 1997 or Part 9 of the
Telecommunications (Consumer Protection and Service
Standards) Act 1999.
• Division 2 provides for the appointment of inspectors and the
issue of identity cards.
• Division 3 deals with entry to premises with the consent of the
occupier of the premises.
• Division 4 deals with entry to premises under a search warrant
issued by a magistrate. It sets out the powers available under a
search warrant, the obligations of persons entering the
premises and the rights and responsibilities of the occupier of
the premises.
• Division 5 contains some general provisions relating to the
operation of electronic equipment at premises.
Note: See also section 155 (which deals with the obtaining of information,
documents and evidence).
154A Definitions
In this Part:
consultant means a person engaged under section 27A.
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Preliminary Division 1
Section 154A
Competition and Consumer Act 2010 423
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contravention, in relation to a law, includes an offence against
section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an
offence against that law.
data includes:
(a) information in any form; or
(b) any program (or part of a program).
data held in a computer includes:
(a) data held in any removable data storage device for the time
being held in a computer; or
(b) data held in a data storage device on a computer network of
which the computer forms a part.
data storage device means a thing containing, or designed to
contain, data for use by a computer.
evidential material means a document or other thing that may
afford evidence relating to:
(a) a contravention of this Act; or
(b) a contravention of Part 20 of the Telecommunications Act
1997; or
(c) a contravention of Part 9 of the Telecommunications
(Consumer Protection and Service Standards) Act 1999; or
(d) a contravention of section 137.1, 137.2 or 149.1 of the
Criminal Code that relates to this Part.
executing officer, for a search warrant, means:
(a) the inspector named in the warrant as being responsible for
executing the warrant; or
(b) if that inspector does not intend to be present at the execution
of the warrant—another inspector whose name has been
written in the warrant by the inspector so named; or
(c) another inspector whose name has been written in the
warrant by the inspector last named in the warrant.
inspector means a person appointed as an inspector under
section 154B.
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Part XID Search and seizure
Division 1 Preliminary
Section 154A
424 Competition and Consumer Act 2010
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occupier, in relation to premises, includes a person present at the
premises who apparently represents the occupier.
officer assisting, for a search warrant, means:
(a) an inspector who is assisting in executing the warrant; or
(b) a person authorised under section 154K in relation to the
warrant.
premises means:
(a) an area of land or any other place (whether or not it is
enclosed or built on); or
(b) a building or other structure; or
(c) a vehicle, vessel or aircraft; or
(d) a part of any such premises.
search warrant means a warrant issued by a magistrate under
section 154X or signed by a magistrate under section 154Y.
thing includes a thing in electronic or magnetic form.
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Search and seizure Part XID
Appointment of inspectors and identity cards Division 2
Section 154B
Competition and Consumer Act 2010 425
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Division 2—Appointment of inspectors and identity cards
154B Appointment of inspectors
(1) The Chairperson may, by writing, appoint a member of the staff
assisting the Commission to be an inspector.
Staff member to have suitable qualifications and experience
(2) The Chairperson must not do so unless he or she is satisfied that
the staff member has suitable qualifications and experience to
properly exercise the powers of an inspector.
Inspector to comply with Chairperson’s directions
(3) An inspector must comply with any directions of the Chairperson
in exercising powers or performing functions as an inspector.
154C Identity cards
(1) The Chairperson must issue an identity card to an inspector.
Form of identity card
(2) The identity card must:
(a) be in the form prescribed by the regulations; and
(b) contain a recent photograph of the inspector.
Offence
(3) A person commits an offence if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an inspector; and
(c) the person does not return the identity card to the
Chairperson as soon as practicable.
Penalty: 1 penalty unit.
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Part XID Search and seizure
Division 2 Appointment of inspectors and identity cards
Section 154C
426 Competition and Consumer Act 2010
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(4) An offence against subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Card lost or destroyed
(5) Subsection (3) does not apply if the identity card was lost or
destroyed.
Note: A defendant bears an evidential burden in relation to the matter in this
subsection: see subsection 13.3(3) of the Criminal Code.
Inspector must carry card
(6) An inspector must carry his or her identity card at all times when
exercising powers or performing functions as an inspector.
Inspector must produce card on request
(7) An inspector is not entitled to exercise any powers under this Part
in relation to premises if:
(a) the occupier of the premises has requested the inspector to
produce the inspector’s identity card for inspection by the
occupier; and
(b) the inspector fails to comply with the request.
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Division 3—Entry to premises with consent
154D Entry with consent
Entry
(1) An inspector may enter premises if:
(a) the Commission, the Chairperson or a Deputy Chairperson
has reasonable grounds for suspecting that there may be
evidential material on the premises; and
(b) the inspector obtains the consent of the occupier of the
premises to enter the premises.
(2) The inspector may be accompanied by any one or more of the
following persons (each of whom is an assistant):
(a) another member of the staff assisting the Commission;
(b) a consultant.
Obtaining consent
(3) Before obtaining the consent of a person to enter premises under
this Division, the inspector must inform the person that the person
may refuse consent.
(4) A consent of a person is not effective for the purposes of this
section unless it is voluntary.
154E Powers in relation to premises
(1) The inspector or an assistant may do any of the following after
entering premises under this Division:
(a) search the premises, and any thing on the premises, for the
evidential material;
(b) make copies of the evidential material found on the premises;
(c) operate electronic equipment at the premises to see whether
the evidential material is accessible by doing so;
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Section 154F
428 Competition and Consumer Act 2010
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Note: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).
(d) remove the evidential material from the premises with the
consent of the owner of the material;
Note: See also subsection (2).
(e) secure the evidential material, pending the obtaining of a
search warrant to seize it;
(f) take equipment and material onto the premises, and use it, for
any of the above purposes.
Obtaining consent to remove evidential material
(2) Before obtaining the consent of a person to remove evidential
material from premises under paragraph (1)(d), the inspector or an
assistant must inform the person of the purpose for which the
material is required and that the person may refuse consent. A
consent of a person is not effective for the purposes of that
paragraph unless the consent is voluntary.
154F Operation of electronic equipment at premises
(1) If:
(a) an inspector or an assistant enters premises under this
Division; and
(b) he or she believes on reasonable grounds that any data
accessed by operating electronic equipment at the premises
(including data not held at the premises) might constitute
evidential material;
he or she may do only 1 of 2 things.
Removal of documents
(2) One thing he or she may do is operate the equipment or other
facilities at the premises to put the data in documentary form and
remove the documents so produced from the premises.
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Removal of disk, tape or other storage device
(3) The other thing he or she may do is operate the equipment or other
facilities at the premises to transfer the data to a disk, tape or other
storage device that:
(a) is brought to the premises for the exercise of the power; or
(b) is at the premises and the use of which for the purpose has
been agreed to in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the
premises.
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Section 154G
430 Competition and Consumer Act 2010
Compilation No. 99 Compilation date: 1/1/15 Registered: 15/1/15
Division 4—Entry to premises under a search warrant
Subdivision A—Powers available under a search warrant
154G The things that are authorised by a search warrant
(1) A search warrant that is in force in relation to premises authorises
the executing officer or an officer assisting to do any of the
following:
(a) enter the premises;
(b) search the premises, and any thing on the premises, for the
kind of evidential material specified in the warrant, and seize
things of that kind found on the premises;
(c) make copies of the kind of evidential material specified in the
warrant found on the premises;
(d) operate electronic equipment at the premises to see whether
the kind of evidential material specified in the warrant is
accessible by doing so;
Note: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).
(e) take equipment and material onto the premises, and use it, for
any of the above purposes.
(1A) In executing a search warrant that is in force in relation to
premises, the executing officer or an officer assisting may:
(a) for a purpose incidental to the execution of the warrant; or
(b) with the written consent of the occupier of the premises;
take photographs, or make video recordings, of the premises or of
anything at the premises.
(1B) If a search warrant in relation to premises is being executed, the
executing officer and the officers assisting may, if the warrant is
still in force, complete the execution of the warrant after all of
them temporarily cease its execution and leave the premises:
(a) for not more than one hour; or
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(b) for a longer period if the occupier of the premises consents in
writing.
Seizing other evidence
(2) If:
(a) the executing officer or an officer assisting, in the course of
searching for the kind of evidential material specified in the
warrant, finds another thing that he or she believes on
reasonable grounds to be evidence of:
(i) an indictable offence against this Act; or
(ii) an indictable offence against Part 20 of the
Telecommunications Act 1997; or
(iii) an indictable offence against Part 9 of the
Telecommunications (Consumer Protection and Service
Standards) Act 1999; or
(iv) an offence against section 137.1, 137.2 or 149.1 of the
Criminal Code that relates to this Part; and
(b) he or she believes on reasonable grounds that it is necessary
to seize the other thing in order to prevent its concealment,
loss or destruction;
then he or she may seize that other thing.
154GA Removing things for examination or processing
(1) A thing found at the premises may be moved to another place for
examination or processing in order to determine whether it may be
seized under a search warrant if:
(a) both of the following subparagraphs apply:
(i) it is significantly more practicable to do so having
regard to the timeliness and cost of examining or
processing the thing at another place and the availability
of expert assistance;
(ii) there are reasonable grounds to believe that the thing
contains or constitutes evidential material; or
(b) the occupier of the premises consents in writing.
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Section 154H
432 Competition and Consumer Act 2010
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Notice to occupier
(2) If a thing is moved to another place for the purpose of examination
or processing under subsection (1), the executing officer must, if it
is practicable to do so:
(a) inform the occupier of the address of the place and the time
at which the examination or processing will be carried out;
and
(b) allow the occupier or his or her representative to be present
during the examination or processing.
Period of removal
(3) The thing may be moved to another place for examination or
processing for no longer than 72 hours.
Extensions
(4) An executing officer may apply to a magistrate for one or more
extensions of that time if the executing officer believes on
reasonable grounds that the thing cannot be examined or processed
within 72 hours or that time as previously extended.
(5) The executing officer must give notice of the application to the
occupier of the premises of his or her intention to apply for an
extension, and the occupier is entitled to be heard in relation to the
application.
