Prepared by the Office of Parliamentary Counsel, Canberra
Competition and Consumer Act 2010
No. 51, 1974
Compilation No. 118
Compilation date: 6 April 2019
Includes amendments up to: Act No. 49, 2019
Registered: 23 April 2019
This compilation is in 3 volumes
Volume 1: sections 1–110
Volume 2: sections 10.01–185
Volume 3: Schedules
Endnotes
Each volume has its own contents
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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 6 April 2019 (the compilation date).
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 the Legislation Register (www.legislation.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 the Legislation Register 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.
Editorial changes
For more information about any editorial changes made in this compilation, see
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 the Legislation
Register 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If a provision of the compiled law has been repealed in accordance with a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 I—Preliminary 1 1 Short title...........................................................................1
2 Object of this Act ..............................................................1
2A Application of Act to Commonwealth and
Commonwealth authorities................................................1
2B Application of Act to States and Territories ......................2
2BA Application of Part IV to local government bodies ...........2
2C Activities that are not business ..........................................3
3 Repeal................................................................................4
4 Interpretation .....................................................................5
4A Subsidiary, holding and related bodies corporate ............16
4B Consumers.......................................................................19
4C Acquisition, supply and re-supply ...................................21
4E Market .............................................................................22
4F References to purpose or reason......................................22
4G Lessening of competition to include preventing or
hindering competition......................................................23
4H Application of Act in relation to leases and
licences of land and buildings .........................................23
4J Joint ventures ..................................................................24
4K Loss or damage to include injury ....................................24
4KA Definitions etc. that do not apply in Part XI or
Schedule 2 .......................................................................25
4L Severability .....................................................................25
4M Saving of law relating to restraint of trade and
breaches of confidence ....................................................25
4N Extended application of Part IIIA....................................25
5 Extended application of this Act to conduct
outside Australia..............................................................26
6 Extended application of this Act to persons who
are not corporations .........................................................27
6AA Application of the Criminal Code ...................................34
Part II—The Australian Competition and Consumer
Commission 35 6A Establishment of Commission .........................................35
7 Constitution of Commission............................................36
8 Terms and conditions of appointment .............................36
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8A Associate members..........................................................37
8AB State/Territory AER members taken to be
associate members...........................................................38
9 Remuneration ..................................................................38
10 Deputy Chairpersons .......................................................39
11 Acting Chairperson..........................................................40
12 Leave of absence .............................................................40
13 Termination of appointment of members of the
Commission.....................................................................41
14 Termination of appointment of associate members
of the Commission ..........................................................41
15 Resignation......................................................................42
16 Arrangement of business .................................................42
17 Disclosure of interests by Chairperson ............................42
17A Disclosure of certain interests by members of the
Commission when taking part in determinations of
matters .............................................................................42
18 Meetings of Commission.................................................43
19 Chairperson may direct Commission to sit in
Divisions .........................................................................44
25 Delegation by Commission .............................................45
26 Delegation by Commission of certain functions
and powers ......................................................................46
27 Staff of Commission........................................................46
27A Consultants......................................................................47
28 Functions of Commission in relation to
dissemination of information, law reform and
research ...........................................................................47
29 Commission to comply with directions of Minister
and requirements of the Parliament .................................48
Part IIA—The National Competition Council 50 29A Establishment of Council ................................................50
29B Functions and powers of Council ....................................50
29BA Commonwealth consent to conferral of functions
etc. on Council.................................................................51
29BB How duty is imposed.......................................................52
29BC When a State/Territory energy law imposes a duty .........53
29C Membership of Council...................................................53
29D Terms and conditions of office ........................................53
29E Acting Council President.................................................54
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29F Remuneration of Councillors ..........................................54
29G Leave of absence .............................................................54
29H Termination of appointment of Councillors ....................55
29I Resignation of Councillors ..............................................55
29J Arrangement of Council business....................................55
29L Council meetings.............................................................56
29LA Resolutions without meetings..........................................56
29M Staff to help Council........................................................57
29N Consultants......................................................................57
29O Annual report ..................................................................57
Part III—The Australian Competition Tribunal 59 30 Constitution of Tribunal ..................................................59
31 Qualifications of members of Tribunal............................59
31A Appointment of Judge as presidential member of
Tribunal not to affect tenure etc. .....................................59
32 Terms and conditions of appointment .............................60
33 Remuneration and allowances of members of
Tribunal ...........................................................................60
34 Acting appointments........................................................60
35 Suspension and removal of members of Tribunal ...........62
36 Resignation......................................................................62
37 Constitution of Tribunal for particular matters ................63
38 Validity of determinations...............................................63
39 President may give directions..........................................63
40 Disclosure of interests by members of Tribunal ..............63
41 Presidential member to preside........................................64
42 Decision of questions ......................................................64
43 Member of Tribunal ceasing to be available ...................64
43A Counsel assisting Tribunal ..............................................65
43B Consultants......................................................................65
44 Staff of Tribunal ..............................................................66
44A Acting appointments........................................................66
Part IIIAA—The Australian Energy Regulator (AER) 67
Division 1—Preliminary 67
44AB Definitions.......................................................................67
44AC This Part binds the Crown ...............................................67
44AD Extra-territorial operation................................................67
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Division 2—Establishment of the AER 69
44AE Establishment of the AER ...............................................69
44AF AER to hold money and property on behalf of the
Commonwealth ...............................................................69
44AG Constitution of the AER ..................................................69
Division 3—Functions and powers of the AER 70
44AH Commonwealth functions................................................70
44AI Commonwealth consent to conferral of functions
etc. on AER .....................................................................70
44AIA No merits review of AER decisions ................................71
44AJ How duty is imposed.......................................................71
44AK When a State/Territory energy law etc. imposes a
duty..................................................................................72
44AL Powers of the AER ..........................................................73
Division 4—Administrative provisions relating to the AER 74
Subdivision A—Appointment etc. of members 74
44AM Appointment of Commonwealth AER member ..............74
44AN Membership of AER and Commission............................74
44AO Acting appointment of Commonwealth AER
member............................................................................75
44AP Appointment of State/Territory AER members...............75
44AQ Acting appointment of State/Territory AER
member............................................................................76
44AR AER Chair .......................................................................76
44AS Acting AER Chair ...........................................................77
44AT Remuneration of AER members......................................77
44AU Additional remuneration of AER Chair...........................78
44AV Leave of absence .............................................................78
44AW Other terms and conditions..............................................78
44AX Outside employment........................................................78
44AY Disclosure of interests .....................................................79
44AZ Resignation......................................................................79
44AAB Termination of appointment ............................................79
Subdivision B—Staff etc. to assist the AER 80
44AAC Staff etc. to assist the AER ..............................................80
Subdivision C—Meetings of the AER etc. 81
44AAD Meetings..........................................................................81
44AAE Resolutions without meetings..........................................81
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44AAEA Arbitration .......................................................................82
Subdivision D—Miscellaneous 82
44AAF Confidentiality.................................................................82
44AAG Federal Court may make certain orders...........................84
44AAGA Federal Court may order disconnection if an event
specified in the National Electricity Rules occurs ...........86
44AAH Delegation by the AER....................................................87
44AAI Fees .................................................................................87
44AAK Regulations may deal with transitional matters ...............87
Part IIIAB—Application of the finance law 89 44AAL Application of the finance law.........................................89
Part IIIA—Access to services 90
Division 1—Preliminary 90
44AA Objects of Part.................................................................90
44B Definitions.......................................................................90
44C How this Part applies to partnerships and joint
ventures ...........................................................................94
44CA Meaning of declaration criteria ......................................95
44D Meaning of designated Minister......................................96
44DA The principles in the Competition Principles
Agreement have status as guidelines ...............................97
44E This Part binds the Crown ...............................................98
Division 2—Declared services 99
Subdivision A—Recommendation by the Council 99
44F Person may request recommendation ..............................99
44FA Council may request information ..................................101
44G Criteria for the Council recommending declaration
of a service ....................................................................102
44GA Time limit for Council recommendations......................102
44GB Council may invite public submissions on the
application .....................................................................104
44GC Council must publish its recommendation.....................106
Subdivision B—Declaration by the designated Minister 107
44H Designated Minister may declare a service ...................107
44HA Designated Minister must publish his or her
decision .........................................................................107
44I Duration and effect of declaration .................................108
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44J Revocation of declaration..............................................109
44K Review of declaration....................................................110
44KA Tribunal may stay operation of declaration ...................111
44KB Tribunal may order costs be awarded............................113
44L Review of decision not to revoke a declaration .............114
Division 2AA—Services that are ineligible to be declared 116
Subdivision A—Scope of Division 116
44LA Constitutional limits on operation of this Division........116
Subdivision B—Ineligibility recommendation by Council 116
44LB Ineligibility recommendation ........................................116
44LC Council may request information ..................................118
44LD Time limit for Council recommendations......................119
44LE Council may invite public submissions on the
application .....................................................................121
44LF Council must publish its recommendation.....................122
Subdivision C—Designated Minister’s decision on ineligibility 123
44LG Designated Minister’s decision on ineligibility .............123
44LH Designated Minister must publish his or her
decision .........................................................................125
Subdivision D—Revocation of ineligibility decision 125
44LI Revocation of ineligibility decision...............................125
Subdivision E—Review of decisions 127
44LJ Review of ineligibility decisions ...................................127
44LK Review of decision to revoke or not revoke an
ineligibility decision ......................................................129
Subdivision F—Other matters 131
44LL Ineligibility decisions subject to alteration,
cancellation etc. .............................................................131
Division 2A—Effective access regimes 132
Subdivision A—Recommendation by Council 132
44M Recommendation for a Ministerial decision on
effectiveness of access regime.......................................132
44MA Council may request information ..................................133
Subdivision B—Decision by Commonwealth Minister 133
44N Ministerial decision on effectiveness of access
regime............................................................................133
Subdivision C—Extensions of Commonwealth Minister’s decision 135
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44NA Recommendation by Council ........................................135
44NAA Council may request information ..................................136
44NB Decision by the Commonwealth Minister .....................136
Subdivision CA—Revocation of Commonwealth Minister’s
decision 137
44NBA Recommendation by Council ........................................137
44NBB Council may request information ..................................139
44NBC Decision by the Commonwealth Minister .....................140
Subdivision D—Procedural provisions 140
44NC Time limit for Council recommendations......................140
44NE Council may invite public submissions .........................143
44NF Publication—Council ....................................................145
44NG Publication—Commonwealth Minister .........................146
Subdivision E—Review of decisions 147
44O Review of Ministerial decision on effectiveness of
access regime ................................................................147
Subdivision F—State or Territory ceasing to be a party to
Competition Principles Agreement 148
44P State or Territory ceasing to be a party to
Competition Principles Agreement................................148
Division 2B—Competitive tender processes for government
owned facilities 150
44PA Approval of competitive tender process ........................150
44PAA Commission may request information...........................151
44PB Report on conduct of tender process .............................152
44PC Revocation of approval decision ...................................152
44PD Time limit for Commission decisions............................154
44PE Commission may invite public submissions..................156
44PF Commission must publish its decisions.........................157
44PG Review of Commission’s initial decision ......................158
44PH Review of decision to revoke an approval.....................160
Division 2C—Register of decisions and declarations 162
44Q Register of decisions, declarations and ineligibility
decisions........................................................................162
Division 3—Access to declared services 163
Subdivision A—Scope of Division 163
44R Constitutional limits on operation of this Division........163
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Subdivision B—Notification of access disputes 163
44S Notification of access disputes ......................................163
44T Withdrawal of notifications ...........................................164
Subdivision C—Arbitration of access disputes 164
44U Parties to the arbitration ................................................164
44V Determination by Commission......................................164
44W Restrictions on access determinations ...........................166
44X Matters that the Commission must take into
account ..........................................................................168
44XA Time limit for Commission’s final determination .........169
44Y Commission may terminate arbitration in certain
cases ..............................................................................170
44YA Commission must terminate arbitration if
declaration varied or set aside by Tribunal ....................171
Subdivision D—Procedure in arbitrations 171
44Z Constitution of Commission for conduct of
arbitration ......................................................................171
44ZA Member of the Commission presiding at an
arbitration ......................................................................171
44ZB Reconstitution of Commission ......................................172
44ZC Determination of questions............................................172
44ZD Hearing to be in private .................................................172
44ZE Right to representation ..................................................173
44ZF Procedure of Commission .............................................173
44ZG Particular powers of Commission..................................174
44ZH Power to take evidence on oath or affirmation ..............175
44ZI Failing to attend as a witness.........................................175
44ZJ Failing to answer questions etc......................................175
44ZK Intimidation etc. ............................................................176
44ZL Party may request Commission to treat material as
confidential....................................................................176
44ZM Sections 18 and 19 do not apply to the
Commission in an arbitration ........................................177
44ZN Parties to pay costs of an arbitration..............................177
44ZNA Joint arbitration hearings ...............................................177
Subdivision DA—Arbitration reports 179
44ZNB Arbitration reports .........................................................179
Subdivision E—Effect of determinations 181
44ZO Operation of final determinations..................................181
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44ZOA Effect and duration of interim determinations ...............182
Subdivision F—Review of final determinations 183
44ZP Review by Tribunal .......................................................183
44ZQ Provisions that do not apply in relation to a
Tribunal review .............................................................184
44ZR Appeals to Federal Court from determinations of
the Tribunal ...................................................................184
44ZS Operation and implementation of a determination
that is subject to appeal .................................................185
44ZT Transmission of documents ...........................................186
Subdivision G—Variation and revocation of determinations 186
44ZU Variation of final determinations...................................186
44ZUA Variation and revocation of interim determinations ......186
Division 4—Registered contracts for access to declared services 187
44ZV Constitutional limits on operation of this Division........187
44ZW Registration of contract .................................................187
44ZX Review of decision not to register contract ...................188
44ZY Effect of registration of contract....................................189
Division 5—Hindering access to declared services 190
44ZZ Prohibition on hindering access to declared
services..........................................................................190
Division 6—Access undertakings and access codes for services 191
Subdivision A—Giving of access undertakings and access codes 191
44ZZA Access undertakings by providers .................................191
44ZZAAA Proposed amendments to access undertakings ..............193
44ZZAAB Access undertakings containing fixed principles...........195
44ZZAA Access codes prepared by industry bodies ....................197
44ZZAB Commission may rely on industry body
consultations..................................................................199
Subdivision B—Effect of access undertakings and access codes 200
44ZZBA When access undertakings and access codes come
into operation ................................................................200
Subdivision C—Extensions of access undertakings and access
codes 201
44ZZBB Extensions of access undertakings and access
codes..............................................................................201
Subdivision D—Procedural provisions 203
44ZZBC Time limit for Commission decisions............................203
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44ZZBCA Commission may request information...........................205
44ZZBD Commission may invite public submissions..................206
44ZZBE Commission must publish its decisions.........................207
Subdivision E—Review of decisions 208
44ZZBF Review of decisions.......................................................208
Subdivision F—Register of access undertakings and access codes 210
44ZZC Register of access undertakings and access codes .........210
Division 6A—Pricing principles for access disputes and access
undertakings or codes 211
44ZZCA Pricing principles for access disputes and access
undertakings or codes....................................................211
Division 6B—Overlap among determinations, registered
contracts, access undertakings and Tribunal review 212
44ZZCB Deferring access disputes or access undertakings .........212
44ZZCBA Deferral of arbitration if review is underway ................214
44ZZCC Overlap between determinations and access
undertakings ..................................................................215
44ZZCD Overlap between registered contracts and access
undertakings ..................................................................215
Division 7—Enforcement and remedies 217
44ZZD Enforcement of determinations .....................................217
44ZZE Enforcement of prohibition on hindering access ...........218
44ZZF Consent injunctions .......................................................219
44ZZG Interim injunctions ........................................................219
44ZZH Factors relevant to granting a restraining
injunction.......................................................................219
44ZZI Factors relevant to granting a mandatory
injunction.......................................................................219
44ZZJ Enforcement of access undertakings .............................220
44ZZK Discharge or variation of injunction or other order .......220
Division 8—Miscellaneous 221
44ZZL Register of determinations.............................................221
44ZZM Commonwealth consent to conferral of functions
etc. on the Commission or Tribunal by State or
Territory laws ................................................................221
44ZZMAA No merits review by Tribunal of decisions under
energy laws....................................................................222
44ZZMA How duty is imposed.....................................................222
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44ZZMB When a law of a State or Territory imposes a duty........223
44ZZN Compensation for acquisition of property .....................224
44ZZNA Operation of Parts IV and VII not affected by this
Part ................................................................................224
44ZZO Conduct by directors, servants or agents .......................224
44ZZOAAA Information to be given to Tribunal...............................226
44ZZOAA Tribunal only to consider particular material ................228
44ZZOA Time limit for Tribunal decisions..................................229
44ZZP Regulations about review by the Tribunal .....................232
44ZZQ Regulations about fees for inspection etc. of
registers .........................................................................232
44ZZR Procedure of the Tribunal when performing
functions under a State/Territory energy law or a
designated Commonwealth energy law .........................232
Part IV—Restrictive trade practices 234
Division 1—Cartel conduct 234
Subdivision A—Introduction 234
45AA Simplified outline..........................................................234
45AB Definitions.....................................................................234
45AC Extended meaning of party ...........................................236
45AD Cartel provisions ...........................................................236
45AE Meaning of expressions in other provisions of this
Act.................................................................................242
Subdivision B—Offences etc. 243
45AF Making a contract etc. containing a cartel
provision........................................................................243
45AG Giving effect to a cartel provision .................................244
45AH Determining guilt ..........................................................245
45AI Court may make related civil orders..............................245
Subdivision C—Civil penalty provisions 245
45AJ Making a contract etc. containing a cartel
provision........................................................................245
45AK Giving effect to a cartel provision .................................246
Subdivision D—Exceptions 246
45AL Conduct notified............................................................246
45AM Cartel provision subject to grant of authorisation..........247
45AN Contracts, arrangements or understandings
between related bodies corporate ..................................247
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45AO Joint ventures—prosecution ..........................................248
45AP Joint ventures—civil penalty proceedings.....................249
45AQ Resale price maintenance ..............................................250
45AR Exclusive dealing ..........................................................250
45AS Dual listed company arrangement .................................251
45AT Acquisition of shares or assets.......................................252
45AU Collective acquisition of goods or services by the
parties to a contract, arrangement or understanding ......252
Division 2—Other provisions 254
45 Contracts, arrangements or understandings that
restrict dealings or affect competition ...........................254
45D Secondary boycotts for the purpose of causing
substantial loss or damage .............................................258
45DA Secondary boycotts for the purpose of causing
substantial lessening of competition..............................259
45DB Boycotts affecting trade or commerce ...........................259
45DC Involvement and liability of employee
organisations .................................................................260
45DD Situations in which boycotts permitted..........................262
45E Prohibition of contracts, arrangements or
understandings affecting the supply or acquisition
of goods or services .......................................................266
45EA Provisions contravening section 45E not to be
given effect....................................................................269
45EB Sections 45D to 45EA do not affect operation of
other provisions of Part .................................................270
46 Misuse of market power ................................................270
46A Misuse of market power—corporation with
substantial degree of power in trans-Tasman
market............................................................................272
46B No immunity from jurisdiction in relation to
certain New Zealand laws .............................................274
47 Exclusive dealing ..........................................................275
48 Resale price maintenance ..............................................281
49 Dual listed company arrangements that affect
competition....................................................................282
50 Prohibition of acquisitions that would result in a
substantial lessening of competition..............................283
50A Acquisitions that occur outside Australia ......................285
51 Exceptions .....................................................................288
51AAA Concurrent operation of State and Territory laws..........293
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Part IVB—Industry codes 294
Division 1—Preliminary 294
51ACA Definitions.....................................................................294
Division 2—Contravention of industry codes 296
51ACB Contravention of industry codes....................................296
Division 2A—Infringement notices 297
51ACC Purpose and effect of this Division................................297
51ACD Issuing an infringement notice ......................................297
51ACE Matters to be included in an infringement notice ..........298
51ACF Amount of penalty.........................................................298
51ACG Effect of compliance with an infringement notice.........299
51ACH Effect of failure to comply with an infringement
notice.............................................................................299
51ACI Infringement notice compliance period for
infringement notice........................................................300
51ACJ Withdrawal of an infringement notice ...........................300
Division 3—Public warning notices 303
51ADA Commission may issue a public warning notice............303
Division 4—Orders to redress loss or damage suffered by
non-parties etc. 304
51ADB Orders to redress loss or damage suffered by
non-parties etc. ..............................................................304
51ADC Kinds of orders that may be made to redress loss
or damage suffered by non-parties etc...........................306
Division 5—Investigation power 308
51ADD Commission may require corporation to provide
information....................................................................308
51ADE Extending periods for complying with notices ..............308
51ADF Compliance with notices ...............................................309
51ADG False or misleading information etc. .............................309
Division 6—Miscellaneous 310
51AE Regulations relating to industry codes...........................310
51AEA Concurrent operation of State and Territory laws..........310
Part IVC—Payment surcharges 311
Division 1—Preliminary 311
55 Object of this Part..........................................................311
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55A Definitions.....................................................................311
Division 2—Limit on payment surcharges 313
55B Payment surcharges must not be excessive ...................313
Division 3—Information about payment surcharges 314
55C Surcharge information notices.......................................314
55D Extending periods for complying with notices ..............314
55E Participant must comply with notice .............................315
Division 4—Infringement notices 316
55F Purpose and effect of this Division................................316
55G Issuing an infringement notice ......................................316
55H Matters to be included in an infringement notice ..........317
55J Amount of penalty.........................................................317
55K Effect of compliance with an infringement notice.........317
55L Effect of failure to comply with an infringement
notice.............................................................................318
55M Infringement notice compliance period for
infringement notice........................................................318
55N Withdrawal of an infringement notice ...........................319
Part V—Carbon tax price reduction obligation 321
Division 1—Preliminary 321
60 Simplified outline of this Part........................................321
60AA Objects etc. ....................................................................322
60A Definitions.....................................................................323
60B Regulated goods ............................................................328
Division 2—Carbon tax price reduction obligation 329
60C Price exploitation in relation to the carbon tax
repeal .............................................................................329
60CA Failure to pass on cost savings—250% penalty.............329
60D Notice to entity that is considered to have engaged
in price exploitation in relation to the carbon tax
repeal .............................................................................331
60E Commission may issue notice to aid prevention of
price exploitation in relation to the carbon tax
repeal .............................................................................332
60F Acquisition of property .................................................333
Division 2A—Carbon tax removal substantiation notices 334
60FA Carbon tax removal substantiation notices ....................334
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60FB Extending periods for complying with carbon tax
removal substantiation notices.......................................335
60FC Compliance with carbon tax removal
substantiation notices ....................................................335
Division 2B—Carbon tax removal substantiation statements 337
60FD Carbon tax removal substantiation statements...............337
Division 2C—Statements for customers 340
60FE Statements for customers...............................................340
Division 3—Price monitoring in relation to the carbon tax repeal
etc. 342
60G Commission may monitor prices in relation to the
carbon tax repeal etc......................................................342
60H Information-gathering powers .......................................344
60J Reporting.......................................................................346
Division 4—False or misleading representations about the effect
of the carbon tax repeal etc. on prices 347
60K False or misleading representations about the
effect of the carbon tax repeal etc. on prices .................347
Division 5—Infringement notices 348
60L Issuing an infringement notice ......................................348
60M Effect of compliance with an infringement notice.........349
60N Effect of failure to comply with an infringement
notice.............................................................................350
60P Infringement notice compliance period for
infringement notice........................................................350
60Q Withdrawal of an infringement notice...........................351
60R Effect of this Division ...................................................352
Part VI—Enforcement and remedies 354 75B Interpretation .................................................................354
76 Pecuniary penalties........................................................354
76A Defence to proceedings under section 76 relating
to a contravention of section 92.....................................358
76B What happens if substantially the same conduct is
a contravention of Part IV or section 92 and an
offence? .........................................................................359
77 Civil action for recovery of pecuniary penalties............360
77A Indemnification of officers ............................................360
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77B Certain indemnities not authorised and certain
documents void .............................................................361
77C Application of section 77A to a person other than a
body corporate...............................................................361
78 Criminal proceedings not to be brought for
contraventions of Part IV...............................................362
79 Offences against section 45AF or 45AG .......................362
79A Enforcement and recovery of certain fines ....................363
79B Preference must be given to compensation for
victims...........................................................................365
80 Injunctions.....................................................................366
80A Price exploitation in relation to the carbon tax
repeal—orders limiting prices or requiring refunds
of money........................................................................369
80AB Stay of injunctions.........................................................370
80AC Injunctions to prevent mergers if authorisation
granted on the basis of false or misleading
information....................................................................371
81 Divestiture where merger contravenes section 50
or 50A ...........................................................................372
81A Divestiture where merger done under authorisation
granted on false etc. information ...................................374
82 Actions for damages......................................................375
83 Findings and admissions of fact in proceedings to
be evidence....................................................................377
84 Conduct by directors, employees or agents ...................377
85 Defences........................................................................379
86 Jurisdiction of courts .....................................................380
86AA Limit on jurisdiction of Federal Circuit Court...............381
86A Transfer of matters ........................................................381
86C Non-punitive orders.......................................................382
86D Punitive orders—adverse publicity ...............................384
86E Order disqualifying a person from managing
corporations...................................................................385
86F Privilege against exposure to penalty—
disqualification from managing corporations ................386
87 Other orders...................................................................387
87AA Special provision relating to Court’s exercise of
powers under this Part in relation to boycott
conduct ..........................................................................392
87B Enforcement of undertakings ........................................393
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87C Enforcement of undertakings—Secretary of the
Department ....................................................................394
87CA Intervention by Commission .........................................394
Part VIA—Proportionate liability for misleading and deceptive
conduct 395 87CB Application of Part ........................................................395
87CC Certain concurrent wrongdoers not to have benefit
of apportionment ...........................................................395
87CD Proportionate liability for apportionable claims ............396
87CE Defendant to notify plaintiff of concurrent
wrongdoer of whom defendant aware ...........................397
87CF Contribution not recoverable from defendant................398
87CG Subsequent actions ........................................................398
87CH Joining non-party concurrent wrongdoer in the
action.............................................................................398
87CI Application of Part ........................................................398
Part VIB—Claims for damages or compensation for death or
personal injury 400
Division 1—Introduction 400
87D Definitions.....................................................................400
87E Proceedings to which this Part applies ..........................402
Division 2—Limitation periods 403
87F Basic rule.......................................................................403
87G Date of discoverability ..................................................404
87H Long-stop period ...........................................................406
87J The effect of minority or incapacity ..............................406
87K The effect of close relationships....................................407
Division 3—Limits on personal injury damages for
non-economic loss 408
87L Limits on damages for non-economic loss ....................408
87M Maximum amount of damages for non-economic
loss ................................................................................408
87N Index numbers ...............................................................409
87P Most extreme cases .......................................................409
87Q Cases of 33% or more (but not 100%) of a most
extreme case ..................................................................410
87R Cases of 15% or more (but less than 33%) of a
most extreme case .........................................................410
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87S Cases of less than 15% of a most extreme case .............411
87T Referring to earlier decisions on non-economic
loss ................................................................................411
Division 4—Limits on personal injury damages for loss of
earning capacity 412
87U Personal injury damages for loss of earning
capacity .........................................................................412
87V Average weekly earnings ..............................................412
Division 5—Limits on personal injury damages for gratuitous
attendant care services 414
87W Personal injury damages for gratuitous attendant
care services for plaintiff ...............................................414
87X Personal injury damages for loss of plaintiff’s
capacity to provide gratuitous attendant care
services..........................................................................415
Division 6—Other limits on personal injury damages 417
87Y Damages for future economic loss—discount rate ........417
87Z Damages for loss of superannuation entitlements .........417
87ZA Interest on damages .......................................................418
87ZB Exemplary and aggravated damages .............................419
Division 7—Structured settlements 420
87ZC Court may make orders under section 87 for
structured settlements ....................................................420
Part VII—Authorisations and notifications 421
Division 1—Authorisations 421
87ZP Definitions.....................................................................421
88 Commission may grant authorisations...........................421
89 Procedure for applications and the keeping of a
register...........................................................................423
90 Determination of applications for authorisations...........426
90A Commission to afford opportunity for conference
before determining application for authorisation...........431
90B Commission may rely on consultations undertaken
by the AEMC ................................................................435
91 Grant and variation of authorisations ............................436
91A Minor variations of authorizations ................................438
91B Revocation of an authorization......................................441
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91C Revocation of an authorization and substitution of
a replacement ................................................................443
92 Providing false or misleading information ....................446
Division 2—Notifications 448
Subdivision A—Exclusive dealing and resale price maintenance 448
93 Notification of exclusive dealing or resale price
maintenance...................................................................448
93AAA Imposing conditions relating to notifications ................454
Subdivision B—Collective bargaining 455
93AA Definitions.....................................................................455
93AB Notification of collective bargaining .............................455
93AC Commission’s objection notice .....................................460
93ACA Imposing conditions relating to collective boycott
conduct ..........................................................................462
93AD When collective bargaining notice comes into
force and ceases to be in force.......................................463
93AE Withdrawal of collective bargaining notice...................466
93AEA Only 1 collective bargaining notice under
subsection 93AB(1A) may be given..............................466
93AF Only 1 collective bargaining notice under
subsection 93AB(1) may be given.................................467
93AG Stop notice for collective boycott conduct ....................467
Subdivision C—Conferences 469
93A Commission to afford opportunity for conference
before giving notice.......................................................469
Subdivision D—Register of notifications 472
95 Register of notifications ................................................472
Division 3—Class exemptions 476
95AA Commission may determine class exemptions ..............476
95AB Commission may withdraw the benefit of class
exemption in particular case..........................................477
Part VIIA—Prices surveillance 479
Division 1—Preliminary 479
95A Interpretation .................................................................479
95B Exempt supplies ............................................................483
95C Application of Part ........................................................483
95D Crown to be bound ........................................................484
95E Object of this Part..........................................................484
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95F Simplified overview of this Part ....................................485
Division 2—Commission’s functions under this Part 486
95G Commission’s functions under this Part ........................486
Division 3—Price inquiries 488
Subdivision A—Holding of inquiries 488
95H Price inquiries................................................................488
95J Content of inquiry notices .............................................489
95K Period for completing inquiry .......................................490
95L Notice of holding of inquiry ..........................................491
95M Notice of extension of period for completing
inquiry ...........................................................................491
95N Price restrictions............................................................492
Subdivision B—Reports on inquiries 494
95P Copies of report to be made available ...........................494
95Q Notification of proposed prices after receipt of
report .............................................................................495
Subdivision C—Procedure at inquiries 496
95R Public inquiries etc. .......................................................496
95S Taking of evidence on oath or affirmation ....................497
95T Failure of witness to attend............................................498
95U Refusal to be sworn or to answer question ....................498
95V Protection of witnesses ..................................................499
95W Allowances to witnesses................................................499
Division 4—Price notifications 501
95X Declarations by Minister or Commission ......................501
95Y Declarations in relation to State or Territory
authorities......................................................................501
95Z Price restrictions............................................................503
95ZA Later notices modifying a locality notice ......................506
95ZB Applicable period in relation to a locality notice...........506
95ZC Register of price notifications .......................................507
95ZD Delegation by Commission ...........................................509
Division 5—Price monitoring 510
95ZE Directions to monitor prices, costs and profits of
an industry.....................................................................510
95ZF Directions to monitor prices, costs and profits of a
business .........................................................................510
95ZG Exceptions to price monitoring......................................511
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Division 6—Other provisions 512
95ZH Ministerial directions.....................................................512
95ZI Inquiries by an unincorporated body or a group of
2 or more individuals.....................................................512
95ZJ Withdrawal of notices ...................................................513
95ZK Power to obtain information or documents....................513
95ZL Inspection of documents etc. .........................................516
95ZM Retention of documents.................................................517
95ZN Confidential information ...............................................517
95ZO Immunity .......................................................................518
95ZP Secrecy: members or staff members of the
Commission etc. ............................................................519
95ZPA Disclosure of protected information to the Energy
Department ....................................................................520
95ZQ Secrecy: persons involved in inquiries by bodies
other than the Commission............................................522
Part VIII—Resale price maintenance 524 96 Acts constituting engaging in resale price
maintenance...................................................................524
96A Resale price maintenance in relation to services ...........527
97 Recommended prices ....................................................527
98 Withholding the supply of goods...................................527
99 Statements as to the minimum price of goods ...............528
100 Evidentiary provisions...................................................529
Part IX—Review by Tribunal of Determinations of
Commission 531
Division 1—Applications for review 531
101 Applications for review .................................................531
101A Application for review of notices under Division 2
of Part VII .....................................................................533
101B Application for review of notice under
section 95AB.................................................................533
102 Functions and powers of Tribunal .................................533
Division 2—Procedure and Evidence 543
103 Procedure generally.......................................................543
104 Regulations as to certain matters ...................................543
105 Power to take evidence on oath .....................................544
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106 Hearings to be in public except in special
circumstances ................................................................544
107 Evidence in form of written statement...........................544
108 Taking of evidence by single member...........................545
109 Participants in proceedings before Tribunal ..................545
110 Representation...............................................................545
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An Act relating to competition, fair trading and
consumer protection, and for other purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Competition and Consumer Act 2010.
2 Object of this Act
The object of this Act is to enhance the welfare of Australians
through the promotion of competition and fair trading and
provision for consumer protection.
2A Application of Act to Commonwealth and Commonwealth
authorities
(1) Subject to this section and sections 44AC, 44E and 95D, this Act
binds the Crown in right of the Commonwealth in so far as the
Crown in right of the Commonwealth carries on a business, either
directly or by an authority of the Commonwealth.
(2) Subject to the succeeding provisions of this section, this Act
applies as if:
(a) the Commonwealth, in so far as it carries on a business
otherwise than by an authority of the Commonwealth; and
(b) each authority of the Commonwealth (whether or not acting
as an agent of the Crown in right of the Commonwealth) in
so far as it carries on a business;
were a corporation.
(3) Nothing in this Act makes the Crown in right of the
Commonwealth liable to a pecuniary penalty or to be prosecuted
for an offence.
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(3A) The protection in subsection (3) does not apply to an authority of
the Commonwealth.
(4) Part IV does not apply in relation to the business carried on by the
Commonwealth in developing, and disposing of interests in, land
in the Australian Capital Territory.
2B Application of Act to States and Territories
(1) The following provisions of this Act bind the Crown in right of
each of the States, of the Northern Territory and of the Australian
Capital Territory, so far as the Crown carries on a business, either
directly or by an authority of the State or Territory:
(a) Part IV;
(aa) Part V;
(b) Part XIB;
(c) the other provisions of this Act so far as they relate to the
above provisions.
(2) Nothing in this Act renders the Crown in right of a State or
Territory liable to a pecuniary penalty or to be prosecuted for an
offence.
(3) The protection in subsection (2) does not apply to an authority of a
State or Territory.
2BA Application of Part IV to local government bodies
(1) Part IV applies in relation to a local government body only to the
extent that it carries on a business, either directly or by an
incorporated company in which it has a controlling interest.
(2) In this section:
local government body means a body established by or under a law
of a State or Territory for the purposes of local government, other
than a body established solely or primarily for the purposes of
providing a particular service, such as the supply of electricity or
water.
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2C Activities that are not business
(1) For the purposes of sections 2A, 2B and 2BA, the following do not
amount to carrying on a business:
(a) imposing or collecting:
(i) taxes; or
(ii) levies; or
(iii) fees for licences;
(b) granting, refusing to grant, revoking, suspending or varying
licences (whether or not they are subject to conditions);
(c) a transaction involving:
(i) only persons who are all acting for the Crown in the
same right (and none of whom is an authority of the
Commonwealth or an authority of a State or Territory);
or
(ii) only persons who are all acting for the same authority of
the Commonwealth; or
(iii) only persons who are all acting for the same authority of
a State or Territory; or
(iv) only the Crown in right of the Commonwealth and one
or more non-commercial authorities of the
Commonwealth; or
(v) only the Crown in right of a State or Territory and one
or more non-commercial authorities of that State or
Territory; or
(vi) only non-commercial authorities of the Commonwealth;
or
(vii) only non-commercial authorities of the same State or
Territory; or
(viii) only persons who are all acting for the same local
government body (within the meaning of section 2BA)
or for the same incorporated company in which such a
body has a controlling interest;
(d) the acquisition of primary products by a government body
under legislation, unless the acquisition occurs because:
(i) the body chooses to acquire the products; or
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(ii) the body has not exercised a discretion that it has under
the legislation that would allow it not to acquire the
products.
(2) Subsection (1) does not limit the things that do not amount to
carrying on a business for the purposes of sections 2A, 2B and
2BA.
(3) In this section:
acquisition of primary products by a government body under
legislation includes vesting of ownership of primary products in a
government body by legislation.
government body means the Commonwealth, a State, a Territory,
an authority of the Commonwealth or an authority of a State or
Territory.
licence means a licence that allows the licensee to supply goods or
services.
primary products means:
(a) agricultural or horticultural produce; 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.
(4) For the purposes of this section, an authority of the Commonwealth
or an authority of a State or Territory is non-commercial if:
(a) it is constituted by only one person; and
(b) it is neither a trading corporation nor a financial corporation.
3 Repeal
The Restrictive Trade Practices Act 1971 and the Restrictive Trade
Practices Act 1972 are repealed.
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4 Interpretation
(1) In this Act, unless the contrary intention appears:
acquire includes:
(a) in relation to goods—acquire by way of purchase, exchange
or taking on lease, on hire or on hire-purchase; and
(b) in relation to services—accept.
AEMC or Australian Energy Market Commission means the body
established by section 5 of the Australian Energy Market
Commission Establishment Act 2004 of South Australia.
AER or Australian Energy Regulator means the body established
by section 44AE.
AER Chair means the Chair of the AER.
AER member means a member of the AER.
arrive at, in relation to an understanding, includes reach or enter
into.
Australian Consumer Law means Schedule 2 as applied under
Subdivision A of Division 2 of Part XI.
authorisation means an authorisation under Division 1 of Part VII
granted by the Commission or by the Tribunal on a review of a
determination of the Commission.
authority, in relation to a State or Territory (including an external
Territory), means:
(a) a body corporate established for a purpose of the State or the
Territory by or under a law of the State or Territory; or
(b) an incorporated company in which the State or the Territory,
or a body corporate referred to in paragraph (a), has a
controlling interest.
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authority of the Commonwealth means:
(a) a body corporate established for a purpose of the
Commonwealth by or under a law of the Commonwealth or a
law of a Territory; or
(b) an incorporated company in which the Commonwealth, or a
body corporate referred to in paragraph (a), has a controlling
interest.
banker includes, but is not limited to, a body corporate that is an
ADI (authorised deposit-taking institution) for the purposes of the
Banking Act 1959.
business includes a business not carried on for profit.
cartel provision has the meaning given by section 45AD.
Chairperson means the Chairperson of the Commission.
collective boycott conduct means conduct that has a purpose
referred to in subsection 45AD(3) in relation to a contract,
arrangement or understanding.
Commission means the Australian Competition and Consumer
Commission established by section 6A, and includes a member of
the Commission or a Division of the Commission performing
functions of the Commission.
competition includes:
(a) competition from goods that are, or are capable of being,
imported into Australia; and
(b) competition from services that are rendered, or are capable of
being rendered, in Australia by persons not resident or not
carrying on business in Australia.
Competition Principles Agreement means the Competition
Principles Agreement made on 11 April 1995 between the
Commonwealth, New South Wales, Victoria, Queensland, Western
Australia, South Australia, Tasmania, the Australian Capital
Territory and the Northern Territory, being that agreement as in
force from time to time.
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Conduct Code Agreement means the Conduct Code Agreement
made on 11 April 1995 between the Commonwealth, New South
Wales, Victoria, Queensland, Western Australia, South Australia,
Tasmania, the Australian Capital Territory and the Northern
Territory, being that agreement as in force from time to time.
contract includes a covenant.
corporation means a body corporate that:
(a) is a foreign corporation;
(b) is a trading corporation formed within the limits of Australia
or is a financial corporation so formed;
(c) is incorporated in a Territory; or
(d) is the holding company of a body corporate of a kind referred
to in paragraph (a), (b) or (c).
Council means the National Competition Council established by
section 29A.
Councillor means a member of the Council, including the Council
President.
Council President means the Council President referred to in
subsection 29C(1).
covenant means a covenant (including a promise not under seal)
annexed to or running with an estate or interest in land (whether at
law or in equity and whether or not for the benefit of other land),
and proposed covenant has a corresponding meaning.
debenture includes debenture stock, bonds, notes and any other
document evidencing or acknowledging indebtedness of a body
corporate, whether constituting a charge on property of the body
corporate or not.
Deputy Chairperson means a Deputy Chairperson of the
Commission.
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Deputy President means a Deputy President of the Tribunal, and
includes a person appointed to act as a Deputy President of the
Tribunal.
Deputy Registrar means a Deputy Registrar of the Tribunal.
designated Commonwealth energy law means:
(a) the National Electricity (Commonwealth) Law and
Regulations (as defined by the Australian Energy Market Act
2004); or
(b) the National Gas (Commonwealth) Law and Regulations (as
defined by the Australian Energy Market Act 2004); or
(c) the Offshore Western Australian Pipelines (Commonwealth)
Law and Regulations (as defined by the Australian Energy
Market Act 2004); or
(d) the National Energy Retail Law and Regulations
(Commonwealth) (as defined by the Australian Energy
Market Act 2004).
document means any record of information, and includes:
(a) anything on which there is writing; and
(b) anything on which there are marks, figures, symbols or
perforations having a meaning for persons qualified to
interpret them; and
(c) anything from which sounds, images or writings can be
reproduced with or without the aid of anything else; and
(d) a map, plan, drawing or photograph.
dual listed company arrangement has the same meaning as in
section 125-60 of the Income Tax Assessment Act 1997.
electronic communication means a communication of information
by means of guided and/or unguided electromagnetic energy:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or
otherwise); or
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(e) whether in any other form; or
(f) whether in any combination of forms.
Federal Circuit Court means the Federal Circuit Court of
Australia.
financial corporation means a financial corporation within the
meaning of paragraph 51(xx) of the Constitution and includes a
body corporate that carries on as its sole or principal business the
business of banking (other than State banking not extending
beyond the limits of the State concerned) or insurance (other than
State insurance not extending beyond the limits of the State
concerned).
foreign corporation means a foreign corporation within the
meaning of paragraph 51(xx) of the Constitution and includes a
body corporate that is incorporated in an external Territory.
fully-participating jurisdiction means a State or Territory that:
(a) is a participating jurisdiction as defined in section 150A; and
(b) is not named in a notice in operation under section 150K.
give effect to, in relation to a provision of a contract, arrangement
or understanding, includes do an act or thing in pursuance of or in
accordance with or enforce or purport to enforce.
goods includes:
(a) ships, aircraft and other vehicles;
(b) animals, including fish;
(c) minerals, trees and crops, whether on, under or attached to
land or not; and
(d) gas and electricity.
local energy instrument means a regulation, rule, order,
declaration or other instrument if:
(a) the instrument is made or has effect under a law of a State or
Territory; and
(b) the law of the State or Territory applies a uniform energy law
as a law of its own jurisdiction.
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member of the Commission includes the Chairperson and a person
appointed to act as a member of the Commission but does not
include an associate member of the Commission.
member of the Tribunal includes the President and a person
appointed to act as a member of the Tribunal.
merger authorisation means an authorisation that:
(a) is an authorisation for a person to engage in conduct to which
section 50 or 50A would or might apply; but
(b) is not an authorisation for a person to engage in conduct to
which any provision of Part IV other than section 50 or 50A
would or might apply.
New Zealand Commerce Commission means the Commission
established by section 8 of the Commerce Act 1986 of New
Zealand.
New Zealand Crown corporation means a body corporate that is
an instrument of the Crown in respect of the Government of New
Zealand.
organisation of employees means an organisation that exists or is
carried on for the purpose, or for purposes that include the purpose,
of furthering the interests of its members in relation to their
employment.
overseas merger authorisation means a merger authorisation that
is not an authorisation for a person to engage in conduct to which
section 50 would or might apply.
party, to a contract that is a covenant, includes a person bound by,
or entitled to the benefit of, the covenant.
personal injury includes:
(a) pre-natal injury; or
(b) impairment of a person’s physical or mental condition; or
(c) disease;
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but does not include an impairment of a person’s mental condition
unless the impairment consists of a recognised psychiatric illness.
practice of exclusive dealing means the practice of exclusive
dealing referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or
(9).
practice of resale price maintenance means the practice of resale
price maintenance referred to in Part VIII.
President means the President of the Tribunal and includes a
person appointed to act as President of the Tribunal.
presidential member or presidential member of the Tribunal
means the President or a Deputy President.
price includes a charge of any description.
provision, in relation to an understanding, means any matter
forming part of the understanding.
registered charity means an entity that is registered under the
Australian Charities and Not-for-profits Commission Act 2012 as
the type of entity mentioned in column 1 of item 1 of the table in
subsection 25-5(5) of that Act.
Registrar means the Registrar of the Tribunal.
require, in relation to the giving of a covenant, means require or
demand the giving of a covenant, whether by way of making a
contract containing the covenant or otherwise, and whether or not a
covenant is given in pursuance of the requirement or demand.
send includes deliver, and sent and sender have corresponding
meanings.
services includes any rights (including rights in relation to, and
interests in, real or personal property), benefits, privileges or
facilities that are, or are to be, provided, granted or conferred in
trade or commerce, and without limiting the generality of the
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foregoing, includes the rights, benefits, privileges or facilities that
are, or are to be, provided, granted or conferred under:
(a) a contract for or in relation to:
(i) the performance of work (including work of a
professional nature), whether with or without the supply
of goods;
(ii) the provision of, or the use or enjoyment of facilities
for, amusement, entertainment, recreation or instruction;
or
(iii) the conferring of rights, benefits or privileges for which
remuneration is payable in the form of a royalty, tribute,
levy or similar exaction;
(b) a contract of insurance;
(c) a contract between a banker and a customer of the banker
entered into in the course of the carrying on by the banker of
the business of banking; or
(d) any contract for or in relation to the lending of moneys;
but does not include rights or benefits being the supply of goods or
the performance of work under a contract of service.
share includes stock.
South Australian Electricity Legislation means:
(a) the National Electricity Law set out in the Schedule to the
National Electricity (South Australia) Act 1996 of South
Australia as in force from time to time; and
(b) any regulations, as in force from time to time, made under
Part 4 of that Act.
The reference in paragraph (a) to the National Electricity Law set
out in the Schedule to the National Electricity (South Australia)
Act 1996 of South Australia as in force from time to time includes
a reference to any Rules or other instruments, as in force from time
to time, made or having effect under that Law.
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South Australian Energy Retail Legislation means:
(a) the National Energy Retail Law set out in the Schedule to the
National Energy Retail Law (South Australia) Act 2011 of
South Australia, as amended from time to time; and
(b) any regulations, as amended from time to time, made under
Part 11 of the National Energy Retail Law.
The reference in paragraph (a) to the National Energy Retail Law
set out in the Schedule to the National Energy Retail Law (South
Australia) Act 2011 of South Australia, as amended from time to
time, includes a reference to any Rules or other instruments, as
amended from time to time, made or having effect under that Law.
South Australian Gas Legislation means:
(a) the National Gas Law set out in the Schedule to the National
Gas (South Australia) Act 2008 of South Australia as in force
from time to time; and
(b) any regulations, as in force from time to time, made under
Part 3 of that Act.
The reference in paragraph (a) to the National Gas Law set out in
the Schedule to the National Gas (South Australia) Act 2008 of
South Australia as in force from time to time includes a reference
to any Rules or other instruments, as in force from time to time,
made or having effect under that Law.
State/Territory AER member means an AER member referred to
in section 44AP.
State/Territory energy law means any of the following laws:
(a) a uniform energy law that applies as a law of a State or
Territory;
(b) a law of a State or Territory that applies a law mentioned in
paragraph (a) as a law of its own jurisdiction;
(c) any other provisions of a law of a State or Territory that:
(i) relate to energy; and
(ii) are prescribed by the regulations for the purposes of this
paragraph;
being those provisions as in force from time to time.
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supply, when used as a verb, includes:
(a) in relation to goods—supply (including re-supply) by way of
sale, exchange, lease, hire or hire-purchase; and
(b) in relation to services—provide, grant or confer;
and, when used as a noun, has a corresponding meaning, and
supplied and supplier have corresponding meanings.
Telstra has the same meaning as in the Telstra Corporation Act
1991.
Territory means:
(a) an internal Territory; or
(b) the Territory of Christmas Island; or
(c) the Territory of Cocos (Keeling) Islands.
the Court or the Federal Court means the Federal Court of
Australia.
the Family Court means the Family Court of Australia.
this Act includes Schedule 2 to the extent that it is applied under
Subdivision A of Division 2 of Part XI.
trade or commerce means trade or commerce within Australia or
between Australia and places outside Australia.
trading corporation means a trading corporation within the
meaning of paragraph 51(xx) of the Constitution.
Tribunal means the Australian Competition Tribunal, and includes
a member of that Tribunal or a Division of that Tribunal
performing functions of that Tribunal.
uniform energy law means:
(a) the South Australian Electricity Legislation; or
(b) the South Australian Gas Legislation; or
(c) the Western Australian Gas Legislation; or
(ca) the South Australian Energy Retail Legislation; or
(d) provisions of a law of a State or Territory that:
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(i) relate to energy; and
(ii) are prescribed by the regulations for the purposes of this
subparagraph;
being those provisions as in force from time to time.
Western Australian Gas Legislation means:
(a) the National Gas Access (Western Australia) Law (within the
meaning of the National Gas Access (WA) Act 2009 of
Western Australia) as in force from time to time; and
(b) any regulations, as in force from time to time, made under
Part 3 of that Act.
The reference in paragraph (a) to the National Gas Access
(Western Australia) Law (within the meaning of the National Gas
Access (WA) Act 2009 of Western Australia) as in force from time
to time includes a reference to any Rules or other instruments, as in
force from time to time, made or having effect under that Law.
(2) In this Act:
(a) a reference to engaging in conduct shall be read as a
reference to doing or refusing to do any act, including the
making of, or the giving effect to a provision of, a contract or
arrangement, the arriving at, or the giving effect to a
provision of, an understanding or the engaging in of a
concerted practice;
(b) a reference to conduct, when that expression is used as a
noun otherwise than as mentioned in paragraph (a), shall be
read as a reference to the doing of or the refusing to do any
act, including the making of, or the giving effect to a
provision of, a contract or arrangement, the arriving at, or the
giving effect to a provision of, an understanding or the
engaging in of a concerted practice;
(c) a reference to refusing to do an act includes a reference to:
(i) refraining (otherwise than inadvertently) from doing
that act; or
(ii) making it known that that act will not be done; and
(d) a reference to a person offering to do an act, or to do an act
on a particular condition, includes a reference to the person
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making it known that the person will accept applications,
offers or proposals for the person to do that act or to do that
act on that condition, as the case may be.
(3) Where a provision of this Act is expressed to render a provision of
a contract unenforceable if the provision of the contract has or is
likely to have a particular effect, that provision of this Act applies
in relation to the provision of the contract at any time when the
provision of the contract has or is likely to have that effect
notwithstanding that:
(a) at an earlier time the provision of the contract did not have
that effect or was not regarded as likely to have that effect; or
(b) the provision of the contract will not or may not have that
effect at a later time.
(4) In this Act:
(a) a reference to the acquisition of shares in the capital of a
body corporate shall be construed as a reference to an
acquisition, whether alone or jointly with another person, of
any legal or equitable interest in such shares; and
(b) a reference to the acquisition of assets of a person shall be
construed as a reference to an acquisition, whether alone or
jointly with another person, of any legal or equitable interest
in such assets but does not include a reference to an
acquisition by way of charge only or an acquisition in the
ordinary course of business.
4A Subsidiary, holding and related bodies corporate
(1) For the purposes of this Act, a body corporate shall, subject to
subsection (3), be deemed to be a subsidiary of another body
corporate if:
(a) that other body corporate:
(i) controls the composition of the board of directors of the
first-mentioned body corporate;
(ii) is in a position to cast, or control the casting of, more
than one-half of the maximum number of votes that
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might be cast at a general meeting of the first-mentioned
body corporate; or
(iii) holds more than one-half of the allotted share capital of
the first-mentioned body corporate (excluding any part
of that allotted share capital that carries no right to
participate beyond a specified amount in a distribution
of either profits or capitan( � or
(b) the first-mentioned body corporate is a subsidiary of any
body corporate that is that other body corporate’s subsidiary
(including any body corporate that is that other body
corporate’s subsidiary by another application or other
applications of this paragraph).
(2) For the purposes of subsection (1), the composition of a body
corporate’s board of directors shall be deemed to be controlled by
another body corporate if that other body corporate, by the exercise
of some power exercisable by it without the consent or concurrence
of any other person, can appoint or remove all or a majority of the
directors, and for the purposes of this provision that other body
corporate shall be deemed to have power to make such an
appointment if:
(a) a person cannot be appointed as a director without the
exercise in his or her favour by that other body corporate of
such a power; or
(b) a person’s appointment as a director follows necessarily from
his or her being a director or other officer of that other body
corporate.
(3) In determining whether a body corporate is a subsidiary of another
body corporate:
(a) any shares held or power exercisable by that other body
corporate in a fiduciary capacity shall be treated as not held
or exercisable by it;
(b) subject to paragraphs (c) and (d), any shares held or power
exercisable:
(i) by any person as a nominee for that other body
corporate (except where that other body corporate is
concerned only in a fiduciary capacity); or
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(ii) by, or by a nominee for, a subsidiary of that other body
corporate, not being a subsidiary that is concerned only
in a fiduciary capacity;
shall be treated as held or exercisable by that other body
corporate;
(c) any shares held or power exercisable by any person by virtue
of the provisions of any debentures of the first-mentioned
body corporate, or of a trust deed for securing any allotment
of such debentures, shall be disregarded; and
(d) any shares held or power exercisable by, or by a nominee for,
that other body corporate or its subsidiary (not being held or
exercisable as mentioned in paragraph (c)) shall be treated as
not held or exercisable by that other body corporate if the
ordinary business of that other body corporate or its
subsidiary, as the case may be, includes the lending of money
and the shares are held or the power is exercisable by way of
security only for the purposes of a transaction entered into in
the ordinary course of that business.
(4) A reference in this Act to the holding company of a body corporate
shall be read as a reference to a body corporate of which that other
body corporate is a subsidiary.
(5) Where a body corporate:
(a) is the holding company of another body corporate;
(b) is a subsidiary of another body corporate; or
(c) is a subsidiary of the holding company of another body
corporate;
that first-mentioned body corporate and that other body corporate
shall, for the purposes of this Act, be deemed to be related to each
other.
(5A) For the purposes of Parts IV, VI and VII:
(a) a body corporate that is a party to a dual listed company
arrangement is taken to be related to the other body corporate
that is a party to the arrangement; and
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(b) a body corporate that is related to one of the parties to the
arrangement is taken to be related to the other party to the
arrangement; and
(c) a body corporate that is related to one of the parties to the
arrangement is taken to be related to each body corporate that
is related to the other party to the arrangement.
(6) In proceedings under this Act, whether in the Court or before the
Tribunal or the Commission, it shall be presumed, unless the
contrary is established, that bodies corporate are not, or were not at
a particular time, related to each other.
4B Consumers
(1) For the purposes of this Act, unless the contrary intention appears:
(a) a person shall be taken to have acquired particular goods as a
consumer if, and only if:
(i) the price of the goods did not exceed the prescribed
amount; or
(ii) where that price exceeded the prescribed amount—the
goods were of a kind ordinarily acquired for personal,
domestic or household use or consumption or the goods
consisted of a commercial road vehicle;
and the person did not acquire the goods, or hold himself or
herself out as acquiring the goods, for the purpose of
re-supply or for the purpose of using them up or transforming
them, in trade or commerce, in the course of a process of
production or manufacture or of repairing or treating other
goods or fixtures on land; and
(b) a person shall be taken to have acquired particular services as
a consumer if, and only if:
(i) the price of the services did not exceed the prescribed
amount; or
(ii) where that price exceeded the prescribed amount—the
services were of a kind ordinarily acquired for personal,
domestic or household use or consumption.
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(2) For the purposes of subsection (1):
(a) the prescribed amount is $40,000 or, if a greater amount is
prescribed for the purposes of this paragraph, that greater
amount;
(b) subject to paragraph (c), the price of goods or services
purchased by a person shall be taken to have been the amount
paid or payable by the person for the goods or services;
(c) where a person purchased goods or services together with
other property or services, or with both other property and
services, and a specified price was not allocated to the goods
or services in the contract under which they were purchased,
the price of the goods or services shall be taken to have been:
(i) the price at which, at the time of the acquisition, the
person could have purchased from the supplier the
goods or services without the other property or services;
(ii) if, at the time of the acquisition, the goods or services
were not available for purchase from the supplier except
together with the other property or services but, at that
time, goods or services of the kind acquired were
available for purchase from another supplier without
other property or services—the lowest price at which
the person could, at that time, reasonably have
purchased goods or services of that kind from another
supplier; or
(iii) if, at the time of the acquisition, goods or services of the
kind acquired were not available for purchase from any
supplier except together with other property or
services—the value of the goods or services at that time;
(d) where a person acquired goods or services otherwise than by
way of purchase, the price of the goods or services shall be
taken to have been:
(i) the price at which, at the time of the acquisition, the
person could have purchased the goods or services from
the supplier;
(ii) if, at the time of the acquisition, the goods or services
were not available for purchase from the supplier or
were so available only together with other property or
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services but, at that time, goods or services of the kind
acquired were available for purchase from another
supplier—the lowest price at which the person could, at
that time, reasonably have purchased goods or services
of that kind from another supplier; or
(iii) if goods or services of the kind acquired were not
available, at the time of the acquisition, for purchase
from any supplier or were not so available except
together with other property or services—the value of
the goods or services at that time; and
(e) without limiting by implication the meaning of the
expression services in subsection 4(1), the obtaining of credit
by a person in connection with the acquisition of goods or
services by him or her shall be deemed to be the acquisition
by him or her of a service and any amount by which the
amount paid or payable by him or her for the goods or
services is increased by reason of his or her so obtaining
credit shall be deemed to be paid or payable by him or her for
that service.
(3) Where it is alleged in any proceeding under this Act or in any other
proceeding in respect of a matter arising under this Act that a
person was a consumer in relation to particular goods or services, it
shall be presumed, unless the contrary is established, that the
person was a consumer in relation to those goods or services.
(4) In this section, commercial road vehicle means a vehicle or trailer
acquired for use principally in the transport of goods on public
roads.
4C Acquisition, supply and re-supply
In this Act, unless the contrary intention appears:
(a) a reference to the acquisition of goods includes a reference to
the acquisition of property in, or rights in relation to, goods
in pursuance of a supply of the goods;
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(b) a reference to the supply or acquisition of goods or services
includes a reference to agreeing to supply or acquire goods or
services;
(c) a reference to the supply or acquisition of goods includes a
reference to the supply or acquisition of goods together with
other property or services, or both;
(d) a reference to the supply or acquisition of services includes a
reference to the supply or acquisition of services together
with property or other services, or both;
(e) a reference to the re-supply of goods acquired from a person
includes a reference to:
(i) a supply of the goods to another person in an altered
form or condition; and
(ii) a supply to another person of goods in which the
first-mentioned goods have been incorporated;
(f) a reference to the re-supply of services (the original services)
acquired from a person (the original supplier) includes a
reference to:
(i) a supply of the original services to another person in an
altered form or condition; and
(ii) a supply to another person of other services that are
substantially similar to the original services, and could
not have been supplied if the original services had not
been acquired by the person who acquired them from
the original supplier.
4E Market
For the purposes of this Act, unless the contrary intention appears,
market means a market in Australia and, when used in relation to
any goods or services, includes a market for those goods or
services and other goods or services that are substitutable for, or
otherwise competitive with, the first-mentioned goods or services.
4F References to purpose or reason
(1) For the purposes of this Act:
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(a) a provision of a contract, arrangement or understanding or of
a proposed contract, arrangement or understanding shall be
deemed to have had, or to have, a particular purpose if:
(i) the provision was included in the contract, arrangement
or understanding or is to be included in the proposed
contract, arrangement or understanding for that purpose
or for purposes that included or include that purpose;
and
(ii) that purpose was or is a substantial purpose; and
(b) a person shall be deemed to have engaged or to engage in
conduct for a particular purpose or a particular reason if:
(i) the person engaged or engages in the conduct for
purposes that included or include that purpose or for
reasons that included or include that reason, as the case
may be; and
(ii) that purpose or reason was or is a substantial purpose or
reason.
(2) This section does not apply for the purposes of subsections 45D(1),
45DA(1), 45DB(1), 45E(2) and 45E(3).
4G Lessening of competition to include preventing or hindering
competition
For the purposes of this Act, references to the lessening of
competition shall be read as including references to preventing or
hindering competition.
4H Application of Act in relation to leases and licences of land and
buildings
In this Act:
(a) a reference to a contract shall be construed as including a
reference to a lease of, or a licence in respect of, land or a
building or part of a building and shall be so construed
notwithstanding the express references in this Act to such
leases or licences;
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(b) a reference to making or entering into a contract, in relation
to such a lease or licence, shall be read as a reference to
granting or taking the lease or licence; and
(c) a reference to a party to a contract, in relation to such a lease
or licence, shall be read as including a reference to any
person bound by, or entitled to the benefit of, any provision
contained in the lease or licence.
4J Joint ventures
In this Act:
(a) a reference to a joint venture is a reference to an activity in
trade or commerce:
(i) carried on jointly by two or more persons, whether or
not in partnership; or
(ii) carried on by a body corporate formed by two or more
persons for the purpose of enabling those persons to
carry on that activity jointly by means of their joint
control, or by means of their ownership of shares in the
capital, of that body corporate; and
(b) a reference to a contract or arrangement made or
understanding arrived at, or to a proposed contract or
arrangement to be made or proposed understanding to be
arrived at, for the purposes of a joint venture shall, in relation
to a joint venture by way of an activity carried on by a body
corporate as mentioned in subparagraph (a)(ii), be read as
including a reference to the memorandum and articles of
association, rules or other document that constitute or
constitutes, or are or is to constitute, that body corporate.
4K Loss or damage to include injury
In this Act:
(a) a reference to loss or damage, other than a reference to the
amount of any loss or damage, includes a reference to injury;
and
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(b) a reference to the amount of any loss or damage includes a
reference to damages in respect of an injury.
4KA Definitions etc. that do not apply in Part XI or Schedule 2
Despite any other provision of this Act, sections 4 to 4K do not
affect the meaning of any expression used in Part XI or Schedule 2,
unless a contrary intention appears.
4L Severability
If the making of a contract after the commencement of this section
contravenes this Act by reason of the inclusion of a particular
provision in the contract, then, subject to any order made under
section 51ADB or 87, nothing in this Act affects the validity or
enforceability of the contract otherwise than in relation to that
provision in so far as that provision is severable.
4M Saving of law relating to restraint of trade and breaches of
confidence
This Act does not affect the operation of:
(a) the law relating to restraint of trade in so far as that law is
capable of operating concurrently with this Act; or
(b) the law relating to breaches of confidence;
but nothing in the law referred to in paragraph (a) or (b) affects the
interpretation of this Act.
4N Extended application of Part IIIA
(1) Part IIIA, and the other provisions of this Act so far as they relate
to Part IIIA, extend to services provided by means of facilities that
are, or will be, wholly or partly within:
(a) an external Territory; or
(b) the offshore area in respect of a State, of the Northern
Territory, or of an external Territory, as specified in section 7
of the Offshore Petroleum and Greenhouse Gas Storage Act
2006.
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(3) Nothing in subsection (1) affects the operation of section 15B of
the Acts Interpretation Act 1901 in respect of the application of
Part IIIA, and of the other provisions of this Act so far as they
relate to Part IIIA, in any part of:
(a) the coastal sea of Australia; or
(b) the coastal sea of an external Territory;
that is on the landward side of each of the offshore areas referred to
in that subsection.
(4) For the purposes of this section:
service includes proposed service covered by Division 2A of
Part IIIA.
5 Extended application of this Act to conduct outside Australia
(1) Each of the following provisions:
(a) Part IV;
(b) Part XI;
(c) the Australian Consumer Law (other than Part 5-3);
(f) the remaining provisions of this Act (to the extent to which
they relate to any of the provisions covered by paragraph (a),
(b) or (c));
extends to the engaging in conduct outside Australia by:
(g) bodies corporate incorporated or carrying on business within
Australia; or
(h) Australian citizens; or
(i) persons ordinarily resident within Australia.
(1A) In addition to the extended operation that section 46A has by virtue
of subsection (1), that section extends to the engaging in conduct
outside Australia by:
(a) New Zealand and New Zealand Crown corporations; or
(b) bodies corporate carrying on business within New Zealand;
or
(c) persons ordinarily resident within New Zealand.
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(2) In addition to the extended operation that sections 47 and 48 have
by virtue of subsection (1), those sections extend to the engaging in
conduct outside Australia by any persons in relation to the supply
by those persons of goods or services to persons within Australia.
6 Extended application of this Act to persons who are not
corporations
(1) Without prejudice to its effect apart from this section, this Act also
has effect as provided by this section.
(2) This Act, other than Parts IIIA, VIIA and X, has, by force of this
subsection, the effect it would have if:
(a) any references in this Act other than in section 45DB, or
section 33 or 155 of the Australian Consumer Law, to trade
or commerce were, by express provision, confined to trade or
commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or
between two Territories; or
(iv) by way of the supply of goods or services to the
Commonwealth or an authority or instrumentality of the
Commonwealth; and
(b) the following provisions:
(i) sections 45AF, 45AG, 45AJ, 45AK, 45, 45D to 45EB
(other than section 45DB), 46 and 46A;
(ia) Part V (other than Division 5);
(ii) Part VIII;
(iii) sections 31 and 43, Division 3 of Part 3-1, and
sections 50, 153, 163, 164 and 168, of the Australian
Consumer Law;
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:
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(iv) trade or commerce between Australia and places outside
Australia; or
(v) trade or commerce among the States; or
(vi) trade or commerce within a Territory, between a State
and a Territory or between 2 Territories; or
(vii) the supply of goods or services to the Commonwealth or
an authority or instrumentality of the Commonwealth;
and
(c) any reference in Division 1 of Part 3-2 of the Australian
Consumer Law to a contract for the supply of goods or
services and any reference in Part 3-5 or 5-4 of the Australian
Consumer Law to the supply of goods or services, were, by
express provision, confined to a contract made, or the supply
of goods or services, as the case may be:
(i) in the course of, or in relation to, trade or commerce
between Australia and places outside Australia; or
(ii) in the course of, or in relation to, trade or commerce
among the States; or
(iii) in the course of, or in relation to, trade or commerce
within a Territory, between a State and a Territory or
between two Territories; and
(ca) any reference in Part 2-3 of the Australian Consumer Law to
a contract were, by express provision, confined to a contract
made:
(i) in the course of, or in relation to, trade or commerce
between Australia and places outside Australia; or
(ii) in the course of, or in relation to, trade or commerce
among the States; or
(iii) in the course of, or in relation to, trade or commerce
within a Territory, between a State and a Territory or
between two Territories; and
(d) in paragraph 87(3)(a) the words “in so far as it confers rights
or benefits or imposes duties or obligations on a corporation”
were omitted; and
(ea) subsections 45D(3), 45D(4) and 45DA(3) were repealed, the
words “In the circumstances specified in subsections (3) and
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(4)” were omitted from subsection 45D(1) and the words “In
the circumstances specified in subsection (3)” were omitted
from subsection 45DA(1); and
(eb) the second sentence in subsection 45E(1) were omitted; and
(g) subsection 96(2) were omitted; and
(h) subject to paragraphs (d), (e), (ea), (eb) and (g), a reference in
this Act to a corporation, except a reference in section 4, 48,
49, 50, 50A, 77A, 81, 151AE or 151AJ or in section 229 of
the Australian Consumer Law, included a reference to a
person not being a corporation.
(2A) So far as subsection (2) relates to Part IV, that subsection has effect
in relation to a participating Territory as if the words “within a
Territory,” were omitted from subparagraphs (2)(a)(iii) and
(2)(b)(iii). For this purpose, participating Territory means a
Territory that is a participating Territory within the meaning of
Part XIA but is not named in a notice in operation under
section 150K.
(2C) In addition to the effect that this Act (other than Parts IIIA, VIIA
and X) has as provided by another subsection of this section, this
Act (other than Parts IIIA, VIIA and X) has, by force of this
subsection, the effect it would have if:
(a) the reference in paragraph 45AD(2)(c) to goods or services
supplied, or likely to be supplied, were, by express provision,
confined to goods or services supplied, or likely to be
supplied, to corporations or classes of corporations; and
(b) the reference in paragraph 45AD(2)(d) to goods or services
acquired, or likely to be acquired, were, by express provision,
confined to goods or services acquired, or likely to be
acquired, from corporations or classes of corporations; and
(c) the reference in paragraph 45AD(2)(e) to goods or services
re-supplied, or likely to be re-supplied, were, by express
provision, confined to goods or services re-supplied, or likely
to be re-supplied, to corporations or classes of corporations;
and
(d) the reference in paragraph 45AD(2)(f) to goods or services
likely to be re-supplied were, by express provision, confined
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to goods or services likely to be re-supplied to corporations
or classes of corporations; and
(e) the following paragraphs were added at the end of
subsection 45AD(2):
“; or (g) goods or services re-supplied, or likely to be re-supplied, by
corporations or classes of corporations to whom those goods
or services were supplied by any or all of the parties to the
contract, arrangement or understanding; or
(h) goods or services likely to be re-supplied by corporations or
classes of corporations to whom those goods or services are
likely to be supplied by any or all of the parties to the
contract, arrangement or understanding.”; and
(f) the reference in subparagraph 45AD(3)(a)(i) to the
production, or likely production, of goods were, by express
provision, confined to the production, or likely production, of
goods for supply to corporations or classes of corporations;
and
(g) the reference in subparagraph 45AD(3)(a)(ii) to the supply of
services were, by express provision, confined to the supply of
services to corporations or classes of corporations; and
(h) each reference in subparagraphs 45AD(3)(a)(iii) and (iv) and
(b)(i) and (ii) to persons or classes of persons were, by
express provision, confined to corporations or classes of
corporations; and
(i) the reference in subparagraph 45AD(3)(b)(iii) to the
geographical areas in which goods or services are supplied,
or likely to be supplied, were, by express provision, confined
to the geographical areas in which goods or services are
supplied, or likely to be supplied, to corporations or classes
of corporations; and
(j) the reference in subparagraph 45AD(3)(b)(iv) to the
geographical areas in which goods or services are acquired,
or likely to be acquired, were, by express provision, confined
to the geographical areas in which goods or services are
acquired, or likely to be acquired, from corporations or
classes of corporations; and
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(k) the reference in paragraph 45AD(3)(c) to the supply or
acquisition of goods or services were, by express provision,
confined to supply of goods or services to, or the acquisition
of goods or services from, corporations or classes of
corporations; and
(l) the reference in paragraph 45AD(4)(e) to paragraph (2)(e) or
(f) included a reference to paragraph (2)(g) or (h); and
(m) section 45AD also provided that it is immaterial whether the
identities of the corporations referred to in subsection (2) or
(3) of that section can be ascertained; and
(n) each reference in the following provisions of this Act:
(i) Division 1 of Part IV (other than section 45AD);
(ii) any other provision (other than section 4, 45AD, 151AE
or 151AJ or this subsection or subsection (5A)) to the
extent to which it relates to Division 1 of Part IV;
to a corporation included a reference to a person not being a
corporation.
For the purposes of this subsection, likely and production have the
same meaning as in Division 1 of Part IV.
(2D) In addition to the effect that this Act (other than Parts IIIA, VIIA
and X) has as provided by another subsection of this section, this
Act (other than Parts IIIA, VIIA and X) has, by force of this
subsection, the effect it would have if:
(a) sections 45AF, 45AG, 45AJ and 45AK were, by express
provision, confined in their operation to engaging in conduct
to the extent to which the conduct involves the use of, or
relates to, a postal, telegraphic, telephonic or other like
service within the meaning of paragraph 51(v) of the
Constitution; and
(b) each reference in the following provisions of this Act:
(i) Division 1 of Part IV;
(ii) any other provision (other than section 4, 151AE or
151AJ or this subsection or subsection (5A)) to the
extent to which it relates to Division 1 of Part IV;
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to a corporation included a reference to a person not being a
corporation.
(2E) In addition to the effect that this Act (other than Parts IIIA, VIIA
and X) has as provided by another subsection of this section, this
Act (other than Parts IIIA, VIIA and X) has, by force of this
subsection, the effect it would have if:
(a) sections 45AF, 45AG, 45AJ and 45AK were, by express
provision, confined in their operation to engaging in conduct
to the extent to which the conduct takes place in, or relates
to:
(i) a Territory; or
(ii) a Commonwealth place (within the meaning of the
Commonwealth Places (Application of Laws) Act 1970);
and
(b) each reference in the following provisions of this Act:
(i) Division 1 of Part IV;
(ii) any other provision (other than section 4, 151AE or
151AJ or this subsection or subsection (5A)) to the
extent to which it relates to Division 1 of Part IV;
to a corporation included a reference to a person not being a
corporation.
(2F) In addition to the effect that this Act (other than Parts IIIA, VIIA
and X) has as provided by another subsection of this section, this
Act (other than Parts IIIA, VIIA and X) has, by force of this
subsection, the effect it would have if:
(a) each reference in Part IVC to a payment surcharge were a
reference to a payment surcharge charged for processing a
payment made by means of a postal, telegraphic, telephonic,
or other like service (including electronic communication);
and
(b) each reference to a corporation included a reference to a
person not being a corporation.
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(3) In addition to the effect that this Act, other than Parts IIIA, VIIA
and X, has as provided by another subsection of this section, the
provisions of Parts 2-1, 2-2, 3-1 (other than Division 3), 3-3, 3-4,
4-1 (other than Division 3), 4-3, 4-4 and 5-3 of the Australian
Consumer Law have, by force of this subsection, the effect they
would have if:
(a) those provisions (other than sections 33 and 155 of the
Australian Consumer Law) were, by express provision,
confined in their operation to engaging in conduct to the
extent to which the conduct involves the use of postal,
telegraphic or telephonic services or takes place in a radio or
television broadcast; and
(b) a reference in the provisions of Part XI to a corporation
included a reference to a person not being a corporation.
(3A) In addition to the effect that this Act, other than Parts IIIA, VIIA
and X, has as provided by subsection (2), the provisions of Part 2-3
of the Australian Consumer Law have, by force of this subsection,
the effect they would have if:
(a) those provisions were, by express provision, confined in their
operation to contracts for or relating to:
(i) the use of postal, telegraphic or telephonic services; or
(ii) radio or television broadcasts; and
(b) a reference in the provisions of Part XI to a corporation
included a reference to a person not being a corporation.
(4) In addition to the effect that this Act, other than Parts IIIA, VIIA
and X, has as provided by another subsection of this section, the
provisions of Parts 2-2, 3-1 (other than sections 30 and 33),
Part 4-1 (other than sections 152, 155 and 164) and 5-3 of the
Australian Consumer Law also have, by force of this subsection,
the effect they would have if:
(a) those provisions were, by express provision, confined in their
operation to engaging in conduct in a Territory; and
(b) a reference in those provisions to a thing done by a
corporation in trade or commerce included a reference to a
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thing done in the course of the promotional activities of a
professional person.
(5) In the application of sections 279, 282 and 283 of the Australian
Consumer Law in relation to a supplier who is a natural person,
those sections have effect as if there were substituted for
paragraphs 279(3)(a), 282(2)(a) and 283(5)(a) of the Australian
Consumer Law the following paragraph:
“(a) the supplier has died or is an undischarged bankrupt or a
person whose affairs are being dealt with under Part X of the
Bankruptcy Act 1966; or”.
(5A) Despite anything in section 45AF or 45AG, if a body corporate
other than a corporation is convicted of an offence against that
section (as that section applies because of this section), the offence
is taken to be punishable on conviction as if the body corporate
were a corporation.
(5B) Despite anything in section 45AF or 45AG, if a person other than a
body corporate is convicted of an offence against that section (as
that section applies because of this section), the offence is taken to
be punishable on conviction by a term of imprisonment not
exceeding 10 years or a fine not exceeding 2,000 penalty units, or
both.
6AA Application of the Criminal Code
(1) Chapter 2 of the Criminal Code applies to all offences against this
Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
(2) Despite subsection (1), Part 2.5 of the Criminal Code does not
apply to an offence against Part IIIA or XIC, Division 7 of
Part XIB, or section 45AF or 45AG.
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Consumer Commission
6A Establishment of Commission
(1) The Australian Competition and Consumer Commission is
established by this section.
(1A) However, the Commission is taken, for the purposes of the finance
law (within the meaning of the Public Governance, Performance
and Accountability Act 2013):
(a) to be a non-corporate Commonwealth entity, and not to be a
corporate Commonwealth entity; and
(b) to be a part of the Commonwealth; and
(c) not to be a body corporate.
(2) The Commission:
(a) is a body corporate, with perpetual succession;
(b) shall have an official seal;
(c) may acquire, hold and dispose of real and personal property;
and
(d) may sue or be sued in its corporate name.
(3) Any real or personal property held by the Commission is held for
and on behalf of the Commonwealth.
(4) Any money received by the Commission is received for and on
behalf of the Commonwealth.
(5) To avoid doubt, a right to sue is taken not to be personal property
for the purposes of subsection (3).
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7 Constitution of Commission
(1) The Commission shall consist of a Chairperson and such number
of other members as are from time to time appointed in accordance
with this Act.
(2) The members of the Commission shall be appointed by the
Governor-General and shall be so appointed as full-time members.
Note: A member of the Commission who is also appointed as an AER
member remains a full-time member of the Commission: see
section 44AN.
(3) Before the Governor-General appoints a person as a member of the
Commission or as Chairperson, the Minister must:
(a) be satisfied that the person qualifies for the appointment
because of the person’s knowledge of, or experience in,
industry, commerce, economics, law, public administration
or consumer protection; and
(b) consider whether the person has knowledge of, or experience
in, small business matters; and
(c) if there is at least one fully-participating jurisdiction—be
satisfied that a majority of such jurisdictions support the
appointment.
(4) At least one of the members of the Commission must be a person
who has knowledge of, or experience in, consumer protection.
Note: Under section 23 of the Public Governance, Performance and
Accountability Act 2013, the Chairperson may enter into contracts and
other arrangements on behalf of the Commonwealth.
8 Terms and conditions of appointment
(1) Subject to this Part, a member of the Commission holds office for
such period, not exceeding 5 years, as is specified in the instrument
of his or her appointment and on such terms and conditions as the
Governor-General determines, but is eligible for re-appointment.
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8A Associate members
(1) The Minister may appoint persons to be associate members of the
Commission.
(1A) If there is at least one fully-participating jurisdiction, the Minister
must not appoint a person as an associate member unless the
Minister is satisfied that a majority of such jurisdictions support the
appointment.
(2) An associate member of the Commission shall be appointed for
such period not exceeding 5 years as is specified in the instrument
of his or her appointment, but is eligible for re-appointment.
(3) Subject to this Part, an associate member of the Commission holds
office on such terms and conditions as the Minister determines.
