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Дополнительный текст(-ы) Том(-а) (1 текст(ов)) Том(-а) (1 текст(ов)) Английский Competition and Consumer Act 2010 (consolidated as of February 23, 2017) 1       2       3      
 Competition and Consumer Act 2010 (consolidated as of 23 February 2017)

Prepared by the Office of Parliamentary Counsel, Canberra

Competition and Consumer Act 2010

No. 51, 1974

Compilation No. 107

Compilation date: 23 February 2017

Includes amendments up to: Act No. 5, 2017

Registered: 3 March 2017

This compilation is in 3 volumes

Volume 1: sections 1–119

Volume 2: sections 10.01–179

Volume 3: Schedules

Endnotes

Each volume has its own contents

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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 23 February 2017 (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If a provision of the compiled law has been repealed in accordance with a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.......................................................................18

4C Acquisition, supply and re-supply ...................................21

4D Exclusionary provisions ..................................................22

4E Market .............................................................................23

4F References to purpose or reason......................................23

4G Lessening of competition to include preventing or

hindering competition......................................................24

4H Application of Act in relation to leases and

licences of land and buildings .........................................24

4J Joint ventures ..................................................................24

4K Loss or damage to include injury ....................................25

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 ....................................................26

4N Extended application of Part IIIA....................................26

5 Extended application of this Act to conduct

outside Australia..............................................................26

6 Extended application of this Act to persons who

are not corporations .........................................................28

6AA Application of the Criminal Code ...................................35

Part II—The Australian Competition and Consumer

Commission 37 6A Establishment of Commission .........................................37

7 Constitution of Commission............................................38

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8 Terms and conditions of appointment .............................38

8A Associate members..........................................................38

8AB State/Territory AER members taken to be

associate members...........................................................40

9 Remuneration ..................................................................40

10 Deputy Chairpersons .......................................................41

11 Acting Chairperson..........................................................41

12 Leave of absence .............................................................42

13 Termination of appointment of members of the

Commission.....................................................................42

14 Termination of appointment of associate members

of the Commission ..........................................................43

15 Resignation......................................................................43

16 Arrangement of business .................................................44

17 Disclosure of interests by members.................................44

18 Meetings of Commission.................................................45

19 Chairperson may direct Commission to sit in

Divisions .........................................................................46

25 Delegation by Commission .............................................47

26 Delegation by Commission of certain functions

and powers ......................................................................48

27 Staff of Commission........................................................48

27A Consultants......................................................................48

28 Functions of Commission in relation to

dissemination of information, law reform and

research ...........................................................................49

29 Commission to comply with directions of Minister

and requirements of the Parliament .................................50

Part IIA—The National Competition Council 52 29A Establishment of Council ................................................52

29B Functions and powers of Council ....................................52

29BA Commonwealth consent to conferral of functions

etc. on Council.................................................................53

29BB How duty is imposed.......................................................53

29BC When a State/Territory energy law imposes a duty .........55

29C Membership of Council...................................................55

29D Terms and conditions of office ........................................55

29E Acting Council President.................................................55

29F Remuneration of Councillors ..........................................56

29G Leave of absence .............................................................56

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29H Termination of appointment of Councillors ....................56

29I Resignation of Councillors ..............................................57

29J Arrangement of Council business....................................57

29K Disclosure of interests by Councillors.............................57

29L Council meetings.............................................................58

29LA Resolutions without meetings..........................................59

29M Staff to help Council........................................................59

29N Consultants......................................................................60

29O Annual report ..................................................................60

Part III—The Australian Competition Tribunal 62 29P Definition ........................................................................62

30 Constitution of Tribunal ..................................................62

31 Qualifications of members of Tribunal............................62

31A Appointment of Judge as presidential member of

Tribunal not to affect tenure etc. .....................................63

32 Terms and conditions of appointment .............................63

33 Remuneration and allowances of members of

Tribunal ...........................................................................63

34 Acting appointments........................................................63

35 Suspension and removal of members of Tribunal ...........65

36 Resignation......................................................................66

37 Constitution of Tribunal for particular matters ................66

38 Validity of determinations...............................................66

39 President may give directions..........................................66

40 Disclosure of interests by members of Tribunal ..............66

41 Presidential member to preside........................................67

42 Decision of questions ......................................................67

43 Member of Tribunal ceasing to be available ...................68

43A Counsel assisting Tribunal ..............................................68

43B Consultants......................................................................69

44 Staff of Tribunal ..............................................................69

44A Acting appointments........................................................69

Part IIIAA—The Australian Energy Regulator (AER) 70

Division 1—Preliminary 70

44AB Definitions.......................................................................70

44AC This Part binds the Crown ...............................................70

44AD Extra-territorial operation................................................70

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Division 2—Establishment of the AER 72

44AE Establishment of the AER ...............................................72

44AF AER to hold money and property on behalf of the

Commonwealth ...............................................................72

44AG Constitution of the AER ..................................................72

Division 3—Functions and powers of the AER 73

44AH Commonwealth functions................................................73

44AI Commonwealth consent to conferral of functions

etc. on AER .....................................................................73

44AJ How duty is imposed.......................................................74

44AK When a State/Territory energy law etc. imposes a

duty..................................................................................75

44AL Powers of the AER ..........................................................75

Division 4—Administrative provisions relating to the AER 77

Subdivision A—Appointment etc. of members 77

44AM Appointment of Commonwealth AER member ..............77

44AN Membership of AER and Commission............................77

44AO Acting appointment of Commonwealth AER

member............................................................................78

44AP Appointment of State/Territory AER members ...............78

44AQ Acting appointment of State/Territory AER

member............................................................................79

44AR AER Chair .......................................................................79

44AS Acting AER Chair ...........................................................80

44AT Remuneration of AER members......................................80

44AU Additional remuneration of AER Chair...........................81

44AV Leave of absence .............................................................81

44AW Other terms and conditions..............................................81

44AX Outside employment........................................................81

44AY Disclosure of interests .....................................................82

44AZ Resignation......................................................................82

44AAB Termination of appointment ............................................82

Subdivision B—Staff etc. to assist the AER 83

44AAC Staff etc. to assist the AER ..............................................83

Subdivision C—Meetings of the AER etc. 83

44AAD Meetings..........................................................................83

44AAE Resolutions without meetings..........................................84

44AAEA Arbitration .......................................................................85

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Subdivision D—Miscellaneous 85

44AAF Confidentiality.................................................................85

44AAG Federal Court may make certain orders...........................87

44AAGA Federal Court may order disconnection if an event

specified in the National Electricity Rules occurs ...........88

44AAH Delegation by the AER....................................................89

44AAI Fees .................................................................................89

44AAJ Annual report ..................................................................90

44AAK Regulations may deal with transitional matters ...............90

Part IIIAB—Application of the finance law 92 44AAL Application of the finance law.........................................92

Part IIIA—Access to services 93

Division 1—Preliminary 93

44AA Objects of Part.................................................................93

44B Definitions.......................................................................93

44C How this Part applies to partnerships and joint

ventures ...........................................................................97

44D Meaning of designated Minister......................................98

44DA The principles in the Competition Principles

Agreement have status as guidelines ...............................99

44E This Part binds the Crown ...............................................99

Division 2—Declared services 101

Subdivision A—Recommendation by the Council 101

44F Person may request recommendation ............................101

44FA Council may request information ..................................102

44G Limits on the Council recommending declaration

of a service ....................................................................103

44GA Time limit for Council recommendations......................104

44GB Council may invite public submissions on the

application .....................................................................107

44GC Council must publish its recommendation.....................108

Subdivision B—Declaration by the designated Minister 109

44H Designated Minister may declare a service ...................109

44HA Designated Minister must publish his or her

decision .........................................................................111

44I Duration and effect of declaration .................................112

44J Revocation of declaration..............................................113

44K Review of declaration....................................................114

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44KA Tribunal may stay operation of declaration ...................115

44KB Tribunal may order costs be awarded............................117

44L Review of decision not to revoke a declaration .............118

Division 2AA—Services that are ineligible to be declared 120

Subdivision A—Scope of Division 120

44LA Constitutional limits on operation of this Division........120

Subdivision B—Ineligibility recommendation by Council 120

44LB Ineligibility recommendation ........................................120

44LC Council may request information ..................................122

44LD Time limit for Council recommendations......................123

44LE Council may invite public submissions on the

application .....................................................................125

44LF Council must publish its recommendation.....................126

Subdivision C—Designated Minister’s decision on ineligibility 127

44LG Designated Minister’s decision on ineligibility .............127

44LH Designated Minister must publish his or her

decision .........................................................................129

Subdivision D—Revocation of ineligibility decision 130

44LI Revocation of ineligibility decision...............................130

Subdivision E—Review of decisions 132

44LJ Review of ineligibility decisions ...................................132

44LK Review of decision to revoke or not revoke an

ineligibility decision ......................................................133

Subdivision F—Other matters 135

44LL Ineligibility decisions subject to alteration,

cancellation etc. .............................................................135

Division 2A—Effective access regimes 136

Subdivision A—Recommendation by Council 136

44M Recommendation for a Ministerial decision on

effectiveness of access regime.......................................136

44MA Council may request information ..................................137

Subdivision B—Decision by Commonwealth Minister 137

44N Ministerial decision on effectiveness of access

regime............................................................................137

Subdivision C—Extensions of Commonwealth Minister’s decision 139

44NA Recommendation by Council ........................................139

44NAA Council may request information ..................................140

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44NB Decision by the Commonwealth Minister .....................140

Subdivision D—Procedural provisions 142

44NC Time limit for Council recommendations......................142

44NE Council may invite public submissions .........................144

44NF Publication—Council ....................................................146

44NG Publication—Commonwealth Minister .........................147

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 149

44P State or Territory ceasing to be a party to

Competition Principles Agreement................................149

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

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 ...........................165

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44X Matters that the Commission must take into

account ..........................................................................167

44XA Time limit for Commission’s final determination .........168

44Y Commission may terminate arbitration in certain

cases ..............................................................................170

44YA Commission must terminate arbitration if

declaration varied or set aside by Tribunal ....................170

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 ......................................171

44ZC Determination of questions............................................172

44ZD Hearing to be in private .................................................172

44ZE Right to representation ..................................................172

44ZF Procedure of Commission .............................................172

44ZG Particular powers of Commission..................................173

44ZH Power to take evidence on oath or affirmation ..............174

44ZI Failing to attend as a witness.........................................174

44ZJ Failing to answer questions etc......................................175

44ZK Intimidation etc. ............................................................175

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 ........................................176

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 180

44ZO Operation of final determinations..................................180

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

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44ZS Operation and implementation of a determination

that is subject to appeal .................................................185

44ZT Transmission of documents ...........................................185

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

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

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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

44ZZMA How duty is imposed.....................................................222

44ZZMB When a law of a State or Territory imposes a duty........223

44ZZN Compensation for acquisition of property .....................223

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..................................228

44ZZP Regulations about review by the Tribunal .....................231

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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 233

Division 1—Cartel conduct 233

Subdivision A—Introduction 233

44ZZRA Simplified outline..........................................................233

44ZZRB Definitions.....................................................................233

44ZZRC Extended meaning of party ...........................................235

44ZZRD Cartel provisions ...........................................................235

44ZZRE Meaning of expressions in other provisions of this

Act.................................................................................241

Subdivision B—Offences etc. 241

44ZZRF Making a contract etc. containing a cartel

provision........................................................................241

44ZZRG Giving effect to a cartel provision .................................242

44ZZRH Determining guilt ..........................................................243

44ZZRI Court may make related civil orders..............................244

Subdivision C—Civil penalty provisions 244

44ZZRJ Making a contract etc. containing a cartel

provision........................................................................244

44ZZRK Giving effect to a cartel provision .................................244

Subdivision D—Exceptions 245

44ZZRL Conduct notified............................................................245

44ZZRM Cartel provision subject to grant of authorisation..........245

44ZZRN Contracts, arrangements or understandings

between related bodies corporate ..................................246

44ZZRO Joint ventures—prosecution ..........................................246

44ZZRP Joint ventures—civil penalty proceedings.....................249

44ZZRQ Covenants affecting competition ...................................252

44ZZRR Resale price maintenance ..............................................252

44ZZRS Exclusive dealing ..........................................................253

44ZZRT Dual listed company arrangement .................................254

44ZZRU Acquisition of shares or assets.......................................254

44ZZRV Collective acquisition of goods or services by the

parties to a contract, arrangement or understanding ......255

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information 256

44ZZS Definitions.....................................................................256

44ZZT Goods and services to which this Division applies........256

44ZZU Provisions affecting whether a corporation has

disclosed information to a person..................................257

44ZZV Meaning of private disclosure to competitors ...............258

44ZZW Corporation must not make private disclosure of

pricing information etc. to competitors .........................259

44ZZX Corporation must not make disclosure of pricing

information etc. for purpose of substantially

lessening competition ....................................................260

44ZZY Exceptions that apply to sections 44ZZW and

44ZZX...........................................................................261

44ZZZ Additional exceptions that only apply to

section 44ZZW..............................................................263

44ZZZA Burden of proof .............................................................266

44ZZZB Mere receipt of information does not constitute

being knowingly involved in contravention ..................267

Division 2—Other provisions 268

45 Contracts, arrangements or understandings that

restrict dealings or affect competition ...........................268

45B Covenants affecting competition ...................................271

45C Covenants in relation to prices ......................................275

45D Secondary boycotts for the purpose of causing

substantial loss or damage .............................................277

45DA Secondary boycotts for the purpose of causing

substantial lessening of competition..............................278

45DB Boycotts affecting trade or commerce ...........................279

45DC Involvement and liability of employee

organisations .................................................................280

45DD Situations in which boycotts permitted..........................282

45E Prohibition of contracts, arrangements or

understandings affecting the supply or acquisition

of goods or services .......................................................285

45EA Provisions contravening section 45E not to be

given effect....................................................................289

45EB Sections 45D to 45EA do not affect operation of

other provisions of Part .................................................289

46 Misuse of market power ................................................289

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46A Misuse of market power—corporation with

substantial degree of power in trans-Tasman

market............................................................................294

46B No immunity from jurisdiction in relation to

certain New Zealand laws .............................................296

47 Exclusive dealing ..........................................................296

48 Resale price maintenance ..............................................303

49 Dual listed company arrangements that affect

competition....................................................................303

50 Prohibition of acquisitions that would result in a

substantial lessening of competition..............................305

50A Acquisitions that occur outside Australia ......................307

51 Exceptions .....................................................................310

51AAA Concurrent operation of State and Territory laws..........315

Part IVB—Industry codes 316

Division 1—Preliminary 316

51ACA Definitions.....................................................................316