(6) The magistrate may order an extension for a period specified in the
order if the magistrate is satisfied that the extension is necessary.
154H Operation of electronic equipment at premises
(1) If:
(a) a search warrant is in force in relation to premises; and
(b) the executing officer or an officer assisting believes on
reasonable grounds that any data accessed by operating
electronic equipment at the premises (including data not held
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at the premises) might constitute evidential material of the
kind specified in the warrant;
he or she may do only 1 of 3 things.
Seizure
(2) One thing he or she may do is seize the equipment and any disk,
tape or other associated device.
Note: Subsection (5) sets out limitations on seizure.
Removal of documents
(3) Another thing he or she may do is operate the equipment or other
facilities at the premises to put the data in documentary form and
remove the documents so produced from the premises.
Note: An executing officer can obtain an order requiring a person with
knowledge of a computer or computer system to provide assistance—
see section 154RA.
Removal of disk, tape or other storage device
(4) The final thing he or she may do is operate the equipment or other
facilities at the premises to transfer the data to a disk, tape or other
storage device that:
(a) is brought to the premises; or
(b) is at the premises and the use of which for the purpose has
been agreed to in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the
premises.
Note: An executing officer can obtain an order requiring a person with
knowledge of a computer or computer system to provide assistance—
see section 154RA.
Limitation on seizure
(5) A person may seize a thing under subsection (2) only if:
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434 Competition and Consumer Act 2010
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(a) it is not practicable to put the data in documentary form as
mentioned in subsection (3) or to transfer the data as
mentioned in subsection (4); or
(b) possession of the thing by the occupier could constitute an
offence against a law of the Commonwealth.
154J Securing electronic equipment for use by experts
(1) If a search warrant in relation to premises is being executed and the
executing officer or an officer assisting believes on reasonable
grounds that:
(a) the kind of evidential material specified in the warrant may
be accessible by operating electronic equipment at the
premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the
material may be destroyed, altered or otherwise interfered
with;
he or she may do whatever is necessary to secure the equipment,
whether by locking it up, placing a guard or otherwise.
Notice to occupier
(2) The executing officer or officer assisting must give notice to the
occupier of the premises of his or her intention to secure the
equipment and of the fact that the equipment may be secured for up
to 24 hours.
Period equipment may be secured
(3) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
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Section 154K
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Extensions
(4) If the executing officer or officer assisting believes on reasonable
grounds that the expert assistance will not be available within
24 hours, he or she may apply to a magistrate for an extension of
that period.
(5) The executing officer or officer assisting must give notice to the
occupier of the premises of his or her intention to apply for an
extension, and the occupier is entitled to be heard in relation to the
application.
(6) The magistrate may order an extension for a period specified in the
order if the magistrate is satisfied that the extension is necessary.
Subdivision B—Availability of assistance and use of force in
executing a search warrant
154K Authorisation of officers assisting
The executing officer for a search warrant may, by writing,
authorise a member of the Australian Federal Police, a member of
the staff assisting the Commission, or a consultant, to assist in
executing the warrant.
154L Availability of assistance and use of force in executing a search
warrant
In executing a search warrant:
(a) the executing officer may obtain such assistance as is
necessary and reasonable in the circumstances; and
(b) the executing officer, or another inspector who is an officer
assisting, may use such force against persons and things as is
necessary and reasonable in the circumstances; and
(ba) a member of the Australian Federal Police who is an officer
assisting may use such force against persons and things as is
necessary and reasonable in the circumstances; and
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Section 154M
436 Competition and Consumer Act 2010
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(c) a person who is not an inspector, but who is an officer
assisting, may use such force against things as is necessary
and reasonable in the circumstances.
Subdivision C—Obligations of executing officer and officers
assisting
154M Announcement before entry
(1) Before any person enters premises under a search warrant, the
executing officer must:
(a) announce that he or she is authorised to enter the premises;
and
(b) give any person at the premises an opportunity to allow entry
to the premises.
(2) However, the executing officer is not required to comply with
subsection (1) if he or she believes on reasonable grounds that
immediate entry to the premises is required to ensure that the
effective execution of the warrant is not frustrated.
154N Details of warrant to be given to occupier
If a search warrant in relation to premises is being executed and the
occupier of the premises is present at the premises, the executing
officer or an officer assisting must make available to the occupier a
copy of the warrant or a copy of the form of warrant.
Subdivision D—Occupier’s rights and responsibilities
154P Occupier entitled to observe search being conducted
(1) If a search warrant in relation to premises is being executed and the
occupier of the premises is present at the premises, the occupier is
entitled to observe the search being conducted.
(2) The occupier’s right to observe the search being conducted ends if
the occupier impedes the search.
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Section 154Q
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(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
154Q Occupier to provide reasonable facilities and assistance
The occupier of premises in relation to which a search warrant is
being executed must provide the executing officer and any officer
assisting with all reasonable facilities and assistance for the
effective exercise of their powers.
Penalty: 30 penalty units.
154R Answering of questions or producing evidential material
(1) If a search warrant in relation to premises is being executed, the
executing officer or an officer assisting may:
(a) require a person at the premises to answer questions or
produce evidential material to which the warrant relates; and
(b) seize that evidential material.
(2) A person commits an offence if the person fails to comply with a
requirement under subsection (1).
Penalty: 30 penalty units or imprisonment for 12 months, or both.
Self-incrimination is no excuse
(3) An individual is not excused from answering a question or
producing evidential material on the ground that the answer, or the
production of the material, might tend to incriminate the individual
or make the individual liable to a penalty.
(4) However, the answer is not admissible in evidence against the
individual in any criminal proceedings, other than:
(a) proceedings for an offence against subsection (2); or
(b) proceedings for an offence against section 137.1, 137.2 or
149.1 of the Criminal Code that relates to this Part.
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Section 154RA
438 Competition and Consumer Act 2010
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154RA Person with computer knowledge to assist access etc.
(1) The executing officer for a search warrant may apply to a
magistrate for an order requiring a specified person to provide any
information or assistance that is reasonable and necessary to allow
the officer to do one or more of the following:
(a) access data held in, or accessible from, a computer that is on
premises to which the warrant relates;
(b) transfer the data to a disk, tape or other storage device;
(c) convert the data into documentary form.
(2) The magistrate may grant the order if the magistrate is satisfied
that:
(a) there are reasonable grounds for suspecting that evidential
material is held in, or is accessible from, the computer; and
(b) the specified person is:
(i) reasonably suspected of having committed the
contravention, or one or more of the contraventions,
stated in the search warrant; or
(ii) the owner or lessee of the computer; or
(iii) an employee of the owner or lessee of the computer; and
(c) the specified person has relevant knowledge of:
(i) the computer or a computer network of which the
computer forms a part; or
(ii) measures applied to protect data held in, or accessible
from, the computer.
(3) A person commits an offence if:
(a) the person is subject to an order under this section; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the order.
Penalty for a contravention of this subsection: Imprisonment for
6 months.
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Section 154S
Competition and Consumer Act 2010 439
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Subdivision E—General provisions relating to seizure
154S Copies of seized things to be provided
(1) If, under a search warrant relating to premises, the executing
officer or an officer assisting seizes:
(a) a document, film, computer file or other thing that can be
readily copied; or
(b) a storage device the information in which can be readily
copied;
then he or she must, if requested to do so by the occupier of the
premises, give a copy of the thing or the information to the
occupier as soon as practicable after the seizure.
(2) However, subsection (1) does not apply if possession of the
document, film, computer file, thing or information by the occupier
could constitute an offence against a law of the Commonwealth.
154T Receipts for things seized or moved under warrant
(1) If a thing is seized under a search warrant or moved under
subsection 154GA(1), the executing officer or an officer assisting
must provide a receipt for the thing.
(2) If 2 or more things are seized or moved, they may be covered in
the one receipt.
154U Return of seized things
(1) Subject to any contrary order of a court, if a person (the seizer)
seizes a thing under this Division, the person must return it if:
(a) the reason for its seizure no longer exists or it is decided that
it is not to be used in evidence; or
(b) the period of 120 days after its seizure ends;
whichever first occurs, unless the thing is forfeited or forfeitable to
the Commonwealth or is the subject of a dispute as to ownership.
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Section 154V
440 Competition and Consumer Act 2010
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(2) At the end of the 120 days specified in subsection (1), the seizer
must take reasonable steps to return the thing to the person from
whom it was seized (or to the owner if that person is not entitled to
possess it), unless:
(a) proceedings in respect of which the thing may afford
evidence were instituted before the end of the 120 days and
have not been completed (including an appeal to a court in
relation to those proceedings); or
(b) an inspector may retain the thing because of an order under
section 154V; or
(c) the seizer is otherwise authorised (by a law, or an order of a
court, of the Commonwealth or of a State or Territory) to
retain, destroy or dispose of the thing.
154V Magistrate may permit a thing to be retained
Application for extension
(1) An inspector may apply to a magistrate for an order that he or she
may retain the thing for a further period if:
(a) before the end of 120 days after the seizure; or
(b) before the end of a period previously specified in an order of
a magistrate under this section;
proceedings in respect of which the thing may afford evidence
have not commenced.
Grant of extension
(2) If the magistrate is satisfied that it is necessary for the inspector to
continue to retain the thing for the purposes of an investigation as
to whether there has been:
(a) a contravention of this Act; or
(b) a contravention of Part 20 of the Telecommunications Act
1997; or
(c) a contravention of Part 9 of the Telecommunications
(Consumer Protection and Service Standards) Act 1999; or
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(d) a contravention of section 137.1, 137.2 or 149.1 of the
Criminal Code that relates to this Part;
the magistrate may order that the inspector may retain the thing for
a period (not exceeding 3 years) specified in the order.
Affect on interested parties
(3) Before making the application, the inspector must:
(a) take reasonable steps to discover who has an interest in the
retention of the thing; and
(b) if it is practicable to do so, notify each person whom the
inspector believes to have such an interest of the proposed
application.
154W Disposal of things if there is no owner or owner cannot be
located
If:
(a) a thing is seized under this Division; and
(b) a person would otherwise be required to return the thing to its
owner; and
(c) there is no owner or the person cannot, despite making
reasonable efforts, locate the owner;
the person may dispose of the thing in such manner as he or she
thinks appropriate.
