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If a provision of the compiled law has been repealed in accordance with a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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Division 1A—Anti-competitive disclosure of pricing and other
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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An Act relating to competition, fair trading and
consumer protection, and for other purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Competition and Consumer Act 2010.
2 Object of this Act
The object of this Act is to enhance the welfare of Australians
through the promotion of competition and fair trading and
provision for consumer protection.
2A Application of Act to Commonwealth and Commonwealth
authorities
(1) Subject to this section and sections 44AC, 44E and 95D, this Act
binds the Crown in right of the Commonwealth in so far as the
Crown in right of the Commonwealth carries on a business, either
directly or by an authority of the Commonwealth.
(2) Subject to the succeeding provisions of this section, this Act
applies as if:
(a) the Commonwealth, in so far as it carries on a business
otherwise than by an authority of the Commonwealth; and
(b) each authority of the Commonwealth (whether or not acting
as an agent of the Crown in right of the Commonwealth) in
so far as it carries on a business;
were a corporation.
(3) Nothing in this Act makes the Crown in right of the
Commonwealth liable to a pecuniary penalty or to be prosecuted
for an offence.
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(3A) The protection in subsection (3) does not apply to an authority of
the Commonwealth.
(4) Part IV does not apply in relation to the business carried on by the
Commonwealth in developing, and disposing of interests in, land
in the Australian Capital Territory.
2B Application of Act to States and Territories
(1) The following provisions of this Act bind the Crown in right of
each of the States, of the Northern Territory and of the Australian
Capital Territory, so far as the Crown carries on a business, either
directly or by an authority of the State or Territory:
(a) Part IV;
(aa) Part V;
(b) Part XIB;
(c) the other provisions of this Act so far as they relate to the
above provisions.
(2) Nothing in this Act renders the Crown in right of a State or
Territory liable to a pecuniary penalty or to be prosecuted for an
offence.
(3) The protection in subsection (2) does not apply to an authority of a
State or Territory.
2BA Application of Part IV to local government bodies
(1) Part IV applies in relation to a local government body only to the
extent that it carries on a business, either directly or by an
incorporated company in which it has a controlling interest.
(2) In this section:
local government body means a body established by or under a law
of a State or Territory for the purposes of local government, other
than a body established solely or primarily for the purposes of
providing a particular service, such as the supply of electricity or
water.
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2C Activities that are not business
(1) For the purposes of sections 2A, 2B and 2BA, the following do not
amount to carrying on a business:
(a) imposing or collecting:
(i) taxes; or
(ii) levies; or
(iii) fees for licences;
(b) granting, refusing to grant, revoking, suspending or varying
licences (whether or not they are subject to conditions);
(c) a transaction involving:
(i) only persons who are all acting for the Crown in the
same right (and none of whom is an authority of the
Commonwealth or an authority of a State or Territory);
or
(ii) only persons who are all acting for the same authority of
the Commonwealth; or
(iii) only persons who are all acting for the same authority of
a State or Territory; or
(iv) only the Crown in right of the Commonwealth and one
or more non-commercial authorities of the
Commonwealth; or
(v) only the Crown in right of a State or Territory and one
or more non-commercial authorities of that State or
Territory; or
(vi) only non-commercial authorities of the Commonwealth;
or
(vii) only non-commercial authorities of the same State or
Territory; or
(viii) only persons who are all acting for the same local
government body (within the meaning of section 2BA)
or for the same incorporated company in which such a
body has a controlling interest;
(d) the acquisition of primary products by a government body
under legislation, unless the acquisition occurs because:
(i) the body chooses to acquire the products; or
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(ii) the body has not exercised a discretion that it has under
the legislation that would allow it not to acquire the
products.
(2) Subsection (1) does not limit the things that do not amount to
carrying on a business for the purposes of sections 2A, 2B and
2BA.
(3) In this section:
acquisition of primary products by a government body under
legislation includes vesting of ownership of primary products in a
government body by legislation.
government body means the Commonwealth, a State, a Territory,
an authority of the Commonwealth or an authority of a State or
Territory.
licence means a licence that allows the licensee to supply goods or
services.
primary products means:
(a) agricultural or horticultural produce; or
(b) crops, whether on or attached to the land or not; or
(c) animals (whether dead or alive); or
(d) the bodily produce (including natural increase) of animals.
(4) For the purposes of this section, an authority of the Commonwealth
or an authority of a State or Territory is non-commercial if:
(a) it is constituted by only one person; and
(b) it is neither a trading corporation nor a financial corporation.
3 Repeal
The Restrictive Trade Practices Act 1971 and the Restrictive Trade
Practices Act 1972 are repealed.
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4 Interpretation
(1) In this Act, unless the contrary intention appears:
acquire includes:
(a) in relation to goods—acquire by way of purchase, exchange
or taking on lease, on hire or on hire-purchase; and
(b) in relation to services—accept.
AEMC or Australian Energy Market Commission means the body
established by section 5 of the Australian Energy Market
Commission Establishment Act 2004 of South Australia.
AER or Australian Energy Regulator means the body established
by section 44AE.
AER Chair means the Chair of the AER.
AER member means a member of the AER.
arrive at, in relation to an understanding, includes reach or enter
into.
Australian Consumer Law means Schedule 2 as applied under
Subdivision A of Division 2 of Part XI.
authorisation means:
(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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Part IIIAA—The Australian Energy Regulator
(AER)
Division 1—Preliminary
44AB Definitions
In this Part, unless the contrary intention appears:
Australian Energy Market Agreement means the agreement, as
amended from time to time:
(a) that relates to energy; and
(b) that is between the Commonwealth, all of the States, the
Australian Capital Territory and the Northern Territory; and
(c) that is first made in 2004; and
(d) that agrees to the establishment of the AER and the AEMC.
Commonwealth AER member means the member referred to in
section 44AM.
full-time AER member means an AER member appointed on a
full-time basis.
part-time AER member means an AER member appointed on a
part-time basis.
44AC This Part binds the Crown
This Part binds the Crown in each of its capacities.
44AD Extra-territorial operation
It is the intention of the Parliament that the operation of this Part
should, as far as possible, include operation in relation to the
following:
(a) things situated in or outside Australia;
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(b) acts, transactions and matters done, entered into or occurring
in or outside Australia;
(c) things, acts, transactions and matters (wherever situated,
done, entered into or occurring) that would, apart from this
Act, be governed or otherwise affected by the law of a State,
a Territory or a foreign country.
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Division 2—Establishment of the AER
44AE Establishment of the AER
(1) The Australian Energy Regulator (the AER) is established by this
section.
(2) The AER:
(a) is a body corporate with perpetual succession; and
(b) must have a common seal; and
(c) may acquire, hold and dispose of real and personal property;
and
(d) may sue and be sued in its corporate name.
(3) However, the AER is taken, for the purposes of the finance law
(within the meaning of the Public Governance, Performance and
Accountability Act 2013):
(a) not to be a corporate Commonwealth entity; and
(b) to be a part of the Commonwealth, and a part of the
Commission; and
(c) not to be a body corporate.
44AF AER to hold money and property on behalf of the
Commonwealth
The AER holds any money or property for and on behalf of the
Commonwealth.
44AG Constitution of the AER
The AER consists of:
(a) a Commonwealth AER member, appointed in accordance
with section 44AM; and
(b) 2 State/Territory AER members, appointed in accordance
with section 44AP.
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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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(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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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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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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(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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(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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(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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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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(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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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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(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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(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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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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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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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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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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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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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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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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(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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(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
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Division 2AA—Services that are ineligible to be declared
Subdivision A—Scope of Division
44LA Constitutional limits on operation of this Division
This Division does not apply in relation to a service unless:
(a) the person who is, or expects to be, the provider of the
service is a corporation (or a partnership or joint venture
consisting wholly of corporations); or
(b) access to the service is (or would be) in the course of, or for
the purposes of, constitutional trade or commerce.
Subdivision B—Ineligibility recommendation by Council
44LB Ineligibility recommendation
Person may request recommendation
(1) A person with a material interest in a particular service proposed to
be provided by means of a proposed facility may make a written
application to the Council asking the Council to recommend that
the designated Minister decide that the service is ineligible to be a
declared service.
Note: The application must be made before construction of the facility
commences: see the definition of proposed facility in section 44B.
Council must make recommendation
(2) After receiving the application, the Council must, after having
regard to the objects of this Part:
(a) recommend to the designated Minister:
(i) that he or she decide that the service is ineligible to be a
declared service; and
(ii) the period for which the decision should be in force
(which must be at least 20 years); or
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Section 44LB
Competition and Consumer Act 2010 121
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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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Section 44LD
124 Competition and Consumer Act 2010
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(b) the total period that is disregarded under that subsection must
not exceed 60 days.
Stopping the clock by agreement
(5) The Council and the applicant may agree in writing that a specified
period is to be disregarded in working out the expected period.
(6) The Council must publish, by electronic or other means, the
agreement.
Extension of time for making decision
(7) If the Council is unable to make a recommendation within the
consideration period (whether it is the expected period or it has
been previously extended under this subsection), it must, by notice
in writing to the designated Minister, extend the consideration
period by a specified period.
(8) The notice must:
(a) specify when the Council must now make a recommendation
on the application; and
(b) include a statement explaining why the Council has been
unable to make a decision on the recommendation within the
consideration period.
(9) The Council must give a copy of the notice to:
(a) the applicant; and
(b) if the applicant is not the person who is, or expects to be, the
provider—that person.
Publication
(10) If the Council extends the consideration period under
subsection (7), it must publish a notice in a national newspaper:
(a) stating that it has done so; and
(b) specifying the day by which it must now make a
recommendation on the application.
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Section 44LE
Competition and Consumer Act 2010 125
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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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Section 44LH
Competition and Consumer Act 2010 129
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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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Section 44LI
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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(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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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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Section 44MA
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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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Section 44N
138 Competition and Consumer Act 2010
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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
140 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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
Competition and Consumer Act 2010 141
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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
Competition and Consumer Act 2010 143
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 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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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
Competition and Consumer Act 2010 145
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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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Section 44O
148 Competition and Consumer Act 2010
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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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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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Division 2B Competitive tender processes for government owned facilities
Section 44PA
150 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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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Section 44PAA
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(a) it is satisfied that reasonable terms and conditions of access
to any service specified under paragraph (2)(a) will be the
result of the process; and
(b) it is satisfied that the tender process meets the requirements
prescribed by the regulations.
(4A) The Commission may approve the tender process as a competitive
tender process even if the service proposed to be provided by
means of the facility is the subject of a decision by the designated
Minister under section 44LG that the service is ineligible to be a
declared service.
Period for which decision in force
(5) If the Commission approves the tender process as a competitive
tender process, it may specify in the notice the period for which the
decision is in force.
Note: Section 44PC provides for revocation of the decision.
(6) The Commission may, by writing, extend that period by a specified
period. The Commission may do so more than once.
Legislation Act 2003
(7) A notice under subsection (3) is not a legislative instrument.
44PAA Commission may request information
(1) The Commission may give a person a written notice requesting the
person give to the Commission, within a specified period,
information of the kind specified in the notice that the Commission
considers may be relevant to deciding whether to approve or refuse
to approve a tender process under section 44PA.
(2) The Commission must:
(a) if the person is not the applicant—give a copy of the notice to
the applicant; and
(b) publish, by electronic or other means, the notice.
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Section 44PB
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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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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Section 44PD
Competition and Consumer Act 2010 155
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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
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(c) specified that the decision is in force for a period of 20 years,
starting 21 days after the start of the day the decision is taken
to have been published.
44PE Commission may invite public submissions
Invitation
(1) The Commission may publish, by electronic or other means, a
notice inviting public submissions:
(a) on an application under subsection 44PA(1); or
(b) on any proposed decision under subsection 44PC(1) or (2) to
revoke a decision under subsection 44PA(3) to approve a
tender process as a competitive tender process;
if it considers that it is appropriate and practicable to do so.
(2) The notice must specify how submissions may be made and the
day by which submissions may be made (which must be at least 14
days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in making its decision, the Commission:
(a) must have regard to any submission made on or before the
day specified in the notice; and
(b) may disregard any submission made after the day specified in
the notice.
Commission may make submissions publicly available
(4) The Commission may make any written submission, or a written
record (which may be a summary) of any oral submission, publicly
available.
Confidentiality
(5) A person may, at the time of making a submission, request that the
Commission:
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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
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Consultation
(3) Before publishing under subsection (1), the Commission may give
the following persons:
(a) for any decision—the applicant under subsection 44PA(1) or
any other person the Commission considers appropriate;
(b) for a decision under subsection 44PC(2)—the provider of the
service;
a notice in writing:
(c) specifying what the Commission is proposing to publish; and
(d) inviting the person to make a written submission to the
Commission within 14 days after the notice is given
identifying any information the person considers should not
be published because of its confidential commercial nature.
(4) The Commission must have regard to any submission so made in
deciding what to publish. It may have regard to any other matter it
considers relevant.
44PG Review of Commission’s initial decision
Application
(1) A person whose interests are affected by a decision of the
Commission under subsection 44PA(3) may apply in writing to the
Tribunal for review of the decision.
(2) The person must apply for review within 21 days after the
Commission publishes its decision.
Review
(3) The review by the Tribunal is a reconsideration of the matter based
on the information, reports and things referred to in
section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have
regard (see section 44ZZOAA) and time limits that apply to the
Tribunal’s decision on the review (see section 44ZZOA).
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(4) For the purposes of the review, the Tribunal has the same powers
as the Commission.
(5) The member of the Tribunal presiding at the review may require
the Commission to give assistance for the purposes of the review.
(5A) Without limiting subsection (5), the member may, by written
notice, require the Commission to give information, and to make
reports, of a kind specified in the notice, within the period
specified in the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) the person who made the application under
subsection 44PA(1) requesting approval of a tender
process as a competitive tender process; and
(iii) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
Tribunal’s decision
(6) If the Commission refused to approve a tender process as a
competitive tender process, the Tribunal must, by writing:
(a) affirm the Commission’s decision; or
(b) set aside the Commission’s decision and approve the process
as a competitive tender process.
(7) A decision of the Tribunal to approve a process as a competitive
tender process is taken to be a decision by the Commission for all
purposes of this Part (except this section).
(8) If the Commission approved a tender process as a competitive
tender process, the Tribunal must, by writing, affirm or set aside
the Commission’s decision.
Note: If the Tribunal sets aside a decision of the Commission to approve a
tender process as a competitive tender process, the Commission’s
decision is no longer in force. This means the designated Minister is
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Section 44PH
160 Competition and Consumer Act 2010
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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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(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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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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Competition and Consumer Act 2010 163
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Division 3—Access to declared services
Subdivision A—Scope of Division
44R Constitutional limits on operation of this Division
This Division does not apply in relation to a third party’s access to
a service unless:
(a) the provider is a corporation (or a partnership or joint venture
consisting wholly of corporations); or
(b) the third party is a corporation; or
(c) the access is (or would be) in the course of, or for the
purposes of, constitutional trade or commerce.
Subdivision B—Notification of access disputes
44S Notification of access disputes
(1) If a third party is unable to agree with the provider on one or more
aspects of access to a declared service, either the provider or the
third party may notify the Commission in writing that an access
dispute exists, but only to the extent that those aspects of access are
not the subject of an access undertaking that is in operation in
relation to the service.
Note: An example of one of the things on which a provider and third party
might disagree is whether a previous determination ought to be varied.
(2) On receiving the notification, the Commission must give notice in
writing of the access dispute to:
(a) the provider, if the third party notified the access dispute;
(b) the third party, if the provider notified the access dispute;
(c) any other person whom the Commission thinks might want to
become a party to the arbitration.
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Section 44T
164 Competition and Consumer Act 2010
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44T Withdrawal of notifications
(1) A notification may be withdrawn as follows (and not otherwise):
(a) if the provider notified the dispute:
(i) the provider may withdraw the notification at any time
before the Commission makes its final determination;
(ii) the third party may withdraw the provider’s notification
at any time after the Commission issues a draft final
determination, but before it makes its final
determination;
(b) if the third party notified the dispute, the third party may
withdraw the notification at any time before the Commission
makes its determination.
(2) Despite subparagraph (1)(a)(ii), if the provider notified a dispute
over variation of a final determination, the third party may not
withdraw the provider’s notification.
(3) If the notification is withdrawn, it is taken for the purposes of this
Part never to have been given.
Subdivision C—Arbitration of access disputes
44U Parties to the arbitration
The parties to the arbitration of an access dispute are:
(a) the provider;
(b) the third party;
(c) any other person who applies in writing to be made a party
and is accepted by the Commission as having a sufficient
interest.
44V Determination by Commission
(1) Unless it terminates the arbitration under section 44Y, 44YA,
44ZZCB or 44ZZCBA, the Commission:
(a) must make a written final determination; and
(b) may make a written interim determination;
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Section 44W
Competition and Consumer Act 2010 165
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on access by the third party to the service.
Note 1: There are time limits that apply to the Commission’s final
determination: see section 44XA.
Note 2: The Commission may defer arbitration of the access dispute if it is
also considering an access undertaking: see section 44ZZCB.
(2) A determination may deal with any matter relating to access by the
third party to the service, including matters that were not the basis
for notification of the dispute. By way of example, the
determination may:
(a) require the provider to provide access to the service by the
third party;
(b) require the third party to accept, and pay for, access to the
service;
(c) specify the terms and conditions of the third party’s access to
the service;
(d) require the provider to extend the facility;
(da) require the provider to permit interconnection to the facility
by the third party;
(e) specify the extent to which the determination overrides an
earlier determination relating to access to the service by the
third party.
(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
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(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
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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
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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
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(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
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(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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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(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
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(ii) the other party or parties to the contract; and
(iii) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice; and
(6) The Tribunal may either:
(a) affirm the Commission’s decision; or
(b) register the contract.
44ZY Effect of registration of contract
The parties to a contract that has been registered:
(a) may enforce the contract under Division 7 as if the contract
were a determination of the Commission under section 44V
and they were parties to the determination; and
(b) cannot enforce the contract by any other means.
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Division 5 Hindering access to declared services
Section 44ZZ
190 Competition and Consumer Act 2010
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
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Division 6—Access undertakings and access codes for
services
Subdivision A—Giving of access undertakings and access codes
44ZZA Access undertakings by providers
(1) A person who is, or expects to be, the provider of a service may
give a written undertaking to the Commission in connection with
the provision of access to the service.
Note: The following are examples of the kinds of things that might be dealt
with in the undertaking:
(a) terms and conditions of access to the service;
(b) procedures for determining terms and conditions of access to the service;
(c) an obligation on the provider not to hinder access to the service;
(d) an obligation on the provider to implement a particular business structure;
(e) an obligation on the provider to provide information to the Commission or to another person;
(f) an obligation on the provider to comply with decisions of the Commission or another person in relation to matters specified in the undertaking;
(g) an obligation on the provider to seek a variation of the undertaking in specified circumstances.
(2) The undertaking must specify the expiry date of the undertaking.
(3) The Commission may accept the undertaking, if it thinks it
appropriate to do so having regard to the following matters:
(aa) the objects of this Part;
(ab) the pricing principles specified in section 44ZZCA;
(a) the legitimate business interests of the provider;
(b) the public interest, including the public interest in having
competition in markets (whether or not in Australia);
(c) the interests of persons who might want access to the service;
(da) whether the undertaking is in accordance with an access code
that applies to the service;
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Section 44ZZA
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(e) any other matters that the Commission thinks are relevant.
Note 1: There are grounds on which the Commission may reject the
undertaking if it contains, or should contain, fixed principles: see
section 44ZZAAB.
Note 2: The Commission may defer consideration of the undertaking if it is
also arbitrating an access dispute: see section 44ZZCB.
(3AA) The Commission must not accept the undertaking if a decision of
the Commonwealth Minister is in force under section 44N that a
regime established by a State or Territory for access to the service
is an effective access regime.
(3AB) The Commission may reject the undertaking if it incorporates one
or more amendments (see subsection 44ZZAAA(5)) and the
Commission is satisfied that the amendment or amendments are of
a kind, are made at a time, or are made in a manner that:
(a) unduly prejudices anyone the Commission considers has a
material interest in the undertaking; or
(b) unduly delays the process for considering the undertaking.
(3A) The Commission must not accept the undertaking unless:
(a) the provider, or proposed provider, is a corporation (or a
partnership or joint venture consisting wholly of
corporations); or
(b) the undertaking provides for access only to third parties that
are corporations; or
(c) the undertaking provides for access that is (or would be) in
the course of, or for the purposes of, constitutional trade or
commerce.
(6) If the undertaking provides for disputes about the undertaking to be
resolved by the Commission, then the Commission may resolve the
disputes in accordance with the undertaking.
(6A) If the undertaking provides for the Commission to perform
functions or exercise powers in relation to the undertaking, the
Commission may perform those functions and exercise those
powers. If the Commission decides to do so, it must do so in
accordance with the undertaking.
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Section 44ZZAAA
Competition and Consumer Act 2010 193
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(6B) The Commission may accept the undertaking even if the service is
the subject of a decision by the designated Minister under
section 44LG that the service is ineligible to be a declared service.
(7) The provider may:
(a) withdraw the application given under subsection (1) at any
time before the Commission makes a decision on whether to
accept the application; and
(b) withdraw or vary the undertaking at any time after it has been
accepted by the Commission, but only with the consent of the
Commission.
The Commission may consent to a variation of the undertaking if it
thinks it appropriate to do so having regard to the matters in
subsection (3).
Note 1: There are time limits that apply to a decision of the Commission under
this section: see section 44ZZBC.
Note 2: The Commission may request information and invite public
submissions in relation to its decision: see sections 44ZZBCA and
44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
44ZZAAA Proposed amendments to access undertakings
Commission may give an amendment notice in relation to an
undertaking
(1) Before deciding whether to accept an undertaking given to it under
subsection 44ZZA(1) by a person who is, or expects to be, the
provider of a service, the Commission may give the person an
amendment notice in relation to the undertaking.
(2) An amendment notice is a notice in writing that specifies:
(a) the nature of the amendment or amendments (the proposed
amendment or amendments) that the Commission proposes
be made to the undertaking; and
(b) the Commission’s reasons for the proposed amendment or
amendments; and
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Section 44ZZAAA
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(c) the period (the response period) within which the person
may respond to the notice, which must be at least 14 days
after the day the notice was given to the person.
(3) The Commission may publish, by electronic or other means, the
amendment notice.
(4) The Commission may give more than one amendment notice in
relation to an undertaking.
Person may give a revised undertaking in response to notice
(5) If a person receives an amendment notice, the person may, within
the response period, respond to the notice by giving a revised
undertaking to the Commission that incorporates one or more
amendments.
(6) If the revised undertaking incorporates one or more amendments
that the Commission considers are not of the nature proposed in the
amendment notice and do not address the reasons for the proposed
amendments given in the amendment notice, the Commission must
not accept the revised undertaking and must return it to the person
within 21 days of receiving it.
(7) If the person gives a revised undertaking under subsection (5) and
the revised undertaking is not returned to the person under
subsection (6), the revised undertaking is taken, after the time it is
given to the Commission, to be the undertaking given under
section 44ZZA for the purposes of this Part.
(8) The person is taken to have not agreed to the proposed amendment
or amendments if the person does not respond within the response
period.
Commission not required to accept revised undertaking
(9) The Commission is not required to accept the revised undertaking
under section 44ZZA.
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Section 44ZZAAB
Competition and Consumer Act 2010 195
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No duty to propose amendments
(10) In considering whether to accept an undertaking, the Commission
does not have a duty to consider whether to propose one or more
amendments to the undertaking.
Notice of proposed amendment is not a legislative instrument
(11) A notice given under subsection (1) is not a legislative instrument.
44ZZAAB Access undertakings containing fixed principles
Access undertakings may contain fixed principles
(1) An access undertaking given to the Commission under
subsection 44ZZA(1) may include one or more terms that, under
the undertaking, are fixed for a specified period.
(2) Each of the terms is a fixed principle and the specified period is a
fixed period. Different periods may be specified for different fixed
principles.
(3) The fixed period must:
(a) start:
(i) when the access undertaking comes into operation; or
(ii) at a later time ascertained in accordance with the
undertaking; and
(b) extend beyond the expiry date of the undertaking.
Consideration of fixed principles
(4) The Commission may reject the undertaking if it:
(a) includes a term that is not a fixed principle and that the
Commission considers should be a fixed principle; or
(b) includes a fixed principle that the Commission considers
should not be fixed; or
(c) includes a fixed principle that the Commission considers
should be fixed for a period that is different from the period
specified in the undertaking.
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Section 44ZZAAB
196 Competition and Consumer Act 2010
Compilation No. 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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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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review Division 6B
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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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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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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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
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44ZZF Consent injunctions
On an application for an injunction under section 44ZZD or
44ZZE, the Federal Court may grant an injunction by consent of all
of the parties to the proceedings, whether or not the Court is
satisfied that the section applies.
44ZZG Interim injunctions
(1) The Federal Court may grant an interim injunction pending
determination of an application under section 44ZZD or 44ZZE.
(2) If the Commission makes an application under section 44ZZE to
the Federal Court for an injunction, the Court must not require the
Commission or any other person, as a condition of granting an
interim injunction, to give any undertakings as to damages.
44ZZH Factors relevant to granting a restraining injunction
The power of the Federal Court to grant an injunction under
section 44ZZD or 44ZZE restraining a person from engaging in
conduct may be exercised whether or not:
(a) it appears to the Court that the person intends to engage
again, or to continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person engages in conduct of
that kind.
44ZZI Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant an injunction under
section 44ZZD or 44ZZE requiring a person to do a thing may be
exercised whether or not:
(a) it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing; or
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Section 44ZZJ
220 Competition and Consumer Act 2010
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(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person refuses or fails to do that
thing.
44ZZJ Enforcement of access undertakings
(1) If the Commission thinks that the provider of an access
undertaking in operation under Division 6 has breached any of its
terms, the Commission may apply to the Federal Court for an order
under subsection (2).
(2) If the Federal Court is satisfied that the provider has breached a
term of the undertaking, the Court may make all or any of the
following orders:
(a) an order directing the provider to comply with that term of
the undertaking;
(b) an order directing the provider to compensate any other
person who has suffered loss or damage as a result of the
breach;
(c) any other order that the Court thinks appropriate.
44ZZK Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order
granted under this Division.
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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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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
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(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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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
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(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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228 Competition and Consumer Act 2010
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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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Competition and Consumer Act 2010 229
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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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Section 44ZZOA
230 Competition and Consumer Act 2010
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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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Section 44ZZQ
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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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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(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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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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Section 44ZZRL
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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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Section 44ZZRN
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(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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Section 44ZZRO
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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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Section 44ZZRO
248 Competition and Consumer Act 2010
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(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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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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(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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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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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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Section 44ZZRS
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(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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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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(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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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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Section 44ZZU
Competition and Consumer Act 2010 257
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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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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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Section 44ZZW
Competition and Consumer Act 2010 259
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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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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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Section 44ZZY
Competition and Consumer Act 2010 261
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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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Division 1A Anti-competitive disclosure of pricing and other information
Section 44ZZY
262 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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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Division 1A Anti-competitive disclosure of pricing and other information
Section 44ZZZ
264 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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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Anti-competitive disclosure of pricing and other information Division 1A
Section 44ZZZ
Competition and Consumer Act 2010 265
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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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Division 1A Anti-competitive disclosure of pricing and other information
Section 44ZZZA
266 Competition and Consumer Act 2010
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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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Division 2 Other provisions
Section 45
268 Competition and Consumer Act 2010
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Division 2—Other provisions
45 Contracts, arrangements or understandings that restrict dealings
or affect competition
(1) 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
270 Competition and Consumer Act 2010
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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
272 Competition and Consumer Act 2010
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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
276 Competition and Consumer Act 2010
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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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Section 45DC
280 Competition and Consumer Act 2010
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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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Section 45DD
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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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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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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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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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Other provisions Division 2
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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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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Preliminary Division 1
Section 51ACA
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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Division 2 Contravention of industry codes
Section 51ACB
318 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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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Infringement notices Division 2A
Section 51ACJ
Competition and Consumer Act 2010 323
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 4—Orders to redress loss or damage suffered by
non-parties etc.
51ADB Orders to redress loss or damage suffered by non-parties
etc.
Orders
(1) If:
(a) a person engaged in conduct (the contravening conduct)
that:
(i) if the person was a corporation—constituted a
contravention of an applicable industry code; or
(ii) in any case—constituted a related contravention of an
applicable industry code; and
(b) the contravening conduct caused, or is likely to cause, a class
of persons to suffer loss or damage; and
(c) the class includes persons (non-parties) who are not, or have
not been, parties to a proceeding (an enforcement
proceeding) instituted under Part VI in relation to the
contravening conduct;
any court having jurisdiction in the matter may, on the application
of the Commission, make such order or orders (other than an award
of damages) as the court thinks appropriate against a person
referred to in subsection (2) of this section.
Note: The orders that the court may make include all or any of the orders set
out in section 51ADC.
(2) An order under subsection (1) may be made against:
(a) the person mentioned in paragraph (1)(a); or
(b) a person involved in the contravening conduct.
(3) A court must not make an order under subsection (1) unless the
court considers that the order will:
(a) redress, in whole or in part, the loss or damage suffered by
the non-parties in relation to the contravening conduct; or
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Orders to redress loss or damage suffered by non-parties etc. Division 4
Section 51ADB
Competition and Consumer Act 2010 327
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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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Section 51ADC
Competition and Consumer Act 2010 329
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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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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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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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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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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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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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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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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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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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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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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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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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346 Competition and Consumer Act 2010
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(b) the amendments of the following Acts made by the Clean
Energy Legislation (Carbon Tax Repeal) Act 2014:
(i) the Fuel Tax Act 2006;
(ii) the Fuel Tax (Consequential and Transitional
Provisions) Act 2006; and
(c) the amendments made by the following Acts:
(i) the Customs Tariff Amendment (Carbon Tax Repeal)
Act 2014;
(ii) the Excise Tariff Amendment (Carbon Tax Repeal) Act
2014;
(iii) the Ozone Protection and Synthetic Greenhouse Gas
(Import Levy) Amendment (Carbon Tax Repeal) Act
2014;
(iv) the Ozone Protection and Synthetic Greenhouse Gas
(Manufacture Levy) Amendment (Carbon Tax Repeal)
Act 2014.
carbon tax repeal transition period means the period:
(a) beginning at the start of 1 July 2014; and
(b) ending at the end of 30 June 2015.
carbon tax scheme means the scheme embodied in the following:
(a) the Clean Energy Act 2011, as in force at the start of
1 January 2014;
(b) the associated provisions (within the meaning of that Act as
in force at that time);
(c) the following provisions of the Fuel Tax Act 2006, as in force
at the start of 1 January 2014:
(i) Division 42A;
(ii) section 43-5, so far as that section relates to a carbon
reduction;
(iii) section 43-8;
(iv) section 43-11;
(d) section 3A of the Ozone Protection and Synthetic
Greenhouse Gas (Import Levy) Act 1995, as in force at the
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start of 1 January 2014, so far as that section relates to carbon
charge component;
(e) section 4A of the Ozone Protection and Synthetic
Greenhouse Gas (Import Levy) Act 1995, as in force at the
start of 1 January 2014, so far as that section relates to carbon
charge component;
(f) section 3A of the Ozone Protection and Synthetic
Greenhouse Gas (Manufacture Levy) Act 1995, as in force at
the start of 1 January 2014, so far as that section relates to
carbon charge component;
(g) sections 6FA, 6FB and 6FC of the Excise Tariff Act 1921, as
in force at the start of 1 January 2014;
(h) section 19A of the Customs Tariff Act 1995, as in force at the
start of 1 January 2014.
electricity customer means an entity that purchases electricity.
electricity retailer means:
(a) an entity who:
(i) is a retailer within the meaning of the National Energy
Retail Law as it applies in a State or a Territory; and
(ii) sells electricity to electricity customers; or
(b) an entity who is a retailer within the meaning of the
Electricity Industry Act 2000 (Vic.); or
(c) an entity who is a retail entity within the meaning of the
Electricity Act 1994 (Qld); or
(d) an entity who:
(i) holds a retail licence within the meaning of the
Electricity Industry Act 2004 (WA); or
(ii) holds an integrated regional licence within the meaning
of the Electricity Industry Act 2004 (WA) that
authorises the entity to sell electricity; or
(e) an entity who is an electricity entity within the meaning of
the Electricity Reform Act (NT) and whose licence under that
Act authorises the entity to sell electricity; or
(f) any other entity who produces electricity in Australia.
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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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Competition and Consumer Act 2010 349
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(ii) sells natural gas to natural gas customers; or
(b) an entity who is a gas retailer within the meaning of the Gas
Industry Act 2001 (Vic.); or
(c) an entity who is a retailer within the meaning of the Gas
Supply Act 2003 (Qld); or
(d) an entity who holds a trading licence under the Energy
Coordination Act 1994 (WA); or
(e) an entity who holds a licence under the Gas Act 2000 (Tas.)
to sell gas by retail.
price, in relation to a supply, includes:
(a) a charge of any description for the supply; and
(b) any pecuniary or other benefit, whether direct or indirect,
received or to be received by a person for or in connection
with the supply.
regulated goods: see section 60B.
regulated supply means a supply that:
(a) occurs during the carbon tax repeal transition period; and
(b) is of regulated goods.
regulated supply input costs of an entity means the entity’s input
costs in relation to the making by the entity of regulated supplies of
electricity, natural gas or synthetic greenhouse gas.
Royal Assent day means the day on which the Act that inserted this
Part receives the Royal Assent.
SGG customer means an entity that purchases synthetic
greenhouse gas.
SGG equipment has the same meaning as in the Ozone Protection
and Synthetic Greenhouse Gas Management Act 1989.
synthetic greenhouse gas has the same meaning as in the Ozone
Protection and Synthetic Greenhouse Gas Management Act 1989.
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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 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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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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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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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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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 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 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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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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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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Section 60M
Competition and Consumer Act 2010 371
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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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Division 5 Infringement notices
Section 60N
372 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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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Infringement notices Division 5
Section 60Q
Competition and Consumer Act 2010 373
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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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Division 5 Infringement notices
Section 60R
374 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 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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Infringement notices Division 5
Section 60R
Competition and Consumer Act 2010 375
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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
Section 75B
376 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
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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Section 76
Competition and Consumer Act 2010 377
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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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(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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(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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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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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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(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
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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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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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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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Section 87F
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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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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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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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Limitation periods Division 2
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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Part VIB Claims for damages or compensation for death or personal injury
Division 2 Limitation periods
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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Limits on personal injury damages for non-economic loss Division 3
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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Division 4 Limits on personal injury damages for loss of earning capacity
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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Limits on personal injury damages for gratuitous attendant care services Division 5
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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Part VIB Claims for damages or compensation for death or personal injury
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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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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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 (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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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
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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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to engage in conduct to which section 45D, 45DA or 45DB would
or might apply and, while such an authorization remains in force,
that section does not apply in relation to the engaging in that
conduct by the applicant and by any person acting in concert with
the applicant.
(7A) Subject to this Part, the Commission may, on application by or on
behalf of a person, grant an authorisation to the person to engage in
conduct to which section 45E or 45EA would or might apply.
While the authorisation remains in force, that section does not
apply in relation to the person engaging in that conduct.
(8) Subject to this Part, the Commission may, upon application by or
on behalf of a corporation, grant an authorization to the corporation
to engage in conduct that constitutes or may constitute the practice
of exclusive dealing and, while such an authorization remains in
force, section 47 does not prevent the corporation from engaging in
that conduct in accordance with the authorization.
(8AA) If:
(a) the Commission grants an authorization to a corporation to
engage in particular conduct under subsection (8); and
(b) the particular conduct referred to in the authorization is
conduct expressly required or permitted under a contract, an
arrangement, an understanding or an industry code of
practice;
then:
(c) the authorization 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 or proposed
party to the contract, arrangement, understanding or code;
and
(d) the authorization may be expressed so as to apply to or in
relation to another person who becomes a party to the
contract, arrangement, understanding or code at a time after
the authorization is granted.
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(8AB) For the purposes of subsection (8AA), a reference in that
subsection to a contract, an arrangement, an understanding or an
industry code of practice includes a reference to a proposed
contract, a proposed arrangement, a proposed understanding or a
proposed industry code of practice (as the case requires).
(8A) Subject to this Part, the Commission may, upon application by or
on behalf of a person, grant an authorisation to the person to
engage in conduct that constitutes (or may constitute) the practice
of resale price maintenance. While the authorisation remains in
force, section 48 does not prevent the person from engaging in that
conduct in accordance with the authorisation.
(8B) Subject to this Part, the Commission may, upon application by or
on behalf of a corporation, grant it an authorisation:
(a) to make a dual listed company arrangement; or
(b) to give effect to a provision of a dual listed company
arrangement;
and, while such an authorisation remains in force:
(c) for an authorisation to make a dual listed company
arrangement—section 49 does not prevent the corporation
from:
(i) making the arrangement in accordance with the
authorisation; and
(ii) giving effect, in accordance with the authorisation, to
any provision of the arrangement so made; and
(d) for an authorisation to give effect to a provision of a dual
listed company arrangement—section 49 does not prevent
the corporation from giving effect to the provision in
accordance with the authorisation.
(8C) An authorisation granted by the Commission to a corporation
under subsection (8B) has effect as if it were also an authorisation
in the same terms to the other corporation named or referred to in
the application for the authorisation as a party to the arrangement
or proposed arrangement.
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(8D) Subject to subsection 49(2), the Commission does not have power
to grant an authorisation to a corporation to make a dual listed
company arrangement if the arrangement has been made before the
Commission makes a determination in respect of the application.
(9) Subject to this Part, the Commission may, upon application by or
on behalf of a person, grant an authorisation to the person to
acquire a controlling interest in a body corporate (within the
meaning of section 50A) and, while such an authorisation remains
in force, section 50A does not, to the extent specified in the
authorisation, apply in relation to the acquisition of that controlling
interest.
(10) An authorization to a corporation under subsection (1A) or (1) may
be expressed so as to apply to or in relation to another person who:
(a) in the case of an authorization to make a contract or
arrangement or arrive at an understanding—becomes a party
to the proposed contract or arrangement at a time after it is
made or becomes a party to the proposed understanding at a
time after it is arrived at; or
(b) in the case of an authorization to give effect to a provision of
a contract, arrangement or understanding—becomes a party
to the contract, arrangement or understanding at a time after
the authorization is granted.
(11) An authorization under subsection (5) may be expressed so as to
apply to or in relation to another person who:
(a) in the case of an authorization to require the giving of, or to
give, a covenant—becomes bound by, or entitled to the
benefit of, the proposed covenant at a time after the covenant
is given; or
(b) in the case of an authorization to enforce the terms of a
covenant—becomes bound by, or entitled to the benefit of,
the covenant at a time after the authorization is granted.
(12) The Commission does not have power to grant an authorization to
a corporation to make a contract or arrangement, to arrive at an
understanding or to require the giving of, or to give, a covenant if
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the contract or arrangement has been made, the understanding has
been arrived at or the covenant has been given before the
Commission makes a determination in respect of the application.
(13) An application made to the Commission under this section for an
authorization in relation to a particular contract or proposed
contract (including an application mentioned in subsection (8AA))
may be expressed to be made also in relation to another contract or
proposed contract that is or will be, or in relation to two or more
other contracts or proposed contracts that are or will be, in similar
terms to the first-mentioned contract or proposed contract and,
where an application is so expressed, the Commission may grant a
single authorization in respect of all the contracts or proposed
contracts or may grant separate authorizations in respect of any one
or more of the contracts or proposed contracts.
(14) Where an application made to the Commission under this section
for an authorization in relation to a particular contract or proposed
contract is expressed in accordance with subsection (13) to be
made also in relation to another contract or contracts or proposed
contract or proposed contracts:
(a) the application shall set out:
(i) the names of the parties to each other contract; and
(ii) the names of the parties to each other proposed contract
where those names are known to the applicant at the
time when the application is made; and
(b) if an authorization is granted in respect of a proposed
contract the names of the parties to which were not so known
to the applicant, the authorization shall, by force of this
subsection, be deemed to be expressed to be subject to a
condition that any party to the contract will, when so required
by the Commission, furnish to the Commission the names of
all the parties to the contract.
(15) In subsections (13) and (14):
(a) contract includes an arrangement, understanding, industry
code of practice or covenant and proposed contract has a
corresponding meaning; and
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(b) the reference to the parties to a contract or proposed contract
shall, for the purposes of the application of those subsections
in relation to a covenant or proposed covenant by reason of
paragraph (a) of this subsection, be read as a reference to the
persons who are or will be, or but for subsection 45B(1)
would be, respectively bound by, or entitled to the benefit of,
the covenant or proposed covenant.
(16) A corporation that has made an application to the Commission for
an authorisation, or a person other than a corporation who has
made an application to the Commission for an authorisation under
subsection (9), may at any time, by notice in writing to the
Commission, withdraw the application.
89 Procedure for applications and the keeping of a register
(1) To be valid, an application for an authorisation, a minor variation
of an authorisation, a revocation of an authorisation, or a
revocation of an authorisation and the substitution of another
authorisation, must:
(a) be in a form prescribed by the regulations and contain the
information required by the form; and
(b) be accompanied by any other information or documents
prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the
regulations.
(1A) If the Commission receives a purported application that it
considers is not a valid application, it must, within 5 business days
of receiving the purported application, give the person who made
the purported application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not
comply with this Division.
(1B) For the purposes of subsection (1A), business day means a day that
is not a Saturday, a Sunday or a public holiday in the Australian
Capital Territory.
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(2) If the Commission receives an application referred to in
subsection (1), the Commission must cause notice of the receipt of
that application to be made public in such manner as it thinks fit.
(3) The Commission must keep a register of:
(a) applications for authorizations; and
(b) applications for minor variations of authorizations; and
(c) applications for, or the Commission’s proposals for, the
revocation of authorizations; and
(d) applications for, or the Commission’s proposals for, the
revocation of authorizations and the substitution of other
authorizations;
including applications that have been withdrawn or proposals that
have been abandoned.
(4) Subject to this section, the register kept under subsection (3) shall
include:
(a) any document furnished to the Commission in relation to an
application or proposal referred to in subsection (3);
(aa) any draft determination, and any summary of reasons, by the
Commission that is furnished to a person under section 90A,
or under that section as applied by section 91C;
(ab) any record of a conference made in accordance with
subsection 90A(8), or with that subsection as applied by
section 91C, and any certificate in relation to a conference
given under subsection 90A(9), or under that subsection as so
applied;
(b) particulars of any oral submission made to the Commission
in relation to such an application or proposal; and
(c) the determination of the Commission on such an application
or proposal and the statement of the reasons given by the
Commission for that determination.
(5) Where a person furnishes a document to the Commission in
relation to an application or proposal referred to in subsection (3)
or makes an oral submission to the Commission in relation to such
an application or proposal, he or she may, at the time when the
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document is furnished or the submission is made, request that the
document or a part of the document, or that particulars of the
submission or of part of the submission, be excluded from the
register kept under subsection (3) by reason of the confidential
nature of any of the matters contained in the document or
submission.
(5A) Where such a request is made:
(a) if the document or the part of the document, or the
submission or the part of the submission, to which the
request relates contains particulars of:
(i) a secret formula or process;
(ii) the cash consideration offered for the acquisition of
shares in the capital of a body corporate or assets of a
person; or
(iii) the current costs of manufacturing, producing or
marketing goods or services;
the Commission shall exclude the document or the part of the
document, or particulars of the submission or of the part of
the submission, as the case may be, from the register kept
under subsection (3); and
(b) in any other case—the Commission may, if it is satisfied that
it is desirable to do so by reason of the confidential nature of
the matters contained in the document or the part of the
document, or in the submission or the part of the submission,
exclude the document or the part of the document, or
particulars of the submission or of the part of the submission,
as the case may be, from that register.
(5B) If the Commission refuses a request to exclude a document or a
part of a document from the register kept under subsection (3), the
Commission shall, if the person who furnished the document to the
Commission so requires, return the document or part of the
document to him or her and, in that case, paragraph (4)(a) does not
apply in relation to the document or part of the document.
(5C) If the Commission refuses a request to exclude particulars of an
oral submission or of part of an oral submission from the register
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kept under subsection (3), the person who made the submission
may inform the Commission that he or she withdraws the
submission or that part of the submission and, in that case,
paragraph (4)(b) does not apply in relation to the submission or
that part of the submission, as the case may be.
(5D) Where the Commission is satisfied that it is desirable to do so for
any reason other than the confidential nature of matters contained
in a document or submission, the Commission may exclude a
document or part of a document referred to in paragraph (4)(a) or
particulars referred to in paragraph (4)(b) from the register kept
under subsection (3).
(5E) If a person requests, in accordance with subsection (5) that a
document or a part of a document, or that particulars of a
submission or of part of a submission, be excluded from the
register kept under subsection (3), the document or part of the
document, or particulars of the submission or of the part of the
submission, shall not be included in that register until the
Commission has made a determination in relation to the request.
(6) A document shall not be included in the register kept under
subsection (3) if a direction in relation to that document was in
force under paragraph 22(1)(b) of this Act immediately before the
commencement of the Trade Practices Amendment Act 1977.
90 Determination of applications for authorisations
(1) The Commission shall, in respect of an application for an
authorization:
(a) make a determination in writing granting such authorization
as it considers appropriate; or
(b) make a determination in writing dismissing the application.
(2) The Commission shall take into account any submissions in
relation to the application made to it by the applicant, by the
Commonwealth, by a State or by any other person.
Note: Alternatively, the Commission may rely on consultations undertaken
by the AEMC: see section 90B.
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(4) The Commission shall state in writing its reasons for a
determination made by it.
(5) Before making a determination in respect of an application for an
authorization the Commission shall comply with the requirements
of section 90A.
Note: Alternatively, the Commission may rely on consultations undertaken
by the AEMC: see section 90B.
(5A) The Commission must not make a determination granting an
authorisation under subsection 88(1A) in respect of a provision of a
proposed contract, arrangement or understanding that would be, or
might be, a cartel provision, unless the Commission is satisfied in
all the circumstances:
(a) that the provision would result, or be likely to result, in a
benefit to the public; and
(b) that the benefit would outweigh the detriment to the public
constituted by any lessening of competition that would result,
or be likely to result, if:
(i) the proposed contract or arrangement were made, or the
proposed understanding were arrived at; and
(ii) the provision were given effect to.
(5B) The Commission must not make a determination granting an
authorisation under subsection 88(1A) in respect of a provision of a
contract, arrangement or understanding that is or may be a cartel
provision, unless the Commission is satisfied in all the
circumstances:
(a) that the provision has resulted, or is likely to result, in a
benefit to the public; and
(b) that the benefit outweighs or would outweigh the detriment
to the public constituted by any lessening of competition that
has resulted, or is likely to result, from giving effect to the
provision.
(5C) The Commission must not make a determination granting an
authorisation under subsection 88(6A) in respect of a proposed
disclosure of information to which section 44ZZW would or might
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apply, unless the Commission is satisfied in all the circumstances
that the proposed disclosure would result, or be likely to result, in
such a benefit to the public that the proposed disclosure should be
allowed to be made.
(5D) The Commission must not make a determination granting an
authorisation under subsection 88(6A) in respect of a proposed
disclosure of information to which section 44ZZX would or might
apply, unless the Commission is satisfied in all the circumstances:
(a) that the proposed disclosure would result, or be likely to
result, in a benefit to the public; and
(b) that the benefit would outweigh the detriment to the public
constituted by any lessening of competition that would result,
or be likely to result, if the corporation so disclosed the
information.
(6) The Commission shall not make a determination granting an
authorization under subsection 88(1), (5) or (8) in respect of a
provision (not being a provision that is or may be an exclusionary
provision) of a proposed contract, arrangement or understanding, in
respect of a proposed covenant, or in respect of proposed conduct
(other than conduct to which subsection 47(6) or (7) applies),
unless it is satisfied in all the circumstances that the provision of
the proposed contract, arrangement or understanding, the proposed
covenant, or the proposed conduct, as the case may be, would
result, or be likely to result, in a benefit to the public and that that
benefit would outweigh the detriment to the public constituted by
any lessening of competition that would result, or be likely to
result, if:
(a) the proposed contract or arrangement were made, or the
proposed understanding were arrived at, and the provision
concerned were given effect to;
(b) the proposed covenant were given, and were complied with;
or
(c) the proposed conduct were engaged in;
as the case may be.
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(7) The Commission shall not make a determination granting an
authorization under subsection 88(1) or (5) in respect of a
provision (not being a provision that is or may be an exclusionary
provision) of a contract, arrangement or understanding or, in
respect of a covenant, unless it is satisfied in all the circumstances
that the provision of the contract, arrangement or understanding, or
the covenant, as the case may be, has resulted, or is likely to result,
in a benefit to the public and that that benefit outweighs or would
outweigh the detriment to the public constituted by any lessening
of competition that has resulted, or is likely to result, from giving
effect to the provision or complying with the covenant.
(8) The Commission shall not:
(a) make a determination granting:
(i) an authorization under subsection 88(1) in respect of a
provision of a proposed contract, arrangement or
understanding that is or may be an exclusionary
provision; or
(ii) an authorization under subsection 88(7) or (7A) in
respect of proposed conduct; or
(iii) an authorization under subsection 88(8) in respect of
proposed conduct to which subsection 47(6) or (7)
applies; or
(iv) an authorisation under subsection 88(8A) for proposed
conduct to which section 48 applies;
unless it is satisfied in all the circumstances that the proposed
provision or the proposed conduct would result, or be likely
to result, in such a benefit to the public that the proposed
contract or arrangement should be allowed to be made, the
proposed understanding should be allowed to be arrived at, or
the proposed conduct should be allowed to take place, as the
case may be; or
(b) make a determination granting an authorization under
subsection 88(1) in respect of a provision of a contract,
arrangement or understanding that is or may be an
exclusionary provision unless it is satisfied in all the
circumstances that the provision has resulted, or is likely to
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result, in such a benefit to the public that the contract,
arrangement or understanding should be allowed to be given
effect to.
(8A) The Commission must not make a determination granting an
authorisation under subsection 88(8B) to make a dual listed
company arrangement unless it is satisfied in all the circumstances
that the making of the arrangement would result, or be likely to
result, in such a benefit to the public (see subsection (9A)) that the
arrangement should be allowed to be made.
(8B) The Commission must not make a determination granting an
authorisation under subsection 88(8B) to give effect to a provision
of a dual listed company arrangement unless it is satisfied in all the
circumstances that the giving effect to the provision would result,
or be likely to result, in such a benefit to the public (see
subsection (9A)) that the provision should be allowed to be given
effect to.
(9) The Commission shall not make a determination granting an
authorization under subsection 88(9) in respect of the acquisition
of a controlling interest in a body corporate within the meaning of
section 50A unless it is satisfied in all the circumstances that the
proposed acquisition would result, or be likely to result, in such a
benefit to the public (see subsection (9A)) that the acquisition
should be allowed to take place.
(9A) In determining what amounts to a benefit to the public for the
purposes of subsections (8A), (8B) and (9):
(a) the Commission must regard the following as benefits to the
public (in addition to any other benefits to the public that
may exist apart from this paragraph):
(i) a significant increase in the real value of exports;
(ii) a significant substitution of domestic products for
imported goods; and
(b) without limiting the matters that may be taken into account,
the Commission must take into account all other relevant
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matters that relate to the international competitiveness of any
Australian industry.
(10) If the Commission does not determine an application for an
authorisation (other than an application for an authorisation under
subsection 88(9)) within the relevant period, then it is taken to have
granted the application at the end of that period.
(10A) For the purposes of subsection (10), the relevant period is the
period of 6 months beginning on the day the Commission received
the application. However, if, before the end of that 6 month period:
(a) the Commission has prepared a draft determination under
subsection 90A(1) in relation to the application; and
(b) the Commission determines in writing that that period is
extended by a specified period of not more than 6 months;
and
(c) the applicant agrees to that period being so extended;
the relevant period is that period as so extended.
(11) Subject to subsections (12) and (13), if the Commission does not
determine an application for an authorisation under
subsection 88(9) within:
(a) 30 days from the day on which the application is received by
the Commission; or
(b) if the Commission, before the end of that period of 30 days,
gives to the applicant a notice in writing requesting the
applicant to give to the Commission additional information
relevant to the determination of the application—the period
consisting of 30 days from the day on which the application
is received by the Commission increased by the number of
days in the period commencing on the day on which the
notice is given to the applicant and ending on the day on
which the applicant gives to the Commission such of the
additional information as the applicant is able to provide;
the Commission shall be deemed to have granted, at the end of that
period, the authorisation applied for.
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(11A) The Commission may, within the 30 day period mentioned in
subsection (11), notify the applicant in writing that the
Commission considers that the period should be extended to 45
days due to the complexity of the issues involved. If the
Commission so notifies the applicant, the references in
subsection (11) to 30 days are to be treated as references to 45
days.
(12) If the applicant for an authorization informs the Commission in
writing before the expiration of the period referred to in
subsection (11) (in this subsection and in subsection (13) referred
to as the base period) that the applicant agrees to the Commission
taking a specified longer period for the determination of the
application, a reference to that longer period shall be deemed for
the purposes of that application to be substituted in subsection (11)
for the reference in that subsection to the base period.
(13) For the purposes of any application of subsection (12), a reference
in that subsection to the base period shall, if a reference to another
period is deemed by any other application or applications of that
subsection to have been substituted in subsection (11) for the
reference in subsection (11) to the base period, be construed as a
reference to that other period.
(14) If a person to whom a notice has been sent under
subsection 90A(2) in relation to a draft determination in respect of
an application for an authorization notifies the Commission in
accordance with subsection 90A(6) that he or she wishes the
Commission to hold a conference in relation to the draft
determination, the relevant period (worked out under
subsection (10A) of this section) shall be deemed to be increased
by a period equal to the period commencing on the day on which
the first notification in relation to the draft determination was
received by the Commission and ending on the seventh day after
the day specified in the certificate given by a member of the
Commission in pursuance of subsection 90A(9) as the day on
which the conference terminated.
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Section 90A
462 Competition and Consumer Act 2010
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(15) Where a party to a joint venture makes at the one time two or more
applications for authorizations (other than an application for an
authorisation under subsection 88(9)), being applications each of
which deals with a matter relating to the joint venture:
(a) the Commission shall not make a determination in respect of
any one of those applications unless it also makes a
determination or determinations at the same time in respect
of the other application or other applications; and
(b) if the Commission does not make a determination in respect
of any one of the applications within the relevant period
(worked out under subsection (10A)) in relation to that
application, the Commission shall be deemed to have
granted, at the expiration of that period, all the authorizations
applied for.