(4) The Chairperson may, by writing signed by him or her, direct that,
for the purposes of the exercise of the powers of the Commission
under this Act in relation to a specified matter, not being an
exercise of those powers by a Division of the Commission, a
specified associate member of the Commission or specified
associate members of the Commission shall be deemed to be a
member or members of the Commission and, in that case, unless
the contrary intention appears, a reference in this Act to a member
of the Commission shall, for the purposes only of the exercise of
the powers of the Commission in relation to that matter, be
construed as including a reference to that associate member of the
Commission or each of those associate members of the
Commission, as the case may be.
(5) Associate members of the Commission shall be deemed to be
members of the Commission for the purposes of section 19.
(6) For the purpose of the determination by the Commission of an
application for an authorization, or the making by the Commission
of any decision for the purposes of subsection 93(3), (3A) or (3B)
or 93AC(1), (2) or (2A), the Chairperson shall consider:
(a) whether he or she should give a direction under
subsection (4) of this section; or
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(b) in the case of a matter in relation to which the Chairperson
proposes to give a direction under subsection 19(1), whether
he or she should direct that the Division concerned is to
include an associate member of the Commission or associate
members of the Commission.
(7) Nothing in subsection (4) or (5) deems an associate member of the
Commission to be a member of the Commission for any purpose
related to the preparation of a report by the Commission referred to
in section 171.
8AB State/Territory AER members taken to be associate members
(1) For the purposes of this Act and the Public Governance,
Performance and Accountability Act 2013, a State/Territory AER
member is taken to be an associate member of the Commission
during the period for which he or she is an AER member.
Note: A State/Territory AER member who is taken to be an associate
member of the Commission can still be appointed as an associate
member under section 8A.
(2) However, a State/Territory AER member who is taken to be an
associate member under subsection (1), is not taken to be an
associate member for the purposes of sections 8A, 9, 14 and 15 and
for the purposes of section 29 of the Public Governance,
Performance and Accountability Act 2013.
(3) As an associate member, the State/Territory AER member holds
office on such terms and conditions as are specified in the
instrument of his or her appointment under section 44AP.
9 Remuneration
(1) A member of the Commission shall be paid such remuneration as
is determined by the Remuneration Tribunal, but, until that
remuneration is so determined, he or she shall be paid such
remuneration as is prescribed.
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(2) Subject to the Remuneration Tribunal Act 1973, a member of the
Commission shall be paid such allowances as are prescribed.
(3) In this section, member of the Commission includes an associate
member of the Commission.
10 Deputy Chairpersons
(1) The Governor-General may appoint a person who is, or is to be, a
member of the Commission to be a Deputy Chairperson of the
Commission.
(1A) If there is at least one fully-participating jurisdiction, the
Governor-General must not appoint a person as a Deputy
Chairperson unless the Governor-General is satisfied that a
majority of such jurisdictions support the appointment.
(1B) Before the Governor-General appoints a person as a Deputy
Chairperson, the Minister must be satisfied that, immediately after
the appointment, there will be at least one Deputy Chairperson who
has knowledge of, or experience in, small business matters.
(2) A person appointed under this section holds office as Deputy
Chairperson until the expiration of his or her period of appointment
as a member of the Commission or until he or she sooner ceases to
be a member of the Commission.
(3) Where a member of the Commission appointed as Deputy
Chairperson is, upon ceasing to be a Deputy Chairperson by virtue
of the expiration of the period of his or her appointment as a
member, re-appointed as a member, he or she is eligible for
re-appointment as Deputy Chairperson.
(4) A Deputy Chairperson may resign his or her office of Deputy
Chairperson by writing signed by him or her and delivered to the
Governor-General.
(5) Not more than 2 persons may hold office as Deputy Chairperson at
any one time.
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11 Acting Chairperson
(1) Where there is, or is expected to be, a vacancy in the office of
Chairperson, the Governor-General may appoint a person to act as
Chairperson until the filling of the vacancy.
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.
(2) Where the Chairperson is absent from duty or from Australia:
(a) if there are 2 Deputy Chairpersons available to act as
Chairperson, the Minister may appoint 1 of them to act as
Chairperson during the absence of the Chairperson; or
(b) if there is only 1 Deputy Chairperson available to act as
Chairperson, that Deputy Chairperson is to act as
Chairperson during the absence of the Chairperson; or
(c) if there are no Deputy Chairpersons or none of the Deputy
Chairpersons are available to act as Chairperson, the Minister
may appoint a member of the Commission to act as
Chairperson during the absence of the Chairperson, but any
such appointment ceases to have effect if a person is
appointed as a Deputy Chairperson or a Deputy Chairperson
becomes available to act as Chairperson.
Note: For rules that apply to persons acting as the Chairperson, see
section 33A of the Acts Interpretation Act 1901.
(3) A person acting as Chairperson shall act in that capacity on such
terms and conditions as the Governor-General determines and has
all the powers and duties, and shall perform all the functions,
conferred on the Chairperson by this Act.
12 Leave of absence
(1) A member of the Commission has such recreation leave
entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a member of the Commission leave of
absence, other than recreation leave, on such terms and conditions
as to remuneration or otherwise as the Minister determines.
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13 Termination of appointment of members of the Commission
(1) The Governor-General may terminate the appointment of a
member of the Commission for misbehaviour or physical or mental
incapacity.
(2) If a member of the Commission:
(a) becomes bankrupt, applies to take the benefit of any law for
the relief of bankrupt or insolvent debtors, compounds with
his or her creditors or makes an assignment of his or her
remuneration for their benefit; or
(b) fails to comply with his or her obligations under:
(i) for any member (including the Chairperson)—
section 29 of the Public Governance, Performance and
Accountability Act 2013 (which deals with the duty to
disclose interests) or rules made for the purposes of that
section; or
(ii) for the Chairperson—section 17 of this Act; or
(c) without the consent of the Minister engages in any paid
employment outside the duties of his or her office; or
(d) is absent from duty, except on leave of absence, for 14
consecutive days or for 28 days in any 12 months;
the Governor-General shall terminate the appointment of that
member of the Commission.
14 Termination of appointment of associate members of the
Commission
(1) The Minister may terminate the appointment of an associate
member of the Commission for misbehaviour or physical or mental
incapacity.
(2) If an associate member of the Commission:
(a) becomes bankrupt, applies to take the benefit of any law for
the relief of bankrupt or insolvent debtors, compounds with
his or her creditors or makes an assignment of his or her
remuneration for their benefit; or
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(b) fails to comply with his or her obligations under section 29 of
the Public Governance, Performance and Accountability Act
2013 (which deals with the duty to disclose interests) or rules
made for the purposes of that section;
the Minister shall terminate the appointment of that associate
member of the Commission.
15 Resignation
(1) A member of the Commission may resign his or her office by
writing signed by him or her and delivered to the
Governor-General.
(2) An associate member of the Commission may resign his or her
office by writing signed by him or her and delivered to the
Minister.
16 Arrangement of business
The Chairperson may give directions as to the arrangement of the
business of the Commission.
17 Disclosure of interests by Chairperson
(1) The Chairperson must give written notice to the Minister of all
pecuniary interests that the Chairperson has or acquires in any
business carried on in Australia or in any body corporate carrying
on any such business.
(2) Subsection (1) applies in addition to section 29 of the Public
Governance, Performance and Accountability Act 2013 (which
deals with the duty to disclose interests).
17A Disclosure of certain interests by members of the Commission
when taking part in determinations of matters
(1) If, as a result of rules made for the purposes of section 29 of the
Public Governance, Performance and Accountability Act 2013
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(which deals with the duty to disclose interests), the Chairperson
becomes aware that:
(a) a member of the Commission is taking part, or is to take part,
in the determination of a matter; and
(b) the member has a pecuniary interest that could conflict with
the proper performance of his or her functions in relation to
the determination of the matter;
then:
(c) the Chairperson must cause the interest of the member to be
disclosed to each person concerned in the matter (if the
matter has not already been disclosed to that person in
accordance with the rules); and
(d) unless each person concerned in the matter consents to the
member taking part, or continuing to take part, in the
determination of the matter—the member must not take part,
or continue to take part, in the determination of the matter.
(2) In this section, member of the Commission includes an associate
member of the Commission.
18 Meetings of Commission
(1) Subject to this section, the Chairperson shall convene such
meetings of the Commission as he or she thinks necessary for the
efficient performance of the functions of the Commission.
(2) Meetings of the Commission shall be held at such places as the
Chairperson determines.
(3) The Chairperson shall preside at all meetings of the Commission at
which he or she is present.
(4) In the absence of the Chairperson from a meeting of the
Commission:
(a) if there are 2 Deputy Chairpersons available to preside at the
meeting—the Chairperson may nominate 1 of them to
preside at the meeting; or
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(b) if there is only 1 Deputy Chairperson available to preside at
the meeting—that Deputy Chairperson is to preside at the
meeting.
(5) Subject to this Act and the regulations, the member presiding at a
meeting of the Commission may give directions regarding the
procedure to be followed at or in connexion with the meeting.
(6) At a meeting of the Commission:
(a) three members (including the Chairperson or a Deputy
Chairperson) form a quorum;
(b) all questions shall be decided by a majority of votes of the
members present and voting; and
(c) the member presiding has a deliberative vote and, in the
event of an equality of votes, also has a casting vote.
(7) If the Commission so determines, a member or members may
participate in, and form part of a quorum at, a meeting of the
Commission or a Division of the Commission by means of any of
the following methods of communication:
(a) telephone;
(b) closed circuit television;
(c) another method of communication determined by the
Commission.
(8) A determination made by the Commission under subsection (7)
may be made in respect of a particular meeting or meetings of the
Commission or a Division of the Commission or in respect of all
meetings of the Commission or a Division of the Commission.
19 Chairperson may direct Commission to sit in Divisions
(1) The Chairperson may, by writing signed by him or her, direct that
the powers of the Commission under this Act in relation to a matter
shall be exercised by a Division of the Commission constituted by
the Chairperson and such other members (not being less than two
in number) as are specified in the direction.
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(2) Where the Chairperson has given a direction under subsection (1),
he or she may, by writing signed by him or her, at any time before
the Division of the Commission specified in the direction has made
a determination in relation to the matter, revoke the direction or
amend the direction in relation to the membership of the Division
or in any other respect, and where the membership of a Division of
the Commission is changed, the Division as constituted after the
change may complete the determination of the matter.
(3) For the purposes of the determination of a matter specified in a
direction given under subsection (1), the Commission shall be
deemed to consist of the Division of the Commission specified in
the direction.
(4) The Chairperson is not required to attend a meeting of a Division
of the Commission if he or she does not think fit to do so.
(5) At a meeting of a Division of the Commission at which neither the
Chairperson nor a Deputy Chairperson is presiding, a member of
the Commission nominated for the purpose by the Chairperson
shall preside.
(6) Notwithstanding section 18, at a meeting of a Division of the
Commission, two members form a quorum.
(7) A Division of the Commission may exercise powers of the
Commission under this Act notwithstanding that another Division
of the Commission is exercising powers of the Commission at the
same time.
25 Delegation by Commission
(1) The Commission may, by resolution, delegate to a member of the
Commission, either generally or otherwise as provided by the
instrument of delegation, any of its powers under this Act (other
than Part VIIA or section 152ELA), Procedural Rules under
Part XIC, the Telecommunications Act 1997, the
Telecommunications (Consumer Protection and Service Standards)
Act 1999, the Water Act 2007, Rules of Conduct under Part 20 of
the Telecommunications Act 1997, the National Broadband
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Network Companies Act 2011, regulations under the National
Broadband Network Companies Act 2011, or the Australian Postal
Corporation Act 1989, other than this power of delegation and its
powers to grant, revoke or vary an authorization.
Note: Section 95ZD allows the Commission to delegate certain powers
under Part VIIA to a member of the Commission.
(2) A power so delegated may be exercised or performed by the
delegate in accordance with the instrument of delegation.
(3) A delegation under this section is revocable at will and does not
prevent the exercise of a power by the Commission.
26 Delegation by Commission of certain functions and powers
(1) The Commission may, by resolution, delegate:
(a) any of its functions and powers under or in relation to Parts
VI and XI and the Australian Consumer Law; and
(b) any of its powers under Part XII that relate to those Parts or
the Australian Consumer Law;
to a staff member of the Australian Securities and Investments
Commission within the meaning of section 5 of the Australian
Securities and Investments Commission Act 2001.
(2) The Commission must not delegate a function or power under
subsection (1) unless the Chairperson of the Australian Securities
and Investments Commission has agreed to the delegation in
writing.
27 Staff of Commission
(1) The staff necessary to assist the Commission shall be persons
engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Chairperson of the Commission and the APS employees
assisting the Chairperson together constitute a Statutory
Agency; and
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(b) the Chairperson is the Head of that Statutory Agency.
27A Consultants
(1) On behalf of the Commonwealth, the Commission may engage
persons to give advice to, and perform services for, the
Commission.
(2) The terms and conditions of engagement are as determined by the
Commission.
28 Functions of Commission in relation to dissemination of
information, law reform and research
(1) In addition to any other functions conferred on the Commission,
the Commission has the following functions:
(a) to make available to persons engaged in trade or commerce
and other interested persons general information for their
guidance with respect to the carrying out of the functions, or
the exercise of the powers, of the Commission under this
Act;
(b) to examine critically, and report to the Minister on, the laws
in force in Australia relating to the protection of consumers
in respect of matters referred to the Commission by the
Minister, being matters with respect to which the Parliament
has power to make laws;
(c) to conduct research in relation to matters affecting the
interests of consumers, being matters with respect to which
the Parliament has power to make laws;
(ca) to conduct research and undertake studies on matters that are
referred to the Commission by the Council and that relate to
the Commission’s other functions;
(d) to make available to the public general information in
relation to matters affecting the interests of consumers, being
matters with respect to which the Parliament has power to
make laws;
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(e) to make known for the guidance of consumers the rights and
obligations of persons under provisions of laws in force in
Australia that are designed to protect the interests of
consumers.
(2) Where a matter of a kind mentioned in paragraph (1)(b) is referred
by the Minister to the Commission for examination and report:
(a) the Commission shall cause to be published in the Gazette
and in such newspapers and other journals as the
Commission considers appropriate a notice:
(i) stating that the reference has been made and specifying
the matter to which the reference relates; and
(ii) inviting interested persons to furnish to the Commission
their views on that matter and specifying the time and
manner within which those views are to be furnished;
(b) the Commission shall not furnish its report to the Minister
until a reasonable opportunity has been given to interested
persons to furnish to the Commission their views on the
matter to which the reference relates; and
(c) the Commission shall include in its report to the Minister any
recommendations that it considers desirable with respect to
the reform of the law relating to the matter to which the
reference relates, whether those recommendations relate to
the amendment of existing laws or the making of new laws.
(3) The Minister shall cause a copy of each report furnished to him or
her by the Commission in relation to a matter referred to the
Commission under paragraph (1)(b) to be laid before each House
of the Parliament as soon as practicable after the report is received
by him or her.
29 Commission to comply with directions of Minister and
requirements of the Parliament
(1) The Minister may give the Commission directions connected with
the performance of its functions or the exercise of its powers under
this Act.
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(1A) The Minister must not give directions under subsection (1) relating
to:
(a) Part IIIA, IV, VII, VIIA, X, XIB or XIC; or
(b) Division 3 of Part XI in relation to individual cases.
(1B) The Commission must comply with a direction.
(2) Any direction given to the Commission under subsection (1) shall
be in writing and the Minister shall cause a copy of the direction to
be published in the Gazette as soon as practicable after the
direction is given.
(3) If either House of the Parliament or a Committee of either House,
or of both Houses, of the Parliament requires the Commission to
furnish to that House or Committee any information concerning the
performance of the functions of the Commission under this Act,
the Commission shall comply with the requirement.
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29A Establishment of Council
(1) The National Competition Council is established by this section.
(2) For the purposes of the finance law (within the meaning of the
Public Governance, Performance and Accountability Act 2013):
(a) the Council is a listed entity; and
(b) the Council President is the accountable authority of the
Council; and
(c) the following persons are officials of the Council:
(i) the Council President;
(ii) the other Councillors;
(iii) the staff referred to in subsection 29M(1);
(iv) consultants engaged under section 29N; and
(d) the purposes of the Council include the functions of the
Council referred to in section 29B.
29B Functions and powers of Council
(1) The Council’s functions include:
(a) carrying out research into matters referred to the Council by
the Minister; and
(b) providing advice on matters referred to the Council by the
Minister.
(2) The Council may:
(a) perform any function conferred on it by a law of the
Commonwealth, or of a State or Territory; and
(b) exercise any power:
(i) conferred by that law to facilitate the performance of
that function; or
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(ii) necessary or convenient to permit the performance of
that function.
(2A) The Council must not, under subsection (2):
(a) perform a function conferred on it by a law of a State or
Territory; or
(b) exercise a power that is so conferred;
unless the conferral of the function or power is in accordance with
the Competition Principles Agreement.
(2B) Subsection (2) does not apply to a State/Territory energy law.
Note: Section 29BA provides that a State/Territory energy law may confer
functions or powers, or impose duties, on the Council.
(3) In performing its functions, the Council may co-operate with a
department, body or authority of the Commonwealth, of a State or
of a Territory.
29BA Commonwealth consent to conferral of functions etc. on
Council
(1) A State/Territory energy law may confer functions or powers, or
impose duties, on the Council for the purposes of that law.
Note: Section 29BC sets out when such a law imposes a duty on the
Council.
(2) Subsection (1) does not authorise the conferral of a function or
power, or the imposition of a duty, by a State/Territory energy 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 Council; or
(b) the authorisation would otherwise exceed the legislative
power of the Commonwealth.
(3) The Council cannot perform a duty or function, or exercise a
power, under a State/Territory energy law unless the conferral of
the function or power, or the imposition of the duty, is in
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accordance with an agreement between the Commonwealth and the
State or Territory concerned.
29BB How duty is imposed
Application
(1) This section applies if a State/Territory energy law purports to
impose a duty on the Council.
Note: Section 29BC sets out when such a law imposes a duty on the
Council.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Part (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 Council.
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 29BA 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 Part to the extent necessary
to ensure that validity.
(4) If, because of subsection (3), this Part 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 Part.
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(5) The duty is taken to be imposed by this Part 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 Council.
(6) Subsections (1) to (5) do not limit section 29BA.
29BC When a State/Territory energy law imposes a duty
For the purposes of sections 29BA and 29BB, a State/Territory
energy law imposes a duty on the Council if:
(a) the law confers a function or power on the Council; and
(b) the circumstances in which the function or power is
conferred give rise to an obligation on the Council to perform
the function or to exercise the power.
29C Membership of Council
(1) The Council consists of the Council President and up to 4 other
Councillors.
(2) Each Councillor is to be appointed by the Governor-General, for a
term of up to 5 years.
(3) The Governor-General must not appoint a person as a Councillor
or Council President unless the Governor-General is satisfied that:
(a) the person qualifies for the appointment because of the
person’s knowledge of, or experience in, industry,
commerce, economics, law, consumer protection or public
administration; and
(b) a majority of the States and Territories that are parties to the
Competition Principles Agreement support the appointment.
29D Terms and conditions of office
(1) A Councillor may be appointed to hold office on either a full-time
or a part-time basis.
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(2) A Councillor holds office on such terms and conditions (if any) in
respect of matters not provided for by this Act as the
Governor-General determines.
29E Acting Council President
The Minister may appoint a Councillor to act as the Council
President:
(a) if there is a vacancy in the office of Council President,
whether or not an appointment has previously been made to
the office; or
(b) during any period, or during all periods, when the Council
President is absent from duty or absent from Australia or is,
for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.
29F Remuneration of Councillors
(1) A Councillor is to be paid the remuneration that is determined by
the Remuneration Tribunal. If no determination of the
Remuneration Tribunal is in operation, the Councillor is to be paid
the remuneration that is prescribed.
(2) A Councillor is to be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
29G Leave of absence
(1) A full-time Councillor has such recreation leave entitlements as are
determined by the Remuneration Tribunal.
(2) The Minister may grant a full-time Councillor leave of absence,
other than recreation leave, on such terms and conditions as the
Minister determines. The terms and conditions may include terms
and conditions relating to remuneration.
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29H Termination of appointment of Councillors
(1) The Governor-General may terminate the appointment of a
Councillor for misbehaviour or for physical or mental incapacity.
(2) The Governor-General must terminate the appointment of a
Councillor who:
(a) becomes bankrupt, applies to take the benefit of any law for
the relief of bankrupt or insolvent debtors, compounds with
his or her creditors or makes an assignment of his or her
remuneration for their benefit;
(b) fails to comply with his or her obligations under section 29 of
the Public Governance, Performance and Accountability Act
2013 (which deals with the duty to disclose interests) or rules
made for the purposes of that section;
(c) in the case of a full-time Councillor—engages in any paid
employment outside the duties of the Councillor’s office
without the consent of the Minister;
(d) in the case of a full-time Councillor—is absent from duty,
except on leave of absence, for 14 consecutive days or for 28
days in any 12 months.
29I Resignation of Councillors
A Councillor may resign by giving the Governor-General a signed
resignation notice.
29J Arrangement of Council business
(1) Subject to subsection (2), the Council President may give
directions about the arrangement of the Council’s business.
(2) The Council must not carry out any work (other than work relating
to a function under Part IIIA or VIIA) except in accordance with a
program agreed to by:
(a) a majority of the parties to the Competition Principles
Agreement; or
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(b) if the parties to the Agreement are evenly divided on the
question of agreeing to a program—the Commonwealth.
29L Council meetings
(1) The Council President must convene the meetings that the Council
President thinks are necessary to perform the Council’s functions
efficiently.
(2) The meetings must be held in places determined by the Council
President.
(3) The Council President must preside at any meeting that he or she
attends.
(4) If the Council President is absent from a meeting, a Councillor
chosen by the Councillors at the meeting must preside.
(5) The Councillor presiding at a meeting may give directions on the
procedure to be followed in relation to the meeting.
(6) The quorum for a meeting is 3 Councillors (including the Council
President).
(7) At a meeting, a question must be decided by a majority of votes of
the Councillors present and voting. The Councillor presiding has a
deliberative vote, and a casting vote if the deliberative votes are
equally divided.
29LA Resolutions without meetings
(1) If all Councillors (other than those that must not sign a document
because of subsection (3)) sign a document containing a statement
that they are in favour of a resolution in terms set out in the
document, then a resolution in those terms is taken to have been
passed at a duly constituted meeting of the Council held on the day
the document was signed, or, if the members sign the document on
different days, on the last of those days.
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(2) For the purposes of subsection (1), 2 or more separate documents
containing statements in identical terms each of which is signed by
one or more Councillors are together taken to constitute one
document containing a statement in those terms signed by those
Councillors on the respective days on which they signed the
separate documents.
(3) A Councillor must not sign a document containing a statement in
favour of a resolution if the resolution concerns a matter in which
the Councillor has any pecuniary interest, being an interest that
could conflict with the proper performance of the Councillor’s
functions in relation to any matter.
29M Staff to help Council
(1) The staff needed to help the Council are to be persons engaged
under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Council President and the APS employees assisting the
Council President together constitute a Statutory Agency;
and
(b) the Council President is the Head of that Statutory Agency.
29N Consultants
(1) On behalf of the Commonwealth, the Council may engage persons
to give advice to, and perform services for, the Council.
(2) The terms and conditions of engagement are as determined by the
Council.
29O Annual report
An annual report prepared by the Council President and given to
the Minister under section 46 of the Public Governance,
Performance and Accountability Act 2013 for a period must
include details of the following:
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(a) the time taken by the Council to make a recommendation on
any application under section 44F, 44M, 44NA or 44NBA
(about access regime applications under Part IIIA);
(b) any court or Tribunal decision interpreting:
(i) paragraph (f) of the definition of service in section 44B
(which is an exclusion to do with production processes);
or
(ii) section 44CA (about declaration criteria for services
under Part IIIA);
(c) any matter the Council considers has impeded the operation
of Part IIIA from delivering efficient access outcomes;
(d) any evidence of the benefits arising from determinations of
the Commission under section 44V (about arbitration
determinations under Part IIIA);
(e) any evidence of the costs of, or the disincentives for,
investment in the infrastructure by which declared services
(within the meaning of Part IIIA) are provided;
(f) any implications for the operation of Part IIIA in the future.
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30 Constitution of Tribunal
(1) The Trade Practices Tribunal that existed immediately before this
subsection commenced continues to exist as the Australian
Competition Tribunal.
(2) The Tribunal so continued in existence shall consist of a President
and such number of Deputy Presidents and other members as are
appointed in accordance with this section.
(3) A member of the Tribunal shall be appointed by the
Governor-General.
31 Qualifications of members of Tribunal
(1) A person shall not be appointed as a presidential member of the
Tribunal unless he or she is a Judge of a Federal Court, not being
the High Court or a court of an external Territory.
(2) A person shall not be appointed as a member of the Tribunal other
than a presidential member unless he or she appears to the
Governor-General to be qualified for appointment by virtue of his
or her knowledge of, or experience in, industry, commerce,
economics, law or public administration.
31A Appointment of Judge as presidential member of Tribunal not
to affect tenure etc.
The appointment of a Judge of a Federal Court as a presidential
member of the Tribunal, or service by a Judge of a Federal Court
as a presidential member of the Tribunal, whether the appointment
was or is made or the service occurred or occurs before or after the
commencement of this section, does not affect, and shall be
deemed never to have affected, his or her tenure of office as a
Judge of a Federal Court or his or her rank, title, status,
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precedence, salary, annual or other allowances or other rights or
privileges as the holder of his or her office as a Judge of a Federal
Court and, for all purposes, his or her service, whether before or
after the commencement of this section, as a presidential member
of the Tribunal shall be taken to have been, or to be, service as the
holder of his or her office as a Judge of a Federal Court.
32 Terms and conditions of appointment
Subject to this Part, a member of the Tribunal holds office for such
period, not exceeding 7 years, as is specified in the instrument of
his or her appointment and on such terms and conditions as the
Governor-General determines, but is eligible for re-appointment.
33 Remuneration and allowances of members of Tribunal
(4) A member of the Tribunal other than a presidential member shall
be paid such remuneration as is determined by the Remuneration
Tribunal.
(5) A member of the Tribunal other than a presidential member shall
be paid such allowances as are prescribed.
(6) Subsections (4) and (5) have effect subject to the Remuneration
Tribunal Act 1973.
34 Acting appointments
(1) Where:
(a) the President is, or is expected to be, absent from duty; or
(b) there is, or is expected to be, a vacancy in the office of
President;
the Minister may appoint a Deputy President or an acting Deputy
President to act as President during the absence, or while there is a
vacancy in the office of President, as the case may be.
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.
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(2) Where a presidential member (including the President) of the
Tribunal is, or is expected to be, absent from duty, the
Governor-General may appoint a person qualified to be appointed
as a presidential member to act as a Deputy President during the
absence from duty of the member.
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.
(3) Where a member of the Tribunal other than a presidential member
is, or is expected to be, absent from duty, the Governor-General
may appoint a person qualified to be appointed as a member of the
Tribunal other than a presidential member to act as such a member
during the absence from duty of the member.
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.
(4) Where a person has been appointed under subsection (2) or (3), the
Governor-General may, by reason of pending proceedings or other
special circumstances, direct, before the absent member of the
Tribunal resumes duty, that the person so appointed shall continue
to act under the appointment after the resumption of duty by the
absent member until the Governor-General terminates the
appointment, but a person shall not continue to act as a member of
the Tribunal by virtue of this subsection for more than 12 months
after the resumption of duty by the absent member.
(5) Where a person has been appointed under this section to act as a
member of the Tribunal during the absence from duty of a member
of the Tribunal, and that member ceases to hold office without
having resumed duty, the period of appointment of the person so
appointed shall be deemed to continue until it is terminated by the
Governor-General, or until the expiration of 12 months from the
date on which the absent member ceases to hold office, whichever
first happens.
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35 Suspension and removal of members of Tribunal
(1) The Governor-General may suspend a member of the Tribunal
from office on the ground of misbehaviour or physical or mental
incapacity.
(2) The Minister shall cause a statement of the ground of the
suspension to be laid before each House of the Parliament within 7
sitting days of the House after the suspension.
(3) Where such a statement has been laid before a House of the
Parliament, that House may, within 15 sitting days of that House
after the day on which the statement has been laid before it, by
resolution, declare that the member of the Tribunal should be
restored to office and, if each House so passes a resolution, the
Governor-General shall terminate the suspension.
(4) If, at the expiration of 15 sitting days of a House of the Parliament
after the day on which the statement has been laid before that
House, that House has not passed such a resolution, the
Governor-General may remove the member of the Tribunal from
office.
(5) If a member of the Tribunal becomes bankrupt, applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his
or her remuneration for their benefit, the Governor-General shall
remove him or her from office.
(6) A member of the Tribunal shall not be removed from office except
as provided by this section.
(7) A presidential member of the Tribunal ceases to hold office if he or
she no longer holds office as a Judge of a Federal Court, not being
the High Court or a court of an external Territory.
36 Resignation
A member of the Tribunal may resign his or her office by writing
signed by him or her and delivered to the Governor-General.
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37 Constitution of Tribunal for particular matters
The Tribunal shall, for the purpose of hearing and determining
proceedings, be constituted by a Division of the Tribunal
consisting of a presidential member of the Tribunal and two
members of the Tribunal who are not presidential members.
38 Validity of determinations
The validity of a determination of the Tribunal shall not be affected
or called in question by reason of any defect or irregularity in the
constitution of the Tribunal.
39 President may give directions
(1) The President may give directions as to the arrangement of the
business of the Tribunal and the constitution of Divisions of the
Tribunal.
(2) The President may give directions to the Deputy Presidents in
relation to the exercise by the Deputy Presidents of powers with
respect to matters of procedure in proceedings before the Tribunal.
Note: Subsection 103(2) provides that any presidential member may
exercise powers with respect to matters of procedure in proceedings
before the Tribunal.
40 Disclosure of interests by members of Tribunal
(1) Where a member of the Tribunal is, or is to be, a member of a
Division of the Tribunal in any proceedings and the member has or
acquires any pecuniary interest that could conflict with the proper
performance of his or her functions in relation to the proceedings:
(a) the member shall disclose the interest to the President; and
(b) the member shall not take part, or continue to take part, in the
proceedings if:
(i) the President gives a direction under paragraph (2)(a) in
relation to the proceedings; or
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(ii) all of the persons concerned in the proceedings do not
consent to the member taking part in the proceedings.
(2) Where the President becomes aware that a member of the Tribunal
is, or is to be, a member of a Division of the Tribunal in any
proceedings and that the member has in relation to the proceedings
such an interest:
(a) if the President considers that the member should not take
part, or should not continue to take part, in the proceedings—
the President shall give a direction to the member
accordingly; or
(b) in any other case—the President shall cause the interest of
the member to be disclosed to the persons concerned in the
proceedings.
41 Presidential member to preside
The presidential member who is a member of a Division shall
preside at proceedings of that Division.
42 Decision of questions
(1) A question of law arising in a matter before a Division of the
Tribunal (including the question whether a particular question is
one of law) shall be determined in accordance with the opinion of
the presidential member presiding.
(2) Subject to subsection (1), a question arising in proceedings before
a Division of the Tribunal shall be determined in accordance with
the opinion of a majority of the members constituting the Division.
43 Member of Tribunal ceasing to be available
(1) This section applies where the hearing of any proceedings has been
commenced or completed by the Tribunal but, before the matter to
which the proceedings relate has been determined, one of the
members constituting the Tribunal for the purposes of the
proceedings has ceased to be a member of the Tribunal or has
ceased to be available for the purposes of the proceedings.
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(2) Where the President is satisfied that this section applies in relation
to proceedings, the President may direct that a specified member of
the Tribunal shall take the place of the member referred to in
subsection (1) for the purposes of the proceedings.
(3) Where this section applies in relation to proceedings that were
being dealt with before the Tribunal, the President may, instead of
giving a direction under subsection (2), direct that the hearing and
determination, or the determination, of the proceedings be
completed by the Tribunal constituted by the members other than
the member referred to in subsection (1).
(4) Where the President has given a direction under subsection (3), he
or she may, at any time before the determination of the
proceedings, direct that a third member be added to the Tribunal as
constituted in accordance with subsection (3).
(5) The Tribunal as constituted in accordance with any of the
provisions of this section for the purposes of any proceedings may
have regard to any record of the proceedings before the Tribunal as
previously constituted.
43A Counsel assisting Tribunal
(1) The President may, on behalf of the Commonwealth, appoint a
legal practitioner to assist the Tribunal as counsel, either generally
or in relation to a particular matter or matters.
(2) In this section:
legal practitioner means a legal practitioner (however described)
of the High Court or of the Supreme Court of a State or Territory.
43B Consultants
The Registrar may, on behalf of the Commonwealth, engage
persons as consultants to, or to perform services for, the Tribunal.
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44 Staff of Tribunal
(1) There shall be a Registrar of the Tribunal and such Deputy
Registrars of the Tribunal as are appointed in accordance with this
section.
(2) The Registrar and the Deputy Registrars shall be appointed by the
Minister and shall have such duties and functions as are provided
by this Act and the regulations and such other duties and functions
as the President directs.
(3) The Registrar and the Deputy Registrars, and the staff necessary to
assist them, shall be persons engaged under the Public Service Act
1999.
44A Acting appointments
The Minister may appoint a person who is engaged under the
Public Service Act 1999 to act as the Registrar or as a Deputy
Registrar during any period, or during all periods, when:
(a) the Registrar or that Deputy Registrar, as the case may be, is
absent from duty or from Australia or is, for any other
reason, unable to perform the duties and functions of his or
her office; or
(b) there is a vacancy in the office of Registrar or in that office of
Deputy Registrar, as the case may be.
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.
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Part IIIAA—The Australian Energy Regulator
(AER)
Division 1—Preliminary
44AB Definitions
In this Part, unless the contrary intention appears:
Australian Energy Market Agreement means the agreement, as
amended from time to time:
(a) that relates to energy; and
(b) that is between the Commonwealth, all of the States, the
Australian Capital Territory and the Northern Territory; and
(c) that is first made in 2004; and
(d) that agrees to the establishment of the AER and the AEMC.
Commonwealth AER member means the member referred to in
section 44AM.
full-time AER member means an AER member appointed on a
full-time basis.
part-time AER member means an AER member appointed on a
part-time basis.
44AC This Part binds the Crown
This Part binds the Crown in each of its capacities.
44AD Extra-territorial operation
It is the intention of the Parliament that the operation of this Part
should, as far as possible, include operation in relation to the
following:
(a) things situated in or outside Australia;
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(b) acts, transactions and matters done, entered into or occurring
in or outside Australia;
(c) things, acts, transactions and matters (wherever situated,
done, entered into or occurring) that would, apart from this
Act, be governed or otherwise affected by the law of a State,
a Territory or a foreign country.
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Division 2—Establishment of the AER
44AE Establishment of the AER
(1) The Australian Energy Regulator (the AER) is established by this
section.
(2) The AER:
(a) is a body corporate with perpetual succession; and
(b) must have a common seal; and
(c) may acquire, hold and dispose of real and personal property;
and
(d) may sue and be sued in its corporate name.
(3) However, the AER is taken, for the purposes of the finance law
(within the meaning of the Public Governance, Performance and
Accountability Act 2013):
(a) not to be a corporate Commonwealth entity; and
(b) to be a part of the Commonwealth, and a part of the
Commission; and
(c) not to be a body corporate.
44AF AER to hold money and property on behalf of the
Commonwealth
The AER holds any money or property for and on behalf of the
Commonwealth.
44AG Constitution of the AER
The AER consists of:
(a) a Commonwealth AER member, appointed in accordance
with section 44AM; and
(b) 2 State/Territory AER members, appointed in accordance
with section 44AP.
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Division 3—Functions and powers of the AER
44AH Commonwealth functions
The AER has any functions:
(a) conferred under a law of the Commonwealth; or
(b) prescribed by regulations made under this Act.
Note: The AER may have functions under the Australian Energy Market Act
2004.
44AI Commonwealth consent to conferral of functions etc. on AER
General rule
(1) Subject to section 44AIA, a State/Territory energy law or a local
energy instrument may confer functions or powers, or impose
duties, on the AER for the purposes of that law or instrument.
Note: Section 44AK sets out when such a law or instrument imposes a duty
on the AER.
(2) Subsection (1) does not authorise the conferral of a function or
power, or the imposition of a duty, by a State/Territory energy law
or local energy instrument 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 AER; or
(b) the authorisation would otherwise exceed the legislative
power of the Commonwealth.
(3) The AER cannot perform a duty or function, or exercise a power,
under a State/Territory energy law or local energy instrument
unless the conferral of the function or power, or the imposition of
the duty, is in accordance with the Australian Energy Market
Agreement, or any other relevant agreement between the
Commonwealth and the State or Territory concerned.
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(4) A local energy instrument may confer functions or powers, or
impose duties, on the AER only if the instrument is designated for
the purposes of this subsection under the Australian Energy Market
Agreement, or any other relevant agreement between the
Commonwealth and the State or Territory that made the
instrument.
(5) To avoid doubt, if a State/Territory energy law is also a local
energy instrument, subsection (4) applies to the law.
44AIA No merits review of AER decisions
A decision of the AER under a State/Territory energy law or local
energy instrument is not to be subject to merits review (however
described) by a body established under a law of a State or
Territory.
44AJ How duty is imposed
Application
(1) This section applies if a State/Territory energy law or local energy
instrument purports to impose a duty on the AER.
Note 1: Section 44AK sets out when such a law or instrument imposes a duty
on the AER.
Note 2: Section 320 of the South Australian Energy Retail Legislation, as it
applies as a law of a State or Territory, deals with the case where a
duty purportedly imposed on a Commonwealth body under that
applied law cannot be imposed by the State or Territory or the
Commonwealth due to constitutional doctrines restricting such duties.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Part (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
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(b) imposing the duty by the law or instrument of the State or
Territory is consistent with the constitutional doctrines
restricting the duties that may be imposed on the AER.
Note: If this subsection applies, the duty will be taken to be imposed by
force of the law or instrument of the State or Territory (the
Commonwealth having consented under section 44AI to the
imposition of the duty by that law or instrument).
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 or instrument of the State
or Territory), the duty is taken to be imposed by this Part to the
extent necessary to ensure that validity.
(4) If, because of subsection (3), this Part 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 Part.
(5) The duty is taken to be imposed by this Part 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 AER.
(6) Subsections (1) to (5) do not limit section 44AI.
44AK When a State/Territory energy law etc. imposes a duty
For the purposes of sections 44AI and 44AJ, a State/Territory
energy law or local energy instrument imposes a duty on the AER
if:
(a) the law or instrument confers a function or power on the
AER; and
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(b) the circumstances in which the function or power is
conferred give rise to an obligation on the AER to perform
the function or to exercise the power.
44AL Powers of the AER
The AER has power to do all things necessary or convenient to be
done for or in connection with the performance of its functions.
Note: State and Territory laws or instruments may also confer powers on the
AER in respect of its functions under those laws or instruments: see
section 44AI.
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Division 4—Administrative provisions relating to the AER
Subdivision A—Appointment etc. of members
44AM Appointment of Commonwealth AER member
(1) A Commonwealth AER member is to be appointed by the
Governor-General by written instrument.
(2) The Commonwealth AER member holds office for the period
specified in the instrument of appointment. The period must not
exceed 5 years.
(3) A person is not eligible for appointment as the Commonwealth
AER member unless the person is a member of the Commission. If
the person ceases to be a member of the Commission, then the
person also ceases to be an AER member.
(4) A person is not eligible for appointment as the Commonwealth
AER member unless the person has been chosen for appointment
in accordance with the Australian Energy Market Agreement.
44AN Membership of AER and Commission
Member taken to be full-time member of both AER and
Commission
(1) For the purposes of this Part, the Commonwealth AER member is
taken to be a full-time member of the AER.
(2) However, the Commonwealth AER member remains a full-time
member of the Commission.
Paid employment
(3) Paragraph 13(2)(c) does not apply to a member of the Commission
in respect of any paid employment of that member as an AER
member.
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(4) Sections 44AX and 44AAB do not apply to an AER member in
respect of the paid employment of that member as a member of the
Commission.
44AO Acting appointment of Commonwealth AER member
(1) The Chairperson may appoint a member of the Commission to act
as the Commonwealth AER member:
(a) during a vacancy in the office of Commonwealth AER
member, whether or not an appointment has previously been
made to the office; or
(b) during any period, or during all periods, when the
Commonwealth AER member is absent from duty or from
Australia, or is, for any reason, unable to perform the duties
of the office.
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.
(2) If a person acting as the Commonwealth AER member ceases to be
a member of the Commission, then the appointment to act as the
Commonwealth AER member also ceases.
44AP Appointment of State/Territory AER members
(1) A State/Territory AER member is to be appointed by the
Governor-General by written instrument, on either a full-time or
part-time basis.
Note: A State/Territory AER member is also taken to be an associate
member of the Commission: see section 8AB.
(2) A State/Territory AER member holds office for the period
specified in the instrument of appointment. The period must not
exceed 5 years.
(3) A person is not eligible for appointment as a State/Territory AER
member unless the person, being a person who has knowledge of,
or experience in, industry, commerce, economics, law, consumer
protection or public administration, has been nominated for
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appointment in accordance with the Australian Energy Market
Agreement.
44AQ Acting appointment of State/Territory AER member
(1) The Minister may appoint a person to act as a State/Territory AER
member:
(a) during a vacancy in the office of State/Territory AER
member, whether or not an appointment has previously been
made to the office; or
(b) during any period, or during all periods, when the
State/Territory AER member is absent from duty or from
Australia, or is, for any reason, unable to perform the duties
of the office.
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.
(2) A person is not eligible for appointment to act as a State/Territory
AER member unless the person, being a person who has
knowledge of, or experience in, industry, commerce, economics,
law, consumer protection or public administration, has been
nominated for appointment in accordance with the Australian
Energy Market Agreement.
44AR AER Chair
(1) One of the AER members is to be appointed by the
Governor-General as the AER Chair, by written instrument. The
appointment as AER Chair may be made at the same time as the
appointment as AER member, or at a later time.
(2) A member is not eligible for appointment as AER Chair unless the
person has been nominated for appointment as the Chair in
accordance with the Australian Energy Market Agreement.
(3) The AER Chair holds office for the period specified in the
instrument of appointment. The period must not exceed 5 years.
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(4) If the AER Chair ceases to be an AER member, then he or she also
ceases to be the AER Chair.
Note: A person may cease to be the AER Chair without ceasing to be an
AER member.
44AS Acting AER Chair
(1) The Minister may appoint an AER member to act as the AER
Chair:
(a) during a vacancy in the office of the AER Chair, whether or
not an appointment has previously been made to the office;
or
(b) during any period, or during all periods, when the AER Chair
is absent from duty or from Australia, or is, for any reason,
unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.
(2) If a person acting as the AER Chair ceases to be an AER member,
then the appointment to act as the AER Chair also ceases.
44AT Remuneration of AER members
(1) An AER member (other than the Commonwealth AER member) is
to be paid the remuneration that is determined by the Remuneration
Tribunal. If no determination of that remuneration by the Tribunal
is in operation, the member is to be paid the remuneration that is
prescribed.
(2) An AER member (other than the Commonwealth AER member) is
to be paid the allowances that are prescribed.
(3) Subsections (1) and (2) have effect subject to the Remuneration
Tribunal Act 1973.
(4) The Commonwealth AER member is not entitled to be paid
remuneration or allowances.
Note: The Commonwealth AER member is paid as a member of the
Commission.
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44AU Additional remuneration of AER Chair
(1) The AER Chair (whether or not the Commonwealth AER member)
is to be paid additional remuneration (if any) determined by the
Remuneration Tribunal.
(2) The AER Chair (whether or not the Commonwealth AER member)
is to be paid additional allowances (if any) that are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act
1973 other than subsection 7(11) of that Act.
44AV Leave of absence
(1) A full-time AER member has the recreation leave entitlements that
are determined by the Remuneration Tribunal.
(2) The Minister may grant a full-time AER member leave of absence,
other than recreation leave, on the terms and conditions as to
remuneration or otherwise that the Minister determines.
(3) The AER Chair may grant leave of absence to any part-time AER
member on the terms and conditions that the AER Chair
determines.
44AW Other terms and conditions
An AER member holds office on the terms and conditions (if any)
in relation to matters not covered by this Act that are determined
by the Governor-General.
44AX Outside employment
(1) A full-time AER member must not engage in paid employment
outside the duties of the member’s office without the Minister’s
consent.
(2) A part-time AER member must not engage in any paid
employment that conflicts or could conflict with the proper
performance of the member’s duties.
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44AY Disclosure of interests
(1) If an AER member has any direct or indirect interest in a matter
being considered, or about to be considered, by the AER, being an
interest that could conflict with the proper performance of the
member’s functions in relation to a matter arising at a meeting of
the AER, then the member must as soon as practicable disclose that
interest at a meeting of the AER.
(2) The disclosure, and any decision made by the AER in relation to
the disclosure, must be recorded in the minutes of the meeting.
(3) Section 29 of the Public Governance, Performance and
Accountability Act 2013 (which deals with the duty to disclose
interests) does not apply in relation to a person who is an AER
member when he or she is acting in his or her capacity as an AER
member.
Note: Section 29 of the Public Governance, Performance and
Accountability Act 2013 will apply in relation to a person who is an
AER member when he or she is acting in his or her capacity as an
associate member of the Commission.
44AZ Resignation
(1) An AER member may resign his or her appointment by giving the
Governor-General a written resignation.
(2) The AER Chair may resign his or her appointment as AER Chair
by giving the Governor-General a written resignation. The
resignation does not affect the person’s appointment as an AER
member.
44AAB Termination of appointment
All AER members
(1) The Governor-General may terminate the appointment of an AER
member:
(a) for misbehaviour or physical or mental incapacity; or
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(b) if the member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the
benefit of his or her creditors; or
(c) if the member fails, without reasonable excuse, to comply
with section 44AY.
Additional grounds: full-time AER members
(2) The Governor-General may terminate the appointment of a
full-time AER member if:
(a) the member is absent, except on leave of absence, for 14
consecutive days or for 28 days in any 12 months; or
(b) the member engages, except with the Minister’s consent, in
paid employment outside the duties of his or her office.
Additional grounds: part-time AER members
(3) The Governor-General may terminate the appointment of a
part-time AER member if:
(a) the member is absent, except on leave of absence, from 3
consecutive meetings of the AER; or
(b) the member engages in paid employment that conflicts or
could conflict with the proper performance of the duties of
his or her office.
Subdivision B—Staff etc. to assist the AER
44AAC Staff etc. to assist the AER
The Chairperson must make available:
(a) persons engaged under section 27; and
(b) consultants engaged under section 27A;
to assist the AER to perform its functions.
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Subdivision C—Meetings of the AER etc.
44AAD Meetings
(1) The AER Chair must convene such meetings of the AER as he or
she thinks necessary for the efficient performance of the functions
of the AER.
Note: See also section 33B of the Acts Interpretation Act 1901, which
contains extra rules about meetings by telephone etc.
(2) Meetings of the AER must be held at such places as the AER Chair
determines.
(3) At a meeting of the AER, 2 members constitute a quorum. The
quorum must include the AER Chair and must also include the
Commonwealth AER member (if the Commonwealth AER
member is not also the AER Chair).
(4) Questions arising at a meeting must be determined by unanimous
vote of the members present and voting.
(5) The AER Chair must preside at all meetings of the AER.
(6) The AER Chair may give directions regarding the procedure to be
followed at or in connection with a meeting.
44AAE Resolutions without meetings
(1) If all 3 AER members sign a document containing a statement that
they are in favour of a resolution in terms set out in the document,
then a resolution in those terms is taken to have been passed at a
duly constituted meeting of the AER held on the day the document
was signed, or, if the members sign the document on different
days, on the last of those days.
(2) For the purposes of subsection (1), 2 or more separate documents
containing statements in identical terms each of which is signed by
one or more members are together taken to constitute one
document containing a statement in those terms signed by those
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members on the respective days on which they signed the separate
documents.
(3) A member must not sign a document containing a statement in
favour of a resolution if the resolution concerns a matter in which
the member has any direct or indirect interest, being an interest that
could conflict with the proper performance of the member’s
functions in relation to any matter.
44AAEA Arbitration
(1) Sections 44AAD and 44AAE do not apply to the AER as
constituted for an arbitration under:
(a) the National Electricity (Commonwealth) Law (as defined by
the Australian Energy Market Act 2004); or
(b) the National Gas (Commonwealth) Law (as defined by the
Australian Energy Market Act 2004); or
(c) a provision of a State/Territory energy law.
(2) The reference in subsection (1) to an arbitration includes a
reference to each of the following:
(a) the making, variation or revocation of an access
determination (within the meaning of the law concerned);
(b) the performance of a function, or the exercise of a power, in
connection with the making, variation or revocation of an
access determination (within the meaning of the law
concerned).
Subdivision D—Miscellaneous
44AAF Confidentiality
(1) The AER must take all reasonable measures to protect from
unauthorised use or disclosure information:
(a) given to it in confidence in, or in connection with, the
performance of its functions or the exercise of its powers; or
(b) that is obtained by compulsion in the exercise of its powers.
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Note: The Privacy Act 1988 also contains provisions relevant to the use and
disclosure of information.
Authorised use and disclosure
(2) For the purposes of subsection (1), the disclosure of information to
the extent required or permitted by a law of the Commonwealth, a
State or Territory, is authorised use and disclosure of the
information.
(3) Disclosing information to one of the following is authorised use
and disclosure of the information:
(a) the Commission;
(b) the AEMC;
(c) Australian Energy Market Operator Limited
(ACN 072 010 327);
(ca) the Clean Energy Regulator;
(cb) the Climate Change Authority;
(d) any staff or consultant assisting a body mentioned in
paragraph (a), (b), (c), (ca) or (cb) in performing its functions
or exercising its powers;
(e) any other person or body prescribed by the regulations for the
purpose of this paragraph.
(4) A person or body to whom information is disclosed under
subsection (3) may use the information for any purpose connected
with the performance of the functions, or the exercise of the
powers, of the person or body.
(5) The AER may impose conditions to be complied with in relation to
information disclosed under subsection (3).
(6) For the purposes of subsection (1), the use or disclosure of
information by a person for the purposes of:
(a) performing the person’s functions, or exercising the person’s
powers, as:
(i) an AER member, a person referred to in section 44AAC
or a delegate of the AER; or
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(ii) a person who is authorised to perform or exercise a
function or power of, or on behalf of, the AER; or
(b) the performance of functions, or the exercise of powers, by
the person by way of assisting a delegate of the AER;
is authorised use and disclosure of the information.
(7) Regulations made for the purposes of this section may specify uses
of information and disclosures of information that are authorised
uses and authorised disclosures for the purposes of this section.
(8) Nothing in any of the above subsections limits:
(a) anything else in any of those subsections; or
(b) what may otherwise constitute, for the purposes of
subsection (1), authorised use or disclosure of information.
(9) Despite subsections (3) to (7), if:
(a) any of the following restricts or prohibits the use or
disclosure of information:
(i) section 18D of the National Electricity Law set out in
the Schedule to the National Electricity (South
Australia) Act 1996 of South Australia as in force from
time to time;
(ii) that section applied as a law of another State or
Territory; and
(b) the use or disclosure of the information would, apart from
this subsection, be authorised under this section;
the use or disclosure of the information is authorised for the
purposes of this section only to the extent that the use or disclosure
of the information is required or permitted in accordance with the
relevant section mentioned in subparagraph (i) or (ii).
44AAG Federal Court may make certain orders
(1) The Federal Court may make an order, on application by the AER
on behalf of the Commonwealth, declaring that a person is in
breach of:
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(a) a uniform energy law that is applied as a law of the
Commonwealth; or
(b) a State/Territory energy law.
(2) If the order declares the person to be in breach of such a law, the
order may include one or more of the following:
(a) an order that the person pay a civil penalty determined in
accordance with the law;
(b) an order that the person cease, within a specified period, the
act, activity or practice constituting the breach;
(c) an order that the person take such action, or adopt such
practice, as the Court requires for remedying the breach or
preventing a recurrence of the breach;
(d) an order that the person implement a specified program for
compliance with the law;
(e) an order of a kind prescribed by regulations made under this
Act.
(3) If a person has engaged, is engaging or is proposing to engage in
any conduct in breach of:
(a) a uniform energy law that is applied as a law of the
Commonwealth; or
(b) a State/Territory energy law;
the Federal Court may, on application by the AER on behalf of the
Commonwealth, grant an injunction:
(c) restraining the person from engaging in the conduct; and
(d) if, in the court’s opinion, it is desirable to do so—requiring
the person to do something.
(4) The power of the Federal Court under subsection (3) to grant an
injunction restraining a person from engaging in conduct of a
particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct
of that kind—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; or
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(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—
whether or not the person has previously engaged in conduct
of that kind and whether or not there is an imminent danger
of substantial damage to any person if the person engages in
conduct of that kind.
44AAGA Federal Court may order disconnection if an event
specified in the National Electricity Rules occurs
(1) If a relevant disconnection event occurs, the Federal Court may
make an order, on application by the AER on behalf of the
Commonwealth, directing that a Registered participant’s loads be
disconnected.
(2) In this section:
National Electricity Law means:
(a) the National Electricity Law set out in the Schedule to the
National Electricity (South Australia) Act 1996 of South
Australia as in force from time to time; or
(b) that Law as it applies as a law of another State; or
(c) that Law as it applies as a law of a Territory; or
(d) that Law as it applies as a law of the Commonwealth.
National Electricity Rules means:
(a) the National Electricity Rules, as in force from time to time,
made under the National Electricity Law set out in the
Schedule to the National Electricity (South Australia) Act
1996 of South Australia; or
(b) those Rules as they apply as a law of another State; or
(c) those Rules as they apply as a law of a Territory; or
(d) those Rules as they apply as a law of the Commonwealth.
Registered participant has the same meaning as in the National
Electricity Law.
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relevant disconnection event means an event specified in the
National Electricity Rules as being an event for which a Registered
participant’s loads may be disconnected, where the event does not
constitute a breach of the National Electricity Rules.
44AAH Delegation by the AER
The AER may, by resolution, delegate:
(a) all or any of the AER’s functions and powers under this Part
or under regulations made under this Act, or under another
law of the Commonwealth; or
(b) all or any of the AER’s functions and powers under a
State/Territory energy law;
to an AER member or to an SES employee, or acting SES
employee, assisting the AER as mentioned in section 44AAC.
Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions
of SES employee and acting SES employee.
Note 2: See also sections 34AA to 34A of the Acts Interpretation Act 1901,
which contain extra rules about delegations.
44AAI Fees
(1) The AER may charge a fee specified in the regulations for services
provided by it in performing any of its functions, or exercising any
of its powers, under this Part or under regulations made under this
Act, or under another law of the Commonwealth or a
State/Territory energy law.
(2) The fee must not be such as to amount to taxation.
44AAK Regulations may deal with transitional matters
(1) The Governor-General may make regulations dealing with matters
of a transitional nature relating to the transfer of functions and
powers from a body to the AER.
(2) Without limiting subsection (1), the regulations may deal with:
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(a) the transfer of any relevant investigations being conducted by
the body at the time of the transfer of functions and powers to
the AER; or
(b) the transfer of any decisions or determinations being made by
the body at the time of the transfer of functions and powers to
the AER; or
(c) the substitution of the AER as a party to any relevant
proceedings that are pending in any court or tribunal at the
time of the transfer of functions and powers to the AER; or
(d) the transfer of any relevant information from the body to the
AER.
(3) In this section:
matters of a transitional nature also includes matters of an
application or saving nature.
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44AAL Application of the finance law
For the purposes of the finance law (within the meaning of the
Public Governance, Performance and Accountability Act 2013):
(a) the following combination of bodies is a listed entity:
(i) the Commission;
(ii) the AER; and
(b) the listed entity is to be known as the Australian Competition
and Consumer Commission; and
(c) the Chairperson is the accountable authority of the listed
entity; and
(d) the following persons are officials of the listed entity:
(i) the Chairperson;
(ii) the other members of the Commission;
(iii) the associate members of the Commission;
(iv) the AER members;
(v) persons engaged under section 27; and
(e) the purposes of the listed entity include:
(i) the functions conferred on the Commission by this Act;
and
(ii) the functions of the AER under Division 3 of
Part IIIAA.
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44AA Objects of Part
The objects of this Part are to:
(a) promote the economically efficient operation of, use of and
investment in the infrastructure by which services are
provided, thereby promoting effective competition in
upstream and downstream markets; and
(b) provide a framework and guiding principles to encourage a
consistent approach to access regulation in each industry.
44B Definitions
In this Part, unless the contrary intention appears:
access code means a code referred to in section 44ZZAA.
access code application means:
(a) an access code given to the Commission; or
(b) a request made to the Commission for the withdrawal or
variation of an access code; or
(c) an application under subsection 44ZZBB(4) for an extension
of the period for which an access code is in operation.
access code decision means:
(a) a decision under section 44ZZAA to accept or reject an
access code; or
(b) a decision under section 44ZZAA to consent or refuse to
consent to the withdrawal or variation of an access code; or
(c) a decision under section 44ZZBB to extend or refuse to
extend the period for which an access code is in operation.
access undertaking means an undertaking under section 44ZZA.
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access undertaking application means:
(a) an access undertaking given to the Commission; or
(b) a request made to the Commission for the withdrawal or
variation of an access undertaking; or
(ba) a request made to the Commission under
subsection 44ZZAAB(7) to consent to the revocation or
variation of a fixed principle included as a term of an access
undertaking; or
(c) an application under subsection 44ZZBB(1) for an extension
of the period for which an access undertaking is in operation.
access undertaking decision means:
(a) a decision under section 44ZZA to accept or reject an access
undertaking; or
(b) a decision under section 44ZZA to consent or refuse to
consent to the withdrawal or variation of an access
undertaking; or
(ba) a decision under subsection 44ZZAAB(7) to consent or
refuse to consent to the revocation or variation of a fixed
principle included as a term of an access undertaking; or
(c) a decision under section 44ZZBB to extend or refuse to
extend the period for which an access undertaking is in
operation.
Commonwealth Minister means the Minister.
constitutional trade or commerce means any of the following:
(a) trade or commerce among the States;
(b) trade or commerce between Australia and places outside
Australia;
(c) trade or commerce between a State and a Territory, or
between 2 Territories.
declaration means a declaration made by the designated Minister
under Division 2.
declaration criteria, for a service, has the meaning given by
section 44CA.
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declaration recommendation means a recommendation made by
the Council under section 44F.
declared service means a service for which a declaration is in
operation.
designated Minister has the meaning given by section 44D.
determination means a determination made by the Commission
under Division 3.
director has the same meaning as in the Corporations Act 2001.
entity means a person, partnership or joint venture.
final determination means a determination other than an interim
determination.
fixed principle has the meaning given by section 44ZZAAB.
ineligibility recommendation means a recommendation made by
the Council under section 44LB.
interim determination means a determination that is expressed to
be an interim determination.
modifications includes additions, omissions and substitutions.
National Gas Law means:
(a) the National Gas Law set out in the Schedule to the National
Gas (South Australia) Act 2008 of South Australia as in force
from time to time, as that Law applies as a law of South
Australia; or
(b) if an Act of another State or of the Australian Capital
Territory or the Northern Territory applies the National Gas
Law set out in the Schedule to the National Gas (South
Australia) Act 2008 of South Australia, as in force from time
to time, as a law of that other State or of that Territory—the
National Gas Law as so applied; or
(c) the Western Australian Gas Legislation; or
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(d) the National Gas (Commonwealth) Law (within the meaning
of the Australian Energy Market Act 2004); or
(e) the Offshore Western Australian Pipelines (Commonwealth)
Law (within the meaning of the Australian Energy Market
Act 2004).
officer has the same meaning as in the Corporations Act 2001.
party means:
(a) in relation to an arbitration of an access dispute—a party to
the arbitration, as mentioned in section 44U;
(b) in relation to a determination—a party to the arbitration in
which the Commission made the determination.
proposed facility means a facility that is proposed to be constructed
(but the construction of which has not started) that will be:
(a) structurally separate from any existing facility; or
(b) a major extension of an existing facility.
provider, in relation to a service, means the entity that is the owner
or operator of the facility that is used (or is to be used) to provide
the service.
responsible Minister means:
(a) the Premier, in the case of a State;
(b) the Chief Minister, in the case of a Territory.
revocation recommendation means a recommendation made by
the Council under section 44J.
service means a service provided by means of a facility and
includes:
(a) the use of an infrastructure facility such as a road or railway
line;
(b) handling or transporting things such as goods or people;
(c) a communications service or similar service;
but does not include:
(d) the supply of goods; or
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(e) the use of intellectual property; or
(f) the use of a production process;
except to the extent that it is an integral but subsidiary part of the
service.
State or Territory access regime law means:
(a) a law of a State or Territory that establishes or regulates an
access regime; or
(b) a law of a State or Territory that regulates an industry that is
subject to an access regime; or
(c) a State/Territory energy law.
State or Territory body means:
(a) a State or Territory;
(b) an authority of a State or Territory.
third party, in relation to a service, means a person who wants
access to the service or wants a change to some aspect of the
person’s existing access to the service.
44C How this Part applies to partnerships and joint ventures
(1) This section applies if the provider of a service is a partnership or
joint venture that consists of 2 or more corporations. Those
corporations are referred to in this section as the participants.
(2) If this Part requires or permits something to be done by the
provider, the thing may be done by one or more of the participants
on behalf of the provider.
(3) If a provision of this Part refers to the provider bearing any costs,
the provision applies as if the provision referred to any of the
participants bearing any costs.
(4) If a provision of this Part refers to the provider doing something,
the provision applies as if the provision referred to one or more of
the participants doing that thing on behalf of the provider.
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(5) If:
(a) a provision of this Part requires the provider to do something,
or prohibits the provider from doing something; and
(b) a contravention of the provision is an offence;
the provision applies as if a reference to the provider were a
reference to any person responsible for the day-to-day management
and control of the provider.
(6) If:
(a) a provision of this Part requires a provider to do something,
or prohibits a provider doing something; and
(b) a contravention of the provision is not an offence;
the provision applies as if the reference to provider were a
reference to each participant and to any other person responsible
for the day-to-day management and control of the provider.
44CA Meaning of declaration criteria
(1) The declaration criteria for a service are:
(a) that access (or increased access) to the service, on reasonable
terms and conditions, as a result of a declaration of the
service would promote a material increase in competition in
at least one market (whether or not in Australia), other than
the market for the service; and
Note: Market is defined in section 4E.
(b) that the facility that is used (or will be used) to provide the
service could meet the total foreseeable demand in the
market:
(i) over the period for which the service would be declared;
and
(ii) at the least cost compared to any 2 or more facilities
(which could include the first-mentioned facility); and
(c) that the facility is of national significance, having regard to:
(i) the size of the facility; or
(ii) the importance of the facility to constitutional trade or
commerce; or
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(iii) the importance of the facility to the national economy;
and
(d) that access (or increased access) to the service, on reasonable
terms and conditions, as a result of a declaration of the
service would promote the public interest.
(2) For the purposes of paragraph (1)(b):
(a) if the facility is currently at capacity, and it is reasonably
possible to expand that capacity, have regard to the facility as
if it had that expanded capacity; and
(b) without limiting paragraph (1)(b), the cost referred to in that
paragraph includes all costs associated with having multiple
users of the facility (including such costs that would be
incurred if the service is declared).
(3) Without limiting the matters to which the Council may have regard
for the purposes of section 44G, or the designated Minister may
have regard for the purposes of section 44H, in considering
whether paragraph (1)(d) of this section applies the Council or
designated Minister must have regard to:
(a) the effect that declaring the service would have on
investment in:
(i) infrastructure services; and
(ii) markets that depend on access to the service; and
(b) the administrative and compliance costs that would be
incurred by the provider of the service if the service is
declared.
44D Meaning of designated Minister
(1) The Commonwealth Minister is the designated Minister unless
subsection (2), (3), (4) or (5) applies.
(2) In relation to declaring a service in a case where:
(a) the provider is a State or Territory body that has some control
over the conditions for accessing the facility that is used (or
is to be used) to provide the service; and
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(b) the State or Territory concerned is a party to the Competition
Principles Agreement;
the responsible Minister of the State or Territory is the designated
Minister.
(3) In relation to revoking a declaration that was made by the
responsible Minister of a State or Territory, the responsible
Minister of that State or Territory is the designated Minister.
(4) In relation to deciding whether a service is ineligible to be a
declared service in a case where:
(a) a person who is, or expects to be, the provider of the service
is a State or Territory body that has some control over the
conditions for accessing the facility that is used (or is to be
used) to provide the service; and
(b) the State or Territory concerned is a party to the Competition
Principles Agreement;
the responsible Minister of the State or Territory is the designated
Minister.
(5) In relation to revoking a decision:
(a) that a service is ineligible to be a declared service; and
(b) that was made by the responsible Minister of a State or
Territory;
the responsible Minister of that State or Territory is the designated
Minister.
44DA The principles in the Competition Principles Agreement have
status as guidelines
(1) For the avoidance of doubt:
(c) the requirement, under subsection 44M(4), that the Council
apply the relevant principles set out in the Competition
Principles Agreement in deciding whether to recommend to
the Commonwealth Minister that he or she should decide that
an access regime is, or is not, an effective access regime; and
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(d) the requirement, under subsection 44N(2), that the
Commonwealth Minister, in making a decision on a
recommendation received from the Council, apply the
relevant principles set out in the Agreement;
are obligations that the Council and the relevant Ministers must
treat each individual relevant principle as having the status of a
guideline rather than a binding rule.
(2) An effective access regime may contain additional matters that are
not inconsistent with Competition Principles Agreement principles.
44E This Part binds the Crown
(1) This Part binds the Crown in right of the Commonwealth, of each
of the States, of the Australian Capital Territory and of the
Northern Territory.
(2) Nothing in this Part makes 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.
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Subdivision A—Recommendation by the Council
44F Person may request recommendation
(1) The designated Minister, or any other person, may apply in writing
to the Council asking the Council to recommend that a particular
service be declared unless:
(a) the service is the subject of a regime for which a decision
under section 44N that the regime is an effective access
regime is in force (including as a result of an extension under
section 44NB); or
(b) the service is the subject of an access undertaking in
operation under Division 6; or
(c) if a decision is in force under subsection 44PA(3) approving
a tender process, for the construction and operation of a
facility, as a competitive tender process—the service was
specified, in the application for that decision, as a service
proposed to be provided by means of the facility; or
(d) if the service is provided by means of a pipeline (within the
meaning of a National Gas Law)—there is:
(i) a 15-year no-coverage determination in force under the
National Gas Law in respect of the pipeline; or
(ii) a price regulation exemption in force under the National
Gas Law in respect of the pipeline; or
(e) there is a decision of the designated Minister in force under
section 44LG that the service is ineligible to be a declared
service.
Note: This means an application can only be made or dealt with under this
Subdivision if none of paragraphs (a) to (e) apply.
(1A) If the Council decides that one or more of paragraphs (1)(a) to (e)
apply for a service mentioned in a person’s purported application
under that subsection, the Council must give the person written
notice explaining:
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(a) why those paragraphs apply; and
(b) that such an application cannot be made for the service.
(2) After receiving an application under subsection (1), the Council:
(a) must tell the provider of the service that the Council has
received the application, unless the provider is the applicant;
and
(b) must, after having regard to the objects of this Part,
recommend to the designated Minister:
(i) that the service be declared, with the expiry date
specified in the recommendation; or
(ii) that the service not be declared.
Note 1: There are time limits that apply to the Council’s recommendation: see
section 44GA.
Note 2: The Council may request information and invite public submissions
on the application: see sections 44FA and 44GB.
Note 3: The Council must publish its recommendation: see section 44GC.
(3) If the applicant is a person other than the designated Minister, the
Council may recommend that the service not be declared if the
Council thinks that the application was not made in good faith.
This subsection does not limit the grounds on which the Council
may decide to recommend that the service not be declared.
(5) The applicant may withdraw the application at any time before the
Council makes a recommendation relating to it.
(6) The applicant may request, in writing, the Council to vary the
application at any time before the Council makes a
recommendation relating to it.
(7) If a request is made under subsection (6), the Council must decide
to:
(a) make the variation; or
(b) reject the variation.
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(9) The Council may reject the variation if it is satisfied that the
requested variation is of a kind, or the request for the variation is
made at a time or in a manner, that:
(a) would unduly prejudice the provider (if the provider is not
the applicant) or anyone else the Council considers has a
material interest in the application; or
(b) would unduly delay the process for considering the
application.
44FA Council may request information
(1) The Council may give a person a written notice requesting the
person give to the Council, within a specified period, information
of the kind specified in the notice that the Council considers may
be relevant to deciding what recommendation to make on an
application under section 44F.
(2) The Council must:
(a) give a copy of the notice to:
(i) if the person is not the applicant—the applicant; and
(ii) if the person is not the provider of the service—the
provider; and
(b) publish, by electronic or other means, the notice.
(3) In deciding what recommendation to make on the application, the
Council:
(a) must have regard to any information given in compliance
with a notice under subsection (1) within the specified
period; and
(b) may disregard any information of the kind specified in the
notice that is given after the specified period has ended.
(4) Subsections 44GB(4) to (6) apply to information given in response
to a notice under this section (whether given in compliance with
the notice or not) in a corresponding way to the way those
subsections apply to a submission made in response to a notice
under subsection 44GB(1).
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Note: This allows the Council to make the information publicly available,
subject to any confidentiality concerns.
44G Criteria for the Council recommending declaration of a service
The Council cannot recommend that a service be declared unless it
is satisfied of all of the declaration criteria for the service.
44GA Time limit for Council recommendations
Council to make recommendation within the consideration period
(1) The Council must make a recommendation on an application under
section 44F within the consideration period.
(2) The consideration period is a period of 180 days (the expected
period), starting at the start of the day the application is received,
unless the consideration period is extended under subsection (7).
Stopping the clock
(3) In working out the expected period in relation to a recommendation
on an application under section 44F, in a situation referred to in
column 1 of an item of the following table, disregard any day in a
period:
(a) starting on the day referred to in column 2 of the item; and
(b) ending on the day referred to in column 3 of the item.
Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
1 An agreement is
made in relation to
the application
under
subsection (5)
The first day
of the period
specified in
the agreement
The last day of the period specified
in the agreement
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Section 44GA
Competition and Consumer Act 2010 103
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Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
2 A notice is given
under
subsection 44FA(1)
requesting
information in
relation to the
application
The day on
which the
notice is given
The last day of the period specified
in the notice for the giving of the
information
(4) Despite subsection (3):
(a) do not disregard any day more than once; and
(b) the total period that is disregarded under that subsection must
not exceed 60 days.
Stopping the clock by agreement
(5) The Council, the applicant and the provider of the service (if the
provider is not the applicant) may agree in writing that a specified
period is to be disregarded in working out the expected period.
(6) The Council must publish, by electronic or other means, the
agreement.
Council may extend time for making recommendation
(7) If the Council is unable to make a recommendation within the
consideration period (whether it is the expected period or the
consideration period as previously extended under this subsection),
it must, by notice in writing to the designated Minister, extend the
consideration period by a specified period.
(8) The notice must:
(a) specify when the Council must now make a recommendation
on the application; and
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(b) include a statement explaining why the Council has been
unable to make a decision on the recommendation within the
consideration period.
(9) The Council must give a copy of the notice to:
(a) the applicant; and
(b) if the applicant is not the provider of the service—the
provider.
Publication
(10) If the Council extends the consideration period under
subsection (7), it must publish a notice in a national newspaper:
(a) stating that it has done so; and
(b) specifying the day by which it must now make a
recommendation on the application.
Failure to comply with time limit does not affect validity
(11) Failure by the Council to comply with a time limit set in this
section does not affect the validity of a recommendation made
under this section.
44GB Council may invite public submissions on the application
Invitation
(1) The Council may publish, by electronic or other means, a notice
inviting public submissions on an application under section 44F if
it considers that it is appropriate and practicable to do so.
(2) The notice must specify how submissions may be made and the
day by which submissions may be made (which must be at least 14
days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in deciding what recommendation to
make on the application, the Council:
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(a) must have regard to any submission made on or before the
day specified in the notice; and
(b) may disregard any submission made after the day specified in
the notice.
Council may make submissions publicly available
(4) The Council may make any written submission, or a written record
(which may be a summary) of any oral submission, publicly
available.
Confidentiality
(5) A person may, at the time of making a submission, request that the
Council:
(a) not make the whole or a part of the submission available
under subsection (4); and
(b) not publish or make available the whole or a part of the
submission under section 44GC;
because of the confidential commercial information contained in
the submission.
(6) If the Council refuses such a request:
(a) for a written submission—the Council must, if the person
who made it so requires, return the whole or the part of it to
the person; and
(b) for an oral submission—the person who made it may inform
the Council that the person withdraws the whole or the part
of it; and
(c) if the Council returns the whole or the part of the submission,
or the person withdraws the whole or the part of the
submission, the Council must not:
(i) make the whole or the part of the submission available
under subsection (4); and
(ii) publish or make available the whole or the part of the
submission under section 44GC; and
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106 Competition and Consumer Act 2010
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(iii) have regard to the whole or the part of the submission in
making its recommendation on the application.
44GC Council must publish its recommendation
(1) The Council must publish, by electronic or other means, a
recommendation under section 44F and its reasons for the
recommendation.
(2) The Council must give a copy of the publication to:
(a) the applicant under section 44F; and
(b) if the applicant is not the provider of the service—the
provider.
Timing
(3) The Council must do the things under subsections (1) and (2) on
the day the designated Minister publishes his or her decision on the
recommendation or as soon as practicable after that day.
Consultation
(4) Before publishing under subsection (1), the Council may give any
one or more of the following persons:
(a) the applicant under section 44F;
(b) if the applicant is not the provider of the service—the
provider;
(c) any other person the Council considers appropriate;
a notice in writing:
(d) specifying what the Council is proposing to publish; and
(e) inviting the person to make a written submission to the
Council within 14 days after the notice is given identifying
any information the person considers should not be published
because of its confidential commercial nature.
(5) The Council must have regard to any submission so made in
deciding what to publish. It may have regard to any other matter it
considers relevant.
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Section 44H
Competition and Consumer Act 2010 107
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Subdivision B—Declaration by the designated Minister
44H Designated Minister may declare a service
(1) On receiving a declaration recommendation, the designated
Minister must either declare the service or decide not to declare it.
Note: The designated Minister must publish his or her decision: see
section 44HA.
(1A) The designated Minister must have regard to the objects of this
Part in making his or her decision.
(4) The designated Minister cannot declare a service unless he or she
is satisfied of all of the declaration criteria for the service.
(8) If the designated Minister declares the service, the declaration must
specify the expiry date of the declaration.
(9) If the designated Minister does not publish under section 44HA his
or her decision on the declaration recommendation within 60 days
after receiving the declaration recommendation, the designated
Minister is taken, at the end of that 60-day period:
(a) to have made a decision under this section in accordance with
the declaration recommendation; and
(b) to have published that decision under section 44HA.
44HA Designated Minister must publish his or her decision
(1) The designated Minister must publish, by electronic or other
means, his or her decision on a declaration recommendation and
his or her reasons for the decision.
(2) The designated Minister must give a copy of the publication to:
(a) the applicant under section 44F; and
(b) if the applicant is not the provider of the service—the
provider.
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Section 44I
108 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Consultation
(3) Before publishing under subsection (1), the designated Minister
may give any one or more of the following persons:
(a) the applicant under section 44F;
(b) if the applicant is not the provider of the service—the
provider;
(c) any other person the designated Minister considers
appropriate;
a notice in writing:
(d) specifying what the designated Minister is proposing to
publish; and
(e) inviting the person to make a written submission to the
designated Minister within 14 days after the notice is given
identifying any information the person considers should not
be published because of its confidential commercial nature.
(4) The designated Minister must have regard to any submission so
made in deciding what to publish. He or she may have regard to
any other matter he or she considers relevant.
44I Duration and effect of declaration
(1) Subject to this section, a declaration begins to operate at a time
specified in the declaration. The time cannot be earlier than 21
days after the declaration is published.
(2) If:
(a) an application for review of a declaration is made within 21
days after the day the declaration is published; and
(b) the Tribunal makes an order under section 44KA staying the
operation of the declaration;
the declaration does not begin to operate until the order is no
longer of effect under subsection 44KA(6) or the Tribunal makes a
decision on the review to affirm the declaration, whichever is the
earlier.
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Section 44J
Competition and Consumer Act 2010 109
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(3) A declaration continues in operation until its expiry date, unless it
is earlier revoked.
(4) The expiry or revocation of a declaration does not affect:
(a) the arbitration of an access dispute that was notified before
the expiry or revocation; or
(b) the operation or enforcement of any determination made in
the arbitration of an access dispute that was notified before
the expiry or revocation.
44J Revocation of declaration
(1) The Council may recommend to the designated Minister that a
declaration be revoked. The Council must have regard to the
objects of this Part in making its decision.
(2) The Council cannot recommend revocation of a declaration unless
it is satisfied that, at the time of the recommendation:
(a) subsection 44F(1) would prevent the making of an
application for a recommendation that the service concerned
be declared; or
(b) subsection 44H(4) would prevent the service concerned from
being declared.
(3) On receiving a revocation recommendation, the designated
Minister must either revoke the declaration or decide not to revoke
the declaration.
(3A) The designated Minister must have regard to the objects of this
Part in making his or her decision.
(4) The designated Minister must publish the decision to revoke or not
to revoke.
(5) If the designated Minister decides not to revoke, the designated
Minister must give reasons for the decision to the provider of the
declared service when the designated Minister publishes the
decision.
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Section 44K
110 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(6) The designated Minister cannot revoke a declaration without
receiving a revocation recommendation.
(7) If the designated Minister does not publish under subsection (4) his
or her decision on the revocation recommendation within the
period starting at the start of the day the recommendation is
received and ending at the end of 60 days after that day, the
designated Minister is taken, immediately after the end of that
60-day period:
(a) to have made a decision that the declaration be revoked; and
(b) to have published that decision in accordance with this
section.
44K Review of declaration
(1) If the designated Minister declares a service, the provider may
apply in writing to the Tribunal for review of the declaration.
(2) If the designated Minister decides not to declare a service, an
application in writing for review of the designated Minister’s
decision may be made by the person who applied for the
declaration recommendation.
(3) An application for review must be made within 21 days after
publication of the designated Minister’s decision.
(4) The review by the Tribunal is a re-consideration of the matter
based on the information, reports and things referred to in
section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have
regard (see section 44ZZOAA) and time limits that apply to the
Tribunal’s decision on the review (see section 44ZZOA).
(5) For the purposes of the review, the Tribunal has the same powers
as the designated Minister.
(6) The member of the Tribunal presiding at the review may require
the Council to give assistance for the purposes of the review
(including for the purposes of deciding whether to make an order
under section 44KA).
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Section 44KA
Competition and Consumer Act 2010 111
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(6A) Without limiting subsection (6), the member may, by written
notice, require the Council to give information, and to make
reports, of a kind specified in the notice, within the period
specified in the notice, for the purposes of the review.
(6B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) the provider of the service; and
(iii) the person who applied for the declaration
recommendation; and
(iv) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
(7) If the designated Minister declared the service, the Tribunal may
affirm, vary or set aside the declaration.
(8) If the designated Minister decided not to declare the service, the
Tribunal may either:
(a) affirm the designated Minister’s decision; or
(b) set aside the designated Minister’s decision and declare the
service in question.