Subdivision F—Search warrants
154X Issue of search warrants
Application for warrant
(1) An inspector may apply to a magistrate for a warrant under this
section in relation to premises.
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Section 154Y
442 Competition and Consumer Act 2010
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Issue of warrant
(2) The magistrate may issue the warrant if the magistrate is satisfied,
by information on oath or affirmation, that there are reasonable
grounds for suspecting that:
(a) there is evidential material on the premises; or
(b) there may be evidential material on the premises within the
next 72 hours.
Note: A magistrate who holds office under a law of a State or Territory may
issue a warrant in relation to premises even if those premises are not
in that State or Territory.
(3) However, the magistrate must not issue the warrant unless the
inspector or some other person has given to the magistrate, either
orally or by affidavit, such further information (if any) as the
magistrate requires concerning the grounds on which the issue of
the warrant is being sought.
Content of warrant
(4) The warrant must state:
(a) a description of the premises to which the warrant relates;
and
(b) the kind of evidential material that is to be searched for under
the warrant (including stating the contraventions to which the
warrant relates); and
(c) the name of the inspector who is to be responsible for
executing the warrant; and
(d) whether the warrant may be executed at any time of the day
or night or during specified hours of the day or night; and
(e) the day (not more than one week after the issue of the
warrant) on which the warrant ceases to have effect.
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Section 154Y
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154Y Search warrants by telephone, fax etc.
Application for warrant
(1) If, in an urgent case, an inspector considers it necessary to do so,
the inspector may apply to a magistrate by telephone, fax or other
electronic means for a warrant under section 154X in relation to
premises.
Voice communication
(2) The magistrate may require communication by voice to the extent
that it is practicable in the circumstances.
Information
(3) Before applying for the warrant, the inspector must prepare an
information of the kind mentioned in subsection 154X(2) in
relation to the premises that sets out the grounds on which the
warrant is sought. If it is necessary to do so, the inspector may
apply for the warrant before the information is sworn or affirmed.
Issue of warrant
(4) If the magistrate is satisfied:
(a) after having considered the terms of the information; and
(b) after having received such further information (if any) as the
magistrate requires concerning the grounds on which the
issue of the warrant is being sought;
that there are reasonable grounds for issuing the warrant, the
magistrate may complete and sign the same warrant that the
magistrate would issue under section 154X if the application had
been made under that section.
Notification
(5) If the magistrate completes and signs the warrant, the magistrate
must inform the applicant, by telephone, fax or other electronic
means, of:
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(a) the terms of the warrant; and
(b) the day on which and the time at which the warrant was
signed; and
(c) the day (not more than one week after the magistrate
completes and signs the warrant) on which the warrant ceases
to have effect.
Form of warrant
(6) The applicant must then complete a form of warrant in the same
terms as the warrant completed and signed by the magistrate,
stating on the form the name of the magistrate and the day on
which and the time at which the warrant was signed.
Completed form of warrant to be given to magistrate
(7) The applicant must also, not later than the day after the day of
expiry or execution of the warrant, whichever is the earlier, send to
the magistrate:
(a) the form of warrant completed by the applicant; and
(b) the information referred to in subsection (3), which must
have been duly sworn or affirmed.
Attachment
(8) The magistrate is to attach to the documents provided under
subsection (7) the warrant completed by the magistrate.
Authority of warrant
(9) A form of warrant duly completed under subsection (6) is authority
for the same powers as are authorised by the warrant signed by the
magistrate.
(10) If:
(a) it is material, in any proceedings, for a court to be satisfied
that an exercise of a power was authorised by this section;
and
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(b) the warrant signed by the magistrate authorising the exercise
of the power is not produced in evidence;
the court must assume, unless the contrary is proved, that the
exercise of the power was not authorised by such a warrant.
154Z Offences relating to warrants
(1) An inspector must not make, in an application for a warrant, a
statement that the inspector knows to be false or misleading in a
material particular.
Penalty: Imprisonment for 2 years.
(2) An inspector must not:
(a) state in a document that purports to be a form of warrant
under section 154Y the name of a magistrate unless that
magistrate issued the warrant; or
(b) state on a form of warrant under that section a matter that, to
the inspector’s knowledge, departs in a material particular
from the form authorised by the magistrate; or
(c) purport to execute, or present to another person, a document
that purports to be a form of warrant under that section that
the inspector knows:
(i) has not been approved by a magistrate under that
section; or
(ii) departs in a material particular from the terms
authorised by a magistrate under that section; or
(d) give to a magistrate a form of warrant under that section that
is not the form of warrant that the inspector purported to
execute.
Penalty: Imprisonment for 2 years.
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Section 154ZA
446 Competition and Consumer Act 2010
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Subdivision G—Powers of magistrates
154ZA Powers conferred on magistrates
(1) A power conferred on a magistrate by this Division is conferred on
the magistrate in a personal capacity and not as a court or a
member of a court. The magistrate need not accept the power
conferred.
(2) A magistrate exercising such a power has the same protection and
immunity as if he or she were exercising that power as, or as a
member of, the court of which the magistrate is a member.
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Division 5—General provisions relating to electronic
equipment
154ZB Operation of electronic equipment at premises
A person may operate electronic equipment at premises in order to
exercise a power under this Part only if he or she believes on
reasonable grounds that the operation of the equipment can be
carried out without damage to the equipment.
154ZC Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of electronic equipment being operated as
mentioned in section 154E, 154F, 154G, 154H or 154J:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or
with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person
who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating
the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the
user of the data or programs, such reasonable compensation for the
damage or corruption as the Commonwealth and the owner or user
agree on.
(3) However, if the owner or user and the Commonwealth fail to
agree, the owner or user may institute proceedings in the Federal
Court of Australia for such reasonable amount of compensation as
the Court determines.
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(4) In determining the amount of compensation payable, regard is to
be had to whether the occupier of the premises, or the occupier’s
employees and agents, if they were available at the time, provided
any appropriate warning or guidance on the operation of the
equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of data or
addition of other data.
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Part XII—Miscellaneous
155 Power to obtain information, documents and evidence
(1) Subject to subsection (2A), if the Commission, the Chairperson or
a Deputy Chairperson has reason to believe that a person is capable
of furnishing information, producing documents or giving evidence
relating to a matter that constitutes, or may constitute, a
contravention of this Act or Division 4A or 4B of Part 3.3 of the
Radiocommunications Act 1992, or is relevant to a designated
communications matter (as defined by subsection (9)) or a
designated water matter (as defined by subsection (9A)) or is
relevant to the making of a decision by the Commission under
subsection 91B(4), 91C(4), 93(3) or (3A) or 93AC(1) or (2) or
95AS(7) or the making of an application under
subsection 95AZM(6), a member of the Commission may, by
notice in writing served on that person, require that person:
(a) to furnish to the Commission, by writing signed by that
person or, in the case of a body corporate, by a competent
officer of the body corporate, within the time and in the
manner specified in the notice, any such information;
(b) to produce to the Commission, or to a person specified in the
notice acting on its behalf, in accordance with the notice, any
such documents; or
(c) to appear before the Commission, or before a member of the
staff assisting the Commission who is an SES employee or an
acting SES employee and who is specified in the notice, at a
time and place specified in the notice to give any such
evidence, either orally or in writing, and produce any such
documents.
(2A) A member of the Commission may not give a notice under
subsection (1) merely because:
(a) a person has refused or failed to comply with a notice under
subsection 95ZK(1) or (2) on the ground that complying with
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the notice would tend to incriminate the person, or to expose
the person to a penalty; or
(b) a person has refused or failed to answer a question that the
person was required to answer by the person presiding at an
inquiry under Part VIIA, on the ground that the answer
would tend to incriminate the person, or to expose the person
to a penalty; or
(c) a person has refused or failed to produce a document referred
to in a summons under subsection 95S(3), on the ground that
production of the document would tend to incriminate the
person, or to expose the person to a penalty.
(3) If a notice under subsection (1) requires a person to appear before
the Commission to give evidence, the Commission may require the
evidence to be given on oath or affirmation. For that purpose, any
member of the Commission may administer an oath or affirmation.
(3A) If a notice under subsection (1) requires a person to appear before a
member of the staff assisting the Commission to give evidence, the
staff member may require the evidence to be given on oath or
affirmation and may administer an oath or affirmation.
(4) A member of the Commission may exercise, or continue to
exercise, a power under subsection (1) in relation to a matter
referred to in that subsection until:
(a) the Commission commences proceedings in relation to the
matter (other than proceedings for an injunction, whether
interim or finan( � or
(b) the close of pleadings in relation to an application by the
Commission for a final injunction in relation to the matter.
(5) A person shall not:
(a) refuse or fail to comply with a notice under this section;
(b) in purported compliance with such a notice, knowingly
furnish information or give evidence that is false or
misleading.
(5A) Paragraph (5)(a) does not apply to the extent that the person is not
capable of complying with the notice.
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Note: A defendant bears an evidential burden in relation to the matters in
subsection (5A), see subsection 13.3(3) of the Criminal Code.
(6A) A person who contravenes subsection (5) is guilty of an offence
punishable on conviction by a fine not exceeding 20 penalty units
or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with
penalties.
(7) A person is not excused from furnishing information or producing
a document in pursuance of this section on the ground that the
information or document may tend to incriminate the person or
expose the person to a penalty, but the answer by an individual to
any question asked in a notice under this section or the furnishing
by an individual of any information in pursuance of such a notice is
not admissible in evidence against the individual in any criminal
proceedings, other than:
(a) proceedings for an offence against this section; or
(b) proceedings for an offence against section 137.1, 137.2 or
149.1 of the Criminal Code that relates to this section.
(7A) This section does not require a person:
(a) to give information or evidence that would disclose the
contents of a document prepared for the purposes of a
meeting of the Cabinet of a State or Territory; or
(b) to produce a document prepared for the purposes of a
meeting of the Cabinet of a State or Territory; or
(c) to give information or evidence, or to produce a document,
that would disclose the deliberations of the Cabinet of a State
or Territory.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (7A), see subsection 13.3(3) of the Criminal Code.