90A Commission to afford opportunity for conference before
determining application for authorisation
(1) Before determining an application for an authorization (other than
an application for an authorisation under subsection 88(9)), the
Commission shall prepare a draft determination in relation to the
application.
(2) The Commission shall, by notice in writing sent to the applicant
and to each other interested person, invite the applicant or other
person to notify the Commission, within 14 days after a date fixed
by the Commission being not earlier than the day on which the
notice is sent, whether the applicant or other person wishes the
Commission to hold a conference in relation to the draft
determination.
(3) If:
(a) the draft determination provides for the granting of the
application unconditionally; and
(b) no person has made a written submission to the Commission
opposing the application;
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each notice by the Commission under subsection (2) shall inform
the person to whom the notice is sent that the draft determination
so provides.
(4) If:
(a) the draft determination does not provide for the granting of
the application or provides for the granting of the application
subject to conditions; or
(b) the draft determination provides for the granting of the
application unconditionally but a written submission has, or
written submissions have, been made to the Commission
opposing the application;
the Commission shall send with each notice under subsection (2) a
copy of the draft determination and:
(c) in a case to which paragraph (a) applies—a summary of the
reasons why the Commission is not satisfied that the
application should be granted or why it is not satisfied that
the application should be granted unconditionally; or
(d) in a case to which paragraph (b) applies—a summary of the
reasons why it is satisfied that the application should be
granted unconditionally.
(5) If each of the persons to whom a notice was sent under
subsection (2):
(a) notifies the Commission within the period of 14 days
mentioned in that subsection that he or she does not wish the
Commission to hold a conference in relation to the draft
determination; or
(b) does not notify the Commission within that period that he or
she wishes the Commission to hold such a conference;
the Commission may make the determination at any time after the
expiration of that period.
(6) If any of the persons to whom a notice was sent under
subsection (2) notifies the Commission in writing within the period
of 14 days mentioned in that subsection that he or she wishes the
Commission to hold a conference in relation to the draft
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Section 90A
464 Competition and Consumer Act 2010
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determination, the Commission shall appoint a date (being not later
than 30 days after the expiration of that period), time and place for
the holding of the conference and give notice of the date, time and
place so appointed to each of the persons to whom a notice was
sent under subsection (2).
(7) At the conference:
(a) the Commission shall be represented by a member or
members of the Commission (being a member or members
who participated in the preparation of the draft
determination) nominated by the Chairperson; and
(b) each person to whom a notice was sent under subsection (2)
and any other interested person whose presence at the
conference is considered by the Commission to be
appropriate is entitled to attend and participate personally or,
in the case of a body corporate, may be represented by a
person who, or by persons each of whom, is a director,
officer or employee of the body corporate; and
(c) a person participating in the conference in accordance with
paragraph (a) or (b) is entitled to have another person or other
persons present to assist him or her but a person who so
assists another person at the conference is not entitled to
participate in the discussion; and
(e) no other person is entitled to be present.
(8) A member of the Commission participating in the conference shall
make such record of the discussions as is sufficient to set out the
matters raised by the persons participating in the conference.
(9) The member of the Commission who represents the Commission at
the conference, or, if the Commission is represented by more than
one member of the Commission, one of those members appointed
by the Chairperson:
(a) may exclude from the conference any person who uses
insulting language at the conference, creates, or takes part in
creating or continuing, a disturbance at the conference or
repeatedly interrupts the conference;
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(b) may terminate the conference when he or she is of the
opinion that a reasonable opportunity has been given for the
expression of the views of persons participating in the
conference (other than persons excluded from the conference
under paragraph (a)); and
(c) shall give a certificate certifying the day on which the first
notification under subsection (6) in relation to the draft
determination was received by the Commission and the day
on which the conference terminated;
and any such certificate shall be received in all courts as prima
facie evidence of the matters certified.
(10) A document purporting to be a certificate referred to in
subsection (9) shall, unless the contrary is established, be deemed
to be such a certificate and to have been duly given.
(11) The Commission shall take account of all matters raised at the
conference and may at any time after the termination of the
conference make a determination in respect of the application.
(12) For the purposes of this section, interested person means a person
who has notified the Commission in writing that he or she, or a
specified unincorporated association of which he or she is a
member, claims to have an interest in the application, being an
interest that, in the opinion of the Commission, is real and
substantial.
(13) Where the Commission is of the opinion that two or more
applications for authorizations that are made by the same person,
or by persons being bodies corporate that are related to each other,
involve the same or substantially similar issues, the Commission
may treat the applications as if they constitute a single application
and may prepare one draft determination in relation to the
applications and hold one conference in relation to that draft
determination.
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Division 1 Authorisations (other than section 50 merger authorisations)
Section 90B
466 Competition and Consumer Act 2010
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90B Commission may rely on consultations undertaken by the
AEMC
(1) This section applies if:
(a) an application under section 88, 91A, 91B or 91C is made in
relation to the National Electricity Rules or a provision of the
Rules; and
(b) the AEMC has done the following:
(i) published the Rules or the provision and invited people
to make submissions to it on the Rules or the provision;
(ii) specified the effect of subsection (2) when it published
the Rules or the provision;
(iii) considered any submissions that were received within
the time limit specified by it when it published the Rules
or the provision.
(2) In making a determination under section 90, 91A, 91B or 91C:
(a) the Commission may rely on the process mentioned in
paragraph (1)(b), instead of undertaking the process
mentioned in section 90A, subsection 91A(2), 91B(2) or
91C(2) or (5); and
(b) the Commission may take into account:
(i) any submissions mentioned in subparagraph (1)(b)(iii);
and
(ii) any submissions, in respect of the application, made by
the AEMC; and
(c) despite subsection 90(2), the Commission may disregard any
submissions, in relation to the application, made by the
Commonwealth, by a State, or by any other person (other
than the AEMC).
(3) In this section:
National Electricity Rules means:
(a) the National Electricity Rules, as in force from time to time,
made under the National Electricity Law set out in the
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Schedule to the National Electricity (South Australia) Act
1996 of South Australia; or
(b) those Rules as they apply as a law of another State; or
(c) those Rules as they apply as a law of a Territory; or
(d) those Rules as they apply as a law of the Commonwealth.
91 Grant and variation of authorisations
(1) An authorization may be expressed to be in force for a period
specified in the authorization and, if so expressed, remains in force
for that period only.
(1A) An authorisation, other than an authorisation deemed to have been
granted under subsection 90(10) or (11), comes into force on the
day specified for the purpose in the authorisation, not being a day
earlier than, and an authorisation deemed to have been granted
under subsection 90(10) or (11) comes into force on:
(a) where paragraph (b) or (c) does not apply—the end of the
period in which an application may be made to the Tribunal
for a review of the determination by the Commission of the
application for the authorisation;
(b) if such an application is made to the Tribunal and the
application is not withdrawn—the day on which the Tribunal
makes a determination on the review;
(c) if such an application is made to the Tribunal and the
application is withdrawn—the day on which the application
is withdrawn.
(1B) A minor variation of an authorization comes into force on a day
specified by the Commission in the determination making the
variation, not being a day earlier than:
(a) if neither paragraph (b) nor (c) applies—the end of the period
in which an application may be made to the Tribunal for a
review of the determination of the Commission in respect of
the application for the minor variation; or
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Section 91
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(b) if such an application is made to the Tribunal and the
application is not withdrawn—the day on which the Tribunal
makes a determination on the review; or
(c) if such an application is made to the Tribunal and the
application is withdrawn—the day on which the application
is withdrawn.
(1C) If an authorization (the prior authorization) is revoked and another
authorization is made in substitution for it, that other authorization
comes into force on the day specified for the purpose in that other
authorization, not being a day earlier than:
(a) if neither paragraph (b) nor (c) applies—the end of the period
in which an application may be made to the Tribunal for a
review of an application, or the Commission’s proposal, for
the revocation of the prior authorization and the substitution
of that other authorization; or
(b) if such an application is made to the Tribunal and the
application is not withdrawn—the day on which the Tribunal
makes a determination on the review; or
(c) if such an application is made to the Tribunal and the
application is withdrawn—the day on which the application
is withdrawn.
(2) If the Commission considers that it is appropriate to do so:
(a) for the purpose of enabling due consideration to be given to:
(i) an application for an authorization; or
(ii) an application for a minor variation of an authorization;
or
(iii) an application for the revocation of an authorization and
the substitution of a new one; or
(b) pending the expiration of the time allowed for the making of
an application to the Tribunal for review of a determination
by the Commission of an application referred to in
paragraph (a) and, if such an application for a review is
made, pending the making of a determination by the Tribunal
on the review; or
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(c) for any other reason;
the Commission may at any time:
(d) in the case of an application for an authorization—grant an
authorization that is expressed to be an interim authorization;
and
(e) in the case of an application for a minor variation of an
authorization—grant an authorization that is expressed to be
an interim authorization dealing only with the matter the
subject of the application for a variation; and
(f) in the case of an application for the revocation of an
authorization and the substitution of another—suspend the
operation of the authorization sought to be revoked and grant
an authorization that is expressed to be an interim
authorization in substitution for the authorization suspended.
(2AA) An authorization granted under paragraph 91(2)(d), (e) or (f) and
expressed to be an interim authorization comes into force on such a
date, not being a date before the grant of the interim authorization,
as is specified by the Commission in the interim authorization.
(2AB) The Commission may, at any time, revoke an authorization that is
expressed to be an interim authorization and, where that interim
authorization is in substitution for an authorization the operation of
which has been suspended, the revocation of the interim
authorization has the effect of reviving the operation of the
suspended authorization.
(2A) Subsections 90(4) to (9), inclusive, do not apply in relation to an
authorization that is expressed to be an interim authorization.
(3) An authorization may be expressed to be subject to such conditions
as are specified in the authorization.
91A Minor variations of authorizations
(1) A person to whom an authorization was granted, or another person
on behalf of such a person, may apply to the Commission for a
minor variation of the authorization.
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Division 1 Authorisations (other than section 50 merger authorisations)
Section 91A
470 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) On receipt of an application, the Commission must, if it is satisfied
that the variation sought in the application is a minor variation, by
notice in writing given to any persons who appear to the
Commission to be interested:
(a) indicate the nature of the variation applied for; and
(b) invite submissions in respect of the variation within a period
specified by the Commission.
Note: Alternatively, the Commission may rely on consultations undertaken
by the AEMC: see section 90B.
(3) After considering the application and any submissions received
within the period specified, the Commission may make a
determination in writing varying the authorization or dismissing
the application.
(4) The Commission must not make a determination varying an
authorization to which, if it were a new authorization,
subsection 90(5A), (5B), (5D), (6) or (7) would apply, unless the
Commission is satisfied that, in all the circumstances, the variation
would not result, or would be likely not to result, in a reduction in
the extent to which the benefit to the public of the authorization
outweighs any detriment to the public caused by the authorization.
(5) The Commission must not make a determination varying an
authorization to which, if it were a new authorization,
subsection 90(5C), (8), (8A), (8B) or (9) would apply, unless the
Commission is satisfied that, in all the circumstances, the variation
would not result, or would be likely not to result, in a reduction in
the benefit to the public that arose from the original authorization.
(6) Nothing in this section prevents a person from applying for 2 or
more variations in the same application.
(7) If:
(a) a person applies for 2 or more variations:
(i) at the same time; or
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(ii) in such close succession that the variations could
conveniently be dealt with by the Commission at the
same time; and
(b) the Commission is satisfied that the combined effect of those
variations, if all were granted, would not involve a material
change in the effect of the authorization;
the Commission may deal with all of those variations together as if
they were a single minor variation.
(8) An application for a minor variation may be withdrawn by notice
in writing to the Commission at any time.
91B Revocation of an authorization
(1) A person to whom an authorization was granted, or another person
on behalf of such a person, may apply to the Commission for a
revocation of the authorization.
(2) On receipt of such an application, the Commission must, by notice
in writing given to any persons who appear to the Commission to
be interested:
(a) indicate that the revocation of the authorization has been
applied for; and
(b) indicate the basis on which the revocation has been applied
for; and
(c) invite submissions in respect of the revocation within a
period specified by the Commission.
Note: Alternatively, the Commission may rely on consultations undertaken
by the AEMC: see section 90B.
(3) If, at any time after granting an authorization, it appears to the
Commission that:
(a) the authorization was granted on the basis of evidence or
information that was false or misleading in a material
particular; or
(b) a condition to which the authorization was expressed to be
subject has not been complied with; or
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(c) there has been a material change of circumstances since the
authorization was granted;
the Commission may, by notice in writing given to any persons
who appear to the Commission to be interested:
(d) inform those persons that it is considering the revocation of
the authorization; and
(e) indicate the basis on which the revocation is being proposed;
and
(f) invite submissions in respect of the revocation within a
period specified by the Commission.
(4) After considering any submissions invited under subsection (2) or
(3) that are received within the period specified by the Commission
under that subsection, the Commission may make a determination
in writing:
(a) revoking the authorization; or
(b) deciding not to revoke the authorization.
(5) If an objection to the revocation is included in any submission
(a) that was invited under subsection (2) or (3); and
(b) that is received within the period specified by the
Commission under that subsection;
the Commission must not make a determination revoking the
authorization unless the Commission is satisfied that it would, if
the authorization had not already been granted, be prevented under
subsection 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) or (9)
from making a determination granting the authorization in respect
of which the revocation is sought.
(6) An application for revocation may be withdrawn by notice in
writing to the Commission at any time.
(7) The Commission may disregard any objection that, in its opinion,
is either vexatious or frivolous.
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91C Revocation of an authorization and substitution of a
replacement
(1) A person to whom an authorization was granted, or another person
on behalf of such a person, may apply to the Commission for a
revocation of the authorization and the substitution of a new
authorization for the one revoked.
(2) On receipt of such an application, the Commission must, by notice
in writing given to any persons who appear to the Commission to
be interested:
(a) indicate that the revocation of the authorization, and the
substitution of another authorization for it, has been applied
for; and
(b) indicate the basis upon which the revocation and substitution
has been applied for and the nature of the substituted
authorization so applied for; and
(c) invite submissions in respect of the revocation and
substitution within a period specified by the Commission.
Note: Alternatively, the Commission may rely on consultations undertaken
by the AEMC: see section 90B.
(3) If, at any time after granting an authorization, it appears to the
Commission that:
(a) the authorization was granted on the basis of evidence or
information that was false or misleading in a material
particular; or
(b) a condition to which the authorization was expressed to be
subject has not been complied with; or
(c) there has been a material change of circumstances since the
authorization was granted;
the Commission may, by notice in writing given to any persons
who appear to be interested:
(d) inform those persons that it is considering the revocation of
the authorization and the substitution of a new authorization;
and
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Section 91C
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(e) indicate the basis on which the revocation and substitution is
being proposed and the nature of the substituted authorization
proposed; and
(f) invite submissions in respect of the proposed action within a
period specified by the Commission.
(4) After considering any submissions invited under subsection (2) or
(3) in relation to an authorization that are received within the
period specified by the Commission under that subsection and after
compliance with the requirements of section 90A in accordance
with subsection (5), the Commission may make a determination in
writing:
(a) revoking the authorization and granting another such
authorization that it considers appropriate, in substitution for
it; or
(b) deciding not to revoke the authorization.
(5) Before making a determination under subsection (4) in relation to
an application, or a proposal, for the revocation of an authorization
and the substitution of another, the Commission must comply with
the requirements of section 90A.
Note: Alternatively, the Commission may rely on consultations undertaken
by the AEMC: see section 90B.
(6) For the purposes of complying with section 90A in accordance
with subsection (5), section 90A has effect:
(a) as if the reference in subsection (1) to an application for an
authorization (other than an application for an authorization
under subsection 88(9)) were a reference to an application, or
to a proposal, for the revocation of an authorization (other
than an authorization granted on an application granted under
subsection 88(9)) and the substitution of another
authorization; and
(b) as if references in other provisions of that section to an
application, or to an application for an authorization, were
references either to an application, or to a proposal, for the
revocation of an authorization and the substitution of another;
and
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(c) as if subsection 90A(2) had provided, in its operation in
relation to a proposal for the revocation of an authorization
and the substitution of another, that:
(i) the reference to the applicant and to each other
interested person were a reference only to each
interested person; and
(ii) each reference to the applicant or other person were a
reference only to the other person.
(7) The Commission must not make a determination revoking an
authorization and substituting another authorization unless the
Commission is satisfied that it would not be prevented under
subsection 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) or (9)
from making a determination granting the substituted
authorization, if it were a new authorization sought under
section 88.
(8) An application for the revocation of an authorization and the
substitution of another authorization may be withdrawn by notice
in writing to the Commission at any time.
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Division 2 Notifications
Section 93
476 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 2—Notifications
Subdivision A—Exclusive dealing and private disclosure of
pricing information
93 Notification of exclusive dealing or private disclosure of pricing
information
(1) Subject to subsection (2), a corporation that engages, or proposes
to engage, in conduct of a kind referred to in section 44ZZW or
subsection 47(2), (3), (4), (5), (6), (7), (8) or (9) may give to the
Commission a notice setting out particulars of the conduct or
proposed conduct.
(1A) To be valid, a notice under subsection (1) must:
(a) be in a form prescribed by the regulations and contain the
information required by the form; and
(b) be accompanied by any other information or documents
prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the
regulations.
(2) A corporation may not give a notice for conduct or proposed
conduct if:
(a) the corporation applied for an authorisation for the conduct
or proposed conduct; and
(b) the Commission or the Trade Practices Commission made a
determination dismissing the application; and
(c) either:
(i) the Tribunal or the Trade Practices Tribunal made a
determination on an application for a review of a
determination described in paragraph (b); or
(ii) the time for making such an application for review has
ended without the making of an application.
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Section 93
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(2A) In subsection (2):
Trade Practices Commission means the Trade Practices
Commission established by section 6A of this Act as in force
immediately before this subsection commenced.
Trade Practices Tribunal means the Trade Practices Tribunal
continued in existence by section 30 of this Act as in force
immediately before this subsection commenced.
(2B) If the Commission receives a purported notice under subsection (1)
that it considers is not a valid notice, it must, within 5 business
days of receiving the purported notice, give the person who made
the purported notice a written notice:
(a) stating that the person has not given a valid notice; and
(b) giving reasons why the purported notice does not comply
with this Division.
Definition
(2C) In subsection (2B):
business day means a day that is not a Saturday, a Sunday or a
public holiday in the Australian Capital Territory.
(3) If the Commission is satisfied that the engaging by a corporation in
conduct or proposed conduct of a kind described in
subsection 47(2), (3), (4) or (5) or paragraph 47(8)(a) or (b) or
(9)(a), (b) or (c) and referred to in a notice given by the corporation
to the Commission under subsection (1) has or would have the
purpose or has or is likely to have, or would have or be likely to
have, the effect of substantially lessening competition within the
meaning of section 47 and that in all the circumstances:
(a) the conduct has not resulted or is not likely to result, or the
proposed conduct would not result or be likely to result, in a
benefit to the public; or
(b) any benefit to the public that has resulted or is likely to result
from the conduct, or would result or be likely to result from
the proposed conduct, would not outweigh the detriment to
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Section 93
478 Competition and Consumer Act 2010
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the public constituted by any lessening of competition that
has resulted or is likely to result from the conduct or would
result or be likely to result from the proposed conduct;
the Commission may at any time give notice in writing to the
corporation stating that the Commission is so satisfied and
accompanied by a statement setting out its reasons for being so
satisfied.
(3A) If:
(a) a corporation has notified the Commission under
subsection (1) of conduct or proposed conduct described in
section 44ZZW, subsection 47(6) or (7) or
paragraph 47(8)(c) or (9)(d); and
(b) the Commission is satisfied that the likely benefit to the
public from the conduct or proposed conduct will not
outweigh the likely detriment to the public from the conduct
or proposed conduct;
the Commission may give the corporation a written notice stating
that the Commission is so satisfied.
(3B) The Commission must also give the corporation a written
statement of its reasons for giving notice when the Commission
gives the notice.
(4) Before giving a notice under subsection (3) or (3A) the
Commission shall comply with the requirements of section 93A.
(5) In satisfying itself for the purposes of subsection (3) or (3A) in
relation to any conduct or proposed conduct referred to in a notice
given to the Commission by a corporation under subsection (1), the
Commission shall seek such relevant information as it considers
reasonable and appropriate and may make a decision on the basis
of any information so obtained and any other information furnished
to it by the corporation or any other person or otherwise in its
possession.
(6) A corporation that has given a notice to the Commission under this
section in relation to any conduct or proposed conduct may, at any
time before the Commission has given to the corporation a notice
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Section 93
Competition and Consumer Act 2010 479
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under subsection (3) or (3A) in relation to the conduct or proposed
conduct, by notice in writing to the Commission, withdraw the
first-mentioned notice.
(7) Where a corporation has given notice to the Commission under
subsection (1):
(a) in the case of a notice given before the expiration of the
period of 3 months commencing on the date of
commencement of the Trade Practices Amendment Act 1977,
the engaging by the corporation in the conduct referred to in
the notice on or after that date and before the giving of the
notice shall not be taken, for the purposes of section 47, to
have had the effect of substantially lessening competition
within the meaning of that section; and
(b) in any case, the engaging by the corporation in the conduct
referred to in the notice after the giving of the notice shall not
be taken, for the purposes of section 47, to have the purpose,
or to have or be likely to have the effect, of substantially
lessening competition within the meaning of that section
unless:
(i) the Commission has given notice to the corporation
under subsection (3) of this section in relation to the
conduct and the conduct takes place more than 30 days
(or such longer period as the Commission by writing
permits) after the day on which the Commission gave
the notice; or
(ii) the notice has been, or is deemed to have been,
withdrawn and the conduct takes place after the day on
which the notice was, or is deemed to have been,
withdrawn.
(7A) A notice under subsection (1) describing conduct or proposed
conduct referred to in section 44ZZW, subsection 47(6) or (7) or
paragraph 47(8)(c) or (9)(d) comes into force:
(a) at the end of a prescribed period that started on the day when
the corporation gave the Commission the notice; or
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480 Competition and Consumer Act 2010
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(b) if the Commission gives notice to the corporation under
subsection 93A(2) during that period—when the Commission
decides not to give the corporation a notice under
subsection (3A) of this section.
(7B) A notice under subsection (1) describing conduct or proposed
conduct referred to in section 44ZZW, subsection 47(6) or (7) or
paragraph 47(8)(c) or (9)(d) does not come into force:
(a) if the notice is withdrawn, or deemed to be withdrawn, before
it would come into force under subsection (7A); or
(b) if the Commission:
(i) gives notice to the corporation under subsection 93A(2)
during the period described in paragraph (7A)(a); and
(ii) gives notice to the corporation under subsection (3A).
(7C) A notice under subsection (1) describing conduct referred to in
section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or
(9)(d) ceases to be in force:
(a) when the notice is withdrawn or deemed to be withdrawn; or
(b) if the Commission gives the corporation a notice under
subsection (3A)—on the 31st day after the Commission gave
the notice under subsection (3A) or on a later day specified in
writing by the Commission.
(8) Where:
(a) a corporation gives a notice to the Commission under
subsection (1) in relation to any conduct or proposed
conduct;
(b) before or after the notice is given the corporation makes an
application to the Commission for an authorization to engage
in that conduct;
(c) the Commission:
(i) makes a determination dismissing the application; or
(ii) makes a determination granting an authorization in
respect of the application; and
(d) the Tribunal makes a determination on an application for a
review of the determination of the Commission or the time
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Section 93
Competition and Consumer Act 2010 481
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for making such an application for review expires without an
application for review having been made;
the notice shall thereupon be deemed to be withdrawn.
(9) If an application is made to the Tribunal for a review of the giving
of a notice by the Commission under subsection (3) or (3A), a
reference in subsection (7) or paragraph (7C)(b) to the day on
which the Commission gave the notice shall be read as a reference
to:
(a) if the application is withdrawn—the day on which the
application is withdrawn;
(b) if the Tribunal, on the application of the Commission or of
any other person who the Tribunal is satisfied has an interest
in the subject matter of the review, declares that the
application for the review is not being proceeded with by the
applicant with due diligence—the day on which the Tribunal
makes the declaration; or
(c) in any other case—the day on which the Tribunal makes a
determination on the review.
(10) Where:
(a) a corporation has given a notice to the Commission under
subsection (1) in relation to conduct or proposed conduct and
the Commission has given notice to the corporation in
writing under subsection (3) or (3A) in relation to the
conduct or the proposed conduct; or
(b) a notice given by a corporation to the Commission under
subsection (1) in relation to conduct or proposed conduct is
withdrawn or deemed to be withdrawn;
the corporation is not entitled to give a further notice under
subsection (1) to the Commission in relation to the same conduct
or proposed conduct or in relation to conduct or proposed conduct
to the like effect.
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Section 93AA
482 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Subdivision B—Collective bargaining
93AA Definitions
In this Subdivision:
collective bargaining notice means a notice under
subsection 93AB(1A) or (1).
conference notice means a notice under subsection 93A(2).
contract means a contract, arrangement or understanding.
objection notice means a notice under subsection 93AC(1) or (2).
93AB Notification of collective bargaining
Notice to Commission—cartel provisions
(1A) A corporation that:
(a) has made, or proposes to make, a contract (the initial
contract) that contains a cartel provision that:
(i) has the purpose; or
(ii) has or is likely to have the effect;
mentioned in subsection 44ZZRD(2); or
(b) has made, or proposes to make, a contract (the initial
contract) that contains a cartel provision that has the purpose
mentioned in a paragraph of subsection 44ZZRD(3) other
than paragraph (c); or
(c) proposes to give effect to a provision of a contract (the initial
contract) where the provision is a cartel provision that:
(i) has the purpose; or
(ii) has or is likely to have the effect;
mentioned in subsection 44ZZRD(2); or
(d) proposes to give effect to a provision of a contract (the initial
contract) where the provision is a cartel provision that has
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Section 93AB
Competition and Consumer Act 2010 483
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
the purpose mentioned in a paragraph of
subsection 44ZZRD(3) other than paragraph (c);
may give the Commission a notice (the collective bargaining
notice) setting out particulars of the contract or proposed contract,
but only if the 3 requirements set out in subsections (2), (3) and (4)
are satisfied.
Note 1: Subsection (6) deals with the form etc. of a collective bargaining
notice.
Note 2: Section 93AD sets out when a collective bargaining notice comes into
force.
Notice to Commission—per se and competition provisions
(1) A corporation that:
(a) has made, or proposes to make, a contract (the initial
contract) containing a provision of the kind referred to in
paragraph 45(2)(a); or
(b) proposes to give effect to a provision of a contract (the initial
contract) where the provision is of the kind referred to in
paragraph 45(2)(b);
may give the Commission a notice (the collective bargaining
notice) setting out particulars of the contract or proposed contract,
but only if the 3 requirements set out in subsections (2), (3) and (4)
are satisfied.
Note 1: Subsection (6) deals with the form etc. of a collective bargaining
notice.
Note 2: Section 93AD sets out when a collective bargaining notice comes into
force.
First—making of initial contract
(2) First, the corporation must have made, or propose to make, the
initial contract with 1 or more persons (the contracting parties)
about:
(a) the supply of particular goods or services to; or
(b) the acquisition of particular goods or services from;
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Section 93AB
484 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
another person (the target) by the corporation and the contracting
parties.
Second—making of contracts with target
(3) Second, the corporation must reasonably expect that it will make 1
or more contracts with the target about:
(a) the supply of 1 or more of those goods or services to; or
(b) the acquisition of 1 or more of those goods or services from;
the target by the corporation.
Third—price of contracts with target
(4) Third, the corporation must reasonably expect that:
(a) in the case where the corporation reasonably expects to make
only 1 contract with the target—the price for the supply or
acquisition of those goods or services under that contract; or
(b) in the case where the corporation reasonably expects to make
2 or more contracts with the target—the sum of the prices for
the supply or acquisition of those goods or services under
those contracts;
will not exceed $3,000,000, or such other amount as is prescribed
by the regulations, in any 12 month period. The regulations may
prescribe different amounts in relation to different industries.
Timing of reasonable expectation
(5) The corporation must have the reasonable expectation referred to
in subsections (3) and (4):
(a) at the time of giving the collective bargaining notice; and
(b) if the initial contract has been made—at the time it was
made.
Form of notice etc.
(6) To be valid, a collective bargaining notice must:
(a) be in a form prescribed by the regulations and contain the
information required by the form; and
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Section 93AB
Competition and Consumer Act 2010 485
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(b) be accompanied by any other information or documents
prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the
regulations.
Notice given by, or on behalf of, contracting persons
(7) A collective bargaining notice may be expressed to be given on
behalf of one or more of the contracting parties, but only if those
parties could have given the notice on their own behalf. If the
notice is so expressed, then it is also taken to have been given by
those parties.
When a notice may not be given
(8) A corporation may not give a collective bargaining notice in
relation to a contract or proposed contract if:
(a) it has applied for an authorisation in relation to the contract
or proposed contract; and
(b) the Commission has made a determination dismissing the
application; and
(c) either:
(i) the Tribunal has made a determination on an application
for a review of the Commission’s determination; or
(ii) the time for making such an application for review has
ended without the making of an application.
Notice is invalid if given by union etc. on behalf of the corporation
(9) A notice given by a corporation under subsection (1) is not a valid
collective bargaining notice if it is given, on behalf of the
corporation, by:
(a) a trade union; or
(b) an officer of a trade union; or
(c) a person acting on the direction of a trade union.
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486 Competition and Consumer Act 2010
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Invalid collective bargaining notice
(10) If the Commission receives a purported collective bargaining
notice that it considers is not a valid collective bargaining notice, it
must, within 5 business days of receiving the purported notice, give
the person who made the purported notice a written notice:
(a) stating that the person has not given a valid collective
bargaining notice; and
(b) giving reasons why the purported collective bargaining
notice does not comply with this Division.
(10A) The Commission must, as soon as practicable after receiving a
valid collective bargaining notice, give a copy of the notice to the
target.
Purpose/effect of a provision
(10B) Subsections 44ZZRD(6), (7), (8) and (10) apply for the purposes of
paragraphs (1A)(a) and (c) in a corresponding way to the way in
which they apply for the purposes of Division 1 of Part IV.
Purpose of a provision
(10C) Subsections 44ZZRD(7), (9) and (11) apply for the purposes of
paragraphs (1A)(b) and (d) in a corresponding way to the way in
which they apply for the purposes of Division 1 of Part IV.
Definition
(11) In this section:
business day means a day that is not a Saturday, a Sunday or a
public holiday in the Australian Capital Territory.
trade union means the following:
(a) an association of employees that is registered as an
organisation, or recognised, under the Fair Work (Registered
Organisations) Act 2009;
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Section 93AC
Competition and Consumer Act 2010 487
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(b) an association of employees that is registered or recognised
as a trade union (however described) under the law of a State
or Territory;
(c) an association of employees a principal purpose of which is
the protection and promotion of the employees’ interests in
matters concerning their employment.
93AC Commission’s objection notice
Commission’s objection notice—cartel provisions or per se
provisions
(1) If a corporation gives the Commission:
(aa) a collective bargaining notice under subsection 93AB(1A) in
relation to a contract, or proposed contract, containing a
cartel provision of the kind referred to in that subsection; or
(a) a collective bargaining notice under subsection 93AB(1) in
relation to a contract, or proposed contract, containing a
provision of the kind referred to in subparagraph 45(2)(a)(i)
or (b)(i) (exclusionary provisions);
then the Commission may, if it is satisfied that any benefit to the
public that has resulted or is likely to result or would result or be
likely to result from the provision does not or would not outweigh
the detriment to the public that has resulted or is likely to result or
would result or be likely to result from the provision, give the
corporation a written notice (the objection notice) stating that it is
so satisfied.
Commission’s objection notice—competition provisions
(2) If a corporation gives the Commission a collective bargaining
notice under subsection 93AB(1) in relation to a contract, or
proposed contract, containing a provision of the kind referred to in
subparagraph 45(2)(a)(ii) or (b)(ii), then the Commission may, if it
is satisfied that:
(a) the provision has or would have the purpose, or has or is
likely to have or would have or be likely to have the effect, of
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Section 93AC
488 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
substantially lessening competition (within the meaning of
section 45); and
(b) in all the circumstances, either:
(i) the provision has not resulted or is not likely to result, or
would not result or be likely to result, in a benefit to the
public; or
(ii) any benefit to the public that has resulted or is likely to
result, or would result or be likely to result, from the
provision does not or would not outweigh the detriment
to the public constituted by any lessening of competition
that has resulted or is likely to result, or would result or
be likely to result, from the provision;
give the corporation a written notice (the objection notice) stating
that it is so satisfied.
Reasons for objection notice
(3) The Commission must, at the time it gives a corporation an
objection notice, give the corporation a written statement of its
reasons for giving the notice.
Conference before objection notice
(4) The Commission must comply with section 93A (conferences
about draft objection notices) before giving an objection notice.
Commission to seek additional information
(5) For the purposes of deciding whether or not to give an objection
notice:
(a) the Commission must seek such relevant information as it
considers reasonable and appropriate; and
(b) the Commission may make a decision on the basis of:
(i) any information so obtained; or
(ii) any other information given to it by the corporation or
any other person; or
(iii) any other information in its possession.
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Section 93AD
Competition and Consumer Act 2010 489
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
93AD When collective bargaining notice comes into force and ceases
to be in force
When collective bargaining notice comes into force
(1) A collective bargaining notice comes into force:
(a) at the end of the period which is 14 days or such longer
period as is prescribed by the regulations, starting on the day
the corporation gave the Commission the notice; or
(b) if the Commission gives the corporation a conference notice
during the period referred to in paragraph (a) and then
decides not to give the corporation an objection notice—
when the Commission makes that decision.
(2) However, a collective bargaining notice does not come into force
if:
(a) it is withdrawn, or taken to be withdrawn, before it would
come into force under subsection (1); or
(b) the Commission gives the corporation a conference notice
during the period referred to in paragraph (1)(a) and then
gives the corporation an objection notice.
Note: Section 93AE deals with the withdrawal of a collective bargaining
notice.
When collective bargaining notice ceases to be in force
(3) A collective bargaining notice ceases to be in force at the earliest
of the following times:
(a) when it is withdrawn or taken to be withdrawn;
(b) if the Commission gives the corporation an objection
notice—on the 31st day after the relevant day or on a later
day specified in writing by the Commission;
(c) at the end of the period of 3 years beginning on the day the
corporation gave the collective bargaining notice.
Note: Section 93AE deals with the withdrawal of a collective bargaining
notice.
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Section 93AE
490 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(4) For the purposes of subsection (3), the relevant day is worked out
in accordance with this table:
Relevant day
In this situation: the relevant day is:
1 If an application is not made to the
Tribunal for a review of the
Commission’s decision to give the
objection notice
the day the Commission gave the notice.
2 If an application is made to the
Tribunal for a review of the
Commission’s decision to give the
objection notice
(a) if the review application is
withdrawn—the day of the
withdrawal; or
(b) if, on the application of the
Commission or any other person who
the Tribunal is satisfied has an
interest in the subject matter of the
review, the Tribunal declares that the
applicant is not proceeding with the
review application with due
diligence—the day of the declaration;
or
(c) in any other case—the day on which
the Tribunal makes a determination
on the review.
93AE Withdrawal of collective bargaining notice
Withdrawal by corporation
(1) A corporation may, by written notice given to the Commission,
withdraw a collective bargaining notice it has given the
Commission.
(2) The corporation may do so at any time before the Commission
gives it an objection notice in relation to the collective bargaining
notice.
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Section 93AEA
Competition and Consumer Act 2010 491
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Deemed withdrawal
(3) If:
(a) a corporation gives the Commission a collective bargaining
notice in relation to a contract or proposed contract; and
(b) before or after the corporation gave the notice, it applies to
the Commission for an authorisation for that contract or
proposed contract; and
(c) the Commission makes a determination either dismissing the
application or granting an authorisation in respect of the
application; and
(d) either:
(i) the Tribunal makes a determination on an application
for a review of the Commission’s determination; or
(ii) the time for making such an application for review ends
without the making of an application;
then the collective bargaining notice is taken to be withdrawn.
93AEA Only 1 collective bargaining notice under
subsection 93AB(1A) may be given
If:
(a) a corporation gives the Commission a collective bargaining
notice under subsection 93AB(1A) in relation to a contract or
proposed contract; and
(b) either:
(i) the Commission gives the corporation an objection
notice in relation to the contract or proposed contract; or
(ii) the collective bargaining notice is taken to be withdrawn
under subsection 93AE(3);
then a further collective bargaining notice under
subsection 93AB(1A) cannot be given by any person in relation to
the same contract or proposed contract or in relation to a contract
or proposed contract to the like effect.
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Section 93AF
492 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
93AF Only 1 collective bargaining notice under subsection 93AB(1)
may be given
If:
(a) a corporation gives the Commission a collective bargaining
notice under subsection 93AB(1) in relation to a contract or
proposed contract; and
(b) either:
(i) the Commission gives the corporation an objection
notice in relation to the contract or proposed contract; or
(ii) the collective bargaining notice is taken to be withdrawn
under subsection 93AE(3);
then the corporation may not give the Commission a further
collective bargaining notice under subsection 93AB(1) in relation
to the same contract or proposed contract or in relation to a
contract or proposed contract to the like effect.
Subdivision C—Conferences
93A Commission to afford opportunity for conference before giving
notice
(1) Before giving a notice under subsection 93(3) or (3A) or 93AC(1)
or (2) in relation to any conduct or proposed conduct, the
Commission shall prepare a draft notice in relation to that conduct
or proposed conduct.
(2) The Commission shall, by notice in writing sent to the corporation
to the conduct or proposed conduct of which the draft notice relates
and to each other interested person, invite the corporation or other
person to notify the Commission, within 14 days after a date fixed
by the Commission being not earlier than the day on which the
notice is sent, whether the corporation or other person wishes the
Commission to hold a conference in relation to the draft notice.
(3) The Commission shall send with each notice under subsection (2) a
copy of the draft notice and a summary of the reasons why it
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Section 93A
Competition and Consumer Act 2010 493
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proposes to give the notice under subsection 93(3) or (3A) or
93AC(1) or (2).
(4) If each of the persons to whom a notice was sent under
subsection (2):
(a) notifies the Commission in writing within the period of
14 days mentioned in that subsection that the person does not
wish the Commission to hold a conference in relation to the
draft notice; or
(b) does not notify the Commission within that period that he or
she wishes the Commission to hold such a conference;
the Commission must decide after the end of that period whether or
not to give the notice under subsection 93(3) or (3A) or 93AC(1) or
(2).
(5) If any of the persons to whom a notice was sent under
subsection (2) notifies the Commission in writing within the period
of 14 days mentioned in that subsection that he or she wishes the
Commission to hold a conference in relation to the draft notice, the
Commission shall appoint a date (being not later than 30 days after
the expiration of that period), time and place for the holding of the
conference and give notice of the date, time and place so appointed
to each of the persons to whom a notice was sent under
subsection (2).
(6) At the conference:
(a) the Commission shall be represented by a member or
members of the Commission (being a member or members
who participated in the preparation of the draft notice)
nominated by the Chairperson; and
(b) each person to whom a notice was sent under subsection (2)
and any other interested person whose presence at the
conference is considered by the Commission to be
appropriate is entitled to attend and participate personally or,
in the case of a body corporate, may be represented by a
person who, or by persons each of whom, is a director,
officer or employee of the body corporate; and
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494 Competition and Consumer Act 2010
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(c) a person participating in the conference in accordance with
paragraph (a) or (b) is entitled to have another person or other
persons present to assist him or her but a person who so
assists another person at the conference is not entitled to
participate in the discussion; and
(e) no other person is entitled to be present.
(7) A member of the Commission participating in the conference shall
make such record of the discussions as is sufficient to set out the
matters raised by the persons participating in the conference.
(8) The member of the Commission who represents the Commission at
the conference, or, if the Commission is represented by more than
one member of the Commission, one of those members appointed
by the Chairperson:
(a) may exclude from the conference any person who uses
insulting language at the conference, creates, or takes part in
creating or continuing, a disturbance at the conference or
repeatedly interrupts the conference;
(b) may terminate the conference when he or she is of the
opinion that a reasonable opportunity has been given for the
expression of the views of persons participating in the
conference (other than persons excluded from the conference
under paragraph (a)); and
(c) shall give a certificate certifying the day on which the first
notification under subsection (5) in relation to the draft notice
was received by the Commission and the day on which the
conference terminated;
and any such certificate shall be received in all courts as prima
facie evidence of the matters certified.
(9) A document purporting to be a certificate referred to in
subsection (8) shall, unless the contrary is established, be deemed
to be such a certificate and to have been duly given.
(10) The Commission must take account of all matters raised at the
conference.
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Section 95
Competition and Consumer Act 2010 495
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(10A) After the conference, the Commission must decide whether or not
to give a notice under subsection 93(3) or (3A) or 93AC(1) or (2).
(11) For the purposes of this section, interested person means a person
who has notified the Commission in writing that he or she, or a
specified unincorporated association of which he or she is a
member, claims to have an interest in the matter, being an interest
that, in the opinion of the Commission, is real and substantial.
(12) Where the Commission is of the opinion that two or more notices
given to the Commission under subsection 93(1) or 93AB(1A) or
(1) by the same person, or by persons being bodies corporate that
are related to each other, deal with substantially similar conduct or
proposed conduct, the Commission may treat the notices as if they
constituted a single notice and may prepare one draft notice in
relation to the notices so given to the Commission and hold one
conference in relation to that draft notice.
Subdivision D—Register of notifications
95 Register of notifications
(1) The Commission shall keep a register containing:
(aa) notices relating to voluntary industry codes given to the
Commission pursuant to regulations made under
section 51AE (including notices that have been withdrawn
pursuant to those regulations); and
(a) draft notices, and summaries of reasons, by the Commission
furnished to any person under section 93A; and
(b) records of conferences made in accordance with
subsection 93A(7) and certificates in relation to conferences
given under subsection 93A(8); and
(c) notices (including notices that have been withdrawn) given to
the Commission under section 93 or 93AB; and
(d) documents furnished to the Commission in relation to such
notices; and
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Section 95
496 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(e) particulars of any oral submissions made to the Commission
in relation to such notices; and
(f) particulars of notices given by the Commission to
corporations in relation to notices given by corporations
under section 93 or 93AB; and
(g) particulars of any permits given by the Commission under
subparagraph 93(7)(b)(i); and
(ga) details of the specification of any day by the Commission
under paragraph 93(7C)(b); and
(gb) details of the specification of any day by the Commission
under paragraph 93AD(3)(b); and
(h) records of proceedings at conferences held under section 65J
or 65M; and
(j) particulars of recommendations made to the Minister by the
Commission under section 65K or 65N.
(2) Where a person furnishes a document to the Commission:
(a) in relation to a notice given to the Commission under
section 93 or 93AB; or
(b) in relation to a conference held under Division 3 of Part XI;
or makes an oral submission to the Commission in relation to the
notice or the conference, he or she may, at the time when the
document is furnished or the submission is made, request that the
document or a part of the document, or that particulars of the
submission or of part of the submission, be excluded from the
register kept under subsection (1) by reason of the confidential
nature of any of the matters contained in the document or
submission.
(3) Where such a request is made:
(a) if the document or part of the document, or the submission or
part of the submission, to which the request relates contains
particulars of:
(i) a secret formula or process;
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Section 95
Competition and Consumer Act 2010 497
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(ii) the cash consideration offered for the acquisition of
shares in the capital of a body corporate or of assets of a
person; or
(iii) the current costs of manufacturing, producing or
marketing goods or services;
the Commission shall exclude the document or the part of the
document, or particulars of the submission or of the part of
the submission, as the case may be, from the register kept
under subsection (1); and
(b) in any other case—the Commission may, if it is satisfied that
it is desirable to do so by reason of the confidential nature of
matters contained in the document or the part of the
document, or in the submission or the part of the submission,
exclude the document or the part of the document, or
particulars of the submission or of the part of the submission,
as the case may be, from that register.
(4) If the Commission refuses a request to exclude a document or a
part of a document from the register kept under subsection (1), the
Commission shall, if the person who furnished the document to the
Commission so requires, return the document or part of the
document to him or her and, in that case, paragraph (1)(d) does not
apply in relation to the document or part of the document.
(5) Subsection (4) does not apply in relation to a document that was
produced to the Minister or the Commission in pursuance of a
notice under section 65Q or 155.
(6) If the Commission refuses a request to exclude particulars of an
oral submission or of part of an oral submission from the register
kept under subsection (1), the person who made the submission
may inform the Commission that he or she withdraws the
submission or that part of the submission and, in that case,
paragraph (1)(e) does not apply in relation to the submission or that
part of the submission, as the case may be.
(7) Where the Commission is satisfied that it is desirable to do so for
any reason other than the confidential nature of matters contained
in a document or submission, the Commission may exclude a
document or part of a document referred to in paragraph (1)(d) or
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Section 95
498 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
particulars referred to in paragraph (1)(e) from the register kept
under subsection (1).
(8) If a person requests in accordance with subsection (2) that a
document or part of a document, or that particulars of a submission
or of part of a submission, be excluded from the register kept under
subsection (1), the document or the part of the document, or
particulars of the submission or of the part of the submission, shall
not be included in that register until the Commission has made a
determination in relation to the request.
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Merger clearances and authorisations Division 3
Section 95AA
Competition and Consumer Act 2010 499
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 3—Merger clearances and authorisations
Subdivision A—Preliminary
95AA Simplified outline of this Division
This Division is about merger clearances and merger
authorisations.
It relates to section 50: that section prohibits a person acquiring
shares in the capital of a body corporate or assets of another person
if the acquisition would have, or be likely to have, the effect of
substantially lessening competition in a market. If a person has a
clearance or authorisation for the acquisition, section 50 will not
prevent the person from making the acquisition.
The main differences between merger clearances and
authorisations are:
• different bodies decide whether they should be granted;
• different timeframes apply for when the body must make its
decision;
• they have different tests that need to be satisfied for them to
be granted;
• merits review is not available for decisions on authorisations.
For merger clearances (see Subdivision B):
• the Commission grants them;
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Section 95AB
500 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
• it must make its decision whether to grant within 40 business
days (which can be extended if the applicant agrees or the
Commission so decides), and if it does not, the application is
taken to be refused;
• it cannot grant the clearance unless it is satisfied that the
acquisition would not have the effect, or be likely to have the
effect, of substantially lessening competition in a market;
• if it refuses to grant a clearance, or grants a clearance subject
to conditions, then the person who applied for the clearance
may apply to the Tribunal under Division 3 of Part IX for
review of the Commission’s decision.
For merger authorisations (see Subdivision C):
• the Tribunal grants them;
• it must make its decision whether to grant within 3 months
(which can be extended to 6 months in special circumstances),
and if it does not, the application is taken to be refused;
• it cannot grant the authorisation unless it is satisfied that the
acquisition would result, or be likely to result, in such a
benefit to the public that the acquisition should be allowed to
take place.
Subdivision D contains a prohibition on providing false or
misleading information to the Commission or Tribunal under this
Division or Division 3 of Part IX.
95AB Definitions
In this Division:
authorisation means an authorisation granted under this Division.
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Section 95AC
Competition and Consumer Act 2010 501
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
business day means a day that is not a Saturday, a Sunday, or a
public holiday in the Australian Capital Territory.
clearance means a clearance granted under this Division.
merger authorisation register means the register kept under
section 95AZ.
merger clearance register means the register kept under
section 95AH.
minor variation, in relation to a clearance or an authorisation, is a
single variation that does not involve a material change in the
effect of the clearance or authorisation.
Subdivision B—Merger clearances
95AC Commission may grant clearance for a merger
(1) The Commission may grant a clearance to a person:
(a) to acquire shares in the capital of a body corporate; or
(b) to acquire assets of another person.
Note: Section 95AN prohibits the Commission from granting a clearance for
an acquisition unless the Commission is satisfied that the acquisition
would not have the effect, or be likely to have the effect, of
substantially lessening competition.
(2) If the Commission does so, then section 50 does not prevent the
person from acquiring the shares or assets in accordance with the
clearance.
Note: The acquisition will only be protected from the operation of section 50
if it takes place in accordance with the clearance. If it does not, then
section 50 will apply to the acquisition. If the acquisition contravenes
section 50, then the remedies in Part VI will apply (see, for example,
penalties under section 76 and divestiture under section 81).
(3) Without limiting subsection (2), an acquisition will not be in
accordance with a clearance if any conditions of the clearance are
not complied with (whether the conditions are to be complied with
before, during or after the acquisition).
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Section 95AD
502 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
95AD Application for clearance
A person who wants a clearance to acquire shares or assets must
apply to the Commission for it.
95AE Requirements for valid clearance application
(1) To be valid, the application must:
(a) be in a form prescribed by the regulations and contain the
information required by the form; and
(b) be accompanied by such other information or documents as
are prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the
regulations.
(2) The regulations may prescribe that the application form contain a
requirement that the applicant give an undertaking under
section 87B that the applicant will not make the acquisition while
the application is being considered by the Commission.
95AF Commission to notify if clearance application is invalid
If the Commission receives a purported application that it
considers is not a valid application, it must, within 5 business days
of receiving the purported application, give the person who made
the purported application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not
comply with this Division.
95AG Application to be published on the internet
After receiving an application for a clearance, the Commission
must:
(a) subject to section 95AI (confidentiality), put a copy of the
application, and accompanying information or documents, on
its website; and
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Section 95AH
Competition and Consumer Act 2010 503
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) by notice on its website, invite submissions in respect of the
application within the period specified by it.
95AH Merger clearance register
(1) The Commission must keep a register (the merger clearance
register) of:
(a) applications for clearances; and
(b) applications for minor variations of clearances; and
(c) applications for, or the Commission’s proposals under
section 95AS for, the revocation of clearances or for the
revocation of clearances and the substitution of other
clearances;
including applications that have been withdrawn or proposals that
have been abandoned.
(2) The register must include:
(a) any document given to the Commission in relation to an
application or proposal referred to in subsection (1); and
(b) particulars of any oral submission made to the Commission
in relation to such an application or proposal; and
(c) the determination of the Commission on such an application
or proposal and the statement of the reasons given by the
Commission for that determination;
unless section 95AI (confidentiality) prevents the inclusion.
95AI Confidentiality claims etc.
Requests for confidential treatment
(1) If a person gives information to the Commission in relation to an
application or proposal referred to in subsection 95AH(1), the
person may, at the time of giving the information, request that the
information be excluded from the merger clearance register and the
Commission’s website because of its confidential nature.
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Section 95AI
504 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Confidentiality claims to be determined first
(2) If such a request is made, the Commission must exclude the
information from the register and its website until it has made a
determination on the request.
When Commission must exclude information—request made
(3) If such a request is made, the Commission must exclude the
information from the register and its website if the information
contains particulars of:
(a) a secret formula or process; or
(b) the cash consideration offered for the acquisition of shares in
the capital of a body corporate or assets of a person; or
(c) the current costs of manufacturing, producing or marketing
goods or services.
When Commission may exclude information—request made
(4) If such a request is made, the Commission may, if it is satisfied
that it is desirable to do so because of the confidential nature of the
information, exclude the information from the register and its
website.
If request refused, document may be withdrawn
(5) If the Commission refuses such a request and the information is
contained in a document, the Commission must, if the person who
gave the document to it so requires, return the document or part of
the document to the person. In that case, it must exclude the
document or the part of the document (as the case requires) from
the register and its website.
If request refused, oral submission may be withdrawn
(6) If the Commission refuses such a request and the information was
given by way of oral submission, the person who made the
submission may withdraw all or part of the submission. In that
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Section 95AJ
Competition and Consumer Act 2010 505
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
case, the Commission must exclude the submission or part of the
submission (as the case requires) from the register and its website.
When Commission may exclude information—no request made
(7) The Commission may exclude information from the register and its
website if it is satisfied that it is desirable to do so for any reason
other than the confidential nature of the information.
95AJ Commission may seek additional information from applicant
The Commission may give the applicant a written notice
requesting the applicant to give the Commission, within a specified
period, additional information relevant to making its determination
on the application.
95AK Commission may seek further information and consult others
(1) The Commission may give a person a written notice requesting the
person to give the Commission, within a specified period,
particular information relevant to making its determination on the
application.
(2) The Commission may consult with such persons as it considers
reasonable and appropriate for the purposes of making its
determination on the application.
95AL Applicant may withdraw application
The applicant may, by notice in writing to the Commission,
withdraw the application at any time.
95AM Commission to make determination on application
(1) The Commission must make a determination in writing:
(a) granting the clearance; or
(b) refusing to grant the clearance.
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Section 95AN
506 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Note: The Commission must make its determination within the time limit set
out in section 95AO. If it does not, then it is taken to have refused to
grant the clearance.
(2) In making its determination, the Commission must take into
account:
(a) any submissions in relation to the application made to it by
the applicant, the Commonwealth, a State, a Territory or any
other person that are received within the period specified
under paragraph 95AG(b); and
(b) any information received under section 95AJ within the
period specified in the relevant notice under that section; and
(c) any information received under subsection 95AK(1) within
the period specified in the relevant notice under that
subsection; and
(d) any information obtained from consultations under
subsection 95AK(2).
(2A) In making its determination, the Commission may disregard:
(a) any submissions in relation to the application made to it by
the applicant, the Commonwealth, a State, a Territory or any
other person that are received after the period specified under
paragraph 95AG(b); and
(b) any information received under section 95AJ after the period
specified in the relevant notice under that section; and
(c) any information received under subsection 95AK(1) after the
period specified in the relevant notice under that subsection.
(3) The Commission must notify the applicant in writing of its
determination and give written reasons for it.
95AN When clearance must not be granted
(1) The Commission must not grant a clearance in relation to a
proposed acquisition of shares or assets unless it is satisfied that
the acquisition would not have the effect, or be likely to have the
effect, of substantially lessening competition (within the meaning
of section 50).
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Section 95AO
Competition and Consumer Act 2010 507
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) To avoid doubt, a clearance cannot be granted for an acquisition
that has occurred.
95AO Time limits for determining application
(1) If the Commission has not made a determination on the application
within the period that begins on the day the application was given
to the Commission and ends on the 40th business day after that
day, the Commission is, subject to subsection (3), taken to have
made a determination refusing to grant the clearance.
(2) The applicant may, before the end of the period referred to in
subsection (1) (including any period that is taken to be substituted
for that period by any other application or applications of this
subsection), agree to the Commission taking a specified longer
period to make its determination. If the applicant does, the longer
period is taken to be substituted for the period referred to in
subsection (1).