(9) A declaration, or varied declaration, made by the Tribunal is to be
taken to be a declaration by the designated Minister for all
purposes of this Part (except this section).
44KA Tribunal may stay operation of declaration
(1) Subject to this section, an application for review of a declaration
under subsection 44K(1) does not:
(a) affect the operation of the declaration; or
(b) prevent the taking of steps in reliance on the declaration.
(2) On application by a person who has been made a party to the
proceedings for review of a declaration, the Tribunal may:
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(a) make an order staying, or otherwise affecting the operation or
the taking of steps in reliance on, the declaration if the
Tribunal considers that:
(i) it is desirable to make the order after taking into account
the interests of any person who may be affected by the
review; and
(ii) the order is appropriate for the purpose of securing the
effectiveness of the hearing and determination of the
application for review; or
(b) make an order varying or revoking an order made under
paragraph (a) (including an order that has previously been
varied on one or more occasions under this paragraph).
(3) Subject to subsection (4), the Tribunal must not:
(a) make an order under subsection (2) unless the Council has
been given a reasonable opportunity to make a submission to
the Tribunal in relation to the matter; or
(b) make an order varying or revoking an order in force under
paragraph (2)(a) (including an order that has previously been
varied on one or more occasions under paragraph (2)(b))
unless:
(i) the Council; and
(ii) the person who requested the making of the order under
paragraph (2)(a); and
(iii) if the order under paragraph (2)(a) has previously been
varied by an order or orders under paragraph (2)(b)—
the person or persons who requested the making of the
last-mentioned order or orders;
have been given a reasonable opportunity to make
submissions to the Tribunal in relation to the matter.
(4) Subsection (3) does not prohibit the Tribunal from making an order
without giving to a person referred to in that subsection a
reasonable opportunity to make a submission to the Tribunal in
relation to a matter if the Tribunal is satisfied that, by reason of the
urgency of the case or otherwise, it is not practicable to give that
person such an opportunity.
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Section 44KB
Competition and Consumer Act 2010 113
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(5) If an order is made under subsection (3) without giving the Council
a reasonable opportunity to make a submission to the Tribunal in
relation to a matter, the order does not come into operation until a
notice setting out the terms of the order is given to the Council.
(6) An order in force under paragraph (2)(a) (including an order that
has previously been varied on one or more occasions under
paragraph (2)(b)):
(a) is subject to such conditions as are specified in the order; and
(b) has effect until:
(i) if a period for the operation of the order is specified in
the order—the expiration of that period or, if the
application for review is decided by the Tribunal before
the expiration of that period, the decision of the
Tribunal on the application for review comes into
operation; or
(ii) if no period is so specified—the decision of the Tribunal
on the application for review comes into operation.
44KB Tribunal may order costs be awarded
(1) If the Tribunal is satisfied that it is appropriate to do so, the
Tribunal may order that a person who has been made a party to
proceedings for a review of a declaration under section 44K pay all
or a specified part of the costs of another person who has been
made a party to the proceedings.
(2) However, the Tribunal must not make an order requiring the
designated Minister to pay some or all of the costs of another party
to proceedings unless the Tribunal considers that the designated
Minister’s conduct in the proceedings was engaged in without due
regard to:
(a) the costs that would be incurred by the other party to the
proceedings as a result of that conduct; or
(b) the time required by the Tribunal to make a decision on the
review as a result of that conduct; or
(c) the time required by the other party to prepare their case for
the purposes of the review as a result of that conduct; or
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114 Competition and Consumer Act 2010
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(d) the submissions or arguments made during the proceedings to
the Tribunal by the other party or parties to the proceedings
or by the Council.
(3) If the Tribunal makes an order under subsection (1), it may make
further orders that it considers appropriate in relation to the
assessment or taxation of the costs.
(4) The regulations may make provision for and in relation to fees
payable for the assessment or taxation of costs ordered by the
Tribunal to be paid.
(5) If a party (the first party) is ordered to pay some or all of the costs
of another party under subsection (1), the amount of the costs may
be recovered in the Federal Court as a debt due by the first party to
the other party.
44L Review of decision not to revoke a declaration
(1) If the designated Minister decides not to revoke a declaration, the
provider may apply in writing to the Tribunal for review of the
decision.
(2) An application for review must be made within 21 days after
publication of the designated Minister’s decision.
(3) The review by the Tribunal is a re-consideration of the matter
based on the information, reports and things referred to in
section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have
regard (see section 44ZZOAA) and time limits that apply to the
Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the Tribunal has the same powers
as the designated Minister.
(5) The member of the Tribunal presiding at the review may require
the Council to give assistance for the purposes of the review.
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Section 44L
Competition and Consumer Act 2010 115
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(5A) Without limiting subsection (5), the member may, by written
notice, require the Council to give information, and to make
reports, of a kind specified in the notice, within the period
specified in the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
(6) The Tribunal may either:
(a) affirm the designated Minister’s decision; or
(b) set aside the designated Minister’s decision and revoke the
declaration.
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Section 44LA
116 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 2AA—Services that are ineligible to be declared
Subdivision A—Scope of Division
44LA Constitutional limits on operation of this Division
This Division does not apply in relation to a service unless:
(a) the person who is, or expects to be, the provider of the
service is a corporation (or a partnership or joint venture
consisting wholly of corporations); or
(b) access to the service is (or would be) in the course of, or for
the purposes of, constitutional trade or commerce.
Subdivision B—Ineligibility recommendation by Council
44LB Ineligibility recommendation
Person may request recommendation
(1) A person with a material interest in a particular service proposed to
be provided by means of a proposed facility may make a written
application to the Council asking the Council to recommend that
the designated Minister decide that the service is ineligible to be a
declared service.
Note: The application must be made before construction of the facility
commences: see the definition of proposed facility in section 44B.
Council must make recommendation
(2) After receiving the application, the Council must, after having
regard to the objects of this Part:
(a) recommend to the designated Minister:
(i) that he or she decide that the service is ineligible to be a
declared service; and
(ii) the period for which the decision should be in force
(which must be at least 20 years); or
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Section 44LB
Competition and Consumer Act 2010 117
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(b) recommend to the designated Minister that he or she decide
that the service is not ineligible to be a declared service.
Note 1: There are time limits that apply to the Council’s recommendation: see
section 44LD.
Note 2: The Council may request information and invite public submissions
on the application: see sections 44LC and 44LE.
Note 3: The Council must publish its recommendation: see section 44LF.
Limits on recommendation
(3) The Council cannot recommend that the designated Minister
decide that the service is ineligible to be a declared service unless it
is satisfied of both of the following matters:
(a) that the service will be provided by means of the proposed
facility when constructed;
(b) that it is not satisfied of at least one of the declaration criteria
for the service to be provided by means of the proposed
facility.
(4) If the applicant is a person other than the designated Minister, the
Council may recommend that the designated Minister decide that
the service is not ineligible to be a declared service if the Council
thinks that the application was not made in good faith. This
subsection does not limit the grounds on which the Council may
decide to recommend that the designated Minister decide that the
service is not ineligible to be a declared service.
Relationship between ineligibility recommendations, access
undertakings and competitive tender processes
(5) The Council may recommend that the designated Minister decide
that the service is ineligible to be a declared service even if the
service is the subject of an access undertaking in operation under
Division 6.
(6) The Council may recommend that the designated Minister decide
that the service is ineligible to be a declared service even if:
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Section 44LC
118 Competition and Consumer Act 2010
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(a) the service is proposed to be provided by means of a facility
specified under paragraph 44PA(2)(a); and
(b) a decision of the Commission is in force under
subsection 44PA(3) approving a tender process, for the
construction and operation of the facility, as a competitive
tender process.
Applicant may withdraw application
(7) The applicant may withdraw the application at any time before the
Council makes a recommendation relating to it.
44LC Council may request information
(1) The Council may give a person a written notice requesting the
person give to the Council, within a specified period, information
of a kind specified in the notice that the Council considers may be
relevant to deciding what recommendation to make on an
application under section 44LB.
(2) The Council must:
(a) give a copy of the notice to:
(i) if the person is not the applicant—the applicant; and
(ii) if the person is not the provider, or the person who
expects to be the provider—that person; and
(b) publish, by electronic or other means, the notice.
(3) In deciding what recommendation to make on the application, the
Council:
(a) must have regard to any information given in compliance
with a notice under subsection (1) within the specified
period; and
(b) may disregard any information of the kind specified in the
notice that is given after the specified period has ended.
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Section 44LD
Competition and Consumer Act 2010 119
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44LD Time limit for Council recommendations
Council to make recommendation within the consideration period
(1) The Council must make a recommendation on an application under
section 44LB within the consideration period.
(2) The consideration period is a period of 180 days (the expected
period), starting at the start of the day the application is received,
unless the consideration period is extended under subsection (7).
Stopping the clock
(3) In working out the expected period in relation to a recommendation
on an application under section 44LB, in a situation referred to in
column 1 of an item of the following table, disregard any day in a
period:
(a) starting on the day referred to in column 2 of the item; and
(b) ending on the day referred to in column 3 of the item.
Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
1 An agreement is
made in relation to
the application
under
subsection (5)
The first day of
the period
specified in the
agreement
The last day of the period
specified in the agreement
2 A notice is given
under
subsection 44LC(1)
requesting
information in
relation to the
application
The day on
which the notice
is given
The last day of the period
specified in the notice for the
giving of the information
(4) Despite subsection (3):
(a) do not disregard any day more than once; and
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Section 44LD
120 Competition and Consumer Act 2010
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(b) the total period that is disregarded under that subsection must
not exceed 60 days.
Stopping the clock by agreement
(5) The Council and the applicant may agree in writing that a specified
period is to be disregarded in working out the expected period.
(6) The Council must publish, by electronic or other means, the
agreement.
Extension of time for making decision
(7) If the Council is unable to make a recommendation within the
consideration period (whether it is the expected period or it has
been previously extended under this subsection), it must, by notice
in writing to the designated Minister, extend the consideration
period by a specified period.
(8) The notice must:
(a) specify when the Council must now make a recommendation
on the application; and
(b) include a statement explaining why the Council has been
unable to make a decision on the recommendation within the
consideration period.
(9) The Council must give a copy of the notice to:
(a) the applicant; and
(b) if the applicant is not the person who is, or expects to be, the
provider—that person.
Publication
(10) If the Council extends the consideration period under
subsection (7), it must publish a notice in a national newspaper:
(a) stating that it has done so; and
(b) specifying the day by which it must now make a
recommendation on the application.
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Section 44LE
Competition and Consumer Act 2010 121
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Failure to comply with time limit does not affect validity
(11) Failure by the Council to comply with a time limit set in this
section does not affect the validity of a recommendation made
under this section.
44LE Council may invite public submissions on the application
Invitation
(1) The Council may publish, by electronic or other means, a notice
inviting public submissions on an application under section 44LB
if it considers that it is appropriate and practicable to do so.
(2) The notice must specify how submissions may be made and the
day by which submissions may be made (which must be at least 14
days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in deciding what recommendation to
make on the application, the Council:
(a) must have regard to any submission made on or before the
day specified in the notice; and
(b) may disregard any submission made after the day specified in
the notice.
Council may make submissions publicly available
(4) The Council may make any written submission, or a written record
(which may be a summary) of any oral submission, publicly
available.
Confidentiality
(5) A person may, at the time of making a submission, request that the
Council:
(a) not make the whole or a part of the submission available
under subsection (4); and
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Section 44LF
122 Competition and Consumer Act 2010
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(b) not publish or make available the whole or a part of the
submission under section 44LF;
because of the confidential commercial information contained in
the submission.
(6) If the Council refuses such a request:
(a) for a written submission—the Council must, if the person
who made it so requires, return the whole or the part of it to
the person; and
(b) for an oral submission—the person who made it may inform
the Council that the person withdraws the whole or the part
of it; and
(c) if the Council returns the whole or the part of the submission,
or the person withdraws the whole or the part of the
submission, the Council must not:
(i) make the whole or the part of the submission available
under subsection (4); and
(ii) publish or make available the whole or the part of the
submission under section 44LF; and
(iii) have regard to the whole or the part of the submission in
making its recommendation on the application.
44LF Council must publish its recommendation
Council must publish its recommendation
(1) The Council must publish, by electronic or other means, a
recommendation under section 44LB and its reasons for the
recommendation.
(2) The Council must give a copy of the publication to:
(a) the person who made the application under section 44LB;
and
(b) if the applicant is not the person who is, or expects to be, the
provider—that person.
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Section 44LG
Competition and Consumer Act 2010 123
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Timing
(3) The Council must do the things under subsections (1) and (2) on
the day the designated Minister publishes his or her decision on the
recommendation or as soon as practicable after that day.
Consultation
(4) Before publishing under subsection (1), the Council may give any
one or more of the following persons:
(a) the person who made the application under section 44LB;
(b) any other person the Council considers appropriate;
a notice in writing:
(c) specifying what the Council is proposing to publish; and
(d) inviting the person to make a written submission to the
Council within 14 days after the day the notice is given
identifying any information the person considers should not
be published because of its confidential commercial nature.
(5) The Council must have regard to any submission so made in
deciding what to publish. It may have regard to any other matter it
considers relevant.
Subdivision C—Designated Minister’s decision on ineligibility
44LG Designated Minister’s decision on ineligibility
(1) On receiving an ineligibility recommendation, the designated
Minister must:
(a) decide:
(i) that the service is ineligible to be a declared service; and
(ii) the period for which the decision is in force (which must
be at least 20 years); or
(b) decide that the service is not ineligible to be a declared
service.
Note: The designated Minister must publish his or her decision: see
section 44LH.
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Section 44LG
124 Competition and Consumer Act 2010
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(2) The designated Minister must have regard to the objects of this
Part in making his or her decision.
(3) The designated Minister may decide that the service is ineligible to
be a declared service even if the service is the subject of an access
undertaking in operation under Division 6.
(4) The designated Minister may decide that the service is ineligible to
be a declared service even if:
(a) the service is proposed to be provided by means of a facility
specified under paragraph 44PA(2)(a); and
(b) a decision of the Commission is in force under
subsection 44PA(3) approving a tender process, for the
construction and operation of the facility, as a competitive
tender process.
(5) The designated Minister must not decide that the service is
ineligible to be a declared service unless he or she is satisfied of
both of the following matters:
(a) that the service is to be provided by means of the proposed
facility when constructed;
(b) that he or she is not satisfied of at least one of the declaration
criteria for the service to be provided by means of the
proposed facility.
(6) If the designated Minister does not publish under section 44LH his
or her decision on the ineligibility recommendation within the
period starting at the start of the day the recommendation is
received and ending at the end of 60 days after that day:
(a) the designated Minister is taken, immediately after the end of
that 60-day period, to have made a decision under
subsection (1) in accordance with the ineligibility
recommendation and to have published that decision under
section 44LH; and
(b) if the Council recommended that the designated Minister
decide that the service be ineligible to be a declared
service—the period for which the decision is in force is taken
to be the period recommended by the Council.
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Section 44LH
Competition and Consumer Act 2010 125
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44LH Designated Minister must publish his or her decision
(1) The designated Minister must publish, by electronic or other
means, his or her decision on an ineligibility recommendation and
his or her reasons for the decision.
(2) The designated Minister must give a copy of the publication to the
person who made the application under section 44LB.
Consultation
(3) Before publishing under subsection (1), the designated Minister
may give any one or more of the following persons:
(a) the person who made the application under section 44LB;
(b) any other person the designated Minister considers
appropriate;
a notice in writing:
(c) specifying what the designated Minister is proposing to
publish; and
(d) inviting the person to make a written submission to the
designated Minister within 14 days after the day the notice is
given identifying any information the person considers
should not be published because of its confidential
commercial nature.
(4) The designated Minister must have regard to any submission so
made in deciding what to publish. He or she may have regard to
any other matter he or she considers relevant.
Subdivision D—Revocation of ineligibility decision
44LI Revocation of ineligibility decision
Council may recommend revocation if facility materially different
or upon request
(1) The Council may recommend to the designated Minister that the
designated Minister revoke his or her decision (the ineligibility
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decision) that a service is ineligible to be a declared service. The
Council must have regard to the objects of this Part in making its
recommendation.
(2) The Council cannot recommend that a decision be revoked unless:
(a) it is satisfied that, at the time of the recommendation, the
facility that is (or will be) used to provide the service
concerned is so materially different from the proposed
facility described in the application made under section 44LB
that the Council is satisfied of all of the declaration criteria
for the service; or
(b) the person who is, or expects to be, the provider of the
service that is provided, or that is proposed to be provided,
by means of the facility requests that it be revoked.
Minister must decide whether to revoke
(3) On receiving a recommendation that the designated Minister
revoke the ineligibility decision, the designated Minister must
either revoke the ineligibility decision or decide not to revoke the
ineligibility decision.
(4) The designated Minister must have regard to the objects of this
Part in making his or her decision.
Minister must publish decision
(5) The designated Minister must publish, by electronic or other
means, the decision to revoke or not to revoke the ineligibility
decision.
(6) If the designated Minister decides not to revoke the ineligibility
decision, the designated Minister must give reasons for the
decision to the person who is, or expects to be, the provider of the
service concerned when the designated Minister publishes the
decision.
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Section 44LJ
Competition and Consumer Act 2010 127
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Deemed decision of Minister
(7) If the designated Minister does not publish his or her decision to
revoke or not to revoke the ineligibility decision within the period
starting at the start of the day the recommendation to revoke the
ineligibility decision is received and ending at the end of 60 days
after that day, the designated Minister is taken, immediately after
the end of that 60-day period:
(a) to have made a decision (the deemed decision) under
subsection (3) that the ineligibility decision be revoked; and
(b) to have published the deemed decision under subsection (5).
Limits on when a revocation can be made
(8) The designated Minister cannot revoke the ineligibility decision
without receiving a recommendation from the Council that the
ineligibility decision be revoked.
When a revocation comes into operation
(9) If the designated Minister revokes the ineligibility decision, the
revocation comes into operation at:
(a) if, within 21 days after the designated Minister publishes his
or her decision, no person has applied to the Tribunal for
review of the decision—the end of that period; or
(b) if a person applies to the Tribunal within that period for
review of the decision and the Tribunal affirms the
decision—the time of the Tribunal’s decision.
Subdivision E—Review of decisions
44LJ Review of ineligibility decisions
Application for review
(1) A person whose interests are affected by a decision of the
designated Minister under subsection 44LG(1) may apply in
writing to the Tribunal for a review of the decision.
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Section 44LJ
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(2) An application for review must be made within 21 days after
publication of the designated Minister’s decision.
(3) The review by the Tribunal is a reconsideration of the matter based
on the information, reports and things referred to in
section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have
regard (see section 44ZZOAA) and time limits that apply to the
Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the Tribunal has the same powers
as the designated Minister.
Council to provide assistance
(5) The member of the Tribunal presiding at the review may require
the Council to give assistance for the purposes of the review.
(6) Without limiting subsection (5), the member may, by written
notice, require the Council to give information, and to make
reports, of a kind specified in the notice, within the period
specified in the notice, for the purposes of the review.
(7) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) the person who is, or expects to be, the provider of the
service; and
(iii) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
Tribunal’s decision
(8) If the designated Minister decided that a service is ineligible to be a
declared service, the Tribunal may affirm, vary or set aside the
decision.
Note: If the Tribunal sets aside a decision of the designated Minister that a
service is ineligible to be a declared service, the designated Minister’s
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decision is no longer in force. This means the designated Minister is
no longer prevented by subsection 44H(6C) from declaring the
service.
(9) If the designated Minister decided that a service is not ineligible to
be a declared service, the Tribunal may either:
(a) affirm the designated Minister’s decision; or
(b) set aside the designated Minister’s decision and decide that
the service is ineligible to be a declared service for a
specified period (which must be at least 20 years).
Effect of Tribunal’s decision
(10) The Tribunal’s decision is taken to be a decision by the designated
Minister for all purposes of this Part (except this section).
44LK Review of decision to revoke or not revoke an ineligibility
decision
Application for review
(1) A person whose interests are affected by a decision of the
designated Minister under subsection 44LI(3) may apply in writing
to the Tribunal for a review of the decision.
(2) An application for review must be made within 21 days after
publication of the designated Minister’s decision.
(3) The review by the Tribunal is a reconsideration of the matter based
on the information, reports and things referred to in
section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have
regard (see section 44ZZOAA) and time limits that apply to the
Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the Tribunal has the same powers
as the designated Minister.
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Section 44LK
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Council to give assistance
(5) The member of the Tribunal presiding at the review may require
the Council to give assistance for the purposes of the review.
(6) Without limiting subsection (5), the member may, by written
notice, require the Council to give information, and to make
reports, of a kind specified in the notice, within the period
specified in the notice, for the purposes of the review.
(7) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) the person who is, or expects to be, the provider of the
service; and
(iii) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
Tribunal’s decision
(8) If the designated Minister decided to revoke his or her decision
(the ineligibility decision) that the service is ineligible to be a
declared service, the Tribunal may either:
(a) affirm the designated Minister’s decision; or
(b) set aside the designated Minister’s decision to revoke the
ineligibility decision.
(9) If the designated Minister decided not to revoke his or her
ineligibility decision, the Tribunal may either:
(a) affirm the designated Minister’s decision; or
(b) set aside the designated Minister’s decision and revoke the
ineligibility decision.
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Section 44LL
Competition and Consumer Act 2010 131
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Effect of Tribunal’s decision
(10) If the Tribunal sets aside the designated Minister’s decision to
revoke his or her ineligibility decision, the ineligibility decision is
taken never to have been revoked.
(11) If the Tribunal sets aside the designated Minister’s decision and
revokes the ineligibility decision, the Tribunal’s decision is, for the
purposes of this Part other than this section, taken to be a decision
by the Minister to revoke his or her decision that the service is
ineligible to be a declared service.
Subdivision F—Other matters
44LL Ineligibility decisions subject to alteration, cancellation etc.
(1) A decision of the designated Minister under section 44LG that a
service is ineligible to be a declared service is made on the basis
that:
(a) the decision may be revoked under section 44LI; and
(b) the decision may be cancelled, revoked, terminated or varied
by or under later legislation; and
(c) no compensation is payable if the decision is cancelled,
revoked, terminated or varied as mentioned in any of the
above paragraphs.
(2) Subsection (1) does not, by implication, affect the interpretation of
any other provision of this Act.
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Section 44M
132 Competition and Consumer Act 2010
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Division 2A—Effective access regimes
Subdivision A—Recommendation by Council
44M Recommendation for a Ministerial decision on effectiveness of
access regime
(1) This section applies if a State or Territory that is a party to the
Competition Principles Agreement has established at any time a
regime for access to a service or a proposed service.
(2) The responsible Minister for the State or Territory may make a
written application to the Council asking the Council to
recommend that the Commonwealth Minister decide that the
regime for access to the service or proposed service is an effective
access regime.
(3) The Council must recommend to the Commonwealth Minister:
(a) that he or she decide that the access regime is an effective
access regime for the service, or proposed service; or
(b) that he or she decide that the access regime is not an effective
access regime for the service, or proposed service.
Note 1: There are time limits that apply to the Council’s recommendation: see
section 44NC.
Note 2: The Council may request information and invite public submissions
on the application: see sections 44MA and 44NE.
Note 3: The Council must publish its recommendation: see section 44NF.
(4) In deciding what recommendation it should make, the Council:
(a) must, subject to subsection (4A), assess whether the access
regime is an effective access regime by applying the relevant
principles set out in the Competition Principles Agreement;
and
(aa) must have regard to the objects of this Part; and
(b) must, subject to section 44DA, not consider any other
matters.
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(4A) In deciding what recommendation it should make, the Council
must disregard Chapter 5 of a National Gas Law.
(5) When the Council recommends that the Commonwealth Minister
make a particular decision, the Council must also recommend the
period for which the decision should be in force.
44MA Council may request information
(1) The Council may give a person a written notice requesting the
person give to the Council, within a specified period, information
of the kind specified in the notice that the Council considers may
be relevant to deciding what recommendation to make on an
application under section 44M.
(2) The Council must:
(a) give a copy of the notice to:
(i) if the person is not the applicant—the applicant; and
(ii) if the person is not the provider of the service—the
provider; and
(b) publish, by electronic or other means, the notice.
(3) In deciding what recommendation to make on the application, the
Council:
(a) must have regard to any information given in compliance
with a notice under subsection (1) within the specified
period; and
(b) may disregard any information of the kind specified in the
notice that is given after the specified period has ended.
Subdivision B—Decision by Commonwealth Minister
44N Ministerial decision on effectiveness of access regime
(1) On receiving a recommendation under section 44M, the
Commonwealth Minister must:
(a) decide that the access regime is an effective access regime
for the service or proposed service; or
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(b) decide that the access regime is not an effective access
regime for the service or proposed service.
Note: The Commonwealth Minister must publish his or her decision: see
section 44NG.
(2) In making a decision, the Commonwealth Minister:
(a) must, subject to subsection (2A), apply the relevant
principles set out in the Competition Principles Agreement;
and
(aa) must have regard to the objects of this Part; and
(b) must, subject to section 44DA, not consider any other
matters.
(2A) In making a decision, the Commonwealth Minister must disregard
Chapter 5 of a National Gas Law.
(3) The decision must specify the period for which it is in force.
Note: The period for which the decision is in force may be extended: see
section 44NB.
(4) If the Commonwealth Minister does not publish under
section 44NG his or her decision on a recommendation under
section 44M within the period starting at the start of the day the
recommendation is received and ending at the end of 60 days after
that day:
(a) the Commonwealth Minister is taken, immediately after the
end of that 60-day period:
(i) to have made a decision under subsection (1) in
accordance with the recommendation made by the
Council under section 44M; and
(ii) to have published that decision under section 44NG; and
(b) if the Council recommended that the Commonwealth
Minister decide that the access regime is an effective access
regime for the service, or proposed service—the decision is
taken to be in force for the period recommended by the
Council under subsection 44M(5).
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Section 44NA
Competition and Consumer Act 2010 135
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Subdivision C—Extensions of Commonwealth Minister’s
decision
44NA Recommendation by Council
(1) This section applies if a decision of the Commonwealth Minister is
in force under section 44N (including as a result of an extension
under section 44NB) that a regime established by a State or
Territory for access to a service is an effective access regime.
Application to Council
(2) The responsible Minister for the State or Territory may make a
written application to the Council asking it to recommend that the
Commonwealth Minister decide to extend the period for which the
decision is in force.
Note: The Commonwealth Minister may extend the period for which the
decision is in force more than once: see section 44NB. This means
there may be multiple applications under this subsection.
(3) The responsible Minister for the State or Territory may specify in
the application proposed variations to the access regime.
Assessment by Council
(4) The Council must assess whether the access regime (including any
proposed variations) is an effective access regime. It must do this
in accordance with subsection 44M(4).
(5) If the Council is satisfied that it is an effective access regime, the
Council must, in writing, recommend to the Commonwealth
Minister that he or she extend the period for which the decision
under section 44N is in force. The Council must also recommend
an extension period.
(6) If the Council is satisfied that it is not an effective access regime,
the Council must, in writing, recommend to the Commonwealth
Minister that he or she not extend the period for which the decision
under section 44N is in force.
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Note 1: There are time limits that apply to the Council’s recommendation: see
section 44NC.
Note 2: The Council may request information and invite public submissions
on the application: see sections 44NAA and 44NE.
Note 3: The Council must publish its recommendation: see section 44NF.
44NAA Council may request information
(1) The Council may give a person a written notice requesting the
person give to the Council, within a specified period, information
of the kind specified in the notice that the Council considers may
be relevant to deciding what recommendation to make on an
application under section 44NA.
(2) The Council must:
(a) give a copy of the notice to:
(i) if the person is not the applicant—the applicant; and
(ii) if the person is not the provider of the service—the
provider; and
(b) publish, by electronic or other means, the notice.
(3) In deciding what recommendation to make on the application, the
Council:
(a) must have regard to any information given in compliance
with a notice under subsection (1) within the specified
period; and
(b) may disregard any information of the kind specified in the
notice that is given after the specified period has ended.
44NB Decision by the Commonwealth Minister
(1) On receiving a recommendation under section 44NA, the
Commonwealth Minister must assess whether the access regime
(including any proposed variations) is an effective access regime.
He or she must do this in accordance with subsection 44N(2).
Note: The Commonwealth Minister must publish his or her decision: see
section 44NG.
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Section 44NBA
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(2) If the Commonwealth Minister is satisfied that it is, he or she must,
by notice in writing, decide to extend the period for which the
decision under section 44N is in force. The notice must specify the
extension period.
(3) If the Commonwealth Minister is satisfied that it is not, he or she
must, by notice in writing, decide not to extend the period for
which the decision under section 44N is in force.
(3A) If the Commonwealth Minister does not publish under
section 44NG his or her decision on a recommendation under
section 44NA within the period starting at the start of the day the
recommendation is received and ending at the end of 60 days after
that day:
(a) the Commonwealth Minister is taken, immediately after the
end of that 60-day period:
(i) to have made a decision under this section in
accordance with the recommendation made by the
Council under section 44NA; and
(ii) to have published that decision under section 44NG; and
(b) if the Council recommended that the Commonwealth
Minister extend the period for which the decision under
section 44N is in force—the extension period is taken to be
the extension period recommended by the Council under
subsection 44NA(5).
Multiple extensions
(4) The Commonwealth Minister may extend the period for which a
decision is in force under section 44N more than once.
Subdivision CA—Revocation of Commonwealth Minister’s
decision
44NBA Recommendation by Council
(1) If a decision of the Commonwealth Minister is in force under
section 44N (including as a result of an extension under
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section 44NB) that a regime established by a State or Territory for
access to a service is an effective access regime, the Council:
(a) may, on its own initiative; and
(b) must, on an application made under subsection (3);
consider whether to recommend that the Commonwealth Minister
revoke the decision.
(2) Before considering on its own initiative whether to recommend
that the Commonwealth Minister revoke the decision, the Council
must:
(a) publish, by electronic or other means, a notice to that effect;
and
(b) give a copy of the notice to:
(i) the responsible Minister for the State or Territory; and
(ii) the provider of the service.
(3) Any of the following may make a written application to the
Council asking it to recommend that the Commonwealth Minister
revoke the decision:
(a) a person who is seeking access to the service;
(b) the responsible Minister for the State or Territory;
(c) the provider of the service.
The Council must give a copy of the application to each entity
mentioned in paragraph (b) or (c), unless that entity is the
applicant.
(4) Subject to subsection (5), the Council’s consideration of whether to
make the recommendation must be in accordance with
subsection 44M(4).
(5) In considering whether to make the recommendation, the Council
must consider whether it is satisfied that the regime no longer
meets the relevant principles, set out in the Competition Principles
Agreement, relating to whether access regimes are effective access
regimes, because of either or both of the following:
(a) substantial changes to the regime;
(b) substantial amendments of those principles.
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(6) If the Council is so satisfied, the Council must, in writing,
recommend to the Commonwealth Minister that he or she revoke
the decision.
(7) If the Council is not so satisfied, the Council must, in writing,
recommend to the Commonwealth Minister that he or she not
revoke the decision.
Note 1: There are time limits that apply to the Council’s recommendation: see
section 44NC.
Note 2: The Council may request information and invite public submissions:
see sections 44NBB and 44NE.
Note 3: The Council must publish its recommendation: see section 44NF.
44NBB Council may request information
(1) The Council may give a person a written notice requesting the
person give to the Council, within a specified period, information
of the kind specified in the notice that the Council considers may
be relevant to deciding what recommendation to make under
section 44NBA.
(2) The Council must:
(a) give a copy of the notice to:
(i) if an application was made under subsection 44NBA(3)
and the person is not the applicant—the applicant; and
(ii) if the person is not the provider of the service—the
provider; and
(iii) in every case—the responsible Minister for the State or
Territory; and
(b) publish, by electronic or other means, the notice.
(3) In deciding what recommendation to make, the Council:
(a) must have regard to any information given in compliance
with a notice under subsection (1) within the specified
period; and
(b) may disregard any information of the kind specified in the
notice that is given after the specified period has ended.
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44NBC Decision by the Commonwealth Minister
(1) On receiving a recommendation under section 44NBA, the
Commonwealth Minister must assess whether he or she should
revoke the decision. Subject to subsection (2) of this section, he or
she must do this in accordance with subsection 44N(2).
Note: The Commonwealth Minister must publish his or her decision: see
section 44NG.
(2) In making his or her assessment, the Commonwealth Minister must
consider whether he or she is satisfied as to the matter set out in
subsection 44NBA(5).
(3) If the Commonwealth Minister is so satisfied, he or she must, by
notice in writing, decide to revoke the decision. The notice must
specify the day on which the revoked decision is to cease to be in
force.
(4) If the Commonwealth Minister is not so satisfied, he or she must,
by notice in writing, decide not to revoke the decision.
(5) If the Commonwealth Minister does not publish under
section 44NG his or her decision on the recommendation within
the period starting at the start of the day the recommendation is
received and ending at the end of 60 days after that day, he or she
is taken, immediately after the end of that 60-day period:
(a) to have made a decision under this section in accordance with
the recommendation made by the Council under
section 44NBA; and
(b) to have published that decision under section 44NG.
Subdivision D—Procedural provisions
44NC Time limit for Council recommendations
Council to make recommendation within the consideration period
(1) The Council must make a recommendation on an application under
section 44M, 44NA or 44NBA, or on a consideration by the
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Council on its own initiative under section 44NBA, within the
consideration period.
(2) The consideration period is a period of 180 days (the expected
period), starting at the start of the day the application is received,
or the consideration is notified under paragraph 44NBA(2)(a),
unless the consideration period is extended under subsection (7).
Stopping the clock
(3) In working out the expected period in relation to a recommendation
on an application under section 44M, 44NA or 44NBA, or on a
consideration by the Council on its own initiative under
section 44NBA, in a situation referred to in column 1 of an item of
the following table, disregard any day in a period:
(a) starting on the day referred to in column 2 of the item; and
(b) ending on the day referred to in column 3 of the item.
Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
1 An agreement is made
in relation to the
application under
subsection (5)
The first day of the
period specified in
the agreement
The last day of the period
specified in the agreement
2 A notice is given under
subsection 44MA(1)
requesting information
in relation to the
application
The day on which
the notice is given
The last day of the period
specified in the notice for
the giving of the
information
3 A notice is given under
subsection 44NAA(1)
requesting information
in relation to the
application
The day on which
the notice is given
The last day of the period
specified in the notice for
the giving of the
information
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Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
4 A notice is given under
subsection 44NBB(1)
requesting information
in relation to the
application or
consideration
The day on which
the notice is given
The last day of the period
specified in the notice for
the giving of the
information
(4) Despite subsection (3):
(a) do not disregard any day more than once; and
(b) the total period that is disregarded under that subsection must
not exceed 60 days.
Stopping the clock by agreement
(5) The Council, the applicant (if the Commission is not acting on its
own initiative under paragraph 44NBA(1)(a)) and the provider of
the service (if the provider is not the applicant) may agree in
writing that a specified period is to be disregarded in working out
the expected period.
(6) The Council must publish, by electronic or other means, the
agreement.
Council may extend time for making recommendation
(7) If the Council is unable to make a recommendation within the
consideration period (whether it is the expected period or the
consideration period as previously extended under this subsection),
it must, by notice in writing to the Commonwealth Minister, extend
the consideration period by a specified period.
(8) The notice must:
(a) specify when the Council must now make its
recommendation; and
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(b) include a statement explaining why the Council has been
unable to make a decision on the recommendation within the
consideration period.
(9) The Council must give a copy of the notice to:
(a) if the Commission is not acting on its own initiative under
paragraph 44NBA(1)(a)—the applicant; and
(b) if the applicant is not the provider of the service—the
provider.
Publication
(10) If the Council extends the consideration period under
subsection (7), it must publish a notice in a national newspaper:
(a) stating that it has done so; and
(b) specifying the day by which it must now make a
recommendation on the application.
Failure to comply with time limit does not affect validity
(11) Failure by the Council to comply with a time limit set in this
section does not affect the validity of a recommendation made
under this section.
44NE Council may invite public submissions
Invitation
(1) The Council may publish, by electronic or other means, a notice
inviting public submissions on an application under section 44M,
44NA or 44NBA, or on a consideration by the Council on its own
initiative under section 44NBA, if it considers that it is appropriate
and practicable to do so.
(2) The notice must specify how submissions may be made and the
day by which submissions may be made (which must be at least 14
days after the day the notice is published).
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Consideration of submissions
(3) Subject to subsection (6), in deciding what recommendation to
make, the Council:
(a) must have regard to any submission made on or before the
day specified in the notice; and
(b) may disregard any submission made after the day specified in
the notice.
Council may make submissions publicly available
(4) The Council may make any written submission, or a written record
(which may be a summary) of any oral submission, publicly
available.
Confidentiality
(5) A person may, at the time of making a submission, request that the
Council:
(a) not make the whole or a part of the submission available
under subsection (4); and
(b) not publish or make available the whole or a part of the
submission under section 44NF;
because of the confidential commercial information contained in
the submission.
(6) If the Council refuses such a request:
(a) for a written submission—the Council must, if the person
who made it so requires, return the whole or the part of it to
the person; and
(b) for an oral submission—the person who made it may inform
the Council that the person withdraws the whole or the part
of it; and
(c) if the Council returns the whole or the part of the submission,
or the person withdraws the whole or the part of the
submission, the Council must not:
(i) make the whole or the part of the submission available
under subsection (4); and
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(ii) publish or make available the whole or the part of the
submission under section 44NF; and
(iii) have regard to the whole or the part of the submission in
making its recommendation.
44NF Publication—Council
(1) The Council must publish, by electronic or other means, a
recommendation under section 44M, 44NA or 44NBA and its
reasons for the recommendation.
(2) The Council must give a copy of the publication to:
(a) the applicant under section 44M or 44NA, or under
section 44NBA (unless the recommendation relates to a
consideration by the Council under that section on its own
initiative); and
(b) the provider of the service.
Timing
(3) The Council must do the things under subsections (1) and (2) on
the day the Commonwealth Minister publishes his or her decision
on the recommendation or as soon as practicable after that day.
Consultation
(4) Before publishing under subsection (1), the Council may give any
one or more of the following persons:
(a) the applicant under section 44M or 44NA, or under
section 44NBA (unless the recommendation relates to a
consideration by the Council under that section on its own
initiative);
(b) the provider of the service;
(c) any other person the Council considers appropriate;
a notice in writing:
(d) specifying what the Council is proposing to publish; and
(e) inviting the person to make a written submission to the
Council within 14 days after the notice is given identifying
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any information the person considers should not be published
because of its confidential commercial nature.
(5) The Council must have regard to any submission so made in
deciding what to publish. It may have regard to any other matter it
considers relevant.
44NG Publication—Commonwealth Minister
(1) The Commonwealth Minister must publish, by electronic or other
means, his or her decision on a recommendation under
section 44M, 44NA or 44NBA and his or her reasons for the
decision.
(2) The Commonwealth Minister must give a copy of the publication
to:
(a) the applicant under section 44M or 44NA, or under
section 44NBA (unless the recommendation relates to a
consideration by the Council under that section on its own
initiative); and
(b) the provider of the service.
Consultation
(3) Before publishing under subsection (1), the Commonwealth
Minister may give any one or more of the following persons:
(a) the applicant under section 44M or 44NA, or under
section 44NBA (unless the recommendation relates to a
consideration by the Council under that section on its own
initiative);
(b) the provider of the service;
(c) any other person the Minister considers appropriate;
a notice in writing:
(d) specifying what the Minister is proposing to publish; and
(e) inviting the person to make a written submission to the
Minister within 14 days after the notice is given identifying
any information the person considers should not be published
because of its confidential commercial nature.
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Section 44O
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(4) The Commonwealth Minister must have regard to any submission
so made in deciding what to publish. He or she may have regard to
any other matter he or she considers relevant.
Subdivision E—Review of decisions
44O Review of Ministerial decision on effectiveness of access regime
(1) The responsible Minister of the State or Territory:
(a) who applied for a recommendation under section 44M that
the Commonwealth Minister decide that the access regime is
an effective access regime; or
(b) who applied for a recommendation under section 44NA that
the Commonwealth Minister decide to extend the period for
which the decision under section 44N is in force;
may apply to the Tribunal for review of the Commonwealth
Minister’s decision.
(1A) If, on receiving a recommendation under section 44NBA relating
to a decision under section 44N, the Commonwealth Minister has
made a decision under section 44NBC:
(a) the person who applied under subsection 44NBA(3) for the
Council to make a recommendation relating to that decision
under section 44N; or
(b) any other person who could have applied under
subsection 44NBA(3) for the Council to make such a
recommendation;
may apply to the Tribunal for review of the Commonwealth
Minister’s decision under section 44NBC.
(2) An application for review must be made within 21 days after
publication of the Commonwealth Minister’s decision.
(3) The review by the Tribunal is a reconsideration of the matter based
on the information, reports and things referred to in
section 44ZZOAA.
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Section 44P
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Note: There are limits on the information to which the Tribunal may have
regard (see section 44ZZOAA) and time limits that apply to the
Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the Tribunal has the same powers
as the Commonwealth Minister.
(5) The member of the Tribunal presiding at the review may require
the Council to give assistance for the purposes of the review.
(5A) Without limiting subsection (5), the member may, by written
notice, require the Council to give information, and to make
reports, of a kind specified in the notice, within the period
specified in the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for the review; and
(ii) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
(6) The Tribunal may affirm, vary or reverse the Commonwealth
Minister’s decision.
(7) A decision made by the Tribunal is to be taken to be a decision of
the Commonwealth Minister for all purposes of this Part (except
this section).
Subdivision F—State or Territory ceasing to be a party to
Competition Principles Agreement
44P State or Territory ceasing to be a party to Competition
Principles Agreement
If a State or Territory that has established a regime for access to a
service or proposed service ceases to be a party to the Competition
Principles Agreement:
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(a) a decision by the Commonwealth Minister that the regime is
an effective access regime ceases to be in force; and
(b) the Council, the Commonwealth Minister and the Tribunal
need not take any further action relating to an application for
a decision by the Commonwealth Minister that the regime is
an effective access regime.
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Division 2B Competitive tender processes for government owned facilities
Section 44PA
150 Competition and Consumer Act 2010
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Division 2B—Competitive tender processes for government
owned facilities
44PA Approval of competitive tender process
Application to Commission
(1) The Commonwealth Minister, or the responsible Minister of a
State or Territory, may make a written application to the
Commission asking it to approve a tender process, for the
construction and operation of a facility that is to be owned by the
Commonwealth, State or Territory, as a competitive tender
process.
(2) The application must:
(a) specify the service or services proposed to be provided by
means of the facility; and
(b) be in accordance with the regulations.
Decision of Commission
(3) The Commission must, by notice in writing, approve or refuse to
approve the tender process as a competitive tender process.
Note 1: While a decision is in force approving a tender process as a
competitive tender process, the designated Minister cannot declare
any service provided by means of the facility that was specified under
paragraph (2)(a): see subsection 44H(3A).
Note 2: There are time limits that apply to the Commission’s decision: see
section 44PD.
Note 3: The Commission may request information and invite public
submissions on the application: see sections 44PAA and 44PE.
Note 4: The Commission must publish its decision: see section 44PF.
(4) The Commission must not approve a tender process as a
competitive tender process unless:
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(a) it is satisfied that reasonable terms and conditions of access
to any service specified under paragraph (2)(a) will be the
result of the process; and
(b) it is satisfied that the tender process meets the requirements
prescribed by the regulations.
(4A) The Commission may approve the tender process as a competitive
tender process even if the service proposed to be provided by
means of the facility is the subject of a decision by the designated
Minister under section 44LG that the service is ineligible to be a
declared service.
Period for which decision in force
(5) If the Commission approves the tender process as a competitive
tender process, it may specify in the notice the period for which the
decision is in force.
Note: Section 44PC provides for revocation of the decision.
(6) The Commission may, by writing, extend that period by a specified
period. The Commission may do so more than once.
Legislation Act 2003
(7) A notice under subsection (3) is not a legislative instrument.
44PAA Commission may request information
(1) The Commission may give a person a written notice requesting the
person give to the Commission, within a specified period,
information of the kind specified in the notice that the Commission
considers may be relevant to deciding whether to approve or refuse
to approve a tender process under section 44PA.
(2) The Commission must:
(a) if the person is not the applicant—give a copy of the notice to
the applicant; and
(b) publish, by electronic or other means, the notice.
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Section 44PB
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(3) In deciding whether to approve or refuse to approve the tender
process, the Commission:
(a) must have regard to any information given in compliance
with a notice under subsection (1) within the specified
period; and
(b) may disregard any information of the kind specified in the
notice that is given after the specified period has ended.
44PB Report on conduct of tender process
Report
(1) If the Commission approves a tender process as a competitive
tender process, it must, after a tenderer is chosen, ask the applicant
under subsection 44PA(1), by notice in writing, to give the
Commission a written report on the conduct of the tender process.
(2) The report must be in accordance with the regulations.
Commission may ask for further information
(3) After the Commission receives the report, it may ask the applicant
under subsection 44PA(1), by notice in writing, to give the
Commission further information in relation to the conduct of the
tender process.
Legislation Act 2003
(4) A report under subsection (1) is not a legislative instrument.
44PC Revocation of approval decision
Discretionary revocation
(1) The Commission may, by writing, revoke a decision to approve a
tender process as a competitive tender process if it is satisfied that
the assessment of the tenders was not in accordance with that
process.
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Note 1: The Commission may invite public submissions on any proposed
revocation decision: see section 44PE.
Note 2: The Commission must publish its decision: see section 44PF.
(2) The Commission may, by writing, revoke a decision to approve a
tender process as a competitive tender process if it is satisfied that
the provider of a service:
(a) specified under paragraph 44PA(2)(a); and
(b) being provided by means of the facility concerned;
is not complying with the terms and conditions of access to the
service.
Note 1: The Commission may invite public submissions on any proposed
revocation decision: see section 44PE.
Note 2: The Commission must publish its decision: see section 44PF.
(3) Before making a decision under subsection (2), the Commission
must give the applicant under subsection 44PA(1), and the provider
of the service, a written notice:
(a) stating that the Commission is proposing to make such a
decision and the reasons for it; and
(b) inviting the person to make a written submission to the
Commission on the proposal; and
(c) stating that any submission must be made within the period
of 40 business days after the notice is given.
(4) The Commission must consider any written submission received
within that period.
Mandatory revocation
(5) If:
(a) the Commission approves a tender process as a competitive
tender process; and
(b) the Commission gives the applicant a notice under
subsection 44PB(1) or (3); and
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Section 44PD
154 Competition and Consumer Act 2010
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(c) the applicant does not comply with the notice within the
period of 40 business days beginning on the day on which the
notice is given;
the Commission must, by writing, revoke the approval decision at
the end of that period. The Commission must give notice of the
revocation to the applicant.
Definition
(6) In this section:
business day means a day that is not a Saturday, a Sunday, or a
public holiday in the Australian Capital Territory.
44PD Time limit for Commission decisions
Commission to make decision within 90 days
(1) The Commission must make a decision on an application under
subsection 44PA(1) within the period of 90 days (the expected
period) starting at the start of the day the application is received.
Stopping the clock
(2) In working out the expected period in relation to a decision on an
application under subsection 44PA(1), in a situation referred to in
column 1 of an item of the following table, disregard any day in a
period:
(a) starting on the day referred to in column 2 of the item; and
(b) ending on the day referred to in column 3 of the item.
Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
1 An agreement is
made in relation to
the application under
subsection (4)
The first day
of the period
specified in
the agreement
The last day of the period
specified in the agreement
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Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
2 A notice is given
under
subsection 44PAA(1)
requesting
information in
relation to the
application
The day on
which the
notice is given
The last day of the period
specified in the notice for the
giving of the information
3 A notice is published
under
subsection 44PE(1)
inviting public
submissions in
relation to the
application
The day on
which the
notice is
published
The day specified in the notice as
the day by which submissions
may be made
(3) Despite subsection (2), do not disregard any day more than once.
Stopping the clock by agreement
(4) The Commission and the applicant may agree in writing that a
specified period is to be disregarded in working out the expected
period.
(5) The Commission must publish, by electronic or other means, the
agreement.
Deemed approval as a competitive tender process
(6) If the Commission does not publish under subsection 44PF(1) its
decision on the application within the expected period, it is taken,
immediately after the end of the expected period, to have:
(a) approved the tender process as a competitive tender process;
and
(b) published the decision to approve the process and its reasons
for that decision; and
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(c) specified that the decision is in force for a period of 20 years,
starting 21 days after the start of the day the decision is taken
to have been published.
44PE Commission may invite public submissions
Invitation
(1) The Commission may publish, by electronic or other means, a
notice inviting public submissions:
(a) on an application under subsection 44PA(1); or
(b) on any proposed decision under subsection 44PC(1) or (2) to
revoke a decision under subsection 44PA(3) to approve a
tender process as a competitive tender process;
if it considers that it is appropriate and practicable to do so.
(2) The notice must specify how submissions may be made and the
day by which submissions may be made (which must be at least 14
days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in making its decision, the Commission:
(a) must have regard to any submission made on or before the
day specified in the notice; and
(b) may disregard any submission made after the day specified in
the notice.
Commission may make submissions publicly available
(4) The Commission may make any written submission, or a written
record (which may be a summary) of any oral submission, publicly
available.
Confidentiality
(5) A person may, at the time of making a submission, request that the
Commission:
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(a) not make the whole or a part of the submission available
under subsection (4); and
(b) not publish or make available the whole or a part of the
submission under section 44PF;
because of the confidential commercial information contained in
the submission.
(6) If the Commission refuses such a request:
(a) for a written submission—the Commission must, if the
person who made it so requires, return the whole or the part
of it to the person; and
(b) for an oral submission—the person who made it may inform
the Commission that the person withdraws the whole or the
part of it; and
(c) if the Commission returns the whole or the part of the
submission, or the person withdraws the whole or the part of
the submission, the Commission must not:
(i) make the whole or the part of the submission available
under subsection (4); and
(ii) publish or make available the whole or the part of the
submission under section 44PF; and
(iii) have regard to the whole or the part of the submission in
making its decision.
44PF Commission must publish its decisions
(1) The Commission must publish, by electronic or other means, a
decision under subsection 44PA(3) or 44PC(1) or (2) and its
reasons for the decision.
(2) The Commission must give a copy of the publication to:
(a) for any decision—the applicant under subsection 44PA(1);
and
(b) for a decision under subsection 44PC(2)—the provider of the
service.
It may also give a copy to any other person the Commission
considers appropriate.
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Section 44PG
158 Competition and Consumer Act 2010
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Consultation
(3) Before publishing under subsection (1), the Commission may give
the following persons:
(a) for any decision—the applicant under subsection 44PA(1) or
any other person the Commission considers appropriate;
(b) for a decision under subsection 44PC(2)—the provider of the
service;
a notice in writing:
(c) specifying what the Commission is proposing to publish; and
(d) inviting the person to make a written submission to the
Commission within 14 days after the notice is given
identifying any information the person considers should not
be published because of its confidential commercial nature.
(4) The Commission must have regard to any submission so made in
deciding what to publish. It may have regard to any other matter it
considers relevant.
44PG Review of Commission’s initial decision
Application
(1) A person whose interests are affected by a decision of the
Commission under subsection 44PA(3) may apply in writing to the
Tribunal for review of the decision.
(2) The person must apply for review within 21 days after the
Commission publishes its decision.
Review
(3) The review by the Tribunal is a reconsideration of the matter based
on the information, reports and things referred to in
section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have
regard (see section 44ZZOAA) and time limits that apply to the
Tribunal’s decision on the review (see section 44ZZOA).
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(4) For the purposes of the review, the Tribunal has the same powers
as the Commission.
(5) The member of the Tribunal presiding at the review may require
the Commission to give assistance for the purposes of the review.
(5A) Without limiting subsection (5), the member may, by written
notice, require the Commission to give information, and to make
reports, of a kind specified in the notice, within the period
specified in the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) the person who made the application under
subsection 44PA(1) requesting approval of a tender
process as a competitive tender process; and
(iii) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
Tribunal’s decision
(6) If the Commission refused to approve a tender process as a
competitive tender process, the Tribunal must, by writing:
(a) affirm the Commission’s decision; or
(b) set aside the Commission’s decision and approve the process
as a competitive tender process.
(7) A decision of the Tribunal to approve a process as a competitive
tender process is taken to be a decision by the Commission for all
purposes of this Part (except this section).
(8) If the Commission approved a tender process as a competitive
tender process, the Tribunal must, by writing, affirm or set aside
the Commission’s decision.
Note: If the Tribunal sets aside a decision of the Commission to approve a
tender process as a competitive tender process, the Commission’s
decision is no longer in force. This means the designated Minister is
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Section 44PH
160 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
no longer prevented by subsection 44H(3A) from declaring a service
provided by means of the facility concerned.
44PH Review of decision to revoke an approval
Application
(1) If the Commission makes a decision under subsection 44PC(1) or
(2), the following persons may apply in writing to the Tribunal for
review of the decision:
(a) for either decision—the applicant under subsection 44PA(1)
or any other person whose interests are affected by the
decision;
(b) for a decision under subsection 44PC(2)—the provider of the
service.
(2) The person must apply for review within 21 days after the
Commission publishes its decision.
Review
(3) The review by the Tribunal is a reconsideration of the matter based
on the information, reports and things referred to in
section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have
regard (see section 44ZZOAA) and time limits that apply to the
Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the Tribunal has the same powers
as the Commission.
(5) The member of the Tribunal presiding at the review may require
the Commission to give assistance for the purposes of the review.
(5A) Without limiting subsection (5), the member may, by written
notice, require the Commission to give information, and to make
reports, of a kind specified in the notice, within the period
specified in the notice, for the purposes of the review.
(5B) The Tribunal must:
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Section 44PH
Competition and Consumer Act 2010 161
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(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) the person who made the application under
subsection 44PA(1) requesting approval of a tender
process as a competitive tender process; and
(iii) for a review of a decision under subsection 44PC(2)—
the provider of the service; and
(iv) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
Tribunal’s decision
(6) The Tribunal must, by writing, affirm or set aside the
Commission’s decision.
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Division 2C Register of decisions and declarations
Section 44Q
162 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 2C—Register of decisions and declarations
44Q Register of decisions, declarations and ineligibility decisions
The Commission must maintain a public register that includes:
(a) each decision of the Commonwealth Minister that a regime
established by a State or Territory for access to a service is an
effective access regime for the service or proposed service;
and
(aa) each decision of the Commonwealth Minister to extend the
period for which a decision under section 44N is in force;
and
(b) each declaration (including a declaration that is no longer in
force); and
(ba) each decision of a designated Minister under section 44LG
that a service is ineligible to be a declared service; and
(bb) each decision of a designated Minister under section 44LI to
revoke his or her decision that a service is ineligible to be a
declared service; and
(c) each decision of the Commission under subsection 44PA(3)
to approve a tender process as a competitive tender process;
and
(d) each decision of the Commission under section 44PC to
revoke a decision under subsection 44PA(3).
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Section 44R
Competition and Consumer Act 2010 163
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Division 3—Access to declared services
Subdivision A—Scope of Division
44R Constitutional limits on operation of this Division
This Division does not apply in relation to a third party’s access to
a service unless:
(a) the provider is a corporation (or a partnership or joint venture
consisting wholly of corporations); or
(b) the third party is a corporation; or
(c) the access is (or would be) in the course of, or for the
purposes of, constitutional trade or commerce.
Subdivision B—Notification of access disputes
44S Notification of access disputes
(1) If a third party is unable to agree with the provider on one or more
aspects of access to a declared service, either the provider or the
third party may notify the Commission in writing that an access
dispute exists, but only to the extent that those aspects of access are
not the subject of an access undertaking that is in operation in
relation to the service.
Note: An example of one of the things on which a provider and third party
might disagree is whether a previous determination ought to be varied.
(2) On receiving the notification, the Commission must give notice in
writing of the access dispute to:
(a) the provider, if the third party notified the access dispute;
(b) the third party, if the provider notified the access dispute;
(c) any other person whom the Commission thinks might want to
become a party to the arbitration.
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Section 44T
164 Competition and Consumer Act 2010
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44T Withdrawal of notifications
(1) A notification may be withdrawn as follows (and not otherwise):
(a) if the provider notified the dispute:
(i) the provider may withdraw the notification at any time
before the Commission makes its final determination;
(ii) the third party may withdraw the provider’s notification
at any time after the Commission issues a draft final
determination, but before it makes its final
determination;
(b) if the third party notified the dispute, the third party may
withdraw the notification at any time before the Commission
makes its determination.
(2) Despite subparagraph (1)(a)(ii), if the provider notified a dispute
over variation of a final determination, the third party may not
withdraw the provider’s notification.
(3) If the notification is withdrawn, it is taken for the purposes of this
Part never to have been given.
Subdivision C—Arbitration of access disputes
44U Parties to the arbitration
The parties to the arbitration of an access dispute are:
(a) the provider;
(b) the third party;
(c) any other person who applies in writing to be made a party
and is accepted by the Commission as having a sufficient
interest.
44V Determination by Commission
(1) Unless it terminates the arbitration under section 44Y, 44YA,
44ZZCB or 44ZZCBA, the Commission:
(a) must make a written final determination; and
(b) may make a written interim determination;
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Section 44V
Competition and Consumer Act 2010 165
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on access by the third party to the service.
Note 1: There are time limits that apply to the Commission’s final
determination: see section 44XA.
Note 2: The Commission may defer arbitration of the access dispute if it is
also considering an access undertaking: see section 44ZZCB.
(2) A determination may deal with any matter relating to access by the
third party to the service, including matters that were not the basis
for notification of the dispute. By way of example, the
determination may:
(a) require the provider to provide access to the service by the
third party;
(b) require the third party to accept, and pay for, access to the
service;
(c) specify the terms and conditions of the third party’s access to
the service;
(d) require the provider to extend the facility;
(da) require the provider to permit interconnection to the facility
by the third party;
(e) specify the extent to which the determination overrides an
earlier determination relating to access to the service by the
third party.
(2A) Without limiting paragraph (2)(d), a requirement referred to in that
paragraph may do either or both of the following:
(a) require the provider to expand the capacity of the facility;
(b) require the provider to expand the geographical reach of the
facility.
(3) A determination does not have to require the provider to provide
access to the service by the third party.
(4) Before making a determination, the Commission must give a draft
determination to the parties.
(5) When the Commission makes a determination, it must give the
parties to the arbitration its reasons for making the determination.
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Section 44W
166 Competition and Consumer Act 2010
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(6) A determination is not a legislative instrument.
44W Restrictions on access determinations
(1) The Commission must not make a determination that would have
any of the following effects:
(a) preventing an existing user obtaining a sufficient amount of
the service to be able to meet the user’s reasonably
anticipated requirements, measured at the time when the
dispute was notified;
(b) preventing a person from obtaining, by the exercise of a
pre-notification right, a sufficient amount of the service to be
able to meet the person’s actual requirements;
(c) depriving any person of a protected contractual right;
(d) resulting in the third party becoming the owner (or one of the
owners) of any part of the facility, or of extensions of the
facility (including expansions of the capacity of the facility
and expansions of the geographical reach of the facility),
without the consent of the provider;
(e) requiring the provider to bear some or all of the costs of
extending the facility (including expanding the capacity of
the facility and expanding the geographical reach of the
facility);
(ea) requiring the provider to bear some or all of the costs of
maintaining extensions of the facility (including expansions
of the capacity of the facility and expansions of the
geographical reach of the facility);
(f) requiring the provider to bear some or all of the costs of
interconnections to the facility or maintaining
interconnections to the facility.
(2) Paragraphs (1)(a) and (b) do not apply in relation to the
requirements and rights of the third party and the provider when
the Commission is making a determination in arbitration of an
access dispute relating to an earlier determination of an access
dispute between the third party and the provider.
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Section 44W
Competition and Consumer Act 2010 167
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(3) A determination is of no effect if it is made in contravention of
subsection (1).
(4) If the Commission makes a determination that has the effect of
depriving a person (the second person) of a pre-notification right
to require the provider to supply the service to the second person,
the determination must also require the third party:
(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 provider and the Commonwealth for any
compensation that the provider or the Commonwealth agrees,
or is required by a court order, to pay to the second party as
compensation for the deprivation.
Note: Without infringing paragraph (1)(b), a determination may deprive a
second person of the right to be supplied with an amount of service
equal to the difference between the total amount of service the person
was entitled to under a pre-notification right and the amount that the
person actually needs to meet his or her actual requirements.
(4A) If an application for review of a declaration of a service has been
made under subsection 44K(1), the Commission must not make a
determination in relation to the service until the Tribunal has made
its decision on the review.
(5) In this section:
existing user means a person (including the provider) who was
using the service at the time when the dispute was notified.
pre-notification right means a right under a contract, or under a
determination, that was in force at the time when the dispute was
notified.
protected contractual right means a right under a contract that was
in force at the beginning of 30 March 1995.
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Section 44X
168 Competition and Consumer Act 2010
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44X Matters that the Commission must take into account
Final determinations
(1) The Commission must take the following matters into account in
making a final determination:
(aa) the objects of this Part;
(a) the legitimate business interests of the provider, and the
provider’s investment in the facility;
(b) the public interest, including the public interest in having
competition in markets (whether or not in Australia);
(c) the interests of all persons who have rights to use the service;
(d) the direct costs of providing access to the service;
(e) the value to the provider of extensions (including expansions
of capacity and expansions of geographical reach) whose cost
is borne by someone else;
(ea) the value to the provider of interconnections to the facility
whose cost is borne by someone else;
(f) the operational and technical requirements necessary for the
safe and reliable operation of the facility;
(g) the economically efficient operation of the facility;
(h) the pricing principles specified in section 44ZZCA.
(2) The Commission may take into account any other matters that it
thinks are relevant.
Interim determinations
(3) The Commission may take the following matters into account in
making an interim determination:
(a) a matter referred to in subsection (1);
(b) any other matter it considers relevant.
(4) In making an interim determination, the Commission does not have
a duty to consider whether to take into account a matter referred to
in subsection (1).
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Section 44XA
Competition and Consumer Act 2010 169
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44XA Time limit for Commission’s final determination
Commission to make final determination within 180 days
(1) The Commission must make a final determination within the
period of 180 days (the expected period) starting at the start of the
day the application is received.
Stopping the clock
(2) In working out the expected period in relation to a final
determination, in a situation referred to in column 1 of an item of
the following table, disregard any day in a period:
(a) starting on the day referred to in column 2 of the item; and
(b) ending on the day referred to in column 3 of the item.
Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
1 An agreement is made in
relation to the arbitration
under subsection (4)
The first day of
the period
specified in the
agreement
The last day of the period
specified in the agreement
2 A direction is given
under
subsection 44ZG(1) to
give information or make
a submission within a
specified period
The first day of
the period
specified for the
giving of the
information or
the making of
the submission
The last day of the period
specified for the giving of
the information or the
making of the submission
3 A decision is published
under
subsection 44ZZCB(4)
deferring consideration
of the dispute while the
Commission considers
an access undertaking
The day on
which the
decision is
published
The day on which the
Commission makes its
decision on the access
undertaking under
subsection 44ZZA(3)
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Section 44Y
170 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
4 The Commission, under
subsection 44ZZCBA(1)
or (2), defers arbitrating
the dispute while a
declaration is under
review by the Tribunal
The day on
which the
Commission
gives the notice
to defer
arbitrating the
dispute
The day the Tribunal makes
its decision under
section 44K on the review
(3) Despite subsection (2), do not disregard any day more than once.
Stopping the clock by agreement
(4) The Commission and the parties to the access dispute may agree in
writing that a specified period is to be disregarded in working out
the expected period.
(5) The Commission must publish, by electronic or other means, the
agreement.
Deemed final determination
(6) If the Commission does not publish under section 44ZNB a written
report about a final determination within the expected period, it is
taken, immediately after the end of the expected period, to have:
(a) made a final determination that does not impose any
obligations on the parties or alter any obligations (if any) that
exist at that time between the parties; and
(b) published a written report about the final determination under
section 44ZNB.
44Y Commission may terminate arbitration in certain cases
(1) The Commission may at any time terminate an arbitration (without
making a final determination) if it thinks that:
(a) the notification of the dispute was vexatious; or
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Section 44YA
Competition and Consumer Act 2010 171
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(b) the subject matter of the dispute is trivial, misconceived or
lacking in substance; or
(c) the party who notified the dispute has not engaged in
negotiations in good faith; or
(d) access to the service should continue to be governed by an
existing contract between the provider and the third party.
(2) In addition, if the dispute is about varying an existing
determination, the Commission may terminate the arbitration if it
thinks there is no sufficient reason why the previous determination
should not continue to have effect in its present form.
44YA Commission must terminate arbitration if declaration varied
or set aside by Tribunal
If the Commission is arbitrating a dispute in relation to a declared
service and the Tribunal sets aside or varies the declaration in
relation to the service under section 44K, the Commission must
terminate the arbitration.
Subdivision D—Procedure in arbitrations
44Z Constitution of Commission for conduct of arbitration
For the purposes of a particular arbitration, the Commission is to
be constituted by 2 or more members of the Commission
nominated in writing by the Chairperson.
44ZA Member of the Commission presiding at an arbitration
(1) Subject to subsection (2), the Chairperson is to preside at an
arbitration.
(2) If the Chairperson is not a member of the Commission as
constituted under section 44Z in relation to a particular arbitration,
the Chairperson must nominate a member of the Commission to
preside at the arbitration.
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Section 44ZB
172 Competition and Consumer Act 2010
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44ZB Reconstitution of Commission
(1) This section applies if a member of the Commission who is one of
the members who constitute the Commission for the purposes of a
particular arbitration:
(a) stops being a member of the Commission; or
(b) for any reason, is not available for the purpose of the
arbitration.
(2) The Chairperson must either:
(a) direct that the Commission is to be constituted for the
purposes of finishing the arbitration by the remaining
member or members; or
(b) direct that the Commission is to be constituted for that
purpose by the remaining member or members together with
one or more other members of the Commission.
(3) If a direction under subsection (2) is given, the Commission as
constituted in accordance with the direction must continue and
finish the arbitration and may, for that purpose, have regard to any
record of the proceedings of the arbitration made by the
Commission as previously constituted.
44ZC Determination of questions
If the Commission is constituted for an arbitration by 2 or more
members of the Commission, any question before the Commission
is to be decided:
(a) unless paragraph (b) applies—according to the opinion of the
majority of those members; or
(b) if the members are evenly divided on the question—
according to the opinion of the member who is presiding.
44ZD Hearing to be in private
(1) Subject to subsection (2), an arbitration hearing for an access
dispute is to be in private.
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Section 44ZE
Competition and Consumer Act 2010 173
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(2) If the parties agree, an arbitration hearing or part of an arbitration
hearing may be conducted in public.
(3) The member of the Commission who is presiding at an arbitration
hearing that is conducted in private may give written directions as
to the persons who may be present.
(4) In giving directions under subsection (3), the member presiding
must have regard to the wishes of the parties and the need for
commercial confidentiality.
44ZE Right to representation
In an arbitration hearing before the Commission under this Part, a
party may appear in person or be represented by someone else.
44ZF Procedure of Commission
(1) In an arbitration hearing about an access dispute, the Commission:
(a) is not bound by technicalities, legal forms or rules of
evidence; and
(b) must act as speedily as a proper consideration of the dispute
allows, having regard to the need to carefully and quickly
inquire into and investigate the dispute and all matters
affecting the merits, and fair settlement, of the dispute; and
(c) may inform itself of any matter relevant to the dispute in any
way it thinks appropriate.
(2) The Commission may determine the periods that are reasonably
necessary for the fair and adequate presentation of the respective
cases of the parties to an access dispute, and may require that the
cases be presented within those periods.
(3) The Commission may require evidence or argument to be
presented in writing, and may decide the matters on which it will
hear oral evidence or argument.
(4) The Commission may determine that an arbitration hearing is to be
conducted by:
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Section 44ZG
174 Competition and Consumer Act 2010
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(a) telephone; or
(b) closed circuit television; or
(c) any other means of communication.
44ZG Particular powers of Commission
(1) The Commission may do any of the following things for the
purpose of arbitrating an access dispute:
(a) give a direction in the course of, or for the purposes of, an
arbitration hearing;
(b) hear and determine the arbitration in the absence of a person
who has been summoned or served with a notice to appear;
(c) sit at any place;
(d) adjourn to any time and place;
(e) refer any matter to an expert and accept the expert’s report as
evidence;
(f) generally give all such directions, and do all such things, as
are necessary or expedient for the speedy hearing and
determination of the access dispute.
(2) A person must not do any act or thing in relation to the arbitration
of an access dispute that would be a contempt of court if the
Commission were a court of record.
Penalty: Imprisonment for 6 months.
(3) Subsection (1) has effect subject to any other provision of this Part
and subject to the regulations.
(4) The Commission may give an oral or written order to a person not
to divulge or communicate to anyone else specified information
that was given to the person in the course of an arbitration unless
the person has the Commission’s permission.
(5) A person who contravenes an order under subsection (4) is guilty
of an offence, punishable on conviction by imprisonment for a
term not exceeding 6 months.
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Section 44ZH
Competition and Consumer Act 2010 175
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44ZH Power to take evidence on oath or affirmation
(1) The Commission may take evidence on oath or affirmation and for
that purpose a member of the Commission may administer an oath
or affirmation.
(2) The member of the Commission who is presiding may summon a
person to appear before the Commission to give evidence and to
produce such documents (if any) as are referred to in the summons.
(3) The powers in this section may be exercised only for the purposes
of arbitrating an access dispute.
44ZI Failing to attend as a witness
A person who is served, as prescribed, with a summons to appear
as a witness before the Commission must not, without reasonable
excuse:
(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 Commission.
Penalty: Imprisonment for 6 months.
44ZJ Failing to answer questions etc.
(1) A person appearing as a witness before the Commission must not,
without reasonable excuse:
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that the person is required
to answer by the Commission; or
(c) refuse or fail to produce a document that he or she was
required to produce by a summons under this Part served on
him or her as prescribed.
Penalty: Imprisonment for 6 months.
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Section 44ZK
176 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(2) It is a reasonable excuse for the purposes of subsection (1) for an
individual to refuse or fail to answer a question or produce a
document on the ground that the answer or the production of the
document might tend to incriminate the individual or to expose the
individual to a penalty. This subsection does not limit what is a
reasonable excuse for the purposes of subsection (1).
44ZK Intimidation etc.
A person must not:
(a) threaten, intimidate or coerce another person; or
(b) cause or procure damage, loss or disadvantage to another
person;
because that other person:
(c) proposes to produce, or has produced, documents to the
Commission; or
(d) proposes to appear or has appeared as a witness before the
Commission.
Penalty: Imprisonment for 12 months.
44ZL Party may request Commission to treat material as
confidential
(1) A party to an arbitration hearing may:
(a) inform the Commission that, in the party’s opinion, a
specified part of a document contains confidential
commercial information; and
(b) request the Commission not to give a copy of that part to
another party.
(2) On receiving a request, the Commission must:
(a) inform the other party or parties that the request has been
made and of the general nature of the matters to which the
relevant part of the document relates; and
(b) ask the other party or parties whether there is any objection
to the Commission complying with the request.
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Section 44ZM
Competition and Consumer Act 2010 177
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(3) If there is an objection to the Commission complying with a
request, the party objecting may inform the Commission of its
objection and of the reasons for it.
(4) After considering:
(a) a request; and
(b) any objection; and
(c) any further submissions that any party has made in relation to
the request;
the Commission may decide not to give to the other party or parties
a copy of so much of the document as contains confidential
commercial information that the Commission thinks should not be
so given.
44ZM Sections 18 and 19 do not apply to the Commission in an
arbitration
Sections 18 and 19 do not apply to the Commission, as constituted
for an arbitration.
44ZN Parties to pay costs of an arbitration
The regulations may provide for the Commission to:
(a) charge the parties to an arbitration for its costs in conducting
the arbitration; and
(b) apportion the charge between the parties.
44ZNA Joint arbitration hearings
Joint arbitration hearing
(1) If:
(a) the Commission is arbitrating 2 or more access disputes at a
particular time; and
(b) one or more matters are common to those disputes;
the Chairperson may, by notice in writing, decide that the
Commission must hold a joint arbitration hearing in respect of such
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178 Competition and Consumer Act 2010
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of those disputes (the nominated disputes) as are specified in the
notice.
(2) The Chairperson may do so only if he or she considers this would
be likely to result in the nominated disputes being resolved in a
more efficient and timely manner.
Consulting the parties
(3) Before doing so, the Chairperson must give each party to the
arbitration of each nominated dispute a notice in writing:
(a) specifying what the Chairperson is proposing to do; and
(b) inviting the party to make a written submission on the
proposal to the Chairperson within 14 days after the notice is
given.
(4) The Chairperson must have regard to any submission so made in
deciding whether to do so. He or she may have regard to any other
matter he or she considers relevant.
Directions to presiding member
(5) The Chairperson may, for the purposes of the conduct of the joint
arbitration hearing, give written directions to the member of the
Commission presiding at the hearing.
Constitution and procedure of Commission
(6) Sections 44Z to 44ZN apply to the joint arbitration hearing in a
corresponding way to the way in which they apply to a particular
arbitration.
Note: For example, the Chairperson would be required to nominate in
writing 1 or more members of the Commission to constitute the
Commission for the purposes of the joint arbitration hearing.
Record of proceedings etc.
(7) The Commission as constituted for the purposes of the joint
arbitration hearing may have regard to any record of the
proceedings of the arbitration of any nominated dispute.
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Section 44ZNB
Competition and Consumer Act 2010 179
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(8) The Commission as constituted for the purposes of the arbitration
of each nominated dispute may, for the purposes of making a
determination in relation to that arbitration:
(a) have regard to any record of the proceedings of the joint
arbitration hearing; and
(b) adopt any findings of fact made by the Commission as
constituted for the purposes of the joint arbitration hearing.
Legislation Act 2003
(9) The following are not legislative instruments:
(a) a notice made under subsection (1);
(b) a direction given under subsection (5).
Subdivision DA—Arbitration reports
44ZNB Arbitration reports
(1) The Commission must prepare a written report about a final
determination it makes. It must publish, by electronic or other
means, the report.
(2) The report may include the whole or a part of the determination
and the reasons for the determination or the part of the
determination.
Report must include certain matters
(3) The report must set out the following matters:
(a) the principles the Commission applied in making the
determination;
(b) the methodologies the Commission applied in making the
determination and the reasons for the choice of the asset
valuation methodology;
(c) how the Commission took into account the matters
mentioned in subsection 44X(1) in making the determination;
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180 Competition and Consumer Act 2010
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(d) any matter the Commission took into account under
subsection 44X(2) in making the determination and the
reasons for doing so;
(e) any information provided by the parties to the arbitration that
was relevant to those principles or methodologies;
Note: Confidentiality issues are dealt with in subsections (5) to (7).
(f) any implications the Commission considers the determination
has for persons seeking access to the service or to similar
services in the future;
(g) if applicable—the reasons for the determination dealing with
matters that were already agreed between the parties to the
arbitration at the time the access dispute was notified;
(h) if applicable—the reasons for the access dispute being the
subject of a joint arbitration hearing under section 44ZNA
despite the objection of a party to the arbitration.
Report may include other matters
(4) The report may include any other matter that the Commission
considers relevant.
Confidentiality
(5) The Commission must not include in the report any information the
Commission decided not to give to a party to the arbitration under
section 44ZL.
(6) Before publishing the report, the Commission must give each party
to the arbitration a notice in writing:
(a) specifying what the Commission is proposing to publish; and
(b) inviting the party to make a written submission to the
Commission within 14 days after the notice is given
identifying any information the party considers should not be
published because of its confidential commercial nature.
(7) The Commission must have regard to any submission so made in
deciding what to publish. It may have regard to any other matter it
considers relevant.
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Section 44ZO
Competition and Consumer Act 2010 181
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Legislation Act 2003
(8) A report prepared under subsection (1) is not a legislative
instrument.
Subdivision E—Effect of determinations
44ZO Operation of final determinations
(1) If none of the parties to the arbitration applies to the Tribunal under
section 44ZP for a review of the Commission’s final determination,
the determination has effect 21 days after the determination is
made.
(2) If a party to the arbitration applies to the Tribunal under
section 44ZP for a review of the Commission’s final determination,
the determination is of no effect until the Tribunal makes its
determination on the review.
Backdating
(3) Any or all of the provisions of a final determination may be
expressed to apply from a specified day that is earlier than the day
on which it takes effect under subsection (1) or (2).
Example: The Commission makes a final determination on 1 August. It takes
effect under subsection (1) on 22 August, but it is expressed to apply
from 1 July.
(4) The specified day must not be earlier than the following day:
(a) if the third party and provider commenced negotiations on
access to the service after the service became a declared
service—the day on which the negotiations commenced;
(b) if the third party and provider commenced negotiations on
access to the service before the service became a declared
service—the day on which the declaration began to operate.
However, the specified day cannot be a day on which the third
party did not have access to the service.
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Section 44ZOA
182 Competition and Consumer Act 2010
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Operation of interim determination
(5) If a provision of a final determination is expressed to apply from a
day when an interim determination was in effect, the provision of
the final determination prevails over the interim determination to
the extent set out in the final determination.
Interest
(6) If:
(a) a provision of a final determination is covered by
subsection (3); and
(b) the provision requires a party to the determination (the first
party) to pay money to another party;
the determination may require the first party to pay interest to the
other party, at the rate specified in the determination, on the whole
or a part of the money, for the whole or a part of the period:
(c) beginning on the day specified under subsection (3); and
(d) ending on the day on which the determination takes effect
under subsection (1) or (2).
Guidelines
(7) In exercising the power conferred by subsection (3) or (6), the
Commission must have regard to any guidelines in force under
subsection (8). It may have regard to any other matter it considers
relevant.
(8) The Commission must, by legislative instrument, determine
guidelines for the purposes of subsection (7).
(9) The Commission must take all reasonable steps to ensure that the
first set of guidelines under subsection (8) is made within 6 months
after the commencement of this subsection.
44ZOA Effect and duration of interim determinations
(1) An interim determination takes effect on the day specified in the
determination.
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Section 44ZP
Competition and Consumer Act 2010 183
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(2) Unless sooner revoked, an interim determination continues in
effect until the earliest of the following:
(a) the notification of the access dispute is withdrawn under
section 44T;
(b) a final determination relating to the access dispute takes
effect;
Note: A backdated final determination may prevail over an interim determination: see subsection 44ZO(5).
(c) an interim determination made by the Tribunal (while
reviewing a final determination relating to the access dispute)
takes effect.
Subdivision F—Review of final determinations
44ZP Review by Tribunal
(1) A party to a final determination may apply in writing to the
Tribunal for a review of the determination.
(2) The application must be made within 21 days after the Commission
made the final determination.
(3) A review by the Tribunal is a re-arbitration of the access dispute
based on the information, reports and things referred to in
section 44ZZOAA.
Note: There are time limits that apply to the Tribunal’s decision on the
review: see section 44ZZOA.
(4) For the purposes of the review, the Tribunal has the same powers
as the Commission.
(5) The member of the Tribunal presiding at the review may require
the Commission to give assistance for the purposes of the review.
(5A) Without limiting subsection (5), the member may, by written
notice, require the Commission to give information, and to make
reports, of a kind specified in the notice, within the period
specified in the notice, for the purposes of the review.
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Section 44ZQ
184 Competition and Consumer Act 2010
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(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) the other party or parties to the final determination; and
(iii) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
(6) The Tribunal may either affirm or vary the Commission’s
determination.