Division 2—Contravention of industry codes 318

51ACB Contravention of industry codes....................................318

Division 2A—Infringement notices 319

51ACC Purpose and effect of this Division................................319

51ACD Issuing an infringement notice ......................................319

51ACE Matters to be included in an infringement notice ..........320

51ACF Amount of penalty.........................................................320

51ACG Effect of compliance with an infringement notice.........321

51ACH Effect of failure to comply with an infringement

notice.............................................................................321

51ACI Infringement notice compliance period for

infringement notice........................................................322

51ACJ Withdrawal of an infringement notice ...........................322

Division 3—Public warning notices 325

51ADA Commission may issue a public warning notice............325

Division 4—Orders to redress loss or damage suffered by

non-parties etc. 326

51ADB Orders to redress loss or damage suffered by

non-parties etc. ..............................................................326

51ADC Kinds of orders that may be made to redress loss

or damage suffered by non-parties etc...........................328

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Division 5—Investigation power 330

51ADD Commission may require corporation to provide

information....................................................................330

51ADE Extending periods for complying with notices ..............330

51ADF Compliance with notices ...............................................331

51ADG False or misleading information etc. .............................331

Division 6—Miscellaneous 332

51AE Regulations relating to industry codes...........................332

51AEA Concurrent operation of State and Territory laws..........332

Part IVC—Payment surcharges 333

Division 1—Preliminary 333

55 Object of this Part..........................................................333

55A Definitions.....................................................................333

Division 2—Limit on payment surcharges 335

55B Payment surcharges must not be excessive ...................335

Division 3—Information about payment surcharges 336

55C Surcharge information notices.......................................336

55D Extending periods for complying with notices ..............336

55E Participant must comply with notice .............................337

Division 4—Infringement notices 338

55F Purpose and effect of this Division................................338

55G Issuing an infringement notice ......................................338

55H Matters to be included in an infringement notice ..........339

55J Amount of penalty.........................................................339

55K Effect of compliance with an infringement notice.........339

55L Effect of failure to comply with an infringement

notice.............................................................................340

55M Infringement notice compliance period for

infringement notice........................................................340

55N Withdrawal of an infringement notice ...........................341

Part V—Carbon tax price reduction obligation 343

Division 1—Preliminary 343

60 Simplified outline of this Part........................................343

60AA Objects etc. ....................................................................344

60A Definitions.....................................................................345

60B Regulated goods ............................................................350

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Division 2—Carbon tax price reduction obligation 351

60C Price exploitation in relation to the carbon tax

repeal .............................................................................351

60CA Failure to pass on cost savings—250% penalty.............351

60D Notice to entity that is considered to have engaged

in price exploitation in relation to the carbon tax

repeal .............................................................................353

60E Commission may issue notice to aid prevention of

price exploitation in relation to the carbon tax

repeal .............................................................................354

60F Acquisition of property .................................................355

Division 2A—Carbon tax removal substantiation notices 356

60FA Carbon tax removal substantiation notices ....................356

60FB Extending periods for complying with carbon tax

removal substantiation notices.......................................357

60FC Compliance with carbon tax removal

substantiation notices ....................................................357

Division 2B—Carbon tax removal substantiation statements 359

60FD Carbon tax removal substantiation statements...............359

Division 2C—Statements for customers 362

60FE Statements for customers...............................................362

Division 3—Price monitoring in relation to the carbon tax repeal

etc. 364

60G Commission may monitor prices in relation to the

carbon tax repeal etc......................................................364

60H Information-gathering powers .......................................366

60J Reporting.......................................................................368

Division 4—False or misleading representations about the effect

of the carbon tax repeal etc. on prices 369

60K False or misleading representations about the

effect of the carbon tax repeal etc. on prices .................369

Division 5—Infringement notices 370

60L Issuing an infringement notice ......................................370

60M Effect of compliance with an infringement notice.........371

60N Effect of failure to comply with an infringement

notice.............................................................................372

60P Infringement notice compliance period for

infringement notice........................................................372

60Q Withdrawal of an infringement notice ...........................373

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60R Effect of this Division ...................................................374

Part VI—Enforcement and remedies 376 75B Interpretation .................................................................376

76 Pecuniary penalties........................................................376

76A Defence to proceedings under section 76 relating

to a contravention of section 95AZN.............................380

76B What happens if substantially the same conduct is

a contravention of Part IV or section 95AZN and

an offence? ....................................................................381

76C Defence to proceedings relating to exclusionary

provisions ......................................................................382

77 Civil action for recovery of pecuniary penalties............383

77A Indemnification of officers ............................................383

77B Certain indemnities not authorised and certain

documents void .............................................................384

77C Application of section 77A to a person other than a

body corporate...............................................................384

78 Criminal proceedings not to be brought for

contraventions of Part IV...............................................384

79 Offences against section 44ZZRF or 44ZZRG..............385

79A Enforcement and recovery of certain fines ....................386

79B Preference must be given to compensation for

victims...........................................................................388

80 Injunctions.....................................................................389

80A Price exploitation in relation to the carbon tax

repeal—orders limiting prices or requiring refunds

of money........................................................................392

80AB Stay of injunctions.........................................................392

80AC Injunctions to prevent mergers if clearance or

authorisation granted on the basis of false or

misleading information..................................................394

81 Divestiture where merger contravenes section 50

or 50A ...........................................................................395

81A Divestiture where merger done under clearance or

authorisation granted on false etc. information..............397

82 Actions for damages......................................................399

83 Finding in proceedings to be evidence ..........................399

84 Conduct by directors, employees or agents ...................400

85 Defences........................................................................402

86 Jurisdiction of courts .....................................................402

86AA Limit on jurisdiction of Federal Circuit Court...............404

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86A Transfer of matters ........................................................404

86C Non-punitive orders.......................................................405

86D Punitive orders—adverse publicity ...............................407

86E Order disqualifying a person from managing

corporations...................................................................408

86F Privilege against exposure to penalty—

disqualification from managing corporations ................409

87 Other orders...................................................................410

87AA Special provision relating to Court’s exercise of

powers under this Part in relation to boycott

conduct ..........................................................................415

87B Enforcement of undertakings ........................................416

87C Enforcement of undertakings—Secretary of the

Department ....................................................................417

87CA Intervention by Commission .........................................417

Part VIA—Proportionate liability for misleading and deceptive

conduct 418 87CB Application of Part ........................................................418

87CC Certain concurrent wrongdoers not to have benefit

of apportionment ...........................................................418

87CD Proportionate liability for apportionable claims ............419

87CE Defendant to notify plaintiff of concurrent

wrongdoer of whom defendant aware ...........................420

87CF Contribution not recoverable from defendant................421

87CG Subsequent actions ........................................................421

87CH Joining non-party concurrent wrongdoer in the

action.............................................................................421

87CI Application of Part ........................................................421

Part VIB—Claims for damages or compensation for death or

personal injury 423

Division 1—Introduction 423

87D Definitions.....................................................................423

87E Proceedings to which this Part applies ..........................425

Division 2—Limitation periods 426

87F Basic rule.......................................................................426

87G Date of discoverability ..................................................427

87H Long-stop period ...........................................................429

87J The effect of minority or incapacity ..............................429

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87K The effect of close relationships....................................430

Division 3—Limits on personal injury damages for

non-economic loss 431

87L Limits on damages for non-economic loss ....................431

87M Maximum amount of damages for non-economic

loss ................................................................................431

87N Index numbers ...............................................................432

87P Most extreme cases .......................................................432

87Q Cases of 33% or more (but not 100%) of a most

extreme case ..................................................................433

87R Cases of 15% or more (but less than 33%) of a

most extreme case .........................................................433

87S Cases of less than 15% of a most extreme case .............434

87T Referring to earlier decisions on non-economic

loss ................................................................................434

Division 4—Limits on personal injury damages for loss of

earning capacity 435

87U Personal injury damages for loss of earning

capacity .........................................................................435

87V Average weekly earnings ..............................................435

Division 5—Limits on personal injury damages for gratuitous

attendant care services 437

87W Personal injury damages for gratuitous attendant

care services for plaintiff ...............................................437

87X Personal injury damages for loss of plaintiff’s

capacity to provide gratuitous attendant care

services..........................................................................438

Division 6—Other limits on personal injury damages 440

87Y Damages for future economic loss—discount rate ........440

87Z Damages for loss of superannuation entitlements .........440

87ZA Interest on damages .......................................................441

87ZB Exemplary and aggravated damages .............................442

Division 7—Structured settlements 443

87ZC Court may make orders under section 87 for

structured settlements ....................................................443

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Part VII—Authorisations, notifications and clearances in

respect of restrictive trade practices 444

Division 1—Authorisations (other than section 50 merger

authorisations) 444

87ZP Definitions.....................................................................444

88 Power of Commission to grant authorisations ...............444

89 Procedure for applications and the keeping of a

register...........................................................................452

90 Determination of applications for authorisations...........455

90A Commission to afford opportunity for conference

before determining application for authorisation...........462

90B Commission may rely on consultations undertaken

by the AEMC ................................................................466

91 Grant and variation of authorisations ............................467

91A Minor variations of authorizations ................................469

91B Revocation of an authorization......................................471

91C Revocation of an authorization and substitution of

a replacement ................................................................473

Division 2—Notifications 476

Subdivision A—Exclusive dealing and private disclosure of

pricing information 476

93 Notification of exclusive dealing or private

disclosure of pricing information ..................................476

Subdivision B—Collective bargaining 482

93AA Definitions.....................................................................482

93AB Notification of collective bargaining .............................482

93AC Commission’s objection notice .....................................487

93AD When collective bargaining notice comes into

force and ceases to be in force.......................................489

93AE Withdrawal of collective bargaining notice...................490

93AEA Only 1 collective bargaining notice under

subsection 93AB(1A) may be given..............................491

93AF Only 1 collective bargaining notice under

subsection 93AB(1) may be given.................................492

Subdivision C—Conferences 492

93A Commission to afford opportunity for conference

before giving notice.......................................................492

Subdivision D—Register of notifications 495

95 Register of notifications ................................................495

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Division 3—Merger clearances and authorisations 499

Subdivision A—Preliminary 499

95AA Simplified outline of this Division ................................499

95AB Definitions.....................................................................500

Subdivision B—Merger clearances 501

95AC Commission may grant clearance for a merger .............501

95AD Application for clearance ..............................................502

95AE Requirements for valid clearance application................502

95AF Commission to notify if clearance application is

invalid............................................................................502

95AG Application to be published on the internet ...................502

95AH Merger clearance register ..............................................503

95AI Confidentiality claims etc..............................................503

95AJ Commission may seek additional information from

applicant ........................................................................505

95AK Commission may seek further information and

consult others ................................................................505

95AL Applicant may withdraw application.............................505

95AM Commission to make determination on application.......505

95AN When clearance must not be granted .............................506

95AO Time limits for determining application ........................507

95AP Clearance subject to conditions .....................................507

95AQ When clearance is in force ............................................508

95AR Minor variations of clearances ......................................509

95AS Revocation of clearance or revocation of clearance

and substitution of a new clearance ...............................513

Subdivision C—Merger authorisations 517

95AT Tribunal may grant authorisation for a merger ..............517

95AU Application for authorisation.........................................518

95AV Requirements for valid authorisation application ..........518

95AW Tribunal to notify if authorisation application is

invalid............................................................................519

95AX Tribunal to notify Commission of authorisation

application .....................................................................519

95AY Application to be published on the internet ...................519

95AZ Merger authorisation register ........................................519

95AZA Confidentiality claims etc..............................................520

95AZC Tribunal may seek additional information from

applicant ........................................................................521

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95AZD Tribunal may seek further information and consult

others etc. ......................................................................522

95AZE Applicant may withdraw application.............................522

95AZEA Tribunal must require Commission to give report .........522

95AZF Commission to assist Tribunal ......................................522

95AZFA Commission may make enquiries..................................523

95AZG Tribunal to make determination on application .............523

95AZH When authorisation must not be granted .......................524

95AZI Time limits for determining application ........................525

95AZJ Authorisation subject to conditions ...............................525

95AZK When authorisation is in force.......................................526

95AZL Minor variations of authorisations.................................526

95AZM Revocation of authorisation or revocation of

authorisation and substitution of a new

authorisation..................................................................530

Subdivision D—Miscellaneous 535

95AZN Providing false or misleading information ....................535

Part VIIA—Prices surveillance 537

Division 1—Preliminary 537

95A Interpretation .................................................................537

95B Exempt supplies ............................................................541

95C Application of Part ........................................................541

95D Crown to be bound ........................................................542

95E Object of this Part..........................................................542

95F Simplified overview of this Part ....................................543

Division 2—Commission’s functions under this Part 544

95G Commission’s functions under this Part ........................544

Division 3—Price inquiries 546

Subdivision A—Holding of inquiries 546

95H Price inquiries................................................................546

95J Content of inquiry notices .............................................547

95K Period for completing inquiry .......................................548

95L Notice of holding of inquiry ..........................................549

95M Notice of extension of period for completing

inquiry ...........................................................................549

95N Price restrictions............................................................550

Subdivision B—Reports on inquiries 553

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95P Copies of report to be made available ...........................553

95Q Notification of proposed prices after receipt of

report .............................................................................553

Subdivision C—Procedure at inquiries 554

95R Public inquiries etc. .......................................................554

95S Taking of evidence on oath or affirmation ....................555

95T Failure of witness to attend............................................556

95U Refusal to be sworn or to answer question ....................556

95V Protection of witnesses ..................................................557

95W Allowances to witnesses................................................558

Division 4—Price notifications 559

95X Declarations by Minister or Commission ......................559

95Y Declarations in relation to State or Territory

authorities......................................................................559

95Z Price restrictions............................................................561

95ZA Later notices modifying a locality notice ......................564

95ZB Applicable period in relation to a locality notice...........564

95ZC Register of price notifications .......................................565

95ZD Delegation by Commission ...........................................567

Division 5—Price monitoring 568

95ZE Directions to monitor prices, costs and profits of

an industry.....................................................................568

95ZF Directions to monitor prices, costs and profits of a

business .........................................................................568

95ZG Exceptions to price monitoring......................................569

Division 6—Other provisions 570

95ZH Ministerial directions.....................................................570

95ZI Inquiries by an unincorporated body or a group of

2 or more individuals.....................................................570

95ZJ Withdrawal of notices ...................................................571

95ZK Power to obtain information or documents....................571

95ZL Inspection of documents etc. .........................................574

95ZM Retention of documents.................................................575

95ZN Confidential information ...............................................575

95ZO Immunity .......................................................................576

95ZP Secrecy: members or staff members of the

Commission etc. ............................................................577

95ZQ Secrecy: persons involved in inquiries by bodies

other than the Commission............................................578

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Part VIII—Resale price maintenance 581 96 Acts constituting engaging in resale price

maintenance...................................................................581

96A Resale price maintenance in relation to services ...........583

97 Recommended prices ....................................................584

98 Withholding the supply of goods...................................584

99 Statements as to the minimum price of goods ...............585

100 Evidentiary provisions...................................................586

Part IX—Review by Tribunal of Determinations of

Commission 587

Division 1—Applications for review (other than for merger

clearances) 587

101 Applications for review .................................................587

101A Application for review of notice under

subsection 93(3) or (3A) or 93AC(1) or (2) ..................588

102 Functions and powers of Tribunal .................................589

Division 2—Procedure and Evidence 594

102A Definition ......................................................................594

103 Procedure generally.......................................................594

104 Regulations as to certain matters ...................................594

105 Power to take evidence on oath .....................................595

106 Hearings to be in public except in special

circumstances ................................................................595

107 Evidence in form of written statement...........................596

108 Taking of evidence by single member...........................596

109 Participants in proceedings before Tribunal ..................596

110 Representation...............................................................597

Division 3—Review of Commission’s determinations on merger

clearances 598

111 Applications for review .................................................598

112 Tribunal to notify Commission......................................599

113 Commission to give material to Tribunal ......................599

114 Tribunal may consult etc. to clarify information ...........599

115 Commission to assist Tribunal ......................................600

116 Tribunal only to consider material before the

Commission...................................................................600

117 Tribunal to make decision on review.............................600

118 Time limits for making review decision ........................601

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119 Tribunal’s decision taken to be Commission’s ..............601

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Preliminary Part I

Section 1

Competition and Consumer Act 2010 1

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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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Section 2B

2 Competition and Consumer Act 2010

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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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Section 2C

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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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Section 3

4 Competition and Consumer Act 2010

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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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(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:

(a) 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; or

(b) an authorisation under Division 3 of Part VII granted by the

Tribunal.