(3) However, if before the end of the period referred to in
subsection (1) (including any period that is taken to be substituted
for that period by any other application or applications of
subsection (2)), the Commission decides that the matter cannot be
dealt with properly within that period, either because of its
complexity or because of other special circumstances, which must
be notified in writing by the Commission to the applicant, the
period is extended by a further 20 business days and the longer
period is taken to be substituted for the period referred to in
subsection (1) (or any other period that is taken to be substituted
for that period by any other application or applications of
subsection (2)).
95AP Clearance subject to conditions
(1) The Commission may grant a clearance subject to such conditions
as are specified in the clearance.
Note 1: Under subsection 95AS(5), the Commission may revoke a clearance if
a condition of the clearance has not been complied with.
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Section 95AQ
508 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Note 2: If an acquisition takes place without complying with a condition of the
clearance (whether the condition is to be complied with before, during
or after the acquisition), the acquisition will not be in accordance with
the clearance and so might contravene section 50 (see
subsections 95AC(2) and (3)). If the acquisition contravenes
section 50, then the remedies in Part VI will apply (see, for example,
penalties under section 76 and divestiture under section 81).
(2) Without limiting subsection (1), the Commission may grant a
clearance subject to the condition that the person to whom the
clearance is granted must make, and comply with, an undertaking
to the Commission under section 87B.
95AQ When clearance is in force
(1) A clearance that is not subject to conditions comes into force on
the day on which the determination granting the clearance is made.
(2) A clearance that is subject to conditions comes into force:
(a) if an application is made to the Tribunal for a review of the
Commission’s determination and the application is not
withdrawn—on the day on which the Tribunal makes a
determination on the review; or
(b) if an application is made to the Tribunal for a review of the
Commission’s determination and the application is
withdrawn—on the day on which the application is
withdrawn; or
(c) if the person to whom the clearance was given gives a notice
in writing to the Commission stating that the person will not
make an application to the Tribunal for review—on the day
on which the notice is given; or
(d) in any other case—at the end of the period in which an
application may be made to the Tribunal for review of the
determination.
(3) A clearance may be expressed to be in force for a period specified
in the clearance and, if so expressed, remains in force for that
period only.
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Merger clearances and authorisations Division 3
Section 95AR
Competition and Consumer Act 2010 509
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
95AR Minor variations of clearances
Application for variation
(1) A person to whom a clearance was granted may apply to the
Commission for a minor variation of the clearance.
Requirements for valid application
(2) To be valid, the application must:
(a) be in a form prescribed by the regulations and contain the
information required by the form; and
(b) be accompanied by such other information or documents as
are prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the
regulations.
(2A) The regulations may prescribe that the application form contain a
requirement that the applicant give an undertaking under
section 87B that the applicant will not make the acquisition while
the application is being considered by the Commission.
Commission to notify if application is invalid
(3) If the Commission receives a purported application that it
considers is not a valid application, it must, within 5 business days
of receiving the purported application, give the person who made
the purported application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not
comply with this Division.
Application to be published on the internet
(4) The Commission must, if it is satisfied that the variation sought in
the application is a minor variation:
(a) subject to section 95AI (confidentiality), put a copy of the
application on its website; and
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Section 95AR
510 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) by notice on its website, invite submissions in respect of the
application within a period specified by it.
Commission must make a determination on the application
(5) The Commission must make a determination in writing:
(a) varying the clearance; or
(b) refusing to vary the clearance.
The Commission must notify the applicant in writing of its
determination and give written reasons for it.
(5A) In making its determination, the Commission must take into
account:
(a) any submissions received within the period specified under
subsection (4); and
(b) any information received under section 95AJ within the
period specified in the relevant notice under that section (as
that section applies because of subsection (11) of this
section); and
(c) any information received under subsection 95AK(1) within
the period specified in the relevant notice under that
subsection (as that subsection applies because of
subsection (11) of this section); and
(d) any information obtained from consultations under
subsection 95AK(2) (as that subsection applies because of
subsection (11) of this section).
(5B) In making its determination, the Commission may disregard:
(a) any submissions received after the period specified under
subsection (4); and
(b) any information received under section 95AJ after the period
specified in the relevant notice under that section (as that
section applies because of subsection (11) of this section);
and
(c) any information received under subsection 95AK(1) after the
period specified in the relevant notice under that
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Section 95AR
Competition and Consumer Act 2010 511
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
subsection (as that subsection applies because of
subsection (11) of this section).
When variation must not be granted
(6) The Commission must not make a determination varying a
clearance unless it is satisfied that the acquisition to which the
clearance (as varied) would apply would not have the effect, or be
likely to have the effect, of substantially lessening competition
(within the meaning of section 50).
Determination varying clearance may also vary clearance
conditions
(6A) A determination varying a clearance may also vary the conditions
(if any) of the clearance to take account of the variation of the
clearance.
Time limits for determining application
(7) If the Commission has not made a determination on the application
within the period that begins on the day the application was given
to the Commission and ends on the 40th business day after that
day, the Commission is, subject to subsection (8A), taken to have
made a determination refusing to vary the clearance.
(8) The applicant may, before the end of the period referred to in
subsection (7) (including any period that is taken to be substituted
for that period by any other application or applications of this
subsection), agree to the Commission taking a specified longer
period to make its determination. If the applicant does, the longer
period is taken to be substituted for the period referred to in
subsection (7).
(8A) However, if before the end of the period referred to in
subsection (7) (including any period that is taken to be substituted
for that period by any other application or applications of
subsection (8)), the Commission decides that the matter cannot be
dealt with properly within that period, either because of its
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Section 95AR
512 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
complexity or because of other special circumstances, which must
be notified in writing by the Commission to the applicant, the
period is extended by a further 20 business days and the longer
period is taken to be substituted for the period referred to in
subsection (7) (or any other period that is taken to be substituted
for that period by any other application or applications of
subsection (8)).
2 or more variations at the same time
(9) If:
(a) a person applies for 2 or more variations:
(i) at the same time; or
(ii) in such close succession that the variations could
conveniently be dealt with by the Commission at the
same time; and
(b) the Commission is satisfied that the combined effect of those
variations, if all were granted, would not involve a material
change in the effect of the clearance;
the Commission may deal with all of those variations together as if
they were a single minor variation.
Applicant may withdraw application
(10) The applicant may, by notice in writing to the Commission,
withdraw the application at any time.
Powers of Commission
(11) The following sections apply in relation to an application for a
minor variation of a clearance in the same way as they apply in
relation to an application for a clearance:
(a) section 95AJ (Commission may seek additional information
from applicant);
(b) section 95AK (Commission may seek further information
and consult others).
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Section 95AS
Competition and Consumer Act 2010 513
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
95AS Revocation of clearance or revocation of clearance and
substitution of a new clearance
Application for revocation etc.
(1) The Commission may revoke a clearance, or revoke a clearance
and substitute a new clearance, if the person to whom the clearance
was granted applies to the Commission for this to occur.
Requirements for valid application
(2) To be valid, the application must:
(a) be in a form prescribed by the regulations and contain the
information required by the form; and
(b) be accompanied by such other information or documents as
are prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the
regulations.
(2A) The regulations may prescribe that the application form contain a
requirement that the applicant give an undertaking under
section 87B that the applicant will not make the acquisition while
the application is being considered by the Commission.
Commission to notify if application is invalid
(3) If the Commission receives a purported application that it
considers is not a valid application, it must, within 5 business days
of receiving the purported application, give the person who made
the purported application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not
comply with this Division.
Application to be published on the internet
(4) The Commission must:
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Division 3 Merger clearances and authorisations
Section 95AS
514 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) subject to section 95AI (confidentiality), put a copy of the
application on its website; and
(b) by notice on its website, invite submissions in respect of the
application within a period specified by it.
Commission’s power to revoke etc. where no application
(5) The Commission may also revoke a clearance, or revoke a
clearance and substitute a new clearance, if it is satisfied that:
(a) the clearance was granted on the basis of information that
was false or misleading in a material particular; or
(b) a condition of the clearance has not been complied with; or
(c) there has been a material change of circumstances since the
clearance was granted.
Commission to give notice
(6) If the Commission is considering making a determination under
subsection (5), it must give a notice to the person to whom the
clearance was granted and put a notice on its website:
(a) stating that it is considering making the determination; and
(b) indicating the basis on which the determination is being
proposed; and
(c) inviting submissions in respect of the determination within
the period specified by it.
Commission must make a determination
(7) The Commission must make a determination in writing:
(a) revoking the clearance, or revoking the clearance and
substituting a new clearance for the one revoked; or
(b) refusing to revoke the clearance.
The Commission must notify, in writing, the person to whom the
clearance was granted of its determination and give written reasons
for it.
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Section 95AS
Competition and Consumer Act 2010 515
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(7A) In making its determination, the Commission must take into
account:
(a) any submissions invited under subsection (4) or (6) that are
received within the period specified under that subsection;
and
(b) any information received under section 95AJ within the
period specified in the relevant notice under that section (as
that section applies because of subsection (13) of this
section); and
(c) any information received under subsection 95AK(1) within
the period specified in the relevant notice under that
subsection (as that subsection applies because of
subsection (13) of this section); and
(d) any information obtained from consultations under
subsection 95AK(2) (as that subsection applies because of
subsection (13) of this section).
(7B) In making its determination, the Commission may disregard:
(a) any submissions invited under subsection (4) or (6) that are
received after the period specified under that subsection; and
(b) any information received under section 95AJ after the period
specified in the relevant notice under that section (as that
section applies because of subsection (13) of this section);
and
(c) any information received under subsection 95AK(1) after the
period specified in the relevant notice under that
subsection (as that subsection applies because of
subsection (13) of this section).
When revocation etc. must not be granted
(8) If an objection (other than an objection that, in the Commission’s
opinion, is vexatious or frivolous) to a revocation of a clearance is
made in a submission:
(a) that was invited under subsection (4) or (6); and
(b) that is received within the period specified;
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Section 95AS
516 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
the Commission must not make a determination revoking the
clearance unless it is satisfied that it would, if the clearance had not
already been granted, be prevented under section 95AN from
granting the clearance.
(9) The Commission must not make a determination revoking a
clearance and substituting another clearance unless it is satisfied
that it would not be prevented under section 95AN from granting
the substituted clearance, if it were a new clearance sought under
section 95AD.
Time limits for determining application
(10) If the Commission has not made a determination on an application
made under subsection (1) within the period that begins on the day
the application was given to the Commission and ends on the 40th
business day after that day, the Commission is, subject to
subsection (11A), taken to have made a determination refusing to
revoke the clearance.
(11) The applicant may, before the end of the period referred to in
subsection (10) (including any period that is taken to be substituted
for that period by any other application or applications of this
subsection), agree to the Commission taking a specified longer
period to make its determination. If the applicant does, the longer
period is taken to be substituted for the period referred to in
subsection (10).
(11A) However, if before the end of the period referred to in
subsection (10) (including any period that is taken to be substituted
for that period by any other application or applications of
subsection (11)), the Commission decides that the matter cannot be
dealt with properly within that period, either because of its
complexity or because of other special circumstances, which must
be notified in writing by the Commission to the applicant, the
period is extended by a further 20 business days and the longer
period is taken to be substituted for the period referred to in
subsection (10) (or any other period that is taken to be substituted
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Section 95AT
Competition and Consumer Act 2010 517
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
for that period by any other application or applications of
subsection (11)).
Withdrawal of application
(12) The applicant may, by notice in writing to the Commission,
withdraw the application at any time.
Powers of Commission
(13) The following sections apply in relation to an application for a
revocation, or a revocation and substitution, of a clearance in the
same way as they apply in relation to an application for a
clearance:
(a) section 95AJ (Commission may seek additional information
from applicant);
(b) section 95AK (Commission may seek further information
and consult others).
Substituted clearances
(14) The following sections apply in relation to a clearance substituted
under this section in the same way as they apply in relation to a
clearance granted under section 95AM:
(a) section 95AP (Clearance subject to conditions);
(b) section 95AQ (When clearance is in force).
Subdivision C—Merger authorisations
95AT Tribunal may grant authorisation for a merger
(1) The Tribunal may grant an authorisation to a person:
(a) to acquire shares in the capital of a body corporate; or
(b) to acquire assets of another person.
Note 1: Section 95AZH prohibits the Tribunal from granting an authorisation
for an acquisition unless the Tribunal is satisfied the acquisition would
result, or be likely to result, in such a benefit to the public that the
acquisition should be allowed to take place.
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Section 95AU
518 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Note 2: Division 2 of Part IX contains provisions about procedure and
evidence that relate to proceedings before the Tribunal.
(2) If the Tribunal does so, then section 50 does not prevent the person
from acquiring the shares or assets in accordance with the
authorisation.
Note: The acquisition will only be protected from the operation of section 50
if it takes place in accordance with the authorisation. If it does not,
then section 50 will apply to the acquisition. If the acquisition
contravenes section 50, then the remedies in Part VI will apply (see,
for example, penalties under section 76 and divestiture under
section 81).
(3) Without limiting subsection (2), an acquisition will not be in
accordance with an authorisation if any conditions of the
authorisation are not complied with (whether the conditions are to
be complied with before, during or after the acquisition).
95AU Application for authorisation
A person who wants an authorisation to acquire shares or assets
must apply to the Tribunal for it.
95AV Requirements for valid authorisation application
(1) To be valid, the application must:
(a) be in a form prescribed by the regulations and contain the
information required by the form; and
(b) be accompanied by such other information or documents as
are prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the
regulations.
(2) The regulations may prescribe that the application form contain a
requirement that the applicant give an undertaking under
section 87B that the applicant will not make the acquisition while
the application is being considered by the Tribunal.
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Section 95AW
Competition and Consumer Act 2010 519
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
95AW Tribunal to notify if authorisation application is invalid
If the Tribunal receives a purported application that it considers is
not a valid application, it must, within 5 business days of receiving
the purported application, give the person who made the purported
application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not
comply with this Division.
95AX Tribunal to notify Commission of authorisation application
The Tribunal must, within 3 business days of receiving an
application for an authorisation, give a copy of it to the
Commission.
95AY Application to be published on the internet
After receiving a copy of an application for an authorisation, the
Commission must:
(a) subject to section 95AZA (confidentiality), put a copy of the
application, and accompanying information or documents, on
its website; and
(b) by notice on its website, invite submissions in respect of the
application to be made to the Tribunal within a period
specified by the Tribunal.
95AZ Merger authorisation register
(1) The Tribunal must keep a register (the merger authorisation
register) of:
(a) applications for authorisations; and
(b) applications for minor variations of authorisations; and
(c) applications for the revocation of authorisations or for the
revocation of authorisations and the substitution of other
authorisations;
including applications that have been withdrawn.
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Section 95AZA
520 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) The register must include:
(a) any document given to the Tribunal in relation to an
application referred to in subsection (1); and
(b) particulars of any oral submission made to the Tribunal in
relation to such an application; and
(c) the determination of the Tribunal on such an application and
the statement of the reasons given by the Tribunal for that
determination;
unless section 95AZA (confidentiality) prevents the inclusion.
95AZA Confidentiality claims etc.
Requests for confidential treatment
(1) If a person gives information to the Tribunal in relation to an
application or proposal referred to in subsection 95AZ(1), the
person may, at the time of giving the information, request that the
information be excluded from the merger authorisation register and
the Commission’s website because of its confidential nature.
Confidentiality claims to be determined first
(2) If such a request is made, the information must be excluded from
the register and the Commission’s website until the Tribunal has
made a determination on the request.
When Tribunal must exclude information—request made
(3) If such a request is made, the Tribunal must exclude the
information from the register and the Commission’s website if the
information contains particulars of:
(a) a secret formula or process; or
(b) the cash consideration offered for the acquisition of shares in
the capital of a body corporate or assets of a person; or
(c) the current costs of manufacturing, producing or marketing
goods or services.
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Section 95AZC
Competition and Consumer Act 2010 521
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
When Tribunal may exclude information—request made
(4) If such a request is made, the Tribunal may, if it is satisfied that it
is desirable to do so because of the confidential nature of the
information, exclude the information from the register and the
Commission’s website.
If request refused, document may be withdrawn
(5) If the Tribunal refuses such a request and the information is
contained in a document, the Tribunal must, if the person who gave
the document to it so requires, return the document or part of the
document to the person. In that case, it must exclude the document
or the part of the document (as the case requires) from the register
and the Commission’s website.
If request refused, oral submission may be withdrawn
(6) If the Tribunal refuses such a request and the information was
given by way of oral submission, the person who made the
submission may withdraw all or part of the submission. In that
case, the Tribunal must exclude the submission or part of the
submission (as the case requires) from the register and the
Commission’s website.
When Tribunal may exclude information—no request made
(7) The Tribunal may exclude information from the register and the
Commission’s website if it is satisfied that it is desirable to do so
for any reason other than the confidential nature of the information.
95AZC Tribunal may seek additional information from applicant
The Tribunal may give the applicant a written notice requesting the
applicant to give the Tribunal, within a specified period, additional
information relevant to making its determination on the
application.
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Division 3 Merger clearances and authorisations
Section 95AZD
522 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
95AZD Tribunal may seek further information and consult others
etc.
(1) The Tribunal may give a person a written notice requesting the
person to give the Tribunal, within a specified period, particular
information relevant to making its determination on the
application.
(2) The Tribunal may consult with such persons as it considers
reasonable and appropriate for the purposes of making its
determination on the application.
(3) The Tribunal may disclose information excluded from the merger
authorisation register under subsection 95AZA(3), (4) or (7) to
such persons and on such terms as it considers reasonable and
appropriate for the purposes of making its determination on the
application.
95AZE Applicant may withdraw application
The applicant may, by notice in writing to the Tribunal, withdraw
the application at any time.
95AZEA Tribunal must require Commission to give report
(1) For the purposes of determining the application, the member of the
Tribunal presiding on the application must require the Commission
to give a report to the Tribunal. The report must be:
(a) in relation to the matters specified by that member; and
(b) given within the period specified by that member.
(2) The Commission may also include in the report any matter it
considers relevant to the application.
95AZF Commission to assist Tribunal
(1) For the purposes of determining the application:
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Section 95AZFA
Competition and Consumer Act 2010 523
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) the Commission may call a witness to appear before the
Tribunal and to give evidence in relation to the application;
and
(b) the Commission may report on statements of fact put before
the Tribunal in relation to the application; and
(c) the Commission may examine or cross-examine any
witnesses appearing before the Tribunal in relation to the
application; and
Note: The Commission may be represented by a lawyer: see paragraph 110(d).
(d) the Commission may make submissions to the Tribunal on
any issue the Commission considers relevant to the
application.
(2) For the purposes of determining the application, the member of the
Tribunal presiding on the application may require the Commission
to give such information, make such reports and provide such other
assistance to the Tribunal, as the member specifies.
95AZFA Commission may make enquiries
The Commission may, for the purposes of section 95AZEA or
95AZF, make such enquiries as it considers reasonable and
appropriate.
95AZG Tribunal to make determination on application
(1) The Tribunal must make a determination in writing:
(a) granting the authorisation; or
(b) refusing to grant the authorisation.
Note: The Tribunal must make its determination within the time limit set out
in section 95AZI. If it does not, then it is taken to have refused to
grant the authorisation.
(2) In making its determination, the Tribunal must take into account:
(a) any submissions in relation to the application made to it by
the applicant, the Commonwealth, a State, a Territory or any
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Section 95AZH
524 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
other person that are received within the period specified
under paragraph 95AY(b); and
(b) any information received under section 95AZC within the
period specified in the relevant notice under that section; and
(c) any information received under subsection 95AZD(1) within
the period specified in the relevant notice under that
subsection; and
(d) any information obtained from consultations under
subsection 95AZD(2); and
(e) the report given to it under section 95AZEA; and
(f) any thing done as mentioned in section 95AZF.
(2A) In making its determination, the Tribunal may disregard:
(a) any submissions in relation to the application made to it by
the applicant, the Commonwealth, a State, a Territory or any
other person that are received after the period specified under
paragraph 95AY(b); and
(b) any information received under section 95AZC after the
period specified in the relevant notice under that section; and
(c) any information received under subsection 95AZD(1) after
the period specified in the relevant notice under that
subsection.
(3) The Tribunal must notify the applicant in writing of its
determination and give written reasons for it.
95AZH When authorisation must not be granted
(1) The Tribunal must not grant an authorisation in relation to a
proposed acquisition of shares or assets unless it is satisfied in all
the circumstances that the proposed acquisition would result, or be
likely to result, in such a benefit to the public that the acquisition
should be allowed to occur.
(2) In determining what amounts to a benefit to the public for the
purposes of subsection (1):
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Section 95AZI
Competition and Consumer Act 2010 525
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(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.
(3) To avoid doubt, an authorisation cannot be granted for an
acquisition that has occurred.
95AZI Time limits for determining application
(1) If the Tribunal has not made a determination on the application
within the relevant period, the Tribunal is taken to have refused to
grant the authorisation.
(2) The relevant period is the period of 3 months beginning on the day
the application was given to the Tribunal. However, if before the
end of that 3 month period the Tribunal determines in writing that:
(a) the matter cannot be dealt with properly within that period,
either because of its complexity or because of other special
circumstances; and
(b) that period is extended by a specified period of not more than
3 months;
the relevant period is that period as so extended.
(3) If the Tribunal makes a determination under subsection (2), it must
notify the applicant in writing of its determination before the end
of that 3 month period.
95AZJ Authorisation subject to conditions
(1) The Tribunal may grant an authorisation subject to such conditions
as are specified in the authorisation.
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Section 95AZK
526 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Note 1: Under subsection 95AZM(6), the Commission may apply to the
Tribunal to revoke an authorisation if a condition of the authorisation
has not been complied with.
Note 2: If an acquisition takes place without complying with a condition of the
authorisation (whether the condition is to be complied with before,
during or after the acquisition), the acquisition will not be in
accordance with the authorisation and so might contravene section 50
(see subsections 95AT(2) and (3)). If the acquisition contravenes
section 50, then the remedies in Part VI will apply (see, for example,
penalties under section 76 and divestiture under section 81).
(2) Without limiting subsection (1), the Tribunal may grant an
authorisation subject to the condition that the person to whom the
authorisation is granted must make, and comply with, an
undertaking to the Commission under section 87B.
95AZK When authorisation is in force
(1) An authorisation comes into force on the day on which the
determination granting the authorisation is made.
(2) An authorisation may be expressed to be in force for a period
specified in the authorisation and, if so expressed, remains in force
for that period only.
95AZL Minor variations of authorisations
Application for variation
(1) The person to whom an authorisation was granted may apply to the
Tribunal for a minor variation of the authorisation.
Requirements for valid application
(2) To be valid, the application must:
(a) be in a form prescribed by the regulations and contain the
information required by the form; and
(b) be accompanied by such other information or documents as
are prescribed by the regulations; and
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Section 95AZL
Competition and Consumer Act 2010 527
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(c) be accompanied by the fee (if any) prescribed by the
regulations.
(2A) The regulations may prescribe that the application form contain a
requirement that the applicant give an undertaking under
section 87B that the applicant will not make the acquisition while
the application is being considered by the Tribunal.
Tribunal to notify if application is invalid
(3) If the Tribunal receives a purported application that it considers is
not a valid application, it must, within 5 business days of receiving
the purported application, give the person who made the purported
application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not
comply with this Division.
Tribunal to give the Commission a copy of the application
(4) The Tribunal must, if it is satisfied that the variation sought in the
application is a minor variation, give a copy of it to the
Commission within 3 business days of receiving it.
Application to be published on the internet
(5) After receiving a copy of the application, the Commission must:
(a) subject to section 95AZA (confidentiality), put a copy of the
application on its website; and
(b) by notice on its website, invite submissions in respect of the
application to be made to the Tribunal within a period
specified by the Tribunal.
Tribunal must make a determination on the application
(6) The Tribunal must make a determination in writing:
(a) varying the authorisation; or
(b) refusing to vary the authorisation.
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Section 95AZL
528 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
The Tribunal must notify the applicant in writing of its
determination and give written reasons for it.
(6A) In making its determination, the Tribunal must take into account:
(a) any submissions received within the period specified under
subsection (5); and
(b) any information received under section 95AZC within the
period specified in the relevant notice under that section (as
that section applies because of subsection (13) of this
section); and
(c) any information received under subsection 95AZD(1) within
the period specified in the relevant notice under that
subsection (as that subsection applies because of
subsection (13) of this section); and
(d) any information obtained from consultations under
subsection 95AZD(2) (as that subsection applies because of
subsection (13) of this section); and
(e) the report given to it under section 95AZEA (as that section
applies because of subsection (13) of this section); and
(f) any thing done as mentioned in section 95AZF (as that
section applies because of subsection (13) of this section).
(6B) In making its determination, the Tribunal may disregard:
(a) any submissions received after the period specified under
subsection (5); and
(b) any information received under section 95AZC after the
period specified in the relevant notice under that section (as
that section applies because of subsection (13) of this
section); and
(c) any information received under subsection 95AZD(1) after
the period specified in the relevant notice under that
subsection (as that subsection applies because of
subsection (13) of this section).
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Section 95AZL
Competition and Consumer Act 2010 529
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
When variation must not be granted
(7) The Tribunal must not make a determination varying an
authorisation unless the Tribunal is satisfied that, in all the
circumstances, the variation would not result, or would be likely
not to result, in a reduction in the benefit to the public that arose
from the original authorisation.
Determination varying authorisation may also vary authorisation
conditions
(7A) A determination varying an authorisation may also vary the
conditions (if any) of the authorisation to take account of the
variation of the authorisation.
Time limits for determining application
(8) If the Tribunal has not made a determination on the application
within the relevant period, the Tribunal is taken to have refused to
vary the authorisation.
(9) For the purposes of subsection (8), the relevant period is the period
of 3 months beginning on the day the application was given to the
Tribunal. However, if before the end of that 3 month period the
Tribunal determines in writing that:
(a) the matter cannot be dealt with properly within that period,
either because of its complexity or because of other special
circumstances; and
(b) that period is extended by a specified period of not more than
3 months;
the relevant period is that period as so extended.
(10) If the Tribunal makes a determination under subsection (9), it must
notify the applicant in writing of its determination before the end
of that 3 month period.
2 or more variations at the same time
(11) If:
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Section 95AZM
530 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) a person applies for 2 or more variations:
(i) at the same time; or
(ii) in such close succession that the variations could
conveniently be dealt with by the Tribunal at the same
time; and
(b) the Tribunal is satisfied that the combined effect of those
variations, if all were granted, would not involve a material
change in the effect of the authorisation;
the Tribunal may deal with all of those variations together as if
they were a single minor variation.
Applicant may withdraw application
(12) The applicant may, by notice in writing to the Tribunal, withdraw
the application at any time.
Powers and procedures of the Tribunal
(13) The following sections apply in relation to an application for a
minor variation of an authorisation in the same way as they apply
in relation to an application for an authorisation:
(b) section 95AZC (Tribunal may seek additional information
from applicant);
(c) section 95AZD (Tribunal may seek further information and
consult others etc.);
(ca) section 95AZEA (Tribunal must require Commission to give
report);
(d) section 95AZF (Commission to assist Tribunan( �
(e) section 95AZFA (Commission may make enquiries).
95AZM Revocation of authorisation or revocation of authorisation
and substitution of a new authorisation
Application for revocation
(1) The Tribunal may revoke an authorisation, or revoke an
authorisation and substitute a new authorisation, if the person to
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Section 95AZM
Competition and Consumer Act 2010 531
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
whom the authorisation was granted applies to the Tribunal for this
to occur.
Requirements for valid application
(2) To be valid, the application must:
(a) be in a form prescribed by the regulations and contain the
information required by the form; and
(b) be accompanied by such other information or documents as
are prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the
regulations.
(2A) The regulations may prescribe that the application form contain a
requirement that the applicant give an undertaking under
section 87B that the applicant will not make the acquisition while
the application is being considered by the Tribunal.
Tribunal to notify if application is invalid
(3) If the Tribunal receives a purported application that it considers is
not a valid application, it must, within 5 business days of receiving
the purported application, give the person who made the purported
application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not
comply with this Division.
Tribunal to give the Commission a copy of the application
(4) The Tribunal must give a copy of the application to the
Commission within 3 business days of receiving it.
Application to be published on the internet
(5) After receiving a copy of the application, the Commission must:
(a) subject to section 95AZA (confidentiality), put a copy of the
application on its website; and
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Division 3 Merger clearances and authorisations
Section 95AZM
532 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) by notice on its website, invite submissions in respect of the
application to be made to the Tribunal within a period
specified by the Tribunal.
Commission may apply for revocation
(6) The Commission may apply to the Tribunal for an authorisation to
be revoked, or for an authorisation to be revoked and a new
authorisation substituted for it, if the Commission is satisfied that:
(a) the authorisation was granted on the basis of information that
was false or misleading in a material particular; or
(b) a condition of the authorisation has not been complied with;
or
(c) there has been a material change of circumstances since the
authorisation was granted.
Tribunal to give notice
(7) If the Tribunal is considering making a determination under
subsection (6), the Tribunal must give a notice to the person to
whom the authorisation was granted and cause a notice to be put on
the Commission’s website:
(a) stating that it is considering making the determination; and
(b) indicating the basis on which the determination is being
proposed; and
(c) inviting submissions in respect of the determination within a
period specified by the Tribunal.
Tribunal must make a determination
(8) The Tribunal must make a determination in writing:
(a) revoking the authorisation, or revoking the authorisation and
substituting a new authorisation; or
(b) refusing to revoke the authorisation.
The Tribunal must notify, in writing, the person to whom the
authorisation was granted of its determination and give written
reasons for it.
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Section 95AZM
Competition and Consumer Act 2010 533
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(8A) In making its determination, the Tribunal must take into account:
(a) any submissions invited under subsection (5) or (7) that are
received within the period specified under that subsection;
and
(b) any information received under section 95AZC within the
period specified in the relevant notice under that section (as
that section applies because of subsection (15) of this
section); and
(c) any information received under subsection 95AZD(1) within
the period specified in the relevant notice under that
subsection (as that subsection applies because of
subsection (15) of this section); and
(d) any information obtained from consultations under
subsection 95AZD(2) (as that subsection applies because of
subsection (15) of this section); and
(e) the report given to it under section 95AZEA (as that section
applies because of subsection (15) of this section); and
(f) any thing done as mentioned in section 95AZF (as that
section applies because of subsection (15) of this section).
(8B) In making its determination, the Tribunal may disregard:
(a) any submissions invited under subsection (5) or (7) that are
received after the period specified under that subsection; and
(b) any information received under section 95AZC after the
period specified in the relevant notice under that section (as
that section applies because of subsection (15) of this
section); and
(c) any information received under subsection 95AZD(1) after
the period specified in the relevant notice under that
subsection (as that subsection applies because of
subsection (15) of this section).
When revocation etc. must not be granted
(9) If an objection (other than an objection that, in the Tribunal’s
opinion, is vexatious or frivolous) to a revocation of an
authorisation is made in a submission:
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Section 95AZM
534 Competition and Consumer Act 2010
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(a) that was invited under subsection (5) or (7); and
(b) that is received within the period specified;
the Tribunal must not make a determination revoking the
authorisation unless the Tribunal is satisfied that it would, if the
authorisation had not already been granted, be prevented under
section 95AZH from granting the authorisation.
(10) The Tribunal must not make a determination revoking an
authorisation and substituting another authorisation unless it is
satisfied that it would not be prevented under section 95AZH from
making a determination granting the substituted authorisation, if it
were a new authorisation sought under section 95AU.
Time limits for determining application
(11) If the Tribunal has not made a determination on an application
under subsection (1) or (6) within the relevant period, the Tribunal
is taken to have refused to revoke the authorisation.
(12) For the purposes of subsection (11), the relevant period is the
period of 3 months beginning on the day the application was given
to the Tribunal. However, if before the end of that 3 month period
the Tribunal determines in writing that:
(a) the matter cannot be dealt with properly within that period,
either because of its complexity or because of other special
circumstances; and
(b) that period is extended by a specified period of not more than
3 months;
the relevant period is that period as so extended.
(13) If the Tribunal makes a determination under subsection (12), it
must notify the applicant in writing of its determination before the
end of that 3 month period.
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Section 95AZN
Competition and Consumer Act 2010 535
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Withdrawal of application
(14) The applicant may withdraw an application under subsection (1),
and the Commission may withdraw an application under
subsection (6), by notice in writing to the Tribunal at any time.
Powers and procedures of the Tribunal
(15) The following sections apply in relation to an application for a
revocation, or a revocation and substitution, of an authorisation in
the same way as they apply in relation to an application for an
authorisation:
(b) section 95AZC (Tribunal may seek additional information
from applicant);
(c) section 95AZD (Tribunal may seek further information and
consult others etc.);
(ca) section 95AZEA (Tribunal must require Commission to give
report);
(d) section 95AZF (Commission to assist Tribunan( �
(e) section 95AZFA (Commission may make enquiries).
Substituted authorisations
(16) The following sections apply in relation to an authorisation
substituted under this section in the same way as they apply in
relation to an authorisation granted under section 95AZG:
(a) section 95AZJ (Authorisation subject to conditions);
(b) section 95AZK (When authorisation is in force).
Subdivision D—Miscellaneous
95AZN Providing false or misleading information
(1) A person must not give information to the Commission or Tribunal
under this Division or Division 3 of Part IX if the person is
negligent as to whether the information is false or misleading in a
material particular.
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Section 95AZN
536 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Note: Under section 76, the Court may order a person who contravenes this
section to pay a pecuniary penalty. See also sections 80AC, 81A and
86C for other related remedies.
(2) For the purposes of subsection (1), proof that the person knew, or
was reckless as to whether, the information was false or misleading
in a material particular is taken to be proof that the person was
negligent as to whether the information was false or misleading in
a material particular.
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Section 95A
Competition and Consumer Act 2010 537
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part VIIA—Prices surveillance
Division 1—Preliminary
95A Interpretation
(1) In this Part, unless the contrary intention appears:
applicable period, in relation to a locality notice, has the meaning
given by section 95ZB.
body means any organisation or body, whether incorporated or
unincorporated, and includes a group of 2 or more individuals.
business notice means a notice under subsection 95L(3).
Commonwealth authority means:
(a) the Commonwealth; or
(b) an authority, institution or other body (other than a society,
association or incorporated company) established for a public
purpose by or under a law of the Commonwealth; or
(c) a society, association or incorporated company in which the
Commonwealth, or an authority, institution or other body of
the kind referred to in paragraph (b), has a controlling
interest.
declared person, in relation to goods or services of a particular
description, means a person in relation to whom a declaration
under subsection 95X(2) in relation to goods or services of that
description is in force.
exempt supply, in relation to goods or services of a particular
description, means a supply of goods or services of that description
in relation to which a declaration under section 95B is in force.
external inquiry means an inquiry by a body other than the
Commission.
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Section 95A
538 Competition and Consumer Act 2010
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goods includes:
(a) ships, aircraft and other vehicles; and
(b) animals, including fish; and
(c) minerals, trees and crops, whether on, under or attached to
land or not; and
(d) water; and
(e) gas and electricity.
inquiry means an inquiry held in accordance with this Part into a
matter or matters relating to prices for the supply of goods or
services.
inquiry body means:
(a) in relation to an inquiry to be held, or being held, by the
Commission—the Commission; or
(b) in relation to an inquiry to be held, or being held, by a body
other than the Commission—the other body.
inquiry Chair means:
(a) in relation to an inquiry to be held, or being held, by the
Commission—the member of the Commission presiding at
the inquiry; or
(b) in relation to an inquiry to be held, or being held, by a body
other than the Commission—the person presiding at the
inquiry.
inquiry notice means a notice under section 95H.
law of the Commonwealth does not include:
(a) the Northern Territory (Self-Government) Act 1978; or
(b) the Norfolk Island Act 1979; or
(c) a law made under, or continued in force by, an Act referred
to in paragraph (a) or (b).
locality notice means a notice under subsection 95Z(5).
member of the staff of the Commission means a person referred to
in subsection 27(1) or a person engaged under section 27A.
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Section 95A
Competition and Consumer Act 2010 539
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notified goods or services means goods or services of a particular
description in relation to which a declaration under
subsection 95X(1) is in force.
person includes a Commonwealth authority and a State or
Territory authority.
price includes:
(a) a charge of any description; and
(b) in relation to goods or services—any pecuniary benefit,
whether direct or indirect, received or to be received by a
person for or in connection with the supply by the person of
the goods or services.
response notice means a notice under subparagraph 95Z(6)(c)(i).
services includes any rights (including rights in relation to, and
interests in, real or personal property), benefits, privileges or
facilities that are, or are to be, provided, granted or conferred in
trade or commerce, and includes, but is not limited to, the rights,
benefits, privileges or facilities that are, or are to be, provided,
granted or conferred under:
(a) a contract for or in relation to:
(i) the performance of work (including work of a
professional nature), whether with or without the supply
of goods; or
(ii) the provision of, or the use or enjoyment of facilities
for, amusement, entertainment, recreation or instruction;
or
(iii) the conferring of rights, benefits or privileges for which
remuneration is payable in the form of a royalty, tribute,
levy or similar exaction; or
(b) a contract of insurance; or
(c) a contract between a banker and a customer of the banker
entered into in the course of the carrying on by the banker of
the business of banking; or
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540 Competition and Consumer Act 2010
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(d) any contract for or in relation to the lending of moneys;
but does not include rights or benefits being the supply of goods or
the performance of work under a contract of service.
State or Territory authority means:
(a) a State, the Australian Capital Territory or the Northern
Territory; or
(b) an authority, institution or other body (except a society,
association or incorporated company) established for a public
purpose by or under a law of a State, the Australian Capital
Territory or the Northern Territory; or
(c) a society, association or incorporated company in which a
State, the Australian Capital Territory or the Northern
Territory, or an authority, institution or other body of the
kind referred to in paragraph (b), has a controlling interest.
supply includes:
(a) in relation to goods—supply (including re-supply) by way of
sale, exchange, lease, hire or hire-purchase; and
(b) in relation to services—provide, grant or confer.
(2) In this Part, unless the contrary intention appears:
(a) a reference to the supply of goods or services includes a
reference to agreeing to supply goods or services; and
(b) a reference to the supply of goods includes a reference to the
supply of goods together with other property or services, or
both; and
(c) a reference to the supply of services includes a reference to
the supply of services together with property or other
services, or both; and
(d) a reference to the supply of goods does not include a
reference to:
(i) a supply for use outside Australia; or
(ii) a supply for which a price is not charged; or
(iii) any other supply prescribed by the regulations; and
(e) a reference to the supply of services does not include a
reference to:
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Section 95B
Competition and Consumer Act 2010 541
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(i) a supply outside Australia; or
(ii) a supply for which a price is not charged; or
(iii) any other supply prescribed by the regulations.
(3) For the purposes of this Part, a supply by way of retail sale is taken
not to be a supply on terms and conditions that are the same as, or
substantially similar to, the terms and conditions of a supply by
way of wholesale sale.
95B Exempt supplies
(1) The Minister, or the Commission with the approval of the Minister,
may by notice published in the Gazette declare a supply of goods
or services of a specified description, that is a supply in a specified
manner, of a specified kind or in specified circumstances, to be an
exempt supply for the purposes of this Part.
(2) The Minister, or the Commission with the approval of the Minister,
may by notice published in the Gazette vary or revoke a
declaration under subsection (1).
95C Application of Part
(1) This Part applies in relation to the supply of goods or services:
(a) by a Commonwealth authority; or
(b) by a foreign corporation; or
(c) by a trading corporation in the course of, or for the purposes
of, its trading operations; or
(d) by a financial corporation in the course of, or for the
purposes of, its business operations; or
(e) by a body corporate incorporated in a Territory (other than
the Northern Territory or Norfolk Island); or
(f) in an internal Territory (other than the Northern Territory),
the Territory of Christmas Island or the Territory of Cocos
(Keeling) Islands; or
(g) in the course of, or in connection with, trade or commerce:
(i) among the States; or
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Section 95D
542 Competition and Consumer Act 2010
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(ii) between a State and an internal Territory; or
(iii) between a State and the Territory of Christmas Island or
the Territory of Cocos (Keeling) Islands; or
(iv) between an internal Territory and the Territory of
Christmas Island or the Territory of Cocos (Keeling)
Islands; or
(v) between the Territory of Christmas Island and the
Territory of Cocos (Keeling) Islands; or
(vi) between 2 internal Territories;
and not otherwise.
(2) However, this Part does not apply in relation to the supply of goods
or services by:
(a) an authority, institution or other body (except a society,
association or incorporated company) established for a public
purpose by or under a law of Norfolk Island; or
(b) a society, association or incorporated company in which a
controlling interest is held by Norfolk Island, or an authority,
institution or other body covered by paragraph (a).
95D Crown to be bound
(1) This Part binds the Crown in right of the Commonwealth, of each
of the States, of the Australian Capital Territory and of the
Northern Territory.
(2) Nothing in this Part makes the Crown liable to be prosecuted for an
offence.
(3) The protection in subsection (2) does not apply to an incorporated
Commonwealth authority or an incorporated State or Territory
authority.
95E Object of this Part
The object of this Part is to have prices surveillance applied only in
those markets where, in the view of the Minister, competitive
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Section 95F
Competition and Consumer Act 2010 543
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pressures are not sufficient to achieve efficient prices and protect
consumers.
95F Simplified overview of this Part
(1) This Part deals with 3 main things.
Price inquiries
(2) First, it provides for the Commission or another body to hold price
inquiries in relation to the supply of goods or services.
(3) These inquiries may relate to the supply of goods or services by a
particular person. If so, the person’s ability to increase the prices of
those goods or services during a particular period is restricted.
However, there is a way for the person to increase prices during
that period.
Price notifications
(4) Second, this Part allows the Minister or the Commission to declare
goods or services to be notified goods or services and to declare a
person to be a declared person in relation to such goods or services.
(5) If this happens, the person’s ability to increase the prices of such
goods or services during a particular period is restricted. However,
there is a way for the person to increase prices during that period.
Price monitoring
(6) Third, this Part allows the Minister to direct the Commission to
undertake price monitoring.
(7) This may be in relation to supplies of goods or services in a
particular industry or in relation to supplies of goods or services by
particular persons.
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Section 95G
544 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 2—Commission’s functions under this Part
95G Commission’s functions under this Part
(1) The Commission’s functions under this Part are set out in this
section.
Price inquiries
(2) The Commission is to hold such inquiries as it is required to hold
under section 95H.
(3) The Commission may, with the Minister’s approval under
section 95H, hold such other inquiries as it thinks fit.
(4) The Commission is to give the Minister a report on the results of
each inquiry it holds.
Price notifications
(5) The Commission is to consider locality notices and to take, in
relation to such notices, such action in accordance with this Part as
it considers appropriate.
Price monitoring
(6) The Commission is to monitor prices, costs and profits in any
industry or business that the Minister directs it to monitor and is to
give the Minister a report on the results of such monitoring.
General
(7) In exercising its powers and performing its functions under this
Part, the Commission must, subject to any directions given under
section 95ZH, have particular regard to the following:
(a) the need to maintain investment and employment, including
the influence of profitability on investment and employment;
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Section 95G
Competition and Consumer Act 2010 545
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(b) the need to discourage a person who is in a position to
substantially influence a market for goods or services from
taking advantage of that power in setting prices;
(c) the need to discourage cost increases arising from increases
in wages and changes in conditions of employment
inconsistent with principles established by relevant industrial
tribunals.
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Section 95H
546 Competition and Consumer Act 2010
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Division 3—Price inquiries
Subdivision A—Holding of inquiries
95H Price inquiries
Inquiries by Commission
(1) The Minister may, by notice in writing given to the Chairperson,
require the Commission to hold an inquiry into a specified matter
or specified matters.
(2) The Minister may, by notice in writing given to the Chairperson,
approve the Commission holding an inquiry into a specified matter
or specified matters.
Inquiries by other bodies
(3) The Minister may, by notice in writing, request a body other than
the Commission to hold an inquiry into a specified matter or
specified matters.
(4) The other body must, if it agrees to hold the inquiry, appoint a
person to preside at the inquiry. The appointment must be in
writing.
(5) However, if the other body is a group of 2 or more individuals, the
Minister must, by writing, appoint one of those individuals to
preside at the inquiry.
(5A) The Minister must, as soon as practicable after confirmation that
the other body will hold the inquiry, table a statement in each
House of the Parliament:
(a) specifying that the body will hold the inquiry; and
(b) giving the Minister’s reasons for requesting the body, rather
than the Commission, to hold the inquiry.
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Section 95J
Competition and Consumer Act 2010 547
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No inquiry in relation to exempt supply
(6) A notice under this section must not authorise the holding of an
inquiry into a supply of goods or services of a particular
description that is an exempt supply in relation to goods or services
of that description.
No inquiry in relation to a State or Territory authority
(7) A notice under this section must not authorise the holding of an
inquiry into the supply by a State or Territory authority of goods or
services.
95J Content of inquiry notices
Description of goods or services
(1) An inquiry notice must specify the description of the goods or
services in relation to which the inquiry is to be held.
Supply of goods or services by particular persons
(2) An inquiry notice must also specify whether the inquiry is to be
held in relation to the supply of goods or services of that
description by a particular person or persons.
(3) If such an inquiry is to be held, the notice may also specify that
person or persons. If it does not, the inquiry body must, by writing,
determine that person or persons.
(4) The inquiry Chair must give the Minister notice in writing of the
determination.
No inquiry in relation to a State or Territory authority
(5) The inquiry body must not determine a State or Territory authority
as a person in relation to whom an inquiry will be held.
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Section 95K
548 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Ministerial directions
(6) The Minister may, in an inquiry notice, give such directions as he
or she thinks fit as to the holding of the inquiry and the matters to
be taken into consideration in the inquiry.
(7) The inquiry body must comply with any such directions.
95K Period for completing inquiry
Inquiry period
(1) An inquiry notice must specify the period within which the inquiry
is to be completed and a report on the inquiry is to be given to the
Minister.
(2) The inquiry body must complete the inquiry and give the report to
the Minister within that period.
Extensions
(3) The Minister may, before the end of the completion period, extend
or further extend that period by notice in writing given to the
inquiry Chair.
Example: A notice under subsection (1) specifies that an inquiry is to be
completed and a report given by 1 August.
On 30 July the Minister gives a notice under subsection (3) extending
the deadline to 8 August.
On 6 August the Minister gives another notice under subsection (3)
further extending the deadline to 12 August.
(4) If the Minister does so, the inquiry body must complete the inquiry
and give its report within the completion period as so extended or
further extended.
(5) In this section:
completion period means the period within which the inquiry body
is required by this section to complete an inquiry and to give its
report on the inquiry.
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Section 95L
Competition and Consumer Act 2010 549
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95L Notice of holding of inquiry
General notice
(1) An inquiry body must, as soon as practicable, give notice of an
inquiry it is to hold.
(2) The notice must be given in each State, the Australian Capital
Territory and the Northern Territory by advertisement published in
the Gazette and in a newspaper circulating in that State or
Territory.
Notice to particular person or persons
(3) If the inquiry is to be held in relation to the supply of goods or
services by a particular person or persons, the inquiry body must,
as soon as practicable, give the person, or each of the persons, a
notice in writing.
Content of notice
(4) A notice under this section must:
(a) state that the inquiry body is to hold the inquiry; and
(b) specify the matter or matters in relation to which the inquiry
is to be held; and
(c) specify the time and place at which the inquiry is to start; and
(d) in the case of a notice under subsection (3)—set out the effect
of section 95N; and
(e) specify any other matter prescribed by the regulations.
95M Notice of extension of period for completing inquiry
If:
(a) an inquiry is being held in relation to the supply of goods or
services of a particular description by a particular person or
persons; and
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Section 95N
550 Competition and Consumer Act 2010
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(b) the Minister extends, or further extends, the period within
which the inquiry is required to be completed and a report on
the inquiry given to the Minister;
the inquiry body must, as soon as possible, give the person, or each
of the persons, a notice in writing giving details of the extension or
further extension.
95N Price restrictions
(1) This section applies if an inquiry body gives a person a business
notice stating that it is to hold an inquiry in relation to the supply
by the person of goods or services of a particular description.
Offence: previous local supply
(2) The person commits an offence if:
(a) before the applicable day in relation to the business notice,
the person supplies (the current supply) goods or services of
that description in a locality on particular terms and
conditions; and
(b) the person has supplied goods or services of that description
in that locality on the same or substantially similar terms and
conditions in the period of 12 months before the current
supply; and
(c) the current supply is at a price that exceeds the highest price
at which the person has supplied goods or services of that
description in that locality on the same or substantially
similar terms and conditions in that period; and
(d) in a case where a notice has been given to the person under
subsection (5)—the current supply is not in accordance with
the notice.
Penalty: 100 penalty units.
Offence: no previous local supply
(3) The person commits an offence if:
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Section 95N
Competition and Consumer Act 2010 551
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(a) before the applicable day in relation to the business notice,
the person supplies (the current supply) goods or services of
that description in a locality on particular terms and
conditions; and
(b) the person has not supplied goods or services of that
description in that locality on the same or substantially
similar terms and conditions in the period of 12 months
before the current supply, but has supplied goods or services
of that description elsewhere in Australia on the same or
substantially similar terms and conditions in that period; and
(c) the current supply is at a price that exceeds the highest price
at which the person has supplied goods or services of that
description in Australia on the same or substantially similar
terms and conditions in that period; and
(d) in a case where a notice has been given to the person under
subsection (5)—the current supply is not in accordance with
the notice.
Penalty: 100 penalty units.
Offence: no previous supply in Australia
(4) The person commits an offence if:
(a) before the applicable day in relation to the business notice,
the person supplies (the current supply) goods or services of
that description in a locality on particular terms and
conditions; and
(b) the person has not supplied goods or services of that
description in Australia on the same or substantially similar
terms and conditions in the period of 12 months before the
current supply; and
(c) in a case where a notice has been given to the person under
subsection (5)—the current supply is not in accordance with
the notice.
Penalty: 100 penalty units.
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Section 95N
552 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Approval to increase prices
(5) The Commission may give the person a notice in writing stating
that the person is permitted, during the period:
(a) beginning on a specified day; and
(b) ending at the beginning of the applicable day in relation to
the business notice;
to supply goods or services of a specified description in a specified
locality on specified terms and conditions at a price not exceeding
a specified price.
(6) The Commission may give a notice under subsection (5) on its own
initiative or on the application of the person.
Consultation
(7) In an external inquiry, the Commission must consult the body
holding the inquiry before giving a notice under subsection (5).
Definition
(8) In this section:
applicable day, in relation to a business notice, means the 14th day
after whichever is the earlier of the following days:
(a) the day on which the person given the notice receives a copy
of the report by the inquiry body on the inquiry to which the
notice relates;
(b) the last day of the period within which the inquiry body is
required to complete the inquiry to which the notice relates
and to give the Minister a report on the inquiry.
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Section 95P
Competition and Consumer Act 2010 553
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Subdivision B—Reports on inquiries
95P Copies of report to be made available
Inquiry into supply of goods or services by particular persons
(1) For an inquiry held in relation to the supply of goods or services by
a particular person or persons, the inquiry body must send the
person, or each of the persons, a copy of the report on the inquiry
on the day on which it gives the Minister the report.
(2) A copy of a report sent to a person must be accompanied by a
notice in writing setting out the effect of section 95Q.
All inquiries
(3) For any inquiry, the inquiry body must, unless the Minister directs
otherwise, make copies of the report on the inquiry available for
public inspection as soon as practicable after the period of 28 days
beginning on the day on which it gives the Minister the report.
95Q Notification of proposed prices after receipt of report
(1) This section applies if a person receives a copy of a report on an
inquiry held in relation to the supply by the person of goods or
services of a particular description.
Price notification
(2) The person must, within 14 days after receiving the copy, give the
Commission a notice in writing specifying the price or prices at
which the person is supplying, or proposing to supply, goods or
services of that description.
Offence
(3) A person commits an offence if the person contravenes
subsection (2).
Penalty: 10 penalty units.
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Section 95R
554 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Public notification
(4) The Commission must, within 14 days after it receives the notice
under subsection (2), make publicly available details of the price or
prices specified in the notice.
Subdivision C—Procedure at inquiries
95R Public inquiries etc.
Public inquiries
(1) An inquiry body must hold an inquiry in public, unless the Minister
directs otherwise.
Taking of evidence
(2) The inquiry body may take evidence in private at an inquiry held in
public if:
(a) a witness objects to giving, in public, evidence that the
inquiry body is satisfied is of a confidential nature; and
(b) the inquiry body considers that it is desirable to do so.
(3) The inquiry body may permit a person appearing as a witness at the
inquiry to give evidence by giving, and verifying by oath or
affirmation, a written statement.
(4) If a statement is so given in an inquiry held in public, the inquiry
body must make available to the public in such manner as it thinks
fit the contents of the statement other than any matter:
(a) that the person who gave the evidence objects to being made
public; and
(b) the evidence of which the body is satisfied would have been
taken in private if that evidence had been given orally and the
person had objected to giving it in public.
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Section 95S
Competition and Consumer Act 2010 555
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Written submissions
(5) The inquiry body may require or permit a person desiring to make
a submission to the body to make the submission in writing.
(6) If a submission is so made in an inquiry held in public, the inquiry
body must make available to the public in such manner as it thinks
fit the contents of the submission.
Procedure
(7) The procedure to be followed at an inquiry is within the discretion
of the inquiry Chair. The inquiry body is not bound by the rules of
evidence.
(8) Subsection (7) operates:
(a) subject to this Part; and
(b) in any case—subject to any direction given to the inquiry
body by the Minister; and
(c) in an inquiry held by the Commission and at which the
inquiry Chair is not the Chairperson—subject to any
direction given to the inquiry Chair by the Chairperson.
Note: See also section 95ZN (about confidentiality of information).
95S Taking of evidence on oath or affirmation
Evidence on oath or affirmation
(1) An inquiry body may take evidence at an inquiry on oath or
affirmation.
(2) An oath or affirmation may be administered by:
(a) in an inquiry by the Commission—a member of the
Commission; or
(b) in an external inquiry—the person presiding at the inquiry.
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Section 95T
556 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Summons
(3) The inquiry Chair may, by writing signed by him or her, summon a
person to appear at an inquiry to give evidence and to produce such
documents (if any) as are specified in the summons.
(4) In an inquiry by the Commission, the power conferred on the
inquiry Chair by subsection (3) may, at his or her discretion, be
exercised on the application of another person.