(7B) This section does not require a person to produce a document that
would disclose information that is the subject of legal professional
privilege.
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Note: A defendant bears an evidential burden in relation to the matter in this
subsection (see subsection 13.3(3) of the Criminal Code).
(8) Nothing in this section implies that notices may not be served
under this section and section 155A in relation to the same
conduct.
(9) A reference in this section to a designated communications matter
is a reference to the performance of a function, or the exercise of a
power, conferred on the Commission by or under:
(a) the Telecommunications Act 1997; or
(b) the Telecommunications (Consumer Protection and Service
Standards) Act 1999; or
(ba) the National Broadband Network Companies Act 2011; or
(c) Part XIB or XIC of this Act; or
(d) Division 4A or 4B of Part 3.3 of the Radiocommunications
Act 1992.
(9A) A reference in this section to a designated water matter is a
reference to the performance of a function, or the exercise of a
power, conferred on the Commission by or under:
(a) Part 4 or 4A of the Water Act 2007; or
(b) regulations made under that Act for the purposes of Part 4 of
that Act; or
(c) water charge rules, or water market rules, made under Part 4
of that Act.
(10) In this section:
legal professional privilege includes privilege under Division 1 of
Part 3.10 of the Evidence Act 1995.
155AAA Protection of certain information
(1) A Commission official must not disclose any protected information
to any person except:
(a) when the Commission official is performing duties or
functions as a Commission official; or
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(b) when the Commission official or the Commission is required
or permitted by:
(i) this Act or any other law of the Commonwealth; or
(ii) a prescribed law of a State or internal Territory;
to disclose the information.
(2) Subsection (1) does not allow a Commission official to disclose
protected information when performing a function of the
Commission described in section 28.
Disclosure to Ministers
(3) A Commission official may disclose protected information to the
designated Minister.
(4) If protected information relates to a matter arising under:
(a) a provision of this Act; or
(b) a provision of another Act;
that is administered by a Minister other than the designated
Minister, a Commission official may disclose the protected
information to the other Minister.
(5) Subsection (4) does not limit subsection (3).
Disclosure to Secretaries etc.
(6) A Commission official may disclose protected information to:
(a) the Secretary of the designated Department; or
(b) an officer of the designated Department who is authorised by
the Secretary of that Department, in writing, for the purposes
of this subsection;
for the purpose of advising the designated Minister.
(7) If protected information relates to a matter arising under:
(a) a provision of this Act; or
(b) a provision of another Act;
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that is administered by a Minister other than the designated
Minister, a Commission official may disclose the protected
information to:
(c) the Secretary of the Department that is administered by the
other Minister; or
(d) an officer of that Department who is authorised by the
Secretary of that Department, in writing, for the purposes of
this subsection;
for the purpose of advising the other Minister.
(8) Subsection (7) does not limit subsection (6).
Disclosure to a Royal Commission
(9) A Commission official may disclose protected information to a
Royal Commission.
(10) The Chairperson may, by writing, impose conditions to be
complied with in relation to protected information disclosed under
subsection (9).
(11) An instrument under subsection (10) is not a legislative instrument.
Disclosure to certain agencies, bodies and persons
(12) If the Chairperson is satisfied that particular protected information
will enable or assist any of the following agencies, bodies or
persons:
(a) the Australian Bureau of Statistics;
(b) the Australian Communications and Media Authority;
(c) the Australian Prudential Regulation Authority;
(d) the Australian Securities and Investments Commission;
(e) the National Competition Council;
(f) the Productivity Commission;
(g) any other agency within the meaning of the Freedom of
Information Act 1982;
(h) the Australian Statistician;
(i) the Commissioner of Taxation;
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(j) the Australian Competition Tribunal;
(k) the Director of Public Prosecutions;
(ka) the Telecommunications Universal Service Management
Agency;
(l) the Reserve Bank of Australia;
(la) the Clean Energy Regulator;
(lb) the Climate Change Authority;
(m) a State/Territory government body;
(n) a foreign government body;
to perform or exercise any of the functions or powers of the
agency, body or person, an authorised Commission official may
disclose that protected information to the agency, body or person
concerned.
(13) The Chairperson may, by writing, impose conditions to be
complied with in relation to protected information disclosed under
subsection (12).
(14) An instrument under subsection (13) is not a legislative instrument.
Disclosure with consent
(15) A Commission official may disclose protected information that
relates to the affairs of a person if:
(a) the person has consented to the disclosure; and
(b) the disclosure is in accordance with that consent.
Disclosure of publicly available information
(16) A Commission official may disclose protected information if it is
already publicly available.
Disclosure of summaries or statistics
(17) A Commission official may disclose:
(a) summaries of protected information; or
(b) statistics derived from protected information;
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if those summaries or statistics, as the case may be, are not likely
to enable the identification of a person.
Disclosure authorised by regulations
(18) The regulations may:
(a) authorise a Commission official to disclose protected
information in specified circumstances; and
(b) provide that the Chairperson may, by writing, impose
conditions to be complied with in relation to the disclosure of
protected information in those circumstances.
(19) An instrument under regulations made for the purposes of
paragraph (18)(b) is not a legislative instrument.
Delegation
(20) The Chairperson may, by writing, delegate any or all of his or her
functions and powers under:
(a) this section; or
(b) regulations made for the purposes of subsection (18);
to a member of the Commission.
Definitions
(21) In this section:
authorised Commission official means a Commission official
authorised by the Chairperson, in writing, for the purposes of this
section.
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
core statutory provision means:
(a) a provision of Part IV, V, VII, VIII, XI, XIB or XIC; or
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(b) the remaining provisions of this Act so far as they relate to a
provision covered by paragraph (a); or
(c) a provision of the regulations made under section 172 so far
as it relates to a provision covered by paragraph (a) or (b); or
(d) a provision of the Australian Consumer Law (other than
Part 5-3); or
(e) a provision of the regulations made under section 139G so far
as it relates to a provision covered by paragraph (d).
designated Department means the Department that is responsible
for the administration of this section (other than subsections (4)
and (7)).
designated Minister means the Minister who is responsible for the
administration of this section (other than subsections (4) and (7)).
disclose means divulge or communicate.
foreign country includes a region where:
(a) the region is a colony, territory or protectorate of a foreign
country; or
(b) the region is part of a foreign country; or
(c) the region is under the protection of a foreign country; or
(d) a foreign country exercises jurisdiction or control over the
region; or
(e) a foreign country is responsible for the region’s international
relations.
foreign government body means:
(a) the government of a foreign country; or
(b) an agency or authority of a foreign country; or
(c) the government of part of a foreign country; or
(d) an agency or authority of part of a foreign country.
information includes information in a document and information
given in evidence.
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protected information means:
(a) information that:
(i) was given in confidence to the Commission; and
(ii) relates to a matter arising under a core statutory
provision; or
(b) information that:
(i) was obtained by the Commission under Part XID or
section 155; and
(ii) relates to a matter arising under a core statutory
provision; or
(ba) information that was obtained by the Commission under
paragraph 60FD(2)(b) or section 60FA or 60H; or
(c) information that:
(i) was obtained by the Commission under section 151AU,
152AU, 152CBB or 152CBH or rules in force under
section 151BU; and
(ii) relates to a matter arising under Part XIB or XIC; or
(d) information that was obtained by the Commission under
section 118C, 118G, 118NE or 118NI of the
Radiocommunications Act 1992; or
(e) information that:
(i) was given in confidence to the Commission by a foreign
government body; and
(ii) relates to a matter arising under a provision of a law of a
foreign country or of a part of a foreign country; or
(f) information that:
(i) was obtained by the Commission under section 155; and
(ii) relates to a designated water matter within the meaning
of that section.
For the purposes of this definition, it is immaterial whether the
information was given to or obtained by the Commission before, at
or after the commencement of this section.
Royal Commission has the same meaning as in the Royal
Commissions Act 1902.
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State/Territory government body means:
(a) the government of a State or Territory; or
(b) an agency or authority of a State or Territory.
155AA Protection of Part VB information
(1) A Commission official must not disclose any protected Part VB
information to any person, except:
(a) when the Commission official is performing duties or
functions as a Commission official; or
(b) when the Commission official or the Commission is required
or permitted by law to disclose the information.
(2) Subsection (1) does not allow a Commission official to disclose
protected Part VB information when performing a function of the
Commission described in section 28.
(3) In this section:
Commission official means:
(a) a member, or associate member, of the Commission;
(b) a person referred to in subsection 27(1);
(c) a person engaged under section 27A.
disclose means divulge or communicate.
information includes information in a document and information
given in evidence.
protected Part VB information means:
(a) information that:
(i) was obtained by the Commission under Part XID or
section 155; and
(ii) relates to a matter that arose under Part VB before its
repeal by item 32 of Schedule 1 to the Statute Stocktake
(Regulatory and Other Laws) Act 2009; or
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(b) information that was obtained by the Commission under
section 75AY before its repeal by item 32 of Schedule 1 to
the Statute Stocktake (Regulatory and Other Laws) Act 2009.
155A Power to obtain information and documents in New Zealand
relating to trans-Tasman markets
(1) Where the Commission, the Chairperson or a Deputy Chairperson
has reason to believe that a person is capable of furnishing
information or producing documents relating to a matter that
constitutes, or may constitute, a contravention of section 46A, a
member of the Commission may, by written notice served on the
person in New Zealand, require the person:
(a) to furnish to the Commission, by writing signed by the
person or, in the case of a body corporate, by a competent
officer of the body corporate, within the time and in the
manner specified in the notice, any such information; or
(b) to produce to the Commission, or to a person specified in the
notice acting on behalf of the Commission, in accordance
with the notice, any such documents.
(2) The person may comply with the notice by providing the
information or document to the New Zealand Commerce
Commission for transmission to the Australian Competition and
Consumer Commission.
(3) Nothing in this section implies that notices may not be served
under this section and section 155 in relation to the same conduct.
(4) This section binds the Crown in all its capacities.