(7) The determination, as affirmed or varied by the Tribunal, is to be
taken to be a determination of the Commission for all purposes of
this Part (except this section).
(8) The decision of the Tribunal takes effect from when it is made.
44ZQ Provisions that do not apply in relation to a Tribunal review
Sections 37, 39 to 43 (inclusive) and 103 to 110 (inclusive) do not
apply in relation to a review by the Tribunal of a final
determination made by the Commission.
44ZR Appeals to Federal Court from determinations of the
Tribunal
(1) A party to an arbitration may appeal to the Federal Court, on a
question of law, from the decision of the Tribunal under
section 44ZP.
(2) An appeal by a person under subsection (1) must be instituted:
(a) not later than the 28th day after the day on which the decision
of the Tribunal is made or within such further period as the
Federal Court (whether before or after the end of that day)
allows; and
(b) in accordance with the Rules of Court made under the
Federal Court of Australia Act 1976.
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Section 44ZS
Competition and Consumer Act 2010 185
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(3) The Federal Court must hear and determine the appeal and may
make any order that it thinks appropriate.
(4) The orders that may be made by the Federal Court on appeal
include (but are not limited to):
(a) an order affirming or setting aside the decision of the
Tribunal; and
(b) an order remitting the matter to be decided again by the
Tribunal in accordance with the directions of the Federal
Court.
44ZS Operation and implementation of a determination that is
subject to appeal
(1) Subject to this section, the fact that an appeal is instituted in the
Federal Court from a decision of the Tribunal does not affect the
operation of the decision or prevent action being taken to
implement the decision.
(2) If an appeal is instituted in the Federal Court from a decision of the
Tribunal, the Federal Court or a judge of the Federal Court may
make any orders staying or otherwise affecting the operation or
implementation of the decision of the Tribunal that the Federal
Court or judge thinks appropriate to secure the effectiveness of the
hearing and determination of the appeal.
(3) If an order is in force under subsection (2) (including an order
previously varied under this subsection), the Federal Court or a
judge of the Federal Court may make an order varying or revoking
the first-mentioned order.
(4) An order in force under subsection (2) (including an order
previously varied under subsection (3)):
(a) is subject to any conditions that are specified in the order;
and
(b) has effect until:
(i) the end of any period for the operation of the order that
is specified in the order; or
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186 Competition and Consumer Act 2010
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(ii) the giving of a decision on the appeal;
whichever is earlier.
44ZT Transmission of documents
If an appeal is instituted in the Federal Court:
(a) the Tribunal must send to the Federal Court all documents
that were before the Tribunal in connection with the matter to
which the appeal relates; and
(b) at the conclusion of the proceedings before the Federal Court
in relation to the appeal, the Federal Court must return the
documents to the Tribunal.
Subdivision G—Variation and revocation of determinations
44ZU Variation of final determinations
(1) The Commission may vary a final determination on the application
of any party to the determination. However, it cannot vary the final
determination if any other party objects.
Note: If the parties cannot agree on a variation, a new access dispute can be
notified under section 44S.
(2) Sections 44W and 44X apply to a variation under this section as if:
(a) an access dispute arising out of the final determination had
been notified when the application was made to the
Commission for the variation of the determination; and
(b) the variation were the making of a final determination in the
terms of the varied determination.
44ZUA Variation and revocation of interim determinations
(1) The Commission may, by writing, vary or revoke an interim
determination.
(2) The Commission must, by writing, revoke an interim determination
if requested to do so by the parties to the determination.
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Section 44ZV
Competition and Consumer Act 2010 187
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Division 4—Registered contracts for access to declared
services
44ZV Constitutional limits on operation of this Division
This Division does not apply to a contract unless:
(a) the contract provides for access to a declared service; and
(b) the contract was made after the service was declared; and
(c) the parties to the contract are the provider of the service and a
third party; and
(d) at least one of the following conditions is met:
(i) the provider is a corporation (or a partnership or joint
venture consisting wholly of corporations);
(ii) the third party is a corporation;
(iii) the access is (or would be) in the course of, or for the
purposes of, constitutional trade or commerce.
44ZW Registration of contract
(1) On application by all the parties to a contract, the Commission
must:
(a) register the contract by entering the following details on a
public register:
(i) the names of the parties to the contract;
(ii) the service to which the contract relates;
(iii) the date on which the contract was made; or
(b) decide not to register the contract.
(2) In deciding whether to register a contract, the Commission must
take into account:
(aa) the objects of this Part; and
(a) the public interest, including the public interest in having
competition in markets (whether or not in Australia); and
(b) the interests of all persons who have rights to use the service
to which the contract relates.
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Section 44ZX
188 Competition and Consumer Act 2010
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(2A) The Commission must not register a contract if it deals with a
matter or matters relating to access to the service that are dealt with
in an access undertaking that is in operation.
(3) The Commission must publish a decision not to register a contract.
(4) If the Commission publishes a decision not to register a contract, it
must give the parties to the contract reasons for the decision when
it publishes the decision.
44ZX Review of decision not to register contract
(1) If the Commission decides not to register a contract, a party to the
contract may apply in writing to the Tribunal for review of the
decision.
(2) An application for review must be made within 21 days after
publication of the Commission’s decision.
(3) The review by the Tribunal is a re-consideration of the matter
based on the information, reports and things referred to in
section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have
regard (see section 44ZZOAA) and time limits that apply to the
Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the Tribunal has the same powers
as the Commission.
(5) The member of the Tribunal presiding at the review may require
the Commission to give assistance for the purposes of the review.
(5A) Without limiting subsection (5), the member may, by written
notice, require the Commission to give information, and to make
reports, of a kind specified in the notice, within the period
specified in the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
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Section 44ZY
Competition and Consumer Act 2010 189
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(ii) the other party or parties to the contract; and
(iii) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice; and
(6) The Tribunal may either:
(a) affirm the Commission’s decision; or
(b) register the contract.
44ZY Effect of registration of contract
The parties to a contract that has been registered:
(a) may enforce the contract under Division 7 as if the contract
were a determination of the Commission under section 44V
and they were parties to the determination; and
(b) cannot enforce the contract by any other means.
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Division 5 Hindering access to declared services
Section 44ZZ
190 Competition and Consumer Act 2010
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Division 5—Hindering access to declared services
44ZZ Prohibition on hindering access to declared services
(1) The provider or a user of a service to which a third party has access
under a determination, or a body corporate related to the provider
or a user of the service, must not engage in conduct for the purpose
of preventing or hindering the third party’s access to the service
under the determination.
(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) In this section, a user of a service includes a person who has a right
to use the service.
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Section 44ZZA
Competition and Consumer Act 2010 191
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Division 6—Access undertakings and access codes for
services
Subdivision A—Giving of access undertakings and access codes
44ZZA Access undertakings by providers
(1) A person who is, or expects to be, the provider of a service may
give a written undertaking to the Commission in connection with
the provision of access to the service.
Note: The following are examples of the kinds of things that might be dealt
with in the undertaking:
(a) terms and conditions of access to the service;
(b) procedures for determining terms and conditions of access to the service;
(c) an obligation on the provider not to hinder access to the service;
(d) an obligation on the provider to implement a particular business structure;
(e) an obligation on the provider to provide information to the Commission or to another person;
(f) an obligation on the provider to comply with decisions of the Commission or another person in relation to matters specified in the undertaking;
(g) an obligation on the provider to seek a variation of the undertaking in specified circumstances.
(2) The undertaking must specify the expiry date of the undertaking.
(3) The Commission may accept the undertaking, if it thinks it
appropriate to do so having regard to the following matters:
(aa) the objects of this Part;
(ab) the pricing principles specified in section 44ZZCA;
(a) the legitimate business interests of the provider;
(b) the public interest, including the public interest in having
competition in markets (whether or not in Australia);
(c) the interests of persons who might want access to the service;
(da) whether the undertaking is in accordance with an access code
that applies to the service;
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(e) any other matters that the Commission thinks are relevant.
Note 1: There are grounds on which the Commission may reject the
undertaking if it contains, or should contain, fixed principles: see
section 44ZZAAB.
Note 2: The Commission may defer consideration of the undertaking if it is
also arbitrating an access dispute: see section 44ZZCB.
(3AA) The Commission must not accept the undertaking if a decision of
the Commonwealth Minister is in force under section 44N that a
regime established by a State or Territory for access to the service
is an effective access regime.
(3AB) The Commission may reject the undertaking if it incorporates one
or more amendments (see subsection 44ZZAAA(5)) and the
Commission is satisfied that the amendment or amendments are of
a kind, are made at a time, or are made in a manner that:
(a) unduly prejudices anyone the Commission considers has a
material interest in the undertaking; or
(b) unduly delays the process for considering the undertaking.
(3A) The Commission must not accept the undertaking unless:
(a) the provider, or proposed provider, is a corporation (or a
partnership or joint venture consisting wholly of
corporations); or
(b) the undertaking provides for access only to third parties that
are corporations; or
(c) the undertaking provides for access that is (or would be) in
the course of, or for the purposes of, constitutional trade or
commerce.
(6) If the undertaking provides for disputes about the undertaking to be
resolved by the Commission, then the Commission may resolve the
disputes in accordance with the undertaking.
(6A) 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. If the Commission decides to do so, it must do so in
accordance with the undertaking.
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Section 44ZZAAA
Competition and Consumer Act 2010 193
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(6B) The Commission may accept the undertaking even if the service is
the subject of a decision by the designated Minister under
section 44LG that the service is ineligible to be a declared service.
(7) The provider may:
(a) withdraw the application given under subsection (1) at any
time before the Commission makes a decision on whether to
accept the application; and
(b) withdraw or vary the undertaking at any time after it has been
accepted by the Commission, but only with the consent of the
Commission.
The Commission may consent to a variation of the undertaking if it
thinks it appropriate to do so having regard to the matters in
subsection (3).
Note 1: There are time limits that apply to a decision of the Commission under
this section: see section 44ZZBC.
Note 2: The Commission may request information and invite public
submissions in relation to its decision: see sections 44ZZBCA and
44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
44ZZAAA Proposed amendments to access undertakings
Commission may give an amendment notice in relation to an
undertaking
(1) Before deciding whether to accept an undertaking given to it under
subsection 44ZZA(1) by a person who is, or expects to be, the
provider of a service, the Commission may give the person an
amendment notice in relation to the undertaking.
(2) An amendment notice is a notice in writing that specifies:
(a) the nature of the amendment or amendments (the proposed
amendment or amendments) that the Commission proposes
be made to the undertaking; and
(b) the Commission’s reasons for the proposed amendment or
amendments; and
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(c) the period (the response period) within which the person
may respond to the notice, which must be at least 14 days
after the day the notice was given to the person.
(3) The Commission may publish, by electronic or other means, the
amendment notice.
(4) The Commission may give more than one amendment notice in
relation to an undertaking.
Person may give a revised undertaking in response to notice
(5) If a person receives an amendment notice, the person may, within
the response period, respond to the notice by giving a revised
undertaking to the Commission that incorporates one or more
amendments.
(6) If the revised undertaking incorporates one or more amendments
that the Commission considers are not of the nature proposed in the
amendment notice and do not address the reasons for the proposed
amendments given in the amendment notice, the Commission must
not accept the revised undertaking and must return it to the person
within 21 days of receiving it.
(7) If the person gives a revised undertaking under subsection (5) and
the revised undertaking is not returned to the person under
subsection (6), the revised undertaking is taken, after the time it is
given to the Commission, to be the undertaking given under
section 44ZZA for the purposes of this Part.
(8) The person is taken to have not agreed to the proposed amendment
or amendments if the person does not respond within the response
period.
Commission not required to accept revised undertaking
(9) The Commission is not required to accept the revised undertaking
under section 44ZZA.
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Section 44ZZAAB
Competition and Consumer Act 2010 195
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No duty to propose amendments
(10) In considering whether to accept an undertaking, the Commission
does not have a duty to consider whether to propose one or more
amendments to the undertaking.
Notice of proposed amendment is not a legislative instrument
(11) A notice given under subsection (1) is not a legislative instrument.
44ZZAAB Access undertakings containing fixed principles
Access undertakings may contain fixed principles
(1) An access undertaking given to the Commission under
subsection 44ZZA(1) may include one or more terms that, under
the undertaking, are fixed for a specified period.
(2) Each of the terms is a fixed principle and the specified period is a
fixed period. Different periods may be specified for different fixed
principles.
(3) The fixed period must:
(a) start:
(i) when the access undertaking comes into operation; or
(ii) at a later time ascertained in accordance with the
undertaking; and
(b) extend beyond the expiry date of the undertaking.
Consideration of fixed principles
(4) The Commission may reject the undertaking if it:
(a) includes a term that is not a fixed principle and that the
Commission considers should be a fixed principle; or
(b) includes a fixed principle that the Commission considers
should not be fixed; or
(c) includes a fixed principle that the Commission considers
should be fixed for a period that is different from the period
specified in the undertaking.
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Section 44ZZAAB
196 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
However, the Commission must not reject the undertaking solely
on the basis that it is consistent with a fixed principle that is
included in the undertaking in compliance with subsection (6).
Fixed principles must be carried over to later undertakings
(5) Subsection (6) applies if:
(a) the Commission accepts an undertaking (the earlier
undertaking) in connection with the provision of access to a
service that includes a fixed principle; and
(b) an undertaking (the later undertaking) is given to the
Commission in connection with the provision of access to the
service within the fixed period for the fixed principle; and
(c) at the time the later undertaking is given:
(i) the fixed principle has not been revoked under
subsection (7); and
(ii) the earlier undertaking has not been varied under
subsection 44ZZA(7) so that the fixed principle is no
longer a term of the earlier undertaking.
(6) The Commission must not accept the later undertaking under
section 44ZZA unless the undertaking includes a term that is the
same as the fixed principle.
Variation or revocation of fixed principles when no undertaking is
in operation
(7) If there is no access undertaking in operation in connection with
the provision of access to a service, the provider may revoke or
vary a fixed principle that relates to the service (including the fixed
period for the principle), but only with the consent of the
Commission. The Commission may consent to the revocation or
variation of the fixed principle if it thinks it appropriate to do so
having regard to the matters in subsection 44ZZA(3).
Note: Subsection 44ZZA(7) contains provision for fixed principles to be
varied or revoked in the situation where there is an access undertaking
in operation. This may include a variation of the fixed period for the
fixed principle.
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Section 44ZZAA
Competition and Consumer Act 2010 197
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Alteration of fixed principles
(8) If an undertaking that is accepted by the Commission contains one
or more fixed principles, the undertaking is accepted on the basis
that:
(a) the principle may be varied or revoked under subsection (7)
or 44ZZA(7); and
(b) the principle may be cancelled, revoked, terminated or varied
by or under later legislation; and
(c) no compensation is payable if the principle is cancelled,
revoked, terminated or varied as mentioned in any of the
above paragraphs.
(9) Subsection (8) does not, by implication, affect the interpretation of
any other provision of this Act.
44ZZAA Access codes prepared by industry bodies
(1) An industry body may give a written code to the Commission
setting out rules for access to a service.
(2) The code must specify the expiry date of the code.
(3) The Commission may accept the code, if it thinks it appropriate to
do so having regard to the following matters:
(aa) the objects of this Part;
(ab) the pricing principles specified in section 44ZZCA;
(a) the legitimate business interests of providers who might give
undertakings in accordance with the code;
(b) the public interest, including the public interest in having
competition in markets (whether or not in Australia);
(c) the interests of persons who might want access to the service
covered by the code;
(e) any matters specified in regulations made for the purposes of
this subsection;
(f) any other matters that the Commission thinks are relevant.
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Section 44ZZAA
198 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(3A) The Commission must not accept the code if a decision of the
Commonwealth Minister is in force under section 44N that a
regime established by a State or Territory for access to the service
is an effective access regime.
(6) The industry body may:
(a) withdraw the code given under subsection (1) at any time
before the Commission makes a decision whether to accept
the code; and
(b) withdraw or vary the code at any time after it has been
accepted by the Commission, but only with the consent of the
Commission.
The Commission may consent to a variation of the code if it thinks
it appropriate to do so having regard to the matters in
subsection (3).
Note: The Commission may rely on industry body consultations before
giving its consent: see section 44ZZAB.
(7) If the industry body that gave the code to the Commission has
ceased to exist, a withdrawal or variation under subsection (6) may
be made by a body or association prescribed by the regulations as a
replacement for the original industry body.
(8) In this section:
code means a set of rules (which may be in general terms or
detailed terms).
industry body means a body or association (including a body or
association established by a law of a State or Territory) prescribed
by the regulations for the purposes of this section.
Note 1: There are time limits that apply to a decision of the Commission under
this section: see section 44ZZBC.
Note 2: The Commission may request information and invite public
submissions in relation to its decision: see sections 44ZZBCA and
44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
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Section 44ZZAB
Competition and Consumer Act 2010 199
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
44ZZAB Commission may rely on industry body consultations
(1) The Commission may accept a code if the industry body has done
the following before giving the code to the Commission under
subsection 44ZZAA(1):
(a) published the code or a draft of the code and invited people
to make submissions to the industry body on the code or
draft;
(b) specified the effect of this subsection and subsection (2)
when it published the code or draft;
(c) considered any submissions that were received within the
time limit specified by the industry body when it published
the code or draft.
(2) In deciding whether to accept the code, the Commission may
consider any submission referred to in paragraph (1)(c).
(3) Before consenting to a variation or withdrawal of a code under
subsection 44ZZAA(6), the Commission may rely on:
(a) publication of the variation or notice of the withdrawal by the
industry body, including specification of the effect of this
subsection and subsection (4); and
(b) consideration by the industry body of any submissions that
were received within the time limit specified by the industry
body when it published the variation or notice.
(4) In deciding whether to consent to the variation or withdrawal, the
Commission may consider any submission referred to in
paragraph (3)(b).
(5) In this section:
code has the same meaning as it has in section 44ZZAA.
industry body has the same meaning as it has in section 44ZZAA.
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Section 44ZZBA
200 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Subdivision B—Effect of access undertakings and access codes
44ZZBA When access undertakings and access codes come into
operation
Acceptance of access undertakings or access codes
(1) If the Commission accepts an access undertaking or an access
code, it comes into operation at:
(a) if, within 21 days after the Commission publishes its
decision, no person has applied to the Tribunal for review of
the decision—the end of that period; or
(b) if a person applies to the Tribunal within that period for
review of the decision and the Tribunal affirms the
decision—the time of the Tribunal’s decision.
(2) If the Tribunal decides under paragraph 44ZZBF(7)(e) to accept an
access undertaking or access code, it comes into operation at the
time of the Tribunal’s decision.
(3) An access undertaking or access code continues in operation until
its expiry date, unless it is earlier withdrawn.
Note: The period for which an access undertaking or access code is in
operation may be extended: see section 44ZZBB.
Withdrawal or variation of access undertakings or access codes
(4) If the Commission consents to the withdrawal or variation of an
access undertaking or an access code, the withdrawal or variation
comes into operation at:
(a) if, within 21 days after the Commission publishes its
decision, no person has applied to the Tribunal for review of
the decision—the end of that period; or
(b) if a person applies to the Tribunal within that period for
review of the decision and the Tribunal affirms the
decision—the time of the Tribunal’s decision.
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Section 44ZZBB
Competition and Consumer Act 2010 201
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(5) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent
to the withdrawal or variation of an access undertaking or access
code, the withdrawal or variation comes into operation at the time
of the Tribunal’s decision.
Revocation or variation of fixed principles in access undertakings
(6) If the Commission consents to the revocation or variation of a
fixed principle that is included as a term of an access undertaking
under subsection 44ZZAAB(7), the revocation or variation comes
into operation at:
(a) if, within 21 days after the Commission publishes its
decision, no person has applied to the Tribunal for review of
the decision—the end of that period; or
(b) if a person applies to the Tribunal within that period for
review of the decision and the Tribunal affirms the
decision—the time of the Tribunal’s decision.
(7) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent
to the revocation or variation of a fixed principle that is included as
term of an access undertaking, the revocation or variation comes
into operation at the time of the Tribunal’s decision.
Subdivision C—Extensions of access undertakings and access
codes
44ZZBB Extensions of access undertakings and access codes
Access undertakings
(1) If an access undertaking is in operation under section 44ZZBA
(including as a result of an extension under this section), the
provider of the service may apply in writing to the Commission for
an extension of the period for which it is in operation.
Note: The Commission may extend the period for which the undertaking is
in operation more than once: see subsection (8). This means there may
be multiple applications under this subsection.
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Section 44ZZBB
202 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(2) The provider of the service must specify in the application a
proposed extension period.
(3) The Commission may, by notice in writing, extend the period for
which the undertaking is in operation if it thinks it appropriate to
do so having regard to the matters mentioned in
subsection 44ZZA(3). The notice must specify the extension
period.
Access codes
(4) If an access code is in operation under section 44ZZBA (including
as a result of an extension under this section), the industry body
may apply in writing to the Commission for an extension of the
period for which it is in operation.
Note: The Commission may extend the period for which the code is in
operation more than once: see subsection (8). This means there may
be multiple applications under this subsection.
(5) The industry body must specify in the application a proposed
extension period.
(6) The Commission may, by notice in writing, extend the period for
which the code is in operation if it thinks it appropriate to do so
having regard to the matters mentioned in subsection 44ZZAA(3).
The notice must specify the extension period.
(7) If the industry body that gave the code to the Commission has
ceased to exist, an application under subsection (4) may be made
by a body or association referred to in subsection 44ZZAA(7).
Multiple extensions
(8) The Commission may extend the period for which an access
undertaking or an access code is in operation more than once.
Note 1: There are time limits that apply to a decision of the Commission under
this section: see section 44ZZBC.
Note 2: The Commission may request information and invite public
submissions in relation to its decision: see sections 44ZZBCA and
44ZZBD.
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Section 44ZZBC
Competition and Consumer Act 2010 203
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Note 3: The Commission must publish its decision: see section 44ZZBE.
Subdivision D—Procedural provisions
44ZZBC Time limit for Commission decisions
Commission to make decision on application within 180 days
(1) The Commission must make a decision on an access undertaking
application or an access code application within the period of 180
days (the expected period) starting at the start of the day the
application is received.
Stopping the clock
(2) In working out the expected period in relation to an access
undertaking application or an access code application, in a situation
referred to in column 1 of an item of the following table, disregard
any day in a period:
(a) starting on the day referred to in column 2 of the item; and
(b) ending on the day referred to in column 3 of the item.
Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
1 An agreement is made in
relation to the
application under
subsection (4)
The first day of
the period
specified in the
agreement
The last day of the period
specified in the agreement
2 A notice is given under
subsection 44ZZBCA(1)
requesting information in
relation to the
application
The day on
which the notice
is given
The last day of the period
specified in the notice for the
giving of the information
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Section 44ZZBC
204 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
3 A notice is published
under
subsection 44ZZBD(1)
inviting public
submissions in relation
to the application
The day on
which the notice
is published
The day specified in the
notice as the day by which
submissions may be made
4 A decision is published
under
subsection 44ZZCB(4)
deferring consideration
of whether to accept the
access undertaking, in
whole or in part, while
the Commission
arbitrates an access
dispute
The day on
which the
decision is
published
The day on which the final
determination in relation to
the arbitration of the access
dispute is made
(3) Despite subsection (2), do not disregard any day more than once.
Stopping the clock by agreement
(4) The Commission and:
(a) for an access undertaking application—the provider of the
service; and
(b) for an access code application—the industry body or its
replacement;
may agree in writing that a specified period is to be disregarded in
working out the expected period.
(5) The Commission must publish, by electronic or other means, the
agreement.
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Section 44ZZBCA
Competition and Consumer Act 2010 205
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Deemed final determination
(6) If the Commission does not publish under section 44ZZBE an
access undertaking decision or an access code decision within the
expected period, it is taken, immediately after the end of the
expected period, to have:
(a) made a decision to not accept the application; and
(b) published its decision under section 44ZZBE and its reasons
for that decision.
44ZZBCA Commission may request information
(1) The Commission may give a person a written notice requesting the
person give to the Commission, within a specified period,
information of a kind specified in the notice that the Commission
considers may be relevant to making a decision on an access
undertaking application or an access code application.
(2) The Commission must:
(a) give a copy of the notice to:
(i) in the case of an access undertaking application—the
provider of the service (unless the provider is the
person); and
(ii) in the case of an access code application—the industry
body that gave the application to the Commission
(unless the body is the person); and
(b) publish, by electronic or other means, the notice.
(3) In making a determination, the Commission:
(a) must have regard to any information given in compliance
with a notice under subsection (1) within the specified
period; and
(b) may disregard any information of the kind specified in the
notice that is given after the specified period has ended.
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Section 44ZZBD
206 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
44ZZBD Commission may invite public submissions
Invitation
(1) The Commission may publish, by electronic or other means, a
notice inviting public submissions on an access undertaking
application or an access code application if it considers that it is
appropriate and practicable to do so.
(2) The notice must specify how submissions may be made and the
day by which submissions may be made (which must be at least 14
days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in making its decision on the application,
the Commission:
(a) must have regard to any submission made on or before the
day specified in the notice; and
(b) may disregard any submission made after the day specified in
the notice.
Commission may make submissions publicly available
(4) The Commission may make any written submission, or a written
record (which may be a summary) of any oral submission, publicly
available.
Confidentiality
(5) A person may, at the time of making a submission, request that the
Commission:
(a) not make the whole or a part of the submission available
under subsection (4); and
(b) not publish or make available the whole or a part of the
submission under section 44ZZBE;
because of the confidential commercial information contained in
the submission.
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Section 44ZZBE
Competition and Consumer Act 2010 207
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(6) If the Commission refuses such a request:
(a) for a written submission—the Commission must, if the
person who made it so requires, return the whole or the part
of it to the person; and
(b) for an oral submission—the person who made it may inform
the Commission that the person withdraws the whole or the
part of it; and
(c) if the Commission returns the whole or the part of the
submission, or the person withdraws the whole or the part of
the submission, the Commission must not:
(i) make the whole or the part of the submission available
under subsection (4); and
(ii) publish or make available the whole or the part of the
submission under section 44ZZBE; and
(iii) have regard to the whole or the part of the submission in
making its decision on the application.
44ZZBE Commission must publish its decisions
(1) The Commission must publish, by electronic or other means, an
access undertaking decision or an access code decision and its
reasons for the decision.
(2) The Commission must give a copy of the publication to:
(a) for an access undertaking decision—the provider of the
service; or
(b) for an access code decision—the industry body or its
replacement.
Consultation
(3) Before publishing under subsection (1), the Commission may give
any one or more of the following persons:
(a) for an access undertaking decision—the provider of the
service;
(b) for an access code decision—the industry body or its
replacement;
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Section 44ZZBF
208 Competition and Consumer Act 2010
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(c) in any case—any other person the Commission considers
appropriate;
a notice in writing:
(d) specifying what the Commission is proposing to publish; and
(e) inviting the person to make a written submission to the
Commission within 14 days after the notice is given
identifying any information the person considers should not
be published because of its confidential commercial nature.
(4) The Commission must have regard to any submission so made in
deciding what to publish. It may have regard to any other matter it
considers relevant.
Subdivision E—Review of decisions
44ZZBF Review of decisions
Application
(1) A person whose interests are affected by an access undertaking
decision or an access code decision may apply in writing to the
Tribunal for review of the decision.
(2) The person must apply for review within 21 days after the
Commission publishes its decision.
Review
(3) The review by the Tribunal is a reconsideration of the matter based
on the information, reports and things referred to in
section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have
regard (see section 44ZZOAA) and time limits that apply to the
Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the Tribunal has the same powers
as the Commission (other than the power to propose amendments
under section 44ZZAAA).
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Section 44ZZBF
Competition and Consumer Act 2010 209
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(5) The member of the Tribunal presiding at the review may require
the Commission to give assistance for the purposes of the review.
(5A) Without limiting subsection (5), the member may, by written
notice, require the Commission to give information, and to make
reports, of a kind specified in the notice, within the period
specified in the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) the provider of the service; and
(iii) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
Tribunal’s decision
(6) If the Commission:
(a) accepted an access undertaking or access code; or
(b) consented to the withdrawal or variation of an access
undertaking or access code; or
(ba) consented to the revocation or variation of a fixed principle
under subsection 44ZZAAB(7); or
(c) extended the period for which an access undertaking or
access code is in operation;
the Tribunal must, by writing, affirm or set aside the Commission’s
decision.
(7) If the Commission:
(a) rejected an access undertaking or access code; or
(b) refused to consent to the withdrawal or variation of an access
undertaking or access code; or
(ba) refused to consent to the revocation or variation of a fixed
principle under subsection 44ZZAAB(7); or
(c) refused to extend the period for which an access undertaking
or access code is in operation;
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Section 44ZZC
210 Competition and Consumer Act 2010
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the Tribunal must, by writing:
(d) affirm the Commission’s decision; or
(e) set aside the Commission’s decision and accept the
undertaking or code, consent to the withdrawal or variation
of the undertaking or code, consent to the revocation or
variation of the fixed principle or extend the period for which
the undertaking or code is in operation.
Subdivision F—Register of access undertakings and access
codes
44ZZC Register of access undertakings and access codes
(1) The Commission must maintain a public register that includes all
access undertakings and access codes that have been accepted by
the Commission, including those that are no longer in operation.
(1A) For the purposes of subsection (1), if an access undertaking
includes one or more fixed principles, the register must also
include details of the fixed principles, including their fixed periods.
(2) The register must include all variations of access undertakings and
access codes.
(3) The register must also include details of all extensions of the
period for which an access undertaking or an access code is in
operation.
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Pricing principles for access disputes and access undertakings or codes Division 6A
Section 44ZZCA
Competition and Consumer Act 2010 211
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 6A—Pricing principles for access disputes and
access undertakings or codes
44ZZCA Pricing principles for access disputes and access
undertakings or codes
The pricing principles relating to the price of access to a service
are:
(a) that regulated access prices should:
(i) be set so as to generate expected revenue for a regulated
service or services that is at least sufficient to meet the
efficient costs of providing access to the regulated
service or services; and
(ii) include a return on investment commensurate with the
regulatory and commercial risks involved; and
(b) that the access price structures should:
(i) allow multi-part pricing and price discrimination when
it aids efficiency; and
(ii) not allow a vertically integrated access provider to set
terms and conditions that discriminate in favour of its
downstream operations, except to the extent that the
cost of providing access to other operators is higher; and
(c) that access pricing regimes should provide incentives to
reduce costs or otherwise improve productivity.
Note: The Commission must have regard to the principles in making a final
determination under Division 3 and in deciding whether or not to
accept an access undertaking or access code under Division 6.
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Division 6B Overlap among determinations, registered contracts, access undertakings
and Tribunal review
Section 44ZZCB
212 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 6B—Overlap among determinations, registered
contracts, access undertakings and Tribunal
review
44ZZCB Deferring access disputes or access undertakings
(1) If, at a particular time, the Commission is:
(a) arbitrating an access dispute under Division 3 relating to one
or more matters of access to a declared service; and
(b) considering whether to accept an access undertaking relating
to the service and to one or more of those matters;
then the Commission may, by notice in writing, decide to:
(c) defer arbitrating the access dispute, in whole or in part, while
it considers the access undertaking; or
(d) defer considering whether to accept the access undertaking,
in whole or in part, while it arbitrates the access dispute.
Deferral of arbitration of access dispute
(2) If:
(a) the Commission defers arbitrating the access dispute; and
(b) the Commission then accepts the access undertaking and it
comes into operation;
then the Commission must terminate the arbitration when the
undertaking comes into operation, but only to the extent of the
matters relating to access to the service that are dealt with in the
undertaking.
Note: The third party’s access to the service is determined under the access
undertaking to the extent of the matters it deals with. If the access
dispute deals with other matters, the third party’s access to the service
in relation to those other matters is determined under any
determination the Commission makes.
Deferral of consideration of access undertaking
(3) If:
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Section 44ZZCB
Competition and Consumer Act 2010 213
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(a) the Commission defers considering whether to accept the
access undertaking; and
(b) the Commission then makes a final determination in relation
to the arbitration of the access dispute;
then the Commission must resume considering whether to accept
the access undertaking.
Publication
(4) The Commission must publish, by electronic or other means, any
decision it makes under subsection (1) and its reasons for the
decision. The Commission must give a copy of the decision
(including the reasons for the decision) to each party to the
arbitration.
Guidelines
(5) In exercising the power conferred by subsection (1), the
Commission must have regard to:
(a) the fact that the access undertaking will, if accepted, apply
generally to access seekers and a final determination relating
to the access dispute will only apply to the parties to the
arbitration; and
(b) any guidelines in force under subsection (6).
It may have regard to any other matter it considers relevant.
(6) The Commission must, by legislative instrument, determine
guidelines for the purposes of subsection (5).
(7) The Commission must take all reasonable steps to ensure that the
first set of guidelines under subsection (6) is made within 6 months
after the commencement of this subsection.
Legislation Act 2003
(8) A notice made under subsection (1) is not a legislative instrument.
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Section 44ZZCBA
214 Competition and Consumer Act 2010
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44ZZCBA Deferral of arbitration if review is underway
Commission may defer arbitration if declaration not stayed
(1) If:
(a) the Commission is arbitrating an access dispute relating to
one or more matters of access to a declared service; and
(b) an application for review of the declaration of the service has
been made under subsection 44K(1); and
(c) the Tribunal does not make an order under section 44KA
staying the operation of the declaration;
then the Commission may, by notice in writing to each party to the
arbitration, decide to defer arbitrating the access dispute until the
Tribunal has made its decision on the review if it considers it
appropriate to do so.
Commission must defer arbitration if declaration stayed
(2) If:
(a) the Commission is arbitrating an access dispute relating to
one or more matters of access to a declared service; and
(b) an application for review of the declaration of the service has
been made under subsection 44K(1); and
(c) the Tribunal makes an order under section 44KA staying the
operation of the declaration;
then the Commission must, by notice in writing to each party to the
arbitration, defer arbitrating the access dispute until the Tribunal
has made its decision on the review.
Resumption of arbitration if declaration affirmed
(3) If the Commission defers arbitrating the access dispute and the
Tribunal affirms the declaration, the Commission must resume
arbitrating the dispute.
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Section 44ZZCC
Competition and Consumer Act 2010 215
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Termination of arbitration if declaration varied or set aside
(4) If the Commission defers arbitrating the access dispute and the
Tribunal sets aside or varies the declaration, the Commission must
terminate the arbitration.
(5) If:
(a) an arbitration is terminated under subsection (4) or
section 44YA; and
(b) an access dispute is notified under section 44S in relation to
access to the same declared service; and
(c) the parties to the dispute are the same parties to the
terminated arbitration;
then the Commission may have regard to any record made in the
course of the terminated arbitration if it considers it appropriate to
do so.
Notices are not legislative instruments
(6) A notice given under subsection (1) or (2) is not a legislative
instrument.
44ZZCC Overlap between determinations and access undertakings
If, at a particular time:
(a) a final determination is in operation in relation to a declared
service; and
(b) an access undertaking is in operation in relation to the
service;
the third party’s access to the service at that time is to be
determined under the undertaking to the extent that it deals with a
matter or matters relating to access to the service that are not dealt
with in the determination.
44ZZCD Overlap between registered contracts and access
undertakings
If, at a particular time:
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Section 44ZZCD
216 Competition and Consumer Act 2010
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(a) a contract is registered under Division 4 in relation to a
declared service; and
(b) an access undertaking is in operation in relation to the
service;
the third party’s access to the service at that time is to be
determined under the undertaking to the extent that it deals with a
matter or matters relating to access to the service that are not dealt
with in the contract.
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Section 44ZZD
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Division 7—Enforcement and remedies
44ZZD Enforcement of determinations
(1) If the Federal Court is satisfied, on the application of a party to a
determination, that another party to the determination has engaged,
is engaging, or is proposing to engage in conduct that constitutes a
contravention of the determination, 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 other party from engaging in the conduct;
or
(ii) if the conduct involves refusing or failing to do
something—requiring the other party to do that thing;
(b) an order directing the other party to compensate the applicant
for loss or damage suffered 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.
(3) 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.
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Section 44ZZE
218 Competition and Consumer Act 2010
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44ZZE Enforcement of prohibition on hindering access
(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
section 44ZZ, 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.
(3) The grounds on which the Court may decide not to make an order
under this section include the ground that Divisions 2 and 3
provide a more appropriate way of dealing with the issue of the
applicant’s access to the service 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.
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44ZZF Consent injunctions
On an application for an injunction under section 44ZZD or
44ZZE, 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.
44ZZG Interim injunctions
(1) The Federal Court may grant an interim injunction pending
determination of an application under section 44ZZD or 44ZZE.
(2) If the Commission makes an application under section 44ZZE 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.
44ZZH Factors relevant to granting a restraining injunction
The power of the Federal Court to grant an injunction under
section 44ZZD or 44ZZE 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.
44ZZI Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant an injunction under
section 44ZZD or 44ZZE 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
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(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person refuses or fails to do that
thing.
44ZZJ Enforcement of access undertakings
(1) If the Commission thinks that the provider of an access
undertaking in operation under Division 6 has breached any of its
terms, the Commission may apply to the Federal Court for an order
under subsection (2).
(2) If the Federal Court is satisfied that the provider has breached a
term of the undertaking, the Court may make all or any of the
following orders:
(a) an order directing the provider to comply with that term of
the undertaking;
(b) an order directing the provider 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.
44ZZK 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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44ZZL Register of determinations
The Commission must maintain a public register that specifies the
following information for each determination:
(a) the names of the parties to the determination;
(b) the service to which the determination relates;
(c) the date on which the determination was made.
44ZZM Commonwealth consent to conferral of functions etc. on the
Commission or Tribunal by State or Territory laws
(1) Subject to section 44ZZMAA, a State or Territory access regime
law may confer functions or powers, or impose duties, on the
Commission or Tribunal.
Note: Section 44ZZMB sets out when such a law imposes a duty on the
Commission or Tribunal.
(2) Subsection (1) does not authorise the conferral of a function or
power, or the imposition of a duty, by a law of a State or Territory
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 Commission or Tribunal; or
(b) the authorisation would otherwise exceed the legislative
power of the Commonwealth.
(3) The Commission or Tribunal cannot perform a duty or function, or
exercise a power, under a State or Territory access regime 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.
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44ZZMAA No merits review by Tribunal of decisions under energy
laws
(1) This section applies if a State/Territory energy law or the
Australian Energy Market Act 2004 purports to confer a function
or power, or to impose a duty, in relation to a decision made under:
(a) a State/Territory energy law; or
(b) a uniform energy law applied as a law of the Commonwealth
under the Australian Energy Market Act 2004.
However, this section does not apply in relation to a decision
relating to the disclosure of confidential or protected information
under such a law.
(2) The purported conferral or imposition has no effect to the extent to
which it would require or permit merits review (however
described) of the decision by the Tribunal.
(3) This section applies despite anything in any law of the
Commonwealth, a State or a Territory.
44ZZMA How duty is imposed
Application
(1) This section applies if a State or Territory access regime law
purports to impose a duty on the Commission or Tribunal.
Note 1: Section 44ZZMB sets out when such a law imposes a duty on the
Commission or Tribunal.
Note 2: Section 320 of the South Australian Energy Retail Legislation, as it
applies as a law of a State or Territory, deals with the case where a
duty purportedly imposed on a Commonwealth body under that
applied law cannot be imposed by the State or Territory or the
Commonwealth due to constitutional doctrines restricting such duties.
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:
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(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 Commission or Tribunal.
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 44ZZM 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.
(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 Commission or Tribunal.
(6) Subsections (1) to (5) do not limit section 44ZZM.
44ZZMB When a law of a State or Territory imposes a duty
For the purposes of sections 44ZZM and 44ZZMA, a State or
Territory access regime law imposes a duty on the Commission or
Tribunal if:
(a) the law confers a function or power on the Commission or
Tribunal; and
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(b) the circumstances in which the function or power is
conferred give rise to an obligation on the Commission or
Tribunal to perform the function or to exercise the power.
44ZZN Compensation for acquisition of property
(1) If:
(a) a determination would result in an acquisition of property;
and
(b) the determination would not be valid, apart from this section,
because a particular person has not been sufficiently
compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of compensation agreed on between the
person and the Commonwealth; or
(d) failing agreement—a reasonable amount of compensation
determined by a court of competent jurisdiction.
(2) In assessing compensation payable in a proceeding begun under
this section, the following must be taken into account if they arise
out of the same event or transaction:
(a) any damages or compensation recovered, or other remedy, in
a proceeding begun otherwise than under this section;
(b) compensation awarded under a determination.
(3) In this section, acquisition of property has the same meaning as in
paragraph 51(xxxi) of the Constitution.
44ZZNA Operation of Parts IV and VII not affected by this Part
This Part does not affect the operation of Parts IV and VII.
44ZZO 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:
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(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.
(3) If, in a proceeding under this Part in respect of conduct engaged in
by an individual, it is necessary to establish the state of mind of the
individual, it is sufficient to show:
(a) that the conduct was engaged in by a servant or agent of the
individual within the scope of his or her actual or apparent
authority; and
(b) that the servant or agent had the relevant state of mind.
(4) Conduct engaged in on behalf of an individual:
(a) by a servant or agent of the individual within the scope of the
actual or apparent authority of the servant or agent; or
(b) by any other person at the direction or with the consent or
agreement (whether express or implied) of a servant or agent
of the individual, if the giving of the direction, consent or
agreement is within the scope of the actual or apparent
authority of the servant or agent;
is taken, for the purposes of this Part, to have been engaged in also
by that individual, unless that individual establishes that he or she
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took reasonable precautions and exercised due diligence to avoid
the conduct.
(5) If:
(a) an individual is convicted of an offence; and
(b) the individual would not have been convicted of the offence
if subsections (3) and (4) had not been enacted;
the individual is not liable to be punished by imprisonment for that
offence.
(6) A reference in subsection (1) or (3) 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.
(7) 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.
44ZZOAAA Information to be given to Tribunal
Tribunal to notify decision maker
(1) If an application for review of a decision (however described) is
made under this Part, the Tribunal must notify the decision maker
of the application.
(2) If the application is made under section 44K, 44L, 44LJ, 44LK or
44O, the Tribunal must also notify the Council of the application.
Decision maker to give material to Tribunal
(3) The decision maker must give the following information to the
Tribunal within the period specified by the Tribunal:
(a) if the decision is taken to have been made because of the
operation of subsection 44H(9), 44J(7), 44LG(6), 44LI(7),
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44N(4), 44NB(3A) or 44NBC(5)—all of the information that
the Council took into account in connection with making the
recommendation to which the decision under review relates;
(b) if the decision is taken to have been made because of the
operation of subsection 44PD(6), 44XA(6) or 44ZZBC(6)—
any information or documents given to the Commission in
connection with the decision to which the review relates,
other than information or documents in relation to which the
Commission could not have regard because of
subparagraph 44PE(6)(c)(iii) or 44ZZBD(6)(c)(iii);
(c) otherwise—all of the information that the decision maker
took into account in connection with the making of the
decision to which the review relates.
Tribunal may request further information
(4) The Tribunal may request such information that the Tribunal
considers reasonable and appropriate for the purposes of making its
decision on a review under this Part.
(5) A request under subsection (4) must be made by written notice
given to a person specifying the information requested and the
period within which the information must be given to the Tribunal.
(6) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) if the application is made under section 44K, 44L, 44LJ,
44LK or 44O—the Council; and
(iii) if the application is made under section 44PG, 44PH,
44ZP, 44ZX or 44ZZBF—the Commission; and
(iv) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
(7) Without limiting the information that may be given in accordance
with the notice, information may include information that could not
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have reasonably been made available to the decision maker at the
time the decision under review was made.
Certain material before the Tribunal not to be disclosed
(8) The Tribunal may, on the application of a person, prohibit or
restrict the disclosure of the contents of a document or other
information given to the Tribunal under this section if the Tribunal
is satisfied that it is desirable to do so because of the confidential
nature of the document or other information, or for any other
reason.
(9) In this section:
decision maker, in relation to an application for review under this
Part, means:
(a) if the application was made under section 44K, 44L, 44LJ or
44LK—the designated Minister; or
(b) if the application was made under section 44O—the
Commonwealth Minister; or
(c) if the application was made under section 44PG, 44PH,
44ZP, 44ZX, or 44ZZBF—the Commission.
44ZZOAA Tribunal only to consider particular material
For the purposes of a review under this Part, the Tribunal:
(a) subject to paragraph (b), must have regard to:
(i) information that was given to the Tribunal under
subsection 44ZZOAAA(3); and
(ii) any information given to the Tribunal in accordance
with a notice given under subsection 44ZZOAAA(5);
and
(iii) any thing done as mentioned in subsection 44K(6),
44L(5), 44LJ(5), 44LK(5), 44O(5), 44PG(5), 44PH(5),
44ZP(5), 44ZX(5) or 44ZZBF(5); and
(iv) any information or report given to the Tribunal in
relation to the review under subsection 44K(6A),
44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A),
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44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A)
within the specified period; and
(b) may disregard:
(i) any information given to the Tribunal in response to a
notice given under subsection 44ZZOAAA(5) after the
period specified in the notice has ended; and
(ii) any information or report of the kind specified in a
notice under subsection 44K(6A), 44L(5A), 44LJ(6),
44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A),
44ZX(5A) or 44ZZBF(5A) that is given to the Tribunal
after the specified period has ended.
44ZZOA Time limit for Tribunal decisions
(1) The Tribunal must make a decision on a review under this Part
within the consideration period.
(2) The consideration period is a period of 180 days (the expected
period), starting at the start of the day the application for review is
received, unless the consideration period is extended under
subsection (7).
Stopping the clock
(3) In working out the expected period in relation to an application for
review, in a situation referred to in column 1 of an item of the
following table, disregard any day in a period:
(a) starting on the day referred to in column 2 of the item; and
(b) ending on the day referred to in column 3 of the item.
Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
1 An agreement is made in
relation to the application
under subsection (5)
The first day of
the period
specified in the
agreement
The last day of the period
specified in the
agreement
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Stopping the clock
Item Column 1
Situation
Column 2
Start day
Column 3
End day
2 A notice is given under
subsection 44ZZOAAA(5)
requesting information in
relation to the decision to
which the application
relates
The day on which
the notice is given
The last day of the period
specified in the notice for
the giving of the
information
3 A notice is given under
subsection 44K(6A),
44L(5A), 44LJ(6),
44LK(6), 44O(5A),
44PG(5A), 44PH(5A),
44ZP(5A), 44ZX(5A) or
44ZZBF(5A) requiring
information or a report to
be given in relation to the
review
The day on which
the notice is given
The last day of the period
specified in the notice for
the giving of the
information or the report
(4) Despite subsection (3), do not disregard any day more than once.
Stopping the clock by agreement
(5) The following may agree in writing that a specified period is to be
disregarded in working out the expected period:
(a) the Tribunal;
(b) the person who applied for review;
(c) if the application is made under section 44K, 44L, 44LJ,
44LK or 44O—the Council;
(d) if the application is made under section 44PG, 44PH, 44ZP,
44ZX or 44ZZBF—the Commission;
(e) any other person who has been made a party to the
proceedings for review by the Tribunal.
(6) The Tribunal must publish, by electronic or other means, the
agreement.
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Extension of time for making decision
(7) If the Tribunal is unable to make a decision on an application for
review within the consideration period (whether it is the expected
period or the consideration period as previously extended under
this subsection), it must, by notice in writing to the designated
Minister, extend the consideration period by a specified period.
(8) The notice must:
(a) specify when the Tribunal must now make its decision on the
application for review; and
(b) include a statement explaining why the Tribunal has been
unable to make a decision on the review within the
consideration period.
(9) The Tribunal must give a copy of the notice to:
(a) the person who applied for review; and
(b) if the application for review is made under section 44K, 44L,
44LJ, 44LK or 44O—the Council; and
(c) if the application for review is made under section 44PG,
44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and
(d) any other person who has been made a party to the
proceedings for review by the Tribunal.
Publication
(10) If the Tribunal extends the consideration period under
subsection (7), it must publish a notice in a national newspaper:
(a) stating that it has done so; and
(b) specifying the day by which it must now make a decision on
the application for review.
Failure to comply with time limit does not affect validity
(11) Failure by the Tribunal to comply with a time limit set in this
section does not affect the validity of a decision made by the
Tribunal under this Part.
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Division 8 Miscellaneous
Section 44ZZP
232 Competition and Consumer Act 2010
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44ZZP Regulations about review by the Tribunal
(1) The regulations may make provision about the following matters in
relation to the functions of the Tribunal under this Part:
(a) the constitution of the Tribunal;
(b) the arrangement of the business of the Tribunal;
(c) the disclosure of interests by members of the Tribunal;
(d) determining questions before the Tribunal and questions that
arise during a review;
(e) procedure and evidence, including the appointment of
persons to assist the Tribunal by giving evidence (whether
personally or by means of a written report).
(2) Regulations made for the purposes of subsection (1) 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.
44ZZQ 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).
44ZZR Procedure of the Tribunal when performing functions under
a State/Territory energy law or a designated
Commonwealth energy law
(1) Sections 103, 105, 106, 107, 108 and 110 of this Act apply to the
Tribunal when performing functions under a State/Territory energy
law or a designated Commonwealth energy law.
(2) The regulations may make provision about the following matters in
relation to the functions of the Tribunal under a State/Territory
energy law or a designated Commonwealth energy law:
(a) the constitution of the Tribunal;
(b) the arrangement of the business of the Tribunal;
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(c) the disclosure of interests by members of the Tribunal;
(d) determining questions before the Tribunal and questions that
arise during a review;
(e) procedure and evidence, including the appointment of
persons to assist the Tribunal by giving evidence (whether
personally or by means of a written report);
(f) the fees and expenses of witnesses in proceedings before the
Tribunal.
(3) Subsection (1), and regulations made for the purposes of
subsection (2), have no effect to the extent (if any) to which they
are inconsistent with the State/Territory energy law, or the
designated Commonwealth energy law, concerned.
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Part IV Restrictive trade practices
Division 1 Cartel conduct
Section 45AA
234 Competition and Consumer Act 2010
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Part IV—Restrictive trade practices
Division 1—Cartel conduct
Subdivision A—Introduction
45AA Simplified outline
The following is a simplified outline of this Division:
• This Division sets out parallel offences and civil penalty
provisions relating to cartel conduct.
• A corporation must not make, or give effect to, a contract,
arrangement or understanding that contains a cartel provision.
• A cartel provision is a provision relating to:
(a) price-fixing; or
(b) restricting outputs in the production and supply
chain; or
(c) allocating customers, suppliers or territories; or
(d) bid-rigging;
by parties that are, or would otherwise be, in competition with
each other.
45AB Definitions
In this Division:
annual turnover, of a body corporate during a 12-month period,
means the sum of the values of all the supplies that the body
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corporate, and any body corporate related to the body corporate,
have made, or are likely to make, during the 12-month period,
other than:
(a) supplies made from any of those bodies corporate to any
other of those bodies corporate; or
(b) supplies that are input taxed; or
(c) supplies that are not for consideration (and are not taxable
supplies under section 72-5 of the A New Tax System (Goods
and Services Tax) Act 1999); or
(d) supplies that are not made in connection with an enterprise
that the body corporate carries on; or
(e) supplies that are not connected with Australia.
Expressions used in this definition that are also used in the A New
Tax System (Goods and Services Tax) Act 1999 have the same
meaning as in that Act.
benefit includes any advantage and is not limited to property.
bid includes:
(a) tender; and
(b) the taking, by a potential bidder or tenderer, of a preliminary
step in a bidding or tendering process.
evidential burden, in relation to a matter, means the burden of
adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
likely, in relation to any of the following:
(a) a supply of goods or services;
(b) an acquisition of goods or services;
(c) the production of goods;
(d) the capacity to supply services;
includes a possibility that is not remote.
obtaining includes:
(a) obtaining for another person; and
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236 Competition and Consumer Act 2010
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(b) inducing a third person to do something that results in
another person obtaining.
party has a meaning affected by section 45AC.
production includes manufacture, processing, treatment, assembly,
disassembly, renovation, restoration, growing, raising, mining,
extraction, harvesting, fishing, capturing and gathering.
45AC Extended meaning of party
For the purposes of this Division, if a body corporate is a party to a
contract, arrangement or understanding (otherwise than because of
this section), each body corporate related to that body corporate is
taken to be a party to that contract, arrangement or understanding.
45AD Cartel provisions
(1) For the purposes of this Act, a provision of a contract, arrangement
or understanding is a cartel provision if:
(a) either of the following conditions is satisfied in relation to the
provision:
(i) the purpose/effect condition set out in subsection (2);
(ii) the purpose condition set out in subsection (3); and
(b) the competition condition set out in subsection (4) is satisfied
in relation to the provision.
Purpose/effect condition
(2) The purpose/effect condition is satisfied if the provision has the
purpose, or has or is likely to have the effect, of directly or
indirectly:
(a) fixing, controlling or maintaining; or
(b) providing for the fixing, controlling or maintaining of;
the price for, or a discount, allowance, rebate or credit in relation
to:
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(c) goods or services supplied, or likely to be supplied, by any or
all of the parties to the contract, arrangement or
understanding; or
(d) goods or services acquired, or likely to be acquired, by any or
all of the parties to the contract, arrangement or
understanding; or
(e) goods or services re-supplied, or likely to be re-supplied, by
persons or classes of persons to whom those goods or
services were supplied by any or all of the parties to the
contract, arrangement or understanding; or
(f) goods or services likely to be re-supplied by persons or
classes of persons to whom those goods or services are likely
to be supplied by any or all of the parties to the contract,
arrangement or understanding.
Note 1: The purpose/effect condition can be satisfied when a provision is
considered with related provisions—see subsection (8).
Note 2: Party has an extended meaning—see section 45AC.
Purpose condition
(3) The purpose condition is satisfied if the provision has the purpose
of directly or indirectly:
(a) preventing, restricting or limiting:
(i) the production, or likely production, of goods by any or
all of the parties to the contract, arrangement or
understanding; or
(ii) the capacity, or likely capacity, of any or all of the
parties to the contract, arrangement or understanding to
supply services; or
(iii) the supply, or likely supply, of goods or services to
persons or classes of persons by any or all of the parties
to the contract, arrangement or understanding; or
(iv) the acquisition, or likely acquisition, of goods or
services from persons or classes of persons by any or all
of the parties to the contract, arrangement or
understanding; or
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Section 45AD
238 Competition and Consumer Act 2010
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(b) allocating between any or all of the parties to the contract,
arrangement or understanding:
(i) the persons or classes of persons who have acquired, or
who are likely to acquire, goods or services from any or
all of the parties to the contract, arrangement or
understanding; or
(ii) the persons or classes of persons who have supplied, or
who are likely to supply, goods or services to any or all
of the parties to the contract, arrangement or
understanding; or
(iii) the geographical areas in which goods or services are
supplied, or likely to be supplied, by any or all of the
parties to the contract, arrangement or understanding; or
(iv) the geographical areas in which goods or services are
acquired, or likely to be acquired, by any or all of the
parties to the contract, arrangement or understanding; or
(c) ensuring that in the event of a request for bids in relation to
the supply or acquisition of goods or services:
(i) one or more parties to the contract, arrangement or
understanding bid, but one or more other parties do not;
or
(ii) 2 or more parties to the contract, arrangement or
understanding bid, but at least 2 of them do so on the
basis that one of those bids is more likely to be
successful than the others; or
(iii) 2 or more parties to the contract, arrangement or
understanding bid, but not all of those parties proceed
with their bids until the suspension or finalisation of the
request for bids process; or
(iv) 2 or more parties to the contract, arrangement or
understanding bid and proceed with their bids, but at
least 2 of them proceed with their bids on the basis that
one of those bids is more likely to be successful than the
others; or
(v) 2 or more parties to the contract, arrangement or
understanding bid, but a material component of at least
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one of those bids is worked out in accordance with the
contract, arrangement or understanding.
Note 1: For example, subparagraph (3)(a)(iii) will not apply in relation to a
roster for the supply of after-hours medical services if the roster does
not prevent, restrict or limit the supply of services.
Note 2: The purpose condition can be satisfied when a provision is considered
with related provisions—see subsection (9).
Note 3: Party has an extended meaning—see section 45AC.
Competition condition
(4) The competition condition is satisfied if at least 2 of the parties to
the contract, arrangement or understanding:
(a) are or are likely to be; or
(b) but for any contract, arrangement or understanding, would be
or would be likely to be;
in competition with each other in relation to:
(c) if paragraph (2)(c) or (3)(b) applies in relation to a supply, or
likely supply, of goods or services—the supply of those
goods or services in trade or commerce; or
(d) if paragraph (2)(d) or (3)(b) applies in relation to an
acquisition, or likely acquisition, of goods or services—the
acquisition of those goods or services in trade or commerce;
or
(e) if paragraph (2)(e) or (f) applies in relation to a re-supply, or
likely re-supply, of goods or services—the supply of those
goods or services in trade or commerce to that re-supplier; or
(f) if subparagraph (3)(a)(i) applies in relation to preventing,
restricting or limiting the production, or likely production, of
goods—the production of those goods in trade or commerce;
or
(g) if subparagraph (3)(a)(ii) applies in relation to preventing,
restricting or limiting the capacity, or likely capacity, to
supply services—the supply of those services in trade or
commerce; or
(h) if subparagraph (3)(a)(iii) applies in relation to preventing,
restricting or limiting the supply, or likely supply, of goods
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or services—the supply of those goods or services in trade or
commerce; or
(i) if subparagraph (3)(a)(iv) applies in relation to preventing,
restricting or limiting the acquisition, or likely acquisition, of
goods or services—the acquisition of those goods or services
in trade or commerce; or
(j) if paragraph (3)(c) applies in relation to a supply of goods or
services—the supply of those goods or services in trade or
commerce; or
(k) if paragraph (3)(c) applies in relation to an acquisition of
goods or services—the acquisition of those goods or services
in trade or commerce.
Note 1: Party has an extended meaning—see section 45AC.
Note 2: Trade or commerce is defined in section 4 to mean trade or commerce
within Australia or between Australia and places outside Australia.
Immaterial whether identities of persons can be ascertained
(5) It is immaterial whether the identities of the persons referred to in
paragraph (2)(e) or (f) or subparagraph (3)(a)(iii) or (iv) or (b)(i) or
(ii) can be ascertained.
Recommending prices etc.
(6) For the purposes of this Division, a provision of a contract,
arrangement or understanding is not taken:
(a) to have the purpose mentioned in subsection (2); or
(b) to have, or be likely to have, the effect mentioned in
subsection (2);
by reason only that it recommends, or provides for the
recommending of, a price, discount, allowance, rebate or credit.
Immaterial whether particular circumstances or particular
conditions
(7) It is immaterial whether:
(a) for the purposes of subsection (2), subparagraphs (3)(a)(iii)
and (iv) and paragraphs (3)(b) and (c)—a supply or
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Competition and Consumer Act 2010 241
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acquisition happens, or a likely supply or likely acquisition is
to happen, in particular circumstances or on particular
conditions; and
(b) for the purposes of subparagraph (3)(a)(i)—the production
happens, or the likely production is to happen, in particular
circumstances or on particular conditions; and
(c) for the purposes of subparagraph (3)(a)(ii)—the capacity
exists, or the likely capacity is to exist, in particular
circumstances or on particular conditions.
Considering related provisions—purpose/effect condition
(8) For the purposes of this Division, a provision of a contract,
arrangement or understanding is taken to have the purpose, or to
have or be likely to have the effect, mentioned in subsection (2) if
the provision, when considered together with any or all of the
following provisions:
(a) the other provisions of the contract, arrangement or
understanding;
(b) the provisions of another contract, arrangement or
understanding, if the parties to that other contract,
arrangement or understanding consist of or include at least
one of the parties to the first-mentioned contract,
arrangement or understanding;
has that purpose, or has or is likely to have that effect.
Considering related provisions—purpose condition
(9) For the purposes of this Division, a provision of a contract,
arrangement or understanding is taken to have the purpose
mentioned in a paragraph of subsection (3) if the provision, when
considered together with any or all of the following provisions:
(a) the other provisions of the contract, arrangement or
understanding;
(b) the provisions of another contract, arrangement or
understanding, if the parties to that other contract,
arrangement or understanding consist of or include at least
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Section 45AE
242 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
one of the parties to the first-mentioned contract,
arrangement or understanding;
has that purpose.
Purpose/effect of a provision
(10) For the purposes of this Division, a provision of a contract,
arrangement or understanding is not to be taken not to have the
purpose, or not to have or to be likely to have the effect, mentioned
in subsection (2) by reason only of:
(a) the form of the provision; or
(b) the form of the contract, arrangement or understanding; or
(c) any description given to the provision, or to the contract,
arrangement or understanding, by the parties.
Purpose of a provision
(11) For the purposes of this Division, a provision of a contract,
arrangement or understanding is not to be taken not to have the
purpose mentioned in a paragraph of subsection (3) by reason only
of:
(a) the form of the provision; or
(b) the form of the contract, arrangement or understanding; or
(c) any description given to the provision, or to the contract,
arrangement or understanding, by the parties.
45AE Meaning of expressions in other provisions of this Act
In determining the meaning of an expression used in a provision of
this Act (other than this Division, subsection 6(2C),
paragraph 76(1A)(aa) or subsection 93AB(1A)), this Division is to
be disregarded.
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Section 45AF
Competition and Consumer Act 2010 243
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Subdivision B—Offences etc.
45AF Making a contract etc. containing a cartel provision
Offence
(1) A corporation commits an offence if:
(a) the corporation makes a contract or arrangement, or arrives at
an understanding; and
(b) the contract, arrangement or understanding contains a cartel
provision.
Note: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
(2) The fault element for paragraph (1)(b) is knowledge or belief.
Penalty
(3) An offence against subsection (1) is punishable on conviction by a
fine not exceeding the greater of the following:
(a) $10,000,000;
(b) if the court can determine the total value of the benefits that:
(i) have been obtained by one or more persons; and
(ii) are reasonably attributable to the commission of the
offence;
3 times that total value;
(c) if the court cannot determine the total value of those
benefits—10% of the corporation’s annual turnover during
the 12-month period ending at the end of the month in which
the corporation committed, or began committing, the offence.
Indictable offence
(4) An offence against subsection (1) is an indictable offence.
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Section 45AG
244 Competition and Consumer Act 2010
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45AG Giving effect to a cartel provision
Offence
(1) A corporation commits an offence if:
(a) a contract, arrangement or understanding contains a cartel
provision; and
(b) the corporation gives effect to the cartel provision.
Note: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
(2) The fault element for paragraph (1)(a) is knowledge or belief.
Penalty
(3) An offence against subsection (1) is punishable on conviction by a
fine not exceeding the greater of the following:
(a) $10,000,000;
(b) if the court can determine the total value of the benefits that:
(i) have been obtained by one or more persons; and
(ii) are reasonably attributable to the commission of the
offence;
3 times that total value;
(c) if the court cannot determine the total value of those
benefits—10% of the corporation’s annual turnover during
the 12-month period ending at the end of the month in which
the corporation committed, or began committing, the offence.
Pre-commencement contracts etc.
(4) Paragraph (1)(a) applies to contracts or arrangements made, or
understandings arrived at, before, at or after the commencement of
this section.
Indictable offence
(5) An offence against subsection (1) is an indictable offence.
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Competition and Consumer Act 2010 245
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45AH Determining guilt
(1) A corporation may be found guilty of an offence against
section 45AF or 45AG even if:
(a) each other party to the contract, arrangement or
understanding is a person who is not criminally responsible;
or
(b) subject to subsection (2), all other parties to the contract,
arrangement or understanding have been acquitted of the
offence.
Note: Party has an extended meaning—see section 45AC.
(2) A corporation cannot be found guilty of an offence against
section 45AF or 45AG if:
(a) all other parties to the contract, arrangement or understanding
have been acquitted of such an offence; and
(b) a finding of guilt would be inconsistent with their acquittal.
45AI Court may make related civil orders
If a prosecution against a person for an offence against
section 45AF or 45AG is being, or has been, heard by a court, the
court may:
(a) grant an injunction under section 80 against the person in
relation to:
(i) the conduct that constitutes, or is alleged to constitute,
the offence; or
(ii) other conduct of that kind; or
(b) make an order under section 86C, 86D, 86E or 87 in relation
to the offence.
Subdivision C—Civil penalty provisions
45AJ Making a contract etc. containing a cartel provision
A corporation contravenes this section if:
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Section 45AK
246 Competition and Consumer Act 2010
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(a) the corporation makes a contract or arrangement, or arrives at
an understanding; and
(b) the contract, arrangement or understanding contains a cartel
provision.
Note: For enforcement, see Part VI.
45AK Giving effect to a cartel provision
(1) A corporation contravenes this section if:
(a) a contract, arrangement or understanding contains a cartel
provision; and
(b) the corporation gives effect to the cartel provision.
Note: For enforcement, see Part VI.
(2) Paragraph (1)(a) applies to contracts or arrangements made, or
understandings arrived at, before, at or after the commencement of
this section.
Subdivision D—Exceptions
45AL Conduct notified
(1) Sections 45AF, 45AG, 45AJ and 45AK do not apply to a
corporation in relation to a contract, arrangement or understanding
containing a cartel provision, in so far as:
(a) the cartel provision:
(i) has the purpose, or has or is likely to have the effect,
mentioned in subsection 45AD(2); or
(ii) has the purpose mentioned in a paragraph of
subsection 45AD(3) other than paragraph (c); and
(b) the corporation has given the Commission a collective
bargaining notice under subsection 93AB(1A) setting out
particulars of the contract, arrangement or understanding; and
(c) the notice is in force under section 93AD.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1) (see subsection 13.3(3) of the Criminal Code and
subsection (2) of this section).
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Section 45AM
Competition and Consumer Act 2010 247
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(2) A person who wishes to rely on subsection (1) in relation to a
contravention of section 45AJ or 45AK bears an evidential burden
in relation to that matter.
45AM Cartel provision subject to grant of authorisation
(1) Sections 45AF and 45AJ do not apply in relation to the making of
a contract that contains a cartel provision if:
(a) the contract is subject to a condition that the provision will
not come into force unless and until the corporation is
granted an authorisation to give effect to the provision; and
(b) the corporation applies for the grant of such an authorisation
within 14 days after the contract is made.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1) (see subsection 13.3(3) of the Criminal Code and
subsection (2) of this section).
(2) A person who wishes to rely on subsection (1) in relation to a
contravention of section 45AJ bears an evidential burden in
relation to that matter.
45AN Contracts, arrangements or understandings between related
bodies corporate
(1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to
a contract, arrangement or understanding if the only parties to the
contract, arrangement or understanding are bodies corporate that
are related to each other.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1) (see subsection 13.3(3) of the Criminal Code and
subsection (2) of this section).
(2) A person who wishes to rely on subsection (1) in relation to a
contravention of section 45AJ or 45AK bears an evidential burden
in relation to that matter.
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Section 45AO
248 Competition and Consumer Act 2010
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45AO Joint ventures—prosecution
Sections 45AF and 45AG do not apply in relation to a contract,
arrangement or understanding containing a cartel provision if the
defendant proves that:
(a) the cartel provision is:
(i) for the purposes of a joint venture; and
(ii) reasonably necessary for undertaking the joint venture;
and
(b) the joint venture is for any one or more of the following:
(i) production of goods;
(ii) supply of goods or services;
(iii) acquisition of goods or services; and
(c) the joint venture is not carried on for the purpose of
substantially lessening competition; and
(d) in a case where subparagraph 4J(a)(i) applies to the joint
venture—the joint venture is carried on jointly by the parties
to the contract, arrangement or understanding; and
(e) in a case where subparagraph 4J(a)(ii) applies to the joint
venture—the joint venture is carried on by a body corporate
formed by the parties to the contract, arrangement or
understanding for the purpose of enabling those parties to
carry on the activity mentioned in paragraph (b) jointly by
means of:
(i) their joint control; or
(ii) their ownership of shares in the capital;
of that body corporate.
Note 1: A defendant bears a legal burden in relation to the matter in this
section (see section 13.4 of the Criminal Code).
Note 2: For example, if a joint venture formed for the purpose of research and
development provides the results of its research and development to
participants in the joint venture, it may be a joint venture for the
supply of services.
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Section 45AP
Competition and Consumer Act 2010 249
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45AP Joint ventures—civil penalty proceedings
(1) Sections 45AJ and 45AK do not apply in relation to a contract,
arrangement or understanding containing a cartel provision if the
defendant proves that:
(a) the cartel provision is:
(i) for the purposes of a joint venture; and
(ii) reasonably necessary for undertaking the joint venture;
and
(b) the joint venture is for any one or more of the following:
(i) production of goods;
(ii) supply of goods or services;
(iii) acquisition of goods or services; and
(c) the joint venture is not carried on for the purpose of
substantially lessening competition; and
(d) in a case where subparagraph 4J(a)(i) applies to the joint
venture—the joint venture is carried on jointly by the parties
to the contract, arrangement or understanding; and
(e) in a case where subparagraph 4J(a)(ii) applies to the joint
venture—the joint venture is carried on by a body corporate
formed by the parties to the contract, arrangement or
understanding for the purpose of enabling those parties to
carry on the activity mentioned in paragraph (b) jointly by
means of:
(i) their joint control; or
(ii) their ownership of shares in the capital;
of that body corporate.
Note: For example, if a joint venture formed for the purpose of research and
development provides the results of its research and development to
participants in the joint venture, it may be a joint venture for the
supply of services.
(2) A defendant who wishes to rely on subsection (1) must prove that
matter on the balance of probabilities.
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Section 45AQ
250 Competition and Consumer Act 2010
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45AQ Resale price maintenance
(1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to
a contract, arrangement or understanding containing a cartel
provision, in so far as the cartel provision relates to:
(a) conduct that contravenes section 48; or
(b) conduct that would contravene section 48 but for the
operation of section 88; or
(c) conduct that would contravene section 48 if this Act defined
the acts constituting the practice of resale price maintenance
by reference to the maximum price at which goods or
services are to be sold or supplied or are to be advertised,
displayed or offered for sale or supply.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1) (see subsection 13.3(3) of the Criminal Code and
subsection (2) of this section).
(2) A person who wishes to rely on subsection (1) in relation to a
contravention of section 45AJ or 45AK bears an evidential burden
in relation to that matter.
45AR Exclusive dealing
(1) Sections 45AF and 45AJ do not apply in relation to the making of
a contract, arrangement or understanding that contains a cartel
provision, in so far as giving effect to the cartel provision would, or
would but for the operation of subsection 47(10) or section 88 or
93, constitute a contravention of section 47.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1) (see subsection 13.3(3) of the Criminal Code and
subsection (3) of this section).
(2) Sections 45AG and 45AK do not apply in relation to the giving
effect to a cartel provision by way of:
(a) engaging in conduct that contravenes, or would but for the
operation of subsection 47(10) or section 88 or 93
contravene, section 47; or
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(b) doing an act by reason of a breach or threatened breach of a
condition referred to in subsection 47(2), (4), (6) or (8), being
an act done by a person at a time when:
(i) an authorisation under section 88 is in force in relation
to conduct engaged in by that person on that condition;
or
(ii) by reason of subsection 93(7), conduct engaged in by
that person on that condition is not to be taken to have
the effect of substantially lessening competition within
the meaning of section 47; or
(iii) a notice under subsection 93(1) is in force in relation to
conduct engaged in by that person on that condition.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code and
subsection (3) of this section).
(3) A person who wishes to rely on subsection (1) or (2) in relation to
a contravention of section 45AJ or 45AK bears an evidential
burden in relation to that matter.
45AS Dual listed company arrangement
(1) Sections 45AF and 45AJ do not apply in relation to the making of
a contract, arrangement or understanding that contains a cartel
provision, in so far as:
(a) the contract, arrangement or understanding is a dual listed
company arrangement; and
(b) the making of the contract, arrangement or understanding
would, or would apart from section 88, contravene
section 49.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1) (see subsection 13.3(3) of the Criminal Code and
subsection (3) of this section).
(2) Sections 45AG and 45AK do not apply in relation to the giving
effect to a cartel provision, in so far as:
(a) the cartel provision is a provision of a dual listed company
arrangement; and
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Section 45AT
252 Competition and Consumer Act 2010
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(b) the giving effect to the cartel provision would, or would apart
from section 88, contravene section 49.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code and
subsection (3) of this section).
(3) A person who wishes to rely on subsection (1) or (2) in relation to
a contravention of section 45AJ or 45AK bears an evidential
burden in relation to that matter.
45AT Acquisition of shares or assets
(1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to
a contract, arrangement or understanding containing a cartel
provision, in so far as the cartel provision provides directly or
indirectly for the acquisition of:
(a) any shares in the capital of a body corporate; or
(b) any assets of a person.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1) (see subsection 13.3(3) of the Criminal Code and
subsection (2) of this section).
(2) A person who wishes to rely on subsection (1) in relation to a
contravention of section 45AJ or 45AK bears an evidential burden
in relation to that matter.
45AU Collective acquisition of goods or services by the parties to a
contract, arrangement or understanding
(1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to
a contract, arrangement or understanding containing a cartel
provision, in so far as:
(a) the cartel provision has the purpose, or has or is likely to
have the effect, mentioned in subsection 45AD(2); and
(b) either:
(i) the cartel provision relates to the price for goods or
services to be collectively acquired, whether directly or
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indirectly, by the parties to the contract, arrangement or
understanding; or
(ii) the cartel provision is for the joint advertising of the
price for the re-supply of goods or services so acquired.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1) (see subsection 13.3(3) of the Criminal Code and
subsection (2) of this section).
(2) A person who wishes to rely on subsection (1) in relation to a
contravention of section 45AJ or 45AK bears an evidential burden
in relation to that matter.
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Section 45
254 Competition and Consumer Act 2010
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Division 2—Other provisions
45 Contracts, arrangements or understandings that restrict dealings
or affect competition
(1) A corporation must not:
(a) make a contract or arrangement, or arrive at an
understanding, if a provision of the proposed contract,
arrangement or understanding has the purpose, or would have
or be likely to have the effect, of substantially lessening
competition; or
(b) give effect to a provision of a contract, arrangement or
understanding, if that provision has the purpose, or has or is
likely to have the effect, of substantially lessening
competition; or
(c) engage with one or more persons in a concerted practice that
has the purpose, or has or is likely to have the effect, of
substantially lessening competition.
(2) Paragraph (1)(b) applies in relation to contracts or arrangements
made, or understandings arrived at, before or after the
commencement of this section.
(3) For the purposes of this section, competition means:
(a) in relation to a provision of a contract, arrangement or
understanding or of a proposed contract, arrangement or
understanding—competition in any market in which:
(i) a corporation that is a party to the contract, arrangement
or understanding, or would be a party to the proposed
contract, arrangement or understanding; or
(ii) any body corporate related to such a corporation;
supplies or acquires, or is likely to supply or acquire, goods
or services or would, but for the provision, supply or acquire,
or be likely to supply or acquire, goods or services; or
(b) in relation to a concerted practice—competition in any
market in which:
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(i) a corporation that is a party to the practice; or
(ii) any body corporate related to such a corporation;
supplies or acquires, or is likely to supply or acquire, goods
or services or would, but for the practice, supply or acquire,
or be likely to supply or acquire, goods or services.
(4) For the purposes of the application of this section in relation to a
particular corporation, a provision of a contract, arrangement or
understanding or of a proposed contract, arrangement or
understanding shall be deemed to have or to be likely to have the
effect of substantially lessening competition if that provision and
any one or more of the following provisions, namely:
(a) the other provisions of that contract, arrangement or
understanding or proposed contract, arrangement or
understanding; and
(b) the provisions of any other contract, arrangement or
understanding or proposed contract, arrangement or
understanding to which the corporation or a body corporate
related to the corporation is or would be a party;
together have or are likely to have that effect.
(5) This section does not apply to or in relation to a provision of a
contract, arrangement or understanding or of a proposed contract,
arrangement or understanding, or to or in relation to a concerted
practice, in so far as the provision or practice relates to:
(a) conduct that contravenes section 48; or
(b) conduct that would contravene section 48 if subsection 48(2)
did not apply; or
(c) conduct that would contravene section 48 if it were not
authorised under section 88; or
(d) conduct that would contravene section 48 if this Act defined
the acts constituting the practice of resale price maintenance
by reference to the maximum price at which goods or
services are to be sold or supplied or are to be advertised,
displayed or offered for sale or supply.
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Section 45
256 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(5A) The making of a contract, arrangement or understanding does not
constitute a contravention of this section because the contract,
arrangement or understanding contains a provision the giving
effect to which would, or would apart from subsection 47(10) or
section 88 or 93, constitute a contravention of section 47.
(6) This section does not apply to or in relation to the giving effect to a
provision of a contract, arrangement or understanding, or to or in
relation to engaging in a concerted practice, by way of:
(a) engaging in conduct that contravenes, or would but for the
operation of subsection 47(10) or section 88 or 93
contravene, section 47; or
(b) doing an act by reason of a breach or threatened breach of a
condition referred to in subsection 47(2), (4), (6) or (8), being
an act done by a person at a time when:
(i) an authorization under section 88 is in force in relation
to conduct engaged in by that person on that condition;
or
(ii) by reason of subsection 93(7) conduct engaged in by
that person on that condition is not to be taken to have
the effect of substantially lessening competition within
the meaning of section 47; or
(iii) a notice under subsection 93(1) is in force in relation to
conduct engaged in by that person on that condition.
(6A) The following conduct:
(a) the making of a dual listed company arrangement;
(b) the giving effect to a provision of a dual listed company
arrangement;
does not contravene this section if the conduct would, or would
apart from section 88, contravene section 49.
(7) This section does not apply to or in relation to:
(a) a contract, arrangement or understanding to the extent that
the contract, arrangement or understanding directly or
indirectly provides for; or
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(b) a proposed contract, arrangement or understanding to the
extent that the proposed contract, arrangement or
understanding would directly or indirectly provide for; or
(c) a concerted practice to the extent that the practice directly
involves;
the acquisition of any shares in the capital of a body corporate or
any assets of a person.
(8) This section does not apply to or in relation to:
(a) a contract, arrangement or understanding, or
(b) a proposed contract, arrangement or understanding; or
(c) a concerted practice;
the only parties to which are or would be bodies corporate that are
related to each other.
(8AA) This section does not apply to or in relation to a concerted practice
if the only persons engaging in it are or would be:
(a) the Crown in right of the Commonwealth and one or more
authorities of the Commonwealth; or
(b) the Crown in right of a State or Territory and one or more
authorities of that State or Territory.
(8A) Subsection (1) does not apply to a corporation engaging in conduct
described in that subsection if:
(a) the corporation has given the Commission a collective
bargaining notice under subsection 93AB(1) describing the
conduct; and
(b) the notice is in force under section 93AD.
(9) The making by a corporation of a contract that contains a provision
in relation to which the corporation intends to apply for an
authorisation under section 88 is not a contravention of
subsection (1) of this section if:
(a) the contract is subject to a condition that the provision will
not come into force unless and until the corporation is
granted an authorization to give effect to the provision; and
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Section 45D
258 Competition and Consumer Act 2010
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(b) the corporation applies for the grant of such an authorization
within 14 days after the contract is made;
but nothing in this subsection prevents the giving effect by a
corporation to such a provision from constituting a contravention
of subsection (1).
45D Secondary boycotts for the purpose of causing substantial loss
or damage
(1) In the circumstances specified in subsection (3) or (4), a person
must not, in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth
person (who is not an employer of the first person or the
second person); or
(ii) a third person acquiring goods or services from a fourth
person (who is not an employer of the first person or the
second person); and
(b) that is engaged in for the purpose, and would have or be
likely to have the effect, of causing substantial loss or
damage to the business of the fourth person.