95T Failure of witness to attend
(1) A person commits an offence if:
(a) the person is given a summons to appear as a witness at an
inquiry; and
(b) the person fails to attend as required by the summons or fails
to appear and report himself or herself from day to day; and
(c) the person has not been excused, or released from further
attendance, by:
(i) in an inquiry by the Commission—a member of the
Commission; or
(ii) in an external inquiry—the person presiding at the
inquiry.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
95U Refusal to be sworn or to answer question
(1) A person appearing as a witness at an inquiry must not:
(a) refuse or fail to swear an oath or to make an affirmation if
required to do so by:
(i) in an inquiry by the Commission—a member of the
Commission; or
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Section 95V
Competition and Consumer Act 2010 557
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(ii) in an external inquiry—the person presiding at the
inquiry; or
(b) refuse or fail to answer a question that he or she is required to
answer by the inquiry Chair; or
(c) refuse or fail to produce a document that he or she was
required to produce by a summons under this Part given to
him or her.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) It is a reasonable excuse for the purposes of subsection (2) for a
person to refuse or fail to answer a question on the ground that the
answer might tend to incriminate the person or to expose the
person to a penalty.
(4) It is a reasonable excuse for the purposes of subsection (2) for a
person to refuse or fail to produce a document on the ground that
the production of the document might tend to incriminate the
person or to expose the person to a penalty.
(5) Subsections (3) and (4) do not limit what is a reasonable excuse for
the purposes of subsection (2).
95V Protection of witnesses
Subject to this Part, a person summoned to attend or appearing as a
witness at an inquiry has the same protection, and is, in addition to
the penalties provided by this Part, subject to the same liabilities, in
any civil or criminal proceedings as a witness in proceedings in the
High Court.
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Section 95W
558 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
95W Allowances to witnesses
(1) A witness summoned under this Part to appear at an inquiry is
entitled to be paid such allowances for his or her travelling, and
such other expenses, as are prescribed by the regulations.
(2) The witness is entitled to be paid by:
(a) if the witness was summoned by the inquiry Chair—the
Commonwealth; or
(b) if the witness was summoned on the application of a
person—that person.
(3) The regulations may provide for those allowances and expenses by
reference to a scale of expenses for witnesses who attend before a
court specified in the regulations.
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Section 95X
Competition and Consumer Act 2010 559
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 4—Price notifications
95X Declarations by Minister or Commission
Notified goods or services
(1) The Minister, or the Commission with the approval of the Minister,
may by notice published in the Gazette declare goods or services of
a specified description to be notified goods or services for the
purposes of this Part.
Declared persons
(2) The Minister, or the Commission with the approval of the Minister,
may by notice published in the Gazette declare a person to be, in
relation to goods or services of a specified description, a declared
person for the purposes of this Part.
(3) The Commission must give the person notice in writing of a
declaration under subsection (2). The notice must set out the effect
of section 95Z.
(4) A declaration under subsection (2) must specify the time when it is
to cease to have effect. Such a declaration ceases to have effect at
the time specified, unless it is revoked sooner.
Variation or revocation
(5) The Minister, or the Commission with the approval of the Minister,
may by notice published in the Gazette vary or revoke a
declaration under this section.
95Y Declarations in relation to State or Territory authorities
(1) The Minister must not make or approve a declaration of a State or
Territory authority under section 95X unless:
(a) the appropriate Minister of the State or Territory concerned
has agreed to the declaration being made; or
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Section 95Y
560 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) the Council has, on the request (the current request) of an
Australian government, recommended the declaration and the
Minister has consulted the appropriate Minister of the State
or Territory concerned.
Role of Council
(2) The Council must not recommend a declaration of a State or
Territory authority in relation to goods or services unless it is
satisfied that:
(a) at least one Australian government has notified the State or
Territory concerned that the government is not satisfied that
there is effective supervision of the prices charged by the
authority for the supply of those goods or services; and
(b) there is not such effective supervision; and
(c) the supply of those goods or services by the authority has a
significant direct or indirect impact on qualifying trade or
commerce.
(3) The Council must also not recommend a declaration of a State or
Territory authority in relation to goods or services if:
(a) in the 5 year period before it received the current request, it
was satisfied (when considering a previous request) that there
was effective supervision of prices charged by the authority
for the supply of those goods or services; and
(b) it is satisfied that there has not been a substantial change in
the mechanism for that supervision since it was satisfied as
mentioned in paragraph (a).
(4) In deciding whether there is effective supervision of prices charged
by a State or Territory authority, if the State or Territory concerned
is a party to the Competition Principles Agreement, the Council
must apply the relevant principles set out in the agreement.
Definitions
(5) In this section:
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Section 95Z
Competition and Consumer Act 2010 561
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Australian government means the Commonwealth, a State, the
Australian Capital Territory or the Northern Territory.
qualifying trade or commerce means trade or commerce described
in paragraph 95C(1)(g) or trade and commerce between Australia
and another place.
95Z Price restrictions
Offence: previous local supply
(1) A person commits an offence if:
(a) the person is a declared person in relation to notified goods
or services; and
(b) the person supplies (the current supply) goods or services of
that description in a locality on particular terms and
conditions (the actual terms) at a particular price (the actual
price); and
(c) the person has supplied goods or services of that description
in that locality on the same or substantially similar terms and
conditions in the period of 12 months before the current
supply; and
(d) the actual price exceeds the highest price at which the person
has supplied goods or services of that description in that
locality on the same or substantially similar terms and
conditions in that period; and
(e) the current supply is not an exempt supply.
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this offence.
Offence: no previous local supply
(2) A person commits an offence if:
(a) the person is a declared person in relation to notified goods
or services; and
(b) the person supplies (the current supply) goods or services of
that description in a locality on particular terms and
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Section 95Z
562 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
conditions (the actual terms) at a particular price (the actual
price); and
(c) the person has not supplied goods or services of that
description in that locality on the same or substantially
similar terms and conditions in the period of 12 months
before the current supply, but has supplied goods or services
of that description elsewhere in Australia on the same or
substantially similar terms and conditions in that period; and
(d) the actual price exceeds the highest price at which the person
has supplied goods or services of that description in Australia
on the same or substantially similar terms and conditions in
that period; and
(e) the current supply is not an exempt supply.
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this offence.
Offence: no previous supply in Australia
(3) A person commits an offence if:
(a) the person is a declared person in relation to notified goods
or services; and
(b) the person supplies (the current supply) goods or services of
that description in a locality on particular terms and
conditions (the actual terms) at a particular price (the actual
price); and
(c) the person has not supplied goods or services of that
description in Australia on the same or substantially similar
terms and conditions in the period of 12 months before the
current supply; and
(d) the current supply is not an exempt supply.
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this offence.
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Section 95Z
Competition and Consumer Act 2010 563
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Defence
(4) Subsection (1), (2) or (3) does not apply if the following 4
requirements are satisfied.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (4) (see subsection 13.3(3) of the Criminal Code).
Locality notice
(5) The first requirement is that the person has given the Commission
a notice (a locality notice) in writing stating that the person
proposes to supply goods or services of that description in that
locality on specified terms and conditions (the proposed terms) at a
specified price (the proposed price).
Note: The person may give further notices modifying the locality notice: see
section 95ZA.
Response to locality notice
(6) The second requirement is that:
(a) the applicable period in relation to the locality notice has
ended; or
(b) the Commission has given the person a notice in writing
stating that it has no objection to the person supplying goods
or services of that description in that locality on the proposed
terms at the proposed price; or
(c) both of the following apply:
(i) the Commission has given the person a notice (the
response notice) in writing stating that it would have no
objection to the person supplying goods or services of
that description in that locality on the proposed terms at
a specified price (the approved price) that is less than
the proposed price;
(ii) the person has, not later than 7 days after being given
the response notice, given the Commission a notice in
writing stating that the person proposes to supply goods
or services of that description in that locality on the
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Section 95ZA
564 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
proposed terms at a price not exceeding the approved
price.
Actual terms
(7) The third requirement is that the actual terms are the same as, or
substantially similar to, the proposed terms.
Actual price
(8) The fourth requirement is that the actual price does not exceed:
(a) if paragraph (6)(a) or (b) applies—the proposed price; or
(b) if paragraph (6)(c) applies—the approved price.
95ZA Later notices modifying a locality notice
(1) If a person gives the Commission a locality notice, the person may
give the Commission one or more further notices in writing stating
that the locality notice is to have effect as if there were substituted
for the proposed price another specified price.
(2) A price specified in a notice under subsection (1) must be:
(a) less than the proposed price; and
(b) less than the price specified in any previous notice under that
subsection in relation to the locality notice.
(3) If a notice is given under subsection (1), the locality notice has
effect accordingly.
(4) In this section:
proposed price has the meaning given by subsection 95Z(5).
95ZB Applicable period in relation to a locality notice
(1) The applicable period in relation to a locality notice is the period
(the price-freeze period) of 21 days starting on the day on which
the notice was given.
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Section 95ZC
Competition and Consumer Act 2010 565
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) However, the Commission may, with the consent of the person
who gave the locality notice, determine, before the end of the
price-freeze period, that the applicable period in relation to the
notice for the purposes of this section is a specified longer period.
(3) If the Commission so determines, that longer period is taken to
become the applicable period in relation to the locality notice.
(4) Also, if the Commission has given a response notice, the period
that is the applicable period (worked out under subsections (1) to
(3)) in relation to the locality notice is taken to be increased by a
period of 14 days.
Example: On 1 May the person gives the Commission a locality notice.
Under subsection (1), the applicable period ends on 21 May.
On 9 May the Commission, with the consent of the person,
determines, under subsection (2), that the applicable period ends on
31 May.
If the Commission also gives the person a response notice, under
subsection (4), the applicable period instead of ending on 31 May ends
on 14 June.
95ZC Register of price notifications
Keeping of register
(1) The Commission must keep, at such place as it thinks fit, a register
for the purposes of this section.
Information on the register
(2) If a person has given the Commission a locality notice, the
Commission must, as soon as practicable after the end of the
applicable period in relation to the notice, include in the register:
(a) a copy of the notice, on which has been endorsed, or to which
has been attached, a statement indicating the outcome of the
Commission’s consideration of the notice (including any
action taken by it in relation to the notice and the outcome of
any such action); and
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Section 95ZC
566 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) a copy of each notice given under this Part to, or by, the
Commission in relation to the locality notice; and
(c) a statement of the reasons for the outcome of the
Commission’s consideration of the locality notice.
Gazette notice
(3) The Commission must, within 3 months after the end of the
applicable period in relation to the locality notice, cause to be
published in the Gazette a notice:
(a) stating that the Commission received the locality notice and
specifying the date it received the notice; and
(b) setting out such particulars (if any) relating to the outcome of
the Commission’s consideration of the locality notice as it
considers appropriate.
Exclusion of confidential information
(4) A person who gives the Commission a document in relation to a
locality notice, or who makes an oral submission to the
Commission in relation to such a notice, may ask it to exclude
from a document to be placed in the register any information:
(a) that was in the document given by the person or in the
submission made by the person; and
(b) that the person claims is confidential.
(5) The Commission may exclude the information if it is satisfied that
the claim is justified and is not of the opinion that disclosure of the
information is necessary in the public interest.
(6) An application may be made to the Administrative Appeals
Tribunal for the review of a decision under subsection (5) to refuse
to exclude the information.
Inspection of register
(7) A person may, at any time during ordinary office hours in the place
where the register is kept, inspect or make copies of, or take
extracts from, the register.
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Section 95ZD
Competition and Consumer Act 2010 567
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Validity of acts done
(8) The validity of an act done by the Commission in relation to a
locality notice is not affected by a failure of the Commission to
comply with this section.
95ZD Delegation by Commission
(1) The Commission may, by writing, delegate to a member of the
Commission:
(a) the Commission’s price notification powers in relation to
specified locality notices; and
(b) the Commission’s power under section 95ZJ relating to a
notice given by the member exercising (as a delegate) the
Commission’s price notification powers.
(2) In this section:
price notification powers means the Commission’s powers under
paragraph 95Z(6)(b) or (c).
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Section 95ZE
568 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 5—Price monitoring
95ZE Directions to monitor prices, costs and profits of an industry
(1) The Minister may give the Commission a written direction:
(a) to monitor prices, costs and profits relating to the supply of
goods or services by persons in a specified industry; and
(b) to give the Minister a report on the monitoring at a specified
time or at specified intervals within a specified period.
Commercial confidentiality
(2) The Commission must, in preparing such a report, have regard to
the need for commercial confidentiality.
Public inspection
(3) The Commission must make copies of the report available for
public inspection as soon as practicable after it gives the Minister
the report.
95ZF Directions to monitor prices, costs and profits of a business
(1) The Minister may give the Commission a written direction:
(a) to monitor prices, costs and profits relating to the supply of
goods or services by a specified person; and
(b) to give the Minister a report on the monitoring at a specified
time or at specified intervals within a specified period.
Commercial confidentiality
(2) The Commission must, in preparing such a report, have regard to
the need for commercial confidentiality.
Commission to send person a copy of the report
(3) The Commission must send the person a copy of the report on the
day it gives the Minister the report.
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Section 95ZG
Competition and Consumer Act 2010 569
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Public inspection
(4) The Commission must also make copies of the report available for
public inspection as soon as practicable after the person has
received a copy of the report.
95ZG Exceptions to price monitoring
Exempt supplies
(1) The Minister must not direct the Commission under this Division
to monitor prices, costs and profits relating to a supply of goods or
services of a particular description that is an exempt supply in
relation to goods or services of that description.
State or Territory authorities
(2) The Minister must not direct the Commission under this Division
to monitor prices, costs and profits of a State or Territory authority
that supplies goods or services unless the State or Territory
concerned has agreed to the direction being given.
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Section 95ZH
570 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 6—Other provisions
95ZH Ministerial directions
Commission
(1) The Minister may, by notice in writing give to the Chairperson,
direct the Commission to give special consideration to a specified
matter or matters in exercising its powers and performing its
functions under this Part.
(2) The Commission must comply with any such directions.
Other bodies
(3) The Minister may, by notice in writing given to the person
presiding at an external inquiry, direct the body holding the inquiry
to give special consideration to a specified matter or matters in
holding the inquiry.
(4) The body must comply with any such directions.
95ZI Inquiries by an unincorporated body or a group of 2 or more
individuals
(1) This section applies to inquiries by an unincorporated body or a
group of 2 or more individuals.
(2) The regulations may make provision for and in relation to the
manner in which the unincorporated body or group of individuals
is to:
(a) give a notice, report or other document to a person under this
Part; or
(b) do any other thing under this Part.
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Section 95ZJ
Competition and Consumer Act 2010 571
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95ZJ Withdrawal of notices
Commission
(1) The Commission may give a person a notice (the withdrawal
notice) in writing withdrawing a notice it previously gave the
person under this Part (other than this section).
(2) If the Commission does so, this Part has effect, from the time at
which the withdrawal notice is given to the person, as if the other
notice had not been given to the person.
Other bodies
(3) The body holding an external inquiry may give a person a notice
(the withdrawal notice) in writing withdrawing a notice it
previously gave the person under this Part (other than this section).
(4) If the body does so, this Part has effect, from the time at which the
withdrawal notice is given to the person, as if the other notice had
not been given to the person.
95ZK Power to obtain information or documents
Notice by Commission
(1) If the Chairperson has reason to believe that a person is capable of
giving information or producing documents relevant to:
(a) the Commission considering the matters contained in a
locality notice that the person has given it; or
(b) an inquiry that is being held in relation to the person; or
(c) a supply of goods or services by the person that is of a kind
in relation to which the Commission is carrying out an
inquiry; or
(d) a supply of goods or services by the person that is of a kind
in relation to which the Commission is monitoring under
section 95ZE or 95ZF;
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572 Competition and Consumer Act 2010
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the Chairperson may, by notice in writing signed by him or her and
given to the person, require the person to do one or more of the
following:
(e) give the Commission, by writing signed by the person or his
or her agent or, in the case of a Commonwealth authority or a
body corporate, by a competent officer of the authority or
body, within the specified period and in the specified
manner, specified information relating to the affairs of the
person;
(f) produce to the Commission, within the specified period and
in the specified manner, specified documents relating to the
affairs of the person;
(g) if the person is a body corporate and the notice relates to the
matter in paragraph (d)—give the Commission, together with
the information or documents concerned, a declaration in a
form approved by the Chairperson and signed by:
(i) the Chief Executive Officer (however described) of the
body corporate; or
(ii) a person nominated by the Chief Executive Officer;
stating that the information or documents are true and
correct.
Notice by other bodies
(2) If:
(a) an external inquiry is being held in relation to a person; and
(b) the inquiry Chair has reason to believe that the person is
capable of giving information or producing documents
relevant to the inquiry;
the inquiry Chair may, by notice in writing signed by him or her
and given to the person, require the person:
(c) to give the body, by writing signed by the person or his or her
agent or, in the case of a Commonwealth authority or a body
corporate, by a competent officer of the authority or body,
within the specified period and in the specified manner,
specified information relating to the affairs of the person; or
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(d) to produce to the body, within the specified period and in the
specified manner, specified documents relating to the affairs
of the person.
Period specified in notice
(3) A period specified in a notice under subsection (1) or (2) must end
at least 14 days after the notice was given.
Offence: refusal or failure to comply with notice
(4) A person commits an offence if the person refuses or fails to
comply with a notice given to the person under this section.
Penalty: 20 penalty units.
(5) Subsection (4) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (5) (see subsection 13.3(3) of the Criminal Code).
(6) It is a reasonable excuse for the purposes of subsection (4) for an
individual to refuse or fail to give information or produce a
document on the ground that the information or production of the
document might tend to incriminate the individual or to expose the
individual to a penalty.
(7) Subsection (6) does not limit what is a reasonable excuse for the
purposes of subsection (5).
Offence: false or misleading declarations
(8) A person must not, in a declaration made for the purposes of
paragraph (1)(g), make a statement if the person knows, or is
reckless as to whether, the statement is false or misleading.
Penalty: 20 penalty units.
Making information or documents publicly available
(9) If:
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574 Competition and Consumer Act 2010
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(a) a notice is given to a person under this section relating to an
inquiry that is being held in public in relation to the person;
and
(b) the person gives the information concerned or produces the
documents concerned to the inquiry body in connection with
the inquiry;
the inquiry body must make the information or documents
available to the public in such manner as it thinks fit.
Note: See also section 95ZN (about confidentiality of information).
95ZL Inspection of documents etc.
Members or staff members
(1) A member of the Commission, or a member of the staff of the
Commission, may inspect documents:
(a) given to the Commission for the purposes of the exercise of
its powers or the performance of its functions under this Part;
or
(b) produced at an inquiry.
(2) A member of the Commission, or a member of the staff of the
Commission, may also make copies of, or take extracts from, those
documents.
Associate members
(3) An associate member of the Commission may inspect documents:
(a) given to the Commission for the purposes of the exercise of
its powers or the performance of its functions under this Part
in relation to an inquiry for the purposes of which the
Chairperson has directed that the associate member be taken
to be a member of the Commission; or
(b) produced at that inquiry.
(4) An associate member of the Commission may also make copies of,
or take extracts from, those documents.
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Section 95ZM
Competition and Consumer Act 2010 575
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External inquiries
(5) In an external inquiry, the person presiding at the inquiry, or a
person providing assistance in the inquiry to the body holding the
inquiry, may:
(a) inspect documents given to the body for the purposes of the
inquiry; and
(b) make copies of, or take extracts from, those documents.
95ZM Retention of documents
(1) The Commission, or a body other than the Commission, may retain
a document given or produced to it as mentioned in section 95ZL.
It may retain the document for such reasonable period as it thinks
fit.
(2) The person otherwise entitled to possession of the document is
entitled to be supplied, as soon as practicable, with a copy certified
by the Commission or other body, as the case may be, to be a true
copy.
(3) The certified copy must be received in all courts and tribunals as
evidence as if it were the original.
(4) Until a certified copy is supplied, the Commission or other body,
as the case may be, must, at such times and places as it thinks
appropriate, permit the person otherwise entitled to possession of
the document, or a person authorised by that person, to inspect and
make copies of, or take extracts from, the document.
95ZN Confidential information
(1) This section applies if a person claims that disclosure of the
following information would damage the competitive position of
the person:
(a) information made available, or to be made available, by or on
behalf of the person (whether in oral evidence or in a written
statement, submission or other document) at the hearing of an
inquiry by the Commission or another body;
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Section 95ZO
576 Competition and Consumer Act 2010
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(b) information given, or contained in a document produced, by
the person under section 95ZK to the Commission or another
body.
Commission or other body to take confidentiality steps
(2) If the Commission or other body, as the case may be:
(a) is satisfied that the claim is justified; and
(b) is not of the opinion that disclosure of the information is
necessary in the public interest;
it must take all reasonable steps to ensure that the information is
not disclosed, without the consent of the person, in the proceedings
or by it, to a person other than:
(c) in relation to the Commission:
(i) a member of the Commission or an associate member of
the Commission; or
(ii) a member of the staff of the Commission who receives
the information in the course of his or her duties; or
(d) in relation to the other body:
(i) the person presiding at the inquiry concerned; or
(ii) a person providing assistance in the inquiry to the other
body.
Interpretation
(3) This section has effect despite anything in sections 95R and 95ZK.
95ZO Immunity
Members or associate members of the Commission
(1) A member of the Commission, or an associate member of the
Commission, has, in the performance of his or her functions or the
exercise of his or her powers under this Part as a member or
associate member, the same protection and immunity as a Justice
of the High Court.
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Section 95ZP
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Person presiding at an external inquiry
(2) In an external inquiry, the person presiding at the inquiry has, in
the performance of his or her functions or the exercise of his or her
powers under this Part in that capacity, the same protection and
immunity as a Justice of the High Court.
95ZP Secrecy: members or staff members of the Commission etc.
Offence
(1) An entrusted person commits an offence if:
(a) the person:
(i) makes a copy or other record of any protected
information or of all or part of any protected document;
or
(ii) discloses any protected information to another person or
to a court; or
(iii) produces all or part of a protected document to another
person or to a court; and
(b) in doing so, the person is not acting in the course of
performing or exercising functions, powers or duties under or
in relation to this Act.
Penalty: Imprisonment for 2 years.
Courts
(2) An entrusted person cannot be required to:
(a) disclose any protected information to a court; or
(b) produce all or part of a protected document to a court;
unless that disclosure or production is necessary for the purpose of
carrying into effect the provisions of this Act.
Definitions
(3) In this section:
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Section 95ZQ
578 Competition and Consumer Act 2010
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court includes any tribunal, authority or person having power to
require the production of documents or the answering of questions.
entrusted person means a person who is or was:
(a) a member of the Commission or an associate member of the
Commission; or
(b) a member of the staff of the Commission; or
(c) appointed or engaged under the Public Service Act 1999.
produce includes permit access to.
protected document means a document that:
(a) is given to or otherwise acquired by the Commission for the
purposes of this Part; and
(b) has not been made available to the public by the Commission
under this Part.
protected information means information that:
(a) is disclosed to, or obtained by, an entrusted person for the
purposes of this Part or as permitted by the repealed Part; and
(b) has not been made available to the public under this Part by
the Commission and is not contained in oral evidence given
in public at the hearing of an inquiry.
repealed Part means Part V of the Prices Surveillance Act 1983, as
continued in operation by Schedule 2 to the Trade Practices
Legislation Amendment Act 2003.
95ZQ Secrecy: persons involved in inquiries by bodies other than
the Commission
Offence
(1) An external person commits an offence if:
(a) the person:
(i) makes a copy or other record of any protected
information or of all or part of any protected document;
or
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(ii) discloses any protected information to another person or
to a court; or
(iii) produces all or part of a protected document to another
person or to a court; and
(b) in doing so, the person is not acting in the course of
performing or exercising functions, powers or duties under or
in relation to this Act.
Penalty: Imprisonment for 2 years.
Courts
(2) An external person cannot be required to:
(a) disclose any protected information to a court; or
(b) produce all or part of a protected document to a court;
unless that disclosure or production is necessary for the purpose of
carrying into effect the provisions of this Act.
Definitions
(3) In this section:
court includes any tribunal, authority or person having power to
require the production of documents or the answering of questions.
external person means a person who is or was:
(a) the person presiding at an external inquiry; or
(b) a person providing assistance in such an inquiry to the body
holding the inquiry.
produce includes permit access to.
protected document means a document that:
(a) is given to or otherwise acquired by the body holding the
external inquiry concerned for the purposes of that inquiry;
and
(b) has not been made available to the public by that body under
this Part.
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protected information means information that:
(a) is disclosed to, or obtained by, an external person for the
purposes of the inquiry concerned; and
(b) has not been made available to the public under this Part by
the body holding that inquiry and is not contained in oral
evidence given in public at the hearing of that inquiry.
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Section 96
Competition and Consumer Act 2010 581
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Part VIII—Resale price maintenance
96 Acts constituting engaging in resale price maintenance
(1) Subject to this Part, a corporation (in this section called the
supplier) engages in the practice of resale price maintenance if that
corporation does an act referred to in any of the paragraphs of
subsection (3).
(2) Subject to this Part, a person (not being a corporation and also in
this section called the supplier) engages in the practice of resale
price maintenance if that person does an act referred to in any of
the paragraphs of subsection (3) where the second person
mentioned in that paragraph is a corporation.
(3) The acts referred to in subsections (1) and (2) are the following:
(a) the supplier making it known to a second person that the
supplier will not supply goods to the second person unless
the second person agrees not to sell those goods at a price
less than a price specified by the supplier;
(b) the supplier inducing, or attempting to induce, a second
person not to sell, at a price less than a price specified by the
supplier, goods supplied to the second person by the supplier
or by a third person who, directly or indirectly, has obtained
the goods from the supplier;
(c) the supplier entering into an agreement, or offering to enter
into an agreement, for the supply of goods to a second
person, being an agreement one of the terms of which is, or
would be, that the second person will not sell the goods at a
price less than a price specified, or that would be specified,
by the supplier;
(d) the supplier withholding the supply of goods to a second
person for the reason that the second person:
(i) has not agreed as mentioned in paragraph (a); or
(ii) has sold, or is likely to sell, goods supplied to him or her
by the supplier, or goods supplied to him or her by a
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third person who, directly or indirectly, has obtained the
goods from the supplier, at a price less than a price
specified by the supplier as the price below which the
goods are not to be sold;
(e) the supplier withholding the supply of goods to a second
person for the reason that a third person who, directly or
indirectly, has obtained, or wishes to obtain, goods from the
second person:
(i) has not agreed not to sell those goods at a price less than
a price specified by the supplier; or
(ii) has sold, or is likely to sell, goods supplied to him or
her, or to be supplied to him or her, by the second
person, at a price less than a price specified by the
supplier as the price below which the goods are not to
be sold; and
(f) the supplier using, in relation to any goods supplied, or that
may be supplied, by the supplier to a second person, a
statement of a price that is likely to be understood by that
person as the price below which the goods are not to be sold.
(4) For the purposes of subsection (3):
(a) where a price is specified by another person on behalf of the
supplier, it shall be deemed to have been specified by the
supplier;
(b) where the supplier makes it known, in respect of goods, that
the price below which those goods are not to be sold is a
price specified by another person in respect of those goods,
or in respect of goods of a like description, that price shall be
deemed to have been specified, in respect of the
first-mentioned goods, by the supplier;
(c) where a formula is specified by or on behalf of the supplier
and a price may be ascertained by calculation from, or by
reference to, that formula, that price shall be deemed to have
been specified by the supplier; and
(d) where the supplier makes it known, in respect of goods, that
the price below which those goods are not to be sold is a
price ascertained by calculation from, or by reference to, a
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formula specified by another person in respect of those goods
or in respect of goods of a like description, that price shall be
deemed to have been specified, in respect of the
first-mentioned goods, by the supplier.
(5) In subsection (4), formula includes a set form or method.
(6) For the purposes of subsection (3), anything done by a person
acting on behalf of, or by arrangement with, the supplier shall be
deemed to have been done by the supplier.
(7) A reference in any of paragraphs (3)(a) to (e), inclusive, including
a reference in negative form, to the selling of goods at a price less
than a price specified by the supplier shall be construed as
including references to:
(a) the advertising of goods for sale at a price less than a price
specified by the supplier as the price below which the goods
are not to be advertised for sale;
(b) the displaying of goods for sale at a price less than a price
specified by the supplier as the price below which the goods
are not to be displayed for sale; and
(c) the offering of goods for sale at a price less than a price
specified by the supplier as the price below which the goods
are not to be offered for sale;
and a reference in paragraph (3)(d), (e) or (f) to a price below
which the goods are not to be sold shall be construed as including a
reference to the price below which the goods are not to be
advertised for sale, to the price below which the goods are not to be
displayed for sale and to the price below which the goods are not to
be offered for sale.
96A Resale price maintenance in relation to services
(1) This Part applies to conduct in relation to services in a way that
corresponds to the way it applies to conduct in relation to goods.
(2) For the purposes of subsection (1), this Part is to be read with
appropriate modifications, including the following modifications:
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(a) references in this Part to goods are to be read as references to
services;
(b) references to the sale of goods are to be read as references to
the re-supply of services.
97 Recommended prices
For the purposes of paragraph 96(3)(b), the supplier is not to be
taken as inducing, or attempting to induce, a second person as
mentioned in that paragraph in relation to any goods:
(a) by reason only of a statement of a price being applied to the
goods as mentioned in paragraph 99(1)(a) or being applied to
a covering, label, reel or thing as mentioned in
paragraph 99(1)(b), provided that the statement is preceded
by the words “recommended price”; or
(b) by reason only of his or her having given notification in
writing to the second person (not being a notification by way
of a statement being applied as mentioned in paragraph (a))
of the price that he or she recommends as appropriate for the
sale of those goods, provided that there is included in the
notification, and in each writing that refers, whether
expressly or by implication, to the notification, a statement to
the following effect:
“The price set out or referred to herein is a recommended
price only and there is no obligation to comply with the
recommendation.”.
98 Withholding the supply of goods
(1) For the purposes of paragraph 96(3)(d) or (e), the supplier shall be
deemed to withhold the supply of goods to another person if:
(a) the supplier refuses or fails to supply those goods to, or as
requested by, the other person;
(b) the supplier refuses to supply those goods except on terms
that are disadvantageous to the other person;
(c) in supplying goods to the other person, the supplier treats that
person less favourably, whether in respect of time, method or
place of delivery or otherwise, than the supplier treats other
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Competition and Consumer Act 2010 585
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persons to whom the supplier supplies the same or similar
goods; or
(d) the supplier causes or procures a person to withhold the
supply of goods to the other person as mentioned in
paragraph (a), (b) or (c) of this subsection.
(2) Paragraph 96(3)(d) does not apply in relation to the withholding by
the supplier of the supply of goods to another person who, within
the preceding year, has sold goods obtained, directly or indirectly,
from the supplier at less than their cost to that other person:
(a) for the purpose of attracting to the establishment at which the
goods were sold persons likely to purchase other goods; or
(b) otherwise for the purpose of promoting the business of that
other person.
(3) For the purposes of subsection (2), there shall be disregarded:
(a) a genuine seasonal or clearance sale of goods that were not
acquired for the purpose of being sold at that sale; or
(b) a sale of goods that took place with the consent of the
supplier.
99 Statements as to the minimum price of goods
(1) For the purposes of paragraph 96(3)(f), if:
(a) a statement is applied to goods, whether by being woven in,
impressed on, worked into or annexed or affixed to the goods
or otherwise;
(b) a statement is applied to a covering, label, reel or thing in or
with which goods are supplied; or
(c) a statement is used in a sign, advertisement, invoice,
catalogue, business letter, business paper, price list or other
document or otherwise in a manner likely to lead to the belief
that it refers to goods;
the statement shall be deemed to have been used in relation to
those goods.
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586 Competition and Consumer Act 2010
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(2) For the purposes of subsection (1), covering includes a stopper,
glass, bottle, vessel, box, capsule, case, frame or wrapper and label
includes a band or ticket.
100 Evidentiary provisions
(1) Where, in proceedings under this Act by a person (in this section
referred to as the plaintiff) against another person (in this section
referred to as the defendant), it is claimed that the defendant has
engaged in the practice of resale price maintenance and it is
established that:
(a) the defendant has acted, in relation to the plaintiff, as
mentioned in paragraph 98(1)(a), (b), (c) or (d);
(b) during a period ending immediately before the time when the
defendant so acted, the defendant had been supplying goods
of the kind withheld to the plaintiff or to another person
carrying on a business similar to that of the plaintiff; and
(c) during the period of 6 months immediately before the time
when the defendant so acted, the defendant became aware of
a matter or circumstance capable of constituting a reason
referred to in paragraph 96(3)(d) or (e) for the defendant’s so
acting;
then, subject to subsection (2), it shall be presumed, unless the
contrary is established, that that matter or circumstance was the
reason for the defendant’s so acting.
(2) Subsection (1) does not apply where the plaintiff establishes the
matter mentioned in paragraph 98(1)(b) or (c) but the terms
disadvantageous to the plaintiff, or the less favourable treatment of
the plaintiff, consisted only of a requirement by the defendant as to
the time at which, or the form in which, payment was to be made
or as to the giving of security to secure payment.
(3) In the application of this section in proceedings by the Commission
for an injunction, references to the plaintiff shall be construed as
references to a person specified in the application for the injunction
as the person in relation to whom the defendant is claimed to have
acted as mentioned in paragraph (1)(a).
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Section 101
Competition and Consumer Act 2010 587
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Part IX—Review by Tribunal of Determinations of
Commission
Division 1—Applications for review (other than for merger
clearances)
101 Applications for review
(1) A person dissatisfied with a determination by the Commission
under Division 1 of Part VII:
(a) in relation to an application for an authorization or a minor
variation of an authorization; or
(b) in relation to the revocation of an authorization, or the
revocation of an authorization and the substitution of another
authorization;
may, as prescribed and within the time allowed by or under the
regulations or under subsection (1B), as the case may be, apply to
the Tribunal for a review of the determination.
(1AAA) Subsection (1) does not apply to a determination under
subsection 89(1A).
(1AA) If:
(a) the person applying under subsection (1) for review of a
determination was the applicant for an authorization, or for
the minor variation of an authorization, for the revocation of
an authorization or for the revocation of an authorization and
the substitution of another authorization; or
(b) the Tribunal is satisfied that the person has a sufficient
interest;
the Tribunal must review the determination.
(1A) Where a person has, whether before or after the commencement of
this subsection, made an application under subsection (1) for a
review of a determination, the Tribunal may, if the Tribunal
determines it to be appropriate, make a determination by consent of
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Section 101A
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the applicant, the Commission, and all persons who have been
permitted under subsection 109(2) to intervene in the proceedings
for review, whether or not the Tribunal is satisfied of the matters
referred to in subsection 90(5A), (5B), (5C), (5D), (6), (7), (8),
(8A), (8B) or (9).
(1B) A presidential member may, on the application of a person
concerned:
(a) in an application for an authorization under subsection 88(9);
or
(b) in an application for a minor variation or a revocation of such
an authorization; or
(c) in an application for the revocation of such an authorization
and the substitution of another authorization;
shorten the time allowed by or under the regulations within which
an application under subsection (1) may be made for a review of
the determination by the Commission of the application referred to
in paragraph (a), (b) or (c) if the member is satisfied that special
circumstances exist and that, in all the circumstances, it would not
be unfair to do so.
(2) A review by the Tribunal is a re-hearing of the matter and
subsections 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) and
(9), 91A(4), 91A(5), 91B(5) and 91C(7) apply in relation to the
Tribunal in like manner as they apply in relation to the
Commission.
101A Application for review of notice under subsection 93(3) or (3A)
or 93AC(1) or (2)
A person dissatisfied with the giving of a notice by the
Commission under subsection 93(3) or (3A) or 93AC(1) or (2)
may, as prescribed and within the time allowed by or under the
regulations, apply to the Tribunal for a review of the giving of the
notice and, if the person was the person to whom the notice was
given or the Tribunal is satisfied that the person has a sufficient
interest, the Tribunal shall review the giving of the notice.
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102 Functions and powers of Tribunal
(1) On a review of a determination of the Commission under
Division 1 of Part VII in relation to:
(a) an application for an authorization; or
(b) an application for a minor variation of an authorization; or
(c) an application for, or the Commission’s proposal for, the
revocation of an authorization; or
(d) an application for, or the Commission’s proposal for, the
revocation of an authorization and the substitution of another
authorization;
the Tribunal may make a determination affirming, setting aside or
varying the determination of the Commission and, for the purposes
of the review, may perform all the functions and exercise all the
powers of the Commission.
(1A) If a person applies to the Tribunal for review of a determination of
the Commission relating to:
(a) the grant of an authorisation under subsection 88(9); or
(b) the minor variation, or the revocation, of an authorization
granted under that subsection; or
(c) the revocation of an authorization granted under that
subsection and the substitution of another authorization;
the Tribunal must make its determination on the review within 60
days after receiving the application for review.
(1B) The 60 day time limit in subsection (1A) does not apply if the
Tribunal considers that the matter cannot be dealt with properly
within that period of 60 days, either because of its complexity or
because of other special circumstances.
(1C) If subsection (1B) applies, the Tribunal must notify the applicant
before the end of the 60 day period that the matter cannot be dealt
with properly within that period.
(2) A determination by the Tribunal affirming, setting aside or varying
a determination of the Commission under Division 1 of Part VII in
relation to:
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(a) an application for an authorization; or
(b) an application for a minor variation of an authorization; or
(c) an application for, or the Commission’s proposal for, the
revocation of an authorization; or
(d) an application for, or the Commission’s proposal for, the
revocation of an authorization and the substitution of another
authorization;
is, for the purposes of this Act other than this Part, to be taken to be
a determination of the Commission.
(4) Upon a review of the giving of a notice by the Commission under
subsection 93(3):
(a) if the person who applied for the review satisfies the Tribunal
that:
(i) the conduct or proposed conduct does not and would not
have the purpose, and does not and is not likely to have
or would not have and would not be likely to have the
effect, of substantially lessening competition (within the
meaning of section 47); or
(ii) in all the circumstances:
(A) the conduct or proposed conduct has resulted or
is likely to result, or would result or be likely to
result, in a benefit to the public; and
(B) that benefit outweighs or would outweigh the
detriment to the public constituted by any
lessening of competition that has resulted or is
likely to result, or would result or be likely to
result, from the conduct or proposed conduct;
the Tribunal must make a determination setting aside the
notice; or
(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(5) Where the Tribunal makes a determination setting aside a notice
given by the Commission under subsection 93(3), then, after the
setting aside of the notice, subsection 93(7) has effect in relation to
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the conduct referred to in the notice as if the Commission had not
given the notice.
(5AA) Upon a review of the giving of a notice by the Commission under
subsection 93AC(1):
(a) if the person who applied for the review satisfies the Tribunal
that any benefit to the public that has resulted or is likely to
result or would result or be likely to result from the provision
outweighs or would outweigh the detriment to the public that
has resulted or is likely to result or would result or be likely
to result from the provision—the Tribunal must make a
determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(5AB) Upon a review of the giving of a notice by the Commission under
subsection 93AC(2):
(a) if the person who applied for the review satisfies the Tribunal
that:
(i) the provision does not and would not have the purpose,
and does not and is not likely to have or would not have
and would not be likely to have the effect, of
substantially lessening competition (within the meaning
of section 45); or
(ii) in all the circumstances:
(A) the provision has resulted or is likely to result,
or would result or be likely to result, in a
benefit to the public; and
(B) that benefit outweighs or would outweigh the
detriment to the public constituted by any
lessening of competition that has resulted or is
likely to result, or would result or be likely to
result, from the provision;
the Tribunal must make a determination setting aside the
notice; or
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(b) if the person who applied for the review does not so satisfy
the Tribunal—the Tribunal must make a determination
affirming the notice.
(5AC) If the Tribunal sets aside a notice (the objection notice) given by
the Commission under subsection 93AC(1) or (2), then:
(a) if the Commission gave the objection notice as part of a
process starting when the Commission gave a notice under
subsection 93A(2) (conference notice) during the period
described in paragraph 93AD(1)(a)—the Commission is
taken for the purposes of paragraph 93AD(1)(b) to have
decided not to give the objection notice at the time the
Tribunal set it aside; and
(b) for the purposes of subsections 93AD(2) and (3), the
objection notice is taken not to have been given.
(5A) The Tribunal must set aside a notice under subsection 93(3A) if the
person who applied for a review of the giving of the notice satisfies
the Tribunal that the likely benefit to the public from the conduct
or proposed conduct to which the notice relates will outweigh the
likely detriment to the public from the conduct or proposed
conduct.
(5B) The Tribunal must affirm the giving of a notice under
subsection 93(3A) if the person who applied for a review of the
giving of the notice does not satisfy the Tribunal as described in
subsection (5A).
(5C) If the Tribunal sets aside a notice given by the Commission under
subsection 93(3A), then:
(a) if the Commission gave the notice as part of a process
starting when the Commission gave a notice under
subsection 93A(2) during the period described in
paragraph 93(7A)(a)—the Commission is taken for the
purposes of paragraph 93(7A)(b) to have decided not to give
the notice under subsection 93(3A) at the time the Tribunal
set aside the notice given under subsection 93(3A); and
(b) for the purposes of subsections 93(7B) and (7C) the notice is
taken not to have been given.
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(6) For the purposes of a review by the Tribunal under this Division,
the member of the Tribunal presiding at the review may require the
Commission to furnish such information, make such reports and
provide such other assistance to the Tribunal as the member
specifies.
(7) For the purposes of a review under this Division, the Tribunal may
have regard to any information furnished, documents produced or
evidence given to the Commission in connexion with the making
of the determination, or the giving of the notice, to which the
review relates.
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Division 2—Procedure and Evidence
102A Definition
In this Part:
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 Commission’s decisions on merger clearances).
103 Procedure generally
(1) In proceedings before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the
regulations, within the discretion of the Tribunal;
(b) the proceedings shall be conducted with as little formality
and technicality, and with as much expedition, as the
requirements of this Act and a proper consideration of the
matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence.
(2) The powers of the Tribunal with respect to matters of procedure in
particular proceedings may be exercised by a presidential member.
(3) The powers mentioned in subsection (2) may be exercised by a
presidential member:
(a) whether or not the Tribunal has been constituted under
section 37 in relation to the proceedings; and
(b) once the Tribunal is so constituted—whether or not that
member is part of the Division of the Tribunal so constituted.
104 Regulations as to certain matters
The regulations may make provision:
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(a) for securing, by means of preliminary statements of facts and
contentions, and by the production of documents, that all
material facts and considerations are brought before the
Tribunal by all persons participating in any proceedings
before the Tribunal; and
(aa) with respect to evidence in proceedings before the Tribunal,
including the appointment of persons to assist the Tribunal
by giving evidence (whether personally or by means of a
written report); and
(b) with respect to the representation in any such proceedings of
persons having a common interest in the proceedings.
105 Power to take evidence on oath
(1) The Tribunal may take evidence on oath or affirmation and for that
purpose a member of the Tribunal may administer an oath or
affirmation.
(2) A member of the Tribunal may summon a person to appear before
the Tribunal to give evidence and to produce such documents (if
any) as are referred to in the summons.
106 Hearings to be in public except in special circumstances
(1) Subject to this section, the hearing of proceedings before the
Tribunal shall be in public.
(2) Where the Tribunal is satisfied that it is desirable to do so by
reason of the confidential nature of any evidence or matter or for
any other reason, the Tribunal may:
(a) direct that a hearing or part of a hearing shall take place in
private and give directions as to the persons who may be
present; or
(b) give directions prohibiting or restricting the publication of
evidence given before the Tribunal, whether in public or in
private, or of matters contained in documents filed or lodged
with the Registrar, received in evidence by the Tribunal or
placed in the records of the Tribunal.
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(3) The powers of the Tribunal under this section may be exercised by
the Tribunal as constituted for the purposes of the hearing or by the
Tribunal constituted by a presidential member.
107 Evidence in form of written statement
The Tribunal may permit a person appearing as a witness before
the Tribunal to give evidence by tendering, and, if the Tribunal
thinks fit, verifying by oath or affirmation, a written statement,
which shall be filed with the Registrar.
108 Taking of evidence by single member
The Tribunal as constituted for the purposes of any proceedings in
which evidence may be taken may authorize a presidential member
to take evidence for the purposes of the proceedings on its behalf,
with such limitations (if any) as the Tribunal so constituted directs,
and, where such an authority is given:
(a) that member may take evidence accordingly; and
(b) for the purposes of this Act, that member shall, in relation to
the taking of evidence in accordance with the authority, be
deemed to constitute the Tribunal.
109 Participants in proceedings before Tribunal
(1) A person to whom an authorization under Division 1 of Part VII
was granted is entitled to participate in any proceedings before the
Tribunal instituted by another person in relation to that
authorization.
(1A) A person to whom a notice was given by the Commission under
subsection 93(3) or (3A) or 93AC(1) or (2) is entitled to participate
in any proceedings before the Tribunal instituted by another person
in relation to that notice.
(2) The Tribunal may, upon such conditions as it thinks fit, permit a
person to intervene in proceedings before the Tribunal.
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110 Representation
In proceedings before the Tribunal:
(a) a natural person may appear in person;
(aa) a person other than a body corporate may be represented by
an employee of the person approved by the Tribunal;
(b) a body corporate may be represented by an employee, or a
director or other officer, of the body corporate approved by
the Tribunal;
(c) an unincorporated association of persons or a member of an
unincorporated association of persons may be represented by
a member or officer of the association approved by the
Tribunal; and
(d) any person may be represented by a barrister or a solicitor of
the Supreme Court of a State or Territory or of the High
Court.
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Division 3—Review of Commission’s determinations on
merger clearances
111 Applications for review
(1) A person who applied under Subdivision B of Division 3 of
Part VII for:
(a) a clearance; or
(b) a minor variation of a clearance; or
(c) a revocation of a clearance; or
(d) a revocation of a clearance and a substitution of another
clearance;
and who is dissatisfied with the determination by the Commission
in relation to the application may, as prescribed and within the time
allowed by or under the regulations or under subsection (5), apply
to the Tribunal for a review of the determination.
(2) A person who was granted a clearance under Subdivision B of
Division 3 of Part VII that was:
(a) revoked by a determination of the Commission under
section 95AS; or
(b) revoked and substituted with another clearance by a
determination of the Commission under section 95AS;
may, as prescribed and within the time allowed by or under the
regulations, apply to the Tribunal for a review of the determination.
(2A) The regulations may make it a requirement that an applicant under
subsection (1) or (2) give an undertaking under section 87B that
the applicant will not make the acquisition while the application is
being considered by the Tribunal.
(3) The Tribunal must review the determination after receiving the
application and the prescribed fee.
Note: Division 2 contains provisions about procedure and evidence that
relate to proceedings before the Tribunal.
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(4) If a person has made an application under subsection (1) or (2) for
a review of a determination, the Tribunal may, if the Tribunal
determines it to be appropriate, make a determination by consent of
the applicant and the Commission, whether or not the Tribunal is
satisfied of the matters referred to in section 95AN.
(5) A presidential member may, on the application by the applicant,
shorten the time allowed by or under the regulations within which
an application under subsection (1) may be made if the member is
satisfied that special circumstances exist and that, in all the
circumstances, it would not be unfair to do so.
112 Tribunal to notify Commission
The Tribunal must notify the Commission of the application for
review.
113 Commission to give material to Tribunal
(1) After being notified of the application for review, the Commission
must, within 2 business days, give to the Tribunal all the
information that the Commission took into account in connection
with the making of the determination to which the review relates.
(1A) The Commission must identify which of that information (if any)
the Commission excluded from the merger clearance register under
subsection 95AI(3), (4) or (7).
(2) In this section:
business day means a day that is not a Saturday, a Sunday, or a
public holiday in the Australian Capital Territory.
merger clearance register means the register kept under
section 95AH.
114 Tribunal may consult etc. to clarify information
(1) The Tribunal may seek such relevant information, and consult with
such persons, as it considers reasonable and appropriate for the
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purposes of clarifying the information given to it under
section 113.
(2) The Tribunal may disclose information identified under
subsection 113(1A) to such persons and on such terms as it
considers reasonable and appropriate for the purposes of clarifying
the information.
115 Commission to assist Tribunal
For the purposes of the review, the member of the Tribunal
presiding at the review may require the Commission to give such
information, make such reports and provide such other assistance
to the Tribunal as the member specifies.
116 Tribunal only to consider material before the Commission
For the purposes of the review, the Tribunal may have regard only
to:
(a) the information given to the Commission in connection with
the making of the determination to which the review relates
and that was given to the Tribunal under section 113; and
(b) any other information that was referred to in the
Commission’s reasons for making the determination to which
the review relates; and
(c) any information given to the Tribunal under section 114; and
(d) any information or report given to the Tribunal under
section 115.
117 Tribunal to make decision on review
On the review of the Commission’s determination, the Tribunal
must make a determination affirming, setting aside or varying the
Commission’s determination.
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118 Time limits for making review decision
(1) The Tribunal must make its decision on the review within 30
business days after receiving the application for review.
(2) However, if before the end of that period the Tribunal decides that
the matter cannot be dealt with properly within that period, either
because of its complexity or because of other special
circumstances, the period is extended by a further 60 business
days.
(3) If the Tribunal makes a decision under subsection (2), the Tribunal
must notify the applicant of it before the end of the 30 business day
period.
(3A) If the Tribunal has not made its decision on the review within the
period applicable under subsection (1) or (2), the Tribunal is taken
to have made a determination affirming the Commission’s
determination.
(4) In this section:
business day means a day that is not a Saturday, a Sunday, or a
public holiday in the Australian Capital Territory.
119 Tribunal’s decision taken to be Commission’s
The Tribunal’s decision affirming, setting aside or varying the
Commission’s determination is, for the purposes of this Act other
than this Part, taken to be the Commission’s determination.