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 44ZZRD.

Chairperson means the Chairperson of the Commission.

clearance means a clearance under Division 3 of Part VII granted

by the Commission or by the Tribunal on a review of a

determination of the Commission.

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 competition from imported goods or from

services rendered 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.

Conduct Code Agreement means the Conduct Code Agreement

made on 11 April 1995 between the Commonwealth, New South

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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.

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.

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.

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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

(e) whether in any other form; or

(f) whether in any combination of forms.

Federal Circuit Court means the Federal Circuit Court of

Australia.

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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.

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.

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member of the Tribunal includes the President and a person

appointed to act as a member of the Tribunal.

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.

personal injury includes:

(a) pre-natal injury; or

(b) impairment of a person’s physical or mental condition; or

(c) disease;

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.

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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

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.

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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.

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.

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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.

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.

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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:

(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

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provision of, an understanding or the requiring of the giving

of, or the giving of, a covenant;

(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

requiring of the giving of, or the giving of, a covenant;

(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

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, or to render a covenant, unenforceable if the provision

of the contract or the covenant has or is likely to have a particular

effect, that provision of this Act applies in relation to the provision

of the contract or the covenant at any time when the provision of

the contract or the covenant has or is likely to have that effect

notwithstanding that:

(a) at an earlier time the provision of the contract or the covenant

did not have that effect or was not regarded as likely to have

that effect; or

(b) the provision of the contract or the covenant 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

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(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

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:

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(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

(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.

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(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

(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

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(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.

(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

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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

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.

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(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;

(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

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(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.

4D Exclusionary provisions

(1) A provision of a contract, arrangement or understanding, or of a

proposed contract, arrangement or understanding, shall be taken to

be an exclusionary provision for the purposes of this Act if:

(a) the contract or arrangement was made, or the understanding

was arrived at, or the proposed contract or arrangement is to

be made, or the proposed understanding is to be arrived at,

between persons any 2 or more of whom are competitive

with each other; and

(b) the provision has the purpose of preventing, restricting or

limiting:

(i) the supply of goods or services to, or the acquisition of

goods or services from, particular persons or classes of

persons; or

(ii) the supply of goods or services to, or the acquisition of

goods or services from, particular persons or classes of

persons in particular circumstances or on particular

conditions;

by all or any of the parties to the contract, arrangement or

understanding or of the proposed parties to the proposed

contract, arrangement or understanding or, if a party or

proposed party is a body corporate, by a body corporate that

is related to the body corporate.

(2) A person shall be deemed to be competitive with another person

for the purposes of subsection (1) if, and only if, the

first-mentioned person or a body corporate that is related to that

person is, or is likely to be, or, but for the provision of any

contract, arrangement or understanding or of any proposed

contract, arrangement or understanding, would be, or would be

likely to be, in competition with the other person, or with a body

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corporate that is related to the other person, in relation to the

supply or acquisition of all or any of the goods or services to which

the relevant provision of the contract, arrangement or

understanding or of the proposed contract, arrangement or

understanding relates.

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:

(a) a provision of a contract, arrangement or understanding or of

a proposed contract, arrangement or understanding, or a

covenant or a proposed covenant, 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, or the covenant

was required to be given or the proposed covenant is to

be required to be given, as the case may be, 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.

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(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;

(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

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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

(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.

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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.

(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:

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(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.

(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.

(3) Where a claim under section 82, or under section 236 of the

Australian Consumer Law, is made in a proceeding, a person is not

entitled to rely at a hearing in respect of that proceeding on conduct

to which a provision of this Act extends by virtue of subsection (1)

or (2) of this section except with the consent in writing of the

Minister.

(4) A person other than the Minister, the Commission or the Director

of Public Prosecutions is not entitled to make an application to the

Court for an order under subsection 87(1) or (1A), or under

subsection 237(1) or 238(1) of the Australian Consumer Law, in a

proceeding in respect of conduct to which a provision of this Act

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extends by virtue of subsection (1) or (2) of this section except

with the consent in writing of the Minister.

(5) The Minister shall give a consent under subsection (3) or (4) in

respect of a proceeding unless, in the opinion of the Minister:

(a) the law of the country in which the conduct concerned was

engaged in required or specifically authorised the engaging in

of the conduct; and

(b) it is not in the national interest that the consent be given.

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 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK,

Division 1A of Part IV, and sections 45, 45B, 45D to

45EB (other than section 45DB), 46 and 46A;

(ia) Part V (other than Division 5);

(ii) Part VIII;

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(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:

(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

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(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 subsection 45(1) and subparagraph 87(3)(a)(i) the words

“in so far as it confers rights or benefits or imposes duties or

obligations on a corporation” were omitted; and

(e) in subsection 45B(1) and subparagraph 87(3)(a)(ii) the words

“in so far as it confers rights or benefits or imposes duties or

obligations on a corporation or on a person associated with 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

(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 44ZZRD(2)(c) to goods or

services supplied, or likely to be supplied, were, by express

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provision, confined to goods or services supplied, or likely to

be supplied, to corporations or classes of corporations; and

(b) the reference in paragraph 44ZZRD(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 44ZZRD(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 44ZZRD(2)(f) to goods or services

likely to be re-supplied were, by express provision, confined

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 44ZZRD(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 44ZZRD(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 44ZZRD(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 44ZZRD(3)(a)(iii), (b)(i)

and (ii) to persons or classes of persons were, by express

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provision, confined to corporations or classes of

corporations; and

(i) the reference in subparagraph 44ZZRD(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 44ZZRD(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

(k) the reference in paragraph 44ZZRD(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 44ZZRD(4)(e) to paragraph (2)(e)

or (f) included a reference to paragraph (2)(g) or (h); and

(m) section 44ZZRD 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 44ZZRD);

(ii) any other provision (other than section 4, 44ZZRD,

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

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Act (other than Parts IIIA, VIIA and X) has, by force of this

subsection, the effect it would have if:

(a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK 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;

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 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK 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.

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(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.

(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.

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(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

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 44ZZRF or 44ZZRG, 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 44ZZRF or 44ZZRG, 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.

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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 44ZZRF or 44ZZRG.

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Part II—The Australian Competition and

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.

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.

8A Associate members

(1) The Minister may appoint persons to be associate members of the

Commission.

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(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 a clearance, or the making by

the Commission of any decision for the purposes of

subsection 93(3) or (3A) or 93AC(1) or (2), the Chairperson shall

consider:

(a) whether he or she should give a direction under

subsection (4) of this section; or

(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

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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 under

section 171.

8AB State/Territory AER members taken to be associate members

(1) 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, 15 and 17.

(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.

(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.

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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.

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.

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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.

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.

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(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;

(b) fails to comply with his or her obligations under section 17;

(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

(b) fails to comply with his or her obligations under section 17;

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.

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(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 members

(1) Where a member of the Commission other than the Chairperson is

taking part, or is to take part, in the determination of a matter

before the Commission 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 determination of the

matter:

(a) the member shall disclose the interest to the Chairperson; and

(b) the member shall not take part, or continue to take part, in the

determination of the matter if:

(i) the Chairperson gives a direction under paragraph (2)(a)

in relation to the matter; or

(ii) all of the persons concerned in the matter do not consent

to the member taking part in the determination of the

matter.

(2) Where the Chairperson becomes aware that a member of the

Commission is taking part, or is to take part, in the determination

of a matter and that the member has in relation to the determination

of the matter such an interest:

(a) if the Chairperson considers that the member should not take

part, or should not continue to take part, in the determination

of the matter—the Chairperson shall give a direction to the

member accordingly; or

(b) in any other case—the Chairperson shall cause the interest of

the member to be disclosed to the persons concerned in the

matter.

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(3) The Chairperson shall 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.

(4) 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

(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

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(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.

(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.

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(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

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 or a clearance.

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.

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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

(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.

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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;

(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

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(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.

(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.

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(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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Part IIA—The National Competition Council

29A Establishment of Council

The National Competition Council is established by this section.

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

(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.

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(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

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.

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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.

(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.

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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.

(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:

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(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.

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:

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(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 29K;

(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

(b) if the parties to the Agreement are evenly divided on the

question of agreeing to a program—the Commonwealth.

29K Disclosure of interests by Councillors

(1) If a Councillor (except the Council President) is taking part, or is to

take part, in the Council’s consideration of a matter and the

Councillor has or acquires any pecuniary interest that could

conflict with the proper performance of his or her functions

relating to the matter:

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(a) the Councillor must disclose the interest to the Council

President; and

(b) the Councillor must not take part, or continue to take part, in

the consideration of the matter if:

(i) all of the persons concerned in the matter do not consent

to the Councillor taking part in the consideration of the

matter; or

(ii) the Council President gives a direction to the member

under paragraph (2)(b).

(2) If the Council President becomes aware that a Councillor is taking

part, or is to take part, in the Council’s consideration of a matter

and that the Councillor has such an interest relating to the matter:

(a) the Council President must cause the Councillor’s interest to

be disclosed to the persons concerned in the matter; or

(b) if the Council President considers that the Councillor should

not take part or continue to take part in the consideration of

the matter—the Council President must direct the Councillor

accordingly.

(3) The Council President must give the Minister written notice of all

pecuniary interests that the Council President has or acquires in

any business carried on in Australia or in any body corporate

carrying on such business.

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.

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(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.

(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:

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(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

(1) Within 60 days after the end of each financial year, the Councillors

must give a report on the Council’s operations during that year to

the Minister for presentation to the Parliament.

(2) The report must also include details of the following:

(a) the time taken by the Council to make a recommendation on

any application under section 44F, 44M or 44NA (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) any of the matters mentioned in subsection 44H(4)

(about matters relevant to declaring 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;

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(f) any implications for the operation of Part IIIA in the future.

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29P Definition

In this Part, unless the contrary intention appears:

proceedings includes:

(a) applications made to the Tribunal under Subdivision C of

Division 3 of Part VII; and

(b) applications made to the Tribunal under section 111 (about

review of the Commission’s decisions on merger clearances).

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.

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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,

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:

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(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.

(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

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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.

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.

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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.

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

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(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

(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.

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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.

(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:

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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.

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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(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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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) 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.

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

(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).

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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

(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.

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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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Section 44AO

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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.

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

(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.

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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.

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.

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(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

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.

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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.

Note: The Privacy Act 1988 also contains provisions relevant to the use and

disclosure of information.

(2) For the purposes of subsection (1), the disclosure of information as

required or permitted by a law of the Commonwealth, a State or

Territory, is taken to be authorised use and disclosure of the

information.

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Authorised use

(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

(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 taken to be authorised use and disclosure of the information.

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(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.

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:

(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;

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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

(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.

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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.

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

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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.

44AAJ Annual report

(1) The AER must, within 60 days after the end of each year ending on

30 June, give the Minister a report on its operations during that

year, for presentation to the Parliament.

Note: See also section 34C of the Acts Interpretation Act 1901, which

contains extra rules about annual reports.

(2) The Minister must give a copy of the report to the relevant Minister

of each of the States, the Australian Capital Territory and the

Northern Territory.

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:

(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:

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matters of a transitional nature also includes matters of an

application or saving nature.

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Part IIIAB Application of the finance law

Section 44AAL

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Part IIIAB—Application of the finance law

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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Preliminary Division 1

Section 44AA

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Part IIIA—Access to services

Division 1—Preliminary

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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Section 44B

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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 recommendation means a recommendation made by

the Council under section 44F.

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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

(d) the National Gas (Commonwealth) Law (within the meaning

of the Australian Energy Market Act 2004); or

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Section 44B

96 Competition and Consumer Act 2010

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(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

(e) the use of intellectual property; or

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Competition and Consumer Act 2010 97

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(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.

(5) If:

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98 Competition and Consumer Act 2010

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(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.

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; 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.

(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; and

(b) the State or Territory concerned is a party to the Competition

Principles Agreement;

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Competition and Consumer Act 2010 99

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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

(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.

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Section 44E

100 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Section 44F

Competition and Consumer Act 2010 101

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Division 2—Declared services

Subdivision A—Recommendation by the Council

44F Person may request recommendation

(1) The designated Minister, or any other person, may make a written

application to the Council asking the Council to recommend that a

particular service be declared.

(2) After receiving the application, 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.

(4) In deciding what recommendation to make, the Council must

consider whether it would be economical for anyone to develop

another facility that could provide part of the service. This

subsection does not limit the grounds on which the Council may

decide to recommend that the service be declared or not be

declared.