Note 1: Conduct that would otherwise contravene this section can be
authorised under section 88.
Note 2: This section also has effect subject to section 45DD, which deals with
permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in
subsection (1) if the person engages in the conduct for purposes
that include that purpose.
(3) Subsection (1) applies if the fourth person is a corporation.
(4) Subsection (1) also applies if:
(a) the third person is a corporation and the fourth person is not a
corporation; and
(b) the conduct would have or be likely to have the effect of
causing substantial loss or damage to the business of the third
person.
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45DA Secondary boycotts for the purpose of causing substantial
lessening of competition
(1) In the circumstances specified in subsection (3), a person must not,
in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth
person (who is not an employer of the first person or the
second person); or
(ii) a third person acquiring goods or services from a fourth
person (who is not an employer of the first person or the
second person); and
(b) that is engaged in for the purpose, and would have or be
likely to have the effect, of causing a substantial lessening of
competition in any market in which the fourth person
supplies or acquires goods or services.
Note 1: Conduct that would otherwise contravene this section can be
authorised under section 88.
Note 2: This section also has effect subject to section 45DD, which deals with
permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in
subsection (1) if the person engages in the conduct for purposes
that include that purpose.
(3) Subsection (1) applies if:
(a) the third person or the fourth person is a corporation, or both
of them are corporations; and
(b) the conduct would have or be likely to have the effect of
causing substantial loss or damage to the business of one of
those persons who is a corporation.
45DB Boycotts affecting trade or commerce
(1) A person must not, in concert with another person, engage in
conduct for the purpose, and having or likely to have the effect, of
preventing or substantially hindering a third person (who is not an
employer of the first person) from engaging in trade or commerce
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Section 45DC
260 Competition and Consumer Act 2010
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involving the movement of goods between Australia and places
outside Australia.
Note 1: Conduct that would otherwise contravene this section can be
authorised under section 88.
Note 2: This section also has effect subject to section 45DD, which deals with
permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in
subsection (1) if the person engages in the conduct for purposes
that include that purpose.
45DC Involvement and liability of employee organisations
Certain organisations taken to be acting in concert
(1) If 2 or more persons (the participants), each of whom is a member
or officer of the same organisation of employees, engage in
conduct in concert with one another, whether or not the conduct is
also engaged in in concert with another person, then, unless the
organisation proves otherwise, the organisation is taken for the
purposes of sections 45D, 45DA and 45DB:
(a) to engage in that conduct in concert with the participants; and
(b) to have engaged in that conduct for the purposes for which
the participants engaged in it.
Consequences of organisation contravening subsection 45D(1),
45DA(1) or 45DB(1)
(2) The consequences of an organisation of employees engaging, or
being taken by subsection (1) to engage, in conduct in concert with
any of its members or officers in contravention of
subsection 45D(1), 45DA(1) or 45DB(1) are as set out in
subsections (3), (4) and (5).
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Section 45DC
Competition and Consumer Act 2010 261
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Loss or damage taken to have been caused by organisation’s
conduct
(3) Any loss or damage suffered by a person as a result of the conduct
is taken, for the purposes of this Act, to have been caused by the
conduct of the organisation.
Taking proceedings if organisation is a body corporate
(4) If the organisation is a body corporate, no action under section 82
to recover the amount of the loss or damage may be brought
against any of the members or officers of the organisation in
respect of the conduct.
Taking proceedings if organisation is not a body corporate
(5) If the organisation is not a body corporate:
(a) a proceeding in respect of the conduct may be brought under
section 77, 80 or 82 against an officer of the organisation as a
representative of the organisation’s members and the
proceeding is taken to be a proceeding against all the persons
who were members of the organisation at the time when the
conduct was engaged in; and
(b) subsection 76(2) does not prevent an order being made in a
proceeding mentioned in paragraph (a) that was brought
under section 77; and
(c) the maximum pecuniary penalty that may be imposed in a
proceeding mentioned in paragraph (a) that was brought
under section 77 is the penalty applicable under section 76 in
relation to a body corporate; and
(d) except as provided by paragraph (a), a proceeding in respect
of the conduct must not be brought under section 77 or 82
against any of the members or officers of the organisation;
and
(e) for the purpose of enforcing any judgment or order given or
made in a proceeding mentioned in paragraph (a) that was
brought under section 77 or 82, process may be issued and
executed against the following property or interests as if the
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Section 45DD
262 Competition and Consumer Act 2010
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organisation were a body corporate and the absolute owner of
the property or interests:
(i) any property of the organisation or of any branch or part
of the organisation, whether vested in trustees or
however otherwise held;
(ii) any property in which the organisation or any branch or
part of the organisation has a beneficial interest,
whether vested in trustees or however otherwise held;
(iii) any property in which any members of the organisation
or of a branch or part of the organisation have a
beneficial interest in their capacity as members, whether
vested in trustees or however otherwise held; and
(f) if paragraph (e) applies, no process is to be issued or
executed against any property of members or officers of the
organisation or of a branch or part of the organisation except
as provided in that paragraph.
45DD Situations in which boycotts permitted
Dominant purpose of conduct relates to employment matters—
conduct by a person
(1) A person does not contravene, and is not involved in a
contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by
engaging in conduct if the dominant purpose for which the conduct
is engaged in is substantially related to the remuneration,
conditions of employment, hours of work or working conditions of
that person or of another person employed by an employer of that
person.
Dominant purpose of conduct relates to employment matters—
conduct by employee organisation and employees
(2) If:
(a) an employee, or 2 or more employees who are employed by
the same employer, engage in conduct in concert with
another person who is, or with other persons each of whom
is:
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(i) an organisation of employees; or
(ii) an officer of an organisation of employees; and
(b) the conduct is only engaged in by the persons covered by
paragraph (a); and
(c) the dominant purpose for which the conduct is engaged in is
substantially related to the remuneration, conditions of
employment, hours of work or working conditions of the
employee, or any of the employees, covered by
paragraph (a);
the persons covered by paragraph (a) do not contravene, and are
not involved in a contravention of, subsection 45D(1), 45DA(1) or
45DB(1) by engaging in the conduct.
Dominant purpose of conduct relates to environmental protection
or consumer protection
(3) A person does not contravene, and is not involved in a
contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by
engaging in conduct if:
(a) the dominant purpose for which the conduct is engaged in is
substantially related to environmental protection or consumer
protection; and
(b) engaging in the conduct is not industrial action.
Note 1: If an environmental organisation or a consumer organisation is a body
corporate:
(a) it is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption; and
(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.
Note 2: If an environmental organisation or a consumer organisation is not a
body corporate:
(a) it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) (consequently, this exemption does not cover the organisation as such); but
(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.
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Section 45DD
264 Competition and Consumer Act 2010
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Meaning of industrial action—basic definition
(4) In subsection (3), industrial action means:
(a) the performance of work in a manner different from that in
which it is customarily performed, or the adoption of a
practice in relation to work, the result of which is a restriction
or limitation on, or a delay in, the performance of the work,
where:
(i) the terms and conditions of the work are prescribed,
wholly or partly, by a workplace instrument or an order
of an industrial body; or
(ii) the work is performed, or the practice is adopted, in
connection with an industrial dispute; or
(b) a ban, limitation or restriction on the performance of work, or
on acceptance of or offering for work, in accordance with the
terms and conditions prescribed by a workplace instrument or
by an order of an industrial body; or
(c) a ban, limitation or restriction on the performance of work, or
on acceptance of or offering for work, that is adopted in
connection with an industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure
or refusal to perform any work at all by persons who attend
for work.
For this purpose, industrial body and workplace instrument have
the same meanings as in the Fair Work Act 2009.
Meaning of industrial action—further clarification
(5) For the purposes of subsection (3):
(a) conduct is capable of constituting industrial action even if the
conduct relates to part only of the duties that persons are
required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a
course of conduct consisting of a series of industrial actions.
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Section 45DD
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Subsections (1), (2) and (3) do not protect people not covered by
them
(6) In applying subsection 45D(1), 45DA(1) or 45DB(1) to a person
who is not covered by subsection (1), (2) or (3) in respect of certain
conduct, disregard the fact that other persons may be covered by
one of those subsections in respect of the same conduct.
Defences to contravention of subsection 45DB(1)
(7) In a proceeding under this Act in relation to a contravention of
subsection 45DB(1), it is a defence if the defendant proves:
(a) that a notice in respect of the conduct concerned has been
duly given to the Commission under subsection 93(1) and the
Commission has not given a notice in respect of the conduct
under subsection 93(3) or (3A); or
(b) that the dominant purpose for which the defendant engaged
in the conduct concerned was to preserve or further a
business carried on by him or her.
Each person to prove defence
(8) If:
(a) a person engages in conduct in concert with another person;
and
(b) the other person proves a matter specified in paragraph (7)(a)
or (b) in respect of that conduct;
in applying subsection 45DB(1) to the first person, ignore the fact
that the other person has proved that matter.
Note: Section 415 of the Fair Work Act 2009 limits the right to bring actions
under this Act in respect of industrial action that is protected action for
the purposes of that section.
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Section 45E
266 Competition and Consumer Act 2010
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45E Prohibition of contracts, arrangements or understandings
affecting the supply or acquisition of goods or services
Situations to which section applies
(1) This section applies in the following situations:
(a) a supply situation—in this situation, a person (the first
person) has been accustomed, or is under an obligation, to
supply goods or services to another person (the second
person); or
(b) an acquisition situation—in this situation, a person (the first
person) has been accustomed, or is under an obligation, to
acquire goods or services from another person (the second
person).
Despite paragraphs (a) and (b), this section does not apply unless
the first or second person is a corporation or both of them are
corporations.
Note : For the meanings of accustomed to supply and accustomed to
acquire, see subsections (5) and (7).
Prohibition in a supply situation
(2) In a supply situation, the first person must not make a contract or
arrangement, or arrive at an understanding, with an organisation of
employees, an officer of such an organisation or a person acting for
and on behalf of such an officer or organisation, if the proposed
contract, arrangement or understanding contains a provision
included for the purpose, or for purposes including the purpose, of:
(a) preventing or hindering the first person from supplying or
continuing to supply such goods or services to the second
person; or
(b) preventing or hindering the first person from supplying or
continuing to supply such goods or services to the second
person, except subject to a condition:
(i) that is not a condition to which the supply of such goods
or services by the first person to the second person has
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previously been subject because of a provision in a
contract between those persons; and
(ii) that is about the persons to whom, the manner in which
or the terms on which the second person may supply
any goods or services.
Prohibition in an acquisition situation
(3) In an acquisition situation, the first person must not make a
contract or arrangement, or arrive at an understanding, with an
organisation of employees, an officer of such an organisation or a
person acting for and on behalf of such an officer or organisation,
if the proposed contract, arrangement or understanding contains a
provision included for the purpose, or for purposes including the
purpose, of:
(a) preventing or hindering the first person from acquiring or
continuing to acquire such goods or services from the second
person; or
(b) preventing or hindering the first person from acquiring or
continuing to acquire such goods or services from the second
person, except subject to a condition:
(i) that is not a condition to which the acquisition of such
goods or services by the first person from the second
person has previously been subject because of a
provision in a contract between those persons; and
(ii) that is about the persons to whom, the manner in which
or the terms on which the second person may supply
any goods or services.
No contravention if second person gives written consent to written
contract etc.
(4) Subsections (2) and (3) do not apply to a contract, arrangement or
understanding if it is in writing and was made or arrived at with the
written consent of the second person.
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Meaning of accustomed to supply
(5) In this section, a reference to a person who has been accustomed to
supply goods or services to a second person includes (subject to
subsection (6)):
(a) a regular supplier of such goods or services to the second
person; or
(b) the latest supplier of such goods or services to the second
person; or
(c) a person who, at any time during the immediately preceding
3 months, supplied such goods or services to the second
person.
Exception to subsection (5)
(6) If:
(a) goods or services have been supplied by a person to a second
person under a contract between them that required the first
person to supply such goods or services over a period; and
(b) the period has ended; and
(c) after the end of the period, the second person has been
supplied with such goods or services by another person and
has not also been supplied with such goods or services by the
first person;
then, for the purposes of the application of this section in relation
to anything done after the second person has been supplied with
goods or services as mentioned in paragraph (c), the first person is
not to be taken to be a person who has been accustomed to supply
such goods or services to the second person.
Meaning of accustomed to acquire
(7) In this section, a reference to a person who has been accustomed to
acquire goods or services from a second person includes (subject
to subsection (8)):
(a) a regular acquirer of such goods or services from the second
person; or
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(b) a person who, when last acquiring such goods or services,
acquired them from the second person; or
(c) a person who, at any time during the immediately preceding
3 months, acquired such goods or services from the second
person.
Exception to subsection (7)
(8) If:
(a) goods or services have been acquired by a person from a
second person under a contract between them that required
the first person to acquire such goods or services over a
period; and
(b) the period has ended; and
(c) after the end of the period, the second person has refused to
supply such goods or services to the first person;
then, for the purposes of the application of this section in relation
to anything done after the second person has refused to supply
goods or services as mentioned in paragraph (c), the first person is
not to be taken to be a person who has been accustomed to acquire
such goods or services from the second person.
Note: Conduct that would otherwise contravene this section can be
authorised under section 88.
45EA Provisions contravening section 45E not to be given effect
A person must not give effect to a provision of a contract,
arrangement or understanding if, because of the provision, the
making of the contract or arrangement, or the arriving at the
understanding, by the person:
(a) contravened subsection 45E(2) or (3); or
(b) would have contravened subsection 45E(2) or (3) if:
(i) section 45E had been in force when the contract or
arrangement was made, or the understanding was
arrived at; and
(ii) the words “is in writing and” and “written” were not
included in subsection 45E(4).
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Note: Conduct that would otherwise contravene this section can be
authorised under section 88.
45EB Sections 45D to 45EA do not affect operation of other
provisions of Part
Nothing in section 45D, 45DA, 45DB, 45DC, 45DD, 45E or 45EA
affects the operation of any other provision of this Part.
46 Misuse of market power
(1) A corporation that has a substantial degree of power in a market
must not engage in conduct that has the purpose, or has or is likely
to have the effect, of substantially lessening competition in:
(a) that market; or
(b) any other market in which that corporation, or a body
corporate that is related to that corporation:
(i) supplies goods or services, or is likely to supply goods
or services; or
(ii) supplies goods or services, or is likely to supply goods
or services, indirectly through one or more other
persons; or
(c) any other market in which that corporation, or a body
corporate that is related to that corporation:
(i) acquires goods or services, or is likely to acquire goods
or services; or
(ii) acquires goods or services, or is likely to acquire goods
or services, indirectly through one or more other
persons.
(3) A corporation is taken for the purposes of this section to have a
substantial degree of power in a market if:
(a) a body corporate that is related to that corporation has, or 2
or more bodies corporate each of which is related to that
corporation together have, a substantial degree of power in
that market; or
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(b) that corporation and a body corporate that is, or that
corporation and 2 or more bodies corporate each of which is,
related to that corporation, together have a substantial degree
of power in that market.
(4) In determining for the purposes of this section the degree of power
that a body corporate or bodies corporate have in a market:
(a) regard must be had to the extent to which the conduct of the
body corporate or of any of those bodies corporate in that
market is constrained by the conduct of:
(i) competitors, or potential competitors, of the body
corporate or of any of those bodies corporate in that
market; or
(ii) persons to whom or from whom the body corporate or
any of those bodies corporate supplies or acquires goods
or services in that market; and
(b) regard may be had to the power the body corporate or bodies
corporate have in that market that results from:
(i) any contracts, arrangements or understandings that the
body corporate or bodies corporate have with another
party or other parties; or
(ii) any proposed contracts, arrangements or understandings
that the body corporate or bodies corporate may have
with another party or other parties.
(5) For the purposes of this section, a body corporate may have a
substantial degree of power in a market even though:
(a) the body corporate does not substantially control that market;
or
(b) the body corporate does not have absolute freedom from
constraint by the conduct of:
(i) competitors, or potential competitors, of the body
corporate in that market; or
(ii) persons to whom or from whom the body corporate
supplies or acquires goods or services in that market.
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(6) Subsections (4) and (5) do not limit the matters to which regard
may be had in determining, for the purposes of this section, the
degree of power that a body corporate or bodies corporate has or
have in a market.
(7) To avoid doubt, for the purposes of this section, more than one
corporation may have a substantial degree of power in a market.
(8) In this section:
(a) a reference to power is a reference to market power; and
(b) a reference to a market is a reference to a market for goods or
services; and
(c) a reference to power in relation to, or to conduct in, a 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.
46A Misuse of market power—corporation with substantial degree
of power in trans-Tasman market
(1) In this section:
conduct, in relation to a market, means conduct in the market
either as a supplier or acquirer of goods or services in the market.
impact market means a market in Australia that is not a market
exclusively for services.
market power, in relation to a market, means market power in the
market either as a supplier or acquirer of goods or services in the
market.
trans-Tasman market means a market in Australia, New Zealand
or Australia and New Zealand for goods or services.
(2) A corporation that has a substantial degree of market power in a
trans-Tasman market must not take advantage of that power for the
purpose of:
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(a) eliminating or substantially damaging a competitor of the
corporation, or of a body corporate that is related to the
corporation, in an impact market; or
(b) preventing the entry of a person into an impact market; or
(c) deterring or preventing a person from engaging in
competitive conduct in an impact market.
(2A) For the purposes of subsection (2):
(a) the reference in paragraph (2)(a) to a competitor includes a
reference to competitors generally, or to a particular class or
classes of competitors; and
(b) the reference in paragraphs (2)(b) and (c) to a person includes
a reference to persons generally, or to a particular class or
classes of persons.
(3) If:
(a) a body corporate that is related to a corporation has, or 2 or
more bodies corporate each of which is related to the one
corporation together have, a substantial degree of market
power in a trans-Tasman market; or
(b) a corporation and a body corporate that is, or a corporation
and 2 or more bodies corporate each of which is, related to
the corporation, together have a substantial degree of market
power in a trans-Tasman market;
the corporation is taken, for the purposes of this section, to have a
substantial degree of market power in the trans-Tasman market.
(4) In determining for the purposes of this section the degree of market
power that a body corporate or bodies corporate has or have in a
trans-Tasman market, the Federal Court is to have regard to the
extent to which the conduct of the body corporate or of any of
those bodies corporate, in the trans-Tasman market is constrained
by the conduct of:
(a) competitors, or potential competitors, of the body corporate,
or of any of those bodies corporate, in the trans-Tasman
market; or
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(b) persons to whom or from whom the body corporate, or any of
those bodies corporate, supplies or acquires goods or services
in the trans-Tasman market.
(5) Without extending by implication the meaning of subsection (2), a
corporation is not taken to contravene that subsection merely
because it acquires plant or equipment.
(6) This section does not prevent a corporation from engaging in
conduct that does not constitute a contravention of any of the
following sections, namely, sections 45, 47, 49 and 50, because an
authorisation is in force or because of the operation of
subsection 45(8A) or section 93.
(7) Without limiting the manner in which the purpose of a person may
be established for the purposes of any other provision of this Act, a
corporation may be taken to have taken advantage of its market
power for a purpose referred to in subsection (2) even though, after
all the evidence has been considered, the existence of that purpose
is ascertainable only by inference from the conduct of the
corporation or of any other person or from other relevant
circumstances.
(8) It is the intention of the Parliament that this section, and the
provisions of Parts VI and XII so far as they relate to a
contravention of this section, should apply to New Zealand and
New Zealand Crown corporations to the same extent, and in the
same way, as they respectively apply under section 2A to the
Commonwealth and authorities of the Commonwealth.
(9) Subsection (8) has effect despite section 9 of the Foreign States
Immunities Act 1985.
46B No immunity from jurisdiction in relation to certain New
Zealand laws
(1) It is hereby declared, for the avoidance of doubt, that the
Commonwealth, the States, the Australian Capital Territory and the
Northern Territory, and their authorities, are not immune, and may
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not claim immunity, from the jurisdiction of the courts of Australia
and New Zealand in relation to matters arising under sections 36A,
98H and 99A of the Commerce Act 1986 of New Zealand.
(2) This section applies in and outside Australia.
47 Exclusive dealing
(1) Subject to this section, a corporation shall not, in trade or
commerce, engage in the practice of exclusive dealing.
(2) A corporation engages in the practice of exclusive dealing if the
corporation:
(a) supplies, or offers to supply, goods or services;
(b) supplies, or offers to supply, goods or services at a particular
price; or
(c) gives or allows, or offers to give or allow, a discount,
allowance, rebate or credit in relation to the supply or
proposed supply of goods or services by the corporation;
on the condition that the person to whom the corporation supplies,
or offers or proposes to supply, the goods or services or, if that
person is a body corporate, a body corporate related to that body
corporate:
(d) will not, or will not except to a limited extent, acquire goods
or services, or goods or services of a particular kind or
description, directly or indirectly from a competitor of the
corporation or from a competitor of a body corporate related
to the corporation;
(e) will not, or will not except to a limited extent, re-supply
goods or services, or goods or services of a particular kind or
description, acquired directly or indirectly from a competitor
of the corporation or from a competitor of a body corporate
related to the corporation; or
(f) in the case where the corporation supplies or would supply
goods or services, will not re-supply the goods or services to
any person, or will not, or will not except to a limited extent,
re-supply the goods or services:
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(i) to particular persons or classes of persons or to persons
other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places
other than particular places or classes of places.
(3) A corporation also engages in the practice of exclusive dealing if
the corporation refuses:
(a) to supply goods or services to a person;
(b) to supply goods or services to a person at a particular price;
or
(c) to give or allow a discount, allowance, rebate or credit in
relation to the supply or proposed supply of goods or services
to a person;
for the reason that the person or, if the person is a body corporate, a
body corporate related to that body corporate:
(d) has acquired, or has not agreed not to acquire, goods or
services, or goods or services of a particular kind or
description, directly or indirectly from a competitor of the
corporation or from a competitor of a body corporate related
to the corporation;
(e) has re-supplied, or has not agreed not to re-supply, goods or
services, or goods or services of a particular kind or
description, acquired directly or indirectly from a competitor
of the corporation or from a competitor of a body corporate
related to the corporation; or
(f) has re-supplied, or has not agreed not to re-supply, goods or
services, or goods or services of a particular kind or
description, acquired from the corporation to any person, or
has re-supplied, or has not agreed not to re-supply, goods or
services, or goods or services of a particular kind or
description, acquired from the corporation:
(i) to particular persons or classes of persons or to persons
other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places
other than particular places or classes of places.
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(4) A corporation also engages in the practice of exclusive dealing if
the corporation:
(a) acquires, or offers to acquire, goods or services; or
(b) acquires, or offers to acquire, goods or services at a particular
price;
on the condition that the person from whom the corporation
acquires or offers to acquire the goods or services or, if that person
is a body corporate, a body corporate related to that body corporate
will not supply goods or services, or goods or services of a
particular kind or description, to any person, or will not, or will not
except to a limited extent, supply goods or services, or goods or
services of a particular kind or description:
(c) to particular persons or classes of persons or to persons other
than particular persons or classes of persons; or
(d) in particular places or classes of places or in places other than
particular places or classes of places.
(5) A corporation also engages in the practice of exclusive dealing if
the corporation refuses:
(a) to acquire goods or services from a person; or
(b) to acquire goods or services at a particular price from a
person;
for the reason that the person or, if the person is a body corporate, a
body corporate related to that body corporate has supplied, or has
not agreed not to supply, goods or services, or goods or services of
a particular kind or description:
(c) to particular persons or classes of persons or to persons other
than particular persons or classes of persons; or
(d) in particular places or classes of places or in places other than
particular places or classes of places.
(6) A corporation also engages in the practice of exclusive dealing if
the corporation:
(a) supplies, or offers to supply, goods or services;
(b) supplies, or offers to supply, goods or services at a particular
price; or
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(c) gives or allows, or offers to give or allow, a discount,
allowance, rebate or credit in relation to the supply or
proposed supply of goods or services by the corporation;
on the condition that the person to whom the corporation supplies
or offers or proposes to supply the goods or services or, if that
person is a body corporate, a body corporate related to that body
corporate will acquire goods or services of a particular kind or
description directly or indirectly from another person not being a
body corporate related to the corporation.
(7) A corporation also engages in the practice of exclusive dealing if
the corporation refuses:
(a) to supply goods or services to a person;
(b) to supply goods or services at a particular price to a person;
or
(c) to give or allow a discount, allowance, rebate or credit in
relation to the supply of goods or services to a person;
for the reason that the person or, if the person is a body corporate, a
body corporate related to that body corporate has not acquired, or
has not agreed to acquire, goods or services of a particular kind or
description directly or indirectly from another person not being a
body corporate related to the corporation.
(8) A corporation also engages in the practice of exclusive dealing if
the corporation grants or renews, or makes it known that it will not
exercise a power or right to terminate, a lease of, or a licence in
respect of, land or a building or part of a building on the condition
that another party to the lease or licence or, if that other party is a
body corporate, a body corporate related to that body corporate:
(a) will not, or will not except to a limited extent:
(i) acquire goods or services, or goods or services of a
particular kind or description, directly or indirectly from
a competitor of the corporation or from a competitor of
a body corporate related to the corporation; or
(ii) re-supply goods or services, or goods or services of a
particular kind or description, acquired directly or
indirectly from a competitor of the corporation or from
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a competitor of a body corporate related to the
corporation;
(b) will not supply goods or services, or goods or services of a
particular kind or description, to any person, or will not, or
will not except to a limited extent, supply goods or services,
or goods or services of a particular kind or description:
(i) to particular persons or classes of persons or to persons
other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places
other than particular places or classes of places; or
(c) will acquire goods or services of a particular kind or
description directly or indirectly from another person not
being a body corporate related to the corporation.
(9) A corporation also engages in the practice of exclusive dealing if
the corporation refuses to grant or renew, or exercises a power or
right to terminate, a lease of, or a licence in respect of, land or a
building or part of a building for the reason that another party to
the lease or licence or, if that other party is a body corporate, a
body corporate related to that body corporate:
(a) has acquired, or has not agreed not to acquire, goods or
services, or goods or services of a particular kind or
description, directly or indirectly from a competitor of the
corporation or from a competitor of a body corporate related
to the corporation;
(b) has re-supplied, or has not agreed not to re-supply, goods or
services, or goods or services of a particular kind or
description, acquired directly or indirectly from a competitor
of the corporation or from a competitor of a body corporate
related to the corporation;
(c) has supplied goods or services, or goods or services of a
particular kind or description:
(i) to particular persons or classes of persons or to persons
other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places
other than particular places or classes of places; or
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(d) has not acquired, or has not agreed to acquire, goods or
services of a particular kind or description directly or
indirectly from another person not being a body corporate
related to the corporation.
(10) Subsection (1) does not apply to the practice of exclusive dealing
by a corporation unless:
(a) the engaging by the corporation in the conduct that
constitutes the practice of exclusive dealing has the purpose,
or has or is likely to have the effect, of substantially lessening
competition; or
(b) the engaging by the corporation in the conduct that
constitutes the practice of exclusive dealing, and the
engaging by the corporation, or by a body corporate related
to the corporation, in other conduct of the same or a similar
kind, together have or are likely to have the effect of
substantially lessening competition.
(11) Subsections (8) and (9) do not apply with respect to:
(a) conduct engaged in:
(i) by a registered charity; and
(ii) for or in accordance with the purposes or objects of that
registered charity; or
(b) conduct engaged in in pursuance of a legally enforceable
requirement made by a registered charity, being a
requirement made for or in accordance with the purposes or
objects of that registered charity.
(12) Subsection (1) does not apply with respect to any conduct engaged
in by a body corporate by way of restricting dealings by another
body corporate if those bodies corporate are related to each other.
(13) In this section:
(a) a reference to a condition shall be read as a reference to any
condition, whether direct or indirect and whether having
legal or equitable force or not, and includes a reference to a
condition the existence or nature of which is ascertainable
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only by inference from the conduct of persons or from other
relevant circumstances;
(b) a reference to competition, in relation to conduct to which a
provision of this section other than subsection (8) or (9)
applies, shall be read as a reference to competition in any
market in which:
(i) the corporation engaging in the conduct or any body
corporate related to that corporation; or
(ii) any person whose business dealings are restricted,
limited or otherwise circumscribed by the conduct or, if
that person is a body corporate, any body corporate
related to that body corporate;
supplies or acquires, or is likely to supply or acquire, goods
or services or would, but for the conduct, supply or acquire,
or be likely to supply or acquire, goods or services; and
(c) a reference to competition, in relation to conduct to which
subsection (8) or (9) applies, shall be read as a reference to
competition in any market in which the corporation engaging
in the conduct or any other corporation the business dealings
of which are restricted, limited or otherwise circumscribed by
the conduct, or any body corporate related to either of those
corporations, supplies or acquires, or is likely to supply or
acquire, goods or services or would, but for the conduct,
supply or acquire, or be likely to supply or acquire, goods or
services.
48 Resale price maintenance
(1) A corporation or other person shall not engage in the practice of
resale price maintenance.
(2) Subsection (1) does not apply to a corporation or other person
engaging in conduct that constitutes the practice of resale price
maintenance if:
(a) the corporation or other person has given the Commission a
notice under subsection 93(1) describing the conduct; and
(b) the notice is in force under section 93.
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49 Dual listed company arrangements that affect competition
(1) A corporation must not:
(a) make a dual listed company arrangement if a provision of the
proposed arrangement has the purpose, or would have or be
likely to have the effect, of substantially lessening
competition; or
(b) give effect to a provision of a dual listed company
arrangement if that provision has the purpose, or has or is
likely to have the effect, of substantially lessening
competition.
Note: Conduct that would otherwise contravene this section can be
authorised under section 88.
Exception
(2) The making by a corporation of a dual listed company arrangement
that contains a provision that has the purpose, or would have or be
likely to have the effect, of substantially lessening competition
does not contravene this section if:
(a) the arrangement is subject to a condition that the provision
will not come into force unless and until the corporation is
granted an authorisation to give effect to the provision; and
(b) the corporation applies for the grant of such an authorisation
within 14 days after the arrangement is made.
However, this subsection does not permit the corporation to give
effect to such a provision.
Meaning of competition
(3) For the purposes of this section, competition, in relation to a
provision of a dual listed company arrangement or of a proposed
dual listed company arrangement, means competition in any
market in which:
(a) a corporation that is a party to the arrangement or would be a
party to the proposed arrangement; or
(b) any body corporate related to such a corporation;
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supplies or acquires, or is likely to supply or acquire, goods or
services or would, apart from the provision, supply or acquire, or
be likely to supply or acquire, goods or services.
(4) For the purposes of the application of this section in relation to a
particular corporation, a provision of a dual listed company
arrangement or of a proposed dual listed company arrangement is
taken to have, or to be likely to have, the effect of substantially
lessening competition if that provision and any one or more of the
following provisions:
(a) the other provisions of that arrangement or proposed
arrangement;
(b) the provisions of any other contract, arrangement or
understanding or proposed contract, arrangement or
understanding to which the corporation or a body corporate
related to the corporation is or would be a party;
together have or are likely to have that effect.
50 Prohibition of acquisitions that would result in a substantial
lessening of competition
(1) A corporation must not directly or indirectly:
(a) acquire shares in the capital of a body corporate; or
(b) acquire any assets of a person;
if the acquisition would have the effect, or be likely to have the
effect, of substantially lessening competition in any market.
Note: The corporation will not be prevented from making the acquisition if
the corporation is granted an authorisation for the acquisition under
section 88.
(2) A person must not directly or indirectly:
(a) acquire shares in the capital of a corporation; or
(b) acquire any assets of a corporation;
if the acquisition would have the effect, or be likely to have the
effect, of substantially lessening competition in any market.
Note: The person will not be prevented from making the acquisition if the
person is granted an authorisation for the acquisition under section 88.
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(3) Without limiting the matters that may be taken into account for the
purposes of subsections (1) and (2) in determining whether the
acquisition would have the effect, or be likely to have the effect, of
substantially lessening competition in a market, the following
matters must be taken into account:
(a) the actual and potential level of import competition in the
market;
(b) the height of barriers to entry to the market;
(c) the level of concentration in the market;
(d) the degree of countervailing power in the market;
(e) the likelihood that the acquisition would result in the acquirer
being able to significantly and sustainably increase prices or
profit margins;
(f) the extent to which substitutes are available in the market or
are likely to be available in the market;
(g) the dynamic characteristics of the market, including growth,
innovation and product differentiation;
(h) the likelihood that the acquisition would result in the removal
from the market of a vigorous and effective competitor;
(i) the nature and extent of vertical integration in the market.
(4) Where:
(a) a person has entered into a contract to acquire shares in the
capital of a body corporate or assets of a person;
(b) the contract is subject to a condition that the provisions of the
contract relating to the acquisition will not come into force
unless and until the person has been granted an authorization
to acquire the shares or assets; and
(c) the person applied for the grant of such an authorization
before the expiration of 14 days after the contract was
entered into;
the acquisition of the shares or assets shall not be regarded for the
purposes of this Act as having taken place in pursuance of the
contract before:
(d) the application for the authorization is disposed of; or
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(e) the contract ceases to be subject to the condition;
whichever first happens.
(5A) For the purposes of subsection (4), an application for an
authorisation is taken to be disposed of 14 days after the day the
Tribunal makes a determination on the application.
(6) In this section:
market means a market for goods or services in:
(a) Australia; or
(b) a State; or
(c) a Territory; or
(d) a region of Australia.
50A Acquisitions that occur outside Australia
(1) Where a person acquires, outside Australia, otherwise than by
reason of the application of paragraph (8)(b), a controlling interest
(the first controlling interest) in any body corporate and, by
reason, but not necessarily by reason only, of the application of
paragraph (8)(b) in relation to the first controlling interest, obtains
a controlling interest (the second controlling interest) in a
corporation or each of 2 or more corporations, the Tribunal may,
on the application of the Minister, the Commission or any other
person, if the Tribunal is satisfied that:
(a) the person’s obtaining the second controlling interest would
have the effect, or be likely to have the effect, of substantially
lessening competition in a market; and
(b) the person’s obtaining the second controlling interest would
not, in all the circumstances, result, or be likely to result, in
such a benefit to the public that the obtaining should be
disregarded for the purposes of this section;
make a declaration accordingly.
(1A) Without limiting the matters that may be taken into account in
determining whether the obtaining of the second controlling
interest would have the effect, or be likely to have the effect, of
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substantially lessening competition in a market, the matters
mentioned in subsection 50(3) must be taken into account for that
purpose.
(1B) In determining whether the obtaining of the second controlling
interest would result, or be likely to result, in such a benefit to the
public that it should be disregarded for the purposes of this section:
(a) the Tribunal must regard the following as benefits to the
public (in addition to any other benefits to the public that
may exist apart from this paragraph):
(i) a significant increase in the real value of exports;
(ii) a significant substitution of domestic products for
imported goods; and
(b) without limiting the matters that may be taken into account,
the Tribunal must take into account all other relevant matters
that relate to the international competitiveness of any
Australian industry.
(2) Where an application under subsection (1) is made:
(a) the Tribunal shall give to:
(i) each corporation in relation to which the application
relates; and
(ii) the Minister and the Commission;
a notice in writing stating that the application has been made;
and
(b) the persons referred to in paragraph (a) and, if the application
was made by another person, that other person are entitled to
appear, or be represented, at the proceedings following the
application.
(3) An application under subsection (1) may be made at any time
within 12 months after the date of the acquisition referred to in that
subsection in relation to which the application is made.
(4) The Tribunal may, on the application of the Minister, the
Commission or any other person, or of its own motion, revoke a
declaration made under subsection (1).
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(5) The Tribunal shall state in writing its reasons for making, refusing
to make or revoking a declaration under subsection (1).
(6) After the end of 6 months after a declaration is made under
subsection (1) in relation to the obtaining of a controlling interest
in a corporation or 2 or more corporations by a person or, if the
person, before the end of that period of 6 months, makes an
application to a presidential member for an extension of that
period, after the end of such further period (not exceeding 6
months) as the presidential member allows, the corporation or each
of the corporations, as the case may be, shall not, while the
declaration remains in force, carry on business in the market to
which the declaration relates.
(7) Subsection (1) does not apply in relation to an acquisition referred
to in that subsection if section 50 applies in relation to that
acquisition.
(8) For the purposes of this section:
(a) a person shall be taken to hold a controlling interest in a body
corporate if the body corporate is, or, if the person were a
body corporate, would be, a subsidiary of the person
(otherwise than by reason of the application of
paragraph 4A(1)(b)); and
(b) where a person holds a controlling interest (including a
controlling interest held by virtue of another application or
other applications of this paragraph) in a body corporate and
that body corporate:
(i) controls the composition of the board of directors of
another body corporate;
(ii) is in a position to cast, or control the casting of, any
votes that might be cast at a general meeting of another
body corporate; or
(iii) holds shares in the capital of another body corporate;
the person shall be deemed (but not to the exclusion of any
other person) to control the composition of that board, to be
in a position to cast, or control the casting of, those votes or
to hold those shares, as the case may be.
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(9) In this section:
market means a substantial market for goods or services in
Australia, in a State or in a Territory.
51 Exceptions
(1) In deciding whether a person has contravened this Part, the
following must be disregarded:
(a) anything specified in, and specifically authorised by:
(i) an Act (not including an Act relating to patents, trade
marks, designs or copyrights); or
(ii) regulations made under such an Act;
(b) anything done in a State, if the thing is specified in, and
specifically authorised by:
(i) an Act passed by the Parliament of that State; or
(ii) regulations made under such an Act;
(c) anything done in the Australian Capital Territory, if the thing
is specified in, and specifically authorised by:
(i) an enactment as defined in section 3 of the Australian
Capital Territory (Self-Government) Act 1988; or
(ii) regulations made under such an enactment;
(d) anything done in the Northern Territory, if the thing is
specified in, and specifically authorised by:
(i) an enactment as defined in section 4 of the Northern
Territory (Self-Government) Act 1978; or
(ii) regulations made under such an enactment;
(e) anything done in another Territory, if the thing is specified
in, and specifically authorised by:
(i) an Ordinance of that Territory; or
(ii) regulations made under such an Ordinance.
(1A) Without limiting subsection (1), conduct is taken to be specified in,
and authorised by, a law for the purposes of that subsection if:
(a) a licence or other instrument issued or made under the law
specifies one or both of the following:
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(i) the person authorised to engage in the conduct;
(ii) the place where the conduct is to occur; and
(b) the law specifies the attributes of the conduct except those
mentioned in paragraph (a).
For this purpose, law means an Act, State Act, enactment or
Ordinance.
(1B) Subsections (1) and (1A) apply regardless of when the Acts, State
Acts, enactments, Ordinances, regulations or instruments referred
to in those subsections were passed, made or issued.
(1C) The operation of subsection (1) is subject to the following
limitations:
(a) in order for something to be regarded as specifically
authorised for the purposes of subsection (1), the authorising
provision must expressly refer to this Act;
(b) subparagraph (1)(a)(ii) and paragraphs (1)(b), (c), (d) and (e)
do not apply in deciding whether a person has contravened
section 50 or 50A;
(c) regulations referred to in subparagraph (1)(a)(ii), (b)(ii),
(c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a
particular thing to be disregarded if the thing happens more
than 2 years after those regulations came into operation;
(d) regulations referred to in subparagraph (1)(a)(ii), (b)(ii),
(c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a
particular thing to be disregarded to the extent that the
regulations are the same in substance as other regulations:
(i) referred to in the subparagraph concerned; and
(ii) that came into operation more than 2 years before the
particular thing happened;
(e) paragraphs (1)(b) to (d) have no effect in relation to things
authorised by a law of a State or Territory unless:
(i) at the time of the alleged contravention referred to in
subsection (1) the State or Territory was a
fully-participating jurisdiction and a party to the
Competition Principles Agreement; or
(ii) all of the following conditions are met:
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(A) the Minister published a notice in the Gazette
under subsection 150K(1) in relation to the
State or Territory, or the State or Territory
ceased to be a party to the Competition
Principles Agreement, within 12 months before
the alleged contravention referred to in
subsection (1);
(B) the thing authorised was the making of a
contract, or an action under a contract, that
existed immediately before the Minister
published the notice or the State or Territory
ceased to be a party;
(C) the law authorising the thing was in force
immediately before the Minister published the
notice or the State or Territory ceased to be a
party;
(f) subsection (1) does not apply to things that are covered by
paragraph (1)(b), (c), (d) or (e) to the extent that those things
are prescribed by regulations made under this Act for the
purposes of this paragraph.
(2) In determining whether a contravention of a provision of this Part
other than section 45D, 45DA, 45DB, 45E, 45EA or 48 has been
committed, regard shall not be had:
(a) to any act done, or concerted practice, to the extent that it
relates to the remuneration, conditions of employment, hours
of work or working conditions of employees; or
(aa) to:
(i) the making of a contract or arrangement, or the entering
into of an understanding; or
(ii) any provision of a contract, arrangement or
understanding;
to the extent that the contract, arrangement, understanding or
provision relates to the remuneration, conditions of
employment, hours of work or working conditions of
employees; or
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(b) to any provision of a contract of service or of a contract for
the provision of services, being a provision under which a
person, not being a body corporate, agrees to accept
restrictions as to the work, whether as an employee or
otherwise, in which he or she may engage during, or after the
termination of, the contract; or
(c) to:
(i) any provision of a contract, arrangement or
understanding; or
(ii) any concerted practice;
to the extent that the provision or concerted practice obliges a
person to comply with or apply standards of dimension,
design, quality or performance prepared or approved by
Standards Australia or a prescribed association or body; or
(d) to:
(i) any provision of a contract, arrangement or
understanding; or
(ii) any concerted practice;
between partners none of whom is a body corporate, to the
extent that the provision or concerted practice relates to:
(iii) the terms of the partnership; or
(iv) the conduct of the partnership business; or
(v) competition between the partnership and a party to the
contract, arrangement, understanding or concerted
practice, while the party is, or after the party ceases to
be, a partner; or
(e) in the case of a contract for the sale of a business or of shares
in the capital of a body corporate carrying on a business—to
any provision of the contract that is solely for the protection
of the purchaser in respect of the goodwill of the business; or
(g) to:
(i) any provision of a contract, arrangement or
understanding; or
(ii) any concerted practice;
to the extent that the provision or concerted practice relates
exclusively to:
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(iii) the export of goods from Australia; or
(iv) the supply of services outside Australia;
if full and accurate particulars of the provision or concerted
practice were given to the Commission no more than 14 days
after the day the contract or arrangement was made or the
understanding or concerted practice was entered into, or
before 8 September 1976, whichever was the later.
(2AA) For the purposes of paragraph (2)(g), the particulars to be given to
the Commission:
(a) need not include particulars of prices for the goods or
services; but
(b) must include particulars of any method of fixing, controlling
or maintaining such prices.
(2A) In determining whether a contravention of a provision of this Part
other than section 48 has been committed, regard shall not be had
to any acts done, otherwise than in the course of trade or
commerce, in concert by ultimate users or consumers of goods or
services against the suppliers of those goods or services.
(3) A contravention of a provision of this Part other than section 46,
46A or 48 shall not be taken to have been committed by reason of:
(a) the imposing of, or giving effect to, a condition of:
(i) a licence granted by the proprietor, licensee or owner of
a patent, of a registered design, of a copyright or of EL
rights within the meaning of the Circuit Layouts Act
1989, or by a person who has applied for a patent or for
the registration of a design; or
(ii) an assignment of a patent, of a registered design, of a
copyright or of such EL rights, or of the right to apply
for a patent or for the registration of a design;
to the extent that the condition relates to:
(iii) the invention to which the patent or application for a
patent relates or articles made by the use of that
invention;
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(iv) goods in respect of which the design is, or is proposed
to be, registered and to which it is applied;
(v) the work or other subject matter in which the copyright
subsists; or
(vi) the eligible layout in which the EL rights subsist;
(b) the inclusion in a contract, arrangement or understanding
authorizing the use of a certification trade mark of a
provision in accordance with rules applicable under Part XI
of the Trade Marks Act 1955, or the giving effect to such a
provision; or
(c) the inclusion in a contract, arrangement or understanding
between:
(i) the registered proprietor of a trade mark other than a
certification trade mark; and
(ii) a person registered as a registered user of that trade
mark under Part IX of the Trade Marks Act 1955 or a
person authorized by the contract to use the trade mark
subject to his or her becoming registered as such a
registered user;
of a provision to the extent that it relates to the kinds,
qualities or standards of goods bearing the mark that may be
produced or supplied, or the giving effect to the provision to
that extent.
(5) In the application of subsection (2A) to section 46A, the reference
in that subsection to trade or commerce includes trade or
commerce within New Zealand.
51AAA Concurrent operation of State and Territory laws
It is the Parliament’s intention that a law of a State or Territory
should be able to operate concurrently with this Part unless the law
is directly inconsistent with this Part.
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Division 1 Preliminary
Section 51ACA
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Part IVB—Industry codes
Division 1—Preliminary
51ACA Definitions
(1) In this Part:
applicable industry code, in relation to a corporation that is a
participant in an industry, means:
(a) the prescribed provisions of any mandatory industry code
relating to the industry; and
(b) the prescribed provisions of any voluntary industry code that
binds the corporation.
consumer, in relation to an industry, means a person to whom
goods or services are or may be supplied by participants in the
industry.
industry code means a code regulating the conduct of participants
in an industry towards other participants in the industry or towards
consumers in the industry.
infringement notice means an infringement notice issued under
subsection 51ACD(1).
infringement notice compliance period: see subsection 51ACI(1).
mandatory industry code means an industry code that is declared
by regulations under section 51AE to be mandatory.
related contravention: a person engages in conduct that constitutes
a related contravention of an applicable industry code, if the
person:
(a) aids, abets, counsels or procures a corporation to contravene
the applicable industry code; or
(b) induces, whether by threats or promises or otherwise, a
corporation to contravene the applicable industry code; or
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(c) is in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention by a corporation of the applicable
industry code; or
(d) conspires with others to effect a contravention by a
corporation of the applicable industry code.
voluntary industry code means an industry code that is declared by
regulations under section 51AE to be voluntary.
(2) For the purposes of this Part, a voluntary industry code binds a
person who has agreed, as prescribed, to be bound by the code and
who has not subsequently ceased, as prescribed, to be bound by it.
(3) To avoid doubt, it is declared that:
(a) franchising is an industry for the purposes of this Part; and
(b) franchisors and franchisees are participants in the industry of
franchising, whether or not they are also participants in
another industry.
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Division 2 Contravention of industry codes
Section 51ACB
296 Competition and Consumer Act 2010
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Division 2—Contravention of industry codes
51ACB Contravention of industry codes
A corporation must not, in trade or commerce, contravene an
applicable industry code.
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Section 51ACC
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Division 2A—Infringement notices
51ACC 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 a
civil penalty provision of an industry code as an alternative to
proceedings for an order under section 76 for the payment of a
pecuniary penalty.
(2) This Division does not:
(a) require an infringement notice to be issued to a person for an
alleged contravention of a civil penalty provision of an
industry code; or
(b) affect the liability of a person to proceedings under
section 76 in relation to an alleged contravention of a civil
penalty provision of an industry code if:
(i) an infringement notice is not issued to the person for the
contravention; or
(ii) an infringement notice issued to the person for the
contravention is withdrawn under section 51ACJ; 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.
51ACD Issuing an infringement notice
(1) If the Commission has reasonable grounds to believe that a person
has contravened a civil penalty provision of an industry code, the
Commission may issue an infringement notice to the person.
(2) The Commission must not issue more than one infringement notice
to the person for the same alleged contravention of the civil penalty
provision of the industry code.
(3) The infringement notice does not have any effect if the notice:
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Section 51ACE
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(a) is issued more than 12 months after the day that the
contravention of the civil penalty provision of the industry
code is alleged to have occurred; or
(b) relates to more than one alleged contravention of a civil
penalty provision of the industry code by the person.
51ACE Matters to be included in an infringement notice
(1) 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 state how it may be contacted;
and
(e) give details of the alleged contravention, including:
(i) the day of the alleged contravention; and
(ii) the civil penalty provision of the industry code that was
allegedly contravened; and
(f) state the maximum pecuniary penalty that the court could
order the person to pay under section 76 for the alleged
contravention; and
(g) specify the penalty that is payable in relation to the alleged
contravention; and
(h) state that the penalty is payable within the infringement
notice compliance period for the notice; and
(i) state that the penalty is payable to the Commission on behalf
of the Commonwealth; and
(j) explain how payment of the penalty is to be made; and
(k) explain the effect of sections 51ACG, 51ACH, 51ACI and
51ACJ.
51ACF 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 civil
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penalty provision of an industry code, must be a penalty equal to
the following amount:
(a) if the person is a body corporate—50 penalty units;
(b) otherwise—10 penalty units.
51ACG Effect of compliance with an infringement notice
(1) This section applies if:
(a) an infringement notice for an alleged contravention of a civil
penalty provision of an industry code 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 51ACJ.
(2) The person is not, merely because of the payment, regarded as
having contravened the civil penalty provision of the industry code.
(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 the alleged contravention of the civil
penalty provision of the industry code.
51ACH Effect of failure to comply with an infringement notice
If:
(a) an infringement notice for an alleged contravention of a civil
penalty provision of an industry code 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 51ACJ;
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Section 51ACI
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the person is liable to proceedings under section 76 in relation to
the alleged contravention of the civil penalty provision of the
industry code.
51ACI 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 that the infringement notice is issued by the
Commission.
(2) The Commission may extend, by notice in writing, the
infringement notice compliance period for the infringement 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.
(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.
51ACJ Withdrawal of an infringement notice
Representations to the Commission
(1) A person to whom an infringement notice has been issued for an
alleged contravention of a civil penalty provision of an industry
code may make written representations to the Commission seeking
the withdrawal of the infringement notice.
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(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
(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 section 76 may be started or
continued against the person in relation to the alleged
contravention of the civil penalty provision of the industry
code.
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.
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Division 2A Infringement notices
Section 51ACJ
302 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
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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Public warning notices Division 3
Section 51ADA
Competition and Consumer Act 2010 303
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Division 3—Public warning notices
51ADA Commission may issue a public warning notice
Commission may issue a public warning notice
(1) The Commission may issue to the public a written notice
containing a warning about the conduct of a person if:
(a) the Commission has reasonable grounds to suspect that the
conduct may constitute:
(i) if the person is a corporation—a contravention of an
applicable industry code by the corporation; or
(ii) in any case—a related contravention of an applicable
industry code by the person; and
(b) the Commission is satisfied that one or more persons has
suffered, or is likely to suffer, detriment as a result of the
conduct; and
(c) the Commission is satisfied that it is in the public interest to
issue the notice.
Notice is not a legislative instrument
(2) A notice issued under subsection (1) is not a legislative instrument.
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Part IVB Industry codes
Division 4 Orders to redress loss or damage suffered by non-parties etc.
Section 51ADB
304 Competition and Consumer Act 2010
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Division 4—Orders to redress loss or damage suffered by
non-parties etc.
51ADB Orders to redress loss or damage suffered by non-parties
etc.
Orders
(1) If:
(a) a person engaged in conduct (the contravening conduct)
that:
(i) if the person was a corporation—constituted a
contravention of an applicable industry code; or
(ii) in any case—constituted a related contravention of an
applicable industry code; and
(b) the contravening conduct caused, or is likely to cause, a class
of persons to suffer loss or damage; and
(c) the class includes persons (non-parties) who are not, or have
not been, parties to a proceeding (an enforcement
proceeding) instituted under Part VI in relation to the
contravening conduct;
any court having jurisdiction in the matter may, on the application
of the Commission, make such order or orders (other than an award
of damages) as the court thinks appropriate against a person
referred to in subsection (2) of this section.
Note: The orders that the court may make include all or any of the orders set
out in section 51ADC.
(2) An order under subsection (1) may be made against:
(a) the person mentioned in paragraph (1)(a); or
(b) a person involved in the contravening conduct.
(3) A court must not make an order under subsection (1) unless the
court considers that the order will:
(a) redress, in whole or in part, the loss or damage suffered by
the non-parties in relation to the contravening conduct; or
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Orders to redress loss or damage suffered by non-parties etc. Division 4
Section 51ADB
Competition and Consumer Act 2010 305
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(b) prevent or reduce the loss or damage suffered, or likely to be
suffered, by the non-parties in relation to the contravening
conduct.
Application for orders
(4) An application may be made under subsection (1) even if an
enforcement proceeding in relation to the contravening conduct has
not been instituted.
(5) An application under subsection (1) may be made at any time
within 6 years after the day on which the cause of action that
relates to the contravening conduct accrues.
Determining whether to make an order
(6) In determining whether to make an order under subsection (1)
against a person referred to in subsection (2), a court may have
regard to the conduct of:
(a) the person; and
(b) the non-parties;
in relation to the contravening conduct, since the contravention
occurred.
(7) In determining whether to make an order under subsection (1), a
court need not make a finding about either of the following
matters:
(a) which persons are non-parties in relation to the contravening
conduct;
(b) the nature of the loss or damage suffered, or likely to be
suffered, by such persons.
When a non-party is bound by an order etc.
(8) If:
(a) an order is made under subsection (1) against a person; and
(b) the loss or damage suffered, or likely to be suffered, by a
non-party in relation to the contravening conduct to which
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Division 4 Orders to redress loss or damage suffered by non-parties etc.
Section 51ADC
306 Competition and Consumer Act 2010
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the order relates has been redressed, prevented or reduced in
accordance with the order; and
(c) the non-party has accepted the redress, prevention or
reduction;
then:
(d) the non-party is bound by the order; and
(e) any other order made under subsection (1) that relates to that
loss or damage has no effect in relation to the non-party; and
(f) despite any other provision of this Act or any other law of the
Commonwealth, or a State or Territory, no claim, action or
demand may be made or taken against the person by the
non-party in relation to that loss or damage.
51ADC Kinds of orders that may be made to redress loss or damage
suffered by non-parties etc.
Without limiting subsection 51ADB(1), the orders that a court may
make under that subsection against a person (the respondent)
include all or any of the following:
(a) an order declaring the whole or any part of a contract made
between the respondent and a non-party referred to in that
subsection, or a collateral arrangement relating to such a
contract:
(i) to be void; and
(ii) if the court thinks fit—to have been void ab initio or
void at all times on and after such date as is specified in
the order (which may be a date that is before the date on
which the order is made);
(b) an order:
(i) varying such a contract or arrangement in such manner
as is specified in the order; and
(ii) if the court thinks fit—declaring the contract or
arrangement to have had effect as so varied on and after
such date as is specified in the order (which may be a
date that is before the date on which the order is made);
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Orders to redress loss or damage suffered by non-parties etc. Division 4
Section 51ADC
Competition and Consumer Act 2010 307
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(c) an order refusing to enforce any or all of the provisions of
such a contract or arrangement;
(d) an order directing the respondent to refund money or return
property to a non-party referred to in that subsection;
(e) an order directing the respondent, at his or her own expense,
to repair, or provide parts for, goods that have been supplied
under the contract or arrangement to a non-party referred to
in that subsection;
(f) an order directing the respondent, at his or her own expense,
to supply specified services to a non-party referred to in that
subsection;
(g) an order, in relation to an instrument creating or transferring
an interest in land (within the meaning of section 53A),
directing the respondent to execute an instrument that:
(i) varies, or has the effect of varying, the first-mentioned
instrument; or
(ii) terminates or otherwise affects, or has the effect of
terminating or otherwise affecting, the operation or
effect of the first-mentioned instrument.
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Part IVB Industry codes
Division 5 Investigation power
Section 51ADD
308 Competition and Consumer Act 2010
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Division 5—Investigation power
51ADD Commission may require corporation to provide
information
(1) This section applies if a corporation is required to keep, to generate
or to publish information or a document under an applicable
industry code.
(2) The Commission may give the corporation a written notice that
requires the corporation to give the information, or to produce the
document, to the Commission within 21 days after the notice is
given to the corporation.
(3) The notice must:
(a) name the corporation to which it is given; and
(b) specify:
(i) the information or document to which it relates; and
(ii) the provisions of the applicable industry code which
require the corporation to keep, to generate or to publish
the information or document; and
(c) explain the effect of sections 51ADE, 51ADF and 51ADG.
(4) The notice may relate to more than one piece of information or
more than one document.
51ADE Extending periods for complying with notices
(1) A corporation that has been given a notice under section 51ADD
may, at any time within the period within which the corporation
must comply with the notice (as extended under any previous
application of subsection (2)), apply in writing to the Commission
for an extension of the period for complying with the notice.
(2) The Commission may, by written notice given to the corporation,
extend the period within which the corporation must comply with
the notice.
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Investigation power Division 5
Section 51ADF
Competition and Consumer Act 2010 309
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51ADF Compliance with notices
A corporation that is given a notice under section 51ADD must
comply with it within:
(a) the period of 21 days specified in the notice; or
(b) if the period for complying with the notice has been extended
under section 51ADE—the period as so extended.
51ADG False or misleading information etc.
(1) A corporation must not, in compliance or purported compliance
with a notice given under section 51ADD:
(a) give to the Commission false or misleading information; or
(b) produce to the Commission documents that contain false or
misleading information.
(2) This section does not apply to:
(a) information that the corporation could not have known was
false or misleading; or
(b) the production to the Commission of a document containing
false or misleading information if the document is
accompanied by a statement of the corporation that the
information is false or misleading.
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Division 6 Miscellaneous
Section 51AE
310 Competition and Consumer Act 2010
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Division 6—Miscellaneous
51AE Regulations relating to industry codes
(1) The regulations may:
(a) prescribe an industry code, or specified provisions of an
industry code, for the purposes of this Part; and
(b) declare the industry code to be a mandatory industry code or
a voluntary industry code; and
(c) for a voluntary industry code, specify the method by which a
corporation agrees to be bound by the code and the method
by which it ceases to be so bound (by reference to provisions
of the code or otherwise).
(2) If regulations prescribe an industry code, the industry code may
prescribe pecuniary penalties not exceeding 300 penalty units for
civil penalty provisions of the industry code.
51AEA Concurrent operation of State and Territory laws
It is the Parliament’s intention that a law of a State or Territory
should be able to operate concurrently with this Part unless the law
is directly inconsistent with this Part.
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Payment surcharges Part IVC
Preliminary Division 1
Section 55
Competition and Consumer Act 2010 311
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Part IVC—Payment surcharges
Division 1—Preliminary
55 Object of this Part
The object of this Part is to ensure that payment surcharges:
(a) are not excessive; and
(b) reflect the cost of using the payment methods for which they
are charged.
55A Definitions
In this Part:
excessive, in relation to a payment surcharge, has the meaning
given by subsection 55B(2).
infringement notice compliance period has the meaning given by
subsection 55M(1).
listed corporation has the meaning given by section 9 of the
Corporations Act 2001.
payment surcharge means:
(a) an amount charged, in addition to the price of goods or
services, for processing payment for the goods or services; or
(b) an amount (however described) charged for using one
payment method rather than another.
Reserve Bank standard means a standard determined under
section 18 of the Payment Systems (Regulation) Act 1998 after the
commencement of this definition.
surcharge information notice has the meaning given by
subsection 55C(3).
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Division 1 Preliminary
Section 55A
312 Competition and Consumer Act 2010
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surcharge participant has the meaning given by
subsection 55C(2).
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Payment surcharges Part IVC
Limit on payment surcharges Division 2
Section 55B
Competition and Consumer Act 2010 313
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Division 2—Limit on payment surcharges
55B Payment surcharges must not be excessive
(1) A corporation must not, in trade or commerce, charge a payment
surcharge that is excessive.
(2) A payment surcharge is excessive if:
(a) the surcharge is for a kind of payment covered by:
(i) a Reserve Bank standard; or
(ii) regulations made for the purposes of this subparagraph;
and
(b) the amount of the surcharge exceeds the permitted surcharge
referred to in the Reserve Bank standard or the regulations.
(3) Subsection (1) does not apply to a corporation who is exempted
from its operation by the regulations.
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Part IVC Payment surcharges
Division 3 Information about payment surcharges
Section 55C
314 Competition and Consumer Act 2010
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Division 3—Information about payment surcharges
55C Surcharge information notices
(1) The Commission may, by written notice given to a surcharge
participant, require the participant to give to the Commission
information or documents evidencing either or both of the
following:
(a) the amount of a payment surcharge;
(b) the cost of processing a payment in relation to which a
payment surcharge was paid.
(2) A corporation is a surcharge participant if, in trade or commerce,
the corporation:
(a) charges a payment surcharge; or
(b) processes a payment for which a payment surcharge is
charged.
(3) The notice given by the Commission to the surcharge participant is
a surcharge information notice.
(4) The surcharge information notice must specify:
(a) the kinds of information or documents to be given to the
Commission; and
(b) the period for giving the information or documents.
55D Extending periods for complying with notices
(1) A surcharge participant that has been given a notice under
section 55C may, at any time within 21 days after the notice was
given to the participant, apply in writing to the Commission for an
extension of the period for complying with the notice.
(2) The Commission may, by written notice given to the surcharge
participant, extend the period within which the participant must
comply with the notice.
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Payment surcharges Part IVC
Information about payment surcharges Division 3
Section 55E
Competition and Consumer Act 2010 315
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55E Participant must comply with notice
(1) A surcharge participant commits an offence if:
(a) the surcharge participant is given a surcharge information
notice; and
(b) the surcharge participant fails to comply with the notice
within the period for so complying.
Penalty: 30 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for
providing false or misleading information or documents.
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Division 4 Infringement notices
Section 55F
316 Competition and Consumer Act 2010
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Division 4—Infringement notices
55F 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
section 55B as an alternative to proceedings for an order under
section 76 for the payment of a pecuniary penalty.
(2) This Division does not:
(a) require an infringement notice to be issued to a person for an
alleged contravention of section 55B; or
(b) affect the liability of a person to proceedings under
section 76 in relation to an alleged contravention of
section 55B if:
(i) an infringement notice is not issued to the person for the
contravention; or
(ii) an infringement notice issued to the person for the
contravention is withdrawn under section 55N; 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.
55G Issuing an infringement notice
(1) If the Commission has reasonable grounds to believe that a person
has contravened section 55B, the Commission may issue an
infringement notice to the person.
(2) The Commission must not issue more than one infringement notice
to the person for the same alleged contravention of section 55B.
(3) The infringement notice does not have any effect if the notice:
(a) is issued more than 12 months after the day that the
contravention of section 55B is alleged to have occurred; or
(b) relates to more than one alleged contravention of section 55B
by the person.
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Infringement notices Division 4
Section 55H
Competition and Consumer Act 2010 317
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55H Matters to be included in an infringement notice
(1) 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 state how it may be contacted;
and
(e) give details of the alleged contravention, including the day of
the alleged contravention; and
(f) state the maximum pecuniary penalty that the court could
order the person to pay under section 76 for the alleged
contravention; and
(g) specify the penalty that is payable in relation to the alleged
contravention; and
(h) state that the penalty is payable within the infringement
notice compliance period for the notice; and
(i) state that the penalty is payable to the Commission on behalf
of the Commonwealth; and
(j) explain how payment of the penalty is to be made; and
(k) explain the effect of sections 55K, 55L, 55M and 55N.
55J 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
section 55B must be:
(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.
55K Effect of compliance with an infringement notice
(1) This section applies if:
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Division 4 Infringement notices
Section 55L
318 Competition and Consumer Act 2010
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(a) an infringement notice for an alleged contravention of
section 55B 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 55N.
(2) The person is not, merely because of the payment, regarded as
having contravened section 55B.
(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 the alleged contravention of
section 55B.
55L Effect of failure to comply with an infringement notice
If:
(a) an infringement notice for an alleged contravention of
section 55B 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 55N;
the person is liable to proceedings under section 76 in relation to
the alleged contravention of section 55B.
55M 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 that the infringement notice is issued by the
Commission.
(2) The Commission may extend, by notice in writing, the
infringement notice compliance period for the infringement notice
if the Commission is satisfied that it is appropriate to do so.
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Infringement notices Division 4
Section 55N
Competition and Consumer Act 2010 319
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(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.
(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.
55N Withdrawal of an infringement notice
Representations to the Commission
(1) A person to whom an infringement notice has been issued for an
alleged contravention of section 55B 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.
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Division 4 Infringement notices
Section 55N
320 Competition and Consumer Act 2010
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Content of withdrawal notices
(5) The withdrawal notice must state:
(a) the name and address of the person; and
(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 section 76 may be started or
continued against the person in relation to the alleged
contravention of section 55B.
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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Carbon tax price reduction obligation Part V
Preliminary Division 1
Section 60
Competition and Consumer Act 2010 321
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Part V—Carbon tax price reduction obligation
Division 1—Preliminary
60 Simplified outline of this Part
• An entity must not engage in price exploitation in relation to the carbon tax repeal.
• The Commission may monitor prices in relation to the carbon tax repeal and the carbon tax scheme.
• An entity must not make false or misleading representations about the effect of the carbon tax repeal, or the carbon tax
scheme, on the price for the supply of goods or services.
• An entity that sells electricity or natural gas, or an entity that is a bulk SGG importer and sells synthetic greenhouse gas,
will be required to explain and substantiate:
(a) how the carbon tax repeal has affected, or is affecting,
the entity’s regulated supply input costs; and
(b) how reductions in the entity’s regulated supply input
costs that are directly or indirectly attributable to the
carbon tax repeal are reflected in the prices charged by
the entity for regulated supplies of electricity, natural
gas or synthetic greenhouse gas.
• An entity that sells electricity or natural gas to customers, or an entity that is a bulk SGG importer and sells synthetic
greenhouse gas to customers, must:
(a) give a carbon tax removal substantiation statement to the
Commission; and
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Division 1 Preliminary
Section 60AA
322 Competition and Consumer Act 2010
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(b) include in the statement the entity’s estimate, on an
average annual percentage price basis, or an average
annual dollar price basis, of the entity’s cost savings that
have been, are, or will be, attributable to the carbon tax
repeal and that have been, are being, or will be, passed
on to customers during the financial year that began on
1 July 2014; and
(c) provide information with the statement that substantiates
such an estimate; and
(d) in a case where the entity sells electricity or natural gas
to customers—communicate to customers a statement
that identifies, on an average annual percentage price
basis, or an average annual dollar price basis, the
estimated cost savings to customers that are for the
financial year that began on 1 July 2014.
• Infringement notices may be issued for certain contraventions of this Part.
60AA Objects etc.
(1) The main objects of this Part are:
(a) to deter price exploitation in relation to the carbon tax repeal
at each point in the supply chain for regulated goods; and
(b) to ensure that all cost savings attributable to the carbon tax
repeal are passed through the supply chain for regulated
goods.
(2) The intention of the Parliament in enacting this Part is to ensure
that all cost savings attributable to the carbon tax repeal are passed
on to consumers of regulated goods through lower prices.
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Carbon tax price reduction obligation Part V
Preliminary Division 1
Section 60A
Competition and Consumer Act 2010 323
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60A Definitions
In this Part:
applicable compliance period, for a carbon tax removal
substantiation notice, has the meaning given by
subsection 60FC(2).
bulk SGG importer means an entity that:
(a) holds a controlled substances licence under the Ozone
Protection and Synthetic Greenhouse Gas Management Act
1989 that allows the entity to import synthetic greenhouse
gases; and
(b) supplies synthetic greenhouse gas to SGG customers.
carbon charge component of levy means so much of the amount
of the levy as is calculated by multiplying the number of tonnes of
carbon dioxide equivalence by a per unit charge applicable under
subsection 100(1) of the Clean Energy Act 2011 for the issue of a
carbon unit.
carbon tax removal substantiation notice has the meaning given
by subsection 60FA(3).
carbon tax removal substantiation statement has the meaning
given by subsection 60FD(3).
carbon tax repeal means:
(a) the repeal of the following Acts by the Clean Energy
Legislation (Carbon Tax Repeal) Act 2014:
(i) the Clean Energy Act 2011;
(ii) the Clean Energy (Charges—Customs) Act 2011;
(iii) the Clean Energy (Charges—Excise) Act 2011;
(iv) the Clean Energy (Unit Issue Charge—Auctions) Act
2011;
(v) the Clean Energy (Unit Issue Charge—Fixed Charge)
Act 2011;
(vi) the Clean Energy (Unit Shortfall Charge—General) Act
2011; and
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Section 60A
324 Competition and Consumer Act 2010
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(b) the amendments of the following Acts made by the Clean
Energy Legislation (Carbon Tax Repeal) Act 2014:
(i) the Fuel Tax Act 2006;
(ii) the Fuel Tax (Consequential and Transitional
Provisions) Act 2006; and
(c) the amendments made by the following Acts:
(i) the Customs Tariff Amendment (Carbon Tax Repeal)
Act 2014;
(ii) the Excise Tariff Amendment (Carbon Tax Repeal) Act
2014;
(iii) the Ozone Protection and Synthetic Greenhouse Gas
(Import Levy) Amendment (Carbon Tax Repeal) Act
2014;
(iv) the Ozone Protection and Synthetic Greenhouse Gas
(Manufacture Levy) Amendment (Carbon Tax Repeal)
Act 2014.
carbon tax repeal transition period means the period:
(a) beginning at the start of 1 July 2014; and
(b) ending at the end of 30 June 2015.
carbon tax scheme means the scheme embodied in the following:
(a) the Clean Energy Act 2011, as in force at the start of
1 January 2014;
(b) the associated provisions (within the meaning of that Act as
in force at that time);
(c) the following provisions of the Fuel Tax Act 2006, as in force
at the start of 1 January 2014:
(i) Division 42A;
(ii) section 43-5, so far as that section relates to a carbon
reduction;
(iii) section 43-8;
(iv) section 43-11;
(d) section 3A of the Ozone Protection and Synthetic
Greenhouse Gas (Import Levy) Act 1995, as in force at the
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start of 1 January 2014, so far as that section relates to carbon
charge component;
(e) section 4A of the Ozone Protection and Synthetic
Greenhouse Gas (Import Levy) Act 1995, as in force at the
start of 1 January 2014, so far as that section relates to carbon
charge component;
(f) section 3A of the Ozone Protection and Synthetic
Greenhouse Gas (Manufacture Levy) Act 1995, as in force at
the start of 1 January 2014, so far as that section relates to
carbon charge component;
(g) sections 6FA, 6FB and 6FC of the Excise Tariff Act 1921, as
in force at the start of 1 January 2014;
(h) section 19A of the Customs Tariff Act 1995, as in force at the
start of 1 January 2014.
electricity customer means an entity that purchases electricity.
electricity retailer means:
(a) an entity who:
(i) is a retailer within the meaning of the National Energy
Retail Law as it applies in a State or a Territory; and
(ii) sells electricity to electricity customers; or
(b) an entity who is a retailer within the meaning of the
Electricity Industry Act 2000 (Vic.); or
(c) an entity who is a retail entity within the meaning of the
Electricity Act 1994 (Qld); or
(d) an entity who:
(i) holds a retail licence within the meaning of the
Electricity Industry Act 2004 (WA); or
(ii) holds an integrated regional licence within the meaning
of the Electricity Industry Act 2004 (WA) that
authorises the entity to sell electricity; or
(e) an entity who is an electricity entity within the meaning of
the Electricity Reform Act (NT) and whose licence under that
Act authorises the entity to sell electricity; or
(f) any other entity who produces electricity in Australia.
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Division 1 Preliminary
Section 60A
326 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
engages in price exploitation in relation to the carbon tax repeal:
see section 60C.
entity means any of the following:
(a) a corporation (as defined by section 4);
(b) an individual;
(c) a body corporate;
(d) a corporation sole;
(e) a body politic;
(f) a partnership;
(g) any other unincorporated association or body of entities;
(h) a trust;
(i) any party or entity which can or does buy or sell electricity,
natural gas or synthetic greenhouse gas.
infringement notice means an infringement notice issued under
subsection 60L(1).
infringement notice compliance period: see section 60P.
infringement notice provision means section 60C or 60K.
listed corporation has the meaning given by section 9 of the
Corporations Act 2001.
National Energy Retail Law means the National Energy Retail
Law set out in the Schedule to the National Energy Retail Law
(South Australia) Act 2011 (SA).
natural gas has the same meaning as in the National Gas
(Commonwealth) Law (as defined by the Australian Energy
Market Act 2004).
natural gas customer means an entity that purchases natural gas.
natural gas retailer means:
(a) an entity who:
(i) is a retailer within the meaning of the National Energy
Retail Law as it applies in a State or a Territory; and
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(ii) sells natural gas to natural gas customers; or
(b) an entity who is a gas retailer within the meaning of the Gas
Industry Act 2001 (Vic.); or
(c) an entity who is a retailer within the meaning of the Gas
Supply Act 2003 (Qld); or
(d) an entity who holds a trading licence under the Energy
Coordination Act 1994 (WA); or
(e) an entity who holds a licence under the Gas Act 2000 (Tas.)
to sell gas by retail.
price, in relation to a supply, includes:
(a) a charge of any description for the supply; and
(b) any pecuniary or other benefit, whether direct or indirect,
received or to be received by a person for or in connection
with the supply.
regulated goods: see section 60B.
regulated supply means a supply that:
(a) occurs during the carbon tax repeal transition period; and
(b) is of regulated goods.
regulated supply input costs of an entity means the entity’s input
costs in relation to the making by the entity of regulated supplies of
electricity, natural gas or synthetic greenhouse gas.
Royal Assent day means the day on which the Act that inserted this
Part receives the Royal Assent.
SGG customer means an entity that purchases synthetic
greenhouse gas.
SGG equipment has the same meaning as in the Ozone Protection
and Synthetic Greenhouse Gas Management Act 1989.
synthetic greenhouse gas has the same meaning as in the Ozone
Protection and Synthetic Greenhouse Gas Management Act 1989.
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Division 1 Preliminary
Section 60B
328 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
60B Regulated goods
(1) For the purposes of this Part, regulated goods means:
(a) natural gas; or
(b) electricity; or
(c) synthetic greenhouse gas; or
(d) SGG equipment; or
(e) other goods of a kind specified in a legislative instrument
under subsection (2).
(2) The Minister may, by legislative instrument, specify one or more
kinds of goods for the purposes of paragraph (1)(e).
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Carbon tax price reduction obligation Division 2
Section 60C
Competition and Consumer Act 2010 329
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 2—Carbon tax price reduction obligation
60C Price exploitation in relation to the carbon tax repeal
(1) An entity must not engage in price exploitation in relation to the
carbon tax repeal.
(2) For the purposes of this Part, an entity engages in price
exploitation in relation to the carbon tax repeal if, and only if:
(a) it makes a regulated supply; and
(b) the price for the supply does not pass through all of the
entity’s cost savings relating to the supply that are directly or
indirectly attributable to the carbon tax repeal.
(3) For the purposes of this Part, in determining whether the price for a
supply made by an entity does not pass through all of the entity’s
cost savings relating to the supply that are directly or indirectly
attributable to the carbon tax repeal, have regard to the following
matters:
(a) the entity’s cost savings that are directly or indirectly
attributable to the carbon tax repeal;
(b) how the cost savings mentioned in paragraph (a) can
reasonably be attributed to the different supplies that the
entity makes;
(c) the entity’s costs;
(d) any other relevant matter that may reasonably influence the
price.
60CA Failure to pass on cost savings—250% penalty
(1) If:
(a) either:
(i) an entity contravenes subsection 60C(1) in relation to a
particular supply of electricity or natural gas; or
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Division 2 Carbon tax price reduction obligation
Section 60CA
330 Competition and Consumer Act 2010
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(ii) an entity that is a bulk SGG importer contravenes
subsection 60C(1) in relation to a particular supply of
synthetic greenhouse gas; and
(b) the contravention involved a failure to pass through all of the
entity’s cost savings relating to the supply that are directly or
indirectly attributable to the carbon tax repeal;
there is payable by the entity to the Commonwealth, and the entity
shall pay to the Commonwealth, by way of penalty, an amount
equal to 250% of those cost savings that were not passed through.
When penalty becomes due and payable
(2) An amount payable by an entity under subsection (1) is due and
payable on 1 July 2015.
Late payment penalty
(3) If an amount payable by an entity under subsection (1) remains
unpaid after the time when it became due for payment, there is
payable by the entity to the Commonwealth, and the entity shall
pay to the Commonwealth, by way of penalty, an amount
calculated at the rate of 6% per annum on the amount unpaid,
computed from that time.
Recovery of penalties
(4) An amount payable by an entity under subsection (1) or (3):
(a) is a debt due to the Commonwealth; and
(b) shall be recovered by the Commission, on behalf of the
Commonwealth, by action in a court of competent
jurisdiction, unless the cost of doing so exceeds the amount.
Report to Parliament
(5) Within 13 months after the Royal Assent day, the Commission
must report to Parliament in respect of penalties payable by
entities.
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Carbon tax price reduction obligation Division 2
Section 60D
Competition and Consumer Act 2010 331
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
60D Notice to entity that is considered to have engaged in price
exploitation in relation to the carbon tax repeal
(1) The Commission may give an entity a written notice under this
section if the Commission considers that the entity has engaged in
price exploitation in relation to the carbon tax repeal.
(2) The notice must:
(a) be expressed to be given under this section; and
(b) identify:
(i) the entity that made the supply; and
(ii) the kind of supply made; and
(iii) the circumstances in which the supply was made; and
(c) state that, in the Commission’s opinion, the price for the
supply did not pass through all of the entity’s cost savings
relating to the supply that were directly or indirectly
attributable to the carbon tax repeal.
(3) In any proceedings:
(aa) under section 60CA; or
(a) under section 76 for a pecuniary penalty order relating to
section 60C; or
(b) under section 80 for an injunction relating to section 60C; or
(c) under section 80A, 82, 86C, 86D or 87 for an order relating
to section 60C;
the notice is prima facie evidence that the price for the supply did
not pass through all of the entity’s cost savings relating to the
supply that were directly or indirectly attributable to the carbon tax
repeal.
(4) The Commission may vary or revoke the notice on its own
initiative or on application made by the entity. The Commission
must give the entity written notice of the variation or revocation.
(5) A notice under this section is not a legislative instrument.
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Division 2 Carbon tax price reduction obligation
Section 60E
332 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
60E Commission may issue notice to aid prevention of price
exploitation in relation to the carbon tax repeal
(1) The Commission may give an entity a written notice under this
section if the Commission considers that doing so will aid the
prevention of the entity engaging in price exploitation in relation to
the carbon tax repeal.
(2) The notice must:
(a) be expressed to be given under this section; and
(b) be expressed to relate to any supply that the entity makes that
is:
(i) of a kind specified in the notice; and
(ii) made in circumstances specified in the notice; and
(iii) made during the period specified in the notice (which
must not be a period ending after the end of the carbon
tax repeal transition period); and
(c) specify the maximum price that, in the Commission’s
opinion, may be charged for a supply to which the notice is
expressed to relate.
(3) The Commission may, on its own initiative or on application made
by the entity:
(a) vary the notice to:
(i) change the period specified as required by
subparagraph (2)(b)(iii); or
(ii) change the price specified in the notice as required by
paragraph (2)(c); or
(b) revoke the notice.
The Commission must give the entity written notice of the
variation or revocation.
(4) The Commission may publish the notice, or particulars of any
variation or revocation of the notice, in such manner as the
Commission considers appropriate.
(5) A notice under this section is not a legislative instrument.
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Carbon tax price reduction obligation Division 2
Section 60F
Competition and Consumer Act 2010 333
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
60F Acquisition of property
Scope
(1) This section applies to the following provisions of this Act:
(a) section 60C;
(b) any other provision to the extent to which it relates to
section 60C.