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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 X—International liner cargo shipping 1
Division 1—Preliminary 1
10.01 Objects of Part...................................................................1
10.01A Simplified outline..............................................................2
10.02 Interpretation .....................................................................3
10.02A Inland terminals...............................................................11
10.03 Designated shipper bodies...............................................12
Division 2—Additional restrictive trade practice provisions
applying to ocean carriers 15
10.04 Application of section 46 in relation to conference
agreements.......................................................................15
Division 3—Minimum standards for conference agreements 16
10.06 Application of Australian law to outwards
conference agreements and withdrawal from
agreements.......................................................................16
10.07 Minimum levels of shipping services to be
specified in conference agreements .................................16
10.08 Conference agreements may include only certain
restrictive trade practice provisions .................................16
10.09 Where may consequences of conference
agreements not complying with minimum
standards be found?.........................................................18
Division 4—Registers and files and public inspection of them 19
10.10 Registers and conference agreement files open to
public inspection .............................................................19
10.11 What registers are to be kept by the Registrar? ...............19
10.12 What conference agreement files are to be kept by
the Registrar? ..................................................................19
10.13 What register is to be kept by the Commission?..............20
Division 5—Exemptions from certain restrictive trade practice
prohibitions 21
Subdivision A—Exemptions relating to conference agreements 21
10.14 Exemptions apply only to certain activities .....................21
10.15 When do exemptions commence to apply in
relation to registered conference agreements? .................21
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10.16 Exemptions do not apply to variations of
conference agreement unless varying agreement
registered .........................................................................22
10.17 Exemptions from sections 44ZZRF, 44ZZRG,
44ZZRJ, 44ZZRK and 45................................................22
10.17A Exemptions from sections 44ZZRF, 44ZZRG,
44ZZRJ, 44ZZRK and 45 for freight rate
agreements.......................................................................23
10.18 Exemption from section 47 .............................................24
10.18A Exemptions from section 47 for freight rate
agreements.......................................................................25
Subdivision B—Exemptions relating to loyalty agreements 26
10.19 Exemptions from sections 44ZZRF, 44ZZRG,
44ZZRJ, 44ZZRK and 45................................................26
10.20 Exemption from section 47 .............................................26
10.21 Exemptions cease to apply in relation to a shipper
at the shipper’s option .....................................................26
Subdivision D—Other exemptions 27
10.24 Exemptions from sections 44ZZRF, 44ZZRG,
44ZZRJ, 44ZZRK, 45 and 47 in relation to certain
negotiations .....................................................................27
10.24A Exemptions from sections 44ZZRF, 44ZZRG,
44ZZRJ, 44ZZRK, 45 and 47 in relation to
stevedoring contracts.......................................................27
Division 6—Registration of conference agreements 29
Subdivision A—Provisional registration 29
10.25 Application for provisional registration of
conference agreement......................................................29
10.26 How application is to be made and verified ....................29
10.27 Copy of agreement to be filed with application etc. ........29
10.27A Copy of conference agreement to be given to
designated peak shipper body..........................................30
10.28 Decision on application for provisional registration........31
10.29 Parties to conference agreement to negotiate
minimum level of shipping services after
provisional registration of agreement ..............................33
Subdivision B—Final registration 35
10.30 Application for final registration of conference
agreement ........................................................................35
10.31 How application is to be made and verified ....................35
10.32 Copy of agreement to be filed with application etc. ........35
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10.33 Decision on application for final registration ..................36
Subdivision C—Confidentiality requests 38
10.34 Request for confidentiality ..............................................38
10.35 Abstract to accompany request for confidentiality ..........38
10.36 Examination of abstract...................................................38
10.37 Decision on request for confidentiality............................39
10.38 Application for registration to be returned where
request for confidentiality refused etc. ............................40
Subdivision D—Miscellaneous 40
10.39 Application also to be made for registration of
varying conference agreements .......................................40
10.40 Notification of happening of affecting events prior
to final registration etc.....................................................41
Division 7—Obligations of ocean carriers in relation to
registered conference agreements 43
10.41 Parties to registered conference agreement to
negotiate with certain designated shipper bodies
etc. ...................................................................................43
10.42 Application to be made for registration of varying
conference agreements ....................................................45
10.43 Parties to registered conference agreement to
notify happening of affecting events etc..........................45
Division 8—Powers of Minister in relation to registered
conference agreements 47
10.44 Powers exercisable by Minister in relation to
registered conference agreements etc. .............................47
10.45 Circumstances in which Minister may exercise
powers in relation to registered conference
agreements.......................................................................48
10.46 Action to be taken where powers exercised by
Minister without first obtaining Commission
report ...............................................................................52
10.47 Investigation and report by Commission on
reference by Minister.......................................................53
10.48 Investigation and report by Commission on own
initiative or on application by affected person.................53
10.49 Undertakings by parties to registered conference
agreement ........................................................................55
10.49A Enforcement of undertakings ..........................................55
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Division 9—Obligations of non-conference ocean carriers with
substantial market power 57
10.50 Investigations by Commission into market power
of ocean carriers ..............................................................57
10.51 Determination by Minister of market power of
ocean carriers...................................................................57
10.52 Non-conference ocean carrier with substantial
market power to negotiate with certain designated
shipper bodies etc. ...........................................................58
10.53 Non-conference ocean carrier with substantial
market power not to hinder Australian flag
shipping operators etc......................................................60
Division 10—Powers of Minister in relation to non-conference
ocean carriers with substantial market power 61
10.54 Powers exercisable by Minister in relation to
obligations of non-conference ocean carriers with
substantial market power .................................................61
10.55 Circumstances in which Minister may exercise
powers .............................................................................61
10.56 Action to be taken where powers exercised by
Minister without first obtaining Commission
report ...............................................................................62
10.57 Investigation and report by Commission on
reference by Minister.......................................................63
10.58 Investigation and report by Commission on
application by affected person.........................................63
10.59 Undertakings by ocean carrier .........................................64
10.60 Enforcement of orders and undertakings .........................65
Division 11—Unfair pricing practices 66
10.61 Powers exercisable by Minister in relation to
pricing practices etc.........................................................66
10.62 Circumstances in which Minister may exercise
powers .............................................................................66
10.63 Investigation and report by Commission .........................67
10.64 Undertakings not to engage in pricing practices..............67
10.65 Enforcement of orders and undertakings .........................68
10.66 Determination of normal freight rates for shipping
services............................................................................68
10.67 Determination of whether practice contrary to
national interest ...............................................................69
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Division 12—Registration of ocean carrier agents 71
10.68 Ocean carrier who provides international liner
cargo shipping services to have registered agent .............71
10.69 Representation of ocean carrier by registered agent ........71
10.70 Application by ocean carrier for registration of
agent ................................................................................72
10.71 Registration of agent .......................................................72
10.72 Change of agent etc. ........................................................73
Division 12A—Exemption orders for inwards conference
agreements etc. 74
10.72A Exemption orders for inwards conference
agreements etc. ................................................................74
10.72B Criteria for making exemption order ...............................75
10.72C Duration of exemption order may be limited...................75
10.72D Conditions of exemption order ........................................75
Division 13—General provisions relating to registers and
conference agreement files 76
10.73 Form of registers and conference agreement files ...........76
10.74 Deletion of entries wrongly existing in certain
registers ...........................................................................76
10.75 Deletion of obsolete entries in certain registers ...............76
10.76 Correction of clerical errors and other mistakes in
certain registers etc. .........................................................76
Division 14—Administration 77
10.77 Registrar of Liner Shipping .............................................77
10.78 Appointment of Registrar etc. .........................................77
10.79 Acting Registrar ..............................................................77
10.80 Registrar and staff to be public servants ..........................77
10.81 Delegation by Minister ....................................................77
10.82 Delegation by Registrar...................................................78
Division 14A—Review of decisions of Commission 79
10.82A Review by Tribunal .........................................................79
10.82B Functions and powers of Tribunal ...................................79
10.82C Provisions that do not apply in relation to a
Tribunal review ...............................................................80
Division 14B—Review of decisions of Minister 81
10.82D Review by Tribunal .........................................................81
10.82E Functions and powers of Tribunal ...................................82
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10.82F Modifying register after Tribunal review ........................82
10.82G Provisions that do not apply in relation to a
Tribunal review ...............................................................83
Division 15—Miscellaneous 84
10.83 Act not to affect rights under Freedom of
Information Act ...............................................................84
10.84 Review of decisions of Registrar.....................................84
10.85 Statement to accompany notices of Registrar ..................84
10.86 Evidence..........................................................................85
10.87 Notification by Commission of references etc.................85
10.88 Exclusion of documents etc. from register of
Commission investigations..............................................86
10.89 Disclosure of confidential information............................87
10.90 Fees .................................................................................89
10.91 Application of Part XID and section 155 to
investigations under Part .................................................89
Part XI—Application of the Australian Consumer Law as a
law of the Commonwealth 90
Division 1—Preliminary 90
130 Definitions.......................................................................90
130A Expressions defined in Schedule 2 ..................................92
Division 2—Application of the Australian Consumer Law as a
law of the Commonwealth 93
Subdivision A—Application of the Australian Consumer Law 93
131 Application of the Australian Consumer Law in
relation to corporations etc. .............................................93
131A Division does not apply to financial services ..................94
131B Division does not apply to interim bans imposed
by State or Territory Ministers ........................................94
131C Saving of other laws and remedies ..................................95
Subdivision B—Effect of other Commonwealth laws on the
Australian Consumer Law 95
131D Effect of Part VIB on Chapter 5 of the Australian
Consumer Law ................................................................95
131E Application of the Legislation Act 2003 ..........................96
131F Section 4AB of the Crimes Act does not apply ...............97
131G Application of the Criminal Code ...................................97
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Division 3—Conferences for proposed bans and recall notices 98
Subdivision A—Conference requirements before a ban or
compulsory recall 98
132 Commonwealth Minister must issue a proposed
ban notice ........................................................................98
132A Commonwealth Minister must issue a proposed
recall notice .....................................................................99
132B Commonwealth Minister to be notified if no
person wishes a conference to be held...........................100
132C Notification of conference.............................................100
132D Recommendation after conclusion of conference..........100
Subdivision B—Conference requirements after an interim ban is
imposed 102
132E Opportunity for a conference after an interim ban
has been imposed by the Commonwealth Minister .......102
132F Notification of conference.............................................102
132G Recommendation after conclusion of conference..........103
Subdivision C—Conduct of conferences 103
132H Conduct of conferences .................................................103
Subdivision D—Miscellaneous 105
132J Interim ban and recall notice without delay in case
of danger to the public...................................................105
132K Copy of notices under this Division to be given to
suppliers ........................................................................105
Division 4—Enforcement 107
Subdivision A—Inspectors 107
133 Appointment of inspectors ............................................107
133A Identity cards .................................................................107
Subdivision B—Premises to which the public is given access 108
133B Power to enter premises to which the public has
access—consumer goods...............................................108
133C Power to enter premises to which the public has
access—product related services ...................................109
Subdivision C—Disclosure notices relating to the safety of goods
or services 110
133D Power to obtain information etc. ...................................110
133E Self-incrimination..........................................................111
133F Compliance with disclosure notices ..............................112
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133G False or misleading information etc. .............................112
Subdivision D—Court orders relating to the destruction etc. of
goods 113
133H Court orders relating to consumer goods that do
not comply with a safety standard etc............................113
133J Recovery of reasonable costs of seizing, and
destroying or disposing of, consumer goods .................114
Division 5—Infringement notices 115
134 Purpose and effect of this Division................................115
134A Issuing an infringement notice ......................................115
134B Matters to be included in an infringement notice ..........116
134C Amount of penalty.........................................................117
134D Effect of compliance with an infringement notice.........121
134E Effect of failure to comply with an infringement
notice.............................................................................122
134F Infringement notice compliance period for
infringement notice........................................................122
134G Withdrawal of an infringement notice...........................123
Division 6—Search, seizure and entry 125
Subdivision A—Powers of inspectors 125
135 Inspector may enter premises ........................................125
135A Search-related powers of inspectors ..............................126
135B Inspector may ask questions and seek production
of documents .................................................................128
135C Failure to answer questions or produce documents .......128
135D Persons assisting inspectors...........................................129
135E Use of force in executing a search warrant ....................130
135F Announcement before entry under warrant ...................130
135G Inspector must be in possession of search warrant ........131
Subdivision B—Obligations of inspectors 131
135H Consent..........................................................................131
135J Details of search warrant etc. must be given to the
occupier of the premises ................................................131
Subdivision C—Occupier’s etc. rights and responsibilities 132
135K Occupier etc. entitled to observe execution of
search warrant ...............................................................132
135L Occupier etc. to provide inspector etc. with
facilities and assistance .................................................132
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135M Receipts for seized consumer goods and
equipment......................................................................133
135N Return of seized consumer goods and equipment..........133
135P Judge may permit consumer goods or equipment
to be retained .................................................................134
Subdivision D—Provisions relating to seizure 135
135Q Recovery of reasonable costs of seizing consumer
goods or equipment .......................................................135
135R Destruction or disposal of seized consumer goods
or equipment..................................................................135
Subdivision E—Embargo notices 136
135S Embargo notices ............................................................136
135T Embargo period for embargo notices ............................138
135U Multiple embargo notices for the same consumer
goods or product related services ..................................139
135V Power of inspectors to secure consumer goods .............139
135W Power of inspectors to secure equipment used to
supply product related services......................................139
135X Consent to supply etc. embargoed consumer goods
etc. .................................................................................140
135Y Compliance with embargo notices ................................140
Subdivision F—Issue of search warrants 141
135Z Issue of search warrants ................................................141
136 Search warrants by telephone, fax etc. ..........................142
136A Offence relating to warrants by telephone, fax etc. .......144
Subdivision G—Miscellaneous 145
136B Powers of judges ...........................................................145
Division 7—Remedies 146
137 Limit on occupational liability ......................................146
137A Contributory acts or omissions to reduce
compensation in defective goods actions.......................147
137B Reduction of the amount of loss or damage if the
claimant fails to take reasonable care ............................148
137C Limits on recovery of amounts for death or
personal injury...............................................................148
137D Compensation orders etc. arising out of unfair
contract terms ................................................................149
137E Limits on compensation orders etc. for death or
personal injury...............................................................150
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137F Court may make orders for the purpose of
preserving money or other property held by a
person ............................................................................151
137G Compliance with orders made under section 137F........154
137H Finding in proceedings to be evidence ..........................154
Division 8—Jurisdictional matters 156
138 Conferring jurisdiction on the Federal Court.................156
138A Conferring jurisdiction on the Federal Circuit
Court..............................................................................156
138B Conferring jurisdiction on State and Territory
Courts ............................................................................157
138C Transfer of matters by the Federal Court.......................157
138D Transfer of matters by a State or Territory court ...........158
138E Transfer of proceedings to Family Court.......................159
Division 9—Miscellaneous 162
139 Intervention by the Commission....................................162
139A Terms excluding consumer guarantees from
supplies of recreational services ....................................162
139B Conduct of directors, employees or agents of
bodies corporate ............................................................163
139C Conduct of employees or agents of persons other
than bodies corporate.....................................................164
139D Enforcement and recovery of certain fines ....................165
139DA Application of section 229 of the Australian
Consumer Law to a person other than a body
corporate........................................................................166
139E Cessation of enforcement orders etc..............................167
139F Compensation for acquisition of property .....................168
139G Regulations....................................................................168
Part XIAA—Application of the Australian Consumer Law as a
law of a State or Territory 171 140 Definitions.....................................................................171
140A Object of this Part..........................................................172
140B The applied Australian Consumer Law .........................173
140C Federal Court may exercise jurisdiction under
application laws of Territories.......................................173
140D Exercise of jurisdiction under cross-vesting
provisions ......................................................................173
140E Commonwealth consent to conferral of functions
etc. on Commonwealth entities .....................................173
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140F How duty is imposed.....................................................174
140G When an application law imposes a duty.......................175
140H Application laws may operate concurrently with
this Act ..........................................................................175
140J No doubling-up of liabilities .........................................175
140K References in instruments to the Australian
Consumer Law ..............................................................176
Part XIA—The Competition Code 177 150A Definitions.....................................................................177
150B Objects of this Part ........................................................178
150C The Competition Code ..................................................178
150D Federal Court may exercise jurisdiction under
application laws of Territories.......................................179
150E Exercise of jurisdiction under cross-vesting
provisions ......................................................................179
150F Commonwealth consent to conferral of functions
etc. on Commonwealth entities .....................................179
150FA How duty is imposed.....................................................180
150FB When an application law imposes a duty.......................181
150G Application laws may operate concurrently with
this Act ..........................................................................181
150H No doubling-up of liabilities .........................................181
150I References in instruments to the Competition
Code ..............................................................................182
150J Authorisations etc. under this Act may relate also
to Competition Code .....................................................182
150K Gazettal of jurisdictions that excessively modify
the Code ........................................................................182
Part XIB—The Telecommunications Industry:
Anti-competitive conduct and record-keeping rules 183
Division 1—Introduction 183
151AA Simplified outline..........................................................183
151AB Definitions.....................................................................184
151AC Extension to external Territories ...................................186
151AD Continuity of partnerships .............................................186
151AE Additional operation of Part ..........................................186
151AF Telecommunications market .........................................187
151AG When a body corporate is related to a partnership.........188
151AH Degree of power in a telecommunications market ........188
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151AI Interpretation of Part IV or VII not affected by this
Part ................................................................................190
Division 2—Anti-competitive conduct 191
151AJ Anti-competitive conduct ..............................................191
151AK The competition rule .....................................................194
Division 3—Competition notices and exemption orders 195
Subdivision A—Competition notices 195
151AKA Part A competition notices ............................................195
151AL Part B competition notices.............................................196
151AM Competition notice to be given to carrier or
carriage service provider ...............................................197
151AN Evidentiary effect of competition notice .......................197
151AO Duration of Part A competition notice...........................197
151AOA Variation of competition notice.....................................198
151AOB Revocation of competition notice..................................198
151AP Guidelines .....................................................................198
151AQ Commission to act expeditiously...................................199
151AQA Stay of proceedings relating to competition notices ......199
151AQB Advisory notices............................................................200
151AR Register of competition notices .....................................201
Subdivision B—Exemption orders 202
151AS Exemption orders ..........................................................202
151AT Form of application .......................................................202
151AU Further information .......................................................203
151AV Withdrawal of application .............................................203
151AW Commission must publicise receipt of applications.......203
151AX Commission may refuse to consider application if
it relates to the same conduct as an authorisation
application .....................................................................203
151AY Commission may refuse to consider application if
it relates to the same conduct as a Part VII
notification ....................................................................204
151AZ Commission may convene conference to discuss
application .....................................................................205
151BA Commission must grant or reject application ................205
151BB Commission to give opportunity for submissions .........205
151BC Criteria for making exemption order .............................205
151BD Notification of decision .................................................207
151BE Duration of exemption order may be limited.................207
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151BF Conditions of exemption order ......................................207
151BG Revocation of exemption order .....................................208
151BH Register of exemption orders.........................................208
Subdivision C—Miscellaneous 210
151BJ Conduct includes proposed conduct ..............................210
Division 4—Tariff filing 211
151BK Tariff filing directions ...................................................211
151BL Specification of goods and services...............................213
151BM Notification of reasons ..................................................213
151BN Duration of direction may be limited.............................214
151BO Revocation of direction .................................................214
151BP Variation of direction ....................................................214
151BQ Public access to tariff information.................................215
151BR Register of tariff filing directions ..................................215
151BT Meaning of terms and conditions ..................................216
Division 5—Tariff filing by Telstra 218
151BTA Tariff filing by Telstra ...................................................218
Division 6—Record-keeping rules and disclosure directions 220
151BU Commission may make record-keeping rules................220
151BUAA Minister may give directions to Commission ................221
151BUAB Request for disclosure ...................................................222
151BUA Commission gives access to reports ..............................223
151BUB Carrier or carriage service provider gives access to
reports............................................................................226
151BUC Carrier or carriage service provider gives access to
periodic reports..............................................................229
151BUD Exemption of reports from access requirements............233
151BUDA Commission gives access to Ministerially-directed
reports............................................................................234
151BUDB Carrier or carriage service provider gives access to
Ministerially-directed reports ........................................236
151BUDC Carrier or carriage service provider gives access to
Ministerially-directed periodic reports ..........................238
151BUE Access via the internet...................................................241
151BUF Self-incrimination..........................................................241
151BV Incorrect records............................................................241
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Division 7—Enforcement of the competition rule, tariff filing
directions, record-keeping rules and disclosure
directions 243
151BW Person involved in a contravention of the
competition rule, a tariff filing direction, a
record-keeping rule or a disclosure direction ................243
151BX Pecuniary penalties for breach of the competition
rule, a tariff filing direction, a record-keeping rule
or a disclosure direction ................................................243
151BY Civil action for recovery of pecuniary penalties............245
151BZ Criminal proceedings not to be brought for
contraventions of the competition rule, tariff filing
directions, record-keeping rules or disclosure
directions.......................................................................246
151CA Injunctions.....................................................................247
151CB Orders to disclose information or publish an
advertisement—breach of the competition rule.............249
151CC Actions for damages—breach of the competition
rule ................................................................................249
151CD Finding of fact in proceedings to be evidence ...............250
151CE Other orders—compensation for breach of the
competition rule.............................................................250
151CF Conduct by directors, employees or agents ...................252
Division 8—Disclosure of documents by Commission 253
151CG Disclosure of documents by Commission .....................253
Division 9—Treatment of partnerships 255
151CH Treatment of partnerships..............................................255
Division 10—Review of decisions 256
151CI Review by Tribunal .......................................................256
151CJ Functions and powers of Tribunal .................................257
151CK Provisions that do not apply in relation to a
Tribunal review .............................................................258
Division 11—Reviews of competitive safeguards within the
telecommunications industry 259
151CL Reviews of competitive safeguards within the
telecommunications industry.........................................259
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Division 12—Monitoring of telecommunications charges paid by
consumers 260
151CM Monitoring of telecommunications charges paid by
consumers......................................................................260
Division 12A—Reports about competition in the
telecommunications industry 261
151CMA Public reports about competition in the
telecommunications industry.........................................261
151CMB Confidential reports about competition in the
telecommunications industry.........................................262
151CMC Examples of matters that may be specified in a
determination under section 151CMA or 151CMB.......262
Division 15—Voluntary undertakings given by Telstra 264
151CQ Voluntary undertakings given by Telstra.......................264
Division 16—NBN corporations 265
151DA Authorised conduct—subsection 51(1) .........................265
151DB Listed points of interconnection ....................................270
Part XIC—Telecommunications access regime 271
Division 1—Introduction 271
152AA Simplified outline..........................................................271
152AB Object of this Part..........................................................273
152AC Definitions.....................................................................275
152AD This Part binds the Crown .............................................279
152AE Extension to external Territories ...................................279
152AF Access ...........................................................................279
152AG Access seeker ................................................................280
152AGA Designated superfast telecommunications network.......280
152AH Reasonableness—terms and conditions.........................284
152AI When public inquiry commences ..................................285
152AJ Interpretation of Part IIIA not affected by this Part .......285
152AK Operation of Parts IV and VII not affected by this
Part ................................................................................285
Division 2—Declared services 286
152AL Declared services...........................................................286
152ALA Duration of declaration..................................................291
152AM Inquiries about proposals to declare services ................294
152AN Combined inquiries about proposals to declare
services..........................................................................295
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152AO Variation or revocation of declaration...........................296
152AQ Register of declared services .........................................296
152AQC Compensation for acquisition of property .....................297
Division 3—Standard access obligations 298
Subdivision A—Category A standard access obligations 298
152AR Category A standard access obligations ........................298
152ARA Layer 2 bitstream services to be supplied on a
non-discriminatory basis ...............................................302
152ARB Layer 2 bitstream services—carriers and carriage
service providers to carry on related activities on a
non-discriminatory basis ...............................................304
152ASA Anticipatory class exemptions from category A
standard access obligations............................................305
152ATA Anticipatory individual exemptions from category
A standard access obligations........................................307
152AU Individual exemptions—request for further
information....................................................................311
152AXA Statement of reasons for decision—specification
of documents .................................................................312
Subdivision B—Category B standard access obligations 312
152AXB Category B standard access obligations ........................312
152AXC NBN corporation to supply declared services on a
non-discriminatory basis ...............................................315
152AXD NBN corporation to carry on related activities on a
non-discriminatory basis ...............................................316
Subdivision C—Compliance with standard access obligations 317
152AY Compliance with standard access obligations................317
152AYA Ancillary obligations—confidential information...........318
152AZ Carrier licence condition ...............................................319
152BA Service provider rule .....................................................320
152BB Judicial enforcement of standard access
obligations .....................................................................320
152BBAA Judicial enforcement of conditions and limitations
of exemption determinations and orders........................322
152BBA Commission may give directions in relation to
negotiations ...................................................................322
152BBB Enforcement of directions .............................................324
152BBC Commission’s role in negotiations ................................325
152BBD Reaching agreement on terms and conditions of
access ............................................................................326
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Division 4—Access determinations 327
Subdivision A—Commission may make access determinations 327
152BC Access determinations...................................................327
152BCA Matters that the Commission must take into
account ..........................................................................329
152BCB Restrictions on access determinations ...........................330
152BCC Access agreements prevail over inconsistent
access determinations ....................................................334
152BCCA Final migration plan prevails over inconsistent
access determinations ....................................................334
152BCD Fixed principles provisions............................................335
152BCE Access determinations may be set out in the same
document .......................................................................337
152BCF Duration of access determination ..................................337
152BCG Interim access determinations .......................................341
152BCGA Stay of access determinations........................................342
Subdivision B—Public inquiries about proposals to make access
determinations 342
152BCH Access determination to be made after public
inquiry ...........................................................................342
152BCI When public inquiry must be held.................................342
152BCJ Combined inquiries about proposals to make
access determinations ....................................................345
152BCK Time limit for making an access determination.............346
Subdivision C—Variation or revocation of access determinations 347
152BCN Variation or revocation of access determinations ..........347
Subdivision D—Compliance with access determinations 349
152BCO Carrier licence condition ...............................................349
152BCP Service provider rule .....................................................349
Subdivision E—Private enforcement of access determinations 349
152BCQ Private enforcement of access determinations...............349
152BCR Consent injunctions .......................................................350
152BCS Interim injunctions ........................................................350
152BCT Factors relevant to granting a restraining
injunction.......................................................................350
152BCU Factors relevant to granting a mandatory
injunction.......................................................................351
152BCV Discharge or variation of injunction or other order .......351
Subdivision F—Register of Access Determinations 351
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152BCW Register of Access Determinations................................351
Division 4A—Binding rules of conduct 353
Subdivision A—Commission may make binding rules of conduct 353
152BD Binding rules of conduct ...............................................353
152BDAA Matters that the Commission must take into
account ..........................................................................354
152BDA Restrictions on binding rules of conduct .......................356
152BDB Access agreements prevail over inconsistent
binding rules of conduct ................................................360
152BDC Duration of binding rules of conduct.............................360
152BDCA Final migration plan prevails over inconsistent
binding rules of conduct ................................................360
152BDD Commission must give copy of binding rules of
conduct to carrier etc. ....................................................360
152BDE Access determinations that are inconsistent with
binding rules of conduct ................................................361
152BDEA Stay of binding rules of conduct....................................361
Subdivision B—Compliance with binding rules of conduct 361
152BDF Carrier licence condition ...............................................361
152BDG Service provider rule .....................................................361
Subdivision C—Private enforcement of binding rules of conduct 362
152BDH Private enforcement of binding rules of conduct ...........362
152BDI Consent injunctions .......................................................363
152BDJ Interim injunctions ........................................................363
152BDK Factors relevant to granting a restraining
injunction.......................................................................363
152BDL Factors relevant to granting a mandatory
injunction.......................................................................364
152BDM Discharge or variation of injunction or other order .......364
Subdivision D—Register of Binding Rules of Conduct 364
152BDN Register of Binding Rules of Conduct...........................364
Division 4B—Access agreements 366
152BE Access agreements ........................................................366
152BEA Quarterly reports about access agreements....................368
152BEB Commission may request copy of access
agreement or variation agreement .................................369
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152BEBA NBN corporation to give the Commission a
statement about the differences between an access
agreement and a standard form of access
agreement ......................................................................370
152BEBB NBN corporation to give the Commission a
statement about the differences between an access
agreement and a special access undertaking..................371
152BEBC NBN corporation to give the Commission a
statement about the differences between an access
agreement and an access determination.........................373
152BEBD Register of NBN Access Agreement Statements...........374
152BEBE Layer 2 bitstream services—carrier or carriage
service provider to give the Commission a
statement about the differences between an access
agreement and a special access undertaking..................375
152BEBF Layer 2 bitstream services—carrier or carriage
service provider to give the Commission a
statement about the differences between an access
agreement and an access determination.........................377
152BEBG Register of Layer 2 Bitstream Access Agreement
Statements .....................................................................379
152BEC Carrier licence condition ...............................................379
152BED Service provider rule .....................................................380
Division 5—Access undertakings 381
Subdivision B—Special access undertakings 381
152CBA What is a special access undertaking? ..........................381
152CBAA Fixed principles terms and conditions ...........................384
152CBB Further information about undertaking..........................388
152CBC Commission to accept or reject access undertaking.......389
152CBCA Serial undertakings ........................................................392
152CBD Criteria for accepting access undertaking......................392
152CBDA Variation of special access undertaking ........................395
152CBE Extension of access undertaking....................................395
152CBF Duration of access undertaking .....................................397
152CBG Variation of access undertakings ...................................397
152CBH Further information about variation of access
undertaking....................................................................399
152CBI Voluntary withdrawal of undertaking............................400
152CBIA Special access undertakings prevail over
inconsistent access determinations ................................400
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152CBIB Special access undertakings prevail over
inconsistent binding rules of conduct ............................401
152CBIC Access agreements prevail over special access
undertakings ..................................................................401
152CBJ Proposed service............................................................401
Subdivision C—General provisions 401
152CC Register of access undertakings.....................................401
152CD Enforcement of access undertakings .............................402
152CDA Deferral of consideration of an access undertaking
etc. .................................................................................402
Division 6—Ministerial pricing determinations 403
152CH Ministerial pricing determinations.................................403
152CI Undertakings, access determinations and binding
rules of conduct that are inconsistent with
Ministerial pricing determinations.................................403
152CJ Register of Ministerial pricing determinations ..............404
Division 6A—Supply of services by NBN corporations 405
152CJA Supply of services by NBN corporations ......................405
152CJB Mandatory NBN services ..............................................406
152CJC Carrier licence condition ...............................................408
152CJD Service provider rule .....................................................408
152CJE Judicial enforcement of obligations...............................408
152CJF Standard form of access agreement ...............................409
152CJG When NBN corporation is not capable of
supplying a carriage service ..........................................409
Division 6B—Explanatory material relating to
anti-discrimination provisions 410
152CJH Explanatory material relating to
anti-discrimination provisions .......................................410
Division 7—Relationship between this Part and Part IIIA 411
152CK Relationship between this Part and Part IIIA.................411
Division 10—Hindering the fulfilment of a standard access
obligation etc. 412
152EF Prohibition on hindering the fulfilment of a
standard access obligation etc........................................412
152EG Enforcement of prohibition on hindering the
fulfilment of a standard access obligation etc................412
152EH Consent injunctions .......................................................413
152EI Interim injunctions ........................................................413
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152EJ Factors relevant to granting a restraining
injunction.......................................................................414
152EK Factors relevant to granting a mandatory
injunction.......................................................................414
152EL Discharge or variation of injunction or other order .......414
Division 10A—Procedural Rules 415
152ELA Procedural Rules ...........................................................415
152ELB Public consultation ........................................................416
152ELC Plan for the development of Procedural Rules ..............416
Division 11—Miscellaneous 417
152ELD Compensation for acquisition of property .....................417
152EM Continuity of partnerships .............................................417
152EN Treatment of partnerships..............................................417
152EO Conduct by directors, servants or agents .......................418
152EOA Review of operation of this Part etc. .............................419
152EP Regulations about fees for inspection etc. of
registers .........................................................................420
152EQ Assistance to independent telecommunications
adjudicator.....................................................................420
152ER Voluntary undertakings given by Telstra.......................421
Part XID—Search and seizure 422
Division 1—Preliminary 422
154 Simplified outline..........................................................422
154A Definitions.....................................................................422
Division 2—Appointment of inspectors and identity cards 425
154B Appointment of inspectors ............................................425
154C Identity cards .................................................................425
Division 3—Entry to premises with consent 427
154D Entry with consent.........................................................427
154E Powers in relation to premises.......................................427
154F Operation of electronic equipment at premises .............428
Division 4—Entry to premises under a search warrant 430
Subdivision A—Powers available under a search warrant 430
154G The things that are authorised by a search warrant ........430
154GA Removing things for examination or processing ...........431
154H Operation of electronic equipment at premises .............432
154J Securing electronic equipment for use by experts .........434
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Subdivision B—Availability of assistance and use of force in
executing a search warrant 435
154K Authorisation of officers assisting .................................435
154L Availability of assistance and use of force in
executing a search warrant ............................................435
Subdivision C—Obligations of executing officer and officers
assisting 436
154M Announcement before entry ..........................................436
154N Details of warrant to be given to occupier .....................436
Subdivision D—Occupier’s rights and responsibilities 436
154P Occupier entitled to observe search being
conducted ......................................................................436
154Q Occupier to provide reasonable facilities and
assistance.......................................................................437
154R Answering of questions or producing evidential
material..........................................................................437
154RA Person with computer knowledge to assist access
etc. .................................................................................438
Subdivision E—General provisions relating to seizure 439
154S Copies of seized things to be provided ..........................439
154T Receipts for things seized or moved under warrant .......439
154U Return of seized things ..................................................439
154V Magistrate may permit a thing to be retained ................440
154W Disposal of things if there is no owner or owner
cannot be located...........................................................441
Subdivision F—Search warrants 441
154X Issue of search warrants ................................................441
154Y Search warrants by telephone, fax etc. ..........................443
154Z Offences relating to warrants.........................................445
Subdivision G—Powers of magistrates 446
154ZA Powers conferred on magistrates ...................................446
Division 5—General provisions relating to electronic equipment 447
154ZB Operation of electronic equipment at premises .............447
154ZC Compensation for damage to electronic equipment.......447
Part XII—Miscellaneous 449 155 Power to obtain information, documents and
evidence ........................................................................449
155AAA Protection of certain information...................................452
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155AA Protection of Part VB information.................................459
155A Power to obtain information and documents in
New Zealand relating to trans-Tasman markets ............460
155B Australian Competition and Consumer
Commission may receive information and
documents on behalf of New Zealand Commerce
Commission...................................................................460
156 Inspection of documents by Commission......................462
157 Disclosure of documents by Commission .....................462
157AA Disclosure of documents by Tribunal in relation to
merger authorisations ....................................................465
157A Disclosure of information by Commission ....................466
157B Disclosure of protected cartel information to a
court or tribunal.............................................................467
157C Disclosure of protected cartel information to a
party to court proceedings etc........................................470
157D General powers of a court..............................................473
158 Protection of members of Tribunal, counsel and
witnesses .......................................................................474
159 Incriminating answers ...................................................474
160 Failure of witness to attend............................................474
161 Refusal to be sworn or to answer questions...................475
162 Contempt .......................................................................476
162A Intimidation etc. ............................................................476
163 Prosecutions ..................................................................477
163A Declarations and orders .................................................478
165 Inspection of, furnishing of copies of, and
evidence of, documents .................................................482
166 Certificates as to furnishing of particulars to
Commission...................................................................483
167 Judicial notice................................................................484
170 Legal and financial assistance .......................................485
171 Annual report by Commission.......................................486
171A Charges by the Commission ..........................................487
171B Division 3 of Part IIIA does not confer judicial
power on the Commission .............................................488
172 Regulations....................................................................488
173 Authorisation for the purposes of subsection 51(1).......490
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Part XIII—Application and transitional provisions relating to
the competition provisions 491
Division 1—Cartel conduct 491
174 Definitions.....................................................................491
175 Giving effect after the commencement time to a
cartel provision in existence before that time ................491
176 Proceedings relating to price-fixing contraventions
taking place before the commencement time.................491
177 Authorisations in force before the commencement
time................................................................................491
178 Notifications in force before the commencement
time................................................................................492
Division 2—Application of amendments made by the
Competition and Consumer Legislation
Amendment Act 2011 494
179 Amendments of section 50 ............................................494
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Part X—International liner cargo shipping
Division 1—Preliminary
10.01 Objects of Part
(1) The principal objects of this Part are:
(a) to ensure that Australian exporters have continued access to
outwards liner cargo shipping services of adequate frequency
and reliability at freight rates that are internationally
competitive; and
(b) to promote conditions in the international liner cargo
shipping industry that encourage stable access to export
markets for exporters in all States and Territories; and
(c) to ensure that efficient Australian flag shipping is not
unreasonably hindered from normal commercial participation
in any outwards liner cargo shipping trade; and
(d) as far as practicable, to extend to Australian importers in each
State and Territory the protection given by this Part to
Australian exporters.
(2) It is the intention of the Parliament that the principal objects of this
Part should be achieved:
(a) by permitting continued conference operations while
enhancing the competitive environment for international liner
cargo shipping services through the provision of adequate
and appropriate safeguards against abuse of conference
power, particularly by:
(i) enacting additional restrictive trade practice provisions
applying to ocean carriers;
(ii) requiring conference agreements to meet certain
minimum standards;
(iii) making conference agreements generally publicly
available;
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(iv) permitting only partial and conditional exemption from
restrictive trade practice prohibitions; and
(v) requiring conferences to take part in negotiations with
representative shipper bodies;
(b) through increased reliance on private commercial and legal
processes and a reduced level of government regulation of
routine commercial matters; and
(c) by the exercise of jurisdiction, consistent with international
law:
(i) over ocean carriers who have a substantial connection
with Australia because they provide international liner
cargo shipping services; and
(ii) to enable remedies for contravention of the provisions
of this Part to be enforced within Australia.
10.01A Simplified outline
The following is a simplified outline of this Part:
• This Part sets up a system for regulating international liner cargo shipping services.
• The main components of that system are as follows:
(a) registration of conference agreements;
(b) regulation of non-conference ocean carriers with
substantial market power;
(c) regulation of unfair pricing practices;
(d) registration of agents of ocean carriers.
• The parties to a conference agreement relating to international liner cargo shipping services may apply for the registration of
the agreement.
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• If the conference agreement is registered, the parties will be given partial and conditional exemptions from:
(a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK
(cartel conduct); and
(b) section 45 (contracts etc. that restrict dealings or
affect competition); and
(c) section 47 (exclusive dealing).
• The parties to a registered conference agreement are required to negotiate with, and provide information to, representative
shipper bodies.
• The Commission may investigate whether grounds exist for the Minister to deregister a conference agreement.
• The main ground for deregistration is a breach by the parties to the agreement of requirements imposed on them by this
Part.
10.02 Interpretation
(1) In this Part, unless the contrary intention appears:
agreement means any contract, agreement, arrangement or
understanding, whether made in or outside Australia.
ancillary service, in relation to a scheduled cargo shipping service,
means:
(a) an inter-terminal transport service; or
(b) a stevedoring service; or
(c) a service provided outside Australia;
that:
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(d) relates to the cargo transported, or to be transported, on the
scheduled cargo shipping service; and
(e) is provided by, or on behalf of, the provider of the scheduled
cargo shipping service.
association includes a body corporate.
Australian exporter means a person who exports goods from
Australia.
Australian flag shipping operator means a person who:
(a) is an Australian citizen or a body corporate incorporated by
or under the law of the Commonwealth or of a State or
Territory;
(b) provides, or proposes to provide, shipping services; and
(c) normally uses, or proposes normally to use, in providing the
services only:
(i) a ship that is registered in Australia; or
(ii) 2 or more ships, all or most of which are registered in
Australia.
Australian importer means a person who imports goods into
Australia.
authorised officer means an officer of the Department who is
authorised, in writing, by the Minister for the purposes of this Part.
conference means an unincorporated association of 2 or more
ocean carriers carrying on 2 or more businesses each of which
includes, or is proposed to include, the provision of outwards liner
cargo shipping services or inwards liner cargo shipping services.
conference agreement means:
(a) an outwards conference agreement; or
(b) an inwards conference agreement.
designated inwards peak shipper body means an association
specified in a notice under subsection 10.03(2A).
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designated inwards secondary shipper body means an association
specified in a notice under subsection 10.03(2B).
designated inwards shipper body means:
(a) a designated inwards peak shipper body; or
(b) a designated inwards secondary shipper body.
designated outwards peak shipper body means an association
specified in a notice under subsection 10.03(1).
designated outwards secondary shipper body means an association
specified in a notice under subsection 10.03(2).
designated outwards shipper body means:
(a) a designated outwards peak shipper body; or
(b) a designated outwards secondary shipper body.
designated port area means the area within the limits of a port
appointed under section 15 of the Customs Act 1901, being the
limits fixed under that section.
designated secondary shipper body means:
(a) a designated outwards secondary shipper body; or
(b) a designated inwards secondary shipper body.
designated shipper body means:
(a) a designated outwards shipper body; or
(b) a designated inwards shipper body.
exemption order means an order under section 10.72A.
freight rate agreement means a conference agreement that consists
of or includes freight rate charges.
freight rate charges:
(a) in relation to an outwards conference agreement—means
those parts of the conference agreement that specify freight
rates (including base freight rates, surcharges, rebates and
allowances) for outwards liner cargo shipping services; and
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(b) in relation to an inwards conference agreement—means those
parts of the conference agreement that specify freight rates
(including base freight rates, surcharges, rebates and
allowances) for inwards liner cargo shipping services.
handling cargo includes a service that is related to handling of
cargo.
inland terminal has the meaning given by section 10.02A.
international liner cargo shipping service means:
(a) an outwards liner cargo shipping service; or
(b) an inwards liner cargo shipping service.
inter-terminal transport service means a service for the transport
of various types of general cargo:
(a) from an inland terminal to a port terminal; or
(b) from a port terminal to an inland terminal; or
(c) from a port terminal to another port terminal;
and includes the handling of the cargo within any of those
terminals.
inwards conference agreement means an agreement between
members of a conference in relation to inwards liner cargo
shipping services provided, or proposed to be provided, by them,
and includes an inwards varying conference agreement.
inwards liner cargo shipping service means an inwards scheduled
cargo shipping service and, if the inwards scheduled cargo
shipping service is part of a terminal-to-terminal service, includes
an ancillary service that relates to the inwards scheduled cargo
shipping service.
inwards loyalty agreement means an agreement:
(a) between an ocean carrier or conference and a shipper or
designated inwards shipper body; and
(b) that makes provision, in relation to inwards liner cargo
shipping services, having the purpose or effect of giving
certain benefits to the shipper, or a shipper represented by the
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designated inwards shipper body, if the shipper ships with the
ocean carrier, or members of the conference:
(i) all or particular cargo, or a particular portion of all or
particular cargo, shipped by the shipper; or
(ii) a particular quantity of cargo or of particular cargo.
inwards scheduled cargo shipping service means a scheduled
cargo shipping service where the transport of the cargo by sea
commences from a place outside Australia and ends at a place in
Australia.
inwards varying conference agreement means an agreement:
(a) that varies an inwards conference agreement; or
(b) that otherwise affects an inwards conference agreement
(including an agreement referred to in subsection (4)).
loyalty agreement means:
(a) an outwards loyalty agreement; or
(b) an inwards loyalty agreement.
ocean carrier means a person who provides, or proposes to
provide, international liner cargo shipping services.
outwards conference agreement means an agreement between
members of a conference in relation to outwards liner cargo
shipping services provided, or proposed to be provided, by them,
and includes an outwards varying conference agreement.
outwards liner cargo shipping service means an outwards
scheduled cargo shipping service and, if the outwards scheduled
cargo shipping service is part of a terminal-to-terminal service,
includes an ancillary service that relates to the outwards scheduled
cargo shipping service.
outwards loyalty agreement means an agreement:
(a) between an ocean carrier or conference and a shipper or
designated outwards shipper body; and
(b) that makes provision, in relation to outwards liner cargo
shipping services, having the purpose or effect of giving
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certain benefits to the shipper, or a shipper represented by the
designated outwards shipper body, if the shipper ships with
the ocean carrier, or members of the conference:
(i) all or particular cargo, or a particular portion of all or
particular cargo, shipped by the shipper; or
(ii) a particular quantity of cargo or of particular cargo.
outwards scheduled cargo shipping service means a scheduled
cargo shipping service where the transport of the cargo by sea
commences from a place in Australia and ends at a place outside
Australia.
outwards varying conference agreement means an agreement:
(a) that varies an outwards conference agreement; or
(b) that otherwise affects an outwards conference agreement
(including an agreement referred to in subsection (3)).
port terminal means:
(a) the area within the limits of a wharf appointed under
section 15 of the Customs Act 1901, being the limits fixed
under that section; or
(b) a terminal facility within the limits of a designated port area.
pricing practice means the fixing, controlling or maintaining by an
ocean carrier of prices charged for, or the giving or allowing by an
ocean carrier of discounts, allowances, rebates or credits in relation
to, outwards liner cargo shipping services or inwards liner cargo
shipping services provided by the ocean carrier.
provisionally registered conference agreement means a
conference agreement that is provisionally registered under this
Part.
registered agent, in relation to an ocean carrier, means the person
specified in the register of ocean carrier agents as the agent of the
ocean carrier.
registered conference agreement means a conference agreement
that is finally registered under this Part.
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registered non-conference ocean carrier with substantial market
power means an ocean carrier specified in the register of
non-conference ocean carriers with substantial market power.
Registrar means the Registrar of Liner Shipping.
scheduled cargo shipping service means a scheduled service for
the transport of various types of general cargo by sea on particular
routes, generally by container and generally at predetermined
freight rates.
stevedoring service means:
(a) the loading or unloading of cargo into or from a ship; or
(b) the handling of cargo within a port terminal.
terminal-to-terminal service means:
(a) an outwards scheduled cargo shipping service, together with
any ancillary service that relates to the outwards scheduled
cargo shipping service; or
(b) an inwards scheduled cargo shipping service, together with
any ancillary service that relates to the inwards scheduled
cargo shipping service.
vary, in relation to a conference agreement, includes vary by way
of:
(a) omitting or altering any of the provisions of, or parties to, the
agreement;
(b) adding new provisions or parties to the agreement; or
(c) substituting new provisions or parties for any of the
provisions of, or parties to, the agreement.
varying conference agreement means:
(a) an outwards varying conference agreement; or
(b) an inwards varying conference agreement.
(2) A reference in this Part to the minimum level of outwards liner
cargo shipping services provided, or proposed to be provided,
under an outwards conference agreement includes a reference to
the frequency of sailings, cargo carrying capacity, and ports of call,
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of outwards liner cargo shipping services provided, or proposed to
be provided, under the agreement.
(2A) A reference in this Part to the minimum level of inwards liner
cargo shipping services provided, or proposed to be provided,
under an inwards conference agreement includes a reference to the
frequency of sailings, cargo carrying capacity, and ports of call, of
inwards liner cargo shipping services provided, or proposed to be
provided, under the agreement.
(3) A reference in this Part to an agreement that affects an outwards
conference agreement includes a reference to an agreement
between parties to the conference agreement or between parties to
the conference agreement and other ocean carriers:
(a) that affects the conduct of parties to the conference
agreement in relation to outwards liner cargo shipping
services provided, or proposed to be provided, under the
conference agreement;
(b) that affects the minimum level of outwards liner cargo
shipping services provided, or proposed to be provided,
under the conference agreement; or
(c) that otherwise affects:
(i) the operation, or proposed operation, of the conference
agreement; or
(ii) outwards liner cargo shipping services provided, or
proposed to be provided, under the conference
agreement.
(4) A reference in this Part to an agreement that affects an inwards
conference agreement includes a reference to an agreement
between parties to the conference agreement or between parties to
the conference agreement and other ocean carriers:
(a) that affects the conduct of parties to the conference
agreement in relation to inwards liner cargo shipping services
provided, or proposed to be provided, under the conference
agreement; or
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(b) that affects the minimum level of inwards liner cargo
shipping services provided, or proposed to be provided,
under the conference agreement; or
(c) that otherwise affects:
(i) the operation, or proposed operation, of the conference
agreement; or
(ii) inwards liner cargo shipping services provided, or
proposed to be provided, under the conference
agreement.
(5) For the purposes of this Part (except where the contrary intention
appears), if:
(a) an ancillary service relates to a scheduled cargo shipping
service; and
(b) the ancillary service is provided on behalf of the provider of
the scheduled cargo shipping service by a third person;
the ancillary service is taken to be provided by the provider of the
scheduled cargo shipping service instead of by the third person.
10.02A Inland terminals
(1) The Minister may, by legislative instrument, declare that a
specified facility is an inland terminal for the purposes of this Part.
(2) The facility must be in Australia, but outside a designated port
area.
(3) In making a declaration under subsection (1), the Minister must
have regard to the following matters:
(a) whether the facility is under the control of a person who is, or
of persons each of whom is:
(i) an ocean carrier; or
(ii) a person who provides services at the facility at the
request of an ocean carrier;
(b) whether the facility is used for either or both of the following
purposes:
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(i) assembling export cargoes for transport to a port
terminal located at the port where the cargoes are to be
loaded onto ships for export;
(ii) delivering imported cargoes to importers or their
representatives;
(c) any other matters that the Minister thinks are relevant.
(4) In making a declaration under subsection (1), the Minister must not
give preference (within the meaning of section 99 of the
Constitution) to one State or part of a State over another State or
part of a State.
(5) A declaration under subsection (1) has effect accordingly.
10.03 Designated shipper bodies
(1) If the Minister is of the opinion that an association represents the
interests, in relation to outwards liner cargo shipping services, of
Australian shippers generally, the Minister may, by legislative
instrument, declare that the association is a designated outwards
peak shipper body for the purposes of this Part.
(2) If the Minister is of the opinion:
(a) that an association represents the interests, in relation to
outwards liner cargo shipping services, of all or any of the
following kinds of persons:
(i) Australian shippers in a particular trade;
(ii) Australian shippers of particular kinds of goods;
(iii) shippers in a particular part of Australia;
(iv) producers of goods of a kind exported, or proposed to
be exported, from Australia; and
(b) that it is desirable that the association be a designated
outwards secondary shipper body for the purposes of this
Part;
the Minister may, by legislative instrument, declare that the
association is a designated outwards secondary shipper body for
the purposes of this Part.
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(2A) If the Minister is of the opinion that an association represents the
interests, in relation to inwards liner cargo shipping services, of
Australian shippers generally, the Minister may, by legislative
instrument, declare that the association is a designated inwards
peak shipper body for the purposes of this Part.
(2B) If the Minister is of the opinion:
(a) that an association represents the interests, in relation to
inwards liner cargo shipping services, of all or any of the
following kinds of persons:
(i) Australian shippers in a particular trade;
(ii) Australian shippers of particular kinds of goods;
(iii) shippers in a particular part of Australia; and
(b) that it is desirable that the association be a designated
inwards secondary shipper body for the purposes of this Part;
the Minister may, by legislative instrument, declare that the
association is a designated inwards secondary shipper body for the
purposes of this Part.
(3) Where the Minister declares that an association is a designated
outwards peak shipper body, a designated inwards peak shipper
body, a designated outwards secondary shipper body or a
designated inwards secondary shipper body for the purposes of this
Part, the Registrar shall enter particulars of the association in the
register of designated shipper bodies.
(4) The particulars entered in the register shall include whether the
association is a designated outwards peak shipper body, a
designated inwards peak shipper body, a designated outwards
secondary shipper body or a designated inwards secondary shipper
body.
(5) The Minister may, by legislative instrument, make guidelines to be
applied by the Registrar in the exercise of the Registrar’s powers to
nominate designated secondary shipper bodies for the purposes of
sections 10.29, 10.41 and 10.52.
(6) The Registrar shall enter particulars of any nomination of a
designated secondary shipper body for the purposes of
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section 10.29, 10.41 or 10.52 in the register of designated shipper
bodies.
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Division 2—Additional restrictive trade practice provisions
applying to ocean carriers
10.04 Application of section 46 in relation to conference agreements
(1) For the purposes of section 46, if the parties to a conference
agreement together have a substantial degree of power in a market
in which any party to the agreement provides international liner
cargo shipping services under the agreement, each party to the
conference agreement shall be taken to have a substantial degree of
power in the market.
(2) In subsection (1):
conference agreement means an agreement between members of a
conference in relation to international liner cargo shipping services
provided, or proposed to be provided, by them, and includes an
agreement that varies such an agreement.
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Division 3—Minimum standards for conference
agreements
10.06 Application of Australian law to outwards conference
agreements and withdrawal from agreements
(1) An outwards conference agreement must expressly provide for a
question arising under the agreement in relation to an outwards
liner cargo shipping service provided, or proposed to be provided,
under the agreement to be determined in Australia in accordance
with Australian law unless the parties and the Minister agree, in
writing, to the particular question being otherwise determined.
(2) An outwards conference agreement must expressly permit any
party to the agreement to withdraw from the agreement on
reasonable notice without penalty.
10.07 Minimum levels of shipping services to be specified in
conference agreements
(1) An outwards conference agreement must contain provisions
specifying the minimum level of outwards liner cargo shipping
services to be provided under the agreement.
(2) An inwards conference agreement must contain provisions
specifying the minimum level of inwards liner cargo shipping
services to be provided under the agreement.
Note: See also paragraph 10.33(1)(b) and section 10.72A.
10.08 Conference agreements may include only certain restrictive
trade practice provisions
(1) If a conference agreement includes a provision:
(aa) that is a provision where the following conditions are
satisfied in relation to the provision:
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(i) the purpose/effect condition set out in
subsection 44ZZRD(2);
(ii) the competition condition set out in
subsection 44ZZRD(4); or
(ab) that is a provision where the following conditions are
satisfied in relation to the provision:
(i) the purpose condition set out in subsection 44ZZRD(3);
(ii) the competition condition set out in
subsection 44ZZRD(4); or
(a) that is an exclusionary provision; or
(b) that has the purpose, or has or is likely to have the effect, of
substantially lessening competition (within the meaning of
section 45);
the provision, so far as it is covered by paragraph (aa), (ab), (a) or
(b), must either:
(c) deal only with the following matters:
(i) the fixing or other regulation of freight rates;
(ii) the pooling or apportionment of earnings, losses or
traffic;
(iii) the restriction or other regulation of the quantity or kind
of cargo to be carried by parties to the agreement;
(iv) the restriction or other regulation of the entry of new
parties to the agreement; or
(d) be necessary for the effective operation of the agreement and
of overall benefit to:
(i) in the case of an outwards conference agreement—
Australian exporters; or
(ii) in the case of an inwards conference agreement—
Australian importers.
(2) If a conference agreement includes a provision that permits or
requires the practice of exclusive dealing (within the meaning of
section 47), the provision, so far as it permits or requires that
practice, must be necessary for the effective operation of the
agreement and of overall benefit to:
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Division 3 Minimum standards for conference agreements
Section 10.09
18 Competition and Consumer Act 2010
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(a) in the case of an outwards conference agreement—Australian
exporters; or
(b) in the case of an inwards conference agreement—Australian
importers.
Note: See also paragraph 10.33(1)(ba) and section 10.72A.
(3) This section does not apply in relation to a provision of a
conference agreement so far as the provision requires or permits a
party to the agreement to enter into a loyalty agreement.
10.09 Where may consequences of conference agreements not
complying with minimum standards be found?
The consequences of a conference agreement not complying with
this Division are to be found in the following provisions:
(a) section 10.28 (decision on application for provisional
registration);
(b) section 10.33 (decision on application for final registration);
(c) section 10.45 (circumstances in which Minister may exercise
powers in relation to registered conference agreements).
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Registers and files and public inspection of them Division 4
Section 10.10
Competition and Consumer Act 2010 19
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 4—Registers and files and public inspection of
them
10.10 Registers and conference agreement files open to public
inspection
(1) The registers and conference agreement files kept by the Registrar
and the Commission under this Part are open to public inspection.
(2) A person is entitled, on application to the Registrar or the
Commission, as the case requires, and payment of the prescribed
fee, to obtain a copy of the whole or any part of:
(a) an entry in a register kept under this Part; or
(b) a conference agreement file kept under this Part.
10.11 What registers are to be kept by the Registrar?
(1) The Registrar shall keep:
(a) a register of conference agreements; and
(b) a register of designated shipper bodies; and
(c) a register of non-conference ocean carriers with substantial
market power; and
(d) a register of obligations concerning unfair pricing practices;
and
(e) a register of ocean carrier agents; and
(f) a register of exemption orders.
(2) An entry in a register must contain such particulars as are
prescribed in relation to the register.
10.12 What conference agreement files are to be kept by the
Registrar?
(1) The Registrar shall keep a file, to be known as the conference
agreement file, for each conference agreement (other than a
varying conference agreement).
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Division 4 Registers and files and public inspection of them
Section 10.13
20 Competition and Consumer Act 2010
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(2) The conference agreement file for a conference agreement must
include:
(a) documents filed with the Registrar under Division 6 in
relation to the agreement or any relevant varying conference
agreement (other than any part of a document that is not open
to public inspection);
(b) abstracts accepted by the Registrar under section 10.36 in
relation to such documents (being abstracts of those parts of
the documents that are not open to public inspection); and
(c) notifications given to the Registrar under subsection 10.40(1)
or 10.43(1) in relation to the agreement or any relevant
varying conference agreement.
10.13 What register is to be kept by the Commission?
(1) The Commission shall keep a register of Commission
investigations.
(2) Subject to section 10.88, the register of Commission investigations
shall contain:
(a) references given to the Commission by the Minister under
subsections 10.47(1), 10.50(1), 10.57(1) and 10.63(1);
(b) particulars of decisions made by the Commission under
subsections 10.48(2), 10.48(2A) and 10.58(2) to hold
investigations;
(c) requests made to the Commission by the Minister under
subsections 10.48(3) and 10.58(3);
(d) documents given to the Commission in relation to
investigations by it under this Part;
(e) particulars of oral submissions made to the Commission in
relation to such investigations; and
(f) reports given to the Minister by the Commission in relation
to such investigations.
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Exemptions from certain restrictive trade practice prohibitions Division 5
Section 10.14
Competition and Consumer Act 2010 21
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Division 5—Exemptions from certain restrictive trade
practice prohibitions
Subdivision A—Exemptions relating to conference agreements
10.14 Exemptions apply only to certain activities
(1) Subject to this section, the exemptions provided by this
Subdivision apply only in relation to the following parts of an
outwards liner cargo shipping service or an inwards liner cargo
shipping service:
(a) the parts of the service that consist of the transport of the
cargo by sea;
(b) stevedoring services;
(c) activities that take place outside Australia.
(2) The exemptions provided by this Subdivision extend to the fixing
of charges for an inter-terminal transport service where the service
is part of an outwards liner cargo shipping service or an inwards
liner cargo shipping service.
(3) The exemptions provided by this Subdivision extend to the
determination of common terms and conditions for bills of lading
for use in relation to an outwards liner cargo shipping service or an
inwards liner cargo shipping service.
(4) To avoid doubt, the exemptions provided by this Subdivision do
not extend to any dealings between the parties to a conference
agreement and a person who provides ancillary services on behalf
of the provider of a scheduled cargo shipping service.
10.15 When do exemptions commence to apply in relation to
registered conference agreements?
(1) The exemptions provided by this Subdivision (other than
sections 10.17A and 10.18A) apply in relation to the operation of a
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Section 10.16
22 Competition and Consumer Act 2010
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registered outwards conference agreement only after the end of
30 days after the conference agreement is finally registered.
(2) The exemptions provided by this Subdivision (other than
sections 10.17A and 10.18A) apply in relation to the operation of a
registered inwards conference agreement only after whichever is
the later of the following times:
(a) the end of 30 days after the conference agreement is finally
registered;
(b) the commencement of Part 2 of Schedule 1 to the Trade
Practices Amendment (International Liner Cargo Shipping)
Act 2000.