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Section 44FA

102 Competition and Consumer Act 2010

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(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.

(8) An instrument making a decision under subsection (7) is not a

legislative instrument.

(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.

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Section 44G

Competition and Consumer Act 2010 103

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(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.

44G Limits on the Council recommending declaration of a service

(1) The Council cannot recommend declaration of a service that is the

subject of an access undertaking in operation under Division 6.

(1A) While a decision of the Commission 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 Council cannot recommend declaration of any service

provided by means of the facility that was specified under

paragraph 44PA(2)(a).

(2) The Council cannot recommend that a service be declared unless it

is satisfied of all of the following matters:

(a) that access (or increased access) to 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;

(b) that it would be uneconomical for anyone to develop another

facility to provide the service;

(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

(iii) the importance of the facility to the national economy;

(e) that access to the service:

(i) is not already the subject of a regime in relation to

which a decision under section 44N that the regime is an

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Section 44GA

104 Competition and Consumer Act 2010

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effective access regime is in force (including as a result

of an extension under section 44NB); or

(ii) is the subject of a regime in relation to 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), but the Council believes that,

since the Commonwealth Minister’s decision was

published, there have been substantial modifications of

the access regime or of the relevant principles set out in

the Competition Principles Agreement;

(f) that access (or increased access) to the service would not be

contrary to the public interest.

(6) The Council cannot recommend declaration of a service provided

by means of a pipeline (within the meaning of a National Gas Law)

if:

(a) a 15-year no-coverage determination is in force under the

National Gas Law in respect of the pipeline; or

(b) a price regulation exemption is in force under the National

Gas Law in respect of the pipeline.

(7) The Council cannot recommend that a service be declared if there

is in force a decision of the designated Minister under

section 44LG that the service is ineligible to be a declared 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).

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Competition and Consumer Act 2010 105

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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

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.

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Section 44GA

106 Competition and Consumer Act 2010

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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

(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.

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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:

(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:

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(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

(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;

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(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.

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.

(2) In deciding whether to declare the service or not, the designated

Minister must consider whether it would be economical for anyone

to develop another facility that could provide part of the service.

This subsection does not limit the grounds on which the designated

Minister may make a decision whether to declare the service or

not.

(3) The designated Minister cannot declare a service that is the subject

of an access undertaking in operation under Division 6.

(3A) While a decision of the Commission is in force under

subsection 44PA(3) approving a tender process, for the

construction and operation of a facility, as a competitive tender

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Section 44H

110 Competition and Consumer Act 2010

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process, the designated Minister cannot declare any service

provided by means of the facility that was specified under

paragraph 44PA(2)(a).

(4) The designated Minister cannot declare a service unless he or she

is satisfied of all of the following matters:

(a) that access (or increased access) to 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;

(b) that it would be uneconomical for anyone to develop another

facility to provide the service;

(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

(iii) the importance of the facility to the national economy;

(e) that access to the service:

(i) is not already the subject of a regime in relation to

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

(ii) is the subject of a regime in relation to 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), but the designated Minister

believes that, since the Commonwealth Minister’s

decision was published, there have been substantial

modifications of the access regime or of the relevant

principles set out in the Competition Principles

Agreement;

(f) that access (or increased access) to the service would not be

contrary to the public interest.

(6B) The designated Minister cannot declare a service provided by

means of a pipeline (within the meaning of a National Gas Law) if:

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(a) a 15-year no-coverage determination is in force under the

National Gas Law in respect of the pipeline; or

(b) a price regulation exemption is in force under the National

Gas Law in respect of the pipeline.

(6C) The designated Minister cannot declare a service if there is in force

a decision of the designated Minister under section 44LG that the

service is ineligible to be a declared 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, to have decided

not to declare the service and to have published that decision not to

declare the service.

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.

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;

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Section 44I

112 Competition and Consumer Act 2010

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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.

(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.

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Competition and Consumer Act 2010 113

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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,

subsection 44H(4) would prevent the designated Minister from

declaring the service concerned.

(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.

(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.

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Section 44K

114 Competition and Consumer Act 2010

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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).

(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

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(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:

(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).

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Section 44KA

116 Competition and Consumer Act 2010

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(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.

(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

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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

(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.

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Section 44L

118 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

(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:

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(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

120 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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(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 matters referred to

in subsection 44G(2) in relation to 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

122 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 123

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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(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 125

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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

126 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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 127

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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

128 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 matters

referred to in subsection 44H(4) in relation to 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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Competition and Consumer Act 2010 129

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(7) A decision of the designated Minister under subsection (1) is not a

legislative instrument.

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.

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Section 44LI

130 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

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 matters mentioned in

subsection 44G(2) in relation to 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.

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Competition and Consumer Act 2010 131

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(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.

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.

Decision is not a legislative instrument

(10) A decision of the designated Minister under subsection (3) is not a

legislative instrument.

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Section 44LJ

132 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

(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

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Section 44LK

Competition and Consumer Act 2010 133

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(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

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.

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Section 44LK

134 Competition and Consumer Act 2010

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(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 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.

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Section 44LL

Competition and Consumer Act 2010 135

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(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.

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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Division 2A Effective access regimes

Section 44M

136 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 139

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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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Section 44NAA

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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 44NB

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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.

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Section 44NC

142 Competition and Consumer Act 2010

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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 or 44NA 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 44M or 44NA, 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

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Section 44NC

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Stopping the clock

Item Column 1

Situation

Column 2

Start day

Column 3

End day

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

(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 Commonwealth Minister, extend

the consideration period by a specified period.

(8) The notice must:

(a) specify when the Council must now make its

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.

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Section 44NE

144 Competition and Consumer Act 2010

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(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.

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 or

44NA 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.

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Section 44NE

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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

(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 on the application.

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Section 44NF

146 Competition and Consumer Act 2010

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44NF Publication—Council

(1) The Council must publish, by electronic or other means, a

recommendation under section 44M or 44NA 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; 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;

(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

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 44NG

Competition and Consumer Act 2010 147

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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 or 44NA 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; 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;

(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.

(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

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(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.

(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.

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).

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Section 44P

Competition and Consumer Act 2010 149

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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:

(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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Part IIIA Access to services

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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Part IIIA Access to services

Division 2B Competitive tender processes for government owned facilities

Section 44PB

152 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Section 44PC

Competition and Consumer Act 2010 153

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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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Part IIIA Access to services

Division 2B Competitive tender processes for government owned facilities

Section 44PD

154 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Section 44PE

156 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Section 44PF

Competition and Consumer Act 2010 157

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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

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Division 2B Competitive tender processes for government owned facilities

Section 44PH

160 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

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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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Part IIIA Access to services

Division 2C Register of decisions and declarations

Section 44Q

162 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Access to declared services Division 3

Section 44R

Competition and Consumer Act 2010 163

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 44W

Competition and Consumer Act 2010 165

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

(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.

(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:

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(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, without the consent of the provider;

(e) requiring the provider to bear some or all of the costs of

extending the facility or maintaining extensions 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.

(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.

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Section 44X

Competition and Consumer Act 2010 167

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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 whose cost is borne by

someone else;

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(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).

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.

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Section 44XA

Competition and Consumer Act 2010 169

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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)

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.

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Section 44Y

170 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

(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.

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Section 44Z

Competition and Consumer Act 2010 171

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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

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Section 44ZC

172 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

(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

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Section 44ZG

Competition and Consumer Act 2010 173

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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:

(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.

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Section 44ZH

174 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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.

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Section 44ZJ

Competition and Consumer Act 2010 175

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

(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.

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Section 44ZL

176 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

(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.

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Section 44ZN

Competition and Consumer Act 2010 177

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

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.

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Section 44ZNA

178 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

(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).

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Section 44ZNB

Competition and Consumer Act 2010 179

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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;

(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.

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Section 44ZO

180 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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,

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Section 44ZO

Competition and Consumer Act 2010 181

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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;

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Section 44ZOA

182 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

(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.

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Section 44ZP

Competition and Consumer Act 2010 183

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

(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.

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Section 44ZQ

184 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

(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.

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Section 44ZS

Competition and Consumer Act 2010 185

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

(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

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Section 44ZU

186 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Section 44ZZA

192 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Section 44ZZAAA

194 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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. 107 Compilation date: 23/2/17 Registered: 3/3/17

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. 107 Compilation date: 23/2/17 Registered: 3/3/17

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. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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. 107 Compilation date: 23/2/17 Registered: 3/3/17

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. 107 Compilation date: 23/2/17 Registered: 3/3/17

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. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

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(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. 107 Compilation date: 23/2/17 Registered: 3/3/17

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. 107 Compilation date: 23/2/17 Registered: 3/3/17

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. 107 Compilation date: 23/2/17 Registered: 3/3/17

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. 107 Compilation date: 23/2/17 Registered: 3/3/17

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. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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. 107 Compilation date: 23/2/17 Registered: 3/3/17

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. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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and Tribunal review

Section 44ZZCBA

214 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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review Division 6B

Section 44ZZCC

Competition and Consumer Act 2010 215

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Division 6B Overlap among determinations, registered contracts, access undertakings

and Tribunal review

Section 44ZZCD

216 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

Competition and Consumer Act 2010 217

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Division 7 Enforcement and remedies

Section 44ZZE

218 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Section 44ZZF

Competition and Consumer Act 2010 219

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Section 44ZZJ

220 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Section 44ZZL

Competition and Consumer Act 2010 221

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Division 8—Miscellaneous

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) 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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Division 8 Miscellaneous

Section 44ZZMA

222 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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:

(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

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Section 44ZZMB

Competition and Consumer Act 2010 223

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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

(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.

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Section 44ZZNA

224 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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:

(a) that the conduct was engaged in by a director, servant or

agent of the body corporate within the scope of his or her

actual or apparent authority; and

(b) that the director, servant or agent had the state of mind.

(2) Any conduct engaged in on behalf of a body corporate:

(a) by a director, servant or agent of the body corporate within

the scope of the person’s actual or apparent authority; or

(b) by any other person at the direction or with the consent or

agreement (whether express or implied) of a director, servant

or agent of the body corporate, if the giving of the direction,

consent or agreement is within the scope of the actual or

apparent authority of the director, servant or agent;

is taken for the purposes of this Part to have been engaged in also

by the body corporate, unless the body corporate establishes that

the body corporate took reasonable precautions and exercised due

diligence to avoid the conduct.

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Section 44ZZO

Competition and Consumer Act 2010 225

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

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

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Division 8 Miscellaneous

Section 44ZZOAAA

226 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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),

44N(4) or 44NB(3A)—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.

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Section 44ZZOAAA

Competition and Consumer Act 2010 227

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

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

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(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),

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

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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

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.

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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.

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

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Competition and Consumer Act 2010 231

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(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.

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.

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232 Competition and Consumer Act 2010

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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;

(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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Section 44ZZRA

Competition and Consumer Act 2010 233

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part IV—Restrictive trade practices

Division 1—Cartel conduct

Subdivision A—Introduction

44ZZRA 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.

44ZZRB 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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(b) inducing a third person to do something that results in

another person obtaining.

party has a meaning affected by section 44ZZRC.

production includes manufacture, processing, treatment, assembly,

disassembly, renovation, restoration, growing, raising, mining,

extraction, harvesting, fishing, capturing and gathering.

44ZZRC 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.

44ZZRD 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 44ZZRC.

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

(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

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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

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.

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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 44ZZRC.

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; 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; 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 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; 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; or

(h) if subparagraph (3)(a)(iii) applies in relation to preventing,

restricting or limiting the supply, or likely supply, of goods

or services—the supply of those goods or services; or

(i) if paragraph (3)(c) applies in relation to a supply of goods or

services—the supply of those goods or services; or

(j) if paragraph (3)(c) applies in relation to an acquisition of

goods or services—the acquisition of those goods or services.

Note: Party has an extended meaning—see section 44ZZRC.

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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), (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), subparagraph (3)(a)(iii)

and paragraphs (3)(b) and (c)—a supply or 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:

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(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

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.

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Section 44ZZRE

Competition and Consumer Act 2010 241

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

44ZZRE 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.

Subdivision B—Offences etc.

44ZZRF 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:

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242 Competition and Consumer Act 2010

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(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.

44ZZRG 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;

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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.

44ZZRH Determining guilt

(1) A corporation may be found guilty of an offence against

section 44ZZRF or 44ZZRG 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 44ZZRC.

(2) A corporation cannot be found guilty of an offence against

section 44ZZRF or 44ZZRG 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.

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Section 44ZZRI

244 Competition and Consumer Act 2010

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44ZZRI Court may make related civil orders

If a prosecution against a person for an offence against

section 44ZZRF or 44ZZRG 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

44ZZRJ Making a contract etc. containing a cartel provision

A corporation contravenes this section 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: For enforcement, see Part VI.

44ZZRK 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.

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Restrictive trade practices Part IV

Cartel conduct Division 1

Section 44ZZRL

Competition and Consumer Act 2010 245

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision D—Exceptions

44ZZRL Conduct notified

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK 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 44ZZRD(2); or

(ii) has the purpose mentioned in a paragraph of

subsection 44ZZRD(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).

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRM Cartel provision subject to grant of authorisation

(1) Sections 44ZZRF and 44ZZRJ 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).

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Part IV Restrictive trade practices

Division 1 Cartel conduct

Section 44ZZRN

246 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ bears an evidential burden in

relation to that matter.

44ZZRN Contracts, arrangements or understandings between

related bodies corporate

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK 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 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRO Joint ventures—prosecution

(1) Sections 44ZZRF and 44ZZRG do not apply in relation to a

contract containing a cartel provision if:

(a) the cartel provision is for the purposes of a joint venture; and

(b) the joint venture is for the production and/or supply of goods

or services; and

(c) 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; and

(d) 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 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.

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Restrictive trade practices Part IV

Cartel conduct Division 1

Section 44ZZRO

Competition and Consumer Act 2010 247

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note 1: A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) 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.