155B Australian Competition and Consumer Commission may
receive information and documents on behalf of New
Zealand Commerce Commission
(1) Where, by notice under section 98H of the Commerce Act 1986 of
New Zealand, the New Zealand Commerce Commission requires a
person to furnish any information or produce any document, the
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information or document may be provided to the Australian
Competition and Consumer Commission for transmission to the
New Zealand Commerce Commission.
(2) As soon as practicable after the information or document is
provided to the Australian Competition and Consumer
Commission, the Australian Competition and Consumer
Commission is to transmit it to the New Zealand Commerce
Commission.
(3) A person must not:
(a) contravene a notice under section 98H of the Commerce Act
1986 of New Zealand; or
(b) in purported compliance with such a notice, knowingly
furnish information that is false or misleading in a material
particular.
Penalty: 20 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with
penalties.
(3A) Paragraph (3)(a) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (3A), see subsection 13.3(3) of the Criminal Code.
(4) A person is not excused from furnishing information or producing
a document under a notice under section 98H of the Commerce Act
1986 of New Zealand on the ground that the information, or the
production of the document, may tend to incriminate the person,
but:
(a) any information furnished or document produced under such
a notice; and
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(b) any information, document or thing obtained as a direct or
indirect consequence of furnishing the information or
producing the document;
is not admissible in evidence against the person in any criminal
proceedings, other than proceedings for an offence against
subsection (3).
(5) This section binds the Crown in all its capacities, but nothing in
this section permits the Crown in any of its capacities to be
prosecuted for an offence.
(6) This section applies in and outside Australia.
156 Inspection of documents by Commission
(1) A member of the Commission, or a person authorized by a member
of the Commission, may inspect a document produced in
pursuance of a notice under section 155 or 155A and may make
copies of, or take extracts from, the document.
(2) The Commission may, for the purposes of this Act, take, and retain
for as long as is necessary for those purposes, possession of a
document produced in pursuance of a notice under section 155 or
155A but the person otherwise entitled to possession of the
document is entitled to be supplied, as soon as practicable, with a
copy certified by a member of the Commission under his or her
hand to be a true copy and the certified copy shall be received in all
courts as evidence as if it were the original.
(3) Until such a certified copy is supplied, the Commission shall, at
such times and places as it thinks appropriate, permit the person
otherwise entitled to possession of the document, or a person
authorized by that person, to inspect and make copies of or take
extracts from the document.
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157 Disclosure of documents by Commission
(1) Subject to subsection (1A), if:
(a) a corporation makes an application to the Commission under
section 88, 91A, 91B or 91C or Subdivision B of Division 3
of Part VII; or
(b) the Commission proposes the revocation of an authorization
under subsection 91B(3) or the revocation of an authorization
and the substitution of another authorization under
subsection 91C(3); or
(ba) the Commission proposes to revoke, or to revoke and
substitute, a clearance under section 95AS; or
(c) a proceeding is instituted against a corporation or other
person under section 77, 80, 80AC, 81 or 81A; or
(d) an application is made under, subsection 51ADB(1),
section 86C or 86D or subsection 87(1A) for an order against
a corporation or other person;
the Commission shall, at the request of the corporation or other
person and upon payment of the prescribed fee (if any), furnish to
the corporation or other person:
(e) a copy of every document that has been furnished to, or
obtained by, the Commission in connexion with the matter to
which the application, notice or proceeding relates and tends
to establish the case of the corporation or other person; and
(f) a copy of any other document in the possession of the
Commission that comes to the attention of the Commission
in connexion with the matter to which the application, notice
or proceeding relates and tends to establish the case of the
corporation or other person;
not being a document obtained from the corporation or other
person or prepared by an officer or professional adviser of the
Commission.
(1AA) Subject to subsections (1AB) and (1A), if an application for an
order against a person is made under:
(a) section 137F; or
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(b) subsection 237(1), or section 246 or 247, of the Australian
Consumer Law;
the Commission must, at the request of the person and upon
payment of the prescribed fee (if any), give the person:
(c) a copy of every document that has been given to, or obtained
by, the Commission in connection with the matter to which
the application relates and tends to establish the case of the
person; and
(d) a copy of any other document in the possession of the
Commission that comes to the attention of the Commission
in connection with the matter to which the application relates
and tends to establish the case of the person.
(1AB) Subsection (1AA) does not apply to a document obtained from the
person, or prepared by an officer or professional adviser of the
Commission.
Protected cartel information—Commission may refuse to comply
with request
(1A) If a request under subsection (1) relates to a document containing
protected cartel information, the Commission may refuse to
comply with the request.
(1B) In exercising its powers under subsection (1A), the Commission
must have regard to the following matters:
(a) the fact that the protected cartel information was given to the
Commission in confidence;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international
efforts relating to law enforcement, criminal intelligence and
criminal investigation;
(d) in a case where the protected cartel information was given by
an informant:
(i) the protection or safety of the informant or of persons
associated with the informant; and
(ii) the fact that the production of a document containing
protected cartel information, or the disclosure of
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protected cartel information, may discourage informants
from giving protected cartel information in the future;
(e) the legitimate interests of the corporation which, or the
person who, made the request under subsection (1);
(f) such other matters (if any) as the Commission considers
relevant.
Court order
(2) If the Commission does not comply with a request under
subsection (1) otherwise than because of a refusal under
subsection (1A), the Court shall, subject to subsection (3), upon
application by the corporation which, or other person who, made
the request, make an order directing the Commission to comply
with the request.
(3) The Court may refuse to make an order under subsection (2) in
respect of a document or part of a document if the Court considers
it inappropriate to make the order by reason that the disclosure of
the contents of the document or part of the document would
prejudice any person, or for any other reason.
(4) Before the Court gives a decision on an application under
subsection (2), the Court may require any documents to be
produced to it for inspection.
(5) An order under this section may be expressed to be subject to
conditions specified in the order.
Definition
(6) In this section:
protected cartel information has the same meaning as in
section 157B.
157AA Disclosure of documents by Tribunal in relation to merger
authorisations
(1) If:
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(a) a corporation makes an application to the Tribunal in relation
to an authorisation under Subdivision C of Division 3 of
Part VII; or
(b) the Tribunal proposes to revoke, or to revoke and substitute,
an authorisation granted to the corporation under
section 95AZM;
the Tribunal must, at the request of the corporation and upon
payment of the prescribed fee (if any), give to the corporation:
(c) a copy of every document that has been given to, or obtained
by, the Tribunal in relation to the application or revocation
that tends to establish the corporation’s case; and
(d) a copy of any other document in the Tribunal’s possession
that comes to the Tribunal’s attention in relation to the
application or revocation that tends to establish the
corporation’s case.
(2) However, subsection (1) does not require the Tribunal to give to
the corporation a document that was:
(a) obtained from the corporation; or
(b) prepared by an officer or professional adviser of the Tribunal.
(3) If the Tribunal does not comply with a requirement under
subsection (1), then, subject to subsection (4), the Court must, upon
application by the corporation, make an order directing the
Tribunal to comply with the requirement.
(4) The Court may refuse to make an order under subsection (3) in
respect of a document or part of a document if the Court considers
it inappropriate to make the order by reason that the disclosure of
the contents of the document or part of the document would
prejudice any person, or for any other reason.
(5) Before the Court gives a decision on an application under
subsection (3), the Court may require any documents to be
produced to it for inspection.
(6) An order under this section may be expressed to be subject to
conditions specified in the order.
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157A Disclosure of information by Commission
(1) The Commission or a Commission official may disclose to:
(a) the AER; or
(b) the AEMC; or
(c) any staff or consultant assisting the AER or the AEMC in
performing its functions or exercising its powers;
any information that it obtains under this Act that is relevant to the
functions or powers of the AER or the AEMC.
Note: The Privacy Act 1988 also contains provisions relevant to the use and
disclosure of information.
(2) The AER or a person mentioned in paragraph (1)(c) may use the
information for any purpose connected with the performance of the
AER’s functions or the exercise of its powers.
(3) The AEMC or a person mentioned in paragraph (1)(c) may use the
information for any purpose connected with the performance of the
AEMC’s functions or the exercise of its powers.
(4) The Commission or a Commission official may impose conditions
to be complied with in relation to information disclosed.
(5) In this section:
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
157B Disclosure of protected cartel information to a court or
tribunal
Commission or a Commission official not required to disclose
protected cartel information
(1) The Commission or a Commission official is not to be required:
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(a) to produce to a court or tribunal a document containing
protected cartel information; or
(b) to disclose protected cartel information to a court or tribunal;
except with the leave of the court or tribunal.
(2) In exercising its powers to grant leave under subsection (1), the
court or tribunal must have regard to the following matters:
(a) the fact that the protected cartel information was given to the
Commission in confidence;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international
efforts relating to law enforcement, criminal intelligence and
criminal investigation;
(d) in a case where the protected cartel information was given by
an informant:
(i) the protection or safety of the informant or of persons
associated with the informant; and
(ii) the fact that the production of a document containing
protected cartel information, or the disclosure of
protected cartel information, may discourage informants
from giving protected cartel information in the future;
(e) in the case of a court—the interests of the administration of
justice;
(f) in the case of a tribunal—the interests of securing the
effective performance of the tribunal’s functions;
and must not have regard to any other matters.
(3) If:
(a) a document is produced; or
(b) information is disclosed;
to a court or tribunal in accordance with leave granted under
subsection (1) in relation to particular proceedings, the document
or information must not be adduced in other proceedings before the
court or tribunal except:
(c) in accordance with leave granted under subsection (1) in
relation to the other proceedings; or
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(d) as a result of an exercise of power under subsection (4) in
relation to the other proceedings.
Commission or a Commission official may disclose protected
cartel information
(4) The Commission or a Commission official may:
(a) produce to the court or tribunal a document containing
protected cartel information; or
(b) disclose protected cartel information to the court or tribunal.