10.16 Exemptions do not apply to variations of conference
agreement unless varying agreement registered
Where a registered conference agreement is varied or otherwise
affected by a varying conference agreement (other than an
agreement that consists solely of freight rate charges), the
exemptions provided by this Subdivision (other than
sections 10.17A and 10.18A) apply only in relation to the operation
of the registered conference agreement itself, and not that
agreement as varied or otherwise affected, unless the varying
conference agreement has been finally registered.
10.17 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ,
44ZZRK and 45
(1) Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the
making of a contract or arrangement, or the arriving at an
understanding, if:
(a) the contract, arrangement or understanding is a conference
agreement; and
(b) the parties apply for its provisional registration under this
Part within 30 days after the making of the contract or
arrangement or arriving at the understanding.
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Section 10.17A
Competition and Consumer Act 2010 23
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(2) Sections 44ZZRG, 44ZZRK and 45 do not apply in relation to
conduct engaged in by a party to a registered conference agreement
so far as the conduct gives effect to a provision of the agreement in
relation to an outwards liner cargo shipping service or an inwards
liner cargo shipping service.
10.17A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ,
44ZZRK and 45 for freight rate agreements
(1) Sections 44ZZRF, 44ZZRJ and 45 do not apply to the making of
freight rate charges in a freight rate agreement if:
(a) the freight rates (including base freight rates, surcharges,
rebates and allowances) specified in the freight rate
agreement are for outwards liner cargo shipping services
provided under a single registered outwards conference
agreement after the end of 30 days after the last-mentioned
agreement is finally registered; and
(b) the parties to the freight rate agreement are the same as the
parties to the registered outwards conference agreement.
(2) Sections 44ZZRF, 44ZZRJ and 45 do not apply to the making of
freight rate charges in a freight rate agreement if:
(a) the freight rates (including base freight rates, surcharges,
rebates and allowances) specified in the freight rate
agreement are for inwards liner cargo shipping services
provided under a single registered inwards conference
agreement after whichever is the later of the following times:
(i) the end of 30 days after the last-mentioned agreement is
finally registered;
(ii) the commencement of Part 2 of Schedule 1 to the Trade
Practices Amendment (International Liner Cargo
Shipping) Act 2000; and
(b) the parties to the freight rate agreement are the same as the
parties to the registered inwards conference agreement.
(3) Sections 44ZZRG, 44ZZRK and 45 do not apply to conduct
engaged in by a party to a freight rate agreement, so far as the
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Section 10.18
24 Competition and Consumer Act 2010
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conduct gives effect to freight rate charges in the freight rate
agreement, if:
(a) the freight rates (including base freight rates, surcharges,
rebates and allowances) specified in the freight rate
agreement are for outwards liner cargo shipping services
provided under a single registered outwards conference
agreement after the end of 30 days after the last-mentioned
agreement is finally registered; and
(b) the parties to the freight rate agreement are the same as the
parties to the registered outwards conference agreement.
(4) Sections 44ZZRG, 44ZZRK and 45 do not apply to conduct
engaged in by a party to a freight rate agreement, so far as the
conduct gives effect to freight rate charges in the freight rate
agreement, if:
(a) the freight rates (including base freight rates, surcharges,
rebates and allowances) specified in the freight rate
agreement are for inwards liner cargo shipping services
provided under a single registered inwards conference
agreement after whichever is the later of the following times:
(i) the end of 30 days after the last-mentioned agreement is
finally registered;
(ii) the commencement of Part 2 of Schedule 1 to the Trade
Practices Amendment (International Liner Cargo
Shipping) Act 2000; and
(b) the parties to the freight rate agreement are the same as the
parties to the registered inwards conference agreement.
10.18 Exemption from section 47
(1) Section 47 does not apply in relation to conduct engaged in by a
party to a registered conference agreement so far as the conduct
gives effect to a provision of the agreement in relation to an
outwards liner cargo shipping service or an inwards liner cargo
shipping service.
(2) The exemption provided by subsection (1) does not apply in
relation to subsections 47(6) and (7).
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Exemptions from certain restrictive trade practice prohibitions Division 5
Section 10.18A
Competition and Consumer Act 2010 25
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
10.18A Exemptions from section 47 for freight rate agreements
(1) Section 47 does not apply to conduct engaged in by a party to a
freight rate agreement, so far as the conduct gives effect to freight
rate charges in the freight rate agreement, if:
(a) the freight rates (including base freight rates, surcharges,
rebates and allowances) specified in the freight rate
agreement are for outwards liner cargo shipping services
provided under a single registered outwards conference
agreement after the end of 30 days after the last-mentioned
agreement is finally registered; and
(b) the parties to the freight rate agreement are the same as the
parties to the registered outwards conference agreement.
(2) Section 47 does not apply to conduct engaged in by a party to a
freight rate agreement, so far as the conduct gives effect to freight
rate charges in the freight rate agreement, if:
(a) the freight rates (including base freight rates, surcharges,
rebates and allowances) specified in the freight rate
agreement are for inwards liner cargo shipping services
provided under a single registered inwards conference
agreement after whichever is the later of the following times:
(i) the end of 30 days after the last-mentioned agreement is
finally registered;
(ii) the commencement of Part 2 of Schedule 1 to the Trade
Practices Amendment (International Liner Cargo
Shipping) Act 2000; and
(b) the parties to the freight rate agreement are the same as the
parties to the registered inwards conference agreement.
(3) The exemptions provided by subsections (1) and (2) do not apply
in relation to subsections 47(6) and (7).
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Division 5 Exemptions from certain restrictive trade practice prohibitions
Section 10.19
26 Competition and Consumer Act 2010
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Subdivision B—Exemptions relating to loyalty agreements
10.19 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ,
44ZZRK and 45
(1) Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the
making of a contract or arrangement, or the arriving at an
understanding, if the contract, arrangement or understanding is a
loyalty agreement.
(2) Sections 44ZZRG, 44ZZRK and 45 do not apply in relation to
conduct engaged in by a party to a loyalty agreement so far as the
conduct gives effect to a provision of the agreement in relation to
an outwards liner cargo shipping service or an inwards liner cargo
shipping service.
10.20 Exemption from section 47
(1) Section 47 does not apply in relation to conduct engaged in by a
party to a loyalty agreement in relation to another party to the
agreement so far as the conduct gives effect to a provision of the
agreement in relation to an outwards liner cargo shipping service or
an inwards liner cargo shipping service.
(2) The exemption provided by subsection (1) does not apply in
relation to subsections 47(6) and (7).
10.21 Exemptions cease to apply in relation to a shipper at the
shipper’s option
The exemptions provided by this Subdivision in relation to the
operation of a loyalty agreement cease to apply in relation to
conduct engaged in by an ocean carrier in relation to a shipper if
the shipper notifies, as prescribed, the Commission and each ocean
carrier who is a party to the agreement that the shipper no longer
wishes the exemptions to apply.
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Exemptions from certain restrictive trade practice prohibitions Division 5
Section 10.24
Competition and Consumer Act 2010 27
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Subdivision D—Other exemptions
10.24 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ,
44ZZRK, 45 and 47 in relation to certain negotiations
(1) Sections 44ZZRF, 44ZZRJ, 45 and 47 do not apply in relation to
conduct engaged in by an ocean carrier, conference, shipper or
designated shipper body so far as the conduct relates to the
determination of terms and conditions of loyalty agreements.
(2) Sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 do not
apply in relation to conduct engaged in by an ocean carrier,
conference, shipper or designated shipper body so far as the
conduct relates to the obligations of an ocean carrier under any of
the following provisions:
(a) section 10.29 (parties to conference agreement to negotiate
minimum level of shipping services after provisional
registration of agreement);
(b) section 10.41 (parties to registered conference agreement to
negotiate with certain designated shipper bodies etc.);
(c) section 10.52 (non-conference ocean carrier with substantial
market power to negotiate with certain designated shipper
bodies etc.).
(3) The exemptions provided by this section do not apply in relation to
subsections 47(6) and (7).
10.24A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ,
44ZZRK, 45 and 47 in relation to stevedoring contracts
(1) Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the
making of a stevedoring contract.
Note: For stevedoring contract, see subsection (5).
(2) Sections 44ZZRG, 44ZZRK, 45 and 47 do not apply in relation to
conduct engaged in by a party to a stevedoring contract so far as
the conduct gives effect to a provision of the contract.
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Section 10.24A
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(3) Sections 44ZZRF, 44ZZRJ, 45 and 47 do not apply in relation to
conduct engaged in by an ocean carrier or a stevedoring operator
so far as the conduct relates to the determination of terms and
conditions of a stevedoring contract.
Note: For stevedoring operator, see subsection (5).
(3A) The exemptions provided by this section do not extend to any
dealings between stevedoring operators.
(4) The exemptions provided by this section do not apply in relation to
subsections 47(6) and (7).
(5) In this section:
stevedoring contract means a contract between:
(a) an ocean carrier; and
(b) a stevedoring operator;
under which the stevedoring operator provides, or arranges for the
provision of, stevedoring services to the ocean carrier in
connection with cargo transported on international liner cargo
shipping services provided by the ocean carrier.
stevedoring operator means a person who:
(a) provides, or proposes to provide; or
(b) arranges for the provision of, or proposes to arrange for the
provision of;
stevedoring services in connection with cargo transported on
international liner cargo shipping services.
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Registration of conference agreements Division 6
Section 10.25
Competition and Consumer Act 2010 29
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Division 6—Registration of conference agreements
Subdivision A—Provisional registration
10.25 Application for provisional registration of conference
agreement
(1) The parties to a conference agreement may apply for its provisional
registration under this Part.
(2) The application must comply with the following provisions:
(a) subsections 10.26(1) and (2) (how application is to be made
and verified);
(b) section 10.27 (copy of agreement to be filed with application
etc.).
10.26 How application is to be made and verified
(1) An application for the provisional registration of a conference
agreement must be:
(a) in the appropriate prescribed form;
(b) made to the Registrar in accordance with the regulations; and
(c) accompanied by the appropriate prescribed fee.
(2) The application must comply with any regulations requiring its
verification (in whole or part) by or on behalf of the applicants.
(3) The application may be made by a party to the agreement on behalf
of the party and other parties to the agreement.
10.27 Copy of agreement to be filed with application etc.
(1) Subject to subsections (1A) and (1B), an application for the
provisional registration of a conference agreement must be
accompanied by:
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Section 10.27A
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(a) a complete copy of the agreement so far as it is in writing
(including all provisions of the agreement so far as they are
in writing); and
(b) a written memorandum that fully sets out the agreement so
far as it is not in writing (including all provisions of the
agreement so far as they are not in writing);
other than any parts of the agreement that relate to the minimum
level of:
(c) in the case of an outwards conference agreement—outwards
liner cargo shipping services to be provided under the
agreement or an outwards conference agreement that is
varied or otherwise affected by the agreement; or
(d) in the case of an inwards conference agreement—inwards
liner cargo shipping services to be provided under the
agreement or an inwards conference agreement that is varied
or otherwise affected by the agreement.
(1A) The copy of the agreement referred to in paragraph (1)(a) need not
include the freight rate charges in the agreement.
(1B) The written memorandum referred to in paragraph (1)(b) need not
include the freight rate charges in the agreement.
(2) A document that accompanies an application for the provisional
registration of a conference agreement must comply with any
regulations requiring its verification (in whole or part) by or on
behalf of the applicants.
10.27A Copy of conference agreement to be given to designated peak
shipper body
(1) If:
(a) the parties to an outwards conference agreement apply for its
provisional registration; and
(b) at the time of the application, there is a designated outwards
peak shipper body;
the parties must give the designated outwards peak shipper body a
copy of:
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Section 10.28
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(c) the complete copy of the agreement referred to in
paragraph 10.27(1)(a); and
(d) the written memorandum referred to in
paragraph 10.27(1)(b);
as soon as practicable after the application is made.
(2) If:
(a) the parties to an inwards conference agreement apply for its
provisional registration; and
(b) at the time of the application, there is a designated inwards
peak shipper body;
the parties must give the designated inwards peak shipper body a
copy of:
(c) the complete copy of the agreement referred to in
paragraph 10.27(1)(a); and
(d) the written memorandum referred to in
paragraph 10.27(1)(b);
as soon as practicable after the application is made.
10.28 Decision on application for provisional registration
(1) If the Registrar is satisfied:
(a) that an application has properly been made for the
provisional registration of a conference agreement; and
(aa) in the case of an outwards conference agreement—that
subsection 10.27A(1) has been complied with, or does not
apply to the agreement; and
(ab) in the case of an inwards conference agreement—that
subsection 10.27A(2) has been complied with, or does not
apply to the agreement; and
(b) in the case of an outwards conference agreement—that the
agreement complies with section 10.06 (application of
Australian law to outwards conference agreements and
withdrawal from agreements) or, if the agreement varies or
otherwise affects another conference agreement, that the
other conference agreement as varied or affected complies
with that section; and
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Section 10.28
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(ba) in the case of an inwards conference agreement that was in
force at the commencement of this paragraph—that there are
no circumstances that, under the regulations, are taken to be
special circumstances for the purposes of this paragraph; and
(c) that provisional registration of the agreement is not prevented
by one or more of the following provisions:
(i) section 10.38 (application for registration to be returned
where request for confidentiality refused etc.);
(ii) section 10.39 (application also to be made for
registration of varying agreements);
(iii) subsection 10.40(1) (notification of happening of
affecting events prior to final registration etc.);
the Registrar shall, within 14 days after the making of the
application, provisionally register the agreement by entering in the
register of conference agreements:
(d) particulars of the agreement; and
(e) a notation to the effect that the agreement has been
provisionally registered.
(2) If the Registrar is not so satisfied, the Registrar shall, within that 14
day period, refuse to provisionally register the agreement.
(3) When the Registrar provisionally registers the agreement or refuses
to provisionally register the agreement, the Registrar shall
immediately notify the applicants.
(4) If the Registrar provisionally registers the agreement, the Registrar
must give the Commission a copy of:
(a) the complete copy of the agreement referred to in
paragraph 10.27(1)(a); and
(b) the written memorandum referred to in
paragraph 10.27(1)(b).
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Section 10.29
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10.29 Parties to conference agreement to negotiate minimum level of
shipping services after provisional registration of
agreement
(1) The parties to a provisionally registered outwards conference
agreement shall:
(a) take part in negotiations with the designated outwards peak
shipper bodies or, if there is not at that time a designated
outwards peak shipper body, the designated outwards
secondary shipper bodies nominated by the Registrar for the
purposes of the agreement for the purposes of this section, in
relation to the minimum level of outwards liner cargo
shipping services to be provided under the agreement
(including any provisions of the agreement that affect the
level of those services) and consider the matters raised, and
representations made, by the shipper bodies;
(b) if a shipper body requests the parties to make available for
the purposes of the negotiations any information reasonably
necessary for those purposes and itself makes available for
those purposes any such information requested by the
parties—make the information available to the shipper body;
and
(c) provide an authorised officer with such information as the
officer requires relating to the negotiations, notify an
authorised officer of meetings to be held in the course of the
negotiations, permit an authorised officer to be present at the
meetings, and consider suggestions made by an authorised
officer.
(1A) The parties to a provisionally registered inwards conference
agreement must:
(a) take part in negotiations with:
(i) the designated inwards peak shipper bodies; or
(ii) if there is not at that time a designated inwards peak
shipper body—the designated inwards secondary
shipper bodies nominated by the Registrar for the
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Section 10.29
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purposes of the agreement for the purposes of this
section;
in relation to the minimum level of inwards liner cargo
shipping services to be provided under the agreement
(including any provisions of the agreement that affect the
level of those services) and consider the matters raised, and
representations made, by the shipper bodies; and
(b) if a shipper body requests the parties to make available for
the purposes of the negotiations any information reasonably
necessary for those purposes and itself makes available for
those purposes any such information requested by the
parties—make the information available to the shipper body;
and
(c) provide an authorised officer with such information as the
officer requires relating to the negotiations, notify an
authorised officer of meetings to be held in the course of the
negotiations, permit an authorised officer to be present at the
meetings, and consider suggestions made by an authorised
officer.
(1B) Subsections (1) and (1A) do not apply in relation to a conference
agreement unless, within 14 days after the provisional registration
of the agreement, the shipper bodies notify, as prescribed, the
Registrar and the parties to the agreement that they wish to have
negotiations in relation to the agreement.
(2) Subsections (1) and (1A) do not apply in relation to a conference
agreement if the shipper bodies notify, as prescribed, the Registrar
and the parties to the agreement that they do not wish to have
negotiations in relation to the agreement.
(3) The nomination of a designated secondary shipper body for the
purposes of a provisionally registered conference agreement must
be made by written notice given to the parties to the agreement.
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Section 10.30
Competition and Consumer Act 2010 35
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Subdivision B—Final registration
10.30 Application for final registration of conference agreement
(1) The parties to a provisionally registered conference agreement may
apply for its final registration under this Part.
(2) The application must comply with the following provisions:
(a) subsections 10.31(1) and (2) (how application is to be made
and verified);
(b) section 10.32 (copy of agreement to be filed with application
etc.).
10.31 How application is to be made and verified
(1) An application for the final registration of a conference agreement
must be:
(a) in the appropriate prescribed form;
(b) made to the Registrar in accordance with the regulations; and
(c) accompanied by the appropriate prescribed fee.
(2) The application must comply with any regulations requiring its
verification (in whole or part) by or on behalf of the applicants.
(3) The application may be made by a party to the agreement on behalf
of the party and other parties to the agreement.
10.32 Copy of agreement to be filed with application etc.
(1) Subject to subsections (1A) and (1B), an application for the final
registration of a conference agreement must be accompanied by:
(a) a complete copy of the agreement so far as it is in writing
(including all provisions of the agreement so far as they are
in writing); and
(b) a written memorandum that fully sets out the agreement so
far as it is not in writing (including all provisions of the
agreement so far as they are not in writing).
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Section 10.33
36 Competition and Consumer Act 2010
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(1A) The copy of the agreement referred to in paragraph (1)(a) need not
include the freight rate charges in the agreement.
(1B) The written memorandum referred to in paragraph (1)(b) need not
include the freight rate charges in the agreement.
(2) A document that accompanies an application for the final
registration of a conference agreement must comply with any
regulations requiring its verification (in whole or part) by or on
behalf of the applicants.
10.33 Decision on application for final registration
(1) If the Registrar is satisfied:
(a) that an application has properly been made for the final
registration of a conference agreement; and
(b) any of the following subparagraphs applies:
(i) that the agreement complies with section 10.07
(minimum levels of shipping services to be specified in
conference agreements) or, if the agreement varies or
otherwise affects another conference agreement, that the
other conference agreement as varied or affected
complies with section 10.07;
(ii) that section 10.07 does not apply in relation to the
agreement because of an exemption order;
(iii) that the agreement is an inwards conference agreement
that was in force at the commencement of this
subparagraph; and
(ba) any of the following subparagraphs applies:
(i) that the agreement complies with section 10.08
(conference agreements may include only certain
restrictive trade practice provisions) or, if the agreement
varies or otherwise affects another conference
agreement, that the other conference agreement as
varied or affected complies with section 10.08;
(ii) that section 10.08 does not apply in relation to the
agreement because of an exemption order;
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Section 10.33
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(iii) that the agreement is an inwards conference agreement
that was in force at the commencement of this
subparagraph; and
(c) in the case of an outwards conference agreement—that
subsection 10.29(1) (parties to conference agreement to
negotiate minimum level of shipping services after
provisional registration of agreement) has been complied
with, or does not apply, in relation to the agreement; and
(ca) in the case of an inwards conference agreement—that
subsection 10.29(1A) (parties to conference agreement to
negotiate minimum level of shipping services after
provisional registration of agreement) has been complied
with, or does not apply, in relation to the agreement; and
(d) that final registration of the agreement is not prevented by
one or more of the following provisions:
(i) section 10.38 (application for registration to be returned
where request for confidentiality refused etc.);
(ii) section 10.39 (application also to be made for
registration of varying conference agreements);
(iii) subsection 10.40(1) (notification of happening of
affecting events prior to final registration etc.);
the Registrar shall, within 14 days after the making of the
application, finally register the agreement by entering in the
register of conference agreements a notation to the effect that the
agreement has been finally registered.
(2) If the Registrar is not so satisfied, the Registrar shall, within that
14 day period, refuse to finally register the agreement.
(3) When the Registrar finally registers the agreement or refuses to
finally register the agreement, the Registrar shall immediately
notify the applicants.
(4) If the Registrar finally registers the agreement, the Registrar must
give the Commission a copy of:
(a) the complete copy of the agreement referred to in
paragraph 10.32(1)(a); and
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Section 10.34
38 Competition and Consumer Act 2010
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(b) the written memorandum referred to in
paragraph 10.32(1)(b).
Subdivision C—Confidentiality requests
10.34 Request for confidentiality
(1) An application for the provisional or final registration of a
conference agreement may include a request that a specified part of
the application, or of a document accompanying the application,
not be open to public inspection under this Part.
(2) If such a request is included in the application, the application must
include a statement of reasons in support of the request.
10.35 Abstract to accompany request for confidentiality
(1) Where a request is made under section 10.34 that a part of the
application in which the request is included, or of a document
accompanying the application, not be open to public inspection
under this Part, the application must be accompanied by an abstract
of the part of the application or other document in relation to which
the request is made.
(2) The abstract must:
(a) be in the appropriate prescribed form; and
(b) comply with any regulations requiring its verification (in
whole or part) by or on behalf of the applicants.
10.36 Examination of abstract
(1) Where:
(a) a request is properly made under section 10.34 that a part of a
document not be open to public inspection under this Part;
and
(b) the request is accompanied by an abstract of the part of the
document;
the Registrar shall first determine whether to accept the abstract.
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Section 10.37
Competition and Consumer Act 2010 39
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(2) If the Registrar is satisfied:
(a) that the abstract adequately describes the scope of the part of
the document; and
(b) that the abstract complies with subsection 10.35(2);
the Registrar shall accept the abstract.
(3) If the Registrar is not so satisfied, the Registrar shall:
(a) refuse to accept the abstract; and
(b) refuse the request and immediately notify the applicants of
the decision.
10.37 Decision on request for confidentiality
(1) If:
(a) the Registrar is satisfied that a request has properly been
made under section 10.34 that a part of a document not be
open to public inspection under this Part;
(b) the Registrar has, under section 10.36, accepted an abstract
for the part of the document; and
(c) the Registrar is also satisfied, on the basis of the statement of
reasons in support of the request that is included in the
application for provisional or final registration of the
conference agreement concerned:
(i) in the case of an outwards conference agreement—that
granting the request would not disadvantage Australian
exporters; and
(ia) in the case of an inwards conference agreement—that
granting the request would not disadvantage Australian
importers; and
(ii) that the request is justified because disclosure of the part
of the document would disclose:
(A) trade secrets;
(B) information (other than trade secrets) having a
commercial value that would be, or could
reasonably be expected to be, destroyed or
diminished if the information were disclosed; or
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Section 10.38
40 Competition and Consumer Act 2010
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(C) any other information concerning a person in
relation to the person’s business or professional
affairs, or concerning the business, commercial
or financial affairs of an organisation or
undertaking, the disclosure of which would, or
could reasonably be expected to, unreasonably
affect the person adversely in relation to the
person’s lawful business or professional affairs
or the organisation or undertaking in relation to
its lawful business, commercial or financial
affairs;
the Registrar shall, within 14 days after the making of the request,
direct that the part of the document not be open to public
inspection under this Part.
(2) If the Registrar is not so satisfied, the Registrar shall, within that
14 day period, refuse the request and immediately notify the
applicants of the decision.
10.38 Application for registration to be returned where request for
confidentiality refused etc.
Where:
(a) an application for the provisional or final registration of a
conference agreement includes a request under section 10.34
that a part of a document not be open to public inspection
under this Part; and
(b) the request is refused by the Registrar;
the Registrar shall also refuse the application, and shall return the
application, and any documents that accompanied the application,
to the applicants.
Subdivision D—Miscellaneous
10.39 Application also to be made for registration of varying
conference agreements
(1) Subject to subsection (2), if:
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Section 10.40
Competition and Consumer Act 2010 41
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(a) application has been made for the provisional or final
registration of a conference agreement (in this section called
the original agreement), but the original agreement has not
been finally registered; and
(b) another conference agreement that varies or otherwise affects
the original agreement is or has been made or arrived at;
the Registrar shall not provisionally or finally register the original
agreement unless application has been made for the provisional
registration of the other conference agreement.
(2) Subsection (1) does not apply if the conference agreement referred
to in paragraph (1)(b) consists solely of freight rate charges.
10.40 Notification of happening of affecting events prior to final
registration etc.
(1) If:
(a) application has been made for the provisional or final
registration of a conference agreement, but the agreement has
not been finally registered; and
(b) either of the following subparagraphs applies:
(i) the proposed operation of the conference agreement is
affected, or outwards liner cargo shipping services or
inwards liner cargo shipping services proposed to be
provided under the agreement are affected, by the
happening of an event or otherwise than by a varying
conference agreement;
(ii) parties to the conference agreement have made or
arrived at an agreement with other ocean carriers that
affects outwards liner cargo shipping services or
inwards liner cargo shipping services provided, or that
would, but for the agreement, have been provided, by
the other ocean carriers;
the Registrar shall not provisionally or finally register the original
agreement unless the parties to the agreement have notified the
Registrar of the matter.
(2) The notice must be:
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(a) in the appropriate prescribed form; and
(b) given to the Registrar in accordance with the regulations.
(3) The notice must comply with any regulations requiring its
verification (in whole or part).
(4) Where the parties to a conference agreement give a notice under
subsection (1), the Registrar may make such variations (if any) to
the particulars entered in the register of conference agreements in
relation to the agreement as the Registrar considers necessary or
desirable to take account of the notice.
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Section 10.41
Competition and Consumer Act 2010 43
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 7—Obligations of ocean carriers in relation to
registered conference agreements
10.41 Parties to registered conference agreement to negotiate with
certain designated shipper bodies etc.
(1) The parties to a registered conference agreement shall:
(a) take part in negotiations with a relevant designated shipper
body in relation to negotiable shipping arrangements
(including any provisions of the agreement that affect those
arrangements) whenever reasonably requested by the shipper
body, and consider the matters raised, and representations
made, by the shipper body;
(b) if the shipper body requests the parties to make available for
the purposes of the negotiations any information reasonably
necessary for those purposes and itself makes available for
those purposes any such information requested by the
parties—make the information available to the shipper body;
and
(c) provide an authorised officer with such information as the
officer requires relating to the negotiations, notify an
authorised officer of meetings to be held in the course of the
negotiations, permit an authorised officer to be present at the
meetings, and consider suggestions made by an authorised
officer.
(2) The parties to the agreement shall give each relevant designated
shipper body at least 30 days notice of any change in negotiable
shipping arrangements unless the shipper body agrees to a lesser
period of notice for the change.
(3) In this section:
eligible Australian contract means:
(a) a contract entered into in Australia; or
(b) a contract where questions arising under the contract are to
be determined in accordance with Australian law.
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Section 10.41
44 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
freight rates includes base freight rates, surcharges, rebates and
allowances.
negotiable shipping arrangements:
(a) in relation to an outwards conference agreement—means the
arrangements for, or the terms and conditions applicable to,
outwards liner cargo shipping services provided, or proposed
to be provided, under the conference agreement (including,
for example, freight rates, charges for inter-terminal transport
services, frequency of sailings and ports of caln( � or
(b) in relation to an inwards conference agreement—means:
(i) the arrangements for, or the terms and conditions
applicable to, inwards liner cargo shipping services
provided, or proposed to be provided, under the
conference agreement (including, for example, freight
rates, charges for inter-terminal transport services,
frequency of sailings and ports of call), where those
arrangements or those terms and conditions, as the case
may be, are embodied in an eligible Australian contract;
or
(ii) the arrangements for, or the terms and conditions
applicable to, the parts of the inwards liner cargo
shipping services provided, or proposed to be provided,
under the conference agreement that consist of activities
that take place on land in Australia (including, for
example, terminal handling charges and charges for
inter-terminal transport services).
relevant designated shipper body:
(a) in relation to an outwards conference agreement—means:
(i) a designated outwards peak shipper body; or
(ii) a designated outwards secondary shipper body
nominated by the Registrar (by written notice given to
the parties to the agreement) for the purposes of the
agreement for the purposes of this section; or
(b) in relation to an inwards conference agreement—means:
(i) a designated inwards peak shipper body; or
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Section 10.42
Competition and Consumer Act 2010 45
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(ii) a designated inwards secondary shipper body nominated
by the Registrar (by written notice given to the parties to
the agreement) for the purposes of the agreement for the
purposes of this section.
10.42 Application to be made for registration of varying conference
agreements
(1) Subject to subsection (3), where a conference agreement that varies
or otherwise affects a registered conference agreement is made or
arrived at, application shall be made for its provisional registration.
(2) The application must be made within 30 days after the making of
or arriving at the agreement.
(3) Subsection (1) does not apply to a conference agreement that
consists solely of freight rate charges.
10.43 Parties to registered conference agreement to notify
happening of affecting events etc.
(1) Where:
(a) the operation, or proposed operation, of a registered
conference agreement is affected, or outwards liner cargo
shipping services or inwards liner cargo shipping services
provided, or proposed to be provided, under the agreement
are affected, by the happening of an event or otherwise than
by a varying conference agreement; or
(b) parties to a registered conference agreement make or arrive at
an agreement with other ocean carriers that affects outwards
liner cargo shipping services or inwards liner cargo shipping
services provided, or that would, but for the agreement, have
been provided, by the other ocean carriers;
the parties to the registered conference agreement shall notify the
Registrar of the matter.
(2) The notice must be:
(a) in the appropriate prescribed form; and
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Section 10.43
46 Competition and Consumer Act 2010
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(b) given to the Registrar in accordance with the regulations
within 30 days after the operation, or proposed operation, of
the agreement is affected, the services are affected or the
agreement is made or arrived at, as the case may be.
(3) The notice must comply with any regulations requiring its
verification (in whole or part).
(4) Where the parties to a registered conference agreement give a
notice under subsection (1), the Registrar may make such
variations (if any) to the particulars entered in the register of
conference agreements in relation to the agreement as the Registrar
considers necessary or desirable to take account of the notice.
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Section 10.44
Competition and Consumer Act 2010 47
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Division 8—Powers of Minister in relation to registered
conference agreements
10.44 Powers exercisable by Minister in relation to registered
conference agreements etc.
(1) Subject to sections 10.45 and 10.46, the Minister may direct the
Registrar:
(a) to cancel the registration of a registered conference
agreement; or
(b) to cancel the registration of a registered conference
agreement so far as it relates to:
(i) a particular provision of the agreement;
(ii) a particular party to the agreement; or
(iii) particular conduct.
(2) Where the Minister gives a direction under subsection (1), the
Registrar shall immediately enter particulars of the direction in the
register of conference agreements.
(3) On the entry in the register of conference agreements of particulars
of a direction to cancel the registration of a registered conference
agreement, the exemptions provided by Subdivision A of
Division 5 cease to apply in relation to the agreement.
(4) On the entry in the register of conference agreements of particulars
of a direction to cancel the registration of a registered conference
agreement so far as it relates to a particular provision of the
agreement, the exemptions provided by Subdivision A of
Division 5 cease to apply in relation to the provision.
(5) On the entry in the register of conference agreements of particulars
of a direction to cancel the registration of a registered conference
agreement so far as it relates to a particular party to the agreement,
the exemptions provided by Subdivision A of Division 5 cease to
apply in relation to the party.
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Section 10.45
48 Competition and Consumer Act 2010
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(6) On the entry in the register of conference agreements of particulars
of a direction to cancel the registration of a registered conference
agreement so far as it relates to particular conduct, the exemptions
provided by Subdivision A of Division 5 cease to apply in relation
to conduct of that kind in relation to the agreement.
(7) A direction under subsection (1) must be given in writing, and the
Registrar shall serve a copy of the direction on the parties to the
conference agreement concerned.
(8) If:
(a) the Commission reports to the Minister under section 10.47
or 10.48 in relation to either or both of the matters referred to
in subparagraphs 10.45(1)(a)(viii) and (ix); and
(b) after taking the report into account, the Minister is satisfied
of either or both of those matters and decides to give a
direction under subsection (1);
the Minister must:
(c) prepare a statement about the decision; and
(d) cause:
(i) a copy of the statement; and
(ii) a copy of the Commission’s report;
to be laid before each House of the Parliament within 15
sittings days of that House after the decision was made.
10.45 Circumstances in which Minister may exercise powers in
relation to registered conference agreements
(1) The Minister shall not give a direction under subsection 10.44(1) in
relation to a registered conference agreement unless:
(a) the Minister is satisfied of one or more of the following
matters:
(i) in the case of an outwards conference agreement—that
the agreement does not comply with section 10.06
(application of Australian law to outwards conference
agreements and withdrawal from agreements);
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Section 10.45
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(ia) that section 10.07 (minimum levels of shipping services
to be specified in conference agreements) applies to the
agreement, and that the agreement does not comply with
that section;
(ib) that section 10.08 (conference agreements may include
only certain restrictive trade practice provisions) applies
to the agreement, and that the agreement does not
comply with that section;
(ii) that section 10.41 (parties to registered conference
agreement to negotiate with certain designated shipper
bodies etc.) applies to the parties to the agreement, and
that the parties have contravened, or propose to
contravene, that section;
(iia) that parties to the agreement have contravened, or
propose to contravene, subsection 10.43(1) (parties to
registered conference agreement to notify happening of
affecting events etc.);
(iii) that section 10.42 (application to be made for
registration of varying conference agreements) has not
been complied with in relation to a conference
agreement that varies or otherwise affects the
agreement;
(iv) that parties to the agreement have given effect to or
applied, or propose to give effect to or apply, the
agreement without due regard to the need for outwards
liner cargo shipping services or inwards liner cargo
shipping services provided under the agreement to be:
(A) efficient and economical; and
(B) provided at the capacity and frequency
reasonably required to meet the needs of
shippers who use, and shippers who may
reasonably be expected to need to use, the
services;
(v) in the case of an outwards conference agreement—that
parties to the agreement have given effect to or applied,
or propose to give effect to or apply, the agreement in a
manner that prevents or hinders an Australian flag
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Section 10.45
50 Competition and Consumer Act 2010
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shipping operator from engaging efficiently in the
provision of outwards liner cargo shipping services to
an extent that is reasonable;
(vi) that provisional or final registration of the agreement
was granted on the basis of a statement or information
that was false or misleading in a material particular;
(vii) that parties to the agreement have breached an
undertaking given by the parties to the agreement under
section 10.49;
(viii) that subsection (3) applies to parties to the agreement;
(ix) that subsection (4) applies to parties to the agreement;
and
(aa) if the Minister is satisfied of either or both of the matters
referred to in subparagraphs (1)(a)(viii) and (ix)—at least
21 days before giving the direction, the Minister served on
each party to the agreement a written notice of his or her
intention to give the direction; and
(b) the Minister has carried on or attempted to carry on, either
personally or through authorised officers, consultations with
the parties to the agreement directed at obtaining an
undertaking or action by the parties that would have made a
direction under subsection 10.44(1) unnecessary; and
(c) either of the following subparagraphs applies:
(i) the Commission has reported to the Minister under
section 10.47 or 10.48 in relation to matters referred to
in paragraph (a) of which the Minister is satisfied and
the Minister has taken the report into account;
(ii) the Minister is satisfied that the special circumstances of
the case make it desirable to give the direction before he
or she receives such a report from the Commission.
(2) For the purposes of subparagraph (1)(a)(v), in determining what is
reasonable, have regard to:
(a) the national interest; and
(b) the interests of the following:
(i) Australian shippers generally;
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Section 10.45
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(ii) Australian shippers in a particular trade;
(iii) Australian shippers of particular kinds of goods;
(iv) shippers in a particular part of Australia; and
(c) any other relevant matters.
(3) This subsection applies to the parties to a registered conference
agreement if:
(a) the agreement includes a provision that is covered by
paragraph 10.08(1)(aa) or (b); and
(b) the parties to the agreement have engaged in conduct, or
propose to engage in conduct, to give effect to or apply the
provision; and
(c) that conduct or proposed conduct has not resulted in, or is
unlikely to result in, a benefit to the public that outweighs the
detriment to the public constituted by any lessening of
competition that:
(i) has resulted, or is likely to result, from the conduct; or
(ii) would result, or be likely to result, if the proposed
conduct were engaged in; and
(d) there are exceptional circumstances that warrant the giving of
a direction under subsection 10.44(1).
(4) This subsection applies to the parties to a registered conference
agreement if:
(a) the parties to the agreement have prevented, or are proposing
to prevent, the entry of a prospective party to the agreement;
and
(b) the prevention or proposed prevention is unreasonable; and
(c) the prevention or proposed prevention is contrary to the
interests of any or all of the following:
(i) Australian shippers generally;
(ii) Australian shippers in a particular trade;
(iii) Australian shippers of particular kinds of goods;
(iv) shippers in a particular part of Australia;
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Section 10.46
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(v) in the case of an outwards conference agreement—
producers of goods of a kind exported, or proposed to
be exported, from Australia.
10.46 Action to be taken where powers exercised by Minister
without first obtaining Commission report
(1) Where the Minister gives a direction under subsection 10.44(1)
before receiving a report under section 10.47 or 10.48 in relation to
matters referred to in paragraph 10.45(1)(a) of which the Minister
was satisfied before giving the direction, the Minister shall
immediately refer the matters to the Commission under
section 10.47.
(2) The Commission shall report to the Minister within a period of not
more than 60 days in relation to those matters and any other
matters that the Commission is then investigating under this
Division in relation to the conference agreement concerned.
(3) If, after taking the Commission’s report into account, the Minister
is satisfied of one or more of the matters referred to in
paragraph 10.45(1)(a), the Minister may, within 21 days after
receiving the Commission’s report, direct the Registrar not to take
action under subsection (4) in relation to the agreement, and may
also give such further directions under subsection 10.44(1) in
relation to the agreement as the Minister considers appropriate.
(4) The Registrar shall delete the particulars of the direction under
subsection 10.44(1) from the register of conference agreements at
the end of 21 days after the Minister receives the Commission’s
report unless the Minister has given a direction under
subsection (3) in relation to the agreement.
(5) On the deletion of the particulars of the direction, Subdivision A of
Division 5 applies in relation to the agreement to the extent to
which it would have applied but for the entry of the particulars.
(6) Subsection (1) shall not be taken by implication to limit the matters
that may be referred to the Commission under section 10.47.
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Section 10.47
Competition and Consumer Act 2010 53
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(7) A direction under subsection (3) must be given in writing, and the
Registrar must serve a copy of the direction on the parties to the
conference agreement concerned.
(8) If, after taking the Commission’s report into account:
(a) the Minister is satisfied of either or both of the matters
referred to in subparagraphs 10.45(1)(a)(viii) and (ix); and
(b) the Minister decides to give a direction under subsection (3);
the Minister must:
(c) prepare a statement about the decision; and
(d) cause:
(i) a copy of the statement; and
(ii) a copy of the Commission’s report;
to be laid before each House of the Parliament within 15
sittings days of that House after the decision was made.
10.47 Investigation and report by Commission on reference by
Minister
(1) The Minister may refer to the Commission for investigation and
report the question whether grounds exist for the Minister to be
satisfied in relation to a registered conference agreement of one or
more specified matters referred to in paragraph 10.45(1)(a).
(2) The Commission shall hold an investigation into the question and
report to the Minister.
(3) In its investigation, the Commission shall give special
consideration to any matters specified in the reference as matters to
be given special consideration by the Commission.
10.48 Investigation and report by Commission on own initiative or
on application by affected person
(1) A person affected by the operation of a registered conference
agreement may apply to the Commission for an investigation into
the question whether grounds exist for the Minister to be satisfied
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Section 10.48
54 Competition and Consumer Act 2010
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in relation to the agreement of one or more specified matters
referred to in paragraph 10.45(1)(a).
(2) If subsection (1) applies, the Commission may hold an
investigation into the question, and, if it decides to do so, it shall
inform the Minister of its decision and report to the Minister.
(2A) The Commission may, on its own initiative, hold an investigation
into the question whether grounds exist for the Minister to be
satisfied in relation to a registered conference agreement of either
or both of the matters referred to in subparagraphs 10.45(1)(a)(viii)
and (ix).
(2B) If subsection (2A) applies, the Commission must inform the
Minister of its decision to hold an investigation and report to the
Minister.
(3) In its investigation, the Commission shall give special
consideration to such matters (if any) as the Minister requests it to
give special consideration.
(4) A request under subsection (3) must be made in writing.
(5) Without limiting subsection (1), each of the following persons shall
be taken to be a person affected by the operation of a registered
conference agreement:
(a) a party to the agreement;
(b) a designated shipper body;
(c) in the case of an outwards conference agreement—an
Australian flag shipping operator;
(d) a shipper who uses, or may reasonably be expected to need to
use, outwards liner cargo shipping services or inwards liner
cargo shipping services provided, or proposed to be provided,
under the agreement;
(e) an association representing shippers who use, or may
reasonably be expected to need to use, such services.
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Section 10.49
Competition and Consumer Act 2010 55
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
10.49 Undertakings by parties to registered conference agreement
(1) The parties to a registered conference agreement may, at any time,
offer to give an undertaking to do, or not to do, a specified act or
thing.
(2) The offer must be:
(a) in the appropriate prescribed form; and
(b) made to the Minister in accordance with the regulations.
(3) If the Minister accepts the offer, the Minister may do one or more
of the following:
(a) revoke any reference made to the Commission under
section 10.47 in relation to the agreement;
(b) direct the Commission, in writing, to cease holding any
investigation being held by it under section 10.48 in relation
to the agreement;
(c) revoke any direction given under subsection 10.44(1) in
relation to the agreement.
(4) If the Minister accepts the offer, the parties shall be taken to have
given the undertaking, and the Registrar shall immediately register
the undertaking by entering particulars of it in the register of
conference agreements.
(5) If the Minister revokes a direction given under subsection 10.44(1),
the Registrar shall immediately include in the register a notation to
the effect that the direction has been revoked.
(6) On the inclusion of the notation, Subdivision A of Division 5
applies in relation to the agreement to the extent to which it would
have applied but for the entry of the particulars of the direction.
10.49A Enforcement of undertakings
(1) A party to a registered conference agreement must not contravene
an undertaking given under section 10.49.
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Section 10.49A
56 Competition and Consumer Act 2010
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(2) Part VI applies in relation to subsection (1) as if that subsection
were a provision of Part IV.
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Obligations of non-conference ocean carriers with substantial market power Division 9
Section 10.50
Competition and Consumer Act 2010 57
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 9—Obligations of non-conference ocean carriers
with substantial market power
10.50 Investigations by Commission into market power of ocean
carriers
(1) The Minister may refer to the Commission for investigation and
report the question whether an ocean carrier has a substantial
degree of market power in the provision of outwards liner cargo
shipping services or inwards liner cargo shipping services on a
trade route otherwise than because the ocean carrier is a party to a
conference agreement.
(2) The Commission shall hold an investigation into the question and
report to the Minister.
(3) In its investigation, the Commission shall give special
consideration to any matters specified in the reference as matters to
be given special consideration by the Commission.
10.51 Determination by Minister of market power of ocean carriers
(1) Where:
(a) the Commission reports to the Minister under section 10.50
that an ocean carrier has a substantial degree of market power
in the provision of outwards liner cargo shipping services or
inwards liner cargo shipping services on a trade route
otherwise than because the ocean carrier is a party to a
conference agreement; or
(b) an ocean carrier agrees, in writing, to the Minister giving a
direction under this subsection in relation to the ocean carrier
in relation to a trade route;
the Minister may direct the Registrar to register the ocean carrier as
a non-conference ocean carrier with substantial market power in
relation to the trade route.
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Division 9 Obligations of non-conference ocean carriers with substantial market power
Section 10.52
58 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) Where the Minister gives a direction under subsection (1), the
Registrar shall immediately enter particulars of the ocean carrier
and the trade route in the register of non-conference ocean carriers
with substantial market power.
(3) A direction under subsection (1) must be in writing, and the
Registrar shall serve a copy of the direction on the ocean carrier
concerned.
10.52 Non-conference ocean carrier with substantial market power
to negotiate with certain designated shipper bodies etc.
(1) A registered non-conference ocean carrier with substantial market
power shall:
(a) take part in negotiations with a relevant designated shipper
body in relation to negotiable shipping arrangements
whenever reasonably requested by the shipper body, and
consider the matters raised, and representations made, by the
shipper body;
(b) if the shipper body requests the ocean carrier to make
available for the purposes of the negotiations any information
reasonably necessary for those purposes and itself makes
available for those purposes any such information requested
by the ocean carrier—make the information available to the
shipper body; and
(c) provide an authorised officer with such information as the
officer requires relating to the negotiations, notify an
authorised officer of meetings to be held in the course of the
negotiations, permit an authorised officer to be present at the
meetings, and consider suggestions made by an authorised
officer.
(2) The ocean carrier shall give each relevant designated shipper body
at least 30 days notice of any change in negotiable shipping
arrangements unless the shipper body agrees to a lesser period of
notice for the change.
(3) In this section:
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Section 10.52
Competition and Consumer Act 2010 59
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
eligible Australian contract means:
(a) a contract entered into in Australia; or
(b) a contract where questions arising under the contract are to
be determined in accordance with Australian law.
freight rates includes base freight rates, surcharges, rebates and
allowances.
negotiable shipping arrangements means:
(a) the arrangements for, or the terms and conditions applicable
to, outwards liner cargo shipping services provided, or
proposed to be provided, by the ocean carrier on the relevant
trade route (including, for example, freight rates, charges for
inter-terminal transport services, frequency of sailings and
ports of caln( � or
(b) the arrangements for, or the terms and conditions applicable
to, inwards liner cargo shipping services provided, or
proposed to be provided, by the ocean carrier on the relevant
trade route (including, for example, freight rates, charges for
inter-terminal transport services, frequency of sailings and
ports of call), where those arrangements or those terms and
conditions, as the case may be, are embodied in an eligible
Australian contract; or
(c) the arrangements for, or the terms and conditions applicable
to, the parts of the inwards liner cargo shipping services
provided, or proposed to be provided, by the ocean carrier on
the relevant trade route that consist of activities that take
place on land in Australia (including, for example, terminal
handling charges and charges for inter-terminal transport
services).
relevant designated shipper body:
(a) in relation to negotiations connected with outwards liner
cargo shipping services—means:
(i) a designated outwards peak shipper body; or
(ii) a designated outwards secondary shipper body
nominated by the Registrar (by written notice given to
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Division 9 Obligations of non-conference ocean carriers with substantial market power
Section 10.53
60 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
the ocean carrier) for the purposes of the relevant trade
route; or
(b) in relation to negotiations connected with inwards liner cargo
shipping services—means:
(i) a designated inwards peak shipper body; or
(ii) a designated inwards secondary shipper body nominated
by the Registrar (by written notice given to the ocean
carrier) for the purposes of the relevant trade route.
relevant trade route means the trade route specified in relation to
the ocean carrier in the register of non-conference ocean carriers
with substantial market power.
10.53 Non-conference ocean carrier with substantial market power
not to hinder Australian flag shipping operators etc.
(1) A registered non-conference ocean carrier with substantial market
power shall not prevent or hinder an Australian flag shipping
operator from engaging efficiently in the provision of outwards
liner cargo shipping services to an extent that is reasonable.
(2) For the purposes of subsection (1), in determining what is
reasonable, have regard to:
(a) the national interest; and
(b) the interests of the following:
(i) Australian shippers generally;
(ii) Australian shippers in a particular trade;
(iii) Australian shippers of particular kinds of goods;
(iv) shippers in a particular part of Australia; and
(c) any other relevant matters.
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power Division 10
Section 10.54
Competition and Consumer Act 2010 61
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 10—Powers of Minister in relation to
non-conference ocean carriers with substantial
market power
10.54 Powers exercisable by Minister in relation to obligations of
non-conference ocean carriers with substantial market
power
(1) Subject to sections 10.55 and 10.56, the Minister may, by writing
served on a registered non-conference ocean carrier with
substantial market power, order the ocean carrier to comply with
any of the ocean carrier’s obligations under Division 9.
(2) Where the Minister makes an order under subsection (1), the
Registrar shall immediately enter particulars of the order in the
register of non-conference ocean carriers with substantial market
power.
10.55 Circumstances in which Minister may exercise powers
The Minister shall not make an order under subsection 10.54(1)
unless:
(a) the Minister is satisfied of either or both of the following
matters:
(i) that section 10.52 (non-conference ocean carrier with
substantial market power to negotiate with certain
designated shipper bodies etc.) applies to the ocean
carrier concerned, and that the ocean carrier has
contravened, or proposes to contravene, that section;
(ii) that the ocean carrier concerned has contravened, or
proposes to contravene, section 10.53 (non-conference
ocean carrier with substantial market power not to
hinder Australian flag shipping operators etc.);
(b) the Minister has carried on or attempted to carry on, either
personally or through authorised officers, consultations with
the ocean carrier directed at obtaining an undertaking or
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substantial market power
Section 10.56
62 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
action by the ocean carrier that would have made an order
under subsection 10.54(1) unnecessary; and
(c) either of the following subparagraphs applies:
(i) the Commission has reported to the Minister under
section 10.57 or 10.58 in relation to matters referred to
in paragraph (a) of which the Minister is satisfied and
the Minister has taken the report into account;
(ii) the Minister is satisfied that the special circumstances of
the case make it desirable to make the order before he or
she receives such a report from the Commission.
10.56 Action to be taken where powers exercised by Minister
without first obtaining Commission report
(1) Where the Minister makes an order under subsection 10.54(1)
before receiving a report under section 10.57 or 10.58 in relation to
matters referred to in paragraph 10.55(a) of which the Minister was
satisfied before making the order, the Minister shall immediately
refer the matters to the Commission under section 10.57.
(2) The Commission shall report to the Minister within a period of not
more than 60 days in relation to those matters and any other
matters that the Commission is then investigating under this
Division in relation to the ocean carrier concerned.
(3) If, after taking the Commission’s report into account, the Minister
is satisfied of one or more of the matters referred to in
paragraph 10.55(a), the Minister may, within 21 days after
receiving the Commission’s report, direct the Registrar not to take
action under subsection (4) in relation to the ocean carrier, and may
also make such further orders under subsection 10.54(1) in relation
to the ocean carrier as the Minister considers appropriate.
(4) The Registrar shall delete the particulars of the order under
subsection 10.54(1) from the register of non-conference ocean
carriers with substantial market power at the end of 21 days after
the Minister receives the Commission’s report unless the Minister
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Section 10.57
Competition and Consumer Act 2010 63
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has given a direction under subsection (3) in relation to the ocean
carrier.
(5) Subsection (1) shall not be taken by implication to limit the matters
that may be referred to the Commission under section 10.57.
(6) A direction under subsection (3) must be given in writing, and the
Registrar must serve a copy of the direction on the ocean carrier.
10.57 Investigation and report by Commission on reference by
Minister
(1) The Minister may refer to the Commission for investigation and
report the question whether grounds exist for the Minister to be
satisfied in relation to a registered non-conference ocean carrier
with substantial market power of one or more specified matters
referred to in paragraph 10.55(a).
(2) The Commission shall hold an investigation into the question and
report to the Minister.
(3) In its investigation, the Commission shall give special
consideration to any matters specified in the reference as matters to
be given special consideration by the Commission.
10.58 Investigation and report by Commission on application by
affected person
(1) A person affected by the conduct of a registered non-conference
ocean carrier with substantial market power may apply to the
Commission for an investigation into the question whether grounds
exist for the Minister to be satisfied in relation to the ocean carrier
of one or more specified matters referred to in paragraph 10.55(a).
(2) The Commission may hold an investigation into the question, and,
if it decides to do so, it shall inform the Minister of its decision and
report to the Minister.
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Division 10 Powers of Minister in relation to non-conference ocean carriers with
substantial market power
Section 10.59
64 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) In its investigation, the Commission shall give special
consideration to such matters (if any) as the Minister requests it to
give special consideration.
(4) A request under subsection (3) must be made in writing.
(5) Without limiting subsection (1), each of the following persons shall
be taken to be a person affected by the conduct of a registered
non-conference ocean carrier with substantial market power:
(a) a designated shipper body;
(b) in the case of an investigation relating to outwards liner cargo
shipping services—an Australian flag shipping operator;
(c) a shipper who uses, or may reasonably be expected to need to
use, outwards liner cargo shipping services or inwards liner
cargo shipping services provided, or proposed to be provided,
on the trade route specified in relation to the ocean carrier in
the register of non-conference ocean carriers with substantial
market power;
(d) an association representing shippers who use, or may
reasonably be expected to need to use, such services.
10.59 Undertakings by ocean carrier
(1) A registered non-conference ocean carrier with substantial market
power may, at any time, offer to give an undertaking to do, or not
to do, a specified act or thing.
(2) The offer must be:
(a) in the appropriate prescribed form; and
(b) made to the Minister in accordance with the regulations.
(3) If the Minister accepts the offer, the Minister may do one or more
of the following:
(a) revoke any reference made to the Commission under
section 10.57 in relation to the ocean carrier;
(b) direct the Commission, in writing, to cease holding any
investigation being held by it under section 10.58 in relation
to the ocean carrier;
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Section 10.60
Competition and Consumer Act 2010 65
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(c) revoke any order made under subsection 10.54(1) in relation
to the ocean carrier.
(4) If the Minister accepts the offer, the ocean carrier shall be taken to
have given the undertaking, and the Registrar shall immediately
register the undertaking by entering particulars of it in the register
of non-conference ocean carriers with substantial market power.
(5) If the Minister revokes an order made under subsection 10.54(1),
the Registrar shall immediately include in the register a notation to
the effect that the order has been revoked.
10.60 Enforcement of orders and undertakings
(1) An ocean carrier shall not contravene an order made under
subsection 10.54(1) or an undertaking given under section 10.59.
(2) Part VI applies in relation to subsection (1) as if that subsection
were a provision of Part IV.
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Division 11 Unfair pricing practices
Section 10.61
66 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 11—Unfair pricing practices
10.61 Powers exercisable by Minister in relation to pricing practices
etc.
(1) Subject to section 10.62, the Minister may, by writing served on an
ocean carrier, order the ocean carrier not to engage in a pricing
practice.
(2) Where the Minister makes an order under subsection (1), the
Registrar shall immediately enter particulars of the order in the
register of obligations concerning unfair pricing practices.