Effect of provision
(2) The provision has no effect to the extent (if any) to which its
operation would result in the acquisition of property (within the
meaning of paragraph 51(xxxi) of the Constitution) otherwise than
on just terms (within the meaning of that paragraph).
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Part V Carbon tax price reduction obligation
Division 2A Carbon tax removal substantiation notices
Section 60FA
334 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 2A—Carbon tax removal substantiation notices
60FA Carbon tax removal substantiation notices
Scope
(1) This section applies to an entity if the entity:
(a) is an electricity retailer that sells electricity to electricity
customers; or
(b) is a natural gas retailer that sells natural gas to natural gas
customers; or
(c) is a bulk SGG importer that sells synthetic greenhouse gas to
SGG customers.
Carbon tax removal substantiation notice
(2) The Commission must, within 30 days after the Royal Assent day,
by written notice given to the entity, require the entity:
(a) to give to the Commission, within the period specified in the
notice, a written statement that explains:
(i) how the carbon tax repeal has affected, or is affecting,
the entity’s regulated supply input costs; and
(ii) how reductions in the entity’s regulated supply input
costs that are directly or indirectly attributable to the
carbon tax repeal are reflected in the prices charged by
the entity for regulated supplies of electricity, natural
gas or synthetic greenhouse gas; and
(b) to do either or both of the following:
(i) give to the Commission, within the period and in the
manner and form specified in the notice, information
that substantiates the explanation set out in the
statement;
(ii) produce to the Commission, within the period and in the
manner specified in the notice, documents that
substantiate the explanation set out in the statement.
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Carbon tax removal substantiation notices Division 2A
Section 60FB
Competition and Consumer Act 2010 335
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(3) A notice under subsection (2) is to be known as a carbon tax
removal substantiation notice.
(4) A period specified in a carbon tax removal substantiation notice
must be 21 days after the notice is given.
(5) A carbon tax removal substantiation notice must explain the effect
of:
(a) section 60FB; and
(b) section 60FC; and
(c) sections 137.1 and 137.2 of the Criminal Code.
Section does not limit section 60H
(6) This section does not limit section 60H (which is about the
price-related information-gathering powers of the Commission).
Section does not limit section 155
(7) This section does not limit section 155 (which is about the general
information-gathering powers of the Commission).
60FB Extending periods for complying with carbon tax removal
substantiation notices
(1) An entity that has been given a carbon tax removal substantiation
notice may, at any time within 14 days after the notice was given to
the entity by the Commission, apply in writing to the Commission
for an extension of the period for complying with the notice.
(2) The Commission may, by written notice given to the entity, extend
the period within which the entity must comply with the notice, so
long as the extension is for a period of not more than 28 days.
60FC Compliance with carbon tax removal substantiation notices
(1) An entity that is given a carbon tax removal substantiation notice
must comply with it within the applicable compliance period for
the notice.
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Division 2A Carbon tax removal substantiation notices
Section 60FC
336 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(2) The applicable compliance period for a carbon tax removal
substantiation notice is:
(a) the period of 21 days specified in the notice; or
(b) if the period for complying with the notice has been extended
under section 60FB—the period as so extended;
and includes (if an application has been made under section 60FB
for an extension of the period for complying with the notice) the
period up until the time when the applicant is given notice of the
Commission’s decision on the application.
(3) An entity commits an offence if:
(a) the entity is subject to a requirement under subsection (1);
and
(b) the entity is capable of complying with the requirement; and
(c) the entity omits to do an act; and
(d) the omission breaches the requirement.
Penalty: 200 penalty units.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) If subsection (3) of this section applies to an individual (whether or
not because of subsection 6(2)), subsection (3) of this section has
effect, in relation to the individual, as if the reference to 200
penalty units were a reference to 40 penalty units.
(6) If subsection (1) of this section applies to an individual (whether or
not because of subsection 6(2)), the individual is excused from
giving information or producing a document in accordance with a
carbon tax removal substantiation notice on the ground that the
information or the production of the document might tend to
incriminate the individual or expose the individual to a penalty.
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Carbon tax removal substantiation statements Division 2B
Section 60FD
Competition and Consumer Act 2010 337
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 2B—Carbon tax removal substantiation
statements
60FD Carbon tax removal substantiation statements
Scope
(1) This section applies to an entity if the entity:
(a) is an electricity retailer that sells electricity to electricity
customers; or
(b) is a natural gas retailer that sells natural gas to natural gas
customers; or
(c) is a bulk SGG importer that sells synthetic greenhouse gas to
SGG customers.
Carbon tax removal substantiation statement
(2) Within 30 days after the Royal Assent day, the entity must give to
the Commission:
(a) a written statement that sets out:
(i) if the entity has electricity customers—the entity’s
estimate, on an average annual percentage price basis,
or an average annual dollar price basis, of the entity’s
cost savings that have been, are, or will be, directly or
indirectly attributable to the carbon tax repeal and that
have been, are being, or will be, passed on to each class
of electricity customers during the financial year that
began on 1 July 2014; and
(ii) if the entity has natural gas customers—the entity’s
estimate, on an average annual percentage price basis,
or an average annual dollar price basis, of the entity’s
cost savings that have been, are, or will be, directly or
indirectly attributable to the carbon tax repeal and that
have been, are being, or will be, passed on to each class
of natural gas customers during the financial year that
began on 1 July 2014; and
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Division 2B Carbon tax removal substantiation statements
Section 60FD
338 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(iii) if the entity has SGG customers—the entity’s estimate,
on an average annual percentage price basis, or an
average annual dollar price basis, of the entity’s cost
savings that have been, are, or will be, directly or
indirectly attributable to the carbon tax repeal and that
have been, are being, or will be, passed on to each class
of SGG customers during the financial year that began
on 1 July 2014; and
(b) information that substantiates the estimate or estimates set
out in the statement.
Note: Section 137.1 of the Criminal Code creates an offence of providing
false or misleading information.
(3) A statement under paragraph (2)(a) is to be known as a carbon tax
removal substantiation statement.
(4) If the entity has given a carbon tax removal substantiation
statement to the Commission, the entity must ensure that a copy of
the statement is available on the entity’s website, in a way that is
readily accessible by the public, until the end of 30 June 2015.
Compliance
(5) An entity commits an offence if:
(a) the entity is subject to a requirement under subsection (2) or
(4); and
(b) the entity is capable of complying with the requirement; and
(c) the entity omits to do an act; and
(d) the omission breaches the requirement.
Penalty: 500 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(7) If subsection (5) of this section applies to an individual (whether or
not because of subsection 6(2)), subsection (5) of this section has
effect, in relation to the individual, as if the reference to 500
penalty units were a reference to 40 penalty units.
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Carbon tax removal substantiation statements Division 2B
Section 60FD
Competition and Consumer Act 2010 339
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(8) If subsection (2) of this section applies to an individual (whether or
not because of subsection 6(2)), the individual is excused from
giving an estimate or information under subsection (2) of this
section on the ground that the estimate or information might tend
to incriminate the individual or expose the individual to a penalty.
Section does not limit section 60H
(9) This section does not limit section 60H (which is about the
price-related information-gathering powers of the Commission).
Section does not limit section 155
(10) This section does not limit section 155 (which is about the general
information-gathering powers of the Commission).
Report to Parliament
(11) Within 13 months after the Royal Assent day, the Commission
must report to Parliament in respect of compliance by all entities.
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Division 2C Statements for customers
Section 60FE
340 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 2C—Statements for customers
60FE Statements for customers
Scope
(1) This section applies to an entity if the entity:
(a) is an electricity retailer that sells electricity to electricity
customers; or
(b) is a natural gas retailer that sells natural gas to natural gas
customers.
Preparation of statement
(2) Within 30 days after the Royal Assent day, the entity must prepare
a statement that:
(a) if the entity has electricity customers—identifies, on an
average annual percentage price basis, or an average annual
dollar price basis, the estimated cost savings, to each class of
electricity customers, that:
(i) have been, are, or will be, directly or indirectly
attributable to the carbon tax repeal; and
(ii) are for the financial year that began on 1 July 2014; and
(b) if the entity has natural gas customers—identifies, on an
average annual percentage price basis, or an average annual
dollar price basis, the estimated cost savings, to each class of
natural gas customers, that:
(i) have been, are, or will be, directly or indirectly
attributable to the carbon tax repeal; and
(ii) are for the financial year that began on 1 July 2014.
Communication of contents of statement to customers
(3) During the period:
(a) beginning 30 days after the Royal Assent day; and
(b) ending 60 days after the Royal Assent day;
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Statements for customers Division 2C
Section 60FE
Competition and Consumer Act 2010 341
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
the entity must ensure that the contents of the statement prepared
by it under subsection (2) that relates to a class of electricity
customers or natural gas customers is communicated to each
customer of that class.
Note: Section 137.1 of the Criminal Code creates an offence of providing
false or misleading information.
Compliance
(4) An entity commits an offence if:
(a) the entity is subject to a requirement under subsection (2) or
(3); and
(b) the entity is capable of complying with the requirement; and
(c) the entity omits to do an act; and
(d) the omission breaches the requirement.
Penalty: 400 penalty units.
(5) Subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) If subsection (4) of this section applies to an individual (whether or
not because of subsection 6(2)), subsection (4) of this section has
effect, in relation to the individual, as if the reference to 400
penalty units were a reference to 40 penalty units.
(7) If subsection (2) or (3) of this section applies to an individual
(whether or not because of subsection 6(2)), the individual is
excused from:
(a) preparing a statement under subsection (2) of this section; or
(b) communicating the contents of a statement under
subsection (3) of this section;
on the ground that the information in the statement might tend to
incriminate the individual or expose the individual to a penalty.
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Part V Carbon tax price reduction obligation
Division 3 Price monitoring in relation to the carbon tax repeal etc.
Section 60G
342 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 3—Price monitoring in relation to the carbon tax
repeal etc.
60G Commission may monitor prices in relation to the carbon tax
repeal etc.
Price monitoring—carbon tax repeal transition period
(1) The Commission may monitor prices to assess the general effect of
the carbon tax repeal on prices charged by entities for supplies, in
the carbon tax repeal transition period, of relevant goods.
Note: For relevant goods, see subsection (11).
(2) The Commission may monitor prices to assess the general effect of
the carbon tax repeal on prices:
(a) advertised; or
(b) displayed; or
(c) offered;
for supplies, in the carbon tax repeal transition period, of relevant
goods by entities.
Note: For relevant goods, see subsection (11).
(3) The Commission may monitor prices to assess the general effect of
the carbon tax repeal on prices charged for supplies, in the carbon
tax repeal transition period, of goods by an entity for which there is
an entry in the Information Database (within the meaning of the
Clean Energy Act 2011).
(4) The Commission may monitor prices to assess the general effect of
the carbon tax repeal on prices:
(a) advertised; or
(b) displayed; or
(c) offered;
for supplies, in the carbon tax repeal transition period, of goods by
an entity for which there is an entry in the Information Database
(within the meaning of the Clean Energy Act 2011).
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Price monitoring in relation to the carbon tax repeal etc. Division 3
Section 60G
Competition and Consumer Act 2010 343
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Price monitoring—price exploitation
(5) The Commission may monitor prices to assist the Commission’s
consideration of whether an entity has engaged, is engaging, or
may in the future engage, in price exploitation in relation to the
carbon tax repeal.
Price monitoring—pre-repeal transition period
(6) The Commission may monitor prices to assess the general effect of
the carbon tax scheme on prices charged by entities for supplies, in
the pre-repeal transition period, of relevant goods.
Note 1: For pre-repeal transition period, see subsection (13).
Note 2: For relevant goods, see subsection (11).
(7) The Commission may monitor prices to assess the general effect of
the carbon tax scheme on prices:
(a) advertised; or
(b) displayed; or
(c) offered;
for supplies, in the pre-repeal transition period, of relevant goods
by entities.
Note 1: For pre-repeal transition period, see subsection (13).
Note 2: For relevant goods, see subsection (11).
(8) The Commission may monitor prices to assess the general effect of
the carbon tax scheme on prices charged for supplies, in the
pre-repeal transition period, of goods by an entity for which there
is an entry in the Information Database (within the meaning of the
Clean Energy Act 2011).
Note: For pre-repeal transition period, see subsection (13).
(9) The Commission may monitor prices to assess the general effect of
the carbon tax scheme on prices:
(a) advertised; or
(b) displayed; or
(c) offered;
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Section 60H
344 Competition and Consumer Act 2010
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for supplies, in the pre-repeal transition period, of goods by an
entity for which there is an entry in the Information Database
(within the meaning of the Clean Energy Act 2011).
Note: For pre-repeal transition period, see subsection (13).
Section does not limit Part VIIA
(10) This section does not limit Part VIIA (which is about prices
surveillance).
Relevant goods
(11) For the purposes of this section, the following are relevant goods:
(a) regulated goods;
(b) other goods of a kind specified in a legislative instrument
under subsection (12).
(12) The Minister may, by legislative instrument, specify one or more
kinds of goods for the purposes of paragraph (11)(b).
Pre-repeal transition period
(13) For the purposes of this section, pre-repeal transition period
means the period:
(a) beginning at the commencement of this section; and
(b) ending at the end of 30 June 2014.
60H Information-gathering powers
(1) A member of the Commission may, by written notice given to a
person, require the person:
(a) to give the Commission specified information in writing
signed by:
(i) the person; or
(ii) if the person is a body corporate—a competent officer
of the body corporate; or
(b) to produce to the Commission specified documents;
if:
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(c) the information, or information contained in the documents,
relates to prices or the setting of prices; and
(d) the member reasonably believes that the information, or
information contained in the documents, will or may be
useful to the Commission in monitoring prices as mentioned
in any of subsections 60G(1) to (9).
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for
providing false or misleading information or documents.
(2) Information or documents that may be required under
subsection (1) may relate to prices, or the setting of prices:
(a) before or after the carbon tax repeal; and
(b) before or after the start of the carbon tax repeal transition
period; and
(c) in a situation, or during a period, specified in the notice.
(3) Subsection (2) does not limit subsection (1).
(4) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1);
and
(b) the person is capable of complying with the requirement; and
(c) the person omits to do an act; and
(d) the omission breaches the requirement.
Penalty: 20 penalty units.
(5) An individual is excused from giving information or producing a
document in accordance with a requirement under subsection (1)
on the ground that the information or the production of the
document might tend to incriminate the individual or expose the
individual to a penalty.
Section does not limit section 60FA
(5A) This section does not limit section 60FA (which is about carbon
tax removal substantiation notices).
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Section 60J
346 Competition and Consumer Act 2010
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Section does not limit section 155
(6) This section does not limit section 155 (which is about the general
information-gathering powers of the Commission).
60J Reporting
(1) The Commission must, within 28 days after the end of each
quarter, give the Minister a written report about the operations of
the Commission under this Part during the quarter.
(2) A report under subsection (1) must include particulars of:
(a) all notices given under section 60E during the quarter; and
(b) all variations or revocations during the quarter of notices
given under section 60E.
(3) Subsection (2) does not limit subsection (1).
(4) For the purposes of this section, a quarter is a period of 3 months:
(a) that occurs wholly or partly during the carbon tax repeal
transition period; and
(b) that starts on any of the following days in a year:
(i) 1 January;
(ii) 1 April;
(iii) 1 July;
(iv) 1 October.
(5) As soon as practicable after the Minister receives a report under
subsection (1), the Minister must make the report public by such
means as the Minister considers appropriate.
(6) If this section commences during a quarter (but not on the first day
of a quarter):
(a) no report is to be made at the end of the quarter; but
(b) the report made at the end of the next quarter is also to
include the information required by subsections (1) and (2) in
relation to the previous quarter.
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False or misleading representations about the effect of the carbon tax repeal etc. on
prices Division 4
Section 60K
Competition and Consumer Act 2010 347
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Division 4—False or misleading representations about the
effect of the carbon tax repeal etc. on prices
60K False or misleading representations about the effect of the
carbon tax repeal etc. on prices
An entity must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services; or
(b) the promotion by any means of the supply or use of goods or
services;
make a false or misleading representation, during the carbon tax
repeal transition period, concerning the effect of:
(c) the carbon tax repeal or a part of the carbon tax repeal; or
(d) the carbon tax scheme or a part of the carbon tax scheme;
on the price for the supply of the goods or services.
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Division 5 Infringement notices
Section 60L
348 Competition and Consumer Act 2010
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Division 5—Infringement notices
60L Issuing an infringement notice
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) The Commission must not issue more than one infringement notice
to the person for the same alleged contravention of the
infringement notice provision.
(3) 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.
Matters to be included in an infringement notice
(4) 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
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Section 60M
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(g) state the maximum pecuniary penalty that the court could
order the person to pay under section 76 for the alleged
contravention; and
(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 60M, 60N, 60P and 60Q.
Amount of penalty
(5) The penalty to be specified in an infringement notice that is to be
issued to a person in relation to an alleged contravention of an
infringement notice provision must be:
(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.
60M Effect of compliance with an infringement notice
Scope
(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 60Q.
Effect
(2) The person is not, merely because of the payment, regarded as:
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Section 60N
350 Competition and Consumer Act 2010
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(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.
(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.
60N 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 60Q;
the person is liable to proceedings under Part VI in relation to the
alleged contravention of the infringement notice provision.
60P Infringement notice compliance period for infringement notice
(1) 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) Subsection (1) has effect subject to subsection (7).
(3) 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.
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Section 60Q
Competition and Consumer Act 2010 351
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(4) Only one extension may be given, and the extension must not be
for longer than 28 days.
(5) Notice of the extension must be given to the person who was
issued the infringement notice.
(6) A failure to comply with subsection (5) does not affect the validity
of the extension.
(7) 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.
60Q Withdrawal of an infringement notice
Representations to the Commission
(1) A 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.
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Section 60R
352 Competition and Consumer Act 2010
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Content of withdrawal notices
(5) The withdrawal notice must state:
(a) the name and address of the person; and
(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 Part VI may be started or continued
against the person in relation to:
(i) the alleged contravention 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, on behalf of the Commonwealth, refund to the person an
amount equal to the amount paid.
Note: For the appropriation for the refund, see section 77 of the Public
Governance, Performance and Accountability Act 2013.
60R Effect of this Division
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 Part VI in
relation to an alleged contravention of an infringement notice
provision if:
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(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 60Q; 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.
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Section 75B
354 Competition and Consumer Act 2010
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Part VI—Enforcement and remedies
75B Interpretation
(1) A reference in this Part to a person involved in a contravention of a
provision of Part IV or IVB, or of section 55B, 60C, 60K or 92,
shall be read as a reference to a person who:
(a) has aided, abetted, counselled or procured the contravention;
(b) has induced, whether by threats or promises or otherwise, the
contravention;
(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.
(2) In this Part, unless the contrary intention appears:
(a) a reference to the Court in relation to a matter is a reference
to any court having jurisdiction in the matter;
(b) a reference to the Federal Court is a reference to the Federal
Court of Australia; and
(c) a reference to a judgment is a reference to a judgment, decree
or order, whether final or interlocutory.
76 Pecuniary penalties
(1) If the Court is satisfied that a person:
(a) has contravened any of the following provisions:
(i) a provision of Part IV (other than section 45AF or
45AG);
(ia) section 55B;
(ii) section 60C;
(iia) section 60K;
(iii) section 92;
(iv) a civil penalty provision of an industry code; or
(b) has attempted to contravene such a provision; or
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(c) has aided, abetted, counselled or procured a person to
contravene such a provision; or
(d) has induced, or attempted to induce, a person, whether by
threats or promises or otherwise, to contravene such a
provision; or
(e) has been in any way, directly or indirectly, knowingly
concerned in, or party to, the contravention by a person of
such a provision; or
(f) has conspired with others to contravene such a provision;
the Court may order the person to pay to the Commonwealth such
pecuniary penalty, in respect of each act or omission by the person
to which this section applies, as the Court determines to be
appropriate having regard to all relevant matters including the
nature and extent of the act or omission and of any loss or damage
suffered as a result of the act or omission, the circumstances in
which the act or omission took place and whether the person has
previously been found by the Court in proceedings under this Part
or Part XIB to have engaged in any similar conduct.
Note: Section 87AA provides that, if boycott conduct is involved in
proceedings, the Court must have regard to certain matters in
exercising its powers under this Part. (Boycott conduct is defined in
subsection 87AA(2).)
(1A) The pecuniary penalty payable under subsection (1) by a body
corporate is not to exceed:
(aa) for each act or omission to which this section applies that
relates to section 45AJ or 45AK—the greatest of the
following:
(i) $10,000,000;
(ii) if the court can determine the total value of the benefits
that have been obtained (within the meaning of
Division 1 of Part IV) by one or more persons and that
are reasonably attributable to the act or omission—3
times that total value;
(iii) if the Court cannot determine the total value of those
benefits—10% of the annual turnover (within the
meaning of Division 1 of Part IV) of the body corporate
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during the period (the turnover period) of 12 months
ending at the end of the month in which the act or
omission occurred; and
(a) for each act or omission to which this section applies that
relates to section 45D, 45DB, 45E or 45EA—$750,000; and
(b) for each act or omission to which this section applies that
relates to any other provision of Part IV—the greatest of the
following:
(i) $10,000,000;
(ii) if the Court can determine the value of the benefit that
the body corporate, and any body corporate related to
the body corporate, have obtained directly or indirectly
and that is reasonably attributable to the act or
omission—3 times the value of that benefit;
(iii) if the Court cannot determine the value of that benefit—
10% of the annual turnover of the body corporate during
the period (the turnover period) of 12 months ending at
the end of the month in which the act or omission
occurred; and
(ba) for each act or omission to which this section applies that
relates to section 55B, 60C or 60K—6,471 penalty units; and
(c) for each act or omission to which this section applies that
relates to section 92—$33,000; and
(ca) for each act or omission to which this section applies that
relates to a civil penalty provision of an industry code—the
amount set out in the civil penalty provision of the industry
code; and
(d) for each other act or omission to which this section applies—
$10,000,000.
Note: For annual turnover, see subsection (5).
(1B) The pecuniary penalty payable under subsection (1) by a person
other than a body corporate is not to exceed:
(aa) for each act or omission to which this section applies that
relates to section 55B, 60C or 60K—1,295 penalty units; and
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(a) for each act or omission to which this section applies that
relates to section 92—$6,600; and
(aaa) for each act or omission to which this section applies that
relates to a civil penalty provision of an industry code—the
amount set out in the civil penalty provision of the industry
code; and
(b) for each other act or omission to which this section applies—
$500,000.
(2) Nothing in subsection (1) authorises the making of an order against
an individual because the individual has contravened or attempted
to contravene, or been involved in a contravention of, section 45D,
45DA, 45DB, 45E or 45EA.
(3) If conduct constitutes a contravention of two or more provisions of
Part IV (other than section 45AF or 45AG), a proceeding may be
instituted under this Act against a person in relation to the
contravention of any one or more of the provisions but a person is
not liable to more than one pecuniary penalty under this section in
respect of the same conduct.
(4) The single pecuniary penalty that may be imposed in accordance
with subsection (3) in respect of conduct that contravenes
provisions to which 2 or more of the limits in paragraphs (1A)(aa),
(a) and (b) apply is an amount up to the highest of those limits.
Annual turnover
(5) For the purposes of this section, the annual turnover of a body
corporate, during the turnover period, is the sum of the values of all
the supplies that the body corporate, and any body corporate
related to the body corporate, have made, or are likely to make,
during that period, other than:
(a) supplies made from any of those bodies corporate to any
other of those bodies corporate; or
(b) supplies that are input taxed; or
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(c) supplies that are not for consideration (and are not taxable
supplies under section 72-5 of the A New Tax System (Goods
and Services Tax) Act 1999); or
(d) supplies that are not made in connection with an enterprise
that the body corporate carries on; or
(e) supplies that are not connected with Australia.
(6) Expressions used in subsection (5) that are also used in the A New
Tax System (Goods and Services Tax) Act 1999 have the same
meaning as in that Act.
76A Defence to proceedings under section 76 relating to a
contravention of section 92
(1) In this section:
contravention, in relation to a section, includes conduct referred to
in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a
contravention of the section.
(2) In proceedings against a person (the respondent) under section 76
in relation to an alleged contravention of section 92, it is a defence
if the respondent establishes:
(a) that the contravention in respect of which the proceedings
were instituted was due to reasonable mistake; or
(b) that the contravention in respect of which the proceedings
were instituted was due to reasonable reliance on information
supplied by another person; or
(c) that:
(i) the contravention in respect of which the proceedings
were instituted was due to the act or default of another
person, to an accident or to some other cause beyond the
respondent’s control; and
(ii) the respondent took reasonable precautions and
exercised due diligence to avoid the contravention.
(3) In paragraphs (2)(b) and (c), another person does not include a
person who was:
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(a) a servant or agent of the respondent; or
(b) if the respondent is a body corporate—a director, servant or
agent of the respondent;
at the time when the alleged contravention occurred.
76B What happens if substantially the same conduct is a
contravention of Part IV or section 92 and an offence?
(1) In this section:
contravention, in relation to a section or Part, includes conduct
referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a
contravention of the section or Part.
pecuniary penalty order means an order under section 76 for the
payment of a pecuniary penalty.
(2) The Court must not make a pecuniary penalty order against a
person in relation to a contravention of Part IV or section 92 if the
person has been convicted of an offence constituted by conduct
that is substantially the same as the conduct constituting the
contravention.
(3) Proceedings for a pecuniary penalty order against a person in
relation to a contravention of Part IV or section 92 are stayed if:
(a) criminal proceedings are started or have already been started
against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the
same as the conduct alleged to constitute the contravention.
The proceedings for the pecuniary penalty order may be resumed if
the person is not convicted of the offence. Otherwise, the
proceedings are dismissed.
(4) Criminal proceedings may be started against a person for conduct
that is substantially the same as conduct constituting a
contravention of Part IV or section 92 regardless of whether a
pecuniary penalty order has been made against the person in
respect of the contravention.
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(5) Evidence of information given, or evidence of production of
documents, by an individual is not admissible in criminal
proceedings against the individual if:
(a) the individual previously gave the evidence or produced the
documents in proceedings for a pecuniary penalty order
against the individual for a contravention of Part IV or
section 92 (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially
the same as the conduct that was claimed to constitute the
contravention.
However, this does not apply to a criminal proceeding in respect of
the falsity of the evidence given by the individual in the
proceedings for the pecuniary penalty order.
(6) In this section:
offence means an offence against a law of the Commonwealth, a
State or a Territory.
77 Civil action for recovery of pecuniary penalties
(1) The Commission may institute a proceeding in the Court for the
recovery on behalf of the Commonwealth of a pecuniary penalty
referred to in section 76.
(2) A proceeding under subsection (1) may be commenced within 6
years after the contravention.
77A Indemnification of officers
(1) A body corporate (the first body), or a body corporate related to the
first body, must not indemnify a person (whether by agreement or
by making a payment and whether directly or through an
interposed entity) against any of the following liabilities incurred
as an officer of the first body:
(a) a civil liability;
(b) legal costs incurred in defending or resisting proceedings in
which the person is found to have such a liability.
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Penalty: 25 penalty units.
(2) For the purposes of subsection (1), the outcome of proceedings is
the outcome of the proceedings and any appeal in relation to the
proceedings.
Definitions
(3) In this section:
civil liability means a liability to pay a pecuniary penalty under
section 76 for a contravention of a provision of Part IV or Part V.
officer has the same meaning as in the Corporations Act 2001.
77B Certain indemnities not authorised and certain documents void
(1) Section 77A does not authorise anything that would otherwise be
unlawful.
(2) Anything that purports to indemnify a person against a liability is
void to the extent that it contravenes section 77A.
77C Application of section 77A 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 77A(1) of this Act; 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 77A(1) of this Act;
the relevant offence is taken to be punishable on conviction by a
fine not exceeding 5 penalty units.
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78 Criminal proceedings not to be brought for contraventions of
Part IV
Criminal proceedings do not lie against a person by reason only
that the person:
(a) has contravened a provision of Part IV (other than
section 45AF or 45AG); or
(b) has attempted to contravene such a provision;
(c) has aided, abetted, counselled or procured a person to
contravene such a provision;
(d) has induced, or attempted to induce, a person, whether by
threats or promises or otherwise, to contravene such a
provision;
(e) has been in any way, directly or indirectly, knowingly
concerned in, or party to, the contravention by a person of
such a provision; or
(f) has conspired with others to contravene such a provision.
79 Offences against section 45AF or 45AG
(1) A person who:
(aa) attempts to contravene; or
(a) aids, abets, counsels or procures a person to contravene; or
(b) induces, or attempts to induce, a person (whether by threats
or promises or otherwise) to contravene; or
(c) is in any way, directly or indirectly, knowingly concerned in,
or party to, the contravention by a person of; or
(d) conspires with others to contravene;
a cartel offence provision is taken to have contravened that
provision and is punishable:
(e) in a case where:
(i) the provision is a cartel offence provision; and
(ii) the person is not a body corporate;
by a term of imprisonment not exceeding 10 years or a fine
not exceeding 2,000 penalty units, or both; or
(f) in any other case—accordingly.
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(1AA) For the purposes of the application of subsection (1) to a case
where:
(a) the provision is a cartel offence provision; and
(b) the person is a body corporate other than a corporation;
assume that each reference in paragraph 45AF(3)(c) or 45AG(3)(c)
to a corporation were read as a reference to a body corporate.
(1AB) Subsections 11.1(2) to (6) (inclusive) of the Criminal Code apply
in relation to paragraph (1)(aa) in the same way that they apply in
relation to the offence of attempt under subsection 11.1(1) of the
Criminal Code.
(1A) Subsections 11.2(2) to (5) (inclusive) of the Criminal Code apply
in relation to paragraph (1)(a) in the same way that they apply in
relation to subsection 11.2(1) of the Criminal Code.
(1B) Subsections 11.5(2) to (5) (inclusive) of the Criminal Code apply
in relation to paragraph (1)(d) in the same way that they apply in
relation to the offence of conspiracy under subsection 11.5(1) of
the Criminal Code.
(5) Subsections 11.1(1), 11.2(1), 11.2A(1), 11.4(1) and 11.5(1) of the
Criminal Code do not apply in relation to an offence against a
cartel offence provision.
(7) In this section:
cartel offence provision means section 45AF or 45AG.
79A Enforcement and recovery of certain fines
(1) If:
(a) a fine has been imposed on a person for:
(i) an offence against section 45AF, 45AG, 154Q or 155;
or
(ii) an offence against section 149.1 of the Criminal Code
that relates to Part XID; and
(b) the person defaults in payment of the fine;
a Court may:
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(c) exercise any power that the Court has apart from this section
with respect to the enforcement and recovery of fines
imposed by the Court; or
(d) make an order, on the application of the 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) Where a person in relation to whom an order is made under
subsection (1) in respect of a fine gives security for the payment of
the fine, the Court shall cancel the order in respect of the fine.
(3) Where the Court makes an order in relation to a person in respect
of a fine, the Court may, at any time before the order is executed in
respect of the fine, allow the person a specified time in which to
pay the fine or allow the person to pay the fine by specified
instalments, and, in that case:
(a) the order shall not be executed unless the person fails to pay
the fine within that time or fails to pay an instalment at or
before the time when it becomes payable, as the case may be;
and
(b) if the person pays the fine within that time or pays all the
instalments, as the case may be, the order shall be deemed to
have been discharged in respect of the fine.
(4) Subject to subsection (7), an order under subsection (1) in respect
of 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 order.
(5) The term of a sentence of imprisonment imposed by an order under
a law of a State or 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 shall 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.
(6) Subject to subsection (7), where a person is required to serve
periods of imprisonment by virtue of an order or orders under
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subsection (1) in respect of 2 or more fines, those periods of
imprisonment shall be served consecutively.
(7) Subject to subsection (8), where:
(a) a person would, but for this subsection, be required by virtue
of an order or orders under subsection (1) in respect of 3 or
more fines to serve periods of imprisonment in respect of
those fines exceeding in the aggregate 3 years; and
(b) those fines were imposed (whether or not in the same
proceedings) for offences constituted by contraventions that
occurred within a period of 2 years, being contraventions that
appear to the Court to have been of the same nature or a
substantially similar nature;
the Court shall, by order, declare that the order or orders shall
cease to have effect in respect of those fines after the person has
served an aggregate of 3 years’ imprisonment in respect of those
fines.
(8) Where subsection (7) 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 shall make an
order under that subsection with respect to one only of those
periods, being whichever period would give the person the
maximum benefit from the application of that subsection.
(9) For the purposes of subsection (8), the Court may vary or revoke
an order made under subsection (7).
(11) This section applies only in relation to fines imposed for offences
committed after the commencement of this section.
79B Preference must be given to compensation for victims
If the Court considers that:
(a) it is appropriate to order a person (the defendant):
(i) to pay a pecuniary penalty under section 76; or
(ii) to impose a fine under section 45AF or 45AG;
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in respect of a contravention, or an involvement in a
contravention, of this Act; and
(b) it is appropriate to order the defendant to pay compensation
to a person who has suffered loss or damage in respect of the
contravention or the involvement; and
(c) the defendant does not have sufficient financial resources to
pay both the pecuniary penalty or fine and the compensation;
the Court must give preference to making an order for
compensation.
80 Injunctions
(1) Subject to subsections (1A), (1AAA) and (1B), where, on the
application of the Commission or any other person, the Court is
satisfied that a person has engaged, or is proposing to engage, in
conduct that constitutes or would constitute:
(a) a contravention of any of the following provisions:
(i) a provision of Part IV;
(ii) a provision of Division 2 or 5 of Part IVB;
(iia) section 55B;
(iii) section 60C;
(iv) section 60K; or
(b) attempting to contravene such a provision; or
(c) aiding, abetting, counselling or procuring a person to
contravene such a provision; or
(d) inducing, or attempting to induce, whether by threats,
promises or otherwise, a person to contravene such a
provision; or
(e) being in any way, directly or indirectly, knowingly concerned
in, or party to, the contravention by a person of such a
provision; or
(f) conspiring with others to contravene such a provision;
the Court may grant an injunction in such terms as the Court
determines to be appropriate.
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Note: Section 87AA provides that, if boycott conduct is involved in
proceedings, the Court must have regard to certain matters in
exercising its powers under this Part. (Boycott conduct is defined in
subsection 87AA(2).)
(1AA) Where an application for an injunction under subsection (1) has
been made, whether before or after the commencement of this
subsection, the Court may, if the Court determines it to be
appropriate, 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).
(1A) A person other than the Commission is not entitled to make an
application under subsection (1) for an injunction by reason that a
person has contravened or attempted to contravene or is proposing
to contravene, or has been or is proposing to be involved in a
contravention of, section 50, 60C or 60K.
(1AAA) Subject to subsection (1B), a person other than the Minister or the
Commission may not apply for an injunction on the ground of:
(a) a person’s actual, attempted or proposed contravention of
section 50A; or
(b) a person’s actual or proposed involvement in a contravention
of section 50A.
(1B) Where the Tribunal has, on the application of a person (in this
subsection referred to as the applicant) other than the Minister or
the Commission, made a declaration under subsection 50A(1) in
relation to the acquisition by a person of a controlling interest in a
corporation, the applicant is entitled to make an application under
subsection (1) for an injunction by reason that the corporation has
contravened or attempted to contravene or is proposing to
contravene subsection 50A(6) in relation to that declaration.
(2) Where 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).
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(3) The Court may rescind or vary an injunction granted under
subsection (1) or (2).
(4) 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;
(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.
(5) 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;
(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.
(6) Where the Minister or the Commission makes an application to the
Court for the grant of an injunction under this section, the Court
shall not require the applicant or any other person, as a condition of
granting an interim injunction, to give any undertakings as to
damages.
(6A) Subsection (6) does not apply to an application by the Minister for
an injunction relating to Part IV.
(7) Where:
(a) in a case to which subsection (6) does not apply the Court
would, but for this subsection, require a person to give an
undertaking as to damages or costs; and
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(b) the Minister gives the undertaking;
the Court shall accept the undertaking by the Minister and shall not
require a further undertaking from any other person.
(8) Subsection (7) does not apply in relation to an application for an
injunction relating to Part IV.
(9) If the Director of Public Prosecutions makes an application to the
Court for the grant of an injunction under this section in relation to:
(a) a person’s contravention, or proposed contravention, of
section 45AF or 45AG; or
(b) a person’s involvement, or proposed involvement, in a
contravention of section 45AF or 45AG;
the Court must not require the Director of Public Prosecutions or
any other person, as a condition of granting an interim injunction,
to give any undertakings as to damages.
80A Price exploitation in relation to the carbon tax repeal—orders
limiting prices or requiring refunds of money
(1) If, on the application of the Commission, the Court is satisfied that
a person has engaged in conduct constituting a contravention of
section 60C, the Court may make either or both of the following
orders:
(a) an order requiring that person, or a person involved in the
contravention, not to make a regulated supply of a kind
specified in the order for a price in excess of the price
specified in the order while the order remains in force;
(b) an order requiring that person, or a person involved in the
contravention, to refund money to a person specified in the
order.
Note: Section 60C is about price exploitation in relation to the carbon tax
repeal.
(2) This section does not limit section 80.
(3) In this section:
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price has the same meaning as in Part V.
regulated supply has the same meaning as in Part V.
80AB Stay of injunctions
(1) The Court may stay the operation of an injunction granted under
section 80 if:
(a) the injunction is in respect of conduct that constitutes or
would constitute a contravention of subsection 45D(1),
45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA or an
associated contravention; and
(b) there is a proceeding in respect of a dispute relating to the
conduct pending before a court, tribunal or authority of a
State or Territory under a prescribed provision of a law of the
State or Territory; and
(c) the conduct relates to the supply of goods or services to, or
the acquisition of goods or services from, a person who is or
becomes a party to the proceeding referred to in
paragraph (b); and
(d) any of the following has applied for the stay:
(i) a Minister of the Commonwealth;
(ii) if subparagraph (b)(ii) applies—a Minister of the State
or Territory concerned;
(iii) a party to the proceeding for the injunction; and
(e) the Court considers that granting the stay:
(i) would be likely to facilitate the settlement of the dispute
by conciliation; and
(ii) would, in all the circumstances, be just.
(2) An order staying the operation of the injunction may be expressed
to have effect for a specified period and may be varied or rescinded
by the Court at any time.
(3) If the proceeding referred to in paragraph (1)(b) is terminated
because the State or Territory court, tribunal or authority has
settled the dispute to which the conduct relates by conciliation, the
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Court must not make any order in relation to the costs of the
proceedings in respect of the granting of the injunction or in
relation to the costs of any proceedings for the rescission of the
injunction.
(4) Nothing in this section affects other powers of the Court.
(5) In this section:
associated contravention means:
(a) attempting to contravene subsection 45D(1), 45DA(1),
45DB(1), 45E(2) or 45E(3) or section 45EA; or
(b) aiding, abetting, counselling or procuring a person to
contravene any of those provisions; or
(c) inducing, or attempting to induce, a person (whether by
threats, promises or otherwise) to contravene any of those
provisions; or
(d) being in any way, directly or indirectly, knowingly concerned
in, or party to, the contravention by a person of any of those
provisions; or
(e) conspiring with others to contravene any of those provisions.
injunction includes an interim injunction.
80AC Injunctions to prevent mergers if authorisation granted on the
basis of false or misleading information
If, on the application of the Commission, the Court is satisfied that:
(a) a person is proposing to acquire shares in the capital of a
body corporate or assets of a person; and
(b) the person was granted a merger authorisation for the
proposed acquisition on the basis of information that was
false or misleading in a material particular; and
(c) that information was given by the person or a body corporate
that was related to the person; and
(d) if that information had not been given, the authorisation
would not have been granted; and
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(e) apart from the authorisation, the acquisition would
contravene section 50 if it occurred;
then the Court may grant an injunction in such terms as the Court
determines to be appropriate.
81 Divestiture where merger contravenes section 50 or 50A
(1) The Court may, on the application of the Commission or any other
person, if it finds, or has in another proceeding instituted under this
Part found, that a person has contravened section 50, by order, give
directions for the purpose of securing the disposal by the person of
all or any of the shares or assets acquired in contravention of that
section.
(1A) Where:
(a) the Court finds, in a proceeding instituted under this Part, that
a person (in this subsection referred to as the acquirer) has
acquired shares in the capital of a body corporate or any
assets of a person in contravention of section 50;
(b) the Court finds, whether in that proceeding or any other
proceeding instituted under this Part, that the person (in this
section referred to as the vendor) from whom the acquirer
acquired those shares or those assets, as the case may be, was
involved in the contravention; and
(c) at the time when the finding referred to in paragraph (b) is
made, any of those shares or those assets, as the case may be,
are vested in the acquirer or, if the acquirer is a body
corporate, in any body corporate that is related to the
acquirer;
the Court may, on the application of the Commission, declare that
the acquisition, in so far as it relates to the shares or assets referred
to in paragraph (c), is void as from the day on which it took place
and, where the Court makes such a declaration:
(d) the shares or the assets to which the declaration relates shall
be deemed not to have been disposed of by the vendor; and
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(e) the vendor shall refund to the acquirer any amount paid to the
vendor in respect of the acquisition of the shares or assets to
which the declaration relates.
(1B) Where a declaration has been made under subsection 50A(1) in
relation to the obtaining of a controlling interest in a corporation,
or in each of 2 or more corporations, the Court may, on the
application of the Minister or the Commission, if it finds, or has in
a proceeding instituted under section 80 found, that that
corporation, or any of those corporations, as the case may be (in
this subsection referred to as the relevant corporation), has
contravened subsection 50A(6), by order, for the purpose of
ensuring that the obtaining of that controlling interest ceases to
have the result referred to in paragraph 50A(1)(a), direct the
relevant corporation to dispose of such of its assets as are specified
in the order within such period as is so specified.
(1C) Where an application is made to the Court for an order under
subsection (1) or a declaration under subsection (1A), the Court
may, instead of making an order under subsection (1) for the
purpose of securing the disposal by a person of shares or assets or
an order under subsection (1A) that the acquisition by a person of
shares or assets is void, accept, upon such conditions (if any) as the
Court thinks fit, an undertaking by the person to dispose of other
shares or assets owned by the person.
(2) An application under subsection (1), (1A) or (1B) may be made at
any time within 3 years after the date on which the contravention
occurred.
(3) Where an application for directions under subsection (1) or for a
declaration under subsection (1A) has been made, whether before
or after the commencement of this subsection, the Court may, if the
Court determines it to be appropriate, give directions or make a
declaration by consent of all the parties to the proceedings, whether
or not the Court has made the findings referred to in
subsections (1) and (1A).
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81A Divestiture where merger done under authorisation granted on
false etc. information
Circumstances when this section applies
(1) This section applies if the Court is satisfied that:
(a) a person (the acquirer) has acquired shares in the capital of a
body corporate or assets of another person; and
(b) before the acquisition, the acquirer was granted a merger
authorisation for the acquisition on the basis of information
that was false or misleading in a material particular; and
(c) that information was provided by the acquirer or a body
corporate that was related to the acquirer; and
(d) the Court or another court has found that the acquirer or
related body corporate has contravened section 92 or Part 7.4
of the Criminal Code by giving that information; and
(e) if that information had not been given, the authorisation
would not have been granted; and
(f) apart from the authorisation, the acquisition would have
contravened section 50; and
(g) any or all of those shares or assets are vested in the acquirer,
the related body corporate or any other body corporate that is
related to the acquirer.
Divestiture by the acquirer and related bodies corporate
(2) The Court may, on the application of the Commission, by order,
give directions for the purpose of securing the disposal of all or any
of those shares or assets by the acquirer, the related body corporate
or any other body corporate that is related to the acquirer.
Declaration that acquisition void—when vendor involved
(4) In addition to being satisfied of the matters in subsection (1), if the
Court, or another court, has found that the person (the vendor)
from whom the acquirer acquired the shares or assets was involved
in the contravention referred to in paragraph (1)(d), then the Court
may, on the application of the Commission, by order, declare that
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the acquisition, in so far as it relates to those shares or assets, is
void as from the day on which it occurred.
(5) If the Court makes an order under subsection (4), then:
(a) the shares or assets to which the declaration relates are taken
not to have been disposed of by the vendor; and
(b) the vendor must refund to the acquirer any amount paid to
the vendor for acquiring the shares or assets.
Alternative to orders under subsections (2) and (4)
(7) If an application is made to the Court for an order under
subsection (2) or (4) against a person, the Court may, instead of
making an order of the kind mentioned in that subsection, accept,
upon such conditions (if any) as the Court thinks fit, an
undertaking by the person to dispose of other shares or assets
owned by the person.
When application for orders under this section must be made
(8) An application under subsection (2) or (4) may be made at any
time within 3 years after the day on which the acquisition occurred.
Court may make orders even if not satisfied of all matters
(9) If an application for an order under subsection (2) or (4) is made,
the Court may, if the Court determines it to be appropriate, make
an order by consent of all the parties to the proceedings, whether or
not the Court is satisfied of:
(a) for an order under subsection (2)—the matters in
subsection (1); and
(b) for an order under subsection (4)—the matters in
subsections (1) and (4).
82 Actions for damages
(1) A person who suffers loss or damage by conduct of another person
that was done in contravention of a provision of Part IV or IVB, or
of section 55B, 60C or 60K, may recover the amount of the loss or
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damage by action against that other person or against any person
involved in the contravention.
(2) An action under subsection (1) may be commenced at any time
within 6 years after the day on which the cause of action that
relates to the conduct accrued.
No adverse costs orders
(3) A person who brings an action under subsection (1) in relation to a
contravention of a provision of Part IV may at any time during
proceedings on the matter seek an order under subsection (4) from
the court hearing, or that will hear, the matter.
(4) The court may order that the applicant is not liable for the costs of
any respondent to the proceedings, regardless of the outcome or
likely outcome of the proceedings.
(5) The court may only make an order under subsection (4) if the court
is satisfied that:
(a) the action raises a reasonable issue for trial; and
(b) the action raises an issue that is not only significant for the
applicant, but may also be significant for other persons or
groups of persons; and
(c) the disparity between the financial position of the applicant
and the financial position of the respondent or respondents is
such that the possibility of a costs order that does not favour
the applicant might deter the applicant from pursuing the
action.
(6) The court may satisfy itself of the matters in subsection (5) by
having regard only to the documents filed with the court in the
proceedings.
(7) A person who appeals a decision of the court under subsection (4)
is liable for any costs in relation to the appeal.
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83 Findings and admissions of fact in proceedings to be evidence
(1) In a proceeding against a person under section 82 or in an
application under subsection 51ADB(1) or 87(1A) for an order
against a person, a finding of any fact made by a court, or an
admission of any fact made by the person, is prima facie evidence
of that fact if the finding or admission is made in proceedings:
(a) that are proceedings:
(i) under section 77, 80, 81, 86C, 86D or 86E; or
(ii) for an offence against section 45AF or 45AG; and
(b) in which that person has been found to have contravened, or
to have been involved in a contravention of, a provision of
Part IV or IVB, or of section 55B, 60C or 60K.
(2) The finding or admission may be proved by production of:
(a) in any case—a document under the seal of the court from
which the finding or admission appears; or
(b) in the case of an admission—a document from which the
admission appears that is filed in the court.
84 Conduct by directors, employees or agents
(1) If, in:
(a) a prosecution for an offence against section 45AF or 45AG in
respect of conduct engaged in by a body corporate; or
(b) a proceeding under this Part in respect of conduct engaged in
by a body corporate, being conduct in relation to which
section 45AJ, 45AK, 46 or 46A, Part IVB, section 55B or
Part V applies;
it is necessary to establish the state of mind of the body corporate,
it is sufficient to show that:
(c) a director, employee or agent of the body corporate engaged
in that conduct; and
(d) the director, employee or agent was, in engaging in that
conduct, acting within the scope of his or her actual or
apparent authority; and
(e) 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 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,
employee or agent of the body corporate, where the giving of
the direction, consent or agreement is within the scope of the
actual or apparent authority of the director, employee or
agent;
shall be deemed, for the purposes of this Act, to have been engaged
in also by the body corporate.
(3) If, in:
(a) a prosecution for an offence against section 45AF or 45AG in
respect of conduct engaged in by a person other than a body
corporate; or
(b) a proceeding under this Part in respect of conduct engaged in
by a person other than a body corporate, being conduct in
relation to which section 45AJ or 45AK, Part IVB,
section 55B or Part V applies;
it is necessary to establish the state of mind of the person, it is
sufficient to show that:
(c) an employee or agent of the person engaged in that conduct;
and
(d) the employee or agent was, in engaging in that conduct,
acting within the scope of his or her actual or apparent
authority; and
(e) the employee or agent had that state of mind.
(4) Conduct engaged in on behalf of a person other than a body
corporate:
(a) by an employee or agent of the person within the scope of the
actual or apparent authority of the employee or agent; or
(b) by any other person at the direction or with the consent or
agreement (whether express or implied) of an employee or
agent of the first-mentioned person, where the giving of the
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direction, consent or agreement is within the scope of the
actual or apparent authority of the employee or agent;
shall be deemed, for the purposes of this Act, to have been engaged
in also by the first-mentioned person.
(4A) If:
(a) a person other than a body corporate is convicted of an
offence; and
(b) subsection (3) or (4) applied in relation to the conviction on
the basis that the person was the person first 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.
(5) A reference in this section to the state of mind of a person includes
a reference to the knowledge, intention, opinion, belief or purpose
of the person and the person’s reasons for the person’s intention,
opinion, belief or purpose.
85 Defences
If, in any proceedings under this Part against a person other than a
body corporate, it appears to the Court that the person has or may
have:
(a) engaged in conduct in contravention of a provision of
Part IV; or
(aa) engaged in conduct in contravention of section 60C or 60K;
or
(b) engaged in conduct referred to in paragraph 76(1)(b), (c), (d),
(e) or (f);
but that the person acted honestly and reasonably and, having
regard to all the circumstances of the case, ought fairly to be
excused, the Court may relieve the person either wholly or partly
from liability to any penalty or damages on such terms as the Court
thinks fit.
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86 Jurisdiction of courts
(1AA) A reference in this section to this Act, or to a Part, Division or
section of this Act, is a reference to this Act, or to that Part,
Division or section, as it has effect as a law of the Commonwealth.
(1) Jurisdiction is conferred on the Federal Court in any matter arising
under this Act in respect of which a civil proceeding has, whether
before or after the commencement of this section, been instituted
under this Part.
(1A) Jurisdiction is conferred on the Federal Circuit Court in any matter
arising under section 46, Part IVB or section 55B in respect of
which a civil proceeding is instituted by a person other than the
Minister.
(2) The several courts of the States are invested with federal
jurisdiction within the limits of their several jurisdictions, whether
those limits are as to locality, subject-matter or otherwise, and,
subject to the Constitution, jurisdiction is conferred on the several
courts of the Territories, with respect to any matter arising under
Part IVB or section 55B in respect of which a civil proceeding is
instituted by a person other than the Minister or the Commission.
(3) Nothing in subsection (2) shall be taken to enable an inferior court
of a State or 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.
(3A) The Supreme Court of a State is invested with federal jurisdiction
with respect to any matter in respect of which a civil proceeding
covered by section 45AI is instituted in that Court.
(3B) Subject to the Constitution, the Supreme Court of a Territory is
conferred with jurisdiction with respect to any matter in respect of
which a civil proceeding covered by section 45AI is instituted in
that Court.
(4) The jurisdiction conferred by subsection (1) on the Federal Court is
exclusive of the jurisdiction of any other court other than:
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(a) the jurisdiction of the Federal Circuit Court under
subsection (1A); and
(b) the jurisdiction of the several courts of the States and
Territories under subsection (2); and
(ba) the jurisdiction of the Supreme Courts of the States under
subsection (3A); and
(bb) the jurisdiction of the Supreme Courts of the Territories
under subsection (3B); and
(c) the jurisdiction of the High Court under section 75 of the
Constitution.
86AA Limit on jurisdiction of Federal Circuit Court
If proceedings under section 82 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. For
transfers from the Federal Circuit Court to the Federal Court, see
section 39 of the Federal Circuit Court of Australia Act 1999.
86A Transfer of matters
(1) Where:
(a) a civil proceeding instituted (whether before or after the
commencement of this section) by a person other than the
Minister or the Commission is pending in the Federal Court;
and
(b) a matter for determination in the proceeding arose under
Part IVB or section 55B;
the Federal Court may, subject to subsection (2), upon the
application of a party or of the Federal Court’s own motion,
transfer to a court of a State or Territory the matter referred to in
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paragraph (b) and may also transfer to that court any other matter
for determination in the proceeding.
(2) The Federal Court shall not transfer a matter to another court under
subsection (1) unless the other court has power to grant the
remedies sought before the Federal Court in the matter and it
appears to the Federal Court that:
(a) the matter arises out of or is related to a proceeding that is
pending in the other court; or
(b) it is otherwise in the interests of justice that the matter be
determined by the other court.
(3) Where the Federal Court transfers a matter to another court under
subsection (1):
(a) further proceedings in the matter shall 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.
86C Non-punitive orders
(1) The Court may, on application by the Commission, make one or
more of the orders mentioned in subsection (2) in relation to a
person who has engaged in contravening conduct.
(1A) The Court may, on application by the Director of Public
Prosecutions, make one or more of the orders mentioned in
subsection (2) in relation to a person who has engaged in
contravening conduct that is:
(a) a contravention of section 45AF or 45AG; or
(b) an involvement in a contravention of section 45AF or 45AG.
(2) The orders that the Court may make in relation to the person are:
(a) except in the case of contravening conduct that relates to
section 60C or 60K—a community service order; and
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(b) except in the case of contravening conduct that relates to
section 60C or 60K—a probation order for a period of no
longer than 3 years; and
(c) an order requiring the person to disclose, in the way and to
the persons specified in the order, such information as is so
specified, being information that the person has possession of
or access to; and
(d) an order requiring the person to publish, at the person’s
expense and in the way specified in the order, an
advertisement in the terms specified in, or determined in
accordance with, the order.
(3) This section does not limit the Court’s powers under any other
provision of this Act.
(4) In this section:
community service order, in relation to a person who has engaged
in contravening conduct, means an order directing the person to
perform a service that:
(a) is specified in the order; and
(b) relates to the conduct;
for the benefit of the community or a section of the community.
Example: The following are examples of community service orders:
(a) an order requiring a person who has made false representations to make available a training video which explains advertising obligations under this Act; and
(b) an order requiring a person who has engaged in misleading or deceptive conduct in relation to a product to carry out a community awareness program to address the needs of consumers when purchasing the product.
contravening conduct means conduct that:
(a) contravenes Part IV or IVB or section 55B, 60C, 60K or 92;
or
(b) constitutes an involvement in a contravention of any of those
provisions.
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probation order, in relation to a person who has engaged in
contravening conduct, means an order that is made by the Court for
the purpose of ensuring that the person does not engage in the
contravening conduct, similar conduct or related conduct during
the period of the order, and includes:
(a) an order directing the person to establish a compliance
program for employees or other persons involved in the
person’s business, being a program designed to ensure their
awareness of the responsibilities and obligations in relation to
the contravening conduct, similar conduct or related conduct;
and
(b) an order directing the person to establish an education and
training program for employees or other persons involved in
the person’s business, being a program designed to ensure
their awareness of the responsibilities and obligations in
relation to the contravening conduct, similar conduct or
related conduct; and
(c) an order directing the person to revise the internal operations
of the person’s business which lead to the person engaging in
the contravening conduct.
86D Punitive orders—adverse publicity
(1) The Court may, on application by the Commission, make an
adverse publicity order in relation to a person who:
(a) has been ordered to pay a pecuniary penalty under section 76;
or
(b) is guilty of an offence against section 45AF or 45AG.
(1A) The Court may, on application by the Director of Public
Prosecutions, make an adverse publicity order in relation to a
person who is guilty of an offence against section 45AF or 45AG.
(2) In this section, an adverse publicity order, in relation to a person,
means an order that:
(a) requires the person to disclose, in the way and to the persons
specified in the order, such information as is so specified,
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being information that the person has possession of or access
to; and
(b) requires the person to publish, at the person’s expense and in
the way specified in the order, an advertisement in the terms
specified in, or determined in accordance with, the order.
(3) This section does not limit the Court’s powers under any other
provision of this Act.
86E Order disqualifying a person from managing corporations
(1) On application by the Commission, the Court may make an order
disqualifying a person from managing corporations for a period
that the Court considers appropriate if:
(a) the Court is satisfied that the person has contravened, has
attempted to contravene or has been involved in a
contravention of Part IV; and
(b) the Court is satisfied that the disqualification is justified.
Note: Section 206EA of the Corporations Act 2001 provides that a person is
disqualified from managing corporations if a court order is in force
under this section. That Act contains various consequences for persons
so disqualified.
(1A) On application by the Director of Public Prosecutions, the Court
may make an order disqualifying a person from managing
corporations for a period that the Court considers appropriate if:
(a) the Court is satisfied that the person has contravened or has
been involved in a contravention of section 45AF or 45AG;
and
(b) the Court is satisfied that the disqualification is justified.
Note: Section 206EA of the Corporations Act 2001 provides that a person is
disqualified from managing corporations if a court order is in force
under this section. That Act contains various consequences for persons
so disqualified.
(2) In determining under subsection (1) or (1A) whether the
disqualification is justified, the Court may have regard to:
(a) the person’s conduct in relation to the management, business
or property of any corporation; and
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(b) any other matters that the Court considers appropriate.
(3) The Commission must notify ASIC if the Court makes an order
under subsection (1). The Commission must give ASIC a copy of
the order.
Note: ASIC must keep a register of persons who have been disqualified
from managing corporations: see section 1274AA of the Corporations
Act 2001.
(3A) The Director of Public Prosecutions must notify ASIC if the Court
makes an order under subsection (1A). The Director of Public
Prosecutions must give ASIC a copy of the order.
Note: ASIC must keep a register of persons who have been disqualified
from managing corporations—see section 1274AA of the
Corporations Act 2001.
(3B) For the purposes of this Act (other than this section or
section 86F), an order under this section is not a penalty.
(4) In this section:
ASIC means the Australian Securities and Investments
Commission.
86F Privilege against exposure to penalty—disqualification from
managing corporations
Court proceeding
(1) In a civil or criminal proceeding under, or arising out of, this Act, a
person is not entitled to refuse or fail to comply with a
requirement:
(a) to answer a question or give information; or
(b) to produce a document or any other thing; or
(c) to do any other act;
on the ground that the answer or information, production of the
document or other thing, or doing that other act, as the case may
be, might tend to expose the person to a penalty by way of an order
under section 86E.
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(2) Subsection (1) applies whether or not the person is a defendant in
the proceeding or in any other proceeding.
Statutory requirement
(3) A person is not entitled to refuse or fail to comply with a
requirement under this Act:
(a) to answer a question or give information; or
(b) to produce a document or any other thing; or
(c) to do any other act;
on the ground that the answer or information, production of the
document or other thing, or doing that other act, as the case may
be, might tend to expose the person to a penalty by way of an order
under section 86E.
Definition
(4) In this section:
penalty includes forfeiture.
87 Other orders
(1) Without limiting the generality of section 80, where, in a
proceeding instituted under this Part, or for an offence against
section 45AF or 45AG, the 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 (whether before
or after the commencement of this subsection) in contravention of
a provision of Part IV or Division 2 of Part IVB, or of
section 55B, 60C or 60K, the Court may, whether or not it grants
an injunction under section 80 or makes an order under section 82,
86C, 86D or 86E, make such order or orders as it thinks
appropriate against the person who engaged in the conduct or a
person who was involved in the contravention (including all or any
of the orders mentioned in subsection (2) of this section) if the
Court considers that the order or orders concerned will compensate
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the first-mentioned person in whole or in part for the loss or
damage or will prevent or reduce the loss or damage.
(1A) Without limiting the generality of sections 51ADB and 80, the
Court may:
(a) on the application of a person who has suffered, or is likely
to suffer, loss or damage by conduct of another person that
was engaged in in contravention of Division 2 of Part IVB or
section 60C or 60K; or
(b) on the application of the Commission in accordance with
subsection (1B) on behalf of one or more persons who have
suffered, or who are likely to suffer, loss or damage by
conduct of another person that was engaged in in
contravention of Part IV (other than section 45D or 45E),
Division 2 of Part IVB or section 60C or 60K; or
(baa) on the application of the Commission in accordance with
subsection (1BAA) on behalf of a class of persons who have
suffered, or who are likely to suffer, loss or damage by
conduct of another person that was engaged in in
contravention of section 55B; or
(ba) on the application of the Director of Public Prosecutions in
accordance with subsection (1BA) on behalf of one or more
persons who have suffered, or who are likely to suffer, loss
or damage by conduct of another person that was engaged in
in contravention of section 45AF or 45AG;
make such order or orders as the Court thinks appropriate against
the person who engaged in the conduct or a person who was
involved in the contravention (including all or any of the orders
mentioned in subsection (2)) if the Court considers that the order or
orders concerned will:
(c) compensate the person who made the application, or the
person or any of the persons on whose behalf the application
was made, in whole or in part for the loss or damage; or
(d) prevent or reduce the loss or damage suffered, or likely to be
suffered, by such a person.
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(1B) The Commission may make an application under
paragraph (1A)(b) on behalf of one or more persons identified in
the application who:
(a) have suffered, or are likely to suffer, loss or damage by
conduct of another person that was engaged in in
contravention of Part IV (other than section 45D or 45E),
Division 2 of Part IVB or section 60C or 60K; and
(b) have, before the application is made, consented in writing to
the making of the application.
(1BAA) The Commission may make an application under
paragraph (1A)(b) on behalf of a class of persons identified in the
application who have suffered, or are likely to suffer, loss or
damage by conduct of another person that was engaged in in
contravention of section 55B.
(1BA) The Director of Public Prosecutions may make an application
under paragraph (1A)(ba) on behalf of one or more persons
identified in the application who:
(a) have suffered, or are likely to suffer, loss or damage by
conduct of another person that was engaged in in
contravention of section 45AF or 45AG; and
(b) have, before the application is made, consented in writing to
the making of the application.
(1C) An application may be made under subsection (1A) in relation to a
contravention of Part IV, Division 2 of Part IVB or section 60C or
60K even if a proceeding has not been instituted under another
provision in relation to that contravention.
(1CA) An application under subsection (1A) may be made at any time
within 6 years after the day on which the cause of action that
relates to the conduct accrued.
(2) The orders referred to in subsection (1) and (1A) are:
(a) an order declaring the whole or any part of 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
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by the conduct, or of 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;
(ba) an order refusing to enforce any or all of the provisions of
such a contract;
(c) an order directing the person who engaged in the conduct or
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;
(d) an order directing the person who engaged in the conduct or
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;
(e) an order directing the person who engaged in the conduct or
a person who was involved in the contravention constituted
by the conduct, at his or her own expense, to repair, or
provide parts for, goods that had been supplied by the person
who engaged in the conduct to the person who suffered, or is
likely to suffer, the loss or damage;
(f) an order directing the person who engaged in the conduct or
a person who was involved in the contravention constituted
by the conduct, at his or her own expense, to supply specified
services to the person who suffered, or is likely to suffer, the
loss or damage; and
(g) an order, in relation to an instrument creating or transferring
an interest in land, directing the person who engaged in the
conduct or a person who was involved in the contravention
constituted by the conduct to execute an instrument that:
(i) varies, or has the effect of varying, the first-mentioned
instrument; or
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(ii) terminates or otherwise affects, or has the effect of
terminating or otherwise affecting, the operation or
effect of the first-mentioned instrument.
(3) Where:
(a) a provision of a contract made, whether before or after the
commencement of the Trade Practices Amendment Act 1977,
is unenforceable because of section 45 in so far as it confers
rights or benefits or imposes duties or obligations on a
corporation; or
(b) the engaging in conduct by a corporation in pursuance of or
in accordance with a contract made before the
commencement of the Trade Practices Amendment Act 1977
would constitute a contravention of section 47;
the Court may, on the application of a party to the contract, make
an order:
(c) varying the contract, or a collateral arrangement relating to
the contract, in such manner as the Court considers just and
equitable; or
(d) directing another party to the contract to do any act in
relation to the first-mentioned party that the Court considers
just and equitable.
(4) The orders that may be made under subsection (3) include an order
directing the termination of a lease or the increase or reduction of
any rent or premium payable under a lease.
(5) The powers conferred on the Court under 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.
(6) In subsection (2), interest, in relation to land, means:
(a) a legal or equitable estate or interest in the land; or
(b) a right of occupancy of the land, or of a building or part of a
building erected on the land, arising by virtue of the holding
of shares, or by virtue of a contract to purchase shares, in an
incorporated company that owns the land or building; or
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(c) a right, power or privilege over, or in connection with, the
land.
87AA Special provision relating to Court’s exercise of powers under
this Part in relation to boycott conduct
(1) In exercising its powers in proceedings under this Part in relation
to boycott conduct, the Court is to have regard to any action the
applicant in the proceedings has taken, or could take, before an
industrial authority in relation to the boycott conduct. In particular,
the Court is to have regard to any application for conciliation that
the applicant has made or could make.
(2) In this section:
boycott conduct means conduct that constitutes or would
constitute:
(a) a contravention of subsection 45D(1), 45DA(1), 45DB(1),
45E(2) or 45E(3) or section 45EA; or
(b) attempting to contravene one of those provisions; or
(c) aiding, abetting, counselling or procuring a person to
contravene one of those provisions; or
(d) inducing, or attempting to induce, a person (whether by
threats, promises or otherwise) to contravene one of those
provisions; or
(e) being in any way, directly or indirectly, knowingly concerned
in, or party to, a contravention of one of those provisions; or
(f) conspiring with others to contravene one of those provisions.
industrial authority means:
(a) a board or court of conciliation or arbitration, or tribunal,
body or persons, having authority under a law of a State to
exercise any power of conciliation or arbitration in relation to
industrial disputes within the limits of the State; or
(b) a special board constituted under a law of a State relating to
factories; or
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(c) any other State board, court, tribunal, body or official
prescribed by the regulations for the purposes of this
definition.
87B Enforcement of undertakings
(1) The Commission may accept a written undertaking given by a
person for the purposes of this section in connection with a matter
in relation to which the Commission has a power or function under
this Act (other than Part X).
(1A) The Commission may accept a written undertaking given by a
person for the purposes of this section in connection with a merger
authorisation.
(2) The person may withdraw or vary the undertaking at any time, but
only with the consent of the Commission.
(3) If the Commission considers that the person who gave the
undertaking has breached any of its terms, the Commission may
apply to the Court for an order under subsection (4).
(4) If the Court is satisfied that the person has breached a term of the
undertaking, the Court may make all or any of the following
orders:
(a) an order directing the person to comply with that term of the
undertaking;
(b) an order directing the person to pay to the Commonwealth an
amount up to the amount of any financial benefit that the
person has obtained directly or indirectly and that is
reasonably attributable to the breach;
(c) any order that the Court considers appropriate directing the
person to compensate any other person who has suffered loss
or damage as a result of the breach;
(d) any other order that the Court considers appropriate.
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87C Enforcement of undertakings—Secretary of the Department
(1) The Secretary of the Department may accept a written undertaking
given by a person for the purposes of this section in connection
with a matter in relation to which the Secretary has a power or
function under this Act.
(2) The person may withdraw or vary the undertaking at any time, but
only with the consent of the Secretary of the Department.
(3) If the Secretary of the Department considers that the person who
gave the undertaking has breached any of its terms, the Secretary
may apply to the Court for an order under subsection (4).
(4) If the Court is satisfied that the person has breached a term of the
undertaking, the Court may make all or any of the following
orders:
(a) an order directing the person to comply with that term of the
undertaking;
(b) an order directing the person to pay to the Commonwealth an
amount up to the amount of any financial benefit that the
person has obtained directly or indirectly and that is
reasonably attributable to the breach;
(c) any order that the court considers appropriate directing the
person to compensate any other person who has suffered loss
or damage as a result of the breach;
(d) any other order that the Court considers appropriate.
87CA Intervention by Commission
(1) The Commission may, with the leave of the Court and subject to
any conditions imposed by the Court, intervene in any proceeding
instituted under this Act.
(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.
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Section 87CB
Competition and Consumer Act 2010 395
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Part VIA—Proportionate liability for misleading
and deceptive conduct
87CB Application of Part
(1) This Part applies to a claim (an apportionable claim) if the claim is
a claim for damages made under section 236 of the Australian
Consumer Law for:
(a) economic loss; or
(b) damage to property;
caused by conduct that was done in a contravention of section 18
of the Australian Consumer Law.
(2) For the purposes of this Part, there is a single apportionable claim
in proceedings in respect of the same loss or damage even if the
claim for the loss or damage is based on more than one cause of
action (whether or not of the same or a different kind).
(3) In this Part, a concurrent wrongdoer, in relation to a claim, is a
person who is one of 2 or more persons whose acts or omissions
(or act or omission) caused, independently of each other or jointly,
the damage or loss that is the subject of the claim.
(4) For the purposes of this Part, apportionable claims are limited to
those claims specified in subsection (1).
(5) For the purposes of this Part, it does not matter that a concurrent
wrongdoer is insolvent, is being wound up or has ceased to exist or
died.
87CC Certain concurrent wrongdoers not to have benefit of
apportionment
(1) Nothing in this Part operates to exclude the liability of a concurrent
wrongdoer (an excluded concurrent wrongdoer) in proceedings
involving an apportionable claim if:
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Section 87CD
396 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(a) the concurrent wrongdoer intended to cause the economic
loss or damage to property that is the subject of the claim; or
(b) the concurrent wrongdoer fraudulently caused the economic
loss or damage to property that is the subject of the claim.
(2) The liability of an excluded concurrent wrongdoer is to be
determined in accordance with the legal rules (if any) that (apart
from this Part) are relevant.
(3) The liability of any other concurrent wrongdoer who is not an
excluded concurrent wrongdoer is to be determined in accordance
with the provisions of this Part.
87CD Proportionate liability for apportionable claims
(1) In any proceedings involving an apportionable claim:
(a) the liability of a defendant who is a concurrent wrongdoer in
relation to that claim is limited to an amount reflecting that
proportion of the damage or loss claimed that the court
considers just having regard to the extent of the defendant’s
responsibility for the damage or loss; and
(b) the court may give judgment against the defendant for not
more than that amount.
(2) If the proceedings involve both an apportionable claim and a claim
that is not an apportionable claim:
(a) liability for the apportionable claim is to be determined in
accordance with the provisions of this Part; and
(b) liability for the other claim is to be determined in accordance
with the legal rules, if any, that (apart from this Part) are
relevant.
(3) In apportioning responsibility between defendants in the
proceedings:
(a) the court is to exclude that proportion of the damage or loss
in relation to which the plaintiff is contributorily negligent
under any relevant law; and
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Section 87CE
Competition and Consumer Act 2010 397
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(b) the court may have regard to the comparative responsibility
of any concurrent wrongdoer who is not a party to the
proceedings.
(4) This section applies in proceedings involving an apportionable
claim whether or not all concurrent wrongdoers are parties to the
proceedings.
(5) A reference in this Part to a defendant in proceedings includes any
person joined as a defendant or other party in the proceedings
(except as a plaintiff) whether joined under this Part, under rules of
court or otherwise.
87CE Defendant to notify plaintiff of concurrent wrongdoer of
whom defendant aware
(1) If:
(a) a defendant in proceedings involving an apportionable claim
has reasonable grounds to believe that a particular person (the
other person) may be a concurrent wrongdoer in relation to
the claim; and
(b) the defendant fails to give the plaintiff, as soon as
practicable, written notice of the information that the
defendant has about:
(i) the identity of the other person; and
(ii) the circumstances that may make the other person a
concurrent wrongdoer in relation to the claim; and
(c) the plaintiff unnecessarily incurs costs in the proceedings
because the plaintiff was not aware that the other person may
be a concurrent wrongdoer in relation to the claim;
the court hearing the proceedings may order that the defendant pay
all or any of those costs of the plaintiff.
(2) The court may order that the costs to be paid by the defendant be
assessed on an indemnity basis or otherwise.
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Section 87CF
398 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
87CF Contribution not recoverable from defendant
A defendant against whom judgment is given under this Part as a
concurrent wrongdoer in relation to an apportionable claim:
(a) cannot be required to contribute to any damages or
contribution recovered from another concurrent wrongdoer in
respect of the apportionable claim (whether or not the
damages or contribution are recovered in the same
proceedings in which judgment is given against the
defendant); and
(b) cannot be required to indemnify any such wrongdoer.
87CG Subsequent actions
(1) In relation to an apportionable claim, nothing in this Part or any
other law prevents a plaintiff who has previously recovered
judgment against a concurrent wrongdoer for an apportionable part
of any damage or loss from bringing another action against any
other concurrent wrongdoer for that damage or loss.
(2) However, in any proceedings in respect of any such action, the
plaintiff cannot recover an amount of damages that, having regard
to any damages previously recovered by the plaintiff in respect of
the damage or loss, would result in the plaintiff receiving
compensation for damage or loss that is greater than the damage or
loss actually sustained by the plaintiff.
87CH Joining non-party concurrent wrongdoer in the action
(1) The court may give leave for any one or more persons to be joined
as defendants in proceedings involving an apportionable claim.
(2) The court is not to give leave for the joinder of any person who
was a party to any previously concluded proceedings in respect of
the apportionable claim.
87CI Application of Part
Nothing in this Part:
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Section 87CI
Competition and Consumer Act 2010 399
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(a) prevents a person being held vicariously liable for a
proportion of an apportionable claim for which another
person is liable; or
(b) prevents a partner from being held severally liable with
another partner for that proportion of an apportionable claim
for which the other partner is liable; or
(c) affects the operation of any other Act to the extent that it
imposes several liability on any person in respect of what
would otherwise be an apportionable claim.
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Part VIB Claims for damages or compensation for death or personal injury
Division 1 Introduction
Section 87D
400 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Part VIB—Claims for damages or compensation
for death or personal injury
Division 1—Introduction
87D Definitions
In this Part, unless the contrary intention appears:
applicable percentage has the meaning given by
subsection 87Q(2).
average weekly earnings has the meaning given by section 87V.
capable parent or guardian, of a minor, means a person who is a
parent or guardian of the minor, and who is not under a disability.
date of discoverability has the meaning given by section 87G.
gratuitous attendant care services has the meaning given by
subsection 87W(5).
incapacitated person means a person who is incapable of, or
substantially impeded in, the management of his or her affairs in
relation to a proceeding under this Act because of:
(a) any disease, or any impairment of his or her mental
condition; or
(b) restraint of his or her person, lawful or unlawful, including
detention or custody under a law of a State or Territory
relating to mental health; or
(c) war or warlike operations, or circumstances arising out of
war or warlike operations.
index number has the meaning given by section 87N.
long-stop period has the meaning given by section 87H.
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Introduction Division 1
Section 87D
Competition and Consumer Act 2010 401
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maximum amount of damages for non-economic loss has the
meaning given by section 87M.
minor means a person under 18.
most extreme case has the meaning given by subsection 87P(2).
non-economic loss means any one or more of the following:
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of expectation of life;
(d) disfigurement.
personal injury damages means damages or compensation for loss
or damage that is, or results from, the death of or personal injury to
a person.
plaintiff, in relation to a proceeding, means:
(a) if the proceeding is a proceeding that the Commission
commences under paragraph 87(1A)(b), or under section 149
or paragraph 237(1)(b) of the Australian Consumer Law—a
person on whose behalf the Commission commences the
proceeding; or
(aa) if the proceeding is a proceeding that the Director of Public
Prosecutions commences under paragraph 87(1A)(ba)—a
person on whose behalf the Director of Public Prosecutions
commences the proceeding; or
(b) in any other case—the person by whom the proceeding is
brought (however described).
proceeding to which this Part applies means a proceeding referred
to in section 87E.
quarter means a period of 3 months ending on 31 March, 30 June,
30 September or 31 December.
smoking has the same meaning as in the Tobacco Advertising
Prohibition Act 1992.
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Division 1 Introduction
Section 87E
402 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
tobacco product has the same meaning as in the Tobacco
Advertising Prohibition Act 1992.
87E Proceedings to which this Part applies
(1) This Part applies to proceedings taken under the Australian
Consumer Law:
(a) that relate to Part 2-2, 3-3, 3-4 or 3-5, or Division 2 of
Part 5-4, of the Australian Consumer Law; and
(b) in which the plaintiff is seeking an award of personal injury
damages; and
(c) that are not proceedings in respect of the death of or personal
injury to a person resulting from smoking or other use of
tobacco products.
(2) However, for the purposes of Divisions 2 and 7, paragraph (1)(c)
does not apply.
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Limitation periods Division 2
Section 87F
Competition and Consumer Act 2010 403
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 2—Limitation periods
87F Basic rule
(1) A court must not award personal injury damages in a proceeding to
which this Part applies if the proceeding was commenced:
(a) after the end of the period of 3 years after the date of
discoverability for the death or injury to which the personal
injury damages would relate; or
(b) after the end of the long-stop period for that death or injury.
(1A) However, paragraph (1)(b) does not apply in relation to a
proceeding in respect of the death of or personal injury to a person
resulting from smoking or other use of tobacco products.
(2) This diagram shows when this Division prevents an award of
personal injury damages.
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Division 2 Limitation periods
Section 87G
404 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
87G Date of discoverability
Definition
(1) The date of discoverability for the death or injury is the first date
when the plaintiff in the proceeding knows or ought to know each
of the following:
(a) that the death or personal injury has occurred;
(b) that the death or personal injury was attributable to a
contravention of this Act;
(c) that in the case of a personal injury—the injury was
significant enough to justify bringing an action.
Have 3 years elapsed since the date of discoverability?
Has the long-stop period expired?
Personal injury damages
may be awarded
No
Did the death or personal injury result
from smoking or other use of tobacco
products?
Yes
No
Personal injury damages
cannot be awarded
Yes
Yes
No
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Section 87G
Competition and Consumer Act 2010 405
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Constructive knowledge
(2) For the purposes of subsection (1), the plaintiff ought to know a
fact if the plaintiff would have ascertained the fact had the plaintiff
taken all reasonable steps before the date in question to ascertain
the fact.
Use of the plaintiff’s conduct and statements
(3) In determining what the plaintiff knows or ought to have known,
the court may have regard to the plaintiff’s conduct, and to the
plaintiff’s oral or written statements.
Minors
(4) If the plaintiff is a minor, facts that a capable parent or guardian of
the plaintiff knows or ought to know are taken for the purposes of
subsection (1) to be facts that the plaintiff knows or ought to know.
Incapacitated persons
(5) If:
(a) the plaintiff is an incapacitated person; and
(b) there is a guardian of the plaintiff, or other person to manage
all or part of the plaintiff’s estate, under a law of a State or
Territory relating to the protection of incapacitated persons;
facts that the guardian or other person knows or ought to know are
taken for the purposes of subsection (1) to be facts that the plaintiff
knows or ought to know.
Proceedings by personal representatives
(6) Despite subsection (1), if the plaintiff brings the proceeding in the
capacity of the personal representative of a deceased person, the
date of discoverability for the death or injury is the earliest of:
(a) if, had the deceased person commenced a proceeding, in
relation to the contravention to which the death or injury
relates, before his or her death, the date of discoverability
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Division 2 Limitation periods
Section 87H
406 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
under subsection (1) would have occurred more than 3 years
before the death—that date; or
(b) if, at the time of the plaintiff’s appointment as personal
representative, the plaintiff knew, or ought to have known, all
of the matters referred to in paragraphs (1)(a), (b) and (c)—
the date of the appointment; or
(c) if the first time at which the plaintiff knew, or ought to have
known, all of the matters referred to in paragraphs (1)(a), (b)
and (c) was after the date of appointment—the date of that
first time.