(5) In exercising the powers conferred by subsection (4), the
Commission or Commission official must have regard to the
following matters:
(a) the fact that the protected cartel information was given to the
Commission in confidence;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international
efforts relating to law enforcement, criminal intelligence and
criminal investigation;
(d) in a case where the protected cartel information was given by
an informant:
(i) the protection or safety of the informant or of persons
associated with the informant; and
(ii) the fact that the production of a document containing
protected cartel information, or the disclosure of
protected cartel information, may discourage informants
from giving protected cartel information in the future;
(e) in the case of production or disclosure to a court—the
interests of the administration of justice;
(f) in the case of production or disclosure to a tribunal—the
interests of securing the effective performance of the
tribunal’s functions;
and must not have regard to any other matters.
(6) If:
(a) a document is produced; or
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(b) information is disclosed;
to a court or tribunal as a result of an exercise of power under
subsection (4) in relation to particular proceedings, the document
or information must not be adduced in other proceedings before the
court or tribunal except:
(c) in accordance with leave granted under subsection (1) in
relation to the other proceedings; or
(d) as a result of an exercise of power under subsection (4) in
relation to the other proceedings.
Definitions
(7) In this section:
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
disclose means divulge or communicate.
protected cartel information means information that:
(a) was given to the Commission in confidence; and
(b) relates to a breach, or a possible breach, of section 44ZZRF,
44ZZRG, 44ZZRJ or 44ZZRK.
157C Disclosure of protected cartel information to a party to court
proceedings etc.
Commission or Commission official not required to make discovery
of documents containing protected cartel information etc.
(1) If:
(a) a person is a party to proceedings before a court; and
(b) the Commission is not a party to the proceedings;
the Commission or a Commission official is not to be required, in
connection with the proceedings, to:
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(c) make discovery (however described) to the person of a
document containing protected cartel information; or
(d) produce to the person a document containing protected cartel
information.
(2) If:
(a) a person is considering instituting proceedings before a court;
and
(b) the proceedings have not yet been instituted;
the Commission or a Commission official is not to be required, in
connection with the prospective proceedings, to:
(c) make discovery (however described) to the person of a
document containing protected cartel information; or
(d) produce to the person a document containing protected cartel
information.
Commission or Commission official may disclose protected cartel
information
(3) If:
(a) a person is a party to proceedings before a court; and
(b) the Commission is not a party to the proceedings;
the Commission or a Commission official may, on application by
the person:
(c) make a copy of a document containing protected cartel
information; and
(d) give the copy to the person.
(4) If:
(a) a person is considering instituting proceedings before a court;
and
(b) the proceedings have not yet been instituted;
the Commission or a Commission official may, on application by
the person:
(c) make a copy of a document containing protected cartel
information; and
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(d) give the copy to the person.
(5) In exercising the powers conferred by subsection (3) or (4), the
Commission or Commission official must have regard to the
following matters:
(a) the fact that the protected cartel information was given to the
Commission in confidence;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international
efforts relating to law enforcement, criminal intelligence and
criminal investigation;
(d) in a case where the protected cartel information was given by
an informant:
(i) the protection or safety of the informant or of persons
associated with the informant; and
(ii) the fact that the production of a document containing
protected cartel information, or the disclosure of
protected cartel information, may discourage informants
from giving protected cartel information in the future;
(e) the interests of the administration of justice;
and must not have regard to any other matters.
(6) If a copy of a document is given to a party, or prospective party, to
proceedings before a court as a result of an exercise of power under
subsection (3) or (4), the copy must not be adduced in other
proceedings before:
(a) the court; or
(b) another court; or
(c) a tribunal;
except:
(d) as a result of an exercise of power under subsection (3) or (4)
in relation to the other proceedings; or
(e) in accordance with leave granted under subsection 157B(1)
in relation to the other proceedings; or
(f) as a result of an exercise of power under subsection 157B(4)
in relation to the other proceedings.
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Definitions
(7) In this section:
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
protected cartel information means information that:
(a) was given to the Commission in confidence; and
(b) relates to a breach, or a possible breach, of section 44ZZRF,
44ZZRG, 44ZZRJ or 44ZZRK.
157D General powers of a court
Power of a court in a criminal or civil proceeding
(1) The power of a court to control the conduct of a criminal or civil
proceeding, in particular with respect to abuse of process, is not
affected by section 157B or 157C, except so far as that section
expressly or impliedly provides otherwise.
Stay order—criminal proceeding
(2) A refusal by a court to grant leave under subsection 157B(1) does
not prevent the court from later ordering that a criminal proceeding
be stayed on the ground that the refusal would have a substantial
adverse effect on a defendant’s right to receive a fair hearing.
Stay order—civil proceeding
(3) A refusal by a court to grant leave under subsection 157B(1) does
not prevent the court from later ordering that a civil proceeding be
stayed on the ground that the refusal would have a substantial
adverse effect on the hearing in the proceeding.
(4) In deciding whether to order a stay of the civil proceeding, the
court must consider:
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(a) the extent of any financial loss that a party would suffer as a
result of the proceeding being stayed; and
(b) whether a party has reasonable prospects of obtaining a
remedy in the proceeding; and
(c) any other matter the court considers relevant.
158 Protection of members of Tribunal, counsel and witnesses
(1) A member of the Tribunal has, in the performance of his or her
duty as a member, the same protection and immunity as a Justice
of the High Court.
(2) A person appearing before the Tribunal on behalf of a person, or
assisting the Tribunal as counsel, has the same protection and
immunity as a barrister has in appearing for a party in proceedings
in the High Court.
(3) Subject to this Act, a person appearing before the Tribunal or the
Commission to give evidence has the same protection, and is, in
addition to the penalties provided by this Act, subject to the same
liabilities, in any civil or criminal proceedings as a witness in
proceedings in the High Court.
159 Incriminating answers
(1) A person appearing before the Commission to give evidence or
produce documents is not excused from answering a question, or
producing a document, on the ground that the answer to the
question, or the document, may tend to incriminate the person or
expose the person to a penalty.
(2) Evidence given by an individual before the Commission is not
admissible against the individual in any criminal proceedings,
other than:
(a) proceedings for an offence against this Part; or
(b) proceedings for an offence against section 137.1, 137.2 or
149.1 of the Criminal Code that relates to this Part.
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160 Failure of witness to attend
(1) A person served, as prescribed, with a summons to appear as a
witness before the Tribunal shall not:
(a) fail to attend as required by the summons; or
(b) fail to appear and report himself or herself from day to day
unless excused, or released from further attendance, by a
member of the Tribunal.
(1A) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (1A), see subsection 13.3(3) of the Criminal Code.
(2) A person who contravenes subsection (1) is guilty of an offence
punishable on conviction by a fine not exceeding 20 penalty units
or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with
penalties.
161 Refusal to be sworn or to answer questions
(1) A person appearing as a witness before the Tribunal shall not:
(a) refuse or fail to be sworn or to make an affirmation;
(b) refuse or fail to answer a question that he or she is required to
answer by the member presiding at the proceedings; or
(c) refuse or fail to produce a document that he or she was
required to produce by a summons under this Act served on
him or her as prescribed.
(1A) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (1A), see subsection 13.3(3) of the Criminal Code.
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(2) It is a reasonable excuse for an individual to refuse or fail to
answer a question that he or she is required to answer under this
section that the answer to the question may tend to incriminate him
or her.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (2), see subsection 13.3(3) of the Criminal Code.
(3) A person who contravenes subsection (1) is guilty of an offence
punishable on conviction by a fine not exceeding 20 penalty units
or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with
penalties.
162 Contempt
(1) A person shall not:
(a) insult a member of the Tribunal, a member of the
Commission or an AER member in the exercise of his or her
powers or functions as a member;
(b) interrupt the proceedings of the Tribunal or a conference held
by the Commission under section 90 or 93A, Division 3 of
Part XI or section 151AZ;
(c) create a disturbance, or take part in creating or continuing a
disturbance, in or near a place where the Tribunal is sitting or
the Commission is holding such a conference; or
(d) do any other act or thing that would, if the Tribunal were a
court of record, constitute a contempt of that court.
(2) A person who contravenes subsection (1) is guilty of an offence
punishable on conviction by a fine not exceeding 20 penalty units
or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with
penalties.
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162A Intimidation etc.
A person who:
(a) threatens, intimidates or coerces another person; or
(b) causes or procures damage, loss or disadvantage to another
person;
for or on account of that other person proposing to furnish or
having furnished information, or proposing to produce or having
produced documents, to the Commission, the Tribunal or the AER,
or for or on account of the other person proposing to appear or
having appeared as a witness before the Tribunal is guilty of an
offence punishable on conviction by a fine not exceeding 20
penalty units or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with
penalties.
163 Prosecutions
(1) Prosecutions for offences against this Act may be brought in any
court having jurisdiction in the matter.
(2) In so far as this section has effect as a law of the Commonwealth,
the Federal Court has jurisdiction in any matter in respect of which
a criminal proceeding is instituted for an offence to which
subsection (1) applies, and that jurisdiction is exclusive of the
jurisdiction of any other court other than:
(a) the jurisdiction of a Supreme Court of a State or Territory
under section 68 of the Judiciary Act 1903 with respect to
any matter in respect of which a criminal proceeding is
instituted for an offence against section 44ZZRF or 44ZZRG;
and
(b) the jurisdiction of a court under section 68 of the Judiciary
Act 1903 with respect to the examination and commitment
for trial on indictment of a person who is charged with an
indictable offence; and
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(c) the jurisdiction of the High Court under section 75 of the
Constitution.
(4) Proceedings under this section, other than proceedings instituted
by:
(aa) the Director of Public Prosecutions; or
(a) the Commission; or
(b) a person authorised in writing by the Commission; or
(c) a person authorised in writing by the Secretary of the
Department;
shall not be instituted except with the consent in writing of the
Minister or of a person authorised by the Minister in writing to
give such consents.
(5) A prosecution for an offence against section 118, 154Q, 155 or
155B may be commenced at any time after the commission of the
offence.
(6) Despite subsection (2), the Federal Court does not have jurisdiction
in any matter in respect of which a criminal proceeding is instituted
for an offence against section 44ZZRF or 44ZZRG if the
proceeding is instituted before the commencement of Schedule 1 to
the Federal Court of Australia Amendment (Criminal Jurisdiction)
Act 2009.