10.62 Circumstances in which Minister may exercise powers
The Minister shall not make an order under subsection 10.61(1)
unless:
(a) the Minister is satisfied:
(i) that the ocean carrier concerned has engaged in the
pricing practice concerned in relation to outwards liner
cargo shipping services or inwards liner cargo shipping
services provided on a particular trade route;
(ii) that the practice has resulted in the freight rates charged
by the ocean carrier for all or some outwards liner cargo
shipping services or inwards liner cargo shipping
services provided on the trade route being less than
normal freight rates for services of that kind (as
determined in accordance with section 10.66);
(iii) that the practice is of such a magnitude or such a
recurring or systematic character that it has prevented or
hindered, or threatens to prevent or hinder, the provision
of outwards liner cargo shipping services or inwards
liner cargo shipping services on the trade route that are:
(A) efficient and economical; and
(B) provided at the capacity and frequency
reasonably required to meet the needs of
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Section 10.63
Competition and Consumer Act 2010 67
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shippers who use, and shippers who may
reasonably be expected to need to use, the
services; and
(iv) that the practice is contrary to the national interest (as
determined in accordance with section 10.67);
(b) the Minister has carried on or attempted to carry on, either
personally or through authorised officers, consultations with
the ocean carrier directed at obtaining an undertaking or
action by the ocean carrier that would have made an order
under subsection 10.61(1) unnecessary; and
(c) the Commission has reported to the Minister under
section 10.63 in relation to the ocean carrier in relation to
outwards liner cargo shipping services or inwards liner cargo
shipping services provided on the trade route and the
Minister has taken the report into account.
10.63 Investigation and report by Commission
(1) The Minister may, on the complaint of an affected person or
otherwise, refer to the Commission for investigation and report the
question whether grounds exist for the Minister to be satisfied, in
relation to an ocean carrier in relation to outwards liner cargo
shipping services or inwards liner cargo shipping services provided
on a trade route, of the matters referred to in paragraph 10.62(a).
(2) The Commission shall hold an investigation into the question and
report to the Minister.
(3) In its investigation, the Commission shall give special
consideration to any matters specified in the reference as matters to
be given special consideration by the Commission.
10.64 Undertakings not to engage in pricing practices
(1) An ocean carrier may, at any time, offer to give an undertaking:
(a) not to engage in a pricing practice; and
(b) to give the Registrar such information as the Registrar from
time to time requires (verified as the Registrar requires) for
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Section 10.65
68 Competition and Consumer Act 2010
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the purpose of ascertaining whether the ocean carrier is
engaging in, or has engaged in, the pricing practice.
(2) The offer must be:
(a) in the appropriate prescribed form; and
(b) made to the Minister in accordance with the regulations.
(3) If the Minister accepts the offer, the Minister may do either or both
of the following:
(a) revoke any reference made to the Commission under
subsection 10.63(1) in relation to the ocean carrier;
(b) revoke any order made under subsection 10.61(1) in relation
to the ocean carrier.
(4) If the Minister accepts the offer, the ocean carrier shall be taken to
have given the undertaking, and the Registrar shall immediately
register the undertaking by entering particulars of it in the register
of obligations concerning unfair pricing practices.
(5) If the Minister revokes an order made under subsection 10.61(1),
the Registrar shall immediately include in the register a notation to
the effect that the order has been revoked.
10.65 Enforcement of orders and undertakings
(1) An ocean carrier shall not contravene an order made under
subsection 10.61(1) or an undertaking given under section 10.64.
(2) Part VI applies in relation to subsection (1) as if that subsection
were a provision of Part IV.
10.66 Determination of normal freight rates for shipping services
(1) The normal freight rates for outwards liner cargo shipping services
or inwards liner cargo shipping services provided on a trade route
are, subject to subsection (2), the freight rates actually charged in
the ordinary course of shipping business for the same or similar
services on the same or a comparable trade route by ocean carriers
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Section 10.67
Competition and Consumer Act 2010 69
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who do not enjoy non-commercial advantages given by a
government (including a government of a foreign country).
(2) If such actual freight rates do not exist or it is not possible to
ascertain satisfactorily what they are, the normal freight rates for
the services may be determined by:
(a) comparing the costs of the ocean carrier concerned and
comparable ocean carriers who do not enjoy non-commercial
advantages given by a government (including a government
of a foreign country); and
(b) allowing reasonable margins of profit.
(3) The comparison shall:
(a) take into account all costs incurred in the ordinary course of
shipping business, whether the costs are fixed or variable;
and
(b) allow for reasonable overhead expenses.
10.67 Determination of whether practice contrary to national
interest
(1) In determining whether a pricing practice in relation to outwards
liner cargo shipping services is contrary to the national interest,
regard shall be had, in particular, to:
(a) the effect that the practice has had, or is likely to have, in
relation to:
(i) continued access by Australian exporters to outwards
liner cargo shipping services of adequate frequency and
reliability at freight rates that are internationally
competitive; and
(ii) stable access to export markets for exporters in all
States and Territories;
(b) the extent to which any advantages provided by the practice
or similar practices are enjoyed by competitors of Australian
exporters; and
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Section 10.67
70 Competition and Consumer Act 2010
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(c) the effect that denial of any advantages provided by the
practice would have on the competitiveness of Australian
industries.
(2) Subsection (3) applies when determining whether a pricing practice
in relation to inwards liner cargo shipping services is contrary to
the national interest.
(3) Regard must be had, in particular, to the effect that the practice has
had, or is likely to have, in relation to continuous stable access by
Australian importers in all States and Territories to inwards liner
cargo shipping services that:
(a) are of adequate frequency and reliability; and
(b) are at freight rates that are internationally competitive.
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Registration of ocean carrier agents Division 12
Section 10.68
Competition and Consumer Act 2010 71
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Division 12—Registration of ocean carrier agents
10.68 Ocean carrier who provides international liner cargo shipping
services to have registered agent
(1) Every ocean carrier who provides international liner cargo shipping
services shall, at all times, be represented for the purposes of this
Act by a person who:
(a) is an individual resident in Australia;
(b) has been appointed by the ocean carrier as the ocean carrier’s
agent for the purposes of this Act; and
(c) is specified in the register of ocean carrier agents as the ocean
carrier’s agent.
(2) An ocean carrier who, without reasonable excuse, contravenes
subsection (1) commits an offence punishable, on conviction, by a
fine not exceeding:
(a) in the case of a natural person—20 penalty units; and
(b) in the case of a body corporate—100 penalty units.
10.69 Representation of ocean carrier by registered agent
(1) Everything done by or in relation to an ocean carrier’s registered
agent in that capacity shall, for the purposes of this Act, be taken to
be done by or in relation to the ocean carrier.
(2) Without limiting subsection (1), a document required or permitted
to be served on, or given to, an ocean carrier under or for the
purposes of this Act (including the process of any court) may be
served on, or given to, the ocean carrier by serving it on, or giving
it to, the ocean carrier’s registered agent.
(3) A document that is, under subsection (2), permitted to be served
on, or given to, an ocean carrier’s registered agent may be served
on, or given to, the agent by:
(a) delivering it to the agent personally; or
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Division 12 Registration of ocean carrier agents
Section 10.70
72 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) leaving it at, or sending it by pre-paid post to, the address for
service specified in relation to the agent in the register of
ocean carrier agents.
(4) Subsection (3) does not affect:
(a) the operation of any other law of the Commonwealth, or any
law of a State or Territory, that authorises the service of a
document otherwise than as provided in that subsection; or
(b) the power of a court to authorise service of a document
otherwise than as provided in that subsection.
10.70 Application by ocean carrier for registration of agent
(1) An ocean carrier may apply for the registration of a person as the
ocean carrier’s agent for the purposes of this Act.
(2) The person must:
(a) be an individual resident in Australia;
(b) have been appointed by the ocean carrier as the ocean
carrier’s agent for the purposes of this Act; and
(c) have an address for service in Australia.
(3) The application must be:
(a) made to the Registrar;
(b) made in the prescribed form and in accordance with the
regulations; and
(c) accompanied by the prescribed fee.
10.71 Registration of agent
(1) Where an ocean carrier properly applies under section 10.70 for the
registration of an agent, the Registrar shall register the agent by
entering particulars of the ocean carrier and the agent in the
register of ocean carrier agents.
(2) The particulars entered in the register must include:
(a) the name of the ocean carrier; and
(b) the name, and address for service, of the agent.
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Registration of ocean carrier agents Division 12
Section 10.72
Competition and Consumer Act 2010 73
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
10.72 Change of agent etc.
(1) An ocean carrier may, by notice given to the Registrar:
(a) revoke the appointment of the ocean carrier’s registered
agent and, subject to subsection (2), appoint a new agent for
the purposes of this Act;
(b) change the address for service of the ocean carrier’s
registered agent to another address in Australia; or
(c) request the Registrar to vary any of the particulars entered in
the register of ocean carrier agents in relation to the ocean
carrier.
(2) A new agent appointed under paragraph (1)(a) must:
(a) be an individual resident in Australia; and
(b) have an address for service in Australia.
(3) A notice under paragraph (1)(a), (b) or (c):
(a) must be in the appropriate prescribed form;
(b) must be given to the Registrar in accordance with the
regulations; and
(c) may be expressed to take effect on and from a specified
future day.
(4) Where an ocean carrier properly gives a notice under
paragraph (1)(a) or (b), the Registrar shall immediately make such
variations to the particulars entered in the register of ocean carrier
agents in relation to the ocean carrier as are necessary to give effect
to the notice.
(5) Where an ocean carrier properly gives a notice under
paragraph (1)(c), the Registrar shall make such variations (if any)
to the particulars entered in the register of ocean carrier agents in
relation to the ocean carrier as the Registrar considers necessary or
desirable to give effect to the notice.
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Division 12A Exemption orders for inwards conference agreements etc.
Section 10.72A
74 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 12A—Exemption orders for inwards conference
agreements etc.
10.72A Exemption orders for inwards conference agreements etc.
(1) The Minister may, by legislative instrument, make an order
exempting:
(a) a specified inwards conference agreement; or
(b) specified inwards liner cargo shipping services; or
(c) specified conduct in relation to the provision, or proposed
provision, of inwards liner cargo shipping services;
from the scope of any or all of the eligible regulatory provisions.
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(2) The Registrar must enter particulars of any order under
subsection (1) in the register of exemption orders.
(4) For the purposes of this section, each of the following provisions is
an eligible regulatory provision:
(a) subsection 10.07(2);
(b) section 10.08;
(c) paragraph 10.28(1)(ba);
(d) subsection 10.29(1A);
(e) section 10.40;
(f) section 10.41;
(g) section 10.43;
(h) subparagraph 10.45(1)(a)(iv);
(i) subsection 10.45(3);
(j) subsection 10.45(4);
(k) section 10.52;
(l) subparagraph 10.62(a)(i).
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Section 10.72B
Competition and Consumer Act 2010 75
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
10.72B Criteria for making exemption order
(1) The Minister must not make an exemption order unless the
Minister is of the opinion that it is in the national interest to make
the order.
(2) For the purposes of subsection (1), in determining what is in the
national interest, the Minister must have regard to each of the
following:
(a) Australia’s international relations;
(b) Australia’s international obligations;
(c) any relevant principle of international law or practice;
(d) the interests of Australian exporters;
(e) the interests of Australian importers;
(f) any other relevant matters.
10.72C Duration of exemption order may be limited
(1) An exemption order may be expressed to be in force for a period
specified in the order.
(2) Subsection (1) does not prevent the revocation of an exemption
order in accordance with subsection 33(3) of the Acts
Interpretation Act 1901.
10.72D Conditions of exemption order
An exemption order may be expressed to be subject to such
conditions as are specified in the order.
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Division 13 General provisions relating to registers and conference agreement files
Section 10.73
76 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 13—General provisions relating to registers and
conference agreement files
10.73 Form of registers and conference agreement files
(1) The registers and conference agreement files kept by the Registrar
may be kept in such form (whether or not documentary form) as
the Registrar considers appropriate.
(2) The register of Commission investigations may be kept in such
form (whether or not documentary form) as the Commission
considers appropriate.
10.74 Deletion of entries wrongly existing in certain registers
Where the Registrar is satisfied that an entry wrongly exists in a
register kept by the Registrar, the Registrar shall delete the entry.
10.75 Deletion of obsolete entries in certain registers
Where the Registrar is satisfied that an entry in a register kept by
the Registrar is obsolete, the Registrar may delete the entry.
10.76 Correction of clerical errors and other mistakes in certain
registers etc.
Where the Registrar is satisfied that a clerical error or other
mistake exists in particulars entered in a register kept by the
Registrar or that matters included in particulars entered in a register
kept by the Registrar are obsolete, the Registrar may vary the
particulars for the purpose of correcting the error or mistake or
removing the obsolete matters.
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Administration Division 14
Section 10.77
Competition and Consumer Act 2010 77
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 14—Administration
10.77 Registrar of Liner Shipping
There shall be a Registrar of Liner Shipping.
10.78 Appointment of Registrar etc.
The Registrar shall be appointed by the Minister, and holds office
during the pleasure of the Minister.
10.79 Acting Registrar
The Minister may appoint a person to act as Registrar:
(a) during a vacancy in the office of Registrar (whether or not an
appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Registrar is
absent from duty or from Australia or is, for any other
reason, unable to perform the duties of the office.
10.80 Registrar and staff to be public servants
The Registrar, and any staff of the Registrar, shall be persons
engaged under the Public Service Act 1999.
10.81 Delegation by Minister
The Minister may, by signed writing, delegate to the Registrar, or
to a person occupying a specified office in the Department, all or
any of the Minister’s powers under or in relation to this Part (other
than powers under sections 10.02A and 10.03, subsections 10.06(1)
and 10.44(1), sections 10.46, 10.47, 10.48 and 10.50,
subsection 10.54(1), sections 10.56, 10.57 and 10.58,
subsection 10.61(1) and sections 10.63 and 10.72A).
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Section 10.82
78 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
10.82 Delegation by Registrar
The Registrar may, by signed writing, delegate to a person
occupying a specified office in the Department all or any of the
Registrar’s powers under this Part.
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Review of decisions of Commission Division 14A
Section 10.82A
Competition and Consumer Act 2010 79
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 14A—Review of decisions of Commission
10.82A Review by Tribunal
(1) For the purposes of this section, each of the following decisions of
the Commission is a reviewable decision:
(a) a decision to refuse to hold an investigation under
subsection 10.48(2) or 10.58(2);
(b) a decision under section 10.88 to:
(i) exclude a document, or the particulars of a submission,
from the register of Commission investigations; or
(ii) refuse to exclude a document, or the particulars of a
submission, from the register of Commission
investigations.
(2) If the Commission makes a reviewable decision:
(a) a person whose interests are affected by the decision; or
(b) a designated shipper body;
may apply in writing to the Tribunal for a review of the decision.
(3) An application under this section for a review of a decision must be
made within 21 days after the Commission made the decision.
(4) If the Tribunal receives an application under this section for a
review of a decision, the Tribunal must review the decision.
10.82B Functions and powers of Tribunal
(1) On a review of a decision of the Commission of a kind mentioned
in section 10.82A, the Tribunal may make a decision affirming,
setting aside or varying the decision of the Commission and, for
the purposes of the review, may perform all the functions and
exercise all the powers of the Commission.
(2) A decision by the Tribunal affirming, setting aside or varying a
decision of the Commission is taken for the purposes of this Act
(other than this Division) to be a decision of the Commission.
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Division 14A Review of decisions of Commission
Section 10.82C
80 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) For the purposes of a review by the Tribunal, the member of the
Tribunal presiding at the review may require the Commission to
give such information, make such reports and provide such other
assistance to the Tribunal as the member specifies.
(4) For the purposes of a review, the Tribunal may have regard to any
information given, documents produced or evidence given to the
Commission in connection with the making of the decision to
which the review relates.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
10.82C Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the
Tribunal of a decision of the Commission of a kind mentioned in
section 10.82A.
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Review of decisions of Minister Division 14B
Section 10.82D
Competition and Consumer Act 2010 81
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 14B—Review of decisions of Minister
10.82D Review by Tribunal
(1) For the purposes of this section, each of the following decisions of
the Minister is a reviewable decision:
(a) a decision to:
(i) give; or
(ii) refuse to give;
a direction under subsection 10.44(1), subsection 10.46(3),
paragraph 10.49(3)(b), subsection 10.51(1),
subsection 10.56(3) or paragraph 10.59(3)(b);
(b) a decision under section 10.49, 10.59 or 10.64 to:
(i) accept an offer; or
(ii) refuse to accept an offer;
(c) a decision under paragraph 10.49(3)(a), 10.59(3)(a) or
10.64(3)(a) to:
(i) revoke a reference; or
(ii) refuse to revoke a reference;
(d) a decision under paragraph 10.49(3)(c) to:
(i) revoke a direction; or
(ii) refuse to revoke a direction;
(e) a decision to:
(i) make; or
(ii) refuse to make;
an order under subsection 10.54(1) or 10.61(1);
(f) a decision under paragraph 10.59(3)(c) or 10.64(3)(b) to:
(i) revoke an order; or
(ii) refuse to revoke an order.
(2) If the Minister makes a reviewable decision:
(a) a person whose interests are affected by the decision; or
(b) a designated shipper body;
may apply in writing to the Tribunal for a review of the decision.
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Division 14B Review of decisions of Minister
Section 10.82E
82 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) An application under this section for a review of a decision must be
made within 21 days after the Minister made the decision.
(4) If the Tribunal receives an application under this section for a
review of a decision, the Tribunal must review the decision.
10.82E Functions and powers of Tribunal
(1) On a review of a decision of the Minister of a kind mentioned in
section 10.82D, the Tribunal may make a decision affirming,
setting aside or varying the decision of the Minister and, for the
purposes of the review, may perform all the functions and exercise
all the powers of the Minister.
(2) A decision by the Tribunal affirming, setting aside or varying a
decision of the Minister is taken for the purposes of this Act (other
than this Division) to be a decision of the Minister.
(3) For the purposes of a review by the Tribunal, the member of the
Tribunal presiding at the review may request the Minister to give
such information, make such reports and provide such other
assistance to the Tribunal as the member specifies. The Minister
must comply with such a request.
(4) For the purposes of a review, the Tribunal may have regard to any
information given, documents produced or evidence given to the
Minister in connection with the making of the decision to which
the review relates.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
10.82F Modifying register after Tribunal review
(1) If:
(a) the Tribunal decides to set aside or vary a decision of the
Minister; and
(b) a register kept by the Registrar is not consistent with the
decision of the Tribunal;
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Section 10.82G
Competition and Consumer Act 2010 83
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the Minister must direct the Registrar to take such action, by way
of modifying the register, as is necessary to ensure that the register
is consistent with the Tribunal’s decision.
(2) The Registrar must comply with a direction under subsection (1).
(3) If, in accordance with subsection (2), the Registrar:
(a) deletes particulars of a direction under subsection 10.44(1)
from the register of conference agreements; or
(b) includes in the register of conference agreements a notation
to the effect that a direction under subsection 10.44(1) has
been set aside;
Subdivision A of Division 5 applies in relation to the conference
agreement concerned to the extent to which that Subdivision would
have applied but for the entry of the particulars of the direction.
10.82G Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the
Tribunal of a decision of the Minister of a kind mentioned in
section 10.82D.
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Division 15 Miscellaneous
Section 10.83
84 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 15—Miscellaneous
10.83 Act not to affect rights under Freedom of Information Act
Nothing in this Part affects a right that a person may have under
the Freedom of Information Act 1982.
10.84 Review of decisions of Registrar
(1) Application may be made to the Administrative Appeals Tribunal
for review of a reviewable decision.
(2) In subsection (1):
decision has the same meaning as in the Administrative Appeals
Tribunal Act 1975.
reviewable decision means a decision of the Registrar under this
Part, other than:
(a) a decision to provisionally or finally register a conference
agreement; or
(b) a decision as to the form of a register.
10.85 Statement to accompany notices of Registrar
(1) Where the Registrar makes a reviewable decision (within the
meaning of section 10.84) and gives to a person whose interests are
affected by the decision written notice of the making of the
decision, the notice must include:
(a) a statement to the effect that application may be made to the
Administrative Appeals Tribunal under the Administrative
Appeals Tribunal Act 1975 for review of a decision of the
Registrar under this Part; and
(b) a statement to the effect that a person who is entitled to apply
to the Administrative Appeals Tribunal for review of a
decision may, under section 28 of that Act, request a
statement that includes reasons for the decision.
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Section 10.86
Competition and Consumer Act 2010 85
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) Paragraph (1)(b) does not apply in relation to a case to which
subsection 28(4) of the Administrative Appeals Tribunal Act 1975
applies.
(3) A contravention of subsection (1) in relation to a decision does not
affect the validity of the decision.
10.86 Evidence
(1) A certificate signed by the Registrar stating any matter in relation
to the registration under this Part of an ocean carrier, ocean
carrier’s agent, conference agreement, direction, undertaking,
determination or order, or any other matter in relation to a register,
or conference agreement file, kept by the Registrar under this Part,
is prima facie evidence of the matter.
(2) Without limiting subsection (1), the matters that may be certified
under that subsection include:
(a) whether an ocean carrier, ocean carrier’s agent, conference
agreement, undertaking, determination or order is or is not
registered under this Part;
(b) the name and address for service of an ocean carrier’s agent;
and
(c) the provisions and other particulars of a conference
agreement, direction, undertaking, determination or order.
(3) A document purporting to be a certificate under subsection (1)
shall, unless the contrary is established, be taken to be such a
certificate and to have been properly given.
10.87 Notification by Commission of references etc.
The Commission may make public, in such manner as it considers
appropriate:
(a) receipt of references under subsections 10.47(1), 10.50(1),
10.57(1) and 10.63(1); and
(b) decisions made by it under subsections 10.48(2), 10.48(2A)
and 10.58(2) to hold investigations.
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Division 15 Miscellaneous
Section 10.88
86 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
10.88 Exclusion of documents etc. from register of Commission
investigations
(1) Where:
(a) a person gives a document to the Commission in relation to
an investigation; or
(b) a person makes an oral submission to the Commission in
relation to an investigation;
the person may, at the same time, request that the document, or the
particulars of the submission, be excluded from the register
because of the confidential nature of matters contained in the
document or submission.
(2) If the Commission is satisfied that the request is justified because
disclosure of matters contained in the document or submission
would disclose:
(a) trade secrets;
(b) information (other than trade secrets) having a commercial
value that would be, or could reasonably be expected to be,
destroyed or diminished if the information were disclosed; or
(c) any other information concerning a person in relation to the
person’s business or professional affairs, or concerning the
business, commercial or financial affairs of an organisation
or undertaking, the disclosure of which would, or could
reasonably be expected to, unreasonably affect the person
adversely in relation to the person’s lawful business or
professional affairs or the organisation or undertaking in
relation to its lawful business, commercial or financial
affairs;
the Commission shall exclude the document, or the particulars of
the submission, from the register.
(3) If:
(a) the Commission refuses a request to exclude a document
from the register; and
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Section 10.89
Competition and Consumer Act 2010 87
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(b) the person who gave the document requests the Commission
to return it;
the Commission shall return the document and, in that case,
paragraph 10.13(2)(d) does not apply in relation to the document.
(4) If:
(a) the Commission refuses a request to exclude the particulars
of an oral submission from the register; and
(b) the person who made the submission withdraws it;
paragraph 10.13(2)(e) does not apply in relation to the submission.
(5) If the Commission is satisfied that it is otherwise desirable to do
so, the Commission may exclude a document, or the particulars of
a submission, from the register.
(6) If a person makes a request under subsection (1), the document or
the particulars of the submission concerned must not be included in
the register until the Commission has dealt with the request.
(7) In this section:
document includes a part of a document.
investigation means an investigation under section 10.47, 10.48,
10.50, 10.57, 10.58 or 10.63.
register means the register of Commission investigations.
submission includes a part of a submission.
10.89 Disclosure of confidential information
(1) In this section:
court includes any tribunal, authority or person having power to
require the production of documents or the answering of questions.
give includes permit access to.
officer means a person who is or has been:
(a) the Registrar;
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88 Competition and Consumer Act 2010
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(b) a member of the staff assisting the Registrar; or
(c) a person to whom powers under this Part have been delegated
by the Minister or the Registrar.
produce includes permit access to.
(2) This section applies in relation to information if the information
relates to a person and was obtained by an officer, either directly or
indirectly, from a part of a document filed with the Registrar, being
a part that is not open to public inspection.
(3) This section applies in relation to a part of a document filed with
the Registrar, being a part that is not open to public inspection.
(4) An officer shall not:
(a) make a record of any information to which this section
applies;
(b) divulge or communicate to a person any information to
which this section applies; or
(c) give a person a part of a document to which this section
applies;
unless the record is made, the information divulged or
communicated or the part of the document given:
(d) for the purposes of this Act; or
(e) in relation to the performance of a duty or the exercise of a
power under or in relation to this Act.
Penalty: $5,000 or imprisonment for 2 years, or both.
(5) Subsection (4) applies in relation to the divulging or
communicating of information whether directly or indirectly, but
does not apply in relation to the divulging or communicating of
information to, or the giving of a part of a document to, the
Minister.
(6) An officer shall not be required:
(a) to produce in a court a part of a document to which this
section applies; or
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Section 10.90
Competition and Consumer Act 2010 89
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(b) to divulge or communicate to a court any information to
which this section applies;
except so far as it is necessary to do so for the purposes of carrying
into effect the provisions of this Act.
10.90 Fees
(1) The regulations may prescribe fees for the purposes of this Part,
including fees payable on applications and requests made under
this Part.
(2) The regulations shall not fix fees exceeding:
(a) in the case of an application for provisional registration of a
conference agreement—$1,200; and
(b) in the case of an application for final registration of a
conference agreement—$700; and
(c) in the case of an application for the registration of a person as
an ocean carrier’s agent—$160; and
(ca) in the case of variation of the register of ocean carrier agents
following a notice under subsection 10.72(1)—$160; and
(d) in the case of an application to obtain a copy of, the whole or
any part of, an entry in a register kept under this Part or a
conference agreement file kept under this Part—$200.
10.91 Application of Part XID and section 155 to investigations
under Part
(1) Part XID and section 155 apply in relation to an investigation by
the Commission under this Part as if the investigation were an
investigation by the Commission relating to a matter that
constitutes, or may constitute, a contravention of this Act.
(2) Subsection (1) shall not be taken to limit by implication any
powers that the Commission has apart from that subsection.
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Part XI Application of the Australian Consumer Law as a law of the Commonwealth
Division 1 Preliminary
Section 130
90 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part XI—Application of the Australian Consumer
Law as a law of the Commonwealth
Division 1—Preliminary
130 Definitions
In this Part:
associate: a person (the first person) is an associate of another
person if:
(a) the first person holds money or other property on behalf of
the other person; or
(b) if the other person is a body corporate—the first person is a
wholly-owned subsidiary (within the meaning of the
Corporations Act 2001) of the other person.
Australian Consumer Law means Schedule 2 as applied under
Subdivision A of Division 2 of this Part.
Chairperson has the same meaning as in subsection 4(1).
corporation has the same meaning as in subsection 4(1).
disclosure notice: see subsection 133D(3).
embargo notice: see subsection 135S(1).
embargo period for an embargo notice means the period specified
in the embargo notice under paragraph 135S(3)(c) or (d).
enforcement order: see paragraph 139D(1)(b).
Family Court Judge means a Judge of the Family Court (including
the Chief Justice, the Deputy Chief Justice or a Senior Judge).
Federal Court means the Federal Court of Australia.
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infringement notice means an infringement notice issued under
subsection 134A(1).
infringement notice compliance period: see subsection 134F(1).
infringement notice provision: see subsection 134A(2).
inspector means a person who is appointed as an inspector under
subsection 133(1).
listed corporation has the meaning given by section 9 of the
Corporations Act 2001.
member of the Commission has the same meaning as in
subsection 4(1).
occupational liability: see subsection 137(5).
personal injury includes:
(a) prenatal injury; and
(b) impairment of a person’s physical or mental condition; and
(c) disease;
but does not include an impairment of a person’s mental condition
unless the impairment consists of a recognised psychiatric illness.
person assisting: see subsection 135D(2).
professional standards law: see subsection 137(4).
proposed ban notice: see subsection 132(1).
proposed recall notice: see subsection 132A(1).
reckless conduct: see subsection 139A(5).
recreational services: see subsection 139A(2).
search-related powers: see subsections 135A(1) and (2).
search warrant means a warrant issued or signed under
section 135Z or 136.
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Division 1 Preliminary
Section 130A
92 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
smoking has the same meaning as in the Tobacco Advertising
Prohibition Act 1992.
state of mind, of a person, includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the
person; and
(b) the person’s reasons for the person’s intention, opinion,
belief or purpose.
tobacco product has the same meaning as in the Tobacco
Advertising Prohibition Act 1992.
130A Expressions defined in Schedule 2
An expression has the same meaning in this Part as in Schedule 2.
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Section 131
Competition and Consumer Act 2010 93
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Division 2—Application of the Australian Consumer Law
as a law of the Commonwealth
Subdivision A—Application of the Australian Consumer Law
131 Application of the Australian Consumer Law in relation to
corporations etc.
(1) Schedule 2 applies as a law of the Commonwealth to the conduct
of corporations, and in relation to contraventions of Chapter 2, 3 or
4 of Schedule 2 by corporations.
Note: Sections 5 and 6 of this Act extend the application of this Part (and
therefore extend the application of the Australian Consumer Law as a
law of the Commonwealth).
(2) Without limiting subsection (1):
(a) section 21 of Schedule 2 also applies as a law of the
Commonwealth in relation to:
(i) a supply or possible supply of goods or services by any
person to a corporation (other than a listed public
company); or
(ii) an acquisition or possible acquisition of goods or
services from any person by a corporation (other than a
listed public company); and
(b) section 147 of Schedule 2 also applies as a law of the
Commonwealth to, and in relation to, a corporation as a
supplier referred to in that section; and
(c) Division 2 of Part 5-1 of Schedule 2 also applies as a law of
the Commonwealth to and in relation to a person if the other
person referred to in section 219 of Schedule 2 is a
corporation.
(3) The table of contents in Schedule 2 is additional information that is
not part of this Act. Information in the table may be added to or
edited in any published version of this Act.
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Section 131A
94 Competition and Consumer Act 2010
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131A Division does not apply to financial services
(1) Despite section 131, this Division does not apply (other than in
relation to the application of Part 5-5 of Schedule 2 as a law of the
Commonwealth) to the supply, or possible supply, of services that
are financial services, or of financial products.
(2) Without limiting subsection (1):
(a) Part 2-1 of Schedule 2 and sections 34 and 156 of Schedule 2
do not apply to conduct engaged in in relation to financial
services; and
(b) Part 2-3 of Schedule 2 does not apply to, or in relation to:
(i) contracts that are financial products; or
(ii) contracts for the supply, or possible supply, of services
that are financial services; and
(c) if a financial product consists of or includes an interest in
land—the following provisions of Schedule 2 do not apply to
that interest:
(i) section 30;
(ii) paragraphs 32(1)(c) and (d) and (2)(c) and (d);
(iii) paragraphs 50(1)(c) and (d);
(iv) section 152;
(v) subparagraphs 154(1)(b)(iii) and (iv) and (2)(b)(iii) and
(iv);
(vi) subparagraphs 168(1)(b)(iii) and (iv); and
(d) sections 39 and 161 of Schedule 2 do not apply to:
(i) a credit card that is part of, or that provides access to, a
credit facility that is a financial product; or
(ii) a debit card that allows access to an account that is a
financial product.
131B Division does not apply to interim bans imposed by State or
Territory Ministers
Despite section 131, this Division does not apply to an interim ban
that is not imposed by the Commonwealth Minister.
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Section 131C
Competition and Consumer Act 2010 95
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131C Saving of other laws and remedies
(1) This Part is not intended to exclude or limit the concurrent
operation of any law, whether written or unwritten, of a State or a
Territory.
(2) Section 73 of the Australian Consumer Law does not operate in a
State or a Territory to the extent necessary to ensure that no
inconsistency arises between:
(a) that section; and
(b) a provision of a law of the State or Territory that would, but
for this subsection, be inconsistent with that section.
(3) Despite subsection (1):
(a) if an act or omission of a person is both:
(i) an offence against this Part or the Australian Consumer
Law; and
(ii) an offence against a law of a State or a Territory; and
(b) the person is convicted of either of those offences;
he or she is not liable to be convicted of the other of those
offences.
(4) Except as expressly provided by this Part or the Australian
Consumer Law, nothing in this Part or the Australian Consumer
Law is taken to limit, restrict or otherwise affect any right or
remedy a person would have had if this Part and the Australian
Consumer Law had not been enacted.
Subdivision B—Effect of other Commonwealth laws on the
Australian Consumer Law
131D Effect of Part VIB on Chapter 5 of the Australian Consumer
Law
Chapter 5 of the Australian Consumer Law has effect subject to
Part VIB.
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Section 131E
96 Competition and Consumer Act 2010
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131E Application of the Legislation Act 2003
(1) The following instruments made under the Australian Consumer
Law by the Commonwealth Minister are to be made by legislative
instrument:
(a) a determination under subsection 66(1) (display notices);
(b) a notice under subsection 104(1) or 105(1) (safety standards);
(c) a notice under subsection 109(1) or (2) (interim bans);
(d) a notice under section 111 (extensions of interim bans);
(e) a notice under section 113 (revocation of interim bans);
(f) a notice under subsection 114(1) or (2) (permanent bans);
(g) a notice under section 117 (revocation of permanent bans);
(h) a notice under subsection 122(1) (recall notices);
(i) a notice under subsection 134(1) or 135(1) (information
standards).
(2) The following instruments made under the Australian Consumer
Law are not legislative instruments:
(a) an approval given under paragraph 106(5)(b) (approval to
export);
(b) an approval given under paragraph 118(5)(b) (approval to
export);
(c) a notice under subsection 128(3) (voluntary recalls);
(d) a notice under subsection 129(1) or (2) (safety warning
notices);
(e) a notice under subsection 130(1) (announcement of results of
an investigation);
(f) a notice under subsection 223(1) or (2) (public warning
notices).
(3) To avoid doubt, an instrument made under the Australian
Consumer Law by a responsible Minister who is not the
Commonwealth Minister, or a regulator that is not the
Commission, is not a legislative instrument.
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Section 131F
Competition and Consumer Act 2010 97
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131F Section 4AB of the Crimes Act does not apply
Section 4AB of the Crimes Act 1914 does not apply to any
provision of this Part or the Australian Consumer Law.
131G Application of the Criminal Code
Corporate criminal responsibility
(1) Part 2.5 of the Criminal Code does not apply to an offence against
this Part or the Australian Consumer Law.
Mistake of fact defence
(2) Section 9.2 of the Criminal Code does not apply to an offence
against Chapter 4 of the Australian Consumer Law.
Note: Section 207 of the Australian Consumer Law provides a mistake of
fact defence for offences under Chapter 4 of the Australian Consumer
Law.
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Division 3 Conferences for proposed bans and recall notices
Section 132
98 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 3—Conferences for proposed bans and recall
notices
Subdivision A—Conference requirements before a ban or
compulsory recall
132 Commonwealth Minister must issue a proposed ban notice
(1) The Commonwealth Minister must issue a proposed ban notice if
the Commonwealth Minister proposes to impose an interim ban, or
a permanent ban:
(a) on consumer goods of a particular kind; or
(b) on product related services of a particular kind.
(2) Subsection (1) does not apply in relation to an interim ban if the
Commonwealth Minister has issued a notice under section 132J
certifying that the ban should be imposed without delay.
(3) The proposed ban notice must:
(a) be in writing; and
(b) be published on the internet; and
(c) set out a copy of a draft notice for the imposition of the
interim ban or permanent ban; and
(d) set out a summary of the reasons for the proposed imposition
of the ban; and
(e) invite any person who supplies, or proposes to supply:
(i) consumer goods of that kind; or
(ii) product related services of that kind;
to notify the Commission, in writing and within a period
specified in the notice, if the person wishes the Commission
to hold a conference in relation to the proposed imposition of
the ban.
(4) The period specified in the proposed ban notice under
paragraph (3)(e):
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(a) must be a period of at least 10 days, or such longer period as
the Commonwealth Minister specifies in the notice; and
(b) must not commence before the day on which the notice is
published.
(5) A proposed ban notice is not a legislative instrument.
132A Commonwealth Minister must issue a proposed recall notice
(1) The Commonwealth Minister must issue a proposed recall notice
if the Commonwealth Minister proposes to issue a recall notice for
consumer goods of a particular kind.
(2) Subsection (1) does not apply in relation to a recall notice if the
Commonwealth Minister has issued a notice under section 132J
certifying that the recall notice should be issued without delay.
(3) The proposed recall notice must:
(a) be in writing; and
(b) be published on the internet; and
(c) set out a copy of a draft recall notice; and
(d) set out a summary of the reasons for the proposed issue of the
recall notice; and
(e) invite any person who supplies, or proposes to supply,
consumer goods of that kind to notify the Commission, in
writing and within a period specified in the notice, if the
person wishes the Commission to hold a conference in
relation to the proposed issue of the recall notice.
(4) The period specified in the proposed recall notice under
paragraph (3)(e):
(a) must be a period of at least 10 days, or such longer period as
the Commonwealth Minister specifies in the notice; and
(b) must not commence before the day on which the notice is
published.
(5) A proposed recall notice is not a legislative instrument.
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Section 132B
100 Competition and Consumer Act 2010
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132B Commonwealth Minister to be notified if no person wishes a
conference to be held
(1) If no person notifies the Commission in accordance with a
proposed ban notice, or a proposed recall notice, that the person
wishes the Commission to hold a conference, the Commission
must, in writing, notify the Commonwealth Minister of that fact.
(2) A notice under subsection (1) is not a legislative instrument.
132C Notification of conference
(1) If one or more persons notify the Commission in accordance with a
proposed ban notice, or a proposed recall notice, that they wish the
Commission to hold a conference, the Commission must:
(a) appoint a day, time and place for the holding of the
conference; and
(b) give written notice to the Commonwealth Minister, and to
each person who so notified the Commission, of that day,
time and place.
(2) The day appointed must be at least 5 days, but not more than 14
days, after the end of the period:
(a) for a proposed ban notice—specified under
paragraph 132(3)(e); or
(b) for a proposed recall notice—specified under
paragraph 132A(3)(e).
(3) A notice under paragraph (1)(b) is not a legislative instrument.
132D Recommendation after conclusion of conference
(1) As soon as is practicable after the conclusion of a conference held
under this Subdivision in relation to the proposed imposition of an
interim ban or permanent ban, the Commission must:
(a) by written notice given to the Commonwealth Minister,
recommend that the Commonwealth Minister:
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(i) impose the ban in the same terms as the draft notice
referred to in paragraph 132(3)(c); or
(ii) impose the ban with such modifications to that notice as
are specified by the Commission; or
(iii) not impose the ban; and
(b) cause a copy of the notice given under paragraph (a) to be
given to each person who was present or represented at the
conference.
(2) As soon as is practicable after the conclusion of a conference held
under this Subdivision in relation to the proposed issue of a recall
notice, the Commission must:
(a) by written notice given to the Commonwealth Minister,
recommend that the Commonwealth Minister:
(i) issue the recall notice in the same terms as the draft
recall notice referred to in paragraph 132A(3)(c); or
(ii) issue the recall notice with such modifications to that
draft recall notice as are specified by the Commission;
or
(iii) not issue the recall notice; and
(b) cause a copy of the notice given under paragraph (a) to be
given to each person who was present or represented at the
conference.
(3) The Commonwealth Minister must:
(a) have regard to a recommendation made under
paragraph (1)(a) or (2)(a); and
(b) if he or she decides to act otherwise than in accordance with
the recommendation—the Commonwealth Minister must, by
written notice published on the internet, set out the reasons
for his or her decision.
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Section 132E
102 Competition and Consumer Act 2010
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Subdivision B—Conference requirements after an interim ban
is imposed
132E Opportunity for a conference after an interim ban has been
imposed by the Commonwealth Minister
(1) This section applies if:
(a) an interim ban on consumer goods of a particular kind, or on
product related services of a particular kind, is in force; and
(b) the interim ban was imposed by the Commonwealth
Minister; and
(c) before the ban was imposed, the Commonwealth Minister
published a notice under section 132J certifying that the
interim ban should be imposed without delay.
(2) The Commonwealth Minister must, by written notice published on
the internet, invite any person who supplied, or proposes to supply:
(a) consumer goods of that kind; or
(b) product related services of that kind;
to notify the Commission, in writing and within a period specified
in the notice, if the person wishes the Commission to hold a
conference in relation to the interim ban.
(3) The period specified in the notice under subsection (2):
(a) must be a period of at least 10 days, or such longer period as
the Commonwealth Minister specifies in the notice; and
(b) must not commence before the day on which the notice is
published.
(4) A notice under subsection (2) is not a legislative instrument.
132F Notification of conference
(1) If one or more persons notify the Commission in accordance with a
notice published under subsection 132E(2) that they wish the
Commission to hold a conference, the Commission must:
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(a) appoint a day, time and place for the holding of the
conference; and
(b) give written notice to the Commonwealth Minister, and to
each person who so notified the Commission, of that day,
time and place.
(2) The day appointed must be at least 5 days, but not more than 14
days, after the end of the period specified in the notice under
subsection 132E(2).
(3) A notice under paragraph (1)(b) is not a legislative instrument.
132G Recommendation after conclusion of conference
(1) As soon as is practicable after the conclusion of a conference held
under this Subdivision in relation to an interim ban, the
Commission must:
(a) by written notice given to the Commonwealth Minister,
recommend that the interim ban remain in force, be varied or
be revoked; and
(b) cause a copy of the notice to be given to each person who
was present or represented at the conference.
(2) The Commonwealth Minister must:
(a) have regard to a recommendation made under
paragraph (1)(a); and
(b) if he or she decides to act otherwise than in accordance with
the recommendation—the Commonwealth Minister must, by
written notice published on the internet, set out the reasons
for his or her decision.
Subdivision C—Conduct of conferences
132H Conduct of conferences
(1) At a conference held under Subdivision A or B of this Division:
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Section 132H
104 Competition and Consumer Act 2010
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(a) the Commission must be represented by a member or
members of the Commission who are nominated by the
Chairperson; and
(b) each person who notified the Commission in accordance with
whichever of the following is applicable:
(i) a proposed ban notice;
(ii) a proposed recall notice;
(iii) a notice under subsection 132E(2);
is entitled to be present or to be represented; and
(c) any other person whose presence at the conference is
considered by the Commission to be appropriate is entitled to
be present or to be represented; and
(d) the Commonwealth Minister is, or a person or persons
nominated in writing by the Commonwealth Minister are,
entitled to be present; and
(e) the procedure to be followed must be as determined by the
Commission.
(2) The Commission must cause a record of the proceedings at the
conference to be kept.
(3) The Commission must, as far as is practicable, ensure that each
person who is entitled to be present, or who is representing such a
person, at the conference is given a reasonable opportunity at the
conference to present his or her case and in particular:
(a) to inspect any documents (other than a document that
contains particulars of a secret formula or process) which the
Commission proposes to consider for the purpose of making
a recommendation after the conclusion of the conference; and
(b) to make submissions in relation to those documents.
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Section 132J
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Subdivision D—Miscellaneous
132J Interim ban and recall notice without delay in case of danger to
the public
(1) If it appears to the Commonwealth Minister that consumer goods
of a particular kind create an imminent risk of death, serious illness
or serious injury, he or she may, by written notice published on the
internet, certify that:
(a) an interim ban on consumer goods of that kind should be
imposed without delay; or
(b) a recall notice for consumer goods of that kind should be
issued without delay.
(2) If it appears to the Commonwealth Minister that product related
services of a particular kind create an imminent risk of death,
serious illness or serious injury, he or she may, by written notice
published on the internet, certify that an interim ban on services of
that kind should be imposed without delay.
(3) If:
(a) the Commonwealth Minister publishes a notice under
subsection (1) or (2); and
(b) action of any kind has been taken under Subdivision A of this
Division in relation to the interim ban or recall notice, but no
recommendation has been made under section 132D;
the Commonwealth Minister may impose the interim ban, or issue
the recall notice, without regard to that action.
(4) A notice under subsection (1) or (2) is not a legislative instrument.
132K Copy of notices under this Division to be given to suppliers
(1) If the Commonwealth Minister:
(a) issues a proposed ban notice; or
(b) issues a proposed recall notice; or
(c) publishes a notice under subsection 132E(2); or
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Section 132K
106 Competition and Consumer Act 2010
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(d) publishes a notice under subsection 132J(1) or (2);
he or she must cause a copy of the notice to be given to each
person who, to the knowledge of the Commonwealth Minister,
supplies the consumer goods, or the product related services, to
which the notice relates.
(2) The copy must be given:
(a) within 2 days after the publication or issue of the notice; or
(b) if it is not practicable to give the copy within that period—as
soon as practicable after the end of that period.
(3) A failure to comply with subsection (1) does not invalidate the
notice.
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Section 133
Competition and Consumer Act 2010 107
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Division 4—Enforcement
Subdivision A—Inspectors
133 Appointment of inspectors
(1) The Chairperson may, in writing, appoint a member of the staff
assisting the Commission as an inspector.
(2) The Chairperson must not appoint a person as an inspector unless
the Chairperson is satisfied that the person has suitable
qualifications and experience to exercise properly the powers of an
inspector.
(3) An inspector must, in exercising powers as an inspector, comply
with any directions of the Chairperson.
(4) If a direction under subsection (3) is given in writing, the direction
is not a legislative instrument.
133A Identity cards
(1) The Chairperson must issue an identity card to a person appointed
as an inspector.
Form of identity card
(2) The identity card must:
(a) be in the form prescribed by the regulations; and
(b) contain a recent photograph of the person.
Offence
(3) A person commits an offence if:
(a) the person has been issued with an identity card under
subsection (1); and
(b) the person ceases to be an inspector; and
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Section 133B
108 Competition and Consumer Act 2010
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(c) the person does not, as soon as practicable after so ceasing,
return the identity card to the Chairperson.
Penalty: 1 penalty unit.
(4) An offence against subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Defence: card lost or destroyed
(5) Subsection (3) does not apply if the identity card was lost or
destroyed.
Note: A defendant bears an evidential burden in relation to the matter in this
subsection: see subsection 13.3(3) of the Criminal Code.
Inspector must carry card
(6) An inspector issued with an identity card under subsection (1) must
carry his or her identity card at all times when exercising powers as
an inspector.
Subdivision B—Premises to which the public is given access
133B Power to enter premises to which the public has access—
consumer goods
(1) An inspector may enter premises in or from which a person, in
trade or commerce, supplies consumer goods, if the public has
access to the premises at the time of entry, for the purpose of
ascertaining whether:
(a) any of those consumer goods will or may cause injury to any
person; or
(b) a reasonably foreseeable use (including a misuse) of those
consumer goods will or may cause injury to any person;
and remain on the premises for such a purpose while the public has
access to the premises.
(2) While on the premises, the inspector may:
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Section 133C
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(a) take photographs of:
(i) any of those consumer goods; or
(ii) equipment used in the manufacturing, processing or
storage any of those consumer goods; and
(b) inspect, handle and measure any of those consumer goods;
and
(c) purchase any of those consumer goods.
133C Power to enter premises to which the public has access—
product related services
(1) An inspector may enter premises in or from which a person, in
trade or commerce, supplies product related services, if the public
has access to the premises at the time of entry, for the purposes of
ascertaining whether:
(a) as a result of any of those product related services being
supplied, any consumer goods will or may cause injury to
any person; or
(b) a reasonably foreseeable use (including a misuse) of any
consumer goods, to which any of those product related
services relate, will or may cause injury to any person as a
result of those services being supplied;
and remain on the premises for such a purpose while the public has
access to the premises.
(2) While on the premises, the inspector may:
(a) take photographs of:
(i) the premises; or
(ii) equipment used to supply any of those product related
services; and
(b) inspect, handle and measure such equipment; and
(c) purchase any of those product related services.
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Section 133D
110 Competition and Consumer Act 2010
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Subdivision C—Disclosure notices relating to the safety of
goods or services
133D Power to obtain information etc.
Consumer goods
(1) The Commonwealth Minister or an inspector may give a disclosure
notice to a person (the supplier) who, in trade or commerce,
supplies consumer goods of a particular kind if the person giving
the notice has reason to believe:
(a) that:
(i) consumer goods of that kind will or may cause injury to
any person; or
(ii) a reasonably foreseeable use (including a misuse) of
consumer goods of that kind will or may cause injury to
any person; and
(b) that the supplier is capable of giving information, producing
documents or giving evidence in relation to those consumer
goods.
Product related services
(2) The Commonwealth Minister or an inspector may give a disclosure
notice to a person (the supplier) who, in trade or commerce,
supplies product related services of a particular kind if the person
giving the notice has reason to believe:
(a) that:
(i) as a result of services of that kind being supplied,
consumer goods of a particular kind will or may cause
injury to any person; or
(ii) a reasonably foreseeable use (including a misuse) of
consumer goods of a particular kind, to which such
services relate, will or may cause injury to any person as
a result of such services being supplied; and
(b) that the supplier is capable of giving information, producing
documents or giving evidence in relation to those services.
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Section 133E
Competition and Consumer Act 2010 111
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Disclosure notice
(3) A disclosure notice is a written notice requiring the supplier:
(a) to give, in writing signed by the supplier, any such
information to the person specified in the notice:
(i) in the manner specified in the notice; and
(ii) within such reasonable time as is specified in the notice;
or
(b) to produce, in accordance with such reasonable requirements
as are specified in the notice, any such documents to the
person specified in the notice; or
(c) to appear before the person specified in the notice at such
reasonable time, and at such place, as is specified in the
notice:
(i) to give any such evidence, on oath or affirmation; and
(ii) to produce any such documents.
(4) The person specified in the notice may be:
(a) the Commonwealth Minister; or
(b) an inspector (whether or not that inspector gave the notice).
133E Self-incrimination
(1) A person is not excused from:
(a) giving information or evidence; or
(b) producing a document;
as required by a disclosure notice given to the person on the ground
that the information or evidence, or production of the document,
might tend to incriminate the person or expose the person to a
penalty.
(2) However, in the case of an individual:
(a) the information or evidence given, or the document
produced; and
(b) giving the information or evidence, or producing the
document;
are not admissible in evidence against the individual:
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Section 133F
112 Competition and Consumer Act 2010
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(c) in any proceedings instituted by the individual; or
(d) in any criminal proceedings, other than proceedings against
the individual for an offence against section 133F or 133G.
133F Compliance with disclosure notices
(1) A person commits an offence if:
(a) the person is given a disclosure notice; and
(b) the person refuses or fails to comply with the notice.
Penalty:
(a) if the person is a body corporate—200 penalty units; or
(b) if the person is not a body corporate—40 penalty units.
(2) Subsection (1) does not apply if the person complies with the
disclosure notice to the extent to which the person is capable of
complying with the notice.
Note: A defendant bears an evidential burden in relation to the matter in this
subsection: see subsection 13.3(3) of the Criminal Code.
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
133G False or misleading information etc.
A person commits an offence if:
(a) the person gives information, evidence or a document in
purported compliance with a disclosure notice; and
(b) the person does so knowing that the information, evidence or
document is false or misleading in a material particular.
Penalty:
(a) if the person is a body corporate—300 penalty units; or
(b) if the person is not a body corporate—60 penalty units or
imprisonment for 12 months, or both.
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Enforcement Division 4
Section 133H
Competition and Consumer Act 2010 113
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Subdivision D—Court orders relating to the destruction etc. of
goods
133H Court orders relating to consumer goods that do not comply
with a safety standard etc.
(1) If a court is satisfied that:
(a) a person possesses or has control of consumer goods of a
particular kind; and
(b) any of the following apply:
(i) the consumer goods do not comply with a safety
standard that is in force for consumer goods of that kind
and the cause of that non-compliance cannot be
remedied;
(ii) a permanent ban on consumer goods of that kind is in
force;
(iii) a recall notice for consumer goods of that kind is in
force and a defect or dangerous characteristic of such
consumer goods identified in the notice cannot be
remedied;
the court may, on the application of an inspector, make an order of
a kind referred to in subsection (2).
(2) The court may make an order under subsection (1) authorising one
or more inspectors to do the following in accordance with any
requirements specified in the order:
(a) to enter the premises of the person that are specified in the
order;
(b) to search the premises for consumer goods of a kind specified
in the order;
(c) to seize any such consumer goods that are found at those
premises;
(d) to destroy or otherwise dispose of any such consumer goods
that are so seized.
(3) Before making an application under subsection (1), the inspector
must:
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(a) take reasonable steps to discover who has an interest in the
consumer goods; and
(b) if it is practicable to do so, notify each person whom the
inspector believes to have such an interest of the proposed
application.
(4) A person notified under subsection (3) is entitled to be heard in
relation to the application.
133J Recovery of reasonable costs of seizing, and destroying or
disposing of, consumer goods
(1) If an inspector seizes, and destroys or otherwise disposes of,
consumer goods in accordance with an order made under
subsection 133H(1):
(a) the person from whom the consumer goods were seized; or
(b) if that person is not entitled to possess the consumer goods—
the owner of the consumer goods;
is liable to pay an amount equal to the costs reasonably incurred by
the inspector in seizing, and in destroying or disposing of, the
consumer goods.
(2) An amount payable by a person under subsection (1):
(a) is a debt due by the person to the Commonwealth; and
(b) may be recovered by action in a court of competent
jurisdiction.
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Infringement notices Division 5
Section 134
Competition and Consumer Act 2010 115
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Division 5—Infringement notices
134 Purpose and effect of this Division
(1) The purpose of this Division is to provide for the issue of an
infringement notice to a person for an alleged contravention of an
infringement notice provision as an alternative to proceedings for
an order under section 224 of the Australian Consumer Law.
(2) This Division does not:
(a) require an infringement notice to be issued to a person for an
alleged contravention of an infringement notice provision; or
(b) affect the liability of a person to proceedings under Chapter 4
or Part 5-2 of the Australian Consumer Law in relation to an
alleged contravention of an infringement notice provision if:
(i) an infringement notice is not issued to the person for the
alleged contravention; or
(ii) an infringement notice issued to a person for the alleged
contravention is withdrawn under section 134G; or
(c) prevent a court from imposing a higher penalty than the
penalty specified in the infringement notice if the person
does not comply with the notice.
134A Issuing an infringement notice
(1) If the Commission has reasonable grounds to believe that a person
has contravened an infringement notice provision, the Commission
may issue an infringement notice to the person.
(2) Each of the following provisions of the Australian Consumer Law
is an infringement notice provision:
(a) a provision of Part 2-2;
(b) a provision of Part 3-1 (other than subsection 32(1), 35(1) or
36(1), (2) or (3) or section 40 or 43);
(c) subsection 66(2);
(d) a provision of Division 2 of Part 3-2 (other than section 85);
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116 Competition and Consumer Act 2010
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(e) a provision of Division 3 of Part 3-2 (other than
subsection 96(2));
(f) subsection 100(1) or (3), 101(3) or (4), 102(2) or 103(2);
(g) subsection 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2),
(3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6),
131(1), 132(1), 136(1), (2) or (3) or 137(1) or (2);
(h) subsection 221(1) or 222(1).