(1A) Section 44ZZRF does not apply in relation to an arrangement or

understanding containing a cartel provision if:

(a) the arrangement or understanding is not a contract; and

(b) when the arrangement was made, or the understanding was

arrived at, each party to the arrangement or understanding:

(i) intended the arrangement or understanding to be a

contract; and

(ii) reasonably believed that the arrangement or

understanding was a contract; and

(c) the cartel provision is for the purposes of a joint venture; and

(d) the joint venture is for the production and/or supply of goods

or services; and

(e) 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 arrangement or understanding; and

(f) 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 arrangement or understanding for

the purpose of enabling those parties to carry on the activity

mentioned in paragraph (d) 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 an evidential burden in relation to the matter in

subsection (1A) (see subsection 13.3(3) 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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Part IV Restrictive trade practices

Division 1 Cartel conduct

Section 44ZZRO

248 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(1B) Section 44ZZRG does not apply in relation to giving effect to a

cartel provision contained in an arrangement or understanding if:

(a) the arrangement or understanding is not a contract; and

(b) when the arrangement was made, or the understanding was

arrived at, each party to the arrangement or understanding:

(i) intended the arrangement or understanding to be a

contract; and

(ii) reasonably believed that the arrangement or

understanding was a contract; and

(c) when the cartel provision was given effect to, each party to

the arrangement or understanding reasonably believed that

the arrangement or understanding was a contract; and

(d) the cartel provision is for the purposes of a joint venture; and

(e) the joint venture is for the production and/or supply of goods

or services; and

(f) 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 arrangement or understanding; and

(g) 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 arrangement or understanding for

the purpose of enabling those parties to carry on the activity

mentioned in paragraph (e) 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 an evidential burden in relation to the matter in

subsection (1B) (see subsection 13.3(3) 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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Restrictive trade practices Part IV

Cartel conduct Division 1

Section 44ZZRP

Competition and Consumer Act 2010 249

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Notice to prosecutor

(2) A person is not entitled to rely on subsection (1), (1A) or (1B) in a

trial for an offence unless, within 28 days after the day on which

the person is committed for trial, the person gives the prosecutor:

(a) a written notice setting out:

(i) the facts on which the person proposes to rely for the

purpose of discharging the evidential burden borne by

the person in relation to the matter in subsection (1),

(1A) or (1B), as the case may be; and

(ii) the names and address of any witnesses whom the

person proposes to call for the purpose of discharging

the evidential burden borne by the person in relation to

the matter in subsection (1), (1A) or (1B), as the case

may be; and

(b) certified copies of any documents which the person proposes

to adduce or point to for the purpose of discharging the

evidential burden borne by the person in relation to the

matter in subsection (1), (1A) or (1B), as the case may be.

(3) If the trial of a person for an offence is being, or is to be, held in a

court, the court may, by order:

(a) exempt the person from compliance with subsection (2); or

(b) extend the time within which the person is required to

comply with subsection (2).

(4) For the purposes of paragraph (2)(b), a certified copy of a

document is a copy of the document certified to be a true copy by:

(a) a Justice of the Peace; or

(b) a commissioner for taking affidavits.

44ZZRP Joint ventures—civil penalty proceedings

(1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a

contract containing a cartel provision if:

(a) the cartel provision is for the purposes of a joint venture; and

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Part IV Restrictive trade practices

Division 1 Cartel conduct

Section 44ZZRP

250 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the joint venture is for the production and/or supply of goods

or services; and

(c) 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; and

(d) 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 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.

(1A) Section 44ZZRJ does not apply in relation to an arrangement or

understanding containing a cartel provision if:

(a) the arrangement or understanding is not a contract; and

(b) when the arrangement was made, or the understanding was

arrived at, each party to the arrangement or understanding:

(i) intended the arrangement or understanding to be a

contract; and

(ii) reasonably believed that the arrangement or

understanding was a contract; and

(c) the cartel provision is for the purposes of a joint venture; and

(d) the joint venture is for the production and/or supply of goods

or services; and

(e) 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 arrangement or understanding; and

(f) 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 arrangement or understanding for

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Restrictive trade practices Part IV

Cartel conduct Division 1

Section 44ZZRP

Competition and Consumer Act 2010 251

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the purpose of enabling those parties to carry on the activity

mentioned in paragraph (d) 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.

(1B) Section 44ZZRK does not apply in relation to giving effect to a

cartel provision contained in an arrangement or understanding if:

(a) the arrangement or understanding is not a contract; and

(b) when the arrangement was made, or the understanding was

arrived at, each party to the arrangement or understanding:

(i) intended the arrangement or understanding to be a

contract; and

(ii) reasonably believed that the arrangement or

understanding was a contract; and

(c) when the cartel provision was given effect to, each party to

the arrangement or understanding reasonably believed that

the arrangement or understanding was a contract; and

(d) the cartel provision is for the purposes of a joint venture; and

(e) the joint venture is for the production and/or supply of goods

or services; and

(f) 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 arrangement or understanding; and

(g) 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 arrangement or understanding for

the purpose of enabling those parties to carry on the activity

mentioned in paragraph (e) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

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Part IV Restrictive trade practices

Division 1 Cartel conduct

Section 44ZZRQ

252 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 person who wishes to rely on subsection (1), (1A) or (1B) bears

an evidential burden in relation to that matter.

44ZZRQ Covenants affecting competition

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract containing a cartel provision, in so far as the

cartel provision constitutes a covenant to which section 45B

applies or, but for subsection 45B(9), would apply.

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 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRR Resale price maintenance

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK 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 subsection 88(8A); 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).

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Restrictive trade practices Part IV

Cartel conduct Division 1

Section 44ZZRS

Competition and Consumer Act 2010 253

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRS Exclusive dealing

(1) Sections 44ZZRF and 44ZZRJ 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 88(8)

or section 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 44ZZRG and 44ZZRK 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 88(8) or section 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 authorisation under subsection 88(8) 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).

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Part IV Restrictive trade practices

Division 1 Cartel conduct

Section 44ZZRT

254 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) A person who wishes to rely on subsection (1) or (2) in relation to

a contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRT Dual listed company arrangement

(1) Sections 44ZZRF and 44ZZRJ 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 subsection 88(8B), 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 44ZZRG and 44ZZRK 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

(b) the giving effect to the cartel provision would, or would apart

from subsection 88(8B), 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 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRU Acquisition of shares or assets

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK 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:

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Restrictive trade practices Part IV

Cartel conduct Division 1

Section 44ZZRV

Competition and Consumer Act 2010 255

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRV Collective acquisition of goods or services by the parties to

a contract, arrangement or understanding

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK 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 44ZZRD(2); and

(b) either:

(i) the cartel provision relates to the price for goods or

services to be collectively acquired, whether directly or

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 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

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Part IV Restrictive trade practices

Division 1A Anti-competitive disclosure of pricing and other information

Section 44ZZS

256 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 1A—Anti-competitive disclosure of pricing and

other information

44ZZS Definitions

In this Division:

disclose has a meaning affected by section 44ZZU.

Division 1A goods or services means goods or services to which

this Division applies (see section 44ZZT).

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.

intermediary: see subsection 44ZZU(3).

private disclosure to competitors: see section 44ZZV.

44ZZT Goods and services to which this Division applies

(1) This Division applies to goods and services of the classes (however

described) that are prescribed by the regulations for the purpose of

this section.

(2) Without limiting subsection (1), the regulations may limit the

description of a class of goods or services by reference to any

matters including (for example) any one or more of the following:

(a) a kind of supplier of goods or services;

(b) a kind of industry or business in which goods or services are

supplied;

(c) the circumstances in which goods or services are supplied.

(3) The regulations must prescribe a process to be gone through before

regulations are made, for the purpose of subsection (1), prescribing

a class of goods or services. Before the Governor-General makes

regulations, for the purpose of subsection (1), prescribing a class of

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Restrictive trade practices Part IV

Anti-competitive disclosure of pricing and other information Division 1A

Section 44ZZU

Competition and Consumer Act 2010 257

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

goods or services, the Minister must be satisfied that the prescribed

process has been complied with.

(4) Subsection (3) does not apply in relation to the first regulations

made for the purpose of subsection (1).

44ZZU Provisions affecting whether a corporation has disclosed

information to a person

Disclosure to director, employee or agent etc. of another person

(1) For the purpose of this Division:

(a) if a corporation makes a disclosure of information to a person

in the person’s capacity as a director, employee or agent of

another body corporate, the disclosure is taken to have been

made by the corporation to that body corporate; and

(b) if a corporation makes a disclosure of information to a person

in the person’s capacity as an employee or agent of another

person (not being a body corporate), the disclosure is taken to

have been made by the corporation to that other person.

Disclosure to discloser’s own agent

(2) For the purpose of this Division, the disclosure of information by a

corporation to another person is to be disregarded if:

(a) the disclosure is made to the person in the person’s capacity

as an agent of the corporation; and

(b) subsection (3) does not apply to the disclosure.

Disclosure through intermediary

(3) If:

(a) a corporation makes a disclosure of information to a person

(the intermediary); and

(b) the corporation makes the disclosure to the intermediary for

the purpose of the intermediary disclosing (or arranging for

the disclosure of) the information to one or more other

persons; and

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Part IV Restrictive trade practices

Division 1A Anti-competitive disclosure of pricing and other information

Section 44ZZV

258 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) the information is so disclosed to one or more of those other

persons (the recipients);

then, for the purpose of this Division:

(d) the disclosure of the information to the recipients is taken to

have been made by the corporation; and

(e) the disclosure of the information to the intermediary is to be

disregarded (unless the intermediary is a competitor or

potential competitor of the corporation in a market).

Accidental disclosure

(4) For the purpose of this Division, the disclosure of information by a

corporation to a person (the recipient) is to be disregarded if the

disclosure to the recipient is due to:

(a) an accident; or

(b) the default of a person other than the corporation; or

(c) some other cause beyond the control of the corporation.

Note: This subsection does not apply to a disclosure of information covered

by subsection (3).

Section 84 not limited

(5) This section does not limit section 84.

44ZZV Meaning of private disclosure to competitors

Main definition

(1) A disclosure of information by a corporation is a private disclosure

to competitors, in relation to a particular market, if the disclosure is

to one or more competitors or potential competitors of the

corporation in that market, and is not to any other person.

Note: The effect of section 44ZZU must be taken into account in working

out whether the disclosure is to one or more competitors or potential

competitors, and is not to any other person.

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Restrictive trade practices Part IV

Anti-competitive disclosure of pricing and other information Division 1A

Section 44ZZW

Competition and Consumer Act 2010 259

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Anti-avoidance

(2) For the purpose of determining whether a corporation has made a

private disclosure to competitors in relation to a particular market,

the fact that the disclosure is also made to a person who is not a

competitor or potential competitor of the corporation in that market

is to be disregarded if:

(a) for a disclosure that is not made through an intermediary—

the corporation made the disclosure to the person for the

purpose of avoiding the application of section 44ZZW to the

disclosure; or

(b) for a disclosure that is made through an intermediary—either:

(i) the corporation directed or requested the intermediary to

disclose the information to the person for the purpose of

avoiding the application of section 44ZZW to the

disclosure; or

(ii) the intermediary disclosed the information to the person

for the purpose of avoiding the application of

section 44ZZW to the disclosure.

Fact that the information is otherwise available is not relevant

(3) The question whether a disclosure of information by a corporation

is a private disclosure to competitors is not affected by the

information otherwise being or becoming available to competitors

or potential competitors of the corporation in the market, or to

other persons.

44ZZW Corporation must not make private disclosure of pricing

information etc. to competitors

A corporation must not make a disclosure of information if:

(a) the information relates to a price for, or a discount,

allowance, rebate or credit in relation to, Division 1A goods

or services supplied or likely to be supplied, or acquired or

likely to be acquired, by the corporation in a market (whether

or not the information also relates to other matters); and

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Part IV Restrictive trade practices

Division 1A Anti-competitive disclosure of pricing and other information

Section 44ZZX

260 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the disclosure is a private disclosure to competitors in

relation to that market; and

(c) the disclosure is not in the ordinary course of business.

Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(6A).

44ZZX Corporation must not make disclosure of pricing

information etc. for purpose of substantially lessening

competition

The prohibition

(1) A corporation must not make a disclosure of information if:

(a) the information relates to one or more of the following

(whether or not it also relates to other matters):

(i) a price for, or a discount, allowance, rebate or credit in

relation to, Division 1A goods or services supplied or

likely to be supplied, or acquired or likely to be

acquired, by the corporation;

(ii) the capacity, or likely capacity, of the corporation to

supply or acquire Division 1A goods or services;

(iii) any aspect of the commercial strategy of the corporation

that relates to Division 1A goods or services; and

(b) the corporation makes the disclosure for the purpose of

substantially lessening competition in a market.

Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(6A) or notified under

subsection 93(1).

Determining whether disclosure made for purpose of substantially

lessening competition

(2) In determining, for the purpose of this section, if a corporation has

made a disclosure for the purpose of substantially lessening

competition in a market, the matters to which the court may have

regard include (but are not limited to):

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(a) whether the disclosure was a private disclosure to

competitors in relation to that market; and

(b) the degree of specificity of the information; and

(c) whether the information relates to past, current or future

activities; and

(d) how readily available the information is to the public; and

(e) whether the disclosure is part of a pattern of similar

disclosures by the corporation.

(3) 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 made a disclosure of information

for the purpose of substantially lessening competition in a market

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.

44ZZY Exceptions that apply to sections 44ZZW and 44ZZX

Disclosure authorised by law: general exception for 10 years

(1) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a corporation if:

(a) the disclosure is authorised by or under a law of the

Commonwealth, a State or a Territory; and

(b) the disclosure occurs before the end of 10 years after the day

on which the Competition and Consumer Amendment Act

(No. 1) 2011 receives the Royal Assent.

Note: This subsection has effect in addition to:

(a) subsection (6) (which covers compliance with continuous disclosure requirements of the Corporations Act 2001); and

(b) subsection 51(1) (which covers things authorised by certain laws).

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Section 44ZZY

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Disclosure to related bodies corporate

(2) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a corporation if the disclosure is to one or more

bodies corporate that are related to the corporation, and is not to

any other person.

Note: The effect of section 44ZZU must be taken into account in working

out whether the disclosure is to one or more bodies corporate that are

related to the corporation, and is not to any other person.

Disclosure for collective bargaining

(3) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a corporation if:

(a) the corporation has given the Commission a collective

bargaining notice under subsection 93AB(1A) or (1) setting

out particulars of a contract or proposed contract; and

(b) the notice is in force; and

(c) the disclosure is to one or more of the other contracting

parties, and is not to any other person; and

(d) the disclosure of the information:

(i) if the notice relates to a contract—is required by the

contract; or

(ii) if the notice relates to a proposed contract—is made in

the course of negotiations for the proposed contract or,

if the proposed contract is entered into, is required by

the contract.

Note: The effect of section 44ZZU must be taken into account in working

out whether the disclosure is to one or more of the other contracting

parties, and is not to any other person.

Disclosure in course of authorised conduct

(4) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a corporation if:

(a) an authorisation under section 88 (other than

subsection 88(6A)) applies to or in relation to the

corporation; and

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(b) the authorisation is in force; and

(c) the disclosure of the information is made in the course of

engaging in conduct that is covered by the authorisation.