163A Declarations and orders
Declarations and orders
(1) Subject to this section, a person may, in relation to a matter arising
under this Act, institute a proceeding in a court having jurisdiction
to hear and determine proceedings under this section seeking the
making of:
(a) a declaration in relation to the operation or effect of any
provision of this Act other than the following provisions:
(i) Part V;
(ii) Part XIB;
(iii) Part XIC; or
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(aaa) a declaration in relation to the operation or effect of any
provision of the Australian Consumer Law other than
Division 1 of Part 3-2 or Part 5-4; or
(aa) a declaration in relation to the validity of any act or thing
done, proposed to be done or purporting to have been done
under this Act; or
(b) an order by way of, or in the nature of, prohibition, certiorari
or mandamus;
or both such a declaration and such an order.
(1A) Subsection (1) does not apply in relation to a matter arising under
Part IIIAA.
When Minister may institute, or intervene in, proceedings
(2) Subject to subsection (2A), the Minister may institute a proceeding
under this section and may intervene in any proceeding instituted
under this section or in a proceeding instituted otherwise than
under this section in which a party is seeking the making of a
declaration of a kind mentioned in paragraph (1)(a) or (aa) or an
order of a kind mentioned in paragraph (1)(b).
(2A) Subsections (1) and (2) do not permit the Minister:
(a) to institute a proceeding seeking a declaration, or an order
described in paragraph (1)(b), that relates to Part IV; or
(b) to intervene in a proceeding so far as it relates to a matter that
arises under Part IV.
When Commission may institute proceedings
(3) The Commission may institute a proceeding in the Court seeking,
in relation to a matter arising under this Act, the making of a
declaration of the kind that may be made under paragraph (1)(a).
Jurisdiction of Federal Court
(3A) Subject to subsections (4B) and (4C), in so far as this section has
effect as a law of the Commonwealth, the Federal Court has
jurisdiction to hear and determine proceedings under this section.
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(4) The jurisdiction of the Federal Court under subsection (3A) to
make:
(a) a declaration in relation to the validity of any act or thing
done, proposed to be done or purporting to have been done
under this Act by the Tribunal; or
(b) an order of a kind mentioned in paragraph (1)(b) directed to
the Tribunal;
shall be exercised by not less than 3 Judges.
Jurisdiction of State/Territory Supreme Courts etc.
(4A) In so far as this section has effect as a law of the Commonwealth,
the Supreme Court of a State or Territory does not have
jurisdiction to hear and determine proceedings under this section
otherwise than in accordance with subsection (4B) or (4C). This
subsection has effect despite any other law, including section 39 of
the Judiciary Act 1903.
(4B) If a decision to prosecute a person for an offence against
section 44ZZRF or 44ZZRG has been made and the prosecution is
proposed to be commenced in the Supreme Court of a State or
Territory:
(a) the Federal Court does not have jurisdiction with respect to
any matter in which a person seeks the making of a
paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in
relation to that decision; and
(b) if the Supreme Court is the Supreme Court of a State—in so
far as this section has effect as a law of the Commonwealth,
the Supreme Court is invested with federal jurisdiction with
respect to any such matter; and
(c) if the Supreme Court is the Supreme Court of a Territory,
then:
(i) in so far as this section has effect as a law of the
Commonwealth; and
(ii) subject to the Constitution;
the Supreme Court is conferred with jurisdiction with respect
to any such matter.
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(4C) Subject to subsection (4D), at any time when:
(a) a prosecution for an offence against section 44ZZRF or
44ZZRG is before the Supreme Court of a State or Territory;
or
(b) an appeal arising out of such a prosecution is before the
Supreme Court of a State or Territory;
the following apply:
(c) the Federal Court does not have jurisdiction with respect to
any matter in which the person who is or was the defendant
in the prosecution seeks the making of a paragraph (1)(aa)
declaration, or a paragraph (1)(b) order, in relation to a
related criminal justice process decision;
(d) if the Supreme Court is the Supreme Court of a State—in so
far as this section has effect as a law of the Commonwealth,
the Supreme Court is invested with federal jurisdiction with
respect to any such matter;
(e) if the Supreme Court is the Supreme Court of a Territory,
then:
(i) in so far as this section has effect as a law of the
Commonwealth; and
(ii) subject to the Constitution;
the Supreme Court is conferred with jurisdiction with respect
to any such matter.
(4D) Subsection (4C) does not apply if, before the commencement of a
prosecution for an offence against section 44ZZRF or 44ZZRG, a
person seeks the making of a paragraph (1)(aa) declaration, or a
paragraph (1)(b) order, in relation to a related criminal justice
process decision.
(4E) If subsection (4D) applies, the prosecutor may apply to the Federal
Court for a permanent stay of the paragraph (1)(aa) or (b)
proceedings referred to in that subsection, and the Federal Court
may grant such a stay if the Federal Court determines that:
(a) the matters the subject of the proceedings are more
appropriately dealt with in the criminal justice process; and
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(b) a stay of proceedings will not substantially prejudice the
person.
Definitions
(5) In this section, proceeding includes a cross-proceeding.
(6) In this section:
related criminal justice process decision has the same meaning as
in section 39B of the Judiciary Act 1903.
165 Inspection of, furnishing of copies of, and evidence of,
documents
(1) A person may, on application in accordance with the regulations
and on payment of the prescribed fee (if any):
(a) inspect any document contained in the register kept under
subsection 89(3) or 95(1) or section 95AH; and
(b) obtain a copy of such a document (including, where the
person so requests, a copy certified to be a true copy under
the hand of a person authorized by the Commission to certify
such copies).
(2) Subject to subsection (3) and to any direction under
subsection 106(2), a person may, on application in accordance with
the regulations and on payment of the prescribed fee (if any):
(a) inspect the document recording a declaration under
section 50A or a determination of the Tribunal or any
document furnished to, or recorded in the records of, the
Tribunal in pursuance of this Act or the regulations; and
(b) obtain a copy of such a document (including, where the
person so requests, a copy certified to be a true copy under
the hand of the Registrar or of a Deputy Registrar).
(3) Unless the Tribunal in a particular case otherwise directs,
subsection (2) does not apply in relation to a document furnished to
the Tribunal if the person by whom the document was furnished
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claims, as prescribed, that the document contains matter of a
confidential nature.
(3A) Subject to any direction under subsection 106(2), a person may, on
application in accordance with the regulations and on payment of
the prescribed fee (if any):
(a) inspect any document contained in the register kept under
section 95AZ; and
(b) obtain a copy of such a document (including, where the
person so requests, a copy certified to be a true copy by the
Registrar or a Deputy Registrar).
(4) A copy of a determination of the Commission, certified to be a true
copy by a person authorized by the Commission to certify copies
of determinations of the Commission, shall be received in all
courts as evidence of the determination.
(5) A document purporting to be a copy of a determination of the
Commission and to be certified to be a true copy in accordance
with subsection (4) shall, unless the contrary is established, be
deemed to be such a copy and to be so certified.
(6) A copy of a declaration under section 50A or a determination of, or
undertaking given to, the Tribunal, certified to be a true copy under
the hand of the Registrar or of a Deputy Registrar, shall be
received in all courts as evidence of the declaration, determination
or undertaking.
166 Certificates as to furnishing of particulars to Commission
(1) Where particulars of, or of a provision of, a contract, arrangement
or understanding have been furnished to the Commission for the
purposes of paragraph 51(2)(g), the Commission shall, on
application by a party to the contract or to the arrangement or
understanding, cause to be furnished to the party a certificate
signed by a member of the Commission specifying the particulars
so furnished and the date on which the particulars were furnished.
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(2) A certificate referred to in subsection (1) shall be received in all
courts as evidence that the particulars specified in the certificate
were furnished to the Commission on the date so specified.
(3) A person is not entitled to inspect any particulars of, or of a
provision of, a contract, arrangement or understanding that have
been furnished to the Commission for the purposes of
paragraph 51(2)(g), but the Commission may make those
particulars available to the Minister or to an officer acting on
behalf of, and with the authority of, the Minister or to a court.
167 Judicial notice
(1) All courts shall take judicial notice of:
(a) the official signature of any person who holds or has held the
office of President, Deputy President, member of the
Tribunal, Chairperson, Deputy Chairperson, member of the
Commission, Registrar, Deputy Registrar, AER Chair or
AER member and of the fact that that person holds or has
held that office; and
(b) the official seal of the Tribunal, of the Commission or of the
AER;
if the signature or seal purports to be attached or appended to an
official document.
(1A) All courts must take judicial notice of:
(a) the official signature of a person who holds or has held the
office of Chairman, Deputy Chairman, or member (including
associate member) of the New Zealand Commerce
Commission and of the fact that the person holds or has held
the office; and
(b) the imprint of the common seal of the New Zealand
Commerce Commission;
if the signature or imprint purports to be attached or appended to an
official document.
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(2) In this section, court includes a Federal Court or a court of a State
or Territory and all persons authorized by law or by consent of
parties to receive evidence.
170 Legal and financial assistance
(1) A person:
(a) who has instituted, or proposes to institute, a proceeding
before the Commission or the Tribunal, or a proceeding
before the Court under Part IVB, Part VI or section 163A, or
under Part 3-5 or Chapter 5 of the Australian Consumer Law;
(b) who is entitled to participate, or has been permitted to
intervene, in a proceeding before the Commission or the
Tribunal; or
(c) against whom a proceeding before the Court has been
instituted under Part IVB, Part VI or section 163A, or under
Part 3-5 or Chapter 5 of the Australian Consumer Law;
may apply to the Attorney-General for a grant of assistance under
this section in respect of the proceeding.
(2) Where an application is made by a person under subsection (1), the
Attorney-General, or a person appointed or engaged under the
Public Service Act 1999 (the public servant) authorized in writing
by the Attorney-General, may, if he or she is satisfied that it would
involve hardship to that person to refuse the application and that, in
all the circumstances, it is reasonable that the application should be
granted, authorize the grant by the Commonwealth to the person,
either unconditionally or subject to such conditions as the
Attorney-General or public servant determines, of such legal or
financial assistance in relation to the proceeding as the
Attorney-General or public servant determines.