87H Long-stop period
(1) The long-stop period for the death or injury of a person is:
(a) the period of 12 years following the act or omission alleged
to have caused the death or injury; or
(b) that period as extended by the court.
(2) The court must not extend the period by more than 3 years beyond
the date of discoverability for the death or injury.
(3) In considering whether to extend the period, the court must have
regard to the justice of the case, and, in particular, must have
regard to:
(a) whether the passage of time has prejudiced a fair trial; and
(b) the nature and extent of the person’s loss or damage; and
(c) the nature of the defendant’s conduct alleged to have caused
the death or injury; and
(d) the nature of the defendant’s conduct since the alleged act or
omission.
87J The effect of minority or incapacity
In working out whether the period of 3 years after the date of
discoverability, or the long-stop period, has expired, disregard any
period during which the plaintiff has been:
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Section 87K
Competition and Consumer Act 2010 407
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(a) a minor who is not in the custody of a capable parent or
guardian; or
(b) an incapacitated person in respect of whom there is no
guardian, and no other person to manage all or part of the
person’s estate, under a law of a State or Territory relating to
the protection of incapacitated persons.
87K The effect of close relationships
(1) If:
(a) a cause of action to which the proceeding relates is founded
on the death or injury to a person (the victim) who was a
minor at the time of the act or omission alleged to have
caused the death or injury; and
(b) the proceeding is taken against a person who was at that
time:
(i) a parent or guardian of the victim; or
(ii) a person in a close relationship with a parent or guardian
of the victim;
in working out whether the period of 3 years after the date of
discoverability, or the long-stop period, has expired, disregard any
period:
(c) before the victim turns 25; or
(d) if the victim dies before turning 25—before the victim’s
death.
(2) For the purposes of subparagraph (1)(b)(ii), a person is taken to be
in a close relationship with a parent or guardian of the victim if the
person’s relationship with the parent or guardian is such that:
(a) the person might influence the parent or guardian not to bring
a claim on behalf of the victim against the person; or
(b) the victim might be unwilling to disclose to the parent or
guardian the acts, omissions or events in respect of which the
cause of action is founded.
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Division 3 Limits on personal injury damages for non-economic loss
Section 87L
408 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 3—Limits on personal injury damages for
non-economic loss
87L Limits on damages for non-economic loss
A court must not, in a proceeding to which this Part applies, award
as personal injury damages for non-economic loss an amount that
exceeds the amount (if any) permitted under this Division.
87M Maximum amount of damages for non-economic loss
(1) The maximum amount of damages for non-economic loss is:
(a) during the year in which this Part commences—$250,000; or
(b) during a later year—the amount worked out (to the nearest
multiple of $10) as follows:
where:
current September CPI number is the index number for the
quarter ending on 30 September in the year immediately
preceding that later year.
previous maximum amount is the maximum amount of
damages for non-economic loss during the year immediately
preceding that later year.
previous September CPI number is the index number for the
quarter ending on the 30 September immediately preceding
the 30 September referred to in the definition of current
September CPI number.
(2) If an amount worked out under paragraph (1)(b) is a multiple of $5
(but not a multiple of $10), round the amount up to the nearest
multiple of $10.
(3) This section does not affect the operation of section 86AA.
Current September CPI number Previous maximum amount
Previous September CPI number
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Section 87N
Competition and Consumer Act 2010 409
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87N Index numbers
(1) The index number for a quarter is the All Groups Consumer Price
Index number, being the weighted average of the 8 capital cities,
published by the Australian Statistician in respect of that quarter.
(2) Subject to subsection (3), if, at any time before or after the
commencement of this Act:
(a) the Australian Statistician has published or publishes an
index number in respect of a quarter; and
(b) that index number is in substitution for an index number
previously published by the Australian Statistician in respect
of that quarter;
disregard the publication of the later index number for the purposes
of this section.
(3) If, at any time, the Australian Statistician has changed or changes
the index reference period for the Consumer Price Index, then, in
applying this section after the change took place or takes place,
have regard only to index numbers published in terms of the new
index reference period.
(4) In this section:
Australian Statistician means the Australian Statistician referred
to in subsection 5(2) of the Australian Bureau of Statistics Act
1975.
87P Most extreme cases
(1) The court must not award as personal injury damages for
non-economic loss the maximum amount of damages for
non-economic loss except in a most extreme case.
(2) A most extreme case is a case in which the plaintiff suffers
non-economic loss of the gravest conceivable kind.
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Division 3 Limits on personal injury damages for non-economic loss
Section 87Q
410 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
87Q Cases of 33% or more (but not 100%) of a most extreme case
(1) If the non-economic loss the plaintiff suffers is at least 33%, but
less than 100%, of a most extreme case, the court must not award
as personal injury damages for non-economic loss an amount that
exceeds the applicable percentage of the maximum amount of
damages for non-economic loss.
(2) The applicable percentage is the extent of the non-economic loss
the plaintiff suffers, expressed as a percentage of a most extreme
case.
87R Cases of 15% or more (but less than 33%) of a most extreme
case
If the non-economic loss the plaintiff suffers is at least 15%, but
less than 33%, of a most extreme case, the court must not award as
personal injury damages for non-economic loss an amount that
exceeds the amount set out in the following table:
Cases of 15% or more (but less than 33%) of a most extreme case
Item Severity of the non-economic
loss (as a proportion of a most
extreme case)
Damages for non-economic loss (as a
proportion of the maximum amount
of damages for non-economic loss)
1 15% 1%
2 16% 1.5%
3 17% 2%
4 18% 2.5%
5 19% 3%
6 20% 3.5%
7 21% 4%
8 22% 4.5%
9 23% 5%
10 24% 5.5%
11 25% 6.5%
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Section 87S
Competition and Consumer Act 2010 411
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Cases of 15% or more (but less than 33%) of a most extreme case
Item Severity of the non-economic
loss (as a proportion of a most
extreme case)
Damages for non-economic loss (as a
proportion of the maximum amount
of damages for non-economic loss)
12 26% 8%
13 27% 10%
14 28% 14%
15 29% 18%
16 30% 23%
17 31% 26%
18 32% 30%
87S Cases of less than 15% of a most extreme case
If the non-economic loss the plaintiff suffers is less than 15% of a
most extreme case, the court must not award personal injury
damages for non-economic loss.
87T Referring to earlier decisions on non-economic loss
(1) In determining personal injury damages for non-economic loss, the
court may refer to earlier decisions of the court or of other courts
for the purpose of establishing the appropriate award in the
proceeding.
(2) For that purpose, the parties to the proceeding or their counsel may
bring the court’s attention to awards of personal injury damages for
non-economic loss in those earlier decisions.
(3) This section does not affect the rules for determination of other
damages or compensation.
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Division 4 Limits on personal injury damages for loss of earning capacity
Section 87U
412 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 4—Limits on personal injury damages for loss of
earning capacity
87U Personal injury damages for loss of earning capacity
In determining, in a proceeding to which this Part applies, personal
injury damages for:
(a) past economic loss due to loss of earnings or the deprivation
or impairment of earning capacity; or
(b) future economic loss due to the deprivation or impairment of
earning capacity; or
(c) the loss of expectation of financial support;
a court must disregard the amount by which the plaintiff’s gross
weekly earnings during any quarter would (but for the personal
injury or death in question) have exceeded:
(d) if, at the time the award was made, the amount of average
weekly earnings for the quarter was ascertainable—an
amount that is twice the amount of average weekly earnings
for the quarter; or
(e) if:
(i) at the time the award was made, the amount of average
weekly earnings for the quarter was not ascertainable; or
(ii) the award was made during, or before the start of, the
quarter;
an amount that is twice the amount of average weekly
earnings for the quarter that, at the time the award was made,
was the most recent quarter for which the amount of average
weekly earnings was ascertainable.
87V Average weekly earnings
(1) Average weekly earnings, for a quarter, means the amount:
(a) published by the Australian Statistician as the average
weekly earnings for all employees (total earnings, seasonally
adjusted) for the reference period in that quarter; or
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Section 87V
Competition and Consumer Act 2010 413
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(b) if the Australian Statistician fails or ceases to publish the
amount referred to in paragraph (a)—the amount determined
in the manner specified in the regulations.
(2) Regulations made for the purposes of paragraph (1)(b) may specify
matters by reference to which an amount is to be determined.
(3) In this section:
reference period, in a quarter, is the period described by the
Australian Statistician as the pay period ending on or before a
specified day that is the third Friday of the middle month of that
quarter.
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Part VIB Claims for damages or compensation for death or personal injury
Division 5 Limits on personal injury damages for gratuitous attendant care services
Section 87W
414 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 5—Limits on personal injury damages for
gratuitous attendant care services
87W Personal injury damages for gratuitous attendant care services
for plaintiff
(1) A court must not, in a proceeding to which this Part applies, award
personal injury damages for gratuitous attendant care services for
the plaintiff, except in accordance with this section.
(2) The court must be satisfied that:
(a) there is (or was) a reasonable need for the services to be
provided; and
(b) the need has arisen (or arose) solely because of personal
injury to which the personal injury damages relate; and
(c) the services would not be (or would not have been) provided
to the plaintiff but for the injury; and
(d) the services are provided (or are to be provided) for at least 6
hours per week; and
(e) the services are provided (or are to be provided) over a period
of at least 6 months.
(3) If the services were provided during a quarter for which, at the
time the award was made, the amount of average weekly earnings
was ascertainable, the court must not award as personal injury
damages for the services:
(a) if the services were provided for at least 40 hours per week—
an amount per week that exceeds average weekly earnings
for that quarter; or
(b) if the services were provided for less than 40 hours per
week—an amount per hour that exceeds 1/40 of average
weekly earnings for that quarter.
(4) If the services:
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Section 87X
Competition and Consumer Act 2010 415
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(a) were provided during a quarter for which, at the time the
award was made, the amount of average weekly earnings was
not ascertainable; or
(b) are to be provided after the time the award was made;
the court must not award as personal injury damages for the
services:
(c) if the services were provided for at least 40 hours per week—
an amount per week that exceeds average weekly earnings
for the quarter that, at the time the award was made, was the
most recent quarter for which the amount of average weekly
earnings was ascertainable; or
(d) if the services were provided for less than 40 hours per
week—an amount per hour that exceeds 1/40 of average
weekly earnings for that quarter.
(5) Gratuitous attendant care services are services that one person
provides to another person:
(a) that:
(i) are of a domestic nature; or
(ii) relate to nursing; or
(iii) aim to alleviate the consequences of a personal injury;
and
(b) for which the other person has not paid or is not liable to pay.
87X Personal injury damages for loss of plaintiff’s capacity to
provide gratuitous attendant care services
(1) A court must not, in a proceeding to which this Part applies, award
personal injury damages for loss of the plaintiff’s capacity to
provide gratuitous attendant care services to other persons, except
in accordance with this section.
(2) The court must be satisfied that:
(a) prior to his or her loss of capacity to provide the services, the
plaintiff had provided the services:
(i) for at least 6 hours per week; and
(ii) over a period of at least 6 months; and
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Section 87X
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(b) the other person would have been entitled, if the plaintiff had
died as a result of the contravention of this Act to which the
award relates, to recover damages under a law of a State or
Territory for loss of the plaintiff’s services.
(3) If the plaintiff would have provided the services during a quarter
for which, at the time the award was made, the amount of average
weekly earnings was ascertainable, the court must not award as
personal injury damages for the services:
(a) if the services would have been provided for at least 40 hours
per week—an amount per week that exceeds average weekly
earnings for that quarter; and
(b) if the services would have been provided for less than 40
hours per week—an amount per hour that exceeds 1/40 of
average weekly earnings for that quarter.
(4) If the plaintiff:
(a) would have provided the services during a quarter for which,
at the time the award was made, the amount of average
weekly earnings was not ascertainable; or
(b) would have provided the services after the time the award
was made;
the court must not award as personal injury damages for the
services:
(c) if the services were provided for at least 40 hours per week—
an amount per week that exceeds average weekly earnings
for the quarter that, at the time the award was made, was the
most recent quarter for which the amount of average weekly
earnings was ascertainable; or
(d) if the services were provided for less than 40 hours per
week—an amount per hour that exceeds 1/40 of average
weekly earnings for that quarter.
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Division 6—Other limits on personal injury damages
87Y Damages for future economic loss—discount rate
(1) If an award of personal injury damages in a proceeding to which
this Part applies is to include any component, assessed as a lump
sum, for future economic loss of any kind, the present value of that
future economic loss is to be determined by applying:
(a) a discount rate of the percentage prescribed by the
regulations; or
(b) if no percentage is prescribed—a discount rate of 5%.
(2) A regulation made for the purposes of paragraph (1)(a) does not
commence before the end of the period of 6 months starting:
(a) if the regulation is laid before each House of the Parliament
under section 38 of the Legislation Act 2003 on the same
day—on that day; or
(b) if it is laid before each House of the Parliament under that
section on different days—on the later of those days.
(3) Except as provided by this section, this section does not affect any
other law relating to the discounting of sums awarded as damages
or compensation.
87Z Damages for loss of superannuation entitlements
A court must not, in a proceeding to which this Part applies, award
personal injury damages for economic loss due to the loss of
employer superannuation contributions an amount that exceeds the
following amount:
where:
damages for earnings loss are the personal injury damages
payable (in accordance with this Part) for:
Superannuation percentage Damages for earnings loss
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(a) any past economic loss due to loss of earnings, or the
deprivation or impairment of earning capacity, on which the
entitlement to those contributions is based; and
(b) any future economic loss due to the deprivation or
impairment of earning capacity on which the entitlement to
those contributions would be based.
superannuation percentage is the highest employer’s charge
percentage for a quarter under section 19 of the Superannuation
Guarantee (Administration) Act 1992.
87ZA Interest on damages
(1) A court must not, in a proceeding to which this Part applies, order
the payment of interest on personal injury damages for:
(a) non-economic loss; or
(b) gratuitous attendant care services for the plaintiff; or
(c) loss of the plaintiff’s capacity to provide gratuitous attendant
care services to other persons.
(2) If, in a proceeding to which this Part applies, a court is satisfied
that interest is payable on personal injury damages of another kind,
the rate of interest to be used in working out the interest is:
(a) the rate of interest prescribed by the regulations; or
(b) if no rate is prescribed—the 10-year benchmark bond rate on
the day on which the court determines the personal injury
damages.
(3) This section does not affect the payment of interest on a debt under
a judgment or order of a court.
(4) In this section:
10-year benchmark bond rate, on a day, means:
(a) if the day occurs on or after 1 March in a particular year and
before 1 September in that year—the Commonwealth
Government 10-year benchmark bond rate:
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(i) as published by the Reserve Bank of Australia in the
Reserve Bank of Australia Bulletin (however
described); and
(ii) applying on the first business day of January in that
year; or
(b) otherwise—the Commonwealth Government 10-year
benchmark bond rate, as so published, applying on the first
business day of July in the preceding year.
business day means a day other than a Saturday, a Sunday or a
public or bank holiday in any State, the Australian Capital
Territory or the Northern Territory.
87ZB Exemplary and aggravated damages
(1) A court must not, in a proceeding to which this Part applies, award
exemplary damages or aggravated damages in respect of death or
personal injury.
(2) This section does not affect whether a court has power to award
exemplary damages or aggravated damages:
(a) otherwise than in respect of death or personal injury; or
(b) in a proceeding other than a proceeding to which this Part
applies.
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Section 87ZC
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Division 7—Structured settlements
87ZC Court may make orders under section 87 for structured
settlements
(1) In a proceeding to which this Part applies, a court may, on the
application of the parties, make an order under section 87
approving a structured settlement, or the terms of a structured
settlement, even though the payment of damages is not in the form
of a lump sum award of damages.
(2) This section does not limit the powers of a court to make an order
under section 87 in a proceeding that is not a proceeding to which
this Part applies.
(3) In this section:
structured settlement means an agreement that provides for the
payment of all or part of an award of damages in the form of
periodic payments funded by an annuity or other agreed means.
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Part VII—Authorisations and notifications
Division 1—Authorisations
87ZP Definitions
(1) In this Division:
industry code of practice means a code regulating the conduct of
participants in an industry towards other participants in the
industry or towards consumers in the industry.
minor variation, in relation to an authorization, is a single
variation that does not involve a material change in the effect of the
authorization.
(2) A reference in this Division to a proposal of the Commission is a
reference to a notice of the Commission:
(a) so far as the revocation of an authorization is concerned—
under subsection 91B(3); and
(b) so far as the revocation of an authorization and the
substitution of another—under subsection 91C(3).
88 Commission may grant authorisations
Granting an authorisation
(1) Subject to this Part, the Commission may, on an application by a
person, grant an authorisation to a person to engage in conduct,
specified in the authorisation, to which one or more provisions of
Part IV specified in the authorisation would or might apply.
Note: For an extended meaning of engaging in conduct, see subsection 4(2).
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Effect of an authorisation
(2) While the authorisation remains in force, the provisions of Part IV
specified in the authorisation do not apply in relation to the
conduct to the extent that it is engaged in by:
(a) the applicant; and
(b) any other person named or referred to in the application as a
person who is engaged in, or who is proposed to be engaged
in, the conduct; and
(c) any particular persons or classes of persons, as specified in
the authorisation, who become engaged in the conduct.
Conditions
(3) The Commission may specify conditions in the authorisation.
Subsection (2) does not apply if any of the conditions are not
complied with.
(4) Without limiting subsection (3), the Commission may grant a
merger authorisation on the condition that a person must give, and
comply with, an undertaking to the Commission under
section 87B.
Single authorisation may deal with several types of conduct
(5) The Commission may grant a single authorisation for all the
conduct specified in an application for authorisation, or may grant
separate authorisations for any of the conduct.
Past conduct
(6) The Commission does not have power to grant an authorisation for
conduct engaged in before the Commission decides the application
for the authorisation.
Withdrawing an application
(7) An applicant for an authorisation may at any time, by writing to the
Commission, withdraw the application.
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89 Procedure for applications and the keeping of a register
(1) To be valid, an application for an authorisation, a minor variation
of an authorisation, a revocation of an authorisation, or a
revocation of an authorisation and the substitution of another
authorisation, must:
(a) be in a form approved by the Commission in writing and
contain the information required by the form; and
(b) be accompanied by any other information or documents
prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the
regulations.
(1AA) Without limiting paragraph (1)(a), the form may require an
application for a merger authorisation to contain an undertaking
under section 87B that the applicant will not make the acquisition
to which the authorisation relates while the Commission is
considering the application.
(1A) If the Commission receives a purported application that it
considers is not a valid application, it must, within 5 business days
of receiving the purported application, give the person who made
the purported application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not
comply with this Division.
(1B) For the purposes of subsection (1A), business day means a day that
is not a Saturday, a Sunday or a public holiday in the Australian
Capital Territory.
(2) If the Commission receives an application referred to in
subsection (1), the Commission must cause notice of the receipt of
that application to be made public in such manner as it thinks fit.
(3) The Commission must keep a register of:
(a) applications for authorizations; and
(b) applications for minor variations of authorizations; and
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(c) applications for, or the Commission’s proposals for, the
revocation of authorizations; and
(d) applications for, or the Commission’s proposals for, the
revocation of authorizations and the substitution of other
authorizations;
including applications that have been withdrawn or proposals that
have been abandoned.
(4) Subject to this section, the register kept under subsection (3) shall
include:
(a) any document furnished to the Commission in relation to an
application or proposal referred to in subsection (3);
(aa) any draft determination, and any summary of reasons, by the
Commission that is furnished to a person under section 90A,
or under that section as applied by section 91C;
(ab) any record of a conference made in accordance with
subsection 90A(8), or with that subsection as applied by
section 91C, and any certificate in relation to a conference
given under subsection 90A(9), or under that subsection as so
applied;
(b) particulars of any oral submission made to the Commission
in relation to such an application or proposal; and
(c) the determination of the Commission on such an application
or proposal and the statement of the reasons given by the
Commission for that determination.
(5) Where a person furnishes a document to the Commission in
relation to an application or proposal referred to in subsection (3)
or makes an oral submission to the Commission in relation to such
an application or proposal, he or she may, at the time when the
document is furnished or the submission is made, request that the
document or a part of the document, or that particulars of the
submission or of part of the submission, be excluded from the
register kept under subsection (3) by reason of the confidential
nature of any of the matters contained in the document or
submission.
(5A) Where such a request is made:
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(a) if the document or the part of the document, or the
submission or the part of the submission, to which the
request relates contains particulars of:
(i) a secret formula or process;
(ii) the cash consideration offered for the acquisition of
shares in the capital of a body corporate or assets of a
person; or
(iii) the current costs of manufacturing, producing or
marketing goods or services;
the Commission shall exclude the document or the part of the
document, or particulars of the submission or of the part of
the submission, as the case may be, from the register kept
under subsection (3); and
(b) in any other case—the Commission may, if it is satisfied that
it is desirable to do so by reason of the confidential nature of
the matters contained in the document or the part of the
document, or in the submission or the part of the submission,
exclude the document or the part of the document, or
particulars of the submission or of the part of the submission,
as the case may be, from that register.
(5B) If the Commission refuses a request to exclude a document or a
part of a document from the register kept under subsection (3), the
Commission shall, if the person who furnished the document to the
Commission so requires, return the document or part of the
document to him or her and, in that case, paragraph (4)(a) does not
apply in relation to the document or part of the document.
(5C) If the Commission refuses a request to exclude particulars of an
oral submission or of part of an oral submission from the register
kept under subsection (3), the person who made the submission
may inform the Commission that he or she withdraws the
submission or that part of the submission and, in that case,
paragraph (4)(b) does not apply in relation to the submission or
that part of the submission, as the case may be.
(5D) Where the Commission is satisfied that it is desirable to do so for
any reason other than the confidential nature of matters contained
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in a document or submission, the Commission may exclude a
document or part of a document referred to in paragraph (4)(a) or
particulars referred to in paragraph (4)(b) from the register kept
under subsection (3).
(5E) If a person requests, in accordance with subsection (5) that a
document or a part of a document, or that particulars of a
submission or of part of a submission, be excluded from the
register kept under subsection (3), the document or part of the
document, or particulars of the submission or of the part of the
submission, shall not be included in that register until the
Commission has made a determination in relation to the request.
(6) A document shall not be included in the register kept under
subsection (3) if a direction in relation to that document was in
force under paragraph 22(1)(b) of this Act immediately before the
commencement of the Trade Practices Amendment Act 1977.
(7) The Commission may disclose information excluded under this
section from the register kept under subsection (3) to such persons
and on such terms as it considers reasonable and appropriate for
the purposes of making its determination on the application
concerned.
90 Determination of applications for authorisations
(1) The Commission shall, in respect of an application for an
authorization:
(a) make a determination in writing granting such authorization
as it considers appropriate; or
(b) make a determination in writing dismissing the application.
(4) The Commission shall state in writing its reasons for a
determination made by it.
(5) Before making a determination in respect of an application for an
authorisation other than a merger authorisation the Commission
shall comply with the requirements of section 90A.
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Note: Alternatively, the Commission may rely on consultations undertaken
by the AEMC: see section 90B.
(6) Before making a determination in respect of an application for an
authorisation, the Commission may do any one or more of the
following:
(a) give any persons who appear to the Commission to be
interested a written notice inviting submissions in respect of
the application within a specified period;
(b) give the applicant a written notice requesting the applicant to
give the Commission, within a specified period, additional
information relevant to making its determination in respect of
the application;
(c) give a person a written notice requesting the person to give
the Commission, within a specified period, particular
information relevant to making its determination in respect of
the application;
(d) consult with such persons as it considers reasonable and
appropriate for the purposes of making its determination in
respect of the application.
(6A) In making a determination in respect of an application for an
authorisation, the Commission must take into account:
(a) any submissions or information received under
paragraph (6)(a), (b) or (c) within the period specified in the
notice mentioned in that paragraph; and
(b) any information obtained from consultations under
paragraph (6)(d)).
The Commission may, but need not, take into account any
submissions or information received after the end of those periods.
Note: Unless the application is for a merger authorisation, the Commission
may instead rely on consultations undertaken by the AEMC: see
section 90B.
(7) The Commission must not make a determination granting an
authorisation under section 88 in relation to conduct unless the
Commission is satisfied in all the circumstances:
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(a) that the conduct would not have the effect, or would not be
likely to have the effect, of substantially lessening
competition; or
(b) that:
(i) the conduct would result, or be likely to result, in a
benefit to the public; and
(ii) the benefit would outweigh the detriment to the public
that would result, or be likely to result, from the
conduct.
(8) Paragraph (7)(a) does not apply to the extent that any of the
following provisions would (apart from an authorisation under
section 88) apply to the conduct:
(a) one or more provisions of Division 1 of Part IV (cartel
conduct);
(b) one or more of sections 45D to 45DB (secondary boycotts);
(ba) one or more provisions of section 45E or 45EA (contracts
etc. affecting the supply or acquisition of goods or services);
(c) section 48 (resale price maintenance).
(9A) In relation to the Commission’s consideration of an application for
an authorisation to engage in conduct to which section 49 would or
might apply or for a merger authorisation, in determining what
amounts to a benefit to the public for the purposes of
paragraph (7)(b):
(a) the Commission must regard the following as benefits to the
public (in addition to any other benefits to the public that
may exist apart from this paragraph):
(i) a significant increase in the real value of exports;
(ii) a significant substitution of domestic products for
imported goods; and
(b) without limiting the matters that may be taken into account,
the Commission must take into account all other relevant
matters that relate to the international competitiveness of any
Australian industry.
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(10) If the Commission does not determine an application for an
authorisation (other than an application for a merger authorisation)
within the relevant period, then it is taken to have granted the
application at the end of that period.
(10A) For the purposes of subsection (10), the relevant period is the
period of 6 months beginning on the day the Commission received
the application. However, if, before the end of that 6 month period:
(a) the Commission has prepared a draft determination under
subsection 90A(1) in relation to the application; and
(b) the Commission determines in writing that that period is
extended by a specified period of not more than 6 months;
and
(c) the applicant agrees to that period being so extended;
the relevant period is that period as so extended.
(10B) Subject to subsections (12) and (13), if:
(a) the Commission does not determine an application for a
merger authorisation within the 90-day period beginning on
the day the Commission received the application; and
(b) the application is not an application for an overseas merger
authorisation;
the Commission is taken to have refused, at the end of that period,
to grant the authorisation applied for.
(11) Subject to subsections (12) and (13), if the Commission does not
determine an application for an overseas merger authorisation
within:
(a) 30 days from the day on which the application is received by
the Commission; or
(b) if the Commission, before the end of that period of 30 days,
gives to the applicant a notice in writing requesting the
applicant to give to the Commission additional information
relevant to the determination of the application—the period
consisting of 30 days from the day on which the application
is received by the Commission increased by the number of
days in the period commencing on the day on which the
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notice is given to the applicant and ending on the day on
which the applicant gives to the Commission such of the
additional information as the applicant is able to provide;
the Commission shall be deemed to have granted, at the end of that
period, the authorisation applied for.
(11A) The Commission may, within the 30 day period mentioned in
subsection (11), notify the applicant in writing that the
Commission considers that the period should be extended to 45
days due to the complexity of the issues involved. If the
Commission so notifies the applicant, the references in
subsection (11) to 30 days are to be treated as references to 45
days.
(12) If the applicant for an authorization informs the Commission in
writing before the expiration of the period referred to in
subsection (10B) or (11) (the base period) that the applicant agrees
to the Commission taking a specified longer period for the
determination of the application, a reference to that longer period
shall be deemed for the purposes of that application to be
substituted in that subsection for the reference in that subsection to
the base period.
(13) For the purposes of any application of subsection (12), a reference
in that subsection to the base period shall, if a reference to another
period is deemed by any other application or applications of that
subsection to have been substituted in subsection (10B) or (11) for
the reference in subsection (10B) or (11) to the base period, be
construed as a reference to that other period.
(14) If a person to whom a notice has been sent under
subsection 90A(2) in relation to a draft determination in respect of
an application for an authorization notifies the Commission in
accordance with subsection 90A(6) that he or she wishes the
Commission to hold a conference in relation to the draft
determination, the relevant period (worked out under
subsection (10A) of this section) shall be deemed to be increased
by a period equal to the period commencing on the day on which
the first notification in relation to the draft determination was
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received by the Commission and ending on the seventh day after
the day specified in the certificate given by a member of the
Commission in pursuance of subsection 90A(9) as the day on
which the conference terminated.
(15) Where a party to a joint venture makes at the one time two or more
applications for authorizations (other than an application for a
merger authorisation), being applications each of which deals with
a matter relating to the joint venture:
(a) the Commission shall not make a determination in respect of
any one of those applications unless it also makes a
determination or determinations at the same time in respect
of the other application or other applications; and
(b) if the Commission does not make a determination in respect
of any one of the applications within the relevant period
(worked out under subsection (10A)) in relation to that
application, the Commission shall be deemed to have
granted, at the expiration of that period, all the authorizations
applied for.
90A Commission to afford opportunity for conference before
determining application for authorisation
(1) Before determining an application for an authorization (other than
an application for a merger authorisation), the Commission shall
prepare a draft determination in relation to the application.
(2) The Commission shall, by notice in writing sent to the applicant
and to each other interested person, invite the applicant or other
person to notify the Commission, within 14 days after a date fixed
by the Commission being not earlier than the day on which the
notice is sent, whether the applicant or other person wishes the
Commission to hold a conference in relation to the draft
determination.
(3) If:
(a) the draft determination provides for the granting of the
application unconditionally; and
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(b) no person has made a written submission to the Commission
opposing the application;
each notice by the Commission under subsection (2) shall inform
the person to whom the notice is sent that the draft determination
so provides.
(4) If:
(a) the draft determination does not provide for the granting of
the application or provides for the granting of the application
subject to conditions; or
(b) the draft determination provides for the granting of the
application unconditionally but a written submission has, or
written submissions have, been made to the Commission
opposing the application;
the Commission shall send with each notice under subsection (2) a
copy of the draft determination and:
(c) in a case to which paragraph (a) applies—a summary of the
reasons why the Commission is not satisfied that the
application should be granted or why it is not satisfied that
the application should be granted unconditionally; or
(d) in a case to which paragraph (b) applies—a summary of the
reasons why it is satisfied that the application should be
granted unconditionally.
(5) If each of the persons to whom a notice was sent under
subsection (2):
(a) notifies the Commission within the period of 14 days
mentioned in that subsection that he or she does not wish the
Commission to hold a conference in relation to the draft
determination; or
(b) does not notify the Commission within that period that he or
she wishes the Commission to hold such a conference;
the Commission may make the determination at any time after the
expiration of that period.
(6) If any of the persons to whom a notice was sent under
subsection (2) notifies the Commission in writing within the period
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of 14 days mentioned in that subsection that he or she wishes the
Commission to hold a conference in relation to the draft
determination, the Commission shall appoint a date (being not later
than 30 days after the expiration of that period), time and place for
the holding of the conference and give notice of the date, time and
place so appointed to each of the persons to whom a notice was
sent under subsection (2).
(7) At the conference:
(a) the Commission shall be represented by a member or
members of the Commission (being a member or members
who participated in the preparation of the draft
determination) nominated by the Chairperson; and
(b) each person to whom a notice was sent under subsection (2)
and any other interested person whose presence at the
conference is considered by the Commission to be
appropriate is entitled to attend and participate personally or,
in the case of a body corporate, may be represented by a
person who, or by persons each of whom, is a director,
officer or employee of the body corporate; and
(c) a person participating in the conference in accordance with
paragraph (a) or (b) is entitled to have another person or other
persons present to assist him or her but a person who so
assists another person at the conference is not entitled to
participate in the discussion; and
(e) no other person is entitled to be present.
(8) A member of the Commission participating in the conference shall
make such record of the discussions as is sufficient to set out the
matters raised by the persons participating in the conference.
(9) The member of the Commission who represents the Commission at
the conference, or, if the Commission is represented by more than
one member of the Commission, one of those members appointed
by the Chairperson:
(a) may exclude from the conference any person who uses
insulting language at the conference, creates, or takes part in
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creating or continuing, a disturbance at the conference or
repeatedly interrupts the conference;
(b) may terminate the conference when he or she is of the
opinion that a reasonable opportunity has been given for the
expression of the views of persons participating in the
conference (other than persons excluded from the conference
under paragraph (a)); and
(c) shall give a certificate certifying the day on which the first
notification under subsection (6) in relation to the draft
determination was received by the Commission and the day
on which the conference terminated;
and any such certificate shall be received in all courts as prima
facie evidence of the matters certified.
(10) A document purporting to be a certificate referred to in
subsection (9) shall, unless the contrary is established, be deemed
to be such a certificate and to have been duly given.
(11) The Commission shall take account of all matters raised at the
conference and may at any time after the termination of the
conference make a determination in respect of the application.
(12) For the purposes of this section, interested person means a person
who has notified the Commission in writing that he or she, or a
specified unincorporated association of which he or she is a
member, claims to have an interest in the application, being an
interest that, in the opinion of the Commission, is real and
substantial.
(13) Where the Commission is of the opinion that two or more
applications for authorizations that are made by the same person,
or by persons being bodies corporate that are related to each other,
involve the same or substantially similar issues, the Commission
may treat the applications as if they constitute a single application
and may prepare one draft determination in relation to the
applications and hold one conference in relation to that draft
determination.
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90B Commission may rely on consultations undertaken by the
AEMC
(1) This section applies if:
(a) an application under section 88, 91A, 91B or 91C is made in
relation to the National Electricity Rules or a provision of the
Rules; and
(b) the AEMC has done the following:
(i) published the Rules or the provision and invited people
to make submissions to it on the Rules or the provision;
(ii) specified the effect of subsection (2) when it published
the Rules or the provision;
(iii) considered any submissions that were received within
the time limit specified by it when it published the Rules
or the provision.
(2) In making a determination under section 90, 91A, 91B or 91C:
(a) the Commission may rely on the process mentioned in
paragraph (1)(b), instead of undertaking the process
mentioned in section 90A, subsection 91A(2), 91B(2) or
91C(2) or (5); and
(b) the Commission may take into account:
(i) any submissions mentioned in subparagraph (1)(b)(iii);
and
(ii) any submissions, in respect of the application, made by
the AEMC; and
(c) despite subsection 90(6A), the Commission may disregard
any submissions, in relation to the application, made by the
Commonwealth, by a State or Territory, or by any other
person (other than the AEMC).
(3) In this section:
National Electricity Rules means:
(a) the National Electricity Rules, as in force from time to time,
made under the National Electricity Law set out in the
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Schedule to the National Electricity (South Australia) Act
1996 of South Australia; or
(b) those Rules as they apply as a law of another State; or
(c) those Rules as they apply as a law of a Territory; or
(d) those Rules as they apply as a law of the Commonwealth.
91 Grant and variation of authorisations
(1) An authorization may be expressed to be in force for a period
specified in the authorization and, if so expressed, remains in force
for that period only.
(1A) An authorisation, other than an authorisation deemed to have been
granted under subsection 90(10) or (11), comes into force on the
day specified for the purpose in the authorisation, not being a day
earlier than, and an authorisation deemed to have been granted
under subsection 90(10) or (11) comes into force on:
(a) where paragraph (b) or (c) does not apply—the end of the
period in which an application may be made to the Tribunal
for a review of the determination by the Commission of the
application for the authorisation;
(b) if such an application is made to the Tribunal and the
application is not withdrawn—the day on which the Tribunal
makes a determination on the review;
(c) if such an application is made to the Tribunal and the
application is withdrawn—the day on which the application
is withdrawn.
(1B) A minor variation of an authorization comes into force on a day
specified by the Commission in the determination making the
variation, not being a day earlier than:
(a) if neither paragraph (b) nor (c) applies—the end of the period
in which an application may be made to the Tribunal for a
review of the determination of the Commission in respect of
the application for the minor variation; or
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(b) if such an application is made to the Tribunal and the
application is not withdrawn—the day on which the Tribunal
makes a determination on the review; or
(c) if such an application is made to the Tribunal and the
application is withdrawn—the day on which the application
is withdrawn.
(1C) If an authorization (the prior authorization) is revoked and another
authorization is made in substitution for it, that other authorization
comes into force on the day specified for the purpose in that other
authorization, not being a day earlier than:
(a) if neither paragraph (b) nor (c) applies—the end of the period
in which an application may be made to the Tribunal for a
review of an application, or the Commission’s proposal, for
the revocation of the prior authorization and the substitution
of that other authorization; or
(b) if such an application is made to the Tribunal and the
application is not withdrawn—the day on which the Tribunal
makes a determination on the review; or
(c) if such an application is made to the Tribunal and the
application is withdrawn—the day on which the application
is withdrawn.
(2) If the Commission considers that it is appropriate to do so:
(a) for the purpose of enabling due consideration to be given to:
(i) an application for an authorization; or
(ii) an application for a minor variation of an authorization;
or
(iii) an application for the revocation of an authorization and
the substitution of a new one; or
(b) pending the expiration of the time allowed for the making of
an application to the Tribunal for review of a determination
by the Commission of an application referred to in
paragraph (a) and, if such an application for a review is
made, pending the making of a determination by the Tribunal
on the review; or
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(c) for any other reason;
the Commission may at any time:
(d) in the case of an application for an authorization—grant an
authorization that is expressed to be an interim authorization;
and
(e) in the case of an application for a minor variation of an
authorization—grant an authorization that is expressed to be
an interim authorization dealing only with the matter the
subject of the application for a variation; and
(f) in the case of an application for the revocation of an
authorization and the substitution of another—suspend the
operation of the authorization sought to be revoked and grant
an authorization that is expressed to be an interim
authorization in substitution for the authorization suspended.
(2AA) An authorization granted under paragraph 91(2)(d), (e) or (f) and
expressed to be an interim authorization comes into force on such a
date, not being a date before the grant of the interim authorization,
as is specified by the Commission in the interim authorization.
(2AB) The Commission may, at any time, revoke an authorization that is
expressed to be an interim authorization and, where that interim
authorization is in substitution for an authorization the operation of
which has been suspended, the revocation of the interim
authorization has the effect of reviving the operation of the
suspended authorization.
(2A) Subsections 90(4) to (7), inclusive, do not apply in relation to an
authorization that is expressed to be an interim authorization.
91A Minor variations of authorizations
(1) A person to whom an authorization was granted, or another person
on behalf of such a person, may apply to the Commission for a
minor variation of the authorization.
(2) On receipt of an application, the Commission must, if it is satisfied
that the variation sought in the application is a minor variation, by
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notice in writing given to any persons who appear to the
Commission to be interested:
(a) indicate the nature of the variation applied for; and
(b) invite submissions in respect of the variation within a period
specified by the Commission.
Note: Alternatively, the Commission may rely on consultations undertaken
by the AEMC: see section 90B.
(2A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation
to an application for a minor variation of an authorisation in a
corresponding way to the way in which it applies in relation to an
application for an authorisation.
(3) The Commission may make a determination in writing varying the
authorisation or dismissing the application after taking into account
the following:
(a) the application;
(b) any submissions that are received within the period specified
under paragraph (2)(b);
(c) any information received under paragraph 90(6)(b) or (c) (as
that paragraph applies because of subsection (2A) of this
section) within the period specified in the notice mentioned
in that paragraph;
(d) any information obtained from consultations under
paragraph 90(6)(d) (as that paragraph applies because of
subsection (2A) of this section).
The Commission may, but need not, take into account any
submissions or information received after the end of those periods.
(4) The Commission must not make a determination varying an
authorisation in relation to conduct unless the Commission is
satisfied in all the circumstances that:
(a) if, in making the determination to grant the authorisation in
relation to conduct, the Commission was satisfied that the
conduct would not have the effect, or would not be likely to
have the effect, of substantially lessening competition—the
variation would not have the effect, or would not be likely to
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have the effect, of increasing the extent to which the conduct
lessens competition; or
(b) if paragraph (a) does not apply—the variation would not
result, or would not be likely to result, in a reduction in the
extent to which the benefit to the public of the authorisation
outweighs any detriment to the public caused by the
authorisation.
(4A) For the purposes of subsection (4), the Commission need not have
regard to conduct that is unaffected by the variation.
(5) Subsections 90(10B), (12) and (13) apply in relation to an
application for a minor variation of a merger authorisation that is
not an overseas merger authorisation in a corresponding way to the
way those subsections apply in relation to an application for a
merger authorisation that is not an overseas merger authorisation.
Note: Those subsections deem the Commissioner to have refused to grant
the application if the Commission does not determine the application
within 90 days (or an extended period in some cases).
(6) Nothing in this section prevents a person from applying for 2 or
more variations in the same application.
(7) If:
(a) a person applies for 2 or more variations:
(i) at the same time; or
(ii) in such close succession that the variations could
conveniently be dealt with by the Commission at the
same time; and
(b) the Commission is satisfied that the combined effect of those
variations, if all were granted, would not involve a material
change in the effect of the authorization;
the Commission may deal with all of those variations together as if
they were a single minor variation.
(8) An application for a minor variation may be withdrawn by notice
in writing to the Commission at any time.
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91B Revocation of an authorization
(1) A person to whom an authorization was granted, or another person
on behalf of such a person, may apply to the Commission for a
revocation of the authorization.
(2) On receipt of such an application, the Commission must, by notice
in writing given to any persons who appear to the Commission to
be interested:
(a) indicate that the revocation of the authorization has been
applied for; and
(b) indicate the basis on which the revocation has been applied
for; and
(c) invite submissions in respect of the revocation within a
period specified by the Commission.
Note: Alternatively, the Commission may rely on consultations undertaken
by the AEMC: see section 90B.
(3) If, at any time after granting an authorization, it appears to the
Commission that:
(a) the authorization was granted on the basis of evidence or
information that was false or misleading in a material
particular; or
(b) a condition to which the authorization was expressed to be
subject has not been complied with; or
(c) there has been a material change of circumstances since the
authorization was granted;
the Commission may, by notice in writing given to any persons
who appear to the Commission to be interested:
(d) inform those persons that it is considering the revocation of
the authorization; and
(e) indicate the basis on which the revocation is being proposed;
and
(f) invite submissions in respect of the revocation within a
period specified by the Commission.
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(3A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation
to an application for a revocation of an authorisation in a
corresponding way to the way in which it applies in relation to an
application for an authorisation.
(3B) Subsection 90(6) (other than paragraphs 90(6)(a) and (b)) applies
in relation to a proposal for a revocation of an authorisation in a
corresponding way to the way in which it applies in relation to an
application for an authorisation.
(4) The Commission may make a determination in writing revoking
the authorisation, or deciding not to revoke the authorisation, after
taking into account the following:
(a) if subsection (2) applies—the application;
(b) any submissions that are received within the period specified
under paragraph (2)(c) or (3)(f);
(c) any information received under paragraph 90(6)(b) (as it
applies because of subsection (3A) of this section) within the
period specified in the notice mentioned in that paragraph;
(d) any information received under paragraph 90(6)(c) (as it
applies because of subsection (3A) or (3B) of this section)
within the period specified in the notice mentioned in that
paragraph;
(e) any information obtained from consultations under
paragraph 90(6)(d) (as it applies because of subsection (3A)
or (3B) of this section).
The Commission may, but need not, take into account any
submissions or information received after the end of those periods.
(5) If an objection to revoking the authorisation is included in any
submission or information:
(a) referred to in subsection (4); and
(b) received by the Commission within the period (if any)
referred to in that subsection;
the Commission must not make a determination revoking the
authorisation unless the Commission is satisfied that it would, if
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the authorisation had not already been granted, be prevented under
subsection 90(7) from granting the authorisation.
(5A) Subsections 90(10B), (12) and (13) apply in relation to an
application for a revocation of a merger authorisation that is not an
overseas merger authorisation in a corresponding way to the way
those subsections apply in relation to an application for a merger
authorisation that is not an overseas merger authorisation.
Note: Those subsections deem the Commissioner to have refused to grant
the application if the Commission does not determine the application
within 90 days (or an extended period in some cases).
(6) An application for revocation may be withdrawn by notice in
writing to the Commission at any time.
(7) The Commission may disregard any objection that, in its opinion,
is either vexatious or frivolous.
91C Revocation of an authorization and substitution of a
replacement
(1) A person to whom an authorization was granted, or another person
on behalf of such a person, may apply to the Commission for a
revocation of the authorization and the substitution of a new
authorization for the one revoked.
(2) On receipt of such an application, the Commission must, by notice
in writing given to any persons who appear to the Commission to
be interested:
(a) indicate that the revocation of the authorization, and the
substitution of another authorization for it, has been applied
for; and
(b) indicate the basis upon which the revocation and substitution
has been applied for and the nature of the substituted
authorization so applied for; and
(c) invite submissions in respect of the revocation and
substitution within a period specified by the Commission.
Note: Alternatively, the Commission may rely on consultations undertaken
by the AEMC: see section 90B.
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(3) If, at any time after granting an authorization, it appears to the
Commission that:
(a) the authorization was granted on the basis of evidence or
information that was false or misleading in a material
particular; or
(b) a condition to which the authorization was expressed to be
subject has not been complied with; or
(c) there has been a material change of circumstances since the
authorization was granted;
the Commission may, by notice in writing given to any persons
who appear to be interested:
(d) inform those persons that it is considering the revocation of
the authorization and the substitution of a new authorization;
and
(e) indicate the basis on which the revocation and substitution is
being proposed and the nature of the substituted authorization
proposed; and
(f) invite submissions in respect of the proposed action within a
period specified by the Commission.
(3A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation
to an application for a revocation and substitution of an
authorisation in a corresponding way to the way in which it applies
in relation to an application for an authorisation.
(3B) Subsection 90(6) (other than paragraphs 90(6)(a) and (b)) applies
in relation to a proposal for a revocation and substitution of an
authorisation in a corresponding way to the way in which it applies
in relation to an application for an authorisation.
(4) The Commission may make a determination in writing revoking
the authorisation and granting a substitute authorisation that it
considers appropriate, or deciding not to revoke the authorisation,
after taking into account the following:
(a) if subsection (2) applies—the application;
(b) any submissions that are received within the period specified
under paragraph (2)(c) or (3)(f);
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(c) any information received under paragraph 90(6)(b) (as it
applies because of subsection (3A) of this section) within the
period specified in the notice mentioned in that paragraph;
(d) any information received under paragraph 90(6)(c) (as it
applies because of subsection (3A) or (3B) of this section)
within the period specified in the notice mentioned in that
paragraph;
(e) any information obtained from consultations under
paragraph 90(6)(d) (as it applies because of subsection (3A)
or (3B) of this section).
The Commission may, but need not, take into account any
submissions or information received after the end of those periods.
(5) Before making a determination under subsection (4) in relation to
an application, or a proposal, for the revocation of an authorisation
other than a merger authorisation and the substitution of another,
the Commission must comply with the requirements of
section 90A.
Note: Alternatively, the Commission may rely on consultations undertaken
by the AEMC: see section 90B.
(6) For the purposes of complying with section 90A in accordance
with subsection (5), section 90A has effect:
(a) as if the reference in subsection (1) to an application for an
authorization (other than an application for a merger
authorisation) were a reference to an application, or to a
proposal, for the revocation of an authorization (other than a
merger authorisation) and the substitution of another
authorization; and
(b) as if references in other provisions of that section to an
application, or to an application for an authorization, were
references either to an application, or to a proposal, for the
revocation of an authorization and the substitution of another;
and
(c) as if subsection 90A(2) had provided, in its operation in
relation to a proposal for the revocation of an authorization
and the substitution of another, that:
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(i) the reference to the applicant and to each other
interested person were a reference only to each
interested person; and
(ii) each reference to the applicant or other person were a
reference only to the other person.
(7) The Commission must not make a determination revoking an
authorization and substituting another authorization unless the
Commission is satisfied that it would not be prevented under
subsection 90(7) from making a determination granting the
substituted authorization, if it were a new authorization sought
under section 88.
(7A) Subsections 90(10B), (12) and (13) apply in relation to an
application for a revocation and substitution of a merger
authorisation that is not an overseas merger authorisation in a
corresponding way to the way those subsections apply in relation
to an application for a merger authorisation that is not an overseas
merger authorisation.
Note: Those subsections deem the Commissioner to have refused to grant
the application if the Commission does not determine the application
within 90 days (or an extended period in some cases).
(8) An application for the revocation of an authorization and the
substitution of another authorization may be withdrawn by notice
in writing to the Commission at any time.
92 Providing false or misleading information
(1) A person must not give information to the Commission or Tribunal
under this Division or Part IX in connection with any of the
following if the person is negligent as to whether the information is
false or misleading in a material particular:
(a) an application for a merger authorisation;
(b) an application for a minor variation of a merger
authorisation;
(c) an application for, or the Commission’s proposal for, the
revocation of a merger authorisation;
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(d) an application for, or the Commission’s proposal for, the
revocation of a merger authorisation and the substitution of
another merger authorisation;
(e) a review of a determination in relation to an application or
proposal referred to in paragraph (a), (b), (c) or (d).
Note: Under section 76, the Court may order a person who contravenes this
section to pay a pecuniary penalty. See also sections 80AC, 81A and
86C for other related remedies.
(2) For the purposes of subsection (1), proof that the person knew, or
was reckless as to whether, the information was false or misleading
in a material particular is taken to be proof that the person was
negligent as to whether the information was false or misleading in
a material particular.
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Subdivision A—Exclusive dealing and resale price maintenance
93 Notification of exclusive dealing or resale price maintenance
(1) Subject to subsection (2):
(a) a corporation that engages, or proposes to engage, in conduct
of a kind referred to in subsection 47(2), (3), (4), (5), (6), (7),
(8) or (9); or
(b) a corporation or other person who engages, or proposes to
engage, in conduct of a kind referred to in section 48;
may give to the Commission a notice setting out particulars of the
conduct or proposed conduct.
(1A) To be valid, a notice under subsection (1) must:
(a) be in a form approved by the Commission in writing and
contain the information required by the form; and
(b) be accompanied by any other information or documents
prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the
regulations.
(2) A corporation or other person may not give a notice under
subsection (1) for conduct or proposed conduct if:
(a) the corporation or other person applied for an authorisation
for the conduct or proposed conduct; and
(b) the Commission or the Trade Practices Commission made a
determination dismissing the application; and
(c) either:
(i) the Tribunal or the Trade Practices Tribunal made a
determination on an application for a review of a
determination described in paragraph (b); or
(ii) the time for making such an application for review has
ended without the making of an application.
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(2A) In subsection (2):
Trade Practices Commission means the Trade Practices
Commission established by section 6A of this Act as in force
immediately before this subsection commenced.
Trade Practices Tribunal means the Trade Practices Tribunal
continued in existence by section 30 of this Act as in force
immediately before this subsection commenced.
(2B) If the Commission receives a purported notice under subsection (1)
that it considers is not a valid notice, it must, within 5 business
days of receiving the purported notice, give the person who made
the purported notice a written notice:
(a) stating that the person has not given a valid notice; and
(b) giving reasons why the purported notice does not comply
with this Division.
Definition
(2C) In subsection (2B):
business day means a day that is not a Saturday, a Sunday or a
public holiday in the Australian Capital Territory.
(3) If the Commission is satisfied that the engaging by a corporation in
conduct or proposed conduct of a kind described in
subsection 47(2), (3), (4), (5), (6), (7), (8) or (9) and referred to in a
notice given by the corporation under subsection (1):
(a) has or would have the purpose or has or is likely to have, or
would have or be likely to have, the effect of substantially
lessening competition within the meaning of section 47; and
(b) in all the circumstances:
(i) has not resulted or is not likely to result, or would not
result or be likely to result, in a benefit to the public; or
(ii) has resulted or is likely to result, or would result or be
likely to result, in a benefit to the public that has not or
would not outweigh the detriment to the public that has
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resulted or is likely to result from the conduct or would
result or be likely to result from the proposed conduct;
the Commission may at any time give notice in writing to the
corporation stating that the Commission is so satisfied and
accompanied by a statement setting out its reasons for being so
satisfied.
(3A) If:
(a) a corporation or other person has notified the Commission
under subsection (1) of conduct or proposed conduct
described in section 48; and
(b) the Commission is satisfied that the likely benefit to the
public from the conduct or proposed conduct will not
outweigh the likely detriment to the public from the conduct
or proposed conduct;
the Commission may give the corporation or other person a written
notice stating that the Commission is so satisfied and accompanied
by a statement setting out its reasons for being so satisfied.
(3B) If:
(a) a corporation or other person has notified the Commission
under subsection (1) of conduct or proposed conduct; and
(b) the Commission has given the corporation or other person a
notice under subsection 93AAA(1) imposing conditions
relating to the conduct or proposed conduct; and
(c) the Commission is satisfied that the corporation or other
person has failed to comply with those conditions;
the Commission may at any time give notice in writing to the
corporation or other person stating that the Commission is so
satisfied and accompanied by a statement setting out its reasons for
being so satisfied.
(4) Before giving a notice under subsection (3), (3A) or (3B) the
Commission shall comply with the requirements of section 93A.
(5) In satisfying itself for the purposes of subsection (3), (3A) or (3B)
in relation to any conduct or proposed conduct referred to in a
notice given to the Commission by a corporation or other person
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under subsection (1), the Commission shall seek such relevant
information as it considers reasonable and appropriate and may
make a decision on the basis of any information so obtained and
any other information furnished to it by the corporation or other
person or any other person or otherwise in its possession.
(6) A corporation or other person that has given a notice to the
Commission under this section in relation to any conduct or
proposed conduct may, at any time before the Commission has
given to the corporation or other person a notice under
subsection (3), (3A) or (3B) in relation to the conduct or proposed
conduct, by notice in writing to the Commission, withdraw the
first-mentioned notice.
(7) Where a corporation has given notice to the Commission under
subsection (1) describing conduct or proposed conduct referred to
in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9):
(a) in the case of a notice given before the expiration of the
period of 3 months commencing on the date of
commencement of the Trade Practices Amendment Act 1977,
the engaging by the corporation in the conduct referred to in
the notice on or after that date and before the giving of the
notice shall not be taken, for the purposes of section 47, to
have had the effect of substantially lessening competition
within the meaning of that section; and
(b) in any case, the engaging by the corporation in the conduct
referred to in the notice after the giving of the notice shall not
be taken, for the purposes of section 47, to have the purpose,
or to have or be likely to have the effect, of substantially
lessening competition within the meaning of that section
unless:
(i) the Commission has given notice to the corporation
under subsection (3) of this section in relation to the
conduct and the conduct takes place more than 30 days
(or such longer period as the Commission by writing
permits) after the day on which the Commission gave
the notice; or
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(ii) the notice has been, or is deemed to have been,
withdrawn and the conduct takes place after the day on
which the notice was, or is deemed to have been,
withdrawn.
(7A) A notice under subsection (1) describing conduct or proposed
conduct referred to in section 48 comes into force:
(a) at the end of the period of 60 days, or such other period as is
prescribed by the regulations, starting on the day when the
corporation or other person gave the Commission the notice;
or
(b) if the Commission gives notice to the corporation or other
person under subsection 93A(2) during that period—when
the Commission decides not to give the corporation or other
person a notice under subsection (3A) or (3B) of this section.
(7B) A notice under subsection (1) describing conduct or proposed
conduct referred to in section 48 does not come into force:
(a) if the notice is withdrawn, or deemed to be withdrawn, before
it would come into force under subsection (7A); or
(b) if the Commission:
(i) gives notice to the corporation or other person under
subsection 93A(2) during the period described in
paragraph (7A)(a); and
(ii) gives notice to the corporation or other person under
subsection (3A) or (3B).
(7C) A notice under subsection (1) describing conduct referred to in
section 48 ceases to be in force:
(a) when the notice is withdrawn or deemed to be withdrawn; or
(b) if the Commission gives the corporation or other person a
notice under subsection (3A)—on the 31st day after the
Commission gave the notice under subsection (3A) or on a
later day specified in writing by the Commission; or
(c) if the Commission gives the corporation or other person a
notice under subsection (3B)—on the 31st day after the
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Commission gave the notice under subsection (3B) or on a
later day specified in writing by the Commission.
(8) Where:
(a) a corporation or other person gives a notice to the
Commission under subsection (1) in relation to any conduct
or proposed conduct;
(b) before or after the notice is given the corporation or other
person makes an application to the Commission for an
authorization to engage in that conduct;
(c) the Commission:
(i) makes a determination dismissing the application; or
(ii) makes a determination granting an authorization in
respect of the application; and
(d) the Tribunal makes a determination on an application for a
review of the determination of the Commission or the time
for making such an application for review expires without an
application for review having been made;
the notice shall thereupon be deemed to be withdrawn.
(9) If an application is made to the Tribunal for a review of the giving
of a notice by the Commission under subsection (3), (3A) or (3B),
a reference in subsection (7) or paragraph (7C)(b) or (7C)(c) to the
day on which the Commission gave the notice shall be read as a
reference to:
(a) if the application is withdrawn—the day on which the
application is withdrawn;
(b) if the Tribunal, on the application of the Commission or of
any other person who the Tribunal is satisfied has an interest
in the subject matter of the review, declares that the
application for the review is not being proceeded with by the
applicant with due diligence—the day on which the Tribunal
makes the declaration; or
(c) in any other case—the day on which the Tribunal makes a
determination on the review.
(10) Where:
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(a) a corporation or other person has given a notice to the
Commission under subsection (1) in relation to conduct or
proposed conduct and the Commission has given notice to
the corporation or other person in writing under
subsection (3), (3A) or (3B) in relation to the conduct or the
proposed conduct; or
(b) a notice given by a corporation or other person to the
Commission under subsection (1) in relation to conduct or
proposed conduct is withdrawn or deemed to be withdrawn;
the corporation or other person is not entitled to give a further
notice under subsection (1) to the Commission in relation to the
same conduct or proposed conduct or in relation to conduct or
proposed conduct to the like effect.
93AAA Imposing conditions relating to notifications
(1) If:
(a) a corporation or other person gives the Commission a notice
under subsection 93(1) relating to particular conduct, or
proposed conduct, of a kind referred to in section 48; and
(b) the Commission reasonably believes that:
(i) apart from this section, the Commission would have
grounds to give the corporation or other person a notice
under subsection 93(3A) relating to that notice; and
(ii) those grounds would not exist if particular conditions
relating to the conduct or proposed conduct were
complied with;
the Commission may give the corporation or other person a written
notice imposing those conditions.
(2) The Commission must, at the time it gives the corporation or other
person the notice under subsection (1), give the corporation or
other person a written statement of its reasons for giving the notice.
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Subdivision B—Collective bargaining
93AA Definitions
In this Subdivision:
collective bargaining notice means a notice under
subsection 93AB(1A) or (1).
conference notice means a notice under subsection 93A(2).
contract means a contract, arrangement or understanding.
objection notice means a notice under subsection 93AC(1), (2) or
(2A).
93AB Notification of collective bargaining
Notice to Commission—cartel provisions
(1A) A corporation that:
(a) has made, or proposes to make, a contract (the initial
contract) that contains a cartel provision that:
(i) has the purpose; or
(ii) has or is likely to have the effect;
mentioned in subsection 45AD(2); or
(b) has made, or proposes to make, a contract (the initial
contract) that contains a cartel provision that has the purpose
mentioned in a paragraph of subsection 45AD(3) other than
paragraph (c); or
(c) proposes to give effect to a provision of a contract (the initial
contract) where the provision is a cartel provision that:
(i) has the purpose; or
(ii) has or is likely to have the effect;
mentioned in subsection 45AD(2); or
(d) proposes to give effect to a provision of a contract (the initial
contract) where the provision is a cartel provision that has
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the purpose mentioned in a paragraph of subsection 45AD(3)
other than paragraph (c);
may give the Commission a notice (the collective bargaining
notice) setting out particulars of the contract or proposed contract,
but only if the 3 requirements set out in subsections (2), (3) and (4)
are satisfied.
Note 1: Subsection (6) deals with the form etc. of a collective bargaining
notice.
Note 2: Section 93AD sets out when a collective bargaining notice comes into
force.
Notice to Commission—competition provisions
(1) A corporation that:
(a) has made, or proposes to make, a contract (the initial
contract) containing a provision of the kind referred to in
paragraph 45(1)(a); or
(b) proposes to give effect to a provision of a contract (the initial
contract) where the provision is of the kind referred to in
paragraph 45(1)(b);
may give the Commission a notice (the collective bargaining
notice) setting out particulars of the contract or proposed contract,
but only if the 3 requirements set out in subsections (2), (3) and (4)
are satisfied.
Note 1: Subsection (6) deals with the form etc. of a collective bargaining
notice.
Note 2: Section 93AD sets out when a collective bargaining notice comes into
force.
First—making of initial contract
(2) First, the corporation must have made, or propose to make, the
initial contract with 1 or more persons (the contracting parties)
about:
(a) the supply of particular goods or services to; or
(b) the acquisition of particular goods or services from;
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one or more other persons (the target or targets) by the corporation
and the contracting parties.
Second—making of contracts
(3) Second, the corporation must reasonably expect that it will make 1
or more contracts with the target, or with one or more of those
targets, about:
(a) the supply of 1 or more of those goods or services to; or
(b) the acquisition of 1 or more of those goods or services from;
that target or those targets by the corporation.
Third—price of contracts
(4) Third, the corporation must reasonably expect that:
(a) in the case where the corporation reasonably expects to make
only 1 contract with the target or targets—the price for the
supply or acquisition of those goods or services under that
contract; or
(b) in the case where the corporation reasonably expects to make
2 or more contracts with the target or targets—the sum of the
prices for the supply or acquisition of those goods or services
under those contracts;
will not exceed $3,000,000, or such other amount as is prescribed
by the regulations, in any 12 month period. The regulations may
prescribe different amounts in relation to different industries.
Timing of reasonable expectation
(5) The corporation must have the reasonable expectation referred to
in subsections (3) and (4):
(a) at the time of giving the collective bargaining notice; and
(b) if the initial contract has been made—at the time it was
made.
Form of notice etc.
(6) To be valid, a collective bargaining notice must:
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(a) be in a form approved by the Commission in writing and
contain the information required by the form; and
(b) be accompanied by any other information or documents
prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the
regulations.
Notice given by, or on behalf of, contracting persons
(7) A collective bargaining notice may be expressed to be given on
behalf of one or more of the contracting parties, but only if those
parties could have given the notice on their own behalf. If the
notice is so expressed, then it is also taken to have been given by
those parties.
(7A) A collective bargaining notice for a group of contracting parties
may be expressed to be given on behalf of persons who become
members of the group after the notice is given, but only if those
persons could have given the notice on their own behalf at the time
they became members of the group. If the notice is so expressed,
then it is also taken to have been given by those persons.
When a notice may not be given
(8) A corporation may not give a collective bargaining notice in
relation to a contract or proposed contract if:
(a) it has applied for an authorisation in relation to the contract
or proposed contract; and
(b) the Commission has made a determination dismissing the
application; and
(c) either:
(i) the Tribunal has made a determination on an application
for a review of the Commission’s determination; or
(ii) the time for making such an application for review has
ended without the making of an application.
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Notice is invalid if given by union etc. on behalf of the corporation
(9) A notice given by a corporation under subsection (1) is not a valid
collective bargaining notice if it is given, on behalf of the
corporation, by:
(a) a trade union; or
(b) an officer of a trade union; or
(c) a person acting on the direction of a trade union.
Invalid collective bargaining notice
(10) If the Commission receives a purported collective bargaining
notice that it considers is not a valid collective bargaining notice, it
must, within 5 business days of receiving the purported notice, give
the person who made the purported notice a written notice:
(a) stating that the person has not given a valid collective
bargaining notice; and
(b) giving reasons why the purported collective bargaining
notice does not comply with this Division.
(10A) The Commission must, as soon as practicable after receiving a
valid collective bargaining notice, give a copy of the notice to the
target.
Purpose/effect of a provision
(10B) Subsections 45AD(6), (7), (8) and (10) apply for the purposes of
paragraphs (1A)(a) and (c) in a corresponding way to the way in
which they apply for the purposes of Division 1 of Part IV.
Purpose of a provision
(10C) Subsections 45AD(7), (9) and (11) apply for the purposes of
paragraphs (1A)(b) and (d) in a corresponding way to the way in
which they apply for the purposes of Division 1 of Part IV.
Definition
(11) In this section:
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business day means a day that is not a Saturday, a Sunday or a
public holiday in the Australian Capital Territory.
trade union means the following:
(a) an association of employees that is registered as an
organisation, or recognised, under the Fair Work (Registered
Organisations) Act 2009;
(b) an association of employees that is registered or recognised
as a trade union (however described) under the law of a State
or Territory;
(c) an association of employees a principal purpose of which is
the protection and promotion of the employees’ interests in
matters concerning their employment.
93AC Commission’s objection notice
Commission’s objection notice—cartel provisions
(1) If:
(a) a corporation gives the Commission a collective bargaining
notice under subsection 93AB(1A) in relation to a contract,
or proposed contract, containing a cartel provision of the kind
referred to in that subsection; and
(b) the Commission is satisfied that any benefit to the public that
has resulted or is likely to result or would result or be likely
to result from the provision does not or would not outweigh
the detriment to the public that has resulted or is likely to
result or would result or be likely to result from the
provision;
the Commission may give the corporation a written notice (the
objection notice) stating that it is so satisfied.
Commission’s objection notice—competition provisions
(2) If a corporation gives the Commission a collective bargaining
notice under subsection 93AB(1) in relation to a contract, or
proposed contract, containing a provision of the kind referred to in
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paragraph 45(1)(a) or (b), then the Commission may, if it is
satisfied that:
(a) the provision has or would have the purpose, or has or is
likely to have or would have or be likely to have the effect, of
substantially lessening competition (within the meaning of
section 45); and
(b) in all the circumstances, either:
(i) the provision has not resulted or is not likely to result, or
would not result or be likely to result, in a benefit to the
public; or
(ii) any benefit to the public that has resulted or is likely to
result, or would result or be likely to result, from the
provision does not or would not outweigh the detriment
to the public constituted by any lessening of competition
that has resulted or is likely to result, or would result or
be likely to result, from the provision;
give the corporation a written notice (the objection notice) stating
that it is so satisfied.
Commission’s objection notice—non-compliance with conditions
(2A) If:
(a) a corporation gives the Commission a collective bargaining
notice that relates (wholly or partly) to collective boycott
conduct or proposed collective boycott conduct; and
(b) the Commission has given the corporation a notice under
subsection 93ACA(1) imposing conditions relating to the
conduct or proposed conduct; and
(c) the Commission is satisfied that the corporation has failed to
comply with those conditions;
the Commission may give the corporation a written notice (the
objection notice) stating that the Commission is so satisfied.
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Reasons for objection notice
(3) The Commission must, at the time it gives a corporation an
objection notice, give the corporation a written statement of its
reasons for giving the notice.
Conference before objection notice
(4) The Commission must comply with section 93A (conferences
about draft objection notices) before giving an objection notice.
Commission to seek additional information
(5) For the purposes of deciding whether or not to give an objection
notice:
(a) the Commission must seek such relevant information as it
considers reasonable and appropriate; and
(b) the Commission may make a decision on the basis of:
(i) any information so obtained; or
(ii) any other information given to it by the corporation or
any other person; or
(iii) any other information in its possession.
93ACA Imposing conditions relating to collective boycott conduct
(1) If:
(a) a corporation gives the Commission a collective bargaining
notice that relates (wholly or partly) to collective boycott
conduct or proposed collective boycott conduct; and
(b) the Commission reasonably believes that:
(i) apart from this section, the Commission would have
grounds to give the corporation an objection notice
relating to the collective bargaining notice; and
(ii) those grounds would not exist if particular conditions
relating to the conduct or proposed conduct were
complied with;
the Commission may give the corporation a written notice
imposing those conditions.
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(2) The Commission must, in or with the notice under subsection (1),
give the corporation a written statement of its reasons for giving
the notice.
93AD When collective bargaining notice comes into force and ceases
to be in force
When collective bargaining notice comes into force
(1) A collective bargaining notice comes into force:
(a) at the end of the period which is:
(i) if the notice relates (wholly or partly) to collective
boycott conduct or proposed collective boycott
conduct—60 days or such other period as is prescribed
by the regulations; or
(ii) otherwise—14 days or such other period as is prescribed
by the regulations;
starting on the day the corporation gave the Commission the
notice; or
(b) if the Commission gives the corporation a conference notice
during the period referred to in paragraph (a) and then
decides not to give the corporation an objection notice—
when the Commission makes that decision.
(2) However, a collective bargaining notice does not come into force
if:
(a) it is withdrawn, or taken to be withdrawn, before it would
come into force under subsection (1); or
(b) the Commission gives the corporation a conference notice
during the period referred to in paragraph (1)(a) and then
gives the corporation an objection notice.
Note: Section 93AE deals with the withdrawal of a collective bargaining
notice.
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When collective bargaining notice ceases to be in force
(3) A collective bargaining notice ceases to be in force at the earliest
of the following times:
(a) when it is withdrawn or taken to be withdrawn;
(b) if the Commission gives the corporation an objection
notice—on the 31st day after the relevant day or on a later
day specified in writing by the Commission;
(c) at the end of:
(i) if subparagraph (ii) does not apply—the period of 3
years beginning on the day the corporation gave the
collective bargaining notice; or
(ii) the period determined under subsection (5).
Note 1: A collective bargaining notice is not in force, to the extent that it
relates to collective boycott conduct, while a stop notice is in force in
relation to the collective bargaining notice: see section 93AG.
Note 2: Section 93AE deals with the withdrawal of a collective bargaining
notice.
(4) For the purposes of subsection (3), the relevant day is worked out
in accordance with this table:
Relevant day
In this situation: the relevant day is:
1 If an application is not made to the
Tribunal for a review of the
Commission’s decision to give the
objection notice
the day the Commission gave the notice.
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Relevant day
In this situation: the relevant day is:
2 If an application is made to the
Tribunal for a review of the
Commission’s decision to give the
objection notice
(a) if the review application is
withdrawn—the day of the
withdrawal; or
(b) if, on the application of the
Commission or any other person who
the Tribunal is satisfied has an
interest in the subject matter of the
review, the Tribunal declares that the
applicant is not proceeding with the
review application with due
diligence—the day of the declaration;
or
(c) in any other case—the day on which
the Tribunal makes a determination
on the review.
Commission may determine expiry of collective bargaining notice
(5) If the Commission is satisfied that:
(a) the period provided for in subparagraph (3)(c)(i) is not
appropriate in all the circumstances; and
(b) another period, ending no later than the end of the period of
10 years beginning on the day the corporation gave the
collective bargaining notice, is appropriate in all the
circumstances;
the Commission may give to the corporation a written notice
determining that other period for the purposes of
subparagraph (3)(c)(ii).
(6) The Commission must, in or with the notice under subsection (5),
give the corporation a written statement of its reasons for giving
the notice.
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93AE Withdrawal of collective bargaining notice
Withdrawal by corporation
(1) A corporation may, by written notice given to the Commission,
withdraw a collective bargaining notice it has given the
Commission.
(2) The corporation may do so at any time before the Commission
gives it an objection notice in relation to the collective bargaining
notice.
Deemed withdrawal
(3) If:
(a) a corporation gives the Commission a collective bargaining
notice in relation to a contract or proposed contract; and
(b) before or after the corporation gave the notice, it applies to
the Commission for an authorisation for that contract or
proposed contract; and
(c) the Commission makes a determination either dismissing the
application or granting an authorisation in respect of the
application; and
(d) either:
(i) the Tribunal makes a determination on an application
for a review of the Commission’s determination; or
(ii) the time for making such an application for review ends
without the making of an application;
then the collective bargaining notice is taken to be withdrawn.
93AEA Only 1 collective bargaining notice under
subsection 93AB(1A) may be given
If:
(a) a corporation gives the Commission a collective bargaining
notice under subsection 93AB(1A) in relation to a contract or
proposed contract; and
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(b) either:
(i) the Commission gives the corporation an objection
notice in relation to the contract or proposed contract; or
(ii) the collective bargaining notice is taken to be withdrawn
under subsection 93AE(3);
then a further collective bargaining notice under
subsection 93AB(1A) cannot be given by any person in relation to
the same contract or proposed contract or in relation to a contract
or proposed contract to the like effect.
93AF Only 1 collective bargaining notice under subsection 93AB(1)
may be given
If:
(a) a corporation gives the Commission a collective bargaining
notice under subsection 93AB(1) in relation to a contract or
proposed contract; and
(b) either:
(i) the Commission gives the corporation an objection
notice in relation to the contract or proposed contract; or
(ii) the collective bargaining notice is taken to be withdrawn
under subsection 93AE(3);
then the corporation may not give the Commission a further
collective bargaining notice under subsection 93AB(1) in relation
to the same contract or proposed contract or in relation to a
contract or proposed contract to the like effect.
93AG Stop notice for collective boycott conduct
(1) The Commission may give a corporation a written notice (a stop
notice) if:
(a) the corporation has given the Commission a collective
bargaining notice that relates (wholly or partly) to collective
boycott conduct; and
(b) the collective bargaining notice is in force under
section 93AD; and
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(c) there has been a material change of circumstances since:
(i) if the Commission has previously given the corporation
notice under this subsection in relation to the collective
boycott conduct—that notice was given; or
(ii) in any other case—the collective bargaining notice
came into force; and
(d) the Commission reasonably believes that:
(i) the collective boycott conduct has resulted in serious
detriment to the public; or
(ii) serious detriment to the public is imminent as a result of
the collective boycott conduct.
(2) The Commission must, in or with the stop notice, give the
corporation a written statement of its reasons for giving the stop
notice.
(3) While the stop notice is in force, the collective bargaining notice is
taken, for the purposes of this Act, not to be in force under
section 93AD to the extent that the collective bargaining notice
relates to collective boycott conduct.
(4) The stop notice comes into force at the time the Commission gives
the corporation the stop notice.
(5) The stop notice ceases to be in force at the earliest of the following
times:
(a) at the end of the period provided under subsection (6);
(b) if, before the end of that period, the Commission gives the
corporation an objection notice under subsection 93AC(1) or
(2) that relates to the collective bargaining notice—when that
objection notice is given;
(c) if, before the end of that period, the Commission gives the
corporation a notice under subsection 93ACA(1) imposing
conditions relating to conduct or proposed conduct that
relates to the collective bargaining notice—when that notice
under subsection 93ACA(1) is given;
(d) if the Commission withdraws the stop notice—when it is
withdrawn.
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(6) For the purposes of paragraph (5)(a), the period is:
(a) the period of 90 days beginning on the day the Commission
gives the corporation the stop notice; or
(b) if the Commission extends it under subsection (7)—that
period as so extended.
(7) Before the end of the period referred to in paragraph (6)(a), the
Commission may extend the period by up to a further 90 days:
(a) if satisfied that in all the circumstances it is reasonable to do
so; and
(b) by giving written notice of the extended period to the
corporation.
(8) The Commission must, in or with the notice under subsection (7),
give the corporation a written statement of its reasons for giving
the notice.
Subdivision C—Conferences
93A Commission to afford opportunity for conference before giving
notice
(1) Before giving a notice under subsection 93(3), (3A) or (3B) or
93AC(1), (2) or (2A) in relation to any conduct or proposed
conduct, the Commission shall prepare a draft notice in relation to
that conduct or proposed conduct.
(2) The Commission shall, by notice in writing sent to the corporation
or other person to whose conduct or proposed conduct the draft
notice relates and to each other interested person, invite the
corporation or other person to notify the Commission, within 14
days after a date fixed by the Commission being not earlier than
the day on which the notice is sent, whether the corporation or
other person wishes the Commission to hold a conference in
relation to the draft notice.
(3) The Commission shall send with each notice under subsection (2) a
copy of the draft notice and a summary of the reasons why it
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proposes to give the notice under subsection 93(3), (3A) or (3B) or
93AC(1), (2) or (2A).
(4) If each of the persons to whom a notice was sent under
subsection (2):
(a) notifies the Commission in writing within the period of
14 days mentioned in that subsection that the person does not
wish the Commission to hold a conference in relation to the
draft notice; or
(b) does not notify the Commission within that period that he or
she wishes the Commission to hold such a conference;
the Commission must decide after the end of that period whether or
not to give the notice under subsection 93(3), (3A) or (3B) or
93AC(1), (2) or (2A).
(5) If any of the persons to whom a notice was sent under
subsection (2) notifies the Commission in writing within the period
of 14 days mentioned in that subsection that he or she wishes the
Commission to hold a conference in relation to the draft notice, the
Commission shall appoint a date (being not later than 30 days after
the expiration of that period), time and place for the holding of the
conference and give notice of the date, time and place so appointed
to each of the persons to whom a notice was sent under
subsection (2).
(6) At the conference:
(a) the Commission shall be represented by a member or
members of the Commission (being a member or members
who participated in the preparation of the draft notice)
nominated by the Chairperson; and
(b) each person to whom a notice was sent under subsection (2)
and any other interested person whose presence at the
conference is considered by the Commission to be
appropriate is entitled to attend and participate personally or,
in the case of a body corporate, may be represented by a
person who, or by persons each of whom, is a director,
officer or employee of the body corporate; and
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(c) a person participating in the conference in accordance with
paragraph (a) or (b) is entitled to have another person or other
persons present to assist him or her but a person who so
assists another person at the conference is not entitled to
participate in the discussion; and
(e) no other person is entitled to be present.
(7) A member of the Commission participating in the conference shall
make such record of the discussions as is sufficient to set out the
matters raised by the persons participating in the conference.
(8) The member of the Commission who represents the Commission at
the conference, or, if the Commission is represented by more than
one member of the Commission, one of those members appointed
by the Chairperson:
(a) may exclude from the conference any person who uses
insulting language at the conference, creates, or takes part in
creating or continuing, a disturbance at the conference or
repeatedly interrupts the conference;
(b) may terminate the conference when he or she is of the
opinion that a reasonable opportunity has been given for the
expression of the views of persons participating in the
conference (other than persons excluded from the conference
under paragraph (a)); and
(c) shall give a certificate certifying the day on which the first
notification under subsection (5) in relation to the draft notice
was received by the Commission and the day on which the
conference terminated;
and any such certificate shall be received in all courts as prima
facie evidence of the matters certified.
(9) A document purporting to be a certificate referred to in
subsection (8) shall, unless the contrary is established, be deemed
to be such a certificate and to have been duly given.
(10) The Commission must take account of all matters raised at the
conference.
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(10A) After the conference, the Commission must decide whether or not
to give a notice under subsection 93(3), (3A) or (3B) or 93AC(1),
(2) or (2A).
(11) For the purposes of this section, interested person means a person
who has notified the Commission in writing that he or she, or a
specified unincorporated association of which he or she is a
member, claims to have an interest in the matter, being an interest
that, in the opinion of the Commission, is real and substantial.
(12) Where the Commission is of the opinion that two or more notices
given to the Commission under subsection 93(1) or 93AB(1A) or
(1) by the same person, or by persons being bodies corporate that
are related to each other, deal with substantially similar conduct or
proposed conduct, the Commission may treat the notices as if they
constituted a single notice and may prepare one draft notice in
relation to the notices so given to the Commission and hold one
conference in relation to that draft notice.