Note: A disclosure that would otherwise contravene section 44ZZW or

44ZZX can also be directly authorised under subsection 88(6A).

Disclosure covered by notification under section 93

(5) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a corporation if:

(a) the corporation has given the Commission a notice under

subsection 93(1) describing conduct; and

(b) the disclosure is conduct described in the notice; and

(c) the notice is in force under section 93.

Compliance with continuous disclosure requirements of the

Corporations Act 2001

(6) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a corporation if the disclosure is made for the

purpose of complying with Chapter 6CA of the Corporations Act

2001.

44ZZZ Additional exceptions that only apply to section 44ZZW

Disclosure of information to acquirer or supplier of goods or

services

(1) Section 44ZZW does not apply to the disclosure of information by

a corporation to a person (the recipient) if:

(a) the information relates to goods or services supplied or likely

to be supplied, by the corporation to the recipient; or

(b) the information relates to goods or services acquired or likely

to be acquired, by the corporation from the recipient.

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Section 44ZZZ

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Disclosure to unknown competitor

(2) Section 44ZZW does not apply to the disclosure of information by

a corporation to a person if:

(a) the person is a competitor or potential competitor of the

corporation in the market referred to in that section; and

(b) the corporation did not know, and could not reasonably be

expected to have known, that the person was such a

competitor or potential competitor.

Disclosure to participants in joint venture

(3) Section 44ZZW does not apply to the disclosure of information by

a corporation if:

(a) either:

(i) the corporation is a participant in a joint venture for the

production and/or supply of goods or services; or

(ii) the corporation proposes to enter into a joint venture

with one or more other persons (the proposed

participants); and

(b) the disclosure is to one or more participants or proposed

participants in the joint venture, and is not to any other

person; and

(c) the disclosure is made for the purposes of the joint venture or

in the course of negotiations for the joint venture.

Note: The effect of section 44ZZU must be taken into account in working

out whether the disclosure is to one or more participants in the joint

venture, and is not to any other person.

Disclosure relating to provision of loans etc. to same person

(3A) Section 44ZZW does not apply to the disclosure of information

between 2 or more corporations (the relevant corporations) if:

(a) the information relates to services, being loans or credit,

supplied, or likely to be supplied, by one or more of the

relevant corporations; and

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(b) 2 or more of the relevant corporations are, in relation to the

same person (the borrower), doing either or both of the

following:

(i) providing such services to the borrower;

(ii) considering whether to provide such services to the

borrower;

(c) the disclosure is for the purpose of, or related to, providing

services, or considering whether to provide services, to the

borrower as mentioned in paragraph (b).

Disclosure between credit provider and provider of credit service

(3B) Section 44ZZW does not apply to the disclosure of information by

a corporation to another person if:

(a) either:

(i) the corporation is a credit provider, and the other person

provides a credit service, within the meaning of the

National Consumer Credit Protection Act 2009; or

(ii) the corporation provides a credit service, and the other

person is a credit provider, within the meaning of that

Act; and

(b) the disclosure is made in the course of the relationship

between the corporation and the other person in their

capacities as credit provider and provider of a credit service.

Disclosure relating to acquisition of shares or assets

(4) Section 44ZZW does not apply to the disclosure of information by

a corporation in so far as the information is disclosed in connection

with a contract, arrangement or understanding that provides, or a

proposed contract, arrangement or understanding that would

provide, for the acquisition of any shares in the capital of a body

corporate, or any assets of a person, by or from the corporation.

Note: For the meaning of acquisition of shares, and acquisition of assets, see

subsection 4(4).

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Section 44ZZZA

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Disclosure if borrower insolvent etc.

(5) Section 44ZZW does not apply to the disclosure of information

between 2 or more corporations (the relevant corporations) if:

(a) at least one of the relevant corporations:

(i) has provided a loan or credit to another corporation (the

borrower); and

(ii) has been notified of a borrower insolvency situation (see

subsection (6)); and

(b) the information relates to services, being loans or credit,

supplied, or likely to be supplied, by one or more of the

relevant corporations; and

(c) the disclosure is for the purpose of one or more of the

relevant corporations considering whether to take measures

to return the borrower to solvency, or to avoid or reduce the

risk of the borrower becoming insolvent.

(6) For the purpose of subsection (5), a relevant corporation is notified

of a borrower insolvency situation if:

(a) the corporation is notified that there are reasonable grounds

for suspecting that one or more of the following may be or

become insolvent:

(i) the borrower;

(ii) a person who has given a guarantee or indemnity in

respect of loans or credit provided to the borrower by

one or more of the relevant corporations; and

(b) the notification is given by the borrower, or by a person

referred to in subparagraph (a)(ii).

44ZZZA Burden of proof

If:

(a) proceedings are brought against a person in relation to

section 44ZZW or 44ZZX; and

(b) the person seeks to rely on subsection 44ZZU(2) or (4), or on

a subsection of section 44ZZY or 44ZZZ;

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the person bears an evidential burden in relation to the matters set

out in that subsection on which the person seeks to rely.

44ZZZB Mere receipt of information does not constitute being

knowingly involved in contravention

For the purpose of paragraph 76(1)(e), a person is not taken to be

directly or indirectly knowingly concerned in, or party to, a

contravention of section 44ZZW or 44ZZX merely because the

person is a recipient of information disclosed in contravention of

that section.

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Section 45

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Division 2—Other provisions

45 Contracts, arrangements or understandings that restrict dealings

or affect competition

(1) If a provision of a contract made before the commencement of the

Trade Practices Amendment Act 1977:

(a) is an exclusionary provision; or

(b) has the purpose, or has or is likely to have the effect, of

substantially lessening competition;

that provision is unenforceable in so far as it confers rights or

benefits or imposes duties or obligations on a corporation.

(2) A corporation shall not:

(a) make a contract or arrangement, or arrive at an

understanding, if:

(i) the proposed contract, arrangement or understanding

contains an exclusionary provision; or

(ii) 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, whether the contract or arrangement was

made, or the understanding was arrived at, before or after the

commencement of this section, if that provision:

(i) is an exclusionary provision; or

(ii) has the purpose, or has or is likely to have the effect, of

substantially lessening competition.

(3) For the purposes of this section, competition, in relation to a

provision of a contract, arrangement or understanding or of a

proposed contract, arrangement or understanding, means

competition in any market in which 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 any body

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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.

(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) a provision of a contract where the provision constitutes a

covenant to which section 45B applies or, but for

subsection 45B(9), would apply;

(b) a provision of a proposed contract where the provision would

constitute a covenant to which section 45B would apply or,

but for subsection 45B(9), would apply; or

(c) a provision of a contract, arrangement or understanding or of

a proposed contract, arrangement or understanding in so far

as the provision relates to:

(i) conduct that contravenes section 48; or

(ii) conduct that would contravene section 48 but for the

operation of subsection 88(8A); or

(iii) 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

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Section 45

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which goods or services are to be sold or supplied or are

to be advertised, displayed or offered for sale or supply.

(6) The making of a contract, arrangement or understanding does not

constitute a contravention of this section by reason that the

contract, arrangement or understanding contains a provision the

giving effect to which would, or would but for the operation of

subsection 47(10) or 88(8) or section 93, constitute a contravention

of section 47 and this section does not apply to or in relation to the

giving effect to a provision of a contract, arrangement or

understanding by way of:

(a) engaging in conduct that contravenes, or would but for the

operation of subsection 47(10) or 88(8) or section 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 subsection 88(8) 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 subsection 88(8B), contravene section 49.

(7) This section does not apply to or in relation to a contract,

arrangement or understanding in so far as the contract, arrangement

or understanding provides, or to or in relation to a proposed

contract, arrangement or understanding in so far as the proposed

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contract, arrangement or understanding would provide, directly or

indirectly for 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 contract,

arrangement or understanding, or a proposed contract, arrangement

or understanding, the only parties to which are or would be bodies

corporate that are related to each other.

(8A) Subsection (2) 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 subsection 88(1) applies is not a contravention

of subsection (2) 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

(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 (2).

45B Covenants affecting competition

(1) A covenant, whether the covenant was given before or after the

commencement of this section, is unenforceable in so far as it

confers rights or benefits or imposes duties or obligations on a

corporation or on a person associated with a corporation if the

covenant has, or is likely to have, the effect of substantially

lessening competition in any market in which the corporation or

any person associated with the corporation supplies or acquires, or

is likely to supply or acquire, goods or services or would, but for

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Section 45B

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the covenant, supply or acquire, or be likely to supply or acquire,

goods or services.

(2) A corporation or a person associated with a corporation shall not:

(a) require the giving of a covenant, or give a covenant, if the

proposed covenant has the purpose, or would have or be

likely to have the effect, of substantially lessening

competition in any market in which:

(i) the corporation, or any person associated with the

corporation by virtue of paragraph (7)(b), supplies or

acquires, is likely to supply or acquire, or would, but for

the covenant, supply or acquire, or be likely to supply or

acquire, goods or services; or

(ii) any person associated with the corporation by virtue of

the operation of paragraph (7)(a) supplies or acquires, is

likely to supply or acquire, or would, but for the

covenant, supply or acquire, or be likely to supply or

acquire, goods or services, being a supply or acquisition

in relation to which that person is, or would be, under an

obligation to act in accordance with directions,

instructions or wishes of the corporation;

(b) threaten to engage in particular conduct if a person who, but

for subsection (1), would be bound by a covenant does not

comply with the terms of the covenant; or

(c) engage in particular conduct by reason that a person who, but

for subsection (1), would be bound by a covenant has failed

to comply, or proposes or threatens to fail to comply, with

the terms of the covenant.

(3) Where a person:

(a) issues an invitation to another person to enter into a contract

containing a covenant;

(b) makes an offer to another person to enter into a contract

containing a covenant; or

(c) makes it known that the person will not enter into a contract

of a particular kind unless the contract contains a covenant of

a particular kind or in particular terms;

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the first-mentioned person shall, by issuing that invitation, making

that offer or making that fact known, be deemed to require the

giving of the covenant.

(4) For the purposes of this section, a covenant or proposed covenant

shall be deemed to have, or to be likely to have, the effect of

substantially lessening competition in a market if the covenant or

proposed covenant, as the case may be, would have, or be likely to

have, that effect when taken together with the effect or likely effect

on competition in that market of any other covenant or proposed

covenant to the benefit of which:

(a) a corporation that, or person who, is or would be, or but for

subsection (1) would be, entitled to the benefit of the

first-mentioned covenant or proposed covenant; or

(b) a person associated with the corporation referred to in

paragraph (a) or a corporation associated with the person

referred to in that paragraph;

is or would be, or but for subsection (1) would be, entitled.

(5) The requiring of the giving of, or the giving of, a covenant does not

constitute a contravention of this section by reason that giving

effect to the covenant would, or would but for the operation of

subsection 88(8) or section 93, constitute a contravention of

section 47 and this section does not apply to or in relation to

engaging in conduct in relation to a covenant by way of:

(a) conduct that contravenes, or would but for the operation of

subsection 88(8) or section 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 subsection 88(8) 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

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(iii) a notice under subsection 93(1) is in force in relation to

conduct engaged in by that person on that condition.

(6) This section does not apply to or in relation to a covenant or

proposed covenant where the only persons who are or would be

respectively bound by, or entitled to the benefit of, the covenant or

proposed covenant are persons who are associated with each other

or are bodies corporate that are related to each other.

(7) For the purposes of this section, section 45C and

subparagraph 87(3)(a)(ii), a person and a corporation shall be taken

to be associated with each other in relation to a covenant or

proposed covenant if, and only if:

(a) the person is under an obligation (otherwise than in

pursuance of the covenant or proposed covenant), whether

formal or informal, to act in accordance with directions,

instructions or wishes of the corporation in relation to the

covenant or proposed covenant; or

(b) the person is a body corporate in relation to which the

corporation is in the position mentioned in

subparagraph 4A(1)(a)(ii).

(8) The requiring by a person of the giving of, or the giving by a

person of, a covenant in relation to which subsection 88(5) applies

is not a contravention of subsection (2) of this section if:

(a) the covenant is subject to a condition that the covenant will

not come into force unless and until the person is granted an

authorization to require the giving of, or to give, the

covenant; and

(b) the person applies for the grant of such an authorization

within 14 days after the covenant is given;

but nothing in this subsection affects the application of

paragraph (2)(b) or (c) in relation to the covenant.

(9) This section does not apply to or in relation to a covenant or

proposed covenant if:

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(a) the sole or principal purpose for which the covenant was or is

required to be given was or is to prevent the relevant land

from being used otherwise than for residential purposes; or

(b) both of the following subparagraphs apply:

(i) the person who required or requires the covenant to be

given was or is, at that time, a registered charity;

(ii) the covenant was or is required to be given for or in

accordance with the purposes or objects of that

registered charity; or

(c) both of the following subparagraphs apply:

(i) the covenant was or is required to be given in pursuance

of a legally enforceable requirement made by a

registered charity;

(ii) that legally enforceable requirement was or is made for

or in accordance with the purposes or objects of that

registered charity.

45C Covenants in relation to prices

(1) In the application of subsection 45B(1) in relation to a covenant

that has, or is likely to have, the effect of fixing, controlling or

maintaining, or providing for the fixing, controlling or maintaining

of, the price for, or a discount, allowance, rebate or credit in

relation to, goods or services supplied or acquired by the persons

who are, or but for that subsection would be, bound by or entitled

to the benefit of the covenant, or by any of them, or by any persons

associated with any of them, in competition with each other, that

subsection has effect as if the words “if the covenant has, or is

likely to have, the effect of substantially lessening competition in

any market in which the corporation or any person associated with

the corporation supplies or acquires, or is likely to supply or

acquire, goods or services or would, but for the covenant, supply or

acquire, or be likely to supply or acquire, goods or services” were

omitted.

(2) In the application of subsection 45B(2) in relation to a proposed

covenant that has the purpose, or would have or be likely to have

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Section 45C

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the effect, of fixing, controlling or maintaining, or providing for

the fixing, controlling or maintaining of, the price for, or a

discount, allowance, rebate or credit in relation to, goods or

services supplied or acquired by the persons who would, or would

but for subsection 45B(1), be bound by or entitled to the benefit of

the proposed covenant, or by any of them, or by any persons

associated with any of them, in competition with each other,

paragraph 45B(2)(a) has effect as if all the words after the words

“require the giving of a covenant, or give a covenant” were

omitted.