(3) In this section:
(a) a reference to a proceeding before the Commission is a
reference to a proceeding in relation to an application for, or
in relation to the revocation of, an authorisation under
Division 1 of Part VII or a clearance under Division 3 of
Part VII; and
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(b) a reference to a proceeding before the Tribunal is a reference
to:
(i) an application to the Tribunal for a declaration under
subsection 50A(1); or
(ii) a proceeding in relation to an application for, or the
revocation of, an authorisation under Division 3 of
Part VII; or
(iii) an application for a review of a determination, or of the
giving of a notice, by the Commission.
171 Annual report by Commission
(1) The Commission shall, within 60 days after each year ending on
30 June, furnish to the Minister, for presentation to the Parliament,
a report with respect to its operations in that year.
(2) The report must include a cumulative list of all Commonwealth,
State and Territory laws that the Commission knows about that
authorise things for the purposes of subsection 51(1) of this Act or
subsection 51(1) of the Competition Code (as defined in
section 150A).
(3) The report must also include:
(aa) details of the time taken by the Commission to:
(i) make final determinations under section 44V in relation
to access disputes; and
(ii) make decisions on access undertaking applications
(within the meaning of section 44B) or access code
applications (within the meaning of that section); and
(iii) make decisions on applications under
subsection 44PA(1) (about government tendering); and
(a) the number of:
(i) notices given by the Commission under section 155; and
(iii) notices given by the Commission under section 155A;
and
(b) a general description of the nature of the matters in respect of
which the notices were given; and
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(c) the number of proceedings brought to challenge the validity
of the notices; and
(ca) the number of search warrants issued by a judge under
section 135Z or signed by a judge under section 136; and
(d) the number of search warrants issued by a magistrate under
section 154X or signed by a magistrate under section 154Y;
and
(da) a general description of the nature of the matters in respect of
which the search warrants referred to in paragraph (ca) or (d)
were issued or signed; and
(db) the number of proceedings brought to challenge the validity
of the search warrants referred to in paragraph (ca) or (d);
and
(dc) the number of entries onto premises under section 133B or
133C, Division 6 of Part XI or Part XID; and
(e) the number of complaints received by the Commission; and
(f) a general summary of the kinds of complaints received by the
Commission and how it dealt with them; and
(g) a general description of the major matters investigated by the
Commission; and
(h) the number of times the Commission has intervened in
proceedings and a general description of the reasons for
doing so.
171A Charges by the Commission
(1) The Commission may make a charge of an amount, or at a rate,
determined by the Commission for:
(a) supplying a person with material published by the
Commission in the course of carrying out its functions or
exercising its powers; or
(b) permitting a person to attend or take part in a prescribed
activity arranged by or on behalf of the Commission for the
purpose of carrying out any of its functions.
(2) Where:
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(a) the Commission provides a discretionary service for a
person; and
(b) this Act does not otherwise provide for a charge for the
service;
the Commission may make a charge of such amount, or at such a
rate, as is agreed between the Commission and the person.
(3) In this section, a reference to the provision by the Commission of a
discretionary service for a person is a reference to the doing of an
act by the Commission, being a prescribed act that:
(a) the Commission has power to do but is not required to do by
or under any law; and
(b) the Commission does at the person’s request.
171B Division 3 of Part IIIA does not confer judicial power on the
Commission
(1) Division 3 of Part IIIA has no effect to the extent (if any) to which
it purports to confer judicial power on the Commission.
(2) In this section:
judicial power means the judicial power of the Commonwealth
referred to in section 71 of the Constitution.
172 Regulations
(1) The Governor-General may make regulations, not inconsistent with
this Act, prescribing all matters that are required or permitted by
this Act (other than Schedule 2) to be prescribed or are necessary
or convenient to be prescribed for carrying out or giving effect to
this Act (other than Schedule 2) and, in particular, prescribing:
(a) matters in connexion with the procedure of the Tribunal, the
Commission and the AER; and
(b) the fees and expenses of witnesses in proceedings before the
Tribunal and the Commission; and
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(c) matters for and in relation to the costs, if any, that may be
awarded by the Court in proceedings before the Court under
this Act; and
(d) the fees payable to the Commission on making a prescribed
application, or giving a prescribed notice, to the Commission
under this Act or the regulations.
(1B) Regulations made for the purposes of paragraph (1)(a) or (b) do not
apply in relation to the functions of the Tribunal under a
State/Territory energy law or a designated Commonwealth energy
law.
Note: See section 44ZZR.
(2) The regulations may, either unconditionally or subject to such
conditions as are specified in the regulations, exempt from the
application of this Act (other than Part IV or Schedule 2) or of
specified provisions of this Act (other than Part IV or Schedule 2):
(a) conduct engaged in by a specified organization or body that
performs functions in relation to the marketing of primary
products;
(b) a prescribed contract or proposed contract, contracts included
in a prescribed class of contracts, or prescribed conduct,
being a contract, proposed contract or class of contracts
made, or conduct engaged in, in pursuance of or for the
purposes of a specified agreement, arrangement or
understanding between the Government of Australia and the
Government of a country outside Australia; or
(c) prescribed conduct engaged in in the course of a business
carried on by the Commonwealth or by a prescribed authority
of the Commonwealth.
(2A) The regulations may prescribe the circumstances in which the
Commission may, on behalf of the Commonwealth, wholly or
partly waive the fee that would otherwise be payable for an
application referred to in subsection 89(1).
(2B) Subsection (2A) does not apply to an application for an
authorisation under subsection 88(9), a minor variation of such an
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authorisation, a revocation of such an authorisation or a revocation
of such an authorisation and the substitution of another
authorisation.
(3) Strict compliance with a form of application or notice prescribed
for the purposes of this Act is not, and shall be deemed never to
have been, required and substantial compliance is, and shall be
deemed always to have been, sufficient.
173 Authorisation for the purposes of subsection 51(1)
(1) In deciding whether a person (including a corporation) has
contravened section 50 of this Act, the vesting of ownership of
primary products in the person by legislation is to be taken, for the
purposes of subparagraph 51(1)(a)(i), to be specified in, and
specifically authorised by, this section.
(2) In this section:
primary products means:
(a) agricultural or horticultural produce, including produce that
has been subjected to a manufacturing process; or
(b) crops, whether on or attached to the land or not; or
(c) animals (whether dead or alive); or
(d) the bodily produce (including natural increase) of animals.
Note: An example of agricultural produce that has been subjected to a
manufacturing process is sugar cane that has been transformed into
raw sugar.
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Part XIII—Application and transitional provisions
relating to the competition provisions
Division 1—Cartel conduct
174 Definitions
In this Division:
commencement time means the commencement of Division 1 of
Part IV.
175 Giving effect after the commencement time to a cartel provision
in existence before that time
The following provisions of this Act:
(a) paragraph 88(1A)(b);
(b) paragraph 93AB(1A)(c);
(c) paragraph 93AB(1A)(d);
apply in relation to a contract or arrangement made, or an
understanding arrived at, before, at or after the commencement
time.
176 Proceedings relating to price-fixing contraventions taking place
before the commencement time
Despite the repeal of section 76D by the Trade Practices
Amendment (Cartel Conduct and Other Measures) Act 2009, that
section continues to apply, in relation to proceedings (whether
instituted before or after the commencement time) in relation to a
contravention that took place before the commencement time, as if
that repeal had not happened.
177 Authorisations in force before the commencement time
(1) This section applies if:
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(a) an authorisation (the pre-commencement authorisation) was
granted to a person to give effect to a provision of a contract,
arrangement or understanding; and
(b) the provision is a cartel provision; and
(c) the authorisation was in force immediately before the
commencement time.
(2) This Act has effect, after the commencement time, as if:
(a) the Commission had, at the commencement time, granted to
the person an authorisation under subsection 88(1A) to give
effect to the cartel provision; and
(b) the day specified in the subsection 88(1A) authorisation as
the day the authorisation comes into force were the day on
which Division 1 of Part IV commenced; and
(c) if, immediately before the commencement time, the
pre-commencement authorisation was expressed to be in
force for a period (the initial period) specified in that
authorisation—the subsection 88(1A) authorisation were
expressed to be in force for a period specified in the
subsection 88(1A) authorisation, and that period were the
period:
(i) starting at the commencement time; and
(ii) ending at the end of the initial period; and
(d) any requirements for the granting of the subsection 88(1A)
authorisation were satisfied.
(3) Subsection (2) does not prevent the subsection 88(1A)
authorisation from being varied, revoked or set aside in accordance
with this Act.
178 Notifications in force before the commencement time
(1) This section applies if:
(a) a person gave the Commission a collective bargaining notice
under subsection 93AB(1) in relation to a proposal to give
effect to a provision of a contract, arrangement or
understanding; and
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(b) the provision is a cartel provision of the kind referred to in
paragraph 93AB(1A)(c) or (d); and
(c) the subsection 93AB(1) notice is in force immediately before
the commencement time.
(2) This Act has effect, after the commencement time, as if:
(a) the person had, at the commencement time, given the
Commission a collective bargaining notice under
subsection 93AB(1A) in relation to a proposal to give effect
to the cartel provision; and
(b) despite subsections 93AD(1) and (2), the
subsection 93AB(1A) notice had come into force at the
commencement time; and
(c) despite paragraph 93AD(3)(c), the period applicable to the
subsection 93AB(1A) notice for the purposes of
paragraph 93AD(3)(c) were the period:
(i) starting at the commencement time; and
(ii) ending at the end of the period of 3 years starting on the
day the person gave the subsection 93AB(1) notice to
the Commission; and
(d) any requirements for the giving of the subsection 93AB(1A)
notice were satisfied.
(3) Subsection (2) does not prevent the subsection 93AB(1A) notice
from ceasing to be in force in accordance with this Act.
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Division 2 Application of amendments made by the Competition and Consumer
Legislation Amendment Act 2011
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Division 2—Application of amendments made by the
Competition and Consumer Legislation
Amendment Act 2011
179 Amendments of section 50
The amendments of section 50 made by Schedule 1 to the
Competition and Consumer Legislation Amendment Act 2011
apply to acquisitions occurring after the commencement of that
Schedule.
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