Subdivision D—Register of notifications
95 Register of notifications
(1) The Commission shall keep a register containing:
(aa) notices relating to voluntary industry codes given to the
Commission pursuant to regulations made under
section 51AE (including notices that have been withdrawn
pursuant to those regulations); and
(a) draft notices, and summaries of reasons, by the Commission
furnished to any person under section 93A; and
(b) records of conferences made in accordance with
subsection 93A(7) and certificates in relation to conferences
given under subsection 93A(8); and
(c) notices (including notices that have been withdrawn) given to
the Commission under section 93 or 93AB; and
(d) documents furnished to the Commission in relation to such
notices; and
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(e) particulars of any oral submissions made to the Commission
in relation to such notices; and
(f) particulars of notices given by the Commission to
corporations in relation to notices given by corporations
under section 93 or 93AB; and
(g) particulars of any permits given by the Commission under
subparagraph 93(7)(b)(i); and
(ga) details of the specification of any day by the Commission
under paragraph 93(7C)(b) or (c); and
(gb) details of the specification of any day by the Commission
under paragraph 93AD(3)(b).
(2) Where a person furnishes a document to the Commission:
(a) in relation to a notice given to the Commission under
section 93 or 93AB; or
(b) in relation to a conference held under Division 3 of Part XI;
or makes an oral submission to the Commission in relation to the
notice or the conference, he or she may, at the time when the
document is furnished or the submission is made, request that the
document or a part of the document, or that particulars of the
submission or of part of the submission, be excluded from the
register kept under subsection (1) by reason of the confidential
nature of any of the matters contained in the document or
submission.
(3) Where such a request is made:
(a) if the document or part of the document, or the submission or
part of the submission, to which the request relates contains
particulars of:
(i) a secret formula or process;
(ii) the cash consideration offered for the acquisition of
shares in the capital of a body corporate or of assets of a
person; or
(iii) the current costs of manufacturing, producing or
marketing goods or services;
the Commission shall exclude the document or the part of the
document, or particulars of the submission or of the part of
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the submission, as the case may be, from the register kept
under subsection (1); and
(b) in any other case—the Commission may, if it is satisfied that
it is desirable to do so by reason of the confidential nature of
matters contained in the document or the part of the
document, or in the submission or the part of the submission,
exclude the document or the part of the document, or
particulars of the submission or of the part of the submission,
as the case may be, from that register.
(4) If the Commission refuses a request to exclude a document or a
part of a document from the register kept under subsection (1), the
Commission shall, if the person who furnished the document to the
Commission so requires, return the document or part of the
document to him or her and, in that case, paragraph (1)(d) does not
apply in relation to the document or part of the document.
(5) Subsection (4) does not apply in relation to a document that was
produced to the Minister or the Commission in pursuance of a
notice under section 65Q or 155.
(6) If the Commission refuses a request to exclude particulars of an
oral submission or of part of an oral submission from the register
kept under subsection (1), the person who made the submission
may inform the Commission that he or she withdraws the
submission or that part of the submission and, in that case,
paragraph (1)(e) does not apply in relation to the submission or that
part of the submission, as the case may be.
(7) Where the Commission is satisfied that it is desirable to do so for
any reason other than the confidential nature of matters contained
in a document or submission, the Commission may exclude a
document or part of a document referred to in paragraph (1)(d) or
particulars referred to in paragraph (1)(e) from the register kept
under subsection (1).
(8) If a person requests in accordance with subsection (2) that a
document or part of a document, or that particulars of a submission
or of part of a submission, be excluded from the register kept under
subsection (1), the document or the part of the document, or
particulars of the submission or of the part of the submission, shall
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not be included in that register until the Commission has made a
determination in relation to the request.
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Section 95AA
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Division 3—Class exemptions
95AA Commission may determine class exemptions
(1) The Commission may, by legislative instrument, determine that
one or more specified provisions of Part IV do not apply to a kind
of conduct specified in the determination, if the Commission is
satisfied in all the circumstances:
(a) that conduct of that kind would not have the effect, or would
not be likely to have the effect, of substantially lessening
competition; or
(b) that conduct of that kind would result, or would be likely to
result, in a benefit to the public that would outweigh the
detriment to the public that would result, or would be likely
to result, from conduct of that kind.
Note: For variation and revocation, see subsection 33(3) of the Acts
Interpretation Act 1901.
(2) The Commission may specify in the determination any one or more
of the following limitations:
(a) a limitation to persons of a specified kind;
(b) a limitation to circumstances of a specified kind;
(c) a limitation to conduct that complies with specified
conditions.
(3) The determination must specify the period, ending no later than the
end of the period of 10 years beginning on the day it is made, for
which it is to be in force.
(4) The determination:
(a) enters into force on the day it is made or on such later day (if
any) as is specified in the determination; and
(b) ceases to be in force at the earlier of the following times:
(i) if the determination is revoked—at the time the
revocation takes effect;
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(ii) at the end of the period specified under subsection (3) of
this section.
(5) While the determination remains in force, but subject to
section 95AB and any limitations specified under subsection (2),
the provisions of Part IV specified in the determination do not
apply in relation to conduct of the kind specified in the
determination.
(6) Despite subsection 44(1) of the Legislation Act 2003, section 42
(disallowance) of that Act applies to a legislative instrument made
under subsection (1) of this section.
95AB Commission may withdraw the benefit of class exemption in
particular case
(1) The Commission may give a person a written notice if:
(a) a determination in force under section 95AA specifies a kind
of conduct; and
(b) the Commission is satisfied that particular conduct of that
kind engaged in by the person:
(i) would have the effect, or would be likely to have the
effect, of substantially lessening competition; and
(ii) would not result or be likely to result in a benefit to the
public that would outweigh the detriment to the public
that would result, or would be likely to result, from the
conduct.
Note: For variation and revocation, see subsection 33(3) of the Acts
Interpretation Act 1901.
(2) The Commission must, in or with the notice under subsection (1),
give the person a written statement of its reasons for giving the
notice.
(3) While a notice under subsection (1) is in force, the determination
does not apply to the conduct specified in the notice engaged in by
the person.
(4) The notice under subsection (1):
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(a) comes into force at the time the Commission gives the person
the notice; and
(b) ceases to be in force at the earliest of the following times:
(i) if the Tribunal sets it aside under subsection 102(5G)—
at the end of the day on which the Tribunal sets it aside;
(ii) if the Commission revokes the notice—when it is
revoked;
(iii) the time the determination under section 95AA ceases to
be in force.
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Part VIIA—Prices surveillance
Division 1—Preliminary
95A Interpretation
(1) In this Part, unless the contrary intention appears:
applicable period, in relation to a locality notice, has the meaning
given by section 95ZB.
body means any organisation or body, whether incorporated or
unincorporated, and includes a group of 2 or more individuals.
business notice means a notice under subsection 95L(3).
Commonwealth authority means:
(a) the Commonwealth; or
(b) an authority, institution or other body (other than a society,
association or incorporated company) established for a public
purpose by or under a law of the Commonwealth; or
(c) a society, association or incorporated company in which the
Commonwealth, or an authority, institution or other body of
the kind referred to in paragraph (b), has a controlling
interest.
declared person, in relation to goods or services of a particular
description, means a person in relation to whom a declaration
under subsection 95X(2) in relation to goods or services of that
description is in force.
exempt supply, in relation to goods or services of a particular
description, means a supply of goods or services of that description
in relation to which a declaration under section 95B is in force.
external inquiry means an inquiry by a body other than the
Commission.
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goods includes:
(a) ships, aircraft and other vehicles; and
(b) animals, including fish; and
(c) minerals, trees and crops, whether on, under or attached to
land or not; and
(d) water; and
(e) gas and electricity.
inquiry means an inquiry held in accordance with this Part into a
matter or matters relating to prices for the supply of goods or
services.
inquiry body means:
(a) in relation to an inquiry to be held, or being held, by the
Commission—the Commission; or
(b) in relation to an inquiry to be held, or being held, by a body
other than the Commission—the other body.
inquiry Chair means:
(a) in relation to an inquiry to be held, or being held, by the
Commission—the member of the Commission presiding at
the inquiry; or
(b) in relation to an inquiry to be held, or being held, by a body
other than the Commission—the person presiding at the
inquiry.
inquiry notice means a notice under section 95H.
law of the Commonwealth does not include:
(a) the Northern Territory (Self-Government) Act 1978; or
(b) the Norfolk Island Act 1979; or
(c) a law made under, or continued in force by, an Act referred
to in paragraph (a) or (b).
locality notice means a notice under subsection 95Z(5).
member of the staff of the Commission means a person referred to
in subsection 27(1) or a person engaged under section 27A.
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notified goods or services means goods or services of a particular
description in relation to which a declaration under
subsection 95X(1) is in force.
person includes a Commonwealth authority and a State or
Territory authority.
price includes:
(a) a charge of any description; and
(b) in relation to goods or services—any pecuniary benefit,
whether direct or indirect, received or to be received by a
person for or in connection with the supply by the person of
the goods or services.
response notice means a notice under subparagraph 95Z(6)(c)(i).
services includes any rights (including rights in relation to, and
interests in, real or personal property), benefits, privileges or
facilities that are, or are to be, provided, granted or conferred in
trade or commerce, and includes, but is not limited to, the rights,
benefits, privileges or facilities that are, or are to be, provided,
granted or conferred under:
(a) a contract for or in relation to:
(i) the performance of work (including work of a
professional nature), whether with or without the supply
of goods; or
(ii) the provision of, or the use or enjoyment of facilities
for, amusement, entertainment, recreation or instruction;
or
(iii) the conferring of rights, benefits or privileges for which
remuneration is payable in the form of a royalty, tribute,
levy or similar exaction; or
(b) a contract of insurance; or
(c) a contract between a banker and a customer of the banker
entered into in the course of the carrying on by the banker of
the business of banking; or
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(d) any contract for or in relation to the lending of moneys;
but does not include rights or benefits being the supply of goods or
the performance of work under a contract of service.
State or Territory authority means:
(a) a State, the Australian Capital Territory or the Northern
Territory; or
(b) an authority, institution or other body (except a society,
association or incorporated company) established for a public
purpose by or under a law of a State, the Australian Capital
Territory or the Northern Territory; or
(c) a society, association or incorporated company in which a
State, the Australian Capital Territory or the Northern
Territory, or an authority, institution or other body of the
kind referred to in paragraph (b), has a controlling interest.
supply includes:
(a) in relation to goods—supply (including re-supply) by way of
sale, exchange, lease, hire or hire-purchase; and
(b) in relation to services—provide, grant or confer.
(2) In this Part, unless the contrary intention appears:
(a) a reference to the supply of goods or services includes a
reference to agreeing to supply goods or services; and
(b) a reference to the supply of goods includes a reference to the
supply of goods together with other property or services, or
both; and
(c) a reference to the supply of services includes a reference to
the supply of services together with property or other
services, or both; and
(d) a reference to the supply of goods does not include a
reference to:
(i) a supply for use outside Australia; or
(ii) a supply for which a price is not charged; or
(iii) any other supply prescribed by the regulations; and
(e) a reference to the supply of services does not include a
reference to:
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(i) a supply outside Australia; or
(ii) a supply for which a price is not charged; or
(iii) any other supply prescribed by the regulations.
(3) For the purposes of this Part, a supply by way of retail sale is taken
not to be a supply on terms and conditions that are the same as, or
substantially similar to, the terms and conditions of a supply by
way of wholesale sale.
95B Exempt supplies
(1) The Minister, or the Commission with the approval of the Minister,
may by notice published in the Gazette declare a supply of goods
or services of a specified description, that is a supply in a specified
manner, of a specified kind or in specified circumstances, to be an
exempt supply for the purposes of this Part.
(2) The Minister, or the Commission with the approval of the Minister,
may by notice published in the Gazette vary or revoke a
declaration under subsection (1).
95C Application of Part
(1) This Part applies in relation to the supply of goods or services:
(a) by a Commonwealth authority; or
(b) by a foreign corporation; or
(c) by a trading corporation in the course of, or for the purposes
of, its trading operations; or
(d) by a financial corporation in the course of, or for the
purposes of, its business operations; or
(e) by a body corporate incorporated in a Territory (other than
the Northern Territory or Norfolk Island); or
(f) in an internal Territory (other than the Northern Territory),
the Territory of Christmas Island or the Territory of Cocos
(Keeling) Islands; or
(g) in the course of, or in connection with, trade or commerce:
(i) among the States; or
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(ii) between a State and an internal Territory; or
(iii) between a State and the Territory of Christmas Island or
the Territory of Cocos (Keeling) Islands; or
(iv) between an internal Territory and the Territory of
Christmas Island or the Territory of Cocos (Keeling)
Islands; or
(v) between the Territory of Christmas Island and the
Territory of Cocos (Keeling) Islands; or
(vi) between 2 internal Territories;
and not otherwise.
(2) However, this Part does not apply in relation to the supply of goods
or services by:
(a) an authority, institution or other body (except a society,
association or incorporated company) established for a public
purpose by or under a law of Norfolk Island; or
(b) a society, association or incorporated company in which a
controlling interest is held by Norfolk Island, or an authority,
institution or other body covered by paragraph (a).
95D Crown to be bound
(1) This Part binds the Crown in right of the Commonwealth, of each
of the States, of the Australian Capital Territory and of the
Northern Territory.
(2) Nothing in this Part makes the Crown liable to be prosecuted for an
offence.
(3) The protection in subsection (2) does not apply to an incorporated
Commonwealth authority or an incorporated State or Territory
authority.
95E Object of this Part
The object of this Part is to have prices surveillance applied only in
those markets where, in the view of the Minister, competitive
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pressures are not sufficient to achieve efficient prices and protect
consumers.
95F Simplified overview of this Part
(1) This Part deals with 3 main things.
Price inquiries
(2) First, it provides for the Commission or another body to hold price
inquiries in relation to the supply of goods or services.
(3) These inquiries may relate to the supply of goods or services by a
particular person. If so, the person’s ability to increase the prices of
those goods or services during a particular period is restricted.
However, there is a way for the person to increase prices during
that period.
Price notifications
(4) Second, this Part allows the Minister or the Commission to declare
goods or services to be notified goods or services and to declare a
person to be a declared person in relation to such goods or services.
(5) If this happens, the person’s ability to increase the prices of such
goods or services during a particular period is restricted. However,
there is a way for the person to increase prices during that period.
Price monitoring
(6) Third, this Part allows the Minister to direct the Commission to
undertake price monitoring.
(7) This may be in relation to supplies of goods or services in a
particular industry or in relation to supplies of goods or services by
particular persons.
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Section 95G
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Division 2—Commission’s functions under this Part
95G Commission’s functions under this Part
(1) The Commission’s functions under this Part are set out in this
section.
Price inquiries
(2) The Commission is to hold such inquiries as it is required to hold
under section 95H.
(3) The Commission may, with the Minister’s approval under
section 95H, hold such other inquiries as it thinks fit.
(4) The Commission is to give the Minister a report on the results of
each inquiry it holds.
Price notifications
(5) The Commission is to consider locality notices and to take, in
relation to such notices, such action in accordance with this Part as
it considers appropriate.
Price monitoring
(6) The Commission is to monitor prices, costs and profits in any
industry or business that the Minister directs it to monitor and is to
give the Minister a report on the results of such monitoring.
General
(7) In exercising its powers and performing its functions under this
Part, the Commission must, subject to any directions given under
section 95ZH, have particular regard to the following:
(a) the need to maintain investment and employment, including
the influence of profitability on investment and employment;
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Section 95G
Competition and Consumer Act 2010 487
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(b) the need to discourage a person who is in a position to
substantially influence a market for goods or services from
taking advantage of that power in setting prices;
(c) the need to discourage cost increases arising from increases
in wages and changes in conditions of employment
inconsistent with principles established by relevant industrial
tribunals.
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Section 95H
488 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 3—Price inquiries
Subdivision A—Holding of inquiries
95H Price inquiries
Inquiries by Commission
(1) The Minister may, by notice in writing given to the Chairperson,
require the Commission to hold an inquiry into a specified matter
or specified matters.
(2) The Minister may, by notice in writing given to the Chairperson,
approve the Commission holding an inquiry into a specified matter
or specified matters.
Inquiries by other bodies
(3) The Minister may, by notice in writing, request a body other than
the Commission to hold an inquiry into a specified matter or
specified matters.
(4) The other body must, if it agrees to hold the inquiry, appoint a
person to preside at the inquiry. The appointment must be in
writing.
(5) However, if the other body is a group of 2 or more individuals, the
Minister must, by writing, appoint one of those individuals to
preside at the inquiry.
(5A) The Minister must, as soon as practicable after confirmation that
the other body will hold the inquiry, table a statement in each
House of the Parliament:
(a) specifying that the body will hold the inquiry; and
(b) giving the Minister’s reasons for requesting the body, rather
than the Commission, to hold the inquiry.
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Section 95J
Competition and Consumer Act 2010 489
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No inquiry in relation to exempt supply
(6) A notice under this section must not authorise the holding of an
inquiry into a supply of goods or services of a particular
description that is an exempt supply in relation to goods or services
of that description.
No inquiry in relation to a State or Territory authority
(7) A notice under this section must not authorise the holding of an
inquiry into the supply by a State or Territory authority of goods or
services.
95J Content of inquiry notices
Description of goods or services
(1) An inquiry notice must specify the description of the goods or
services in relation to which the inquiry is to be held.
Supply of goods or services by particular persons
(2) An inquiry notice must also specify whether the inquiry is to be
held in relation to the supply of goods or services of that
description by a particular person or persons.
(3) If such an inquiry is to be held, the notice may also specify that
person or persons. If it does not, the inquiry body must, by writing,
determine that person or persons.
(4) The inquiry Chair must give the Minister notice in writing of the
determination.
No inquiry in relation to a State or Territory authority
(5) The inquiry body must not determine a State or Territory authority
as a person in relation to whom an inquiry will be held.
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Section 95K
490 Competition and Consumer Act 2010
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Ministerial directions
(6) The Minister may, in an inquiry notice, give such directions as he
or she thinks fit as to the holding of the inquiry and the matters to
be taken into consideration in the inquiry.
(7) The inquiry body must comply with any such directions.
95K Period for completing inquiry
Inquiry period
(1) An inquiry notice must specify the period within which the inquiry
is to be completed and a report on the inquiry is to be given to the
Minister.
(2) The inquiry body must complete the inquiry and give the report to
the Minister within that period.
Extensions
(3) The Minister may, before the end of the completion period, extend
or further extend that period by notice in writing given to the
inquiry Chair.
Example: A notice under subsection (1) specifies that an inquiry is to be
completed and a report given by 1 August.
On 30 July the Minister gives a notice under subsection (3) extending
the deadline to 8 August.
On 6 August the Minister gives another notice under subsection (3)
further extending the deadline to 12 August.
(4) If the Minister does so, the inquiry body must complete the inquiry
and give its report within the completion period as so extended or
further extended.
(5) In this section:
completion period means the period within which the inquiry body
is required by this section to complete an inquiry and to give its
report on the inquiry.
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Section 95L
Competition and Consumer Act 2010 491
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95L Notice of holding of inquiry
General notice
(1) An inquiry body must, by notifiable instrument, give notice of an
inquiry it is to hold.
Notice to particular person or persons
(3) If the inquiry is to be held in relation to the supply of goods or
services by a particular person or persons, the inquiry body must,
as soon as practicable, give the person, or each of the persons, a
notice in writing.
Content of notice
(4) A notice under this section must:
(a) state that the inquiry body is to hold the inquiry; and
(b) specify the matter or matters in relation to which the inquiry
is to be held; and
(c) specify the time and place at which the inquiry is to start; and
(d) in the case of a notice under subsection (3)—set out the effect
of section 95N; and
(e) specify any other matter prescribed by the regulations.
95M Notice of extension of period for completing inquiry
If:
(a) an inquiry is being held in relation to the supply of goods or
services of a particular description by a particular person or
persons; and
(b) the Minister extends, or further extends, the period within
which the inquiry is required to be completed and a report on
the inquiry given to the Minister;
the inquiry body must, as soon as possible, give the person, or each
of the persons, a notice in writing giving details of the extension or
further extension.
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Section 95N
492 Competition and Consumer Act 2010
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95N Price restrictions
(1) This section applies if an inquiry body gives a person a business
notice stating that it is to hold an inquiry in relation to the supply
by the person of goods or services of a particular description.
Offence: previous local supply
(2) The person commits an offence if:
(a) before the applicable day in relation to the business notice,
the person supplies (the current supply) goods or services of
that description in a locality on particular terms and
conditions; and
(b) the person has supplied goods or services of that description
in that locality on the same or substantially similar terms and
conditions in the period of 12 months before the current
supply; and
(c) the current supply is at a price that exceeds the highest price
at which the person has supplied goods or services of that
description in that locality on the same or substantially
similar terms and conditions in that period; and
(d) in a case where a notice has been given to the person under
subsection (5)—the current supply is not in accordance with
the notice.
Penalty: 100 penalty units.
Offence: no previous local supply
(3) The person commits an offence if:
(a) before the applicable day in relation to the business notice,
the person supplies (the current supply) goods or services of
that description in a locality on particular terms and
conditions; and
(b) the person has not supplied goods or services of that
description in that locality on the same or substantially
similar terms and conditions in the period of 12 months
before the current supply, but has supplied goods or services
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Section 95N
Competition and Consumer Act 2010 493
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of that description elsewhere in Australia on the same or
substantially similar terms and conditions in that period; and
(c) the current supply is at a price that exceeds the highest price
at which the person has supplied goods or services of that
description in Australia on the same or substantially similar
terms and conditions in that period; and
(d) in a case where a notice has been given to the person under
subsection (5)—the current supply is not in accordance with
the notice.
Penalty: 100 penalty units.
Offence: no previous supply in Australia
(4) The person commits an offence if:
(a) before the applicable day in relation to the business notice,
the person supplies (the current supply) goods or services of
that description in a locality on particular terms and
conditions; and
(b) the person has not supplied goods or services of that
description in Australia on the same or substantially similar
terms and conditions in the period of 12 months before the
current supply; and
(c) in a case where a notice has been given to the person under
subsection (5)—the current supply is not in accordance with
the notice.
Penalty: 100 penalty units.
Approval to increase prices
(5) The Commission may give the person a notice in writing stating
that the person is permitted, during the period:
(a) beginning on a specified day; and
(b) ending at the beginning of the applicable day in relation to
the business notice;
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Section 95P
494 Competition and Consumer Act 2010
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to supply goods or services of a specified description in a specified
locality on specified terms and conditions at a price not exceeding
a specified price.
(6) The Commission may give a notice under subsection (5) on its own
initiative or on the application of the person.
Consultation
(7) In an external inquiry, the Commission must consult the body
holding the inquiry before giving a notice under subsection (5).
Definition
(8) In this section:
applicable day, in relation to a business notice, means the 14th day
after whichever is the earlier of the following days:
(a) the day on which the person given the notice receives a copy
of the report by the inquiry body on the inquiry to which the
notice relates;
(b) the last day of the period within which the inquiry body is
required to complete the inquiry to which the notice relates
and to give the Minister a report on the inquiry.
Subdivision B—Reports on inquiries
95P Copies of report to be made available
Inquiry into supply of goods or services by particular persons
(1) For an inquiry held in relation to the supply of goods or services by
a particular person or persons, the inquiry body must send the
person, or each of the persons, a copy of the report on the inquiry
on the day on which it gives the Minister the report.
(2) A copy of a report sent to a person must be accompanied by a
notice in writing setting out the effect of section 95Q.
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Section 95Q
Competition and Consumer Act 2010 495
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All inquiries
(3) For any inquiry, the inquiry body must, unless the Minister directs
otherwise, make copies of the report on the inquiry available for
public inspection as soon as practicable after the period of 28 days
beginning on the day on which it gives the Minister the report.
95Q Notification of proposed prices after receipt of report
(1) This section applies if a person receives a copy of a report on an
inquiry held in relation to the supply by the person of goods or
services of a particular description.
Price notification
(2) The person must, within 14 days after receiving the copy, give the
Commission a notice in writing specifying the price or prices at
which the person is supplying, or proposing to supply, goods or
services of that description.
Offence
(3) A person commits an offence if the person contravenes
subsection (2).
Penalty: 10 penalty units.
Public notification
(4) The Commission must, within 14 days after it receives the notice
under subsection (2), make publicly available details of the price or
prices specified in the notice.
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Section 95R
496 Competition and Consumer Act 2010
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Subdivision C—Procedure at inquiries
95R Public inquiries etc.
Public inquiries
(1) An inquiry body must hold an inquiry in public, unless the Minister
directs otherwise.
Taking of evidence
(2) The inquiry body may take evidence in private at an inquiry held in
public if:
(a) a witness objects to giving, in public, evidence that the
inquiry body is satisfied is of a confidential nature; and
(b) the inquiry body considers that it is desirable to do so.
(3) The inquiry body may permit a person appearing as a witness at the
inquiry to give evidence by giving, and verifying by oath or
affirmation, a written statement.
(4) If a statement is so given in an inquiry held in public, the inquiry
body must make available to the public in such manner as it thinks
fit the contents of the statement other than any matter:
(a) that the person who gave the evidence objects to being made
public; and
(b) the evidence of which the body is satisfied would have been
taken in private if that evidence had been given orally and the
person had objected to giving it in public.
Written submissions
(5) The inquiry body may require or permit a person desiring to make
a submission to the body to make the submission in writing.
(6) If a submission is so made in an inquiry held in public, the inquiry
body must make available to the public in such manner as it thinks
fit the contents of the submission.
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Section 95S
Competition and Consumer Act 2010 497
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Procedure
(7) The procedure to be followed at an inquiry is within the discretion
of the inquiry Chair. The inquiry body is not bound by the rules of
evidence.
(8) Subsection (7) operates:
(a) subject to this Part; and
(b) in any case—subject to any direction given to the inquiry
body by the Minister; and
(c) in an inquiry held by the Commission and at which the
inquiry Chair is not the Chairperson—subject to any
direction given to the inquiry Chair by the Chairperson.
Note: See also section 95ZN (about confidentiality of information).
95S Taking of evidence on oath or affirmation
Evidence on oath or affirmation
(1) An inquiry body may take evidence at an inquiry on oath or
affirmation.
(2) An oath or affirmation may be administered by:
(a) in an inquiry by the Commission—a member of the
Commission; or
(b) in an external inquiry—the person presiding at the inquiry.
Summons
(3) The inquiry Chair may, by writing signed by him or her, summon a
person to appear at an inquiry to give evidence and to produce such
documents (if any) as are specified in the summons.
(4) In an inquiry by the Commission, the power conferred on the
inquiry Chair by subsection (3) may, at his or her discretion, be
exercised on the application of another person.
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Section 95T
498 Competition and Consumer Act 2010
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95T Failure of witness to attend
(1) A person commits an offence if:
(a) the person is given a summons to appear as a witness at an
inquiry; and
(b) the person fails to attend as required by the summons or fails
to appear and report himself or herself from day to day; and
(c) the person has not been excused, or released from further
attendance, by:
(i) in an inquiry by the Commission—a member of the
Commission; or
(ii) in an external inquiry—the person presiding at the
inquiry.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
95U Refusal to be sworn or to answer question
(1) A person appearing as a witness at an inquiry must not:
(a) refuse or fail to swear an oath or to make an affirmation if
required to do so by:
(i) in an inquiry by the Commission—a member of the
Commission; or
(ii) in an external inquiry—the person presiding at the
inquiry; or
(b) refuse or fail to answer a question that he or she is required to
answer by the inquiry Chair; or
(c) refuse or fail to produce a document that he or she was
required to produce by a summons under this Part given to
him or her.
Penalty: 10 penalty units.
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Section 95V
Competition and Consumer Act 2010 499
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(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) It is a reasonable excuse for the purposes of subsection (2) for a
person to refuse or fail to answer a question on the ground that the
answer might tend to incriminate the person or to expose the
person to a penalty.
(4) It is a reasonable excuse for the purposes of subsection (2) for a
person to refuse or fail to produce a document on the ground that
the production of the document might tend to incriminate the
person or to expose the person to a penalty.
(5) Subsections (3) and (4) do not limit what is a reasonable excuse for
the purposes of subsection (2).
95V Protection of witnesses
Subject to this Part, a person summoned to attend or appearing as a
witness at an inquiry has the same protection, and is, in addition to
the penalties provided by this Part, subject to the same liabilities, in
any civil or criminal proceedings as a witness in proceedings in the
High Court.
95W Allowances to witnesses
(1) A witness summoned under this Part to appear at an inquiry is
entitled to be paid such allowances for his or her travelling, and
such other expenses, as are prescribed by the regulations.
(2) The witness is entitled to be paid by:
(a) if the witness was summoned by the inquiry Chair—the
Commonwealth; or
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Section 95W
500 Competition and Consumer Act 2010
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(b) if the witness was summoned on the application of a
person—that person.
(3) The regulations may provide for those allowances and expenses by
reference to a scale of expenses for witnesses who attend before a
court specified in the regulations.
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Section 95X
Competition and Consumer Act 2010 501
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Division 4—Price notifications
95X Declarations by Minister or Commission
Notified goods or services
(1) The Minister, or the Commission with the approval of the Minister,
may by notice published in the Gazette declare goods or services of
a specified description to be notified goods or services for the
purposes of this Part.
Declared persons
(2) The Minister, or the Commission with the approval of the Minister,
may by notice published in the Gazette declare a person to be, in
relation to goods or services of a specified description, a declared
person for the purposes of this Part.
(3) The Commission must give the person notice in writing of a
declaration under subsection (2). The notice must set out the effect
of section 95Z.
(4) A declaration under subsection (2) must specify the time when it is
to cease to have effect. Such a declaration ceases to have effect at
the time specified, unless it is revoked sooner.
Variation or revocation
(5) The Minister, or the Commission with the approval of the Minister,
may by notice published in the Gazette vary or revoke a
declaration under this section.
95Y Declarations in relation to State or Territory authorities
(1) The Minister must not make or approve a declaration of a State or
Territory authority under section 95X unless:
(a) the appropriate Minister of the State or Territory concerned
has agreed to the declaration being made; or
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Section 95Y
502 Competition and Consumer Act 2010
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(b) the Council has, on the request (the current request) of an
Australian government, recommended the declaration and the
Minister has consulted the appropriate Minister of the State
or Territory concerned.
Role of Council
(2) The Council must not recommend a declaration of a State or
Territory authority in relation to goods or services unless it is
satisfied that:
(a) at least one Australian government has notified the State or
Territory concerned that the government is not satisfied that
there is effective supervision of the prices charged by the
authority for the supply of those goods or services; and
(b) there is not such effective supervision; and
(c) the supply of those goods or services by the authority has a
significant direct or indirect impact on qualifying trade or
commerce.
(3) The Council must also not recommend a declaration of a State or
Territory authority in relation to goods or services if:
(a) in the 5 year period before it received the current request, it
was satisfied (when considering a previous request) that there
was effective supervision of prices charged by the authority
for the supply of those goods or services; and
(b) it is satisfied that there has not been a substantial change in
the mechanism for that supervision since it was satisfied as
mentioned in paragraph (a).
(4) In deciding whether there is effective supervision of prices charged
by a State or Territory authority, if the State or Territory concerned
is a party to the Competition Principles Agreement, the Council
must apply the relevant principles set out in the agreement.
Definitions
(5) In this section:
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Section 95Z
Competition and Consumer Act 2010 503
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Australian government means the Commonwealth, a State, the
Australian Capital Territory or the Northern Territory.
qualifying trade or commerce means trade or commerce described
in paragraph 95C(1)(g) or trade and commerce between Australia
and another place.
95Z Price restrictions
Offence: previous local supply
(1) A person commits an offence if:
(a) the person is a declared person in relation to notified goods
or services; and
(b) the person supplies (the current supply) goods or services of
that description in a locality on particular terms and
conditions (the actual terms) at a particular price (the actual
price); and
(c) the person has supplied goods or services of that description
in that locality on the same or substantially similar terms and
conditions in the period of 12 months before the current
supply; and
(d) the actual price exceeds the highest price at which the person
has supplied goods or services of that description in that
locality on the same or substantially similar terms and
conditions in that period; and
(e) the current supply is not an exempt supply.
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this offence.
Offence: no previous local supply
(2) A person commits an offence if:
(a) the person is a declared person in relation to notified goods
or services; and
(b) the person supplies (the current supply) goods or services of
that description in a locality on particular terms and
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Section 95Z
504 Competition and Consumer Act 2010
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conditions (the actual terms) at a particular price (the actual
price); and
(c) the person has not supplied goods or services of that
description in that locality on the same or substantially
similar terms and conditions in the period of 12 months
before the current supply, but has supplied goods or services
of that description elsewhere in Australia on the same or
substantially similar terms and conditions in that period; and
(d) the actual price exceeds the highest price at which the person
has supplied goods or services of that description in Australia
on the same or substantially similar terms and conditions in
that period; and
(e) the current supply is not an exempt supply.
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this offence.
Offence: no previous supply in Australia
(3) A person commits an offence if:
(a) the person is a declared person in relation to notified goods
or services; and
(b) the person supplies (the current supply) goods or services of
that description in a locality on particular terms and
conditions (the actual terms) at a particular price (the actual
price); and
(c) the person has not supplied goods or services of that
description in Australia on the same or substantially similar
terms and conditions in the period of 12 months before the
current supply; and
(d) the current supply is not an exempt supply.
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this offence.
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Section 95Z
Competition and Consumer Act 2010 505
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Defence
(4) Subsection (1), (2) or (3) does not apply if the following 4
requirements are satisfied.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (4) (see subsection 13.3(3) of the Criminal Code).
Locality notice
(5) The first requirement is that the person has given the Commission
a notice (a locality notice) in writing stating that the person
proposes to supply goods or services of that description in that
locality on specified terms and conditions (the proposed terms) at a
specified price (the proposed price).
Note: The person may give further notices modifying the locality notice: see
section 95ZA.
Response to locality notice
(6) The second requirement is that:
(a) the applicable period in relation to the locality notice has
ended; or
(b) the Commission has given the person a notice in writing
stating that it has no objection to the person supplying goods
or services of that description in that locality on the proposed
terms at the proposed price; or
(c) both of the following apply:
(i) the Commission has given the person a notice (the
response notice) in writing stating that it would have no
objection to the person supplying goods or services of
that description in that locality on the proposed terms at
a specified price (the approved price) that is less than
the proposed price;
(ii) the person has, not later than 7 days after being given
the response notice, given the Commission a notice in
writing stating that the person proposes to supply goods
or services of that description in that locality on the
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Section 95ZA
506 Competition and Consumer Act 2010
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proposed terms at a price not exceeding the approved
price.
Actual terms
(7) The third requirement is that the actual terms are the same as, or
substantially similar to, the proposed terms.
Actual price
(8) The fourth requirement is that the actual price does not exceed:
(a) if paragraph (6)(a) or (b) applies—the proposed price; or
(b) if paragraph (6)(c) applies—the approved price.
95ZA Later notices modifying a locality notice
(1) If a person gives the Commission a locality notice, the person may
give the Commission one or more further notices in writing stating
that the locality notice is to have effect as if there were substituted
for the proposed price another specified price.
(2) A price specified in a notice under subsection (1) must be:
(a) less than the proposed price; and
(b) less than the price specified in any previous notice under that
subsection in relation to the locality notice.
(3) If a notice is given under subsection (1), the locality notice has
effect accordingly.
(4) In this section:
proposed price has the meaning given by subsection 95Z(5).
95ZB Applicable period in relation to a locality notice
(1) The applicable period in relation to a locality notice is the period
(the price-freeze period) of 21 days starting on the day on which
the notice was given.
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Section 95ZC
Competition and Consumer Act 2010 507
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(2) However, the Commission may, with the consent of the person
who gave the locality notice, determine, before the end of the
price-freeze period, that the applicable period in relation to the
notice for the purposes of this section is a specified longer period.
(3) If the Commission so determines, that longer period is taken to
become the applicable period in relation to the locality notice.
(4) Also, if the Commission has given a response notice, the period
that is the applicable period (worked out under subsections (1) to
(3)) in relation to the locality notice is taken to be increased by a
period of 14 days.
Example: On 1 May the person gives the Commission a locality notice.
Under subsection (1), the applicable period ends on 21 May.
On 9 May the Commission, with the consent of the person,
determines, under subsection (2), that the applicable period ends on
31 May.
If the Commission also gives the person a response notice, under
subsection (4), the applicable period instead of ending on 31 May ends
on 14 June.
95ZC Register of price notifications
Keeping of register
(1) The Commission must keep, at such place as it thinks fit, a register
for the purposes of this section.
Information on the register
(2) If a person has given the Commission a locality notice, the
Commission must, as soon as practicable after the end of the
applicable period in relation to the notice, include in the register:
(a) a copy of the notice, on which has been endorsed, or to which
has been attached, a statement indicating the outcome of the
Commission’s consideration of the notice (including any
action taken by it in relation to the notice and the outcome of
any such action); and
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Section 95ZC
508 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
(b) a copy of each notice given under this Part to, or by, the
Commission in relation to the locality notice; and
(c) a statement of the reasons for the outcome of the
Commission’s consideration of the locality notice.
Gazette notice
(3) The Commission must, within 3 months after the end of the
applicable period in relation to the locality notice, cause to be
published in the Gazette a notice:
(a) stating that the Commission received the locality notice and
specifying the date it received the notice; and
(b) setting out such particulars (if any) relating to the outcome of
the Commission’s consideration of the locality notice as it
considers appropriate.
Exclusion of confidential information
(4) A person who gives the Commission a document in relation to a
locality notice, or who makes an oral submission to the
Commission in relation to such a notice, may ask it to exclude
from a document to be placed in the register any information:
(a) that was in the document given by the person or in the
submission made by the person; and
(b) that the person claims is confidential.
(5) The Commission may exclude the information if it is satisfied that
the claim is justified and is not of the opinion that disclosure of the
information is necessary in the public interest.
(6) An application may be made to the Administrative Appeals
Tribunal for the review of a decision under subsection (5) to refuse
to exclude the information.
Inspection of register
(7) A person may, at any time during ordinary office hours in the place
where the register is kept, inspect or make copies of, or take
extracts from, the register.
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Section 95ZD
Competition and Consumer Act 2010 509
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Validity of acts done
(8) The validity of an act done by the Commission in relation to a
locality notice is not affected by a failure of the Commission to
comply with this section.
95ZD Delegation by Commission
(1) The Commission may, by writing, delegate to a member of the
Commission:
(a) the Commission’s price notification powers in relation to
specified locality notices; and
(b) the Commission’s power under section 95ZJ relating to a
notice given by the member exercising (as a delegate) the
Commission’s price notification powers.
(2) In this section:
price notification powers means the Commission’s powers under
paragraph 95Z(6)(b) or (c).
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Division 5 Price monitoring
Section 95ZE
510 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 5—Price monitoring
95ZE Directions to monitor prices, costs and profits of an industry
(1) The Minister may give the Commission a written direction:
(a) to monitor prices, costs and profits relating to the supply of
goods or services by persons in a specified industry; and
(b) to give the Minister a report on the monitoring at a specified
time or at specified intervals within a specified period.
Commercial confidentiality
(2) The Commission must, in preparing such a report, have regard to
the need for commercial confidentiality.
Public inspection
(3) The Commission must make copies of the report available for
public inspection as soon as practicable after it gives the Minister
the report.
95ZF Directions to monitor prices, costs and profits of a business
(1) The Minister may give the Commission a written direction:
(a) to monitor prices, costs and profits relating to the supply of
goods or services by a specified person; and
(b) to give the Minister a report on the monitoring at a specified
time or at specified intervals within a specified period.
Commercial confidentiality
(2) The Commission must, in preparing such a report, have regard to
the need for commercial confidentiality.
Commission to send person a copy of the report
(3) The Commission must send the person a copy of the report on the
day it gives the Minister the report.
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Section 95ZG
Competition and Consumer Act 2010 511
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Public inspection
(4) The Commission must also make copies of the report available for
public inspection as soon as practicable after the person has
received a copy of the report.
95ZG Exceptions to price monitoring
Exempt supplies
(1) The Minister must not direct the Commission under this Division
to monitor prices, costs and profits relating to a supply of goods or
services of a particular description that is an exempt supply in
relation to goods or services of that description.
State or Territory authorities
(2) The Minister must not direct the Commission under this Division
to monitor prices, costs and profits of a State or Territory authority
that supplies goods or services unless the State or Territory
concerned has agreed to the direction being given.
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Division 6 Other provisions
Section 95ZH
512 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Division 6—Other provisions
95ZH Ministerial directions
Commission
(1) The Minister may, by notice in writing give to the Chairperson,
direct the Commission to give special consideration to a specified
matter or matters in exercising its powers and performing its
functions under this Part.
(2) The Commission must comply with any such directions.
Other bodies
(3) The Minister may, by notice in writing given to the person
presiding at an external inquiry, direct the body holding the inquiry
to give special consideration to a specified matter or matters in
holding the inquiry.
(4) The body must comply with any such directions.
95ZI Inquiries by an unincorporated body or a group of 2 or more
individuals
(1) This section applies to inquiries by an unincorporated body or a
group of 2 or more individuals.
(2) The regulations may make provision for and in relation to the
manner in which the unincorporated body or group of individuals
is to:
(a) give a notice, report or other document to a person under this
Part; or
(b) do any other thing under this Part.
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Section 95ZJ
Competition and Consumer Act 2010 513
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95ZJ Withdrawal of notices
Commission
(1) The Commission may give a person a notice (the withdrawal
notice) in writing withdrawing a notice it previously gave the
person under this Part (other than this section).
(2) If the Commission does so, this Part has effect, from the time at
which the withdrawal notice is given to the person, as if the other
notice had not been given to the person.
Other bodies
(3) The body holding an external inquiry may give a person a notice
(the withdrawal notice) in writing withdrawing a notice it
previously gave the person under this Part (other than this section).
(4) If the body does so, this Part has effect, from the time at which the
withdrawal notice is given to the person, as if the other notice had
not been given to the person.
95ZK Power to obtain information or documents
Notice by Commission
(1) If the Chairperson has reason to believe that a person is capable of
giving information or producing documents relevant to:
(a) the Commission considering the matters contained in a
locality notice that the person has given it; or
(b) an inquiry that is being held in relation to the person; or
(c) a supply of goods or services by the person that is of a kind
in relation to which the Commission is carrying out an
inquiry; or
(d) a supply of goods or services by the person that is of a kind
in relation to which the Commission is monitoring under
section 95ZE or 95ZF;
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Section 95ZK
514 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
the Chairperson may, by notice in writing signed by him or her and
given to the person, require the person to do one or more of the
following:
(e) give the Commission, by writing signed by the person or his
or her agent or, in the case of a Commonwealth authority or a
body corporate, by a competent officer of the authority or
body, within the specified period and in the specified
manner, specified information relating to the affairs of the
person;
(f) produce to the Commission, within the specified period and
in the specified manner, specified documents relating to the
affairs of the person;
(g) if the person is a body corporate and the notice relates to the
matter in paragraph (d)—give the Commission, together with
the information or documents concerned, a declaration in a
form approved by the Chairperson and signed by:
(i) the Chief Executive Officer (however described) of the
body corporate; or
(ii) a person nominated by the Chief Executive Officer;
stating that the information or documents are true and
correct.
Notice by other bodies
(2) If:
(a) an external inquiry is being held in relation to a person; and
(b) the inquiry Chair has reason to believe that the person is
capable of giving information or producing documents
relevant to the inquiry;
the inquiry Chair may, by notice in writing signed by him or her
and given to the person, require the person:
(c) to give the body, by writing signed by the person or his or her
agent or, in the case of a Commonwealth authority or a body
corporate, by a competent officer of the authority or body,
within the specified period and in the specified manner,
specified information relating to the affairs of the person; or
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Section 95ZK
Competition and Consumer Act 2010 515
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(d) to produce to the body, within the specified period and in the
specified manner, specified documents relating to the affairs
of the person.
Period specified in notice
(3) A period specified in a notice under subsection (1) or (2) must end
at least 14 days after the notice was given.
Offence: refusal or failure to comply with notice
(4) A person commits an offence if the person refuses or fails to
comply with a notice given to the person under this section.
Penalty: 20 penalty units.
(5) Subsection (4) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (5) (see subsection 13.3(3) of the Criminal Code).
(6) It is a reasonable excuse for the purposes of subsection (4) for an
individual to refuse or fail to give information or produce a
document on the ground that the information or production of the
document might tend to incriminate the individual or to expose the
individual to a penalty.
(7) Subsection (6) does not limit what is a reasonable excuse for the
purposes of subsection (5).
Offence: false or misleading declarations
(8) A person must not, in a declaration made for the purposes of
paragraph (1)(g), make a statement if the person knows, or is
reckless as to whether, the statement is false or misleading.
Penalty: 20 penalty units.
Making information or documents publicly available
(9) If:
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Section 95ZL
516 Competition and Consumer Act 2010
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(a) a notice is given to a person under this section relating to an
inquiry that is being held in public in relation to the person;
and
(b) the person gives the information concerned or produces the
documents concerned to the inquiry body in connection with
the inquiry;
the inquiry body must make the information or documents
available to the public in such manner as it thinks fit.
Note: See also section 95ZN (about confidentiality of information).
95ZL Inspection of documents etc.
Members or staff members
(1) A member of the Commission, or a member of the staff of the
Commission, may inspect documents:
(a) given to the Commission for the purposes of the exercise of
its powers or the performance of its functions under this Part;
or
(b) produced at an inquiry.
(2) A member of the Commission, or a member of the staff of the
Commission, may also make copies of, or take extracts from, those
documents.
Associate members
(3) An associate member of the Commission may inspect documents:
(a) given to the Commission for the purposes of the exercise of
its powers or the performance of its functions under this Part
in relation to an inquiry for the purposes of which the
Chairperson has directed that the associate member be taken
to be a member of the Commission; or
(b) produced at that inquiry.
(4) An associate member of the Commission may also make copies of,
or take extracts from, those documents.
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Section 95ZM
Competition and Consumer Act 2010 517
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External inquiries
(5) In an external inquiry, the person presiding at the inquiry, or a
person providing assistance in the inquiry to the body holding the
inquiry, may:
(a) inspect documents given to the body for the purposes of the
inquiry; and
(b) make copies of, or take extracts from, those documents.
95ZM Retention of documents
(1) The Commission, or a body other than the Commission, may retain
a document given or produced to it as mentioned in section 95ZL.
It may retain the document for such reasonable period as it thinks
fit.
(2) The person otherwise entitled to possession of the document is
entitled to be supplied, as soon as practicable, with a copy certified
by the Commission or other body, as the case may be, to be a true
copy.
(3) The certified copy must be received in all courts and tribunals as
evidence as if it were the original.
(4) Until a certified copy is supplied, the Commission or other body,
as the case may be, must, at such times and places as it thinks
appropriate, permit the person otherwise entitled to possession of
the document, or a person authorised by that person, to inspect and
make copies of, or take extracts from, the document.
95ZN Confidential information
(1) This section applies if a person claims that disclosure of the
following information would damage the competitive position of
the person:
(a) information made available, or to be made available, by or on
behalf of the person (whether in oral evidence or in a written
statement, submission or other document) at the hearing of an
inquiry by the Commission or another body;
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Section 95ZO
518 Competition and Consumer Act 2010
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(b) information given, or contained in a document produced, by
the person under section 95ZK to the Commission or another
body.
Commission or other body to take confidentiality steps
(2) If the Commission or other body, as the case may be:
(a) is satisfied that the claim is justified; and
(b) is not of the opinion that disclosure of the information is
necessary in the public interest;
it must take all reasonable steps to ensure that the information is
not disclosed, without the consent of the person, in the proceedings
or by it, to a person other than:
(c) in relation to the Commission:
(i) a member of the Commission or an associate member of
the Commission; or
(ii) a member of the staff of the Commission who receives
the information in the course of his or her duties; or
(d) in relation to the other body:
(i) the person presiding at the inquiry concerned; or
(ii) a person providing assistance in the inquiry to the other
body.
Interpretation
(3) This section has effect despite anything in sections 95R and 95ZK.
95ZO Immunity
Members or associate members of the Commission
(1) A member of the Commission, or an associate member of the
Commission, has, in the performance of his or her functions or the
exercise of his or her powers under this Part as a member or
associate member, the same protection and immunity as a Justice
of the High Court.
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Section 95ZP
Competition and Consumer Act 2010 519
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Person presiding at an external inquiry
(2) In an external inquiry, the person presiding at the inquiry has, in
the performance of his or her functions or the exercise of his or her
powers under this Part in that capacity, the same protection and
immunity as a Justice of the High Court.
95ZP Secrecy: members or staff members of the Commission etc.
Offence
(1) An entrusted person commits an offence if:
(a) the person:
(i) makes a copy or other record of any protected
information or of all or part of any protected document;
or
(ii) discloses any protected information to another person or
to a court; or
(iii) produces all or part of a protected document to another
person or to a court; and
(b) in doing so, the person is not acting in the course of
performing or exercising functions, powers or duties under or
in relation to this Act.
Penalty: Imprisonment for 2 years.
Courts
(2) An entrusted person cannot be required to:
(a) disclose any protected information to a court; or
(b) produce all or part of a protected document to a court;
unless that disclosure or production is necessary for the purpose of
carrying into effect the provisions of this Act.
Definitions
(3) In this section:
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Section 95ZPA
520 Competition and Consumer Act 2010
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court includes any tribunal, authority or person having power to
require the production of documents or the answering of questions.
entrusted person means a person who is or was:
(a) a member of the Commission or an associate member of the
Commission; or
(b) a member of the staff of the Commission; or
(c) appointed or engaged under the Public Service Act 1999.
produce includes permit access to.
protected document means a document that:
(a) is given to or otherwise acquired by the Commission for the
purposes of this Part; and
(b) has not been made available to the public by the Commission
under this Part.
protected information means information that:
(a) is disclosed to, or obtained by, an entrusted person for the
purposes of this Part or as permitted by the repealed Part; and
(b) has not been made available to the public under this Part by
the Commission and is not contained in oral evidence given
in public at the hearing of an inquiry.
repealed Part means Part V of the Prices Surveillance Act 1983, as
continued in operation by Schedule 2 to the Trade Practices
Legislation Amendment Act 2003.
95ZPA Disclosure of protected information to the Energy
Department
(1) An authorised entrusted person may disclose protected information
to the Energy Department if the Chairperson is satisfied that the
information will enable or assist an officer of the Energy
Department to perform or exercise any function or power under the
Petroleum and Other Fuels Reporting Act 2017.
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Section 95ZPA
Competition and Consumer Act 2010 521
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(2) The Chairperson may, by writing, impose conditions to be
complied with in relation to protected information disclosed under
subsection (1).
(3) An instrument under subsection (2) is not a legislative instrument.
Delegation
(4) The Chairperson may, by writing, delegate any or all of his or her
powers under subsection (1) or (2) to:
(a) another member of the Commission; or
(b) a member of the staff of the Commission who is an SES
employee or an acting SES employee.
Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions
of SES employee and acting SES employee.
Note 2: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain
provisions relating to delegations.
(5) In performing a function, or exercising a power, under a
delegation, the delegate must comply with any directions of the
Chairperson.
(6) This section has effect despite anything in section 95ZN.
Definitions
(7) In this section:
authorised entrusted person means an entrusted person authorised
by the Chairperson, in writing, for the purposes of this definition.
Energy Department means the Department administered by the
Minister administering the Petroleum and Other Fuels Reporting
Act 2017.
protected information has the same meaning as in section 95ZP.
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Section 95ZQ
522 Competition and Consumer Act 2010
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95ZQ Secrecy: persons involved in inquiries by bodies other than
the Commission
Offence
(1) An external person commits an offence if:
(a) the person:
(i) makes a copy or other record of any protected
information or of all or part of any protected document;
or
(ii) discloses any protected information to another person or
to a court; or
(iii) produces all or part of a protected document to another
person or to a court; and
(b) in doing so, the person is not acting in the course of
performing or exercising functions, powers or duties under or
in relation to this Act.
Penalty: Imprisonment for 2 years.
Courts
(2) An external person cannot be required to:
(a) disclose any protected information to a court; or
(b) produce all or part of a protected document to a court;
unless that disclosure or production is necessary for the purpose of
carrying into effect the provisions of this Act.
Definitions
(3) In this section:
court includes any tribunal, authority or person having power to
require the production of documents or the answering of questions.
external person means a person who is or was:
(a) the person presiding at an external inquiry; or
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Competition and Consumer Act 2010 523
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(b) a person providing assistance in such an inquiry to the body
holding the inquiry.
produce includes permit access to.
protected document means a document that:
(a) is given to or otherwise acquired by the body holding the
external inquiry concerned for the purposes of that inquiry;
and
(b) has not been made available to the public by that body under
this Part.
protected information means information that:
(a) is disclosed to, or obtained by, an external person for the
purposes of the inquiry concerned; and
(b) has not been made available to the public under this Part by
the body holding that inquiry and is not contained in oral
evidence given in public at the hearing of that inquiry.
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Part VIII Resale price maintenance
Section 96
524 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
Part VIII—Resale price maintenance
96 Acts constituting engaging in resale price maintenance
(1) Subject to this Part, a corporation (in this section called the
supplier) engages in the practice of resale price maintenance if that
corporation does an act referred to in any of the paragraphs of
subsection (3).
(2) Subject to this Part, a person (not being a corporation and also in
this section called the supplier) engages in the practice of resale
price maintenance if that person does an act referred to in any of
the paragraphs of subsection (3) where the second person
mentioned in that paragraph is a corporation.
(3) The acts referred to in subsections (1) and (2) are the following:
(a) the supplier making it known to a second person that the
supplier will not supply goods to the second person unless
the second person agrees not to sell those goods at a price
less than a price specified by the supplier;
(b) the supplier inducing, or attempting to induce, a second
person not to sell, at a price less than a price specified by the
supplier, goods supplied to the second person by the supplier
or by a third person who, directly or indirectly, has obtained
the goods from the supplier;
(c) the supplier entering into an agreement, or offering to enter
into an agreement, for the supply of goods to a second
person, being an agreement one of the terms of which is, or
would be, that the second person will not sell the goods at a
price less than a price specified, or that would be specified,
by the supplier;
(d) the supplier withholding the supply of goods to a second
person for the reason that the second person:
(i) has not agreed as mentioned in paragraph (a); or
(ii) has sold, or is likely to sell, goods supplied to him or her
by the supplier, or goods supplied to him or her by a
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Section 96
Competition and Consumer Act 2010 525
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third person who, directly or indirectly, has obtained the
goods from the supplier, at a price less than a price
specified by the supplier as the price below which the
goods are not to be sold;
(e) the supplier withholding the supply of goods to a second
person for the reason that a third person who, directly or
indirectly, has obtained, or wishes to obtain, goods from the
second person:
(i) has not agreed not to sell those goods at a price less than
a price specified by the supplier; or
(ii) has sold, or is likely to sell, goods supplied to him or
her, or to be supplied to him or her, by the second
person, at a price less than a price specified by the
supplier as the price below which the goods are not to
be sold; and
(f) the supplier using, in relation to any goods supplied, or that
may be supplied, by the supplier to a second person, a
statement of a price that is likely to be understood by that
person as the price below which the goods are not to be sold.
(4) For the purposes of subsection (3):
(a) where a price is specified by another person on behalf of the
supplier, it shall be deemed to have been specified by the
supplier;
(b) where the supplier makes it known, in respect of goods, that
the price below which those goods are not to be sold is a
price specified by another person in respect of those goods,
or in respect of goods of a like description, that price shall be
deemed to have been specified, in respect of the
first-mentioned goods, by the supplier;
(c) where a formula is specified by or on behalf of the supplier
and a price may be ascertained by calculation from, or by
reference to, that formula, that price shall be deemed to have
been specified by the supplier; and
(d) where the supplier makes it known, in respect of goods, that
the price below which those goods are not to be sold is a
price ascertained by calculation from, or by reference to, a
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Section 96
526 Competition and Consumer Act 2010
Compilation No. 118 Compilation date: 6/4/19 Registered: 23/4/19
formula specified by another person in respect of those goods
or in respect of goods of a like description, that price shall be
deemed to have been specified, in respect of the
first-mentioned goods, by the supplier.
(5) In subsection (4), formula includes a set form or method.
(6) For the purposes of subsection (3), anything done by a person
acting on behalf of, or by arrangement with, the supplier shall be
deemed to have been done by the supplier.
(7) A reference in any of paragraphs (3)(a) to (e), inclusive, including
a reference in negative form, to the selling of goods at a price less
than a price specified by the supplier shall be construed as
including references to:
(a) the advertising of goods for sale at a price less than a price
specified by the supplier as the price below which the goods
are not to be advertised for sale;
(b) the displaying of goods for sale at a price less than a price
specified by the supplier as the price below which the goods
are not to be displayed for sale; and
(c) the offering of goods for sale at a price less than a price
specified by the supplier as the price below which the goods
are not to be offered for sale;
and a reference in paragraph (3)(d), (e) or (f) to a price below
which the goods are not to be sold shall be construed as including a
reference to the price below which the goods are not to be
advertised for sale, to the price below which the goods are not to be
displayed for sale and to the price below which the goods are not to
be offered for sale.
(8) Subsection (1) does not apply with respect to any act referred to in
a paragraph of subsection (3) if the supplier and the second person
referred to in that paragraph are bodies corporate that are related to
each other.
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Section 96A
Competition and Consumer Act 2010 527
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96A Resale price maintenance in relation to services
(1) This Part applies to conduct in relation to services in a way that
corresponds to the way it applies to conduct in relation to goods.
(2) For the purposes of subsection (1), this Part is to be read with
appropriate modifications, including the following modifications:
(a) references in this Part to goods are to be read as references to
services;
(b) references to the sale of goods are to be read as references to
the re-supply of services.
97 Recommended prices
For the purposes of paragraph 96(3)(b), the supplier is not to be
taken as inducing, or attempting to induce, a second person as
mentioned in that paragraph in relation to any goods:
(a) by reason only of a statement of a price being applied to the
goods as mentioned in paragraph 99(1)(a) or being applied to
a covering, label, reel or thing as mentioned in
paragraph 99(1)(b), provided that the statement is preceded
by the words “recommended price”; or
(b) by reason only of his or her having given notification in
writing to the second person (not being a notification by way
of a statement being applied as mentioned in paragraph (a))
of the price that he or she recommends as appropriate for the
sale of those goods, provided that there is included in the
notification, and in each writing that refers, whether
expressly or by implication, to the notification, a statement to
the following effect:
“The price set out or referred to herein is a recommended
price only and there is no obligation to comply with the
recommendation.”.
98 Withholding the supply of goods
(1) For the purposes of paragraph 96(3)(d) or (e), the supplier shall be
deemed to withhold the supply of goods to another person if:
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(a) the supplier refuses or fails to supply those goods to, or as
requested by, the other person;
(b) the supplier refuses to supply those goods except on terms
that are disadvantageous to the other person;
(c) in supplying goods to the other person, the supplier treats that
person less favourably, whether in respect of time, method or
place of delivery or otherwise, than the supplier treats other
persons to whom the supplier supplies the same or similar
goods; or
(d) the supplier causes or procures a person to withhold the
supply of goods to the other person as mentioned in
paragraph (a), (b) or (c) of this subsection.
(2) Paragraph 96(3)(d) does not apply in relation to the withholding by
the supplier of the supply of goods to another person who, within
the preceding year, has sold goods obtained, directly or indirectly,
from the supplier at less than their cost to that other person:
(a) for the purpose of attracting to the establishment at which the
goods were sold persons likely to purchase other goods; or
(b) otherwise for the purpose of promoting the business of that
other person.
(3) For the purposes of subsection (2), there shall be disregarded:
(a) a genuine seasonal or clearance sale of goods that were not
acquired for the purpose of being sold at that sale; or
(b) a sale of goods that took place with the consent of the
supplier.
99 Statements as to the minimum price of goods
(1) For the purposes of paragraph 96(3)(f), if:
(a) a statement is applied to goods, whether by being woven in,
impressed on, worked into or annexed or affixed to the goods
or otherwise;
(b) a statement is applied to a covering, label, reel or thing in or
with which goods are supplied; or
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(c) a statement is used in a sign, advertisement, invoice,
catalogue, business letter, business paper, price list or other
document or otherwise in a manner likely to lead to the belief
that it refers to goods;
the statement shall be deemed to have been used in relation to
those goods.
(2) For the purposes of subsection (1), covering includes a stopper,
glass, bottle, vessel, box, capsule, case, frame or wrapper and label
includes a band or ticket.
100 Evidentiary provisions
(1) Where, in proceedings under this Act by a person (in this section
referred to as the plaintiff) against another person (in this section
referred to as the defendant), it is claimed that the defendant has
engaged in the practice of resale price maintenance and it is
established that:
(a) the defendant has acted, in relation to the plaintiff, as
mentioned in paragraph 98(1)(a), (b), (c) or (d);
(b) during a period ending immediately before the time when the
defendant so acted, the defendant had been supplying goods
of the kind withheld to the plaintiff or to another person
carrying on a business similar to that of the plaintiff; and
(c) during the period of 6 months immediately before the time
when the defendant so acted, the defendant became aware of
a matter or circumstance capable of constituting a reason
referred to in paragraph 96(3)(d) or (e) for the defendant’s so
acting;
then, subject to subsection (2), it shall be presumed, unless the
contrary is established, that that matter or circumstance was the
reason for the defendant’s so acting.
(2) Subsection (1) does not apply where the plaintiff establishes the
matter mentioned in paragraph 98(1)(b) or (c) but the terms
disadvantageous to the plaintiff, or the less favourable treatment of
the plaintiff, consisted only of a requirement by the defendant as to
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the time at which, or the form in which, payment was to be made
or as to the giving of security to secure payment.
(3) In the application of this section in proceedings by the Commission
for an injunction, references to the plaintiff shall be construed as
references to a person specified in the application for the injunction
as the person in relation to whom the defendant is claimed to have
acted as mentioned in paragraph (1)(a).
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Division 1—Applications for review
101 Applications for review
(1) A person dissatisfied with a determination by the Commission
under Division 1 of Part VII:
(a) in relation to an application for an authorization or a minor
variation of an authorization; or
(b) in relation to the revocation of an authorization, or the
revocation of an authorization and the substitution of another
authorization;
may, as prescribed and within the time allowed by or under the
regulations or under subsection (1B), as the case may be, apply to
the Tribunal for a review of the determination.
(1AAA) Subsection (1) does not apply to a determination under
subsection 89(1A).
(1AA) If:
(a) the person applying under subsection (1) for review of a
determination was the applicant for an authorization, or for
the minor variation of an authorization, for the revocation of
an authorization or for the revocation of an authorization and
the substitution of another authorization; or
(b) the Tribunal is satisfied that the person has a sufficient
interest;
the Tribunal must review the determination.
(1A) Where a person has, whether before or after the commencement of
this subsection, made an application under subsection (1) for a
review of a determination, the Tribunal may, if the Tribunal
determines it to be appropriate, make a determination by consent of
the applicant, the Commission, and all persons who have been
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permitted under subsection 109(2) to intervene in the proceedings
for review, whether or not the Tribunal is satisfied of the matters
referred to in subsection 90(7).
(1B) A presidential member may, on the application of a person
concerned:
(a) in an application for an overseas merger authorisation; or
(b) in an application for a minor variation or a revocation of such
an authorization; or
(c) in an application for the revocation of such an authorization
and the substitution of another authorization;
shorten the time allowed by or under the regulations within which
an application under subsection (1) may be made for a review of
the determination by the Commission of the application referred to
in paragraph (a), (b) or (c) if the member is satisfied that special
circumstances exist and that, in all the circumstances, it would not
be unfair to do so.
(1C) The regulations may make it a requirement that a person applying
under subsection (1) for review of a determination relating to a
merger authorisation give an undertaking under section 87B that
the person will not make the acquisition to which the authorisation
relates while the Tribunal is considering the application.
(2) A review by the Tribunal is a re-hearing of the matter, unless it is a
review of a determination by the Commission:
(a) in relation to an application for a merger authorisation or a
minor variation of a merger authorisation; or
(b) in relation to the revocation of a merger authorisation, or the
revocation of a merger authorisation and the substitution of
another merger authorisation.
(3) Subsections 90(7), 91A(4) and (4A), 91B(5) and 91C(7) apply in
relation to the Tribunal in like manner as they apply in relation to
the Commission.
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101A Application for review of notices under Division 2 of Part VII
A person dissatisfied with the giving of a notice by the
Commission under subsection 93(3), (3A) or (3B), 93AAA(1),
93AC(1), (2) or (2A), 93ACA(1), 93AD(5) or 93AG(7) may, as
prescribed and within the time allowed by or under the regulations,
apply to the Tribunal for a review of the giving of the notice and, if
the person was the person to whom the notice was given or the
Tribunal is satisfied that the person has a sufficient interest, the
Tribunal shall review the giving of the notice.
101B Application for review of notice under section 95AB
(1) A person dissatisfied with the giving of a notice under
section 95AB may, as prescribed and within the time allowed by or
under the regulations, apply to the Tribunal for a review of the
giving of the notice.
(2) If the person is the person to whom the notice was given or the
Tribunal is satisfied that the person has a sufficient interest, the
Tribunal must review the giving of the notice.
102 Functions and powers of Tribunal
(1) On a review of a determination of the Commission under
Division 1 of Part VII in relation to:
(a) an application for an authorization; or
(b) an application for a minor variation of an authorization; or
(c) an application for, or the Commission’s proposal for, the
revocation of an authorization; or
(d) an application for, or the Commission’s proposal for, the
revocation of an authorization and the substitution of another
authorization;
the Tribunal may make a determination affirming, setting aside or
varying the determination of the Commission and, for the purposes
of the review, may perform all the functions and exercise all the
powers of the Commission.
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Note: Subsections (9) and (10) contain limitations in relation to
determinations relating to merger authorisations.
(1AA) If a person applies to the Tribunal for review of a determination of
the Commission relating to:
(a) the grant of a merger authorisation (a domestic merger
authorisation) that is not an overseas merger authorisation;
or
(b) the minor variation, or the revocation, of a domestic merger
authorisation; or
(c) the revocation of a domestic merger authorisation and the
substitution of another domestic merger authorisation;
the Tribunal must make its determination on the review within the
period applying under subsection (1AC) (the relevant period).
(1AB) If the Tribunal has not made its determination on the review of a
determination of the Commission mentioned in subsection (1AA)
within the relevant period, the Tribunal is taken to have made a
determination affirming the Commission’s determination.
(1AC) The period applying under this subsection is as follows:
(a) unless paragraph (b) or (c) applies—90 days;
(b) if the Tribunal allows new information, documents or
evidence under subsection (9), and paragraph (c) does not
apply—120 days;
(c) if an extended period is determined under
subsection (1AD)—that extended period;
beginning on the day the Tribunal receives the application for
review.
(1AD) Before the end of the period (the initial period) otherwise applying
under paragraph (1AC)(a) or (b) for the review, the Tribunal may
determine in writing that:
(a) the matter cannot be dealt with properly within the initial
period, either because of its complexity or because of other
special circumstances; and
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(b) an extended period applies for the review, which consists of
the initial period and a further specified period of not more
than 90 days.
The Tribunal must, before the end of the initial period, notify the
applicant and the Commission of any determination under this
subsection.
(1A) If a person applies to the Tribunal for review of a determination of
the Commission relating to:
(a) the grant of an overseas merger authorisation; or
(b) the minor variation, or the revocation, of an overseas merger
authorisation; or
(c) the revocation of an overseas merger authorisation and the
substitution of another overseas merger authorisation;
the Tribunal must make its determination on the review within 60
days after receiving the application for review.
(1B) The 60 day time limit in subsection (1A) does not apply if the
Tribunal considers that the matter cannot be dealt with properly
within that period of 60 days, either because of its complexity or
because of other special circumstances.
(1C) If subsection (1B) applies, the Tribunal must notify the applicant
before the end of the 60 day period that the matter cannot be dealt
with properly within that period.
(2) A determination by the Tribunal affirming, setting aside or varying
a determination of the Commission under Division 1 of Part VII in
relation to:
(a) an application for an authorization; or
(b) an application for a minor variation of an authorization; or
(c) an application for, or the Commission’s proposal for, the
revocation of an authorization; or
(d) an application for, or the Commission’s proposal for, the
revocation of an authorization and the substitution of another
authorization;
is, for the purposes of this Act other than this Part, to be taken to be
a determination of the Commission.
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(4) Upon a review of the giving of a notice by the Commission under
subsection 93(3):
(a) if the person who applied for the review satisfies the Tribunal
that:
(i) the conduct or proposed conduct does not and would not
have the purpose, and does not and is not likely to have
or would not have and would not be likely to have the
effect, of substantially lessening competition (within the
meaning of section 47); or
(ii) in all the circumstances:
(A) the conduct or proposed conduct has resulted or
is likely to result, or would result or be likely to
result, in a benefit to the public; and
(B) that benefit outweighs or would outweigh the
detriment to the public that has resulted or is
likely to result, or would result or be likely to
result, from the conduct or proposed conduct;
the Tribunal must make a determination setting aside the
notice; or
(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(5) Where the Tribunal makes a determination setting aside a notice
given by the Commission under subsection 93(3), then, after the
setting aside of the notice, subsection 93(7) has effect in relation to
the conduct referred to in the notice as if the Commission had not
given the notice.
(5AAA) Upon a review of the giving of a notice by the Commission under
subsection 93(3B):
(a) if the person who applied for the review satisfies the Tribunal
that the corporation or other person on whom the conditions
relating to the conduct or proposed conduct have been
imposed has not failed to comply with those conditions—the
Tribunal must make a determination setting aside the notice;
or
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(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(5AAB) Upon a review of the giving of a notice by the Commission under
subsection 93AAA(1):
(a) if the person who applied for the review satisfies the Tribunal
that:
(i) apart from section 93AAA, the Commission would not
have had grounds referred to in
subparagraph 93AAA(1)(b)(i); or
(ii) compliance with the conditions imposed by the notice
would not ensure those grounds would not exist;
the Tribunal must make a determination setting aside the
notice; or
(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(5AA) Upon a review of the giving of a notice by the Commission under
subsection 93AC(1):
(a) if the person who applied for the review satisfies the Tribunal
that any benefit to the public that has resulted or is likely to
result or would result or be likely to result from the provision
outweighs or would outweigh the detriment to the public that
has resulted or is likely to result or would result or be likely
to result from the provision—the Tribunal must make a
determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(5AB) Upon a review of the giving of a notice by the Commission under
subsection 93AC(2):
(a) if the person who applied for the review satisfies the Tribunal
that:
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(i) the provision does not and would not have the purpose,
and does not and is not likely to have or would not have
and would not be likely to have the effect, of
substantially lessening competition (within the meaning
of section 45); or
(ii) in all the circumstances:
(A) the provision has resulted or is likely to result,
or would result or be likely to result, in a
benefit to the public; and
(B) that benefit outweighs or would outweigh the
detriment to the public constituted by any
lessening of competition that has resulted or is
likely to result, or would result or be likely to
result, from the provision;
the Tribunal must make a determination setting aside the
notice; or
(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(5ABA) Upon a review of the giving of a notice by the Commission under
subsection 93AC(2A):
(a) if the person who applied for the review satisfies the Tribunal
that the corporation on whom the conditions relating to the
conduct or proposed conduct have been imposed has not
failed to comply with those conditions—the Tribunal must
make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(5AC) If the Tribunal sets aside a notice (the objection notice) given by
the Commission under subsection 93AC(1), (2) or (2A), then:
(a) if the Commission gave the objection notice as part of a
process starting when the Commission gave a notice under
subsection 93A(2) (conference notice) during the period
described in paragraph 93AD(1)(a)—the Commission is
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taken for the purposes of paragraph 93AD(1)(b) to have
decided not to give the objection notice at the time the
Tribunal set it aside; and
(b) for the purposes of subsections 93AD(2) and (3), the
objection notice is taken not to have been given.
(5A) The Tribunal must set aside a notice under subsection 93(3A) if the
person who applied for a review of the giving of the notice satisfies
the Tribunal that the likely benefit to the public from the conduct
or proposed conduct to which the notice relates will outweigh the
likely detriment to the public from the conduct or proposed
conduct.
(5B) The Tribunal must affirm the giving of a notice under
subsection 93(3A) if the person who applied for a review of the
giving of the notice does not satisfy the Tribunal as described in
subsection (5A).
(5C) If the Tribunal sets aside a notice given by the Commission under
subsection 93(3A), then:
(a) if the Commission gave the notice as part of a process
starting when the Commission gave a notice under
subsection 93A(2) during the period described in
paragraph 93(7A)(a)—the Commission is taken for the
purposes of paragraph 93(7A)(b) to have decided not to give
the notice under subsection 93(3A) at the time the Tribunal
set aside the notice given under subsection 93(3A); and
(b) for the purposes of subsections 93(7B) and (7C) the notice is
taken not to have been given.
(5D) Upon a review of the giving of a notice by the Commission under
subsection 93ACA(1):
(a) if the person who applied for the review satisfies the Tribunal
that:
(i) apart from section 93ACA, the Commission would not
have had grounds referred to in
subparagraph 93ACA(1)(b)(i); or
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(ii) compliance with the conditions imposed by the notice
would not ensure those grounds would not exist;
the Tribunal must make a determination setting aside the
notice; or
(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(5E) Upon a review of the giving of a notice by the Commission under
subsection 93AD(5):
(a) if the person who applied for the review satisfies the Tribunal
that:
(i) the period provided for in subparagraph 93AD(3)(c)(i)
in relation to the relevant collective bargaining notice is
appropriate in all the circumstances; or
(ii) the other period determined by the Commission under
subsection 93AD(5) is not appropriate in all the
circumstances;
the Tribunal must make a determination setting aside the
notice under subsection 93AD(5); or
(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(5F) Upon a review of the giving of a notice by the Commission under
subsection 93AG(7) extending a period for a further period:
(a) if the person who applied for the review satisfies the Tribunal
that in all the circumstances it is not reasonable to extend the
period for the further period, the Tribunal must make a
determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(5G) Upon a review of the giving of a notice under section 95AB:
(a) if the person who applied for the review satisfies the Tribunal
that conduct of the kind specified in the notice:
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(i) would not have the effect, or would not be likely to have
the effect, of substantially lessening competition; or
(ii) would result, or would be likely to result, in a benefit to
the public that would outweigh the detriment to the
public that would result, or would be likely to result,
from conduct of that kind;
the Tribunal must make a determination setting aside the
notice under section 95AB; or
(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(6) For the purposes of a review by the Tribunal under this Division,
the member of the Tribunal presiding at the review may require the
Commission to furnish such information, make such reports and
provide such other assistance to the Tribunal as the member
specifies.
(7) For the purposes of a review under this Division, the Tribunal may
have regard to any information furnished, documents produced or
evidence given to the Commission in connexion with the making
of the determination, or the giving of the notice, to which the
review relates.
(8) Subsections (9) and (10) apply to a review of a determination of
the Commission in relation to:
(a) an application for a merger authorisation; or
(b) an application for a minor variation of a merger
authorisation; or
(c) an application for, or the Commission’s proposal for, the
revocation of a merger authorisation; or
(d) an application for, or the Commission’s proposal for, the
revocation of a merger authorisation and the substitution of
another merger authorisation.
(9) For the purposes of the review, the Tribunal may allow a person to
provide new information, documents or evidence that the Tribunal
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is satisfied was not in existence at the time the Commission made
the determination.
(10) Despite subsection (1), the Tribunal must not, for the purposes of
the review, have regard to any information, documents or evidence
other than:
(a) information that was referred to in the Commission’s reasons
for making the determination; and
(b) any information or report given to the Tribunal under
subsection (6); and
(c) the information, documents or evidence referred to in
subsection (7); and
(d) information given to the Tribunal as a result of the Tribunal
seeking such relevant information, and consulting with such
persons, as it considers reasonable and appropriate for the
sole purpose of clarifying the information, documents or
evidence referred to in subsection (7); and
(e) any information, documents or evidence referred to in
subsection (9).
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103 Procedure generally
(1) In proceedings before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the
regulations, within the discretion of the Tribunal;
(b) the proceedings shall be conducted with as little formality
and technicality, and with as much expedition, as the
requirements of this Act and a proper consideration of the
matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence.
(2) The powers of the Tribunal with respect to matters of procedure in
particular proceedings may be exercised by a presidential member.
(3) The powers mentioned in subsection (2) may be exercised by a
presidential member:
(a) whether or not the Tribunal has been constituted under
section 37 in relation to the proceedings; and
(b) once the Tribunal is so constituted—whether or not that
member is part of the Division of the Tribunal so constituted.
104 Regulations as to certain matters
The regulations may make provision:
(a) for securing, by means of preliminary statements of facts and
contentions, and by the production of documents, that all
material facts and considerations are brought before the
Tribunal by all persons participating in any proceedings
before the Tribunal; and
(aa) with respect to evidence in proceedings before the Tribunal,
including the appointment of persons to assist the Tribunal
by giving evidence (whether personally or by means of a
written report); and
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(b) with respect to the representation in any such proceedings of
persons having a common interest in the proceedings.
105 Power to take evidence on oath
(1) The Tribunal may take evidence on oath or affirmation and for that
purpose a member of the Tribunal may administer an oath or
affirmation.
(2) A member of the Tribunal may summon a person to appear before
the Tribunal to give evidence and to produce such documents (if
any) as are referred to in the summons.
106 Hearings to be in public except in special circumstances
(1) Subject to this section, the hearing of proceedings before the
Tribunal shall be in public.
(2) Where the Tribunal is satisfied that it is desirable to do so by
reason of the confidential nature of any evidence or matter or for
any other reason, the Tribunal may:
(a) direct that a hearing or part of a hearing shall take place in
private and give directions as to the persons who may be
present; or
(b) give directions prohibiting or restricting the publication of
evidence given before the Tribunal, whether in public or in
private, or of matters contained in documents filed or lodged
with the Registrar, received in evidence by the Tribunal or
placed in the records of the Tribunal.
(3) The powers of the Tribunal under this section may be exercised by
the Tribunal as constituted for the purposes of the hearing or by the
Tribunal constituted by a presidential member.
107 Evidence in form of written statement
The Tribunal may permit a person appearing as a witness before
the Tribunal to give evidence by tendering, and, if the Tribunal
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thinks fit, verifying by oath or affirmation, a written statement,
which shall be filed with the Registrar.
108 Taking of evidence by single member
The Tribunal as constituted for the purposes of any proceedings in
which evidence may be taken may authorize a presidential member
to take evidence for the purposes of the proceedings on its behalf,
with such limitations (if any) as the Tribunal so constituted directs,
and, where such an authority is given:
(a) that member may take evidence accordingly; and
(b) for the purposes of this Act, that member shall, in relation to
the taking of evidence in accordance with the authority, be
deemed to constitute the Tribunal.
109 Participants in proceedings before Tribunal
(1) A person to whom an authorization under Division 1 of Part VII
was granted is entitled to participate in any proceedings before the
Tribunal instituted by another person in relation to that
authorization.
(1A) A person to whom a notice was given by the Commission under
subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A) is entitled
to participate in any proceedings before the Tribunal instituted by
another person in relation to that notice.
(2) The Tribunal may, upon such conditions as it thinks fit, permit a
person to intervene in proceedings before the Tribunal.
110 Representation
In proceedings before the Tribunal:
(a) a natural person may appear in person;
(aa) a person other than a body corporate may be represented by
an employee of the person approved by the Tribunal;
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(b) a body corporate may be represented by an employee, or a
director or other officer, of the body corporate approved by
the Tribunal;
(c) an unincorporated association of persons or a member of an
unincorporated association of persons may be represented by
a member or officer of the association approved by the
Tribunal; and
(d) any person may be represented by a barrister or a solicitor of
the Supreme Court of a State or Territory or of the High
Court.
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