(3) For the purposes of this Act, a covenant shall not be taken not to

have, or not to be likely to have, the effect, or a proposed covenant

shall not be taken not to have the purpose, or not to have, or not to

be likely to have, the effect, of fixing, controlling or maintaining,

or providing for the fixing, controlling or maintaining of, the price

for, or a discount, allowance, rebate or credit in relation to, goods

or services by reason only of:

(a) the form of the covenant or proposed covenant; or

(b) any description given to the covenant by any of the persons

who are, or but for subsection 45B(1) would be, bound by or

entitled to the benefit of the covenant or any description

given to the proposed covenant by any of the persons who

would, or would but for subsection 45B(1), be bound by or

entitled to the benefit of the proposed covenant.

(4) For the purposes of the preceding provisions of this section, but

without limiting the generality of those provisions:

(a) a covenant shall be deemed to have, or to be likely to have,

the effect of fixing, controlling or maintaining, or providing

for the fixing, controlling or maintaining of, the price for, or

a discount, allowance, rebate or credit in relation to, goods or

services supplied as mentioned in subsection (1) if the

covenant has, or is likely to have, the effect of fixing,

controlling or maintaining, or providing for the fixing,

controlling or maintaining of, such a price, discount,

allowance, rebate or credit in relation to a re-supply of the

goods or services by persons to whom the goods or services

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are supplied by the persons who are, or but for

subsection 45B(1) would be, bound by or entitled to the

benefit of the covenant, or by any of them, or by any persons

associated with any of them; and

(b) a proposed covenant shall be deemed to have the purpose, or

to have, or to be likely to have, the effect, of fixing,

controlling or maintaining, or providing for the fixing,

controlling or maintaining of, the price for, or a discount,

allowance, rebate or credit in relation to, goods or services

supplied as mentioned in subsection (2) if the proposed

covenant has the purpose, or would have or be likely to have

the effect, as the case may be, of fixing, controlling or

maintaining, or providing for the fixing, controlling or

maintaining of, such a price, discount, allowance, rebate or

credit in relation to a re-supply of the goods or services by

persons to whom the goods or services are supplied by the

persons who would, or would but for subsection 45B(1), be

bound by or entitled to the benefit of the proposed covenant,

or by any of them, or by any persons associated with any of

them.

(5) The reference in subsection (1) to the supply or acquisition of

goods or services by persons in competition with each other

includes a reference to the supply or acquisition of goods or

services by persons who, but for a provision of any contract,

arrangement or understanding or of any proposed contract,

arrangement or understanding, would be, or would be likely to be,

in competition with each other in relation to the supply or

acquisition of the goods or services.

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:

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(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 subsection 88(7).

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.

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

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(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 subsection 88(7).

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

involving the movement of goods between Australia and places

outside Australia.

Note 1: Conduct that would otherwise contravene this section can be

authorised under subsection 88(7).

Note 2: This section also has effect subject to section 45DD, which deals with

permitted boycotts.

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(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).

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

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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

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

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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:

(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);

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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.

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:

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(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.

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.

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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.

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

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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

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

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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.

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.

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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

(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

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(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 subsection 88(7A).

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).

Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(7A).

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

shall not take advantage of that power in that or any other market

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 that or any other market;

(b) preventing the entry of a person into that or any other market;

or

(c) deterring or preventing a person from engaging in

competitive conduct in that or any other market.

(1AAA) If a corporation supplies goods or services for a sustained period at

a price that is less than the relevant cost to the corporation of

supplying the goods or services, the corporation may contravene

subsection (1) even if the corporation cannot, and might not ever

be able to, recoup losses incurred by supplying the goods or

services.

(1AA) A corporation that has a substantial share of a market must not

supply, or offer to supply, goods or services for a sustained period

at a price that is less than the relevant cost to the corporation of

supplying such goods or services, for the purpose of:

(a) eliminating or substantially damaging a competitor of the

corporation or of a body corporate that is related to the

corporation in that or any other market; or

(b) preventing the entry of a person into that or any other market;

or

(c) deterring or preventing a person from engaging in

competitive conduct in that or any other market.

(1AB) For the purposes of subsection (1AA), without limiting the matters

to which the Court may have regard for the purpose of determining

whether a corporation has a substantial share of a market, the Court

may have regard to the number and size of the competitors of the

corporation in the market.

(1A) For the purposes of subsections (1) and (1AA):

(a) the reference in paragraphs (1)(a) and (1AA)(a) to a

competitor includes a reference to competitors generally, or

to a particular class or classes of competitors; and

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(b) the reference in paragraphs (1)(b) and (c) and (1AA)(b) and

(c) to a person includes a reference to persons generally, or to

a particular class or classes of persons.

(2) 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 power in a

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

that corporation, together have a substantial degree of power

in a market;

the corporation shall be taken for the purposes of this section to

have a substantial degree of power in that market.

(3) 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,

the court shall have regard 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:

(a) competitors, or potential competitors, of the body corporate

or of any of those bodies corporate in that market; or

(b) persons to whom or from whom the body corporate or any of

those bodies corporate supplies or acquires goods or services

in that market.

(3A) 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,

the court may have regard to the power the body corporate or

bodies corporate has or have in that market that results from:

(a) any contracts, arrangements or understandings, or proposed

contracts, arrangements or understandings, that the body

corporate or bodies corporate has or have, or may have, with

another party or other parties; and

(b) any covenants, or proposed covenants, that the body

corporate or bodies corporate is or are, or would be, bound

by or entitled to the benefit of.

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(3B) Subsections (3) and (3A) do not, by implication, 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.

(3C) For the purposes of this section, without limiting the matters to

which the court may have regard for the purpose of determining

whether a body corporate has a substantial degree of power in a

market, a body corporate may have a substantial degree of power

in a market even though:

(a) the body corporate does not substantially control the 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.

(3D) To avoid doubt, for the purposes of this section, more than 1

corporation may have a substantial degree of power in a market.

(4) In this section:

(a) a reference to power is a reference to market power;

(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.

(4A) Without limiting the matters to which the court may have regard

for the purpose of determining whether a corporation has

contravened subsection (1), the court may have regard to:

(a) any conduct of the corporation that consisted of supplying

goods or services for a sustained period at a price that was

less than the relevant cost to the corporation of supplying

such goods or services; and

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(b) the reasons for that conduct.

(5) Without extending by implication the meaning of subsection (1), a

corporation shall not be taken to contravene that subsection by

reason only that 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, 45B, 47, 49 and 50, by

reason that an authorization or clearance is in force or by reason of

the operation of subsection 45(8A) or section 93.

(6A) In determining for the purposes of this section whether, by

engaging in conduct, a corporation has taken advantage of its

substantial degree of power in a market, the court may have regard

to any or all of the following:

(a) whether the conduct was materially facilitated by the

corporation’s substantial degree of power in the market;

(b) whether the corporation engaged in the conduct in reliance on

its substantial degree of power in the market;

(c) whether it is likely that the corporation would have engaged

in the conduct if it did not have a substantial degree of power

in the market;

(d) whether the conduct is otherwise related to the corporation’s

substantial degree of power in the market.

This subsection does not limit the matters to which the court may

have regard.

(7) Without in any way 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 power for a purpose referred to in subsection (1)

notwithstanding that, 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.

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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:

(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

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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

(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, 45B, 47, 49 and 50,

because an authorisation or clearance 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

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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

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;

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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:

(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

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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.

(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:

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(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

(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

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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

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:

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(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

(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

constituted by a corporation engaging in conduct of a kind referred

to in subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or

(9)(a), (b) or (c) unless:

(a) the engaging by the corporation in that conduct has the

purpose, or has or is likely to have the effect, of substantially

lessening competition; or

(b) the engaging by the corporation in that conduct, 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.

(10A) Subsection (1) does not apply to a corporation engaging in conduct

described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if:

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(a) the corporation has given the Commission a notice under

subsection 93(1) describing the conduct; and

(b) the notice is in force under section 93.

(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

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;

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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

A corporation or other person shall not engage in the practice of

resale price maintenance.

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 subsection 88(8B).

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

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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;

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.

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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 a clearance or an authorisation for the

acquisition under Division 3 of Part VII: see subsections 95AC(2) and

95AT(2).

(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 a clearance or an authorisation for the acquisition

under Division 3 of Part VII: see subsections 95AC(2) and 95AT(2).

(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;

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(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 a clearance or an

authorization to acquire the shares or assets; and

(c) the person applied for the grant of such a clearance or 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 clearance or authorization is disposed

of; or

(e) the contract ceases to be subject to the condition;

whichever first happens.

(5) For the purposes of subsection (4), an application for a clearance

shall be taken to be disposed of:

(a) in a case to which paragraph (b) of this subsection does not

apply—at the expiration of 14 days after 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 clearance; or

(b) if an application is made to the Tribunal for a review of the

determination by the Commission of the application for the

clearance—at the expiration of 14 days after the date of the

making by the Tribunal of a determination on the review.

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(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

substantially lessening competition in a market, the matters

mentioned in subsection 50(3) must be taken into account for that

purpose.

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(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).

(5) The Tribunal shall state in writing its reasons for making, refusing

to make or revoking a declaration under subsection (1).

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(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.

(9) In this section:

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Section 51

310 Competition and Consumer Act 2010

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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:

(i) the person authorised to engage in the conduct;

(ii) the place where the conduct is to occur; and

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(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:

(A) the Minister published a notice in the Gazette

under subsection 150K(1) in relation to the

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Section 51

312 Competition and Consumer Act 2010

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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 in relation to, or to the making of a contract

or arrangement or the entering into of an understanding, or to

any provision of a contract, arrangement or understanding, to

the extent that the contract, arrangement or understanding, or

the provision, relates to, the remuneration, conditions of

employment, hours of work or working conditions of

employees;

(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;

(c) to any provision of a contract, arrangement or understanding,

being a provision obliging a person to comply with or apply

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Section 51

Competition and Consumer Act 2010 313

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standards of dimension, design, quality or performance

prepared or approved by Standards Australia or by a

prescribed association or body;

(d) to any provision of a contract, arrangement or understanding

between partners none of whom is a body corporate, being a

provision in relation to the terms of the partnership or the

conduct of the partnership business or in relation to

competition between the partnership and a party to the

contract, arrangement or understanding while he or she is, or

after he or she ceases to be, a partner;

(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 any provision of a contract, arrangement or understanding,

being a provision that relates exclusively to the export of

goods from Australia or to the supply of services outside

Australia, if full and accurate particulars of the provision (not

including particulars of prices for goods or services but

including particulars of any method of fixing, controlling or

maintaining such prices) were furnished to the Commission

before the expiration of 14 days after the date on which the

contract or arrangement was made or the understanding was

arrived at, or before 8 September 1976, whichever was the

later.

(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

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Division 2 Other provisions

Section 51

314 Competition and Consumer Act 2010

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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;

(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.

(4) This section applies in determining whether a provision of a

contract is unenforceable by reason of subsection 45(1), or whether

a covenant is unenforceable by reason of subsection 45B(1), in like

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Section 51AAA

Competition and Consumer Act 2010 315

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manner as it applies in determining whether a contravention of a

provision of this Part has been committed.

(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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Part IVB Industry codes

Division 1 Preliminary

Section 51ACA

316 Competition and Consumer Act 2010

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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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Competition and Consumer Act 2010 317

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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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Part IVB Industry codes

Division 2 Contravention of industry codes

Section 51ACB

318 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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Infringement notices Division 2A

Section 51ACC

Competition and Consumer Act 2010 319

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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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Division 2A Infringement notices

Section 51ACE

320 Competition and Consumer Act 2010

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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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Section 51ACG

Competition and Consumer Act 2010 321

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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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Division 2A Infringement notices

Section 51ACI

322 Competition and Consumer Act 2010

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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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Section 51ACJ

Competition and Consumer Act 2010 323

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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

324 Competition and Consumer Act 2010

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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 325

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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

326 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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(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

328 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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(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

330 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 21 days after the notice was given to the

corporation, 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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Industry codes Part IVB

Investigation power Division 5

Section 51ADF

Competition and Consumer Act 2010 331

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Part IVB Industry codes

Division 6 Miscellaneous

Section 51AE

332 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 333

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Part IVC Payment surcharges

Division 1 Preliminary

Section 55A

334 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 335

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

336 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 337

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Part IVC Payment surcharges

Division 4 Infringement notices

Section 55F

338 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Payment surcharges Part IVC

Infringement notices Division 4

Section 55H

Competition and Consumer Act 2010 339

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Part IVC Payment surcharges

Division 4 Infringement notices

Section 55L

340 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Payment surcharges Part IVC

Infringement notices Division 4

Section 55N

Competition and Consumer Act 2010 341

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Part IVC Payment surcharges

Division 4 Infringement notices

Section 55N

342 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 343

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Part V Carbon tax price reduction obligation

Division 1 Preliminary

Section 60AA

344 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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 345

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Part V Carbon tax price reduction obligation

Division 1 Preliminary

Section 60A

346 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Section 60A

Competition and Consumer Act 2010 347

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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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Part V Carbon tax price reduction obligation

Division 1 Preliminary

Section 60A

348 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Carbon tax price reduction obligation Part V

Preliminary Division 1

Section 60A

Competition and Consumer Act 2010 349

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Part V Carbon tax price reduction obligation

Division 1 Preliminary

Section 60B

350 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 Part V

Carbon tax price reduction obligation Division 2

Section 60C

Competition and Consumer Act 2010 351

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Part V Carbon tax price reduction obligation

Division 2 Carbon tax price reduction obligation

Section 60CA

352 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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 Part V

Carbon tax price reduction obligation Division 2

Section 60D

Competition and Consumer Act 2010 353

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Part V Carbon tax price reduction obligation

Division 2 Carbon tax price reduction obligation

Section 60E

354 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 355

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

356 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 357

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Part V Carbon tax price reduction obligation

Division 2A Carbon tax removal substantiation notices

Section 60FC

358 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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 price reduction obligation Part V

Carbon tax removal substantiation statements Division 2B

Section 60FD

Competition and Consumer Act 2010 359

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Part V Carbon tax price reduction obligation

Division 2B Carbon tax removal substantiation statements

Section 60FD

360 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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 price reduction obligation Part V

Carbon tax removal substantiation statements Division 2B

Section 60FD

Competition and Consumer Act 2010 361

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Part V Carbon tax price reduction obligation

Division 2C Statements for customers

Section 60FE

362 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 363

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

364 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 365

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Part V Carbon tax price reduction obligation

Division 3 Price monitoring in relation to the carbon tax repeal etc.

Section 60H

366 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Price monitoring in relation to the carbon tax repeal etc. Division 3

Section 60H

Competition and Consumer Act 2010 367

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Part V Carbon tax price reduction obligation

Division 3 Price monitoring in relation to the carbon tax repeal etc.

Section 60J

368 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 369

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Part V Carbon tax price reduction obligation

Division 5 Infringement notices

Section 60L

370 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Infringement notices Division 5

Section 60M

Competition and Consumer Act 2010 371

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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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(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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(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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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 appropriation, see section 28 of the Financial Management and

Accountability Act 1997.

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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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

95AZN, 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 44ZZRF or

44ZZRG);

(ia) section 55B;

(ii) section 60C;

(iia) section 60K;

(iii) section 95AZN;

(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 44ZZRJ or 44ZZRK—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 95AZN—$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 95AZN—$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 44ZZRF or 44ZZRG), 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 95AZN

(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 95AZN, 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 95AZN 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 95AZN 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 95AZN 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 95AZN regardless of whether a

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pecuniary penalty order has been made against the person in

respect of the contravention.

(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 95AZN (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.

76C Defence to proceedings relating to exclusionary provisions

Defence

(1) In proceedings against a person in relation to a contravention of

subparagraph 45(2)(a)(i) or (b)(i) in relation to an exclusionary

provision, it is a defence if the person establishes that the

provision:

(a) is for the purposes of a joint venture; and

(b) does not have the purpose, and does not have and is not

likely to have the effect, of substantially lessening

competition.

Application of subsections 45(3) and (4)

(2) Subsections 45(3) and (4) apply for the purposes of subsection (1)

in the same way as they apply for the purposes of section 45.

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Definitions

(3) In this section:

contravention of subparagraph 45(2)(a)(i) or (b)(i) includes

conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that

relates to a contravention of subparagraph 45(2)(a)(i) or (b)(i).

proceedings means proceedings instituted under:

(a) this Part or section 163A; or

(b) section 21 or 23 of the Federal Court of Australia Act 1976;

or

(c) section 39B of the Judiciary Act 1903.

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.

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.

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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.

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 44ZZRF or 44ZZRG); or

(b) has attempted to contravene such a provision;

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(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 44ZZRF or 44ZZRG

(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.

(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 44ZZRF(3)(c) or

44ZZRG(3)(c) to a corporation were read as a reference to a body

corporate.

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(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), and 11.4(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 44ZZRF or 44ZZRG.

79A Enforcement and recovery of certain fines

(1) If:

(a) a fine has been imposed on a person for:

(i) an offence against section 44ZZRF, 44ZZRG, 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:

(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

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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

subsection (1) in respect of 2 or more fines, those periods of

imprisonment shall be served consecutively.

(7) Subject to subsection (8), where:

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(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 44ZZRF or 44ZZRG;

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

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(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.

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

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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).

(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;

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(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

(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:

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(a) a person’s contravention, or proposed contravention, of

section 44ZZRF or 44ZZRG; or

(b) a person’s involvement, or proposed involvement, in a

contravention of section 44ZZRF or 44ZZRG;

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:

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:

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(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

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.

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(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 clearance or authorisation

granted on the basis of false or misleading information

(1) 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, under Division 3 of Part VII

(mergers), a clearance or an 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 clearance or

authorisation would not have been granted; and

(e) apart from the clearance or 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.

(2) However, the Court must not grant the injunction if:

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(a) the person was granted both a clearance and an authorisation

for the acquisition under Division 3 of Part VII; and

(b) the Court could not grant an injunction under this section in

relation to both the clearance and the authorisation.

Example: If a clearance for an acquisition was granted by the Commission on

the basis of false or misleading information, and an authorisation for

the acquisition was granted by the Tribunal on the basis of true

information, then the Court cannot grant an injunction under this

section because it would not be able to grant the injunction in relation

to the authorisation.

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

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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

(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

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or not the Court has made the findings referred to in

subsections (1) and (1A).

81A Divestiture where merger done under clearance or

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, under

Division 3 of Part VII (mergers), a clearance or an

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 95AZN or

Part 7.4 of the Criminal Code by giving that information; and

(e) if that information had not been given, the clearance or

authorisation would not have been granted; and

(f) apart from the clearance or 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.

(3) However, the Court must not make an order under subsection (2)

if:

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(a) the acquirer was granted, under Division 3 of Part VII, both a

clearance and an authorisation for the acquisition; and

(b) the matters in subsection (1) are not satisfied in relation to

both the clearance and the authorisation.

Example: If a clearance for an acquisition was granted by the Commission on

the basis of false or misleading information, and an authorisation for

the acquisition was granted by the Tribunal on the basis of true

information, then the Court cannot make an order under subsection (2)

because subsection (1) would not be satisfied in relation to the

authorisation.

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

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.

(6) However, the Court must not make an order under subsection (4)

if:

(a) the acquirer was granted, under Division 3 of Part VII, both a

clearance and an authorisation for the acquisition; and

(b) the matters in subsections (1) and (4) are not satisfied in

relation to both the clearance and the authorisation.

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,

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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

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.

83 Finding in proceedings to be evidence

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 by a court made in

proceedings under section 77, 80, 81, 86C, 86D or 86E, or for an

offence against section 44ZZRF or 44ZZRG, in which that person

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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, is prima facie evidence of that fact and the finding

may be proved by production of a document under the seal of the

court from which the finding appears.

84 Conduct by directors, employees or agents

(1) If, in:

(a) a prosecution for an offence against section 44ZZRF or

44ZZRG 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 44ZZRJ or 44ZZRK, Division 1A of Part IV,

section 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.

(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.

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(3) If, in:

(a) a prosecution for an offence against section 44ZZRF or

44ZZRG 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 44ZZRJ or 44ZZRK, Division 1A

of Part IV, 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

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

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(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.

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.

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(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 44ZZRI 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 44ZZRI 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:

(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.

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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

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.

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(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 44ZZRF or 44ZZRG; or

(b) an involvement in a contravention of section 44ZZRF or

44ZZRG.

(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

(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.

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(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

95AZN; or

(b) constitutes an involvement in a contravention of any of those

provisions.

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

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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 44ZZRF or 44ZZRG.

(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 44ZZRF or

44ZZRG.

(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,

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.

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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 44ZZRF or

44ZZRG; 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

(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.

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(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.

(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

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(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 44ZZRF or 44ZZRG, 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

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

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(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 44ZZRF or 44ZZRG;

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.

(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.

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(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 44ZZRF or 44ZZRG; 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

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;

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(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

(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, or a covenant given, whether

before or after the commencement of the Trade Practices

Amendment Act 1977:

(i) in the case of a provision of a contract, is unenforceable

by reason of section 45 in so far as it confers rights or

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benefits or imposes duties or obligations on a

corporation; or

(ii) in the case of a covenant, is unenforceable by reason of

section 45B in so far as it confers rights or benefits or

imposes duties or obligations on a corporation or on a

person associated with 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 or of a

person who would, but for subsection 45B(1), be bound by, or

entitled to the benefit of, the covenant, as the case may be, make an

order:

(c) varying the contract or covenant, or a collateral arrangement

relating to the contract or covenant, in such manner as the

Court considers just and equitable; or

(d) directing another party to the contract, or another person who

would, but for subsection 45B(1), be bound by, or entitled to

the benefit of, the covenant, to do any act in relation to the

first-mentioned party or person 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 or covenant do not affect any powers that any other court

may have in relation to the contract or covenant in proceedings

instituted in that other court in respect of the contract or covenant.

(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

clearance or an authorisation under Division 3 of Part VII.

(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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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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(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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(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

Competition and Consumer Act 2010 421

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

422 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Introduction Division 1

Section 87D

Competition and Consumer Act 2010 423

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Division 1 Introduction

Section 87D

424 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Introduction Division 1

Section 87E

Competition and Consumer Act 2010 425

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Part VIB Claims for damages or compensation for death or personal injury

Division 2 Limitation periods

Section 87F

426 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Limitation periods Division 2

Section 87G

Competition and Consumer Act 2010 427

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Division 2 Limitation periods

Section 87G

428 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Section 87H

Competition and Consumer Act 2010 429

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

430 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Limits on personal injury damages for non-economic loss Division 3

Section 87L

Competition and Consumer Act 2010 431

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Division 3 Limits on personal injury damages for non-economic loss

Section 87N

432 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Section 87Q

Competition and Consumer Act 2010 433

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Division 3 Limits on personal injury damages for non-economic loss

Section 87S

434 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Limits on personal injury damages for loss of earning capacity Division 4

Section 87U

Competition and Consumer Act 2010 435

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

436 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Limits on personal injury damages for gratuitous attendant care services Division 5

Section 87W

Competition and Consumer Act 2010 437

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Division 5 Limits on personal injury damages for gratuitous attendant care services

Section 87X

438 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

Competition and Consumer Act 2010 439

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

Section 87Y

440 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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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Other limits on personal injury damages Division 6

Section 87ZA

Competition and Consumer Act 2010 441

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Part VIB Claims for damages or compensation for death or personal injury

Division 6 Other limits on personal injury damages

Section 87ZB

442 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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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Claims for damages or compensation for death or personal injury Part VIB

Structured settlements Division 7

Section 87ZC

Competition and Consumer Act 2010 443

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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, notifications and clearances in respect of restrictive trade

practices

Division 1 Authorisations (other than section 50 merger authorisations)

Section 87ZP

444 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part VII—Authorisations, notifications and

clearances in respect of restrictive trade

practices

Division 1—Authorisations (other than section 50 merger

authorisations)

87ZP Definitions

(1) In this Division:

authorisation means an authorisation under 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 Power of Commission to grant authorisations

(1A) Subject to this Part, the Commission may, upon application by or

on behalf of a corporation, grant an authorisation to the

corporation:

(a) to make a contract or arrangement, or arrive at an

understanding, if a provision of the proposed contract,

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Authorisations, notifications and clearances in respect of restrictive trade practices Part

VII

Authorisations (other than section 50 merger authorisations) Division 1

Section 88

Competition and Consumer Act 2010 445

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

arrangement or understanding would be, or might be, a cartel

provision; or

(b) to give effect to a provision of a contract, arrangement or

understanding if the provision is, or may be, a cartel

provision;

and, while such an authorisation remains in force:

(c) in the case of an authorisation to make a contract or

arrangement, or to arrive at an understanding—

sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not

prevent the corporation from making the contract or

arrangement, or arriving at the understanding, in accordance

with the authorisation; or

(d) in the case of an authorisation to give effect to a provision of

a contract, arrangement or understanding—sections 44ZZRG

and 44ZZRK do not prevent the corporation from giving

effect to the provision in accordance with the authorisation.

(1) Subject to this Part, the Commission may, upon application by or

on behalf of a corporation, grant an authorization to the

corporation:

(a) to make a contract or arrangement, or arrive at an

understanding, where a provision of the proposed contract,

arrangement or understanding would be, or might be, an

exclusionary provision or would have the purpose, or would

have or might have the effect, of substantially lessening

competition within the meaning of section 45; or

(b) to give effect to a provision of a contract, arrangement or

understanding where the provision is, or may be, an

exclusionary provision or has the purpose, or has or may

have the effect, of substantially lessening competition within

the meaning of section 45;

and, while such an authorization remains in force:

(c) in the case of an authorization to make a contract or

arrangement or to arrive at an understanding—

subsection 45(2) does not prevent the corporation from

making the contract or arrangement or arriving at the

understanding in accordance with the authorization and

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Part VII Authorisations, notifications and clearances in respect of restrictive trade

practices

Division 1 Authorisations (other than section 50 merger authorisations)

Section 88

446 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

giving effect in accordance with the authorization to any

provision of the contract or arrangement so made or of the

understanding so arrived at;

(d) in the case of an authorization to give effect to a provision of

a contract:

(i) the provision is not unenforceable by reason of

subsection 45(1); and

(ii) subsection 45(2) does not prevent the corporation from

giving effect to the provision in accordance with the

authorization; or

(e) in the case of an authorization to give effect to a provision of

an arrangement or understanding—subsection 45(2) does not

prevent the corporation from giving effect to the provision in

accordance with the authorization.

(5) Subject to this Part, the Commission may, upon application by or

on behalf of a person, grant an authorization to the person:

(a) to require the giving of, or to give, a covenant where the

proposed covenant would have the purpose, or would have or

might have the effect, of substantially lessening competition

in a market referred to in paragraph 45B(2)(a); or

(b) to enforce the terms of a covenant;

and, while such an authorization remains in force:

(c) in the case of an authorization to require the giving of, or to

give, a covenant:

(i) the covenant is not unenforceable by reason of

subsection 45B(1); and

(ii) subsection 45B(2) does not apply in relation to the

covenant; or

(d) in the case of an authorization to enforce the terms of a

covenant:

(i) the covenant is not unenforceable by reason of

subsection 45B(1); and

(ii) paragraphs 45B(2)(b) and (c) do not apply in relation to

the covenant.

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Authorisations (other than section 50 merger authorisations) Division 1

Section 88

Competition and Consumer Act 2010 447

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(6) An authorization granted by the Commission to a person under any

of the preceding provisions of this section to:

(a) make a contract or arrangement or arrive at an understanding;

(b) give effect to a provision of a contract, arrangement or

understanding;

(c) require the giving of, or give, a covenant; or

(d) enforce the terms of a covenant;

has effect as if it were also an authorization in the same terms to

every other person named or referred to in the application for the

authorization as a party to the contract, arrangement or

understanding or as a proposed party to the proposed contract,

arrangement or understanding, or as a person who is or would be

bound by, or entitled to the benefit of, the covenant or the proposed

covenant, as the case may be.

(6A) Subject to this Part, the Commission may, on application by or on

behalf of a corporation, grant an authorisation to the corporation to

make a particular disclosure of information to which

section 44ZZW or 44ZZX would or might apply. While the

authorisation remains in force, that section does not apply in

relation to the corporation making the disclosure.

(6B) The Commission does not have power to grant an authorisation

under subsection (6A) to a corporation to make a particular

disclosure of information if the disclosure occurred before the

Commission makes a determination in respect of the application.

(6C) An application made to the Commission under subsection (6A) for

an authorisation in relation to a particular disclosure of information

may be expressed to be made also in relation to one or more other

similar disclosures of information. If an application is so

expressed, the Commission may grant a single authorisation in

respect of all the disclosures or may grant separate authorisations

in respect of any one or more of the disclosures.

(7) Subject to this Part, the Commission may, upon application by or

on behalf of a person, grant an authorization to the person, and to

any other person acting in concert with the first-mentioned person,

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Part VII Authorisations, notifications and clearances in respect of rest