(3) The Commission must not issue more than one infringement notice
to the person for the same alleged contravention of the
infringement notice provision.
(4) The infringement notice does not have any effect if the notice:
(a) is issued more than 12 months after the day on which the
contravention of the infringement notice provision is alleged
to have occurred; or
(b) relates to more than one alleged contravention of an
infringement notice provision by the person.
134B Matters to be included in an infringement notice
An infringement notice must:
(a) be identified by a unique number; and
(b) state the day on which it is issued; and
(c) state the name and address of the person to whom it is issued;
and
(d) identify the Commission; and
(e) state how the Commission may be contacted; and
(f) give details of the alleged contravention by the person,
including:
(i) the date of the alleged contravention; and
(ii) the particular infringement notice provision that was
allegedly contravened; and
(g) state the maximum pecuniary penalty that the court could
order the person to pay under section 224 of the Australian
Consumer Law for the alleged contravention; and
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Section 134C
Competition and Consumer Act 2010 117
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(h) specify the penalty that is payable in relation to the alleged
contravention; and
(i) state that the penalty is payable within the infringement
notice compliance period for the notice; and
(j) state that the penalty is payable to the Commission on behalf
of the Commonwealth; and
(k) explain how payment of the penalty is to be made; and
(l) explain the effect of sections 134D, 134E, 134F and 134G.
134C Amount of penalty
The penalty to be specified in an infringement notice that is to be
issued to a person, in relation to an alleged contravention of a
provision of the Australian Consumer Law, must be a penalty
equal to the amount worked out using the following table:
Amount of penalty
Item If the infringement notice is
for an alleged contravention
of one of the following
provisions of the Australian
Consumer Law ...
the amount is ...
1 a provision of Part 2-2 (a) if the person is a listed
corporation—600
penalty units; or
(b) if the person is a body
corporate other than a
listed corporation—60
penalty units; or
(c) if the person is not a
body corporate—12
penalty units.
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Amount of penalty
Item If the infringement notice is
for an alleged contravention
of one of the following
provisions of the Australian
Consumer Law ...
the amount is ...
2 a provision of Part 3-1 (other
than subsection 32(1), 35(1),
36(1), (2) or (3), section 40 or
43 or subsection 47(1))
(a) if the person is a listed
corporation—600
penalty units; or
(b) if the person is a body
corporate other than a
listed corporation—60
penalty units; or
(c) if the person is not a
body corporate—12
penalty units.
3 subsection 47(1) (a) if the person is a body
corporate—10 penalty
units; or
(b) if the person is not a
body corporate—2
penalty units.
4 subsection 66(2) (a) if the person is a body
corporate—55 penalty
units; or
(b) if the person is not a
body corporate—11
penalty units.
5 a provision of Division 2 of
Part 3-2 (other than
section 85)
(a) if the person is a body
corporate—60 penalty
units; or
(b) if the person is not a
body corporate—12
penalty units.
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Section 134C
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Amount of penalty
Item If the infringement notice is
for an alleged contravention
of one of the following
provisions of the Australian
Consumer Law ...
the amount is ...
6 a provision of Division 3 of
Part 3-2 (other than
subsection 96(2))
(a) if the person is a body
corporate—55 penalty
units; or
(b) if the person is not a
body corporate—11
penalty units.
7 subsection 100(1) or (3) or
101(3) or (4)
(a) if the person is a body
corporate—20 penalty
units; or
(b) if the person is not a
body corporate—4
penalty units.
8 subsection 102(2) or 103(2) (a) if the person is a body
corporate—60 penalty
units; or
(b) if the person is not a
body corporate—12
penalty units.
9 subsection 106(1), (2), (3) or
(5), 107(1) or (2), 118(1), (2),
(3) or (5), 119(1) or (2)
(a) if the person is a listed
corporation—600
penalty units; or
(b) if the person is a body
corporate other than a
listed corporation—60
penalty units; or
(c) if the person is not a
body corporate—12
penalty units.
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Section 134C
120 Competition and Consumer Act 2010
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Amount of penalty
Item If the infringement notice is
for an alleged contravention
of one of the following
provisions of the Australian
Consumer Law ...
the amount is ...
10 subsection 125(4) (a) if the person is a body
corporate—30 penalty
units; or
(b) if the person is not a
body corporate—6
penalty units.
11 subsection 127(1) or (2) (a) if the person is a listed
corporation—600
penalty units; or
(b) if the person is a body
corporate other than a
listed corporation—60
penalty units; or
(c) if the person is not a
body corporate—12
penalty units.
12 subsection 128(2) or (6),
131(1) or 132(1)
(a) if the person is a body
corporate—30 penalty
units; or
(b) if the person is not a
body corporate—6
penalty units.
13 subsection 136(1), (2) or (3)
or 137(1) or (2)
(a) if the person is a listed
corporation—600
penalty units; or
(b) if the person is a body
corporate other than a
listed corporation—60
penalty units; or
(c) if the person is not a
body corporate—12
penalty units.
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Section 134D
Competition and Consumer Act 2010 121
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Amount of penalty
Item If the infringement notice is
for an alleged contravention
of one of the following
provisions of the Australian
Consumer Law ...
the amount is ...
14 subsection 221(1) (a) if the person is a body
corporate—30 penalty
units; or
(b) if the person is not a
body corporate—6
penalty units.
15 subsection 222(1) (a) if the person is a body
corporate—50 penalty
units; or
(b) if the person is not a
body corporate—10
penalty units.
134D Effect of compliance with an infringement notice
(1) This section applies if:
(a) an infringement notice for an alleged contravention of an
infringement notice provision is issued to a person; and
(b) the person pays the penalty specified in the infringement
notice within the infringement notice compliance period and
in accordance with the notice; and
(c) the infringement notice is not withdrawn under section 134G.
(2) The person is not, merely because of the payment, regarded as:
(a) having contravened the infringement notice provision; or
(b) having been convicted of an offence constituted by the same
conduct that constituted the alleged contravention of the
infringement notice provision.
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Section 134E
122 Competition and Consumer Act 2010
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(3) No proceedings (whether criminal or civil) may be started or
continued against the person, by or on behalf of the
Commonwealth, in relation to:
(a) the alleged contravention of the infringement notice
provision; or
(b) an offence constituted by the same conduct that constituted
the alleged contravention.
134E Effect of failure to comply with an infringement notice
If:
(a) an infringement notice for an alleged contravention of an
infringement notice provision is issued to a person; and
(b) the person fails to pay the penalty specified in the
infringement notice within the infringement notice
compliance period and in accordance with the notice; and
(c) the infringement notice is not withdrawn under section 134G;
the person is liable to proceedings under Chapter 4 or Part 5-2 of
the Australian Consumer Law in relation to the alleged
contravention of the infringement notice provision.
134F Infringement notice compliance period for infringement notice
(1) Subject to this section, the infringement notice compliance period
for an infringement notice is the period of 28 days beginning on the
day after the day on which the infringement notice is issued by the
Commission.
(2) The Commission may extend, by notice in writing, the
infringement notice compliance period for the notice if the
Commission is satisfied that it is appropriate to do so.
(3) Only one extension may be given and the extension must not be for
longer than 28 days.
(4) Notice of the extension must be given to the person who was
issued the infringement notice.
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Section 134G
Competition and Consumer Act 2010 123
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(5) A failure to comply with subsection (4) does not affect the validity
of the extension.
(6) If the Commission extends the infringement notice compliance
period for an infringement notice, a reference in this Division to
the infringement notice compliance period for an infringement
notice is taken to be a reference to the infringement notice
compliance period as so extended.
134G Withdrawal of an infringement notice
Representations to the Commission
(1) The person to whom an infringement notice has been issued for an
alleged contravention of an infringement notice provision may
make written representations to the Commission seeking the
withdrawal of the infringement notice.
(2) Evidence or information that the person, or a representative of the
person, gives to the Commission in the course of making
representations under subsection (1) is not admissible in evidence
against the person or representative in any proceedings (other than
proceedings for an offence based on the evidence or information
given being false or misleading).
Withdrawal by the Commission
(3) The Commission may, by written notice (the withdrawal notice)
given to the person to whom an infringement notice was issued,
withdraw the infringement notice if the Commission is satisfied
that it is appropriate to do so.
(4) Subsection (3) applies whether or not the person has made
representations seeking the withdrawal.
Content of withdrawal notices
(5) The withdrawal notice must state:
(a) the name and address of the person; and
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(b) the day on which the infringement notice was issued to the
person; and
(c) that the infringement notice is withdrawn; and
(d) that proceedings under Chapter 4 or Part 5-2 of the
Australian Consumer Law may be started or continued
against the person in relation to:
(i) the alleged contravention of the infringement notice
provision; or
(ii) an offence constituted by the same conduct that
constituted the alleged contravention.
Time limit for giving withdrawal notices
(6) To be effective, the withdrawal notice must be given to the person
within the infringement notice compliance period for the
infringement notice.
Refunds
(7) If the infringement notice is withdrawn after the person has paid
the penalty specified in the infringement notice, the Commission
must refund to the person an amount equal to the amount paid.
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Search, seizure and entry Division 6
Section 135
Competition and Consumer Act 2010 125
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Division 6—Search, seizure and entry
Subdivision A—Powers of inspectors
135 Inspector may enter premises
Consumer goods
(1) If an inspector has reason to believe that:
(a) consumer goods of a particular kind will or may cause injury
to any person; or
(b) a reasonably foreseeable use (including a misuse) of
consumer goods of a particular kind will or may cause injury
to any person;
the inspector may, for the purposes of ascertaining the matter
referred to in paragraph (a) or (b):
(c) enter any premises in or from which the inspector has reason
to believe that a person supplies consumer goods of that kind
in trade or commerce; and
(d) exercise search-related powers in relation to the premises.
Product related services
(2) If an inspector has reason to believe that:
(a) as a result of product related services of a particular kind
being supplied, consumer goods of a particular kind will or
may cause injury to any person; or
(b) a reasonably foreseeable use (including a misuse) of
consumer goods of a particular kind, to which product related
services of a particular kind relate, will or may cause injury
to any person as a result of such services being supplied;
the inspector may, for the purposes of ascertaining the matter
referred to in paragraph (a) or (b):
(c) enter any premises in or from which the inspector has reason
to believe that a person supplies product related services of
that kind in trade or commerce; and
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Section 135A
126 Competition and Consumer Act 2010
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(d) exercise search-related powers in relation to the premises.
Limitation on entry
(3) However, the inspector is not entitled to enter premises under
subsection (1) or (2) unless:
(a) the occupier of the premises has consented to the entry and
the inspector has shown his or her identity card if required by
the occupier; or
(b) the entry is made under a search warrant; or
(c) the entry is made in circumstances in which the exercise of
search-related powers is required without delay in order to
protect life or public safety.
Note: For requirements relating to the occupier’s consent, see section 135H.
135A Search-related powers of inspectors
Search-related powers—consumer goods
(1) The following are the search-related powers that an inspector may
exercise, under subsection 135(1), in relation to premises in or
from which the inspector has reason to believe that a person
supplies consumer goods of a particular kind:
(a) if entry to the premises is under a search warrant—the power
to seize consumer goods of that kind;
(b) the power to inspect, handle and measure consumer goods of
that kind;
(c) the power to take samples of consumer goods of that kind;
(d) the power:
(i) to inspect, handle and read any documents relating to
consumer goods of that kind; and
(ii) to make copies of, or take extracts from, those
documents;
(e) the power:
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Section 135A
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(i) to inspect, handle and measure equipment used in the
manufacturing, processing or storage of consumer
goods of that kind; and
(ii) if entry to the premises is under a search warrant—to
seize such equipment;
(f) the power to make any still or moving image or any
recording of:
(i) consumer goods of that kind; or
(ii) the premises; or
(iii) any equipment referred to in subparagraph (e)(i).
Search-related powers—product related services
(2) The following are the search-related powers that an inspector may
exercise, under subsection 135(2), in relation to premises in or
from which the inspector has reason to believe that a person
supplies product related services of a particular kind:
(a) the power:
(i) to inspect, handle and read any documents relating to
services of that kind; and
(ii) to make copies of, or take extracts from, those
documents;
(b) the power:
(i) to inspect, handle and measure equipment used to
supply services of that kind; and
(ii) if entry to the premises is under a search warrant—to
seize such equipment;
(c) the power to make any still or moving image or any
recording of:
(i) any consumer goods to which product related services
of that kind relate; or
(ii) the premises; or
(iii) any equipment referred to in subparagraph (b)(i).
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Section 135B
128 Competition and Consumer Act 2010
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135B Inspector may ask questions and seek production of
documents
Entry with consent etc.
(1) If an inspector enters premises because the occupier of the
premises consents to the entry or in the circumstances referred to in
paragraph 135(3)(c), the inspector may ask the occupier to:
(a) answer any questions relating to the reasons for the inspector
entering the premises that are put by the inspector; and
(b) produce any document relating to the reasons for the
inspector entering the premises that is requested by the
inspector.
Entry under a search warrant
(2) If an inspector enters premises under a search warrant, the
inspector may require any person on the premises to:
(a) answer any questions relating to the reasons for the inspector
entering the premises that are put by the inspector; and
(b) produce any document relating to the reasons for the
inspector entering the premises that is requested by the
inspector.
135C Failure to answer questions or produce documents
(1) A person commits an offence if:
(a) the person is subject to a requirement under
subsection 135B(2); and
(b) the person fails to comply with the requirement.
Penalty:
(a) if the person is a body corporate—150 penalty units; or
(b) if the person is not a body corporate—30 penalty units.
(2) A person is not excused from:
(a) answering a question; or
(b) producing a document;
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Section 135D
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as required under subsection 135B(2) on the ground that the
answer, or production of the document, might tend to incriminate
the person or expose the person to a penalty.
(3) However, in the case of an individual:
(a) the answer, or the document produced; and
(b) giving the answer, or producing the document;
are not admissible in evidence against the individual in any
criminal proceedings other than:
(c) proceedings for any offence against subsection (1); or
(d) proceedings for an offence based on the answer or document
being false or misleading; or
(e) proceedings for an offence based on the obstruction of public
officials.
(4) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
135D Persons assisting inspectors
Inspectors may be assisted by other persons
(1) An inspector may, in entering premises under section 135 and in
exercising search-related powers in relation to the premises, be
assisted by other persons if that assistance is necessary and
reasonable.
(2) A person giving such assistance is a person assisting the inspector.
Powers of a person assisting the inspector
(3) A person assisting the inspector may:
(a) enter the premises; and
(b) exercise search-related powers in relation to the premises, but
only in accordance with a direction given to the person by the
inspector.
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Section 135E
130 Competition and Consumer Act 2010
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(4) A power exercised by a person assisting the inspector as mentioned
in subsection (3) is taken for all purposes to have been exercised by
the inspector.
135E Use of force in executing a search warrant
In executing a search warrant, an inspector executing the warrant
may use such force against persons and things as is necessary and
reasonable in the circumstances.
135F Announcement before entry under warrant
(1) An inspector must, before entering premises under a search
warrant:
(a) announce that he or she is authorised to enter the premises;
and
(b) show his or her identity card to the occupier of the premises,
or to another person who apparently represents the occupier,
if the occupier or other person is present at the premises; and
(c) give any person at the premises an opportunity to allow entry
to the premises.
(2) However, an inspector is not required to comply with
subsection (1) if he or she believes on reasonable grounds that
immediate entry to the premises is required:
(a) to ensure the safety of a person (including the inspector or a
person assisting the inspector); or
(b) to ensure that the effective execution of the warrant is not
frustrated.
(3) If:
(a) the inspector does not comply with subsection (1) because of
subsection (2); and
(b) the occupier of the premises, or another person who
apparently represents the occupier, is present at the premises;
the inspector must, as soon as practicable after entering the
premises, show his or her identity card to the occupier or other
person.
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Section 135G
Competition and Consumer Act 2010 131
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135G Inspector must be in possession of search warrant
If a search warrant is being executed in relation to premises, an
inspector executing the warrant must be in possession of:
(a) the warrant issued under section 135Z or a copy of that
warrant; or
(b) the form of warrant completed under subsection 136(7), or a
copy of that form.
Subdivision B—Obligations of inspectors
135H Consent
(1) An inspector must, before obtaining the consent of an occupier of
premises for the purposes of paragraph 135(3)(a), inform the
occupier that the occupier may refuse consent.
(2) A consent has no effect unless the consent is voluntary.
(3) If an inspector enters premises because the occupier of the
premises consented to the entry, the inspector, and a person
assisting the inspector, must leave the premises if the consent
ceases to have effect.
135J Details of search warrant etc. must be given to the occupier of
the premises
If:
(a) a search warrant is being executed in relation to premises;
and
(b) the occupier of the premises, or another person who
apparently represents the occupier, is present at the premises;
an inspector executing the warrant must, as soon as practicable:
(c) do one of the following:
(i) if the warrant was issued under section 135Z—make a
copy of the warrant available to the occupier or other
person (which need not include the signature of the
judge who issued it);
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Section 135K
132 Competition and Consumer Act 2010
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(ii) if the warrant was signed under section 136—make a
copy of the form of warrant completed under
subsection 136(7) available to the occupier or other
person; and
(d) inform the occupier or other person of the rights and
responsibilities of the occupier or other person under
Subdivision C.
Subdivision C—Occupier’s etc. rights and responsibilities
135K Occupier etc. entitled to observe execution of search warrant
(1) If:
(a) a search warrant is being executed in relation to premises;
and
(b) the occupier of the premises, or another person who
apparently represents the occupier, is present at the premises;
the occupier or other person is entitled to observe the execution of
the warrant.
(2) The right to observe the execution of the search warrant ceases if
the occupier or other person impedes that execution.
(3) This section does not prevent the execution of the search warrant in
2 or more areas of the premises at the same time.
135L Occupier etc. to provide inspector etc. with facilities and
assistance
(1) A person commits an offence if:
(a) the person is:
(i) the occupier of premises to which a search warrant
relates; or
(ii) another person who apparently represents the occupier
of those premises; and
(b) the person fails to provide:
(i) an inspector executing the warrant; and
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Section 135M
Competition and Consumer Act 2010 133
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(ii) a person assisting the inspector;
with all reasonable facilities and assistance for the effective
exercise of their powers.
Penalty:
(a) if the person is a body corporate—600 penalty units; or
(b) if the person is not a body corporate—120 penalty units or
imprisonment for 2 years, or both.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
135M Receipts for seized consumer goods and equipment
(1) If consumer goods are seized under a search warrant, an inspector
must provide a receipt for the goods.
(2) If equipment is seized under a search warrant, an inspector must
provide a receipt for the equipment.
(3) One receipt may cover:
(a) consumer goods and equipment that have been so seized; and
(b) 2 or more kinds of consumer goods or equipment that have
been so seized.
135N Return of seized consumer goods and equipment
(1) Subject to any order under section 135P, if an inspector seizes
consumer goods or equipment under a search warrant, the inspector
must take reasonable steps to return the consumer goods or
equipment if:
(a) the reason for the seizure no longer exists; or
(b) the period of 60 days after the seizure ends;
whichever happens first.
(2) Subsection (1) does not apply if:
(a) the consumer goods are, or the equipment is, forfeited or
forfeitable to the Commonwealth; or
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Section 135P
134 Competition and Consumer Act 2010
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(b) the consumer goods are, or the equipment is, the subject of a
dispute as to ownership.
(3) If, apart from this subsection, the inspector would be required to
take reasonable steps to return consumer goods or equipment under
subsection (1) because of paragraph (b) of that subsection, the
inspector is not required to do so if:
(a) the return of the consumer goods or equipment could cause
an imminent risk of death, serious illness or serious injury; or
(b) the inspector is otherwise authorised (by a law, or an order of
a court, of the Commonwealth or of a State or a Territory) to
retain, destroy, dispose of or otherwise deal with the
consumer goods or equipment.
(4) Consumer goods that are required to be returned under this section
must be returned to the person from whom they were seized (or to
the owner if that person is not entitled to possess them).
(5) Equipment that is required to be returned under this section must
be returned to the person from whom it was seized (or to the owner
if that person is not entitled to possess it).
135P Judge may permit consumer goods or equipment to be
retained
(1) An inspector who has seized consumer goods or equipment under a
search warrant may, before the end of the period referred to in
paragraph 135N(1)(b), apply to a judge of the Federal Court for an
order that the inspector may retain the consumer goods or
equipment for a further period of up to 60 days.
(2) If:
(a) an application to a judge is made under subsection (1); and
(b) the judge is satisfied that it is necessary in all the
circumstances for the inspector to continue to retain the
consumer goods or equipment;
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Section 135Q
Competition and Consumer Act 2010 135
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
the judge may order that the inspector may retain the consumer
goods or equipment for a further period (not exceeding 60 days)
specified in the order.
(3) Before making the application under subsection (1), the inspector
must:
(a) take reasonable steps to discover who has an interest in the
retention of the consumer goods or equipment; and
(b) if it is practicable to do so, notify each person whom the
inspector believes to have such an interest of the proposed
application.
Subdivision D—Provisions relating to seizure
135Q Recovery of reasonable costs of seizing consumer goods or
equipment
(1) If an inspector seizes consumer goods or equipment under a search
warrant:
(a) the person from whom the consumer goods were seized, or
the equipment was seized; or
(b) if that person is not entitled to possess the consumer goods or
equipment—the owner of the consumer goods or equipment;
is liable to pay an amount equal to the costs reasonably incurred by
the inspector in seizing the consumer goods or equipment.
(2) An amount payable by a person under subsection (1):
(a) is a debt due by the person to the Commonwealth; and
(b) may be recovered by action in a court of competent
jurisdiction.
135R Destruction or disposal of seized consumer goods or
equipment
(1) If:
(a) an inspector seizes consumer goods, or equipment used to
supply product-related services, under a search warrant; and
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Section 135S
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(b) apart from this section, the inspector is required to return the
consumer goods or equipment to a person; and
(c) either:
(i) the inspector cannot, despite making reasonable efforts,
locate the person; or
(ii) the person has refused to take possession of the
consumer goods or equipment;
a court may, on the application of the inspector, make an order
authorising the inspector to destroy or otherwise dispose of the
consumer goods or equipment.
(2) If subparagraph (1)(c)(ii) applies, the inspector must, before
making an application under subsection (1), inform the person
referred to in that subparagraph that the inspector proposes to make
an application under that subsection.
(3) If:
(a) an order is made under subsection (1); and
(b) subparagraph (1)(c)(ii) applies;
the person referred to in that subparagraph is liable to pay an
amount equal to the costs reasonably incurred by the inspector in
destroying or disposing of the consumer goods or equipment.
(4) An amount payable by a person under subsection (3):
(a) is a debt due by the person to the Commonwealth; and
(b) may be recovered by action in a court of competent
jurisdiction.
Subdivision E—Embargo notices
135S Embargo notices
(1) An inspector who enters premises under a search warrant may give
an embargo notice to the occupier of the premises.
(2) The inspector may give the notice to the occupier of the premises:
(a) by causing a copy of the notice to be served on the occupier;
or
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Section 135S
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(b) if the occupier cannot be located after all reasonable steps
have been taken to do so—by:
(i) causing a copy of the notice to be served on a person on
the premises who is reasonably believed to be in regular
contact with the occupier; or
(ii) causing a copy of the notice to be affixed to the
premises, or to a thing on the premises, in a prominent
position.
(3) The embargo notice must:
(a) be in writing; and
(b) specify the consumer goods, or product related services, to
which the notice relates; and
(c) if the notice relates to consumer goods—state that the
specified consumer goods must not be:
(i) supplied in or from the premises; or
(ii) transferred, moved, altered, destroyed or otherwise
interfered with;
during the period specified in the notice; and
(d) if the notice relates to product related services—state that the
specified product related services must not be supplied in or
from the premises during the period specified in the notice;
and
(e) explain the effect of section 135V or 135W.
(4) Despite anything in any other law, a contract for a supply of
consumer goods or product related services that is prohibited by an
embargo notice is void.
(5) If consumer goods are supplied in contravention of an embargo
notice:
(a) the supplier must immediately return or refund to the person
who acquired the goods any consideration (or the value of
any consideration) that that person gave:
(i) under an agreement for the supply; or
(ii) under a related contract or instrument; and
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Section 135T
138 Competition and Consumer Act 2010
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(b) if the goods have been removed from the premises in which
they were subject to the embargo notice—the person who
acquired the goods must:
(i) return the goods to the premises; or
(ii) notify the supplier of the place where the supplier may
collect the goods; and
(c) if subparagraph (b)(ii) applies—the supplier must collect the
goods from the place notified to the supplier, and return them
to the premises.
135T Embargo period for embargo notices
Embargo period
(1) Subject to this section, the embargo period for an embargo notice
must not be longer than:
(a) if the inspector giving the notice secures consumer goods
under section 135V or secures equipment under
section 135W—24 hours; or
(b) otherwise—28 days.
Extensions of embargo period
(2) An inspector may, before the embargo period ends, apply to a
judge of the Federal Court for an extension of the period.
(3) If an inspector intends to make an application under subsection (2),
the inspector must, before making the application, notify the
occupier of the premises to which the embargo notice relates of
that intention.
(4) The occupier of the premises is entitled to be heard in relation to
the application.
(5) The judge may extend the embargo period for a specified period if
the judge is satisfied that the extension is necessary in all the
circumstances.
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Section 135U
Competition and Consumer Act 2010 139
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
135U Multiple embargo notices for the same consumer goods or
product related services
An inspector must not give an embargo notice in relation to
consumer goods, or product related services, of a particular kind if:
(a) an embargo notice (the earlier embargo notice) has already
been given in relation to consumer goods, or product related
services, of that kind; and
(b) the embargo period for the earlier embargo notice did not end
at least 5 days ago.
135V Power of inspectors to secure consumer goods
If:
(a) an embargo notice relates to consumer goods; and
(b) the inspector who gives the notice believes on reasonable
grounds that it is necessary to secure the consumer goods in
order to ensure that the notice is complied with;
the inspector may, during the embargo period for the embargo
notice, do anything that the inspector thinks is necessary to secure
those consumer goods (whether by locking them up, placing a
guard or otherwise).
135W Power of inspectors to secure equipment used to supply
product related services
If:
(a) an embargo notice relates to product related services; and
(b) the inspector who gives the notice believes on reasonable
grounds that it is necessary to secure equipment used to
supply the services in order to ensure that the notice is
complied with;
the inspector may, during the embargo period for the embargo
notice, do anything that the inspector thinks is necessary to secure
that equipment (whether by locking it up, placing a guard or
otherwise).
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Section 135X
140 Competition and Consumer Act 2010
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135X Consent to supply etc. embargoed consumer goods etc.
(1) If an embargo notice relating to consumer goods has been given,
the owner of the goods or another person who has an interest in the
goods may, in writing, request consent to do any of the following:
(a) to supply the goods;
(b) to transfer, move, alter, destroy or otherwise interfere with
the goods.
(2) If an embargo notice relating to product related services has been
given, the following persons may, in writing, request consent to
supply the services:
(a) the person who would, but for the embargo notice, supply the
services;
(b) another person whose interests would be affected if the
services were not supplied.
(3) If a request for consent is made under subsection (1) or (2), the
requested consent may be given, in writing, by the Commonwealth
Minister, the Chairperson or any inspector.
(4) A consent given under subsection (3) is not a legislative
instrument.
135Y Compliance with embargo notices
(1) A person commits an offence if:
(a) the person knows that an embargo notice has been given; and
(b) the person, contrary to the embargo notice, does an act or
omits to do an act.
Penalty:
(a) if the person is a body corporate—200 penalty units; or
(b) if the person is not a body corporate—40 penalty units.
(2) A person commits an offence if:
(a) the person knows that an embargo notice has been given; and
(b) the person causes another person:
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Section 135Z
Competition and Consumer Act 2010 141
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(i) to do an act that is contrary to the embargo notice; or
(ii) contrary to the embargo notice, to omit to do an act.
Penalty:
(a) if the person is a body corporate—200 penalty units; or
(b) if the person is not a body corporate—40 penalty units.
(3) Subsection (1) or (2) does not apply in relation to:
(a) an act done in accordance with a consent given under
section 135X; or
(b) if the embargo notice relates to consumer goods—an act
done for the purpose of protecting or preserving the
consumer goods; or
(c) if the embargo notice relates to product related services—an
act done for the purpose of protecting or preserving
equipment used to supply the services.
Note: A defendant bears an evidential burden in relation to the matter in this
subsection: see subsection 13.3(3) of the Criminal Code.
(4) Strict liability applies to paragraphs (1)(b) and (2)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Subdivision F—Issue of search warrants
135Z Issue of search warrants
Application for warrant
(1) An inspector may apply to a judge of the Federal Court for a
warrant in relation to premises.
Issue of warrant
(2) The judge may issue the warrant if:
(a) an affidavit has been given to the judge setting out the
grounds on which the issue of the warrant is being sought;
and
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(b) the applicant, or some other person, has given to the judge
such further information (if any) as the judge requires
concerning the grounds on which the issue of the warrant is
being sought; and
(c) the judge is satisfied that there are reasonable grounds for
issuing the warrant.
Content of warrant
(3) The warrant must:
(a) specify the purpose for which the warrant is issued; and
(b) describe the premises to which the warrant relates; and
(c) state that the warrant is issued under this section; and
(d) name one or more inspectors; and
(e) authorise the inspector or inspectors so named:
(i) to enter the premises; and
(ii) to exercise search-related powers in relation to the
premises; and
(f) state whether the entry is authorised to be made at any time
of the day or night, or during specified hours of the day or
night; and
(g) specify a day (which must not be more than 7 days after the
day the warrant is issued) on which the warrant ceases to be
in force.
136 Search warrants by telephone, fax etc.
Application for warrant
(1) An inspector may apply to a judge of the Federal Court by
telephone, fax or other electronic means for a warrant under
section 135Z in relation to premises if the inspector believes on
reasonable grounds that the delay that would occur if an
application were made in person would frustrate the effective
execution of the warrant.
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Section 136
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Voice communication
(2) The judge may require communication by voice to the extent that it
is practicable in the circumstances.
Affidavit
(3) Before applying for the warrant, the inspector must prepare an
affidavit of the kind mentioned in paragraph 135Z(2)(a).
(4) If it is necessary to do so, the inspector may apply for the warrant
before the affidavit has been sworn.
Signing of warrant
(5) If the judge is satisfied:
(a) after considering the terms of the affidavit; and
(b) after receiving such further information (if any) as the judge
requires concerning the grounds on which the issue of the
warrant is being sought;
that there are reasonable grounds for issuing the warrant, the judge
may complete and sign the same warrant that the judge would issue
under section 135Z if the application had been made under that
section.
Notification
(6) If the judge completes and signs the warrant, the judge must inform
the inspector, by telephone, fax or other electronic means, of:
(a) the terms of the warrant; and
(b) the day on which and the time at which the warrant was
signed.
Form of warrant
(7) The inspector must then complete a form of warrant in the same
terms as the warrant completed and signed by the judge, stating on
the form the name of the judge and the day on which and the time
at which the warrant was signed.
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Section 136A
144 Competition and Consumer Act 2010
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Completed form of warrant to be given to judge
(8) The inspector must also, not later than the day after the day on
which the warrant ceased to be in force or the day of execution of
the warrant, whichever is the earlier, send to the judge:
(a) the form of warrant completed by the inspector; and
(b) the affidavit referred to in subsection (3), which must have
been duly sworn.
Attachment
(9) The judge must attach to the documents provided under
subsection (8) the warrant signed by the judge.
Authority of warrant
(10) A form of warrant duly completed under subsection (7) is authority
for the same powers as are authorised by the warrant signed by the
judge.
(11) If:
(a) it is material, in any proceedings, for a court to be satisfied
that an exercise of a power was authorised by this section;
and
(b) the warrant signed by the judge authorising the exercise of
the power is not produced in evidence;
the court must assume, unless the contrary is proved, that the
exercise of the power was not authorised by such a warrant.
136A Offence relating to warrants by telephone, fax etc.
An inspector commits an offence if the inspector:
(a) states in a document that purports to be a form of warrant
under section 136 the name of a judge unless that judge
signed the warrant; or
(b) states on a form of warrant under that section a matter that, to
the inspector’s knowledge, departs in a material particular
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Section 136B
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from the terms of the warrant signed by the judge under that
section; or
(c) purports to execute, or presents to another person, a
document that purports to be a form of warrant under that
section that the inspector knows:
(i) has not been approved by a judge under that section; or
(ii) departs in a material particular from the terms of a
warrant signed by a judge under that section; or
(d) gives to a judge a form of warrant under that section that is
not the form of warrant that the inspector purported to
execute.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
Subdivision G—Miscellaneous
136B Powers of judges
Powers conferred personally
(1) A power conferred on a judge by this Division is conferred on the
judge:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2) The judge need not accept the power conferred.
Protection and immunity
(3) A judge exercising a power conferred by this Division has the
same protection and immunity as if he or she were exercising the
power:
(a) as the court of which the judge is a member; or
(b) as a member of the court of which the judge is a member.
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Section 137
146 Competition and Consumer Act 2010
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Division 7—Remedies
137 Limit on occupational liability
State or Territory professional standards law limits liability
(1) A professional standards law of a State, the Australian Capital
Territory or the Northern Territory applies to limit occupational
liability relating to an action for a contravention of section 18 of
the Australian Consumer Law in the same way as it limits
occupational liability arising under a law of the State or Territory.
(2) However, the professional standards law applies for that purpose:
(a) only in relation to a scheme that was prescribed by the
regulations at the time (the contravention time) of the
contravention; and
(b) as if the scheme were in force under that law at the
contravention time, in the form the scheme would have been
in if:
(i) the scheme had not been amended or revoked under that
law since the scheme was first prescribed; and
(ii) any additions, omissions, substitutions and other
modifications prescribed by the regulations at the
contravention time had been made to the scheme.
Operation of choice of law rules
(3) For the purposes of working out whether a professional standards
law of a particular State or Territory applies under subsection (1) in
relation to a particular contravention of section 18 of the Australian
Consumer Law, choice of law rules operate in relation to the
contravention in the same way as they operate in relation to a tort.
Professional standards laws
(4) A professional standards law is a law that provides for the
limitation of occupational liability by reference to schemes for
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Section 137A
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limiting that liability that were formulated and published in
accordance with that law.
Occupational liability
(5) Occupational liability is civil liability arising directly or
vicariously from anything done or omitted by a person who:
(a) does or omits to do the thing in the course of his or her
profession, trade or occupation; and
(b) is a member of a body:
(i) that represents the interests of persons who have the
same profession, trade or occupation; and
(ii) whose membership is limited principally to such
persons.
137A Contributory acts or omissions to reduce compensation in
defective goods actions
(1) If the loss or damage to which a defective goods action under
section 138 or 139 of the Australian Consumer Law relates was
caused by both:
(a) an act or omission of:
(i) the individual who suffers the injuries referred to in that
section; or
(ii) a person for whom that individual is responsible; and
(b) a safety defect of the goods to which the action relates;
the amount of the loss or damage is to be reduced to such extent
(which may be to nil) as the court thinks fit having regard to that
individual’s share in the responsibility for the loss or damage.
(2) If the loss or damage to which a defective goods action under
section 140 or 141 of the Australian Consumer Law relates was
caused by both:
(a) an act or omission of:
(i) the person who suffered the loss or damage; or
(ii) another person for whom that person is responsible; and
(b) a safety defect of the goods to which the action relates;
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Section 137B
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the amount of the loss or damage is to be reduced to such extent
(which may be to nil) as the court thinks fit having regard to the
person’s share in the responsibility for the loss or damage.
137B Reduction of the amount of loss or damage if the claimant fails
to take reasonable care
If:
(a) a person (the claimant) makes a claim under
subsection 236(1) of the Australian Consumer Law in
relation to economic loss, or damage to property, suffered by
the claimant because of the conduct of another person; and
(b) the conduct contravened section 18 of the Australian
Consumer Law; and
(c) the claimant suffered the loss or damage as result:
(i) partly of the claimant’s failure to take reasonable care;
and
(ii) partly of the conduct of the other person; and
(d) the other person did not intend to cause the loss or damage
and did not fraudulently cause the loss or damage;
the amount of the loss or damage that the claimant may recover
under subsection 236(1) of the Australian Consumer Law is to be
reduced to the extent to which a court thinks just and equitable
having regard to the claimant’s share in the responsibility for the
loss or damage.
137C Limits on recovery of amounts for death or personal injury
(1) A person is not entitled to recover an amount of loss or damage by
action under subsection 236(1) of the Australian Consumer Law to
the extent to which:
(a) the action would be based on the conduct contravening a
provision of Part 2-1 or 3-1 of the Australian Consumer Law;
and
(b) the loss or damage is, or results from, death or personal
injury; and
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Section 137D
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(c) the death or personal injury does not result from smoking or
other use of tobacco products.
(2) Divisions 2 and 7 of Part VIB of this Act apply to an action under
subsection 236(1) of the Australian Consumer Law for loss or
damage a person suffers to the extent to which:
(a) the action is based on the conduct contravening a provision
of Part 2-1 or 3-1 of the Australian Consumer Law; and
(b) the loss or damage is, or results from, death or personal
injury; and
(c) the death or personal injury results from smoking or other use
of tobacco products;
as if the action were a proceeding to which Part VIB of this Act
applied.
Note 1: Division 2 of Part VIB of this Act deals with the limitation periods
that apply for claims for damages or compensation for death or
personal injury and, to the extent to which that Division is applied to
the action by this subsection, it overrides subsection 236(2) of the
Australian Consumer Law.
Note 2: Division 7 of Part VIB of this Act deals with structured settlements for
claims for damages or compensation for death or personal injury.
137D Compensation orders etc. arising out of unfair contract terms
In determining whether to make an order under subsection 237(1)
or 238(1) of the Australian Consumer Law in relation to:
(a) a contravention of a provision of Part 2-2 of the Australian
Consumer Law; or
(b) a term of a contract that has been declared under section 250
of the Australian Consumer Law to be an unfair term;
the court may have regard to the conduct of the parties to the
proceeding referred to in that subsection since the contravention
occurred or the declaration was made.
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137E Limits on compensation orders etc. for death or personal
injury
(1) A court must not make an order under subsection 237(1) or 238(1)
of the Australian Consumer Law to compensate a person for loss or
damage the person suffers because of the conduct of another
person to the extent to which:
(a) the action would be based on the conduct contravening a
provision of Part 2-1 or 3-1 of the Australian Consumer Law;
and
(b) the loss or damage is, or results from, death or personal
injury; and
(c) the death or personal injury does not result from smoking or
other use of tobacco products.
(2) Division 2 of Part VIB of this Act applies to an application for an
order under subsection 237(1) of the Australian Consumer Law to
compensate a person for loss or damage the person suffers because
of the conduct of another person to the extent to which:
(a) the action would be based on the conduct contravening a
provision of Part 2-1 or 3-1 of the Australian Consumer Law;
and
(b) the loss or damage is, or results from, death or personal
injury; and
(c) the death or personal injury results from smoking or other use
of tobacco products;
as if the proceeding in relation to the application were a proceeding
to which Part VIB of this Act applies and as if the making of the
application were the commencement of the proceeding.
Note: Division 2 of Part VIB of this Act deals with the limitation periods
that apply for claims for damages or compensation for death or
personal injury and, to the extent to which that Division is applied to
the application by this subsection, it overrides subsection 237(3) of the
Australian Consumer Law.
(3) Division 7 of Part VIB of this Act applies to a proceeding in which
an order under subsection 237(1) or 238(1) of the Australian
Consumer Law to compensate a person for loss or damage the
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Section 137F
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person suffers because of the conduct of another person is made, to
the extent to which:
(a) the action would be based on the conduct contravening a
provision of Part 2-1 or Part 3-1 of the Australian Consumer
Law; and
(b) the loss or damage is, or results from, death or personal
injury; and
(c) the death or personal injury results from smoking or other use
of tobacco products;
as if the proceeding were a proceeding to which Part VIB of this
Act applied.
Note: Division 7 of Part VIB of this Act deals with structured settlements for
claims for damages or compensation for death or personal injury.
137F Court may make orders for the purpose of preserving money
or other property held by a person
(1) A court may, on the application of the Commonwealth Minister or
the Commission, make an order or orders mentioned in
subsection (3) if:
(a) proceedings of a kind referred to in subsection (2) have been
taken against a person, or proceedings of a kind referred to in
paragraph (2)(d) may be taken against a person; and
(b) the court is satisfied that it is necessary or desirable to make
the order or orders for the purpose of preserving money or
other property held by, or on behalf of, the person if the
person is liable, or may become liable, under the Australian
Consumer Law:
(i) to pay money by way of a fine, damages, compensation,
refund or otherwise; or
(ii) to transfer, sell or refund other property; and
(c) the court is satisfied that the making of such an order or
orders will not unduly prejudice the rights and interests of
any other person.
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Section 137F
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Kinds of proceedings taken against the person
(2) For the purposes of paragraph (1)(a), the kinds of proceedings
taken against the person are:
(a) proceedings against the person for an offence against a
provision of Chapter 4 of the Australian Consumer Law; or
(b) an application under section 232 of the Australian Consumer
Law for an injunction against the person in relation to:
(i) a contravention of a provision of Chapter 2, 3 or 4 of the
Australian Consumer Law; or
(ii) a term of a contract in relation to which a declaration
under section 250 of the Australian Consumer Law has
been made; or
(c) an action under subsection 236(1) of the Australian
Consumer Law against the person in relation to a
contravention of a provision of Part 2-1 or Chapter 3 of the
Australian Consumer Law; or
(d) an application for an order under subsection 237(1) or 239(1)
of the Australian Consumer Law against a person in relation
to:
(i) a contravention of a provision of Chapter 2, 3 or 4 of the
Australian Consumer Law; or
(ii) a term of a contract in relation to which a declaration
under section 250 of the Australian Consumer Law has
been made.
Kinds of orders that may be made
(3) The court may make the following orders under subsection (1) of
this section in a relation to money or other property held by, or on
behalf of, a person (the respondent):
(a) an order prohibiting, either absolutely or subject to
conditions, a person who is indebted to the respondent, or to
an associate of the respondent, from making a payment, in
total or partial discharge of the debt:
(i) to the respondent; or
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(ii) to another person at the direction or request of the
respondent;
(b) an order prohibiting, either absolutely or subject to
conditions, a person who is holding money or other property
on behalf of the respondent, or on behalf of an associate of
the respondent:
(i) from paying all or any of the money to the respondent,
or to another person at the direction or request of the
respondent; or
(ii) from transferring the other property to the respondent,
or to another person at the direction or request of the
respondent, or otherwise parting with possession of that
property;
(c) an order prohibiting, either absolutely or subject to
conditions, the taking or sending by any person of money of
the respondent, or of an associate of the respondent, to a
place outside the State or Territory in which the money is
held;
(d) an order prohibiting, either absolutely or subject to
conditions, the taking, sending or transfer by any person of
other property of the respondent, or of an associate of the
respondent, to a place outside the State or Territory in which
that property is located;
(e) if the respondent is a natural person—an order appointing a
receiver or trustee of the property, or of part of the property,
of the respondent with such powers as are specified in the
order.
Operation of order
(4) If the court makes such an order, the order operates:
(a) for the period specified in the order (which must not be
longer than 30 days if the application for the order was an ex
parte application); or
(b) if proceedings in relation to which the order is made are
concluded before the end of that period—until the conclusion
of those proceedings.
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Section 137G
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Other
(5) This section:
(a) has effect subject to the Bankruptcy Act 1966; and
(b) does not affect any other powers of the court.
137G Compliance with orders made under section 137F
(1) A person commits an offence if:
(a) an order made under section 137F applies to the person; and
(b) the person contravenes, or refuses or fails to comply with, the
order.
Penalty:
(a) if the person is a body corporate—900 penalty units; or
(b) if the person is not a body corporate—180 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
137H Finding in proceedings to be evidence
(1) In an action against a person under subsection 236(1) of the
Australian Consumer Law:
(a) a finding of a fact by a court to which subsection (3) of this
section applies is prima facie evidence of that fact; and
(b) the finding may be proved by production of a document
under the seal of the court from which the finding appears.
(2) In proceedings for an order against a person under
subsection 237(1) or 239(1) of the Australian Consumer Law:
(a) a finding of a fact by a court to which subsection (3) of this
section applies is prima facie evidence of that fact; and
(b) the finding may be proved by production of a document
under the seal of the court from which the finding appears.
(3) This subsection applies to a finding of a fact by a court that is made
in proceedings under section 228, 232, 246, 247 or 248 of the
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Australian Consumer Law, or for an offence against a provision of
Chapter 4 of the Australian Consumer Law, in which the person
has been found:
(a) to have contravened a provision of Chapter 2, 3 or 4 of the
Australian Consumer Law; or
(b) to have attempted to contravene such a provision; or
(c) to have aided, abetted, counselled or procured a person to
contravene such a provision; or
(d) to have induced, or attempted to induce, a person, whether by
threats or promises or otherwise, to contravene such a
provision; or
(e) to have been in any way, directly or indirectly, knowingly
concerned in, or party to, the contravention by a person of
such a provision; or
(f) to have conspired with others to contravene such a provision.
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Division 8 Jurisdictional matters
Section 138
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Division 8—Jurisdictional matters
138 Conferring jurisdiction on the Federal Court
(1) Jurisdiction is conferred on the Federal Court in relation to any
matter arising under this Part or the Australian Consumer Law in
respect of which a civil proceeding has been instituted under this
Part or the Australian Consumer Law.
(2) The jurisdiction conferred by subsection (1) on the Federal Court is
exclusive of the jurisdiction of any other court other than:
(a) the jurisdiction of the Federal Circuit Court under
section 138A; and
(b) the jurisdiction of the several courts of the States and
Territories under section 138B; and
(c) the jurisdiction of the High Court under section 75 of the
Constitution.
138A Conferring jurisdiction on the Federal Circuit Court
(1) Subject to this section, jurisdiction is conferred on the Federal
Circuit Court in relation to any matter arising under this Part or the
Australian Consumer Law in respect of which a civil proceeding is
instituted by a person other than the Commonwealth Minister.
(2) If proceedings under Part 3-5, or section 236, of the Australian
Consumer Law are instituted in, or transferred to, the Federal
Circuit Court, the Federal Circuit Court does not have jurisdiction
to award an amount for loss or damage that exceeds:
(a) $750,000; or
(b) if another amount is specified in the regulations—that other
amount.
Note: For transfers from the Federal Court to the Federal Circuit Court: see
section 32AB of the Federal Court of Australia Act 1976.
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138B Conferring jurisdiction on State and Territory Courts
(1) Jurisdiction is conferred on the several courts of the States and
Territories in relation to any matter arising under this Part or the
Australian Consumer Law in respect of which a civil proceeding is
instituted by a person other than the Commonwealth Minister or
the Commission.
(2) However, subsection (1) does not apply in relation to a matter
arising under:
(a) Division 3 of Part 3-1 of the Australian Consumer Law; or
(b) Part 3-5 of the Australian Consumer Law.
(3) The jurisdiction conferred by subsection (1) on the several courts
of the States is conferred within the limits of their several
jurisdictions, whether those limits are as to locality, subject matter
or otherwise.
(4) The jurisdiction conferred by subsection (1) on the several courts
of the Territories is conferred to the extent that the Constitution
permits.
(5) This section is not to be taken to enable an inferior court of a State
or a Territory to grant a remedy other than a remedy of a kind that
the court is able to grant under the law of that State or Territory.
138C Transfer of matters by the Federal Court
(1) Subject to subsections (2) and (3), if:
(a) a civil proceeding instituted by a person (other than the
Commonwealth Minister or the Commission) is pending in
the Federal Court; and
(b) a matter for determination in the proceeding arises under this
Part or the Australian Consumer Law;
the Federal Court may, on the application of a party to the
proceeding or of its own motion, transfer the matter, and any other
matter for determination in the proceeding, to a court of a State or a
Territory.
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Section 138D
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(2) The Federal Court must not transfer a matter to another court under
subsection (1) unless:
(a) the other court has power to grant the remedies sought before
the Federal Court in the matter; and
(b) it appears to the Federal Court that:
(i) the matter arises out of, or is related to, a proceeding
that is pending in the other court; or
(ii) it is otherwise in the interests of justice that the matter
be determined by the other court.
(3) Subsection (1) does not apply in relation to a matter arising under:
(a) Division 3 of Part 3-1 of the Australian Consumer Law; or
(b) Part 3-5 of the Australian Consumer Law.
(4) If the Federal Court transfers a matter to another court under
subsection (1):
(a) further proceedings in the matter must be as directed by the
other court; and
(b) the judgment of the other court in the matter is enforceable
throughout Australia and the external Territories as if it were
a judgment of the Federal Court.
138D Transfer of matters by a State or Territory court
(1) This section applies if:
(a) a proceeding is pending in a court (other than the Supreme
Court) of a State or a Territory; and
(b) a matter for determination in the proceeding arises under this
Part or the Australian Consumer Law, other than under:
(i) Division 3 of Part 3-1 of the Australian Consumer Law;
or
(ii) Part 3-5 of the Australian Consumer Law; or
(iii) Chapter 4 of the Australian Consumer Law.
(2) The court must, if directed to do so by the Federal Court, transfer
to the Federal Court:
(a) the matter; and
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Section 138E
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(b) such other matters for determination in the proceeding, the
determination of which would (apart from any law of a State
or of the Northern Territory relating to cross-vesting of
jurisdiction) be within the jurisdiction of the Federal Court,
as the Federal Court determines.
(3) Subject to subsection (4), the court may, on the application of a
party to the proceeding or of its own motion, transfer the matter to
a court (other than the Supreme Court) of another State or
Territory.
(4) The court (the first court) must not transfer a matter to another
court under subsection (3) unless:
(a) the other court has power to grant the remedies sought before
the first court in the matter; and
(b) it appears to the first court that:
(i) the matter arises out of, or is related to, a proceeding
that is pending in the other court; or
(ii) it is otherwise in the interests of justice that the matter
be determined by the other court.
(5) If the court transfers a matter to another court under subsection (3),
further proceedings in the matter must be as directed by the other
court.
138E Transfer of proceedings to Family Court
(1) If:
(a) a civil proceeding is pending in the Federal Court; and
(b) a matter for determination in the proceeding arises under this
Part or the Australian Consumer Law, other than under:
(i) Division 3 of Part 3-1 of the Australian Consumer Law;
or
(ii) Part 3-5 of the Australian Consumer Law;
the Federal Court may, on the application of a party to the
proceeding or of its own motion, transfer the proceeding to the
Family Court.
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Section 138E
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(2) Subject to subsection (3), if a proceeding is transferred to the
Family Court under subsection (1):
(a) the Family Court has jurisdiction to hear and determine the
proceeding; and
(b) the Family Court also has jurisdiction to hear and determine
matters not otherwise within its jurisdiction (whether because
of paragraph (a) or otherwise):
(i) that are associated with matters arising in the
proceeding; or
(ii) that, apart from subsection 32(1) of the Federal Court of
Australia Act 1976, the Federal Court would have had
jurisdiction to hear and determine in the proceeding; and
(c) the Family Court may, in and in relation to the proceeding:
(i) grant such remedies; and
(ii) make orders of such kinds; and
(iii) issue, and direct the issue of, writs of such kinds;
as the Federal Court could have granted, made, issued or
directed the issue of, in and in relation to the proceeding; and
(d) remedies, orders and writs granted, made or issued by the
Family Court in and in relation to the proceeding have effect,
and may be enforced by the Family Court, as if they had been
granted, made or issued by the Federal Court; and
(e) appeals lie from judgments of the Family Court given in and
in relation to the proceeding as if the judgments were
judgments of the Federal Court constituted by a single Judge
of that Court, and do not otherwise lie; and
(f) subject to paragraphs (a) to (e) of this subsection, this Act,
the regulations, the Federal Court of Australia Act 1976, the
Rules of Court made under that Act, and other laws of the
Commonwealth, apply in and in relation to the proceeding as
if:
(i) a reference to the Federal Court (other than in the
expression the Court or a Judge) included a reference
to the Family Court; and
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(ii) a reference to a Judge of the Federal Court (other than
in the expression the Court or a Judge) included a
reference to a Family Court Judge; and
(iii) a reference to the expression the Court or a Judge when
used in relation to the Federal Court included a
reference to a Family Court Judge sitting in Chambers;
and
(iv) a reference to a Registrar of the Federal Court included
a reference to a Registrar of the Family Court; and
(v) any other necessary changes were made.
(3) If any difficulty arises in the application of paragraphs (2)(c), (d)
and (f) in or in relation to a particular proceeding, the Family Court
may, on the application of a party to the proceeding or of its own
motion, give such directions, and make such orders, as it considers
appropriate to resolve the difficulty.
(4) An appeal does not lie from a decision of the Federal Court in
relation to the transfer of a proceeding under this Act to the Family
Court.
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Division 9 Miscellaneous
Section 139
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Division 9—Miscellaneous
139 Intervention by the Commission
(1) The Commission may, with the leave of a court and subject to any
conditions imposed by the court, intervene in any proceeding
instituted under this Part or the Australian Consumer Law.
(2) If the Commission intervenes in a proceeding, the Commission is
taken to be a party to the proceeding and has all the rights, duties
and liabilities of such a party.
139A Terms excluding consumer guarantees from supplies of
recreational services
(1) A term of a contract for the supply of recreational services to a
consumer by a person is not void under section 64 of the Australian
Consumer Law only because the term excludes, restricts or
modifies, or has the effect of excluding, restricting or modifying:
(a) the application of all or any of the provisions of Subdivision
B of Division 1 of Part 3-2 of the Australian Consumer Law;
or
(b) the exercise of a right conferred by such a provision; or
(c) any liability of the person for a failure to comply with a
guarantee that applies under that Subdivision to the supply.
(2) Recreational services are services that consist of participation in:
(a) a sporting activity or a similar leisure time pursuit; or
(b) any other activity that:
(i) involves a significant degree of physical exertion or
physical risk; and
(ii) is undertaken for the purposes of recreation, enjoyment
or leisure.
(3) This section does not apply unless the exclusion, restriction or
modification is limited to liability for:
(a) death; or
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(b) a physical or mental injury of an individual (including the
aggravation, acceleration or recurrence of such an injury of
the individuan( � or
(c) the contraction, aggravation or acceleration of a disease of an
individual; or
(d) the coming into existence, the aggravation, acceleration or
recurrence of any other condition, circumstance, occurrence,
activity, form of behaviour, course of conduct or state of
affairs in relation to an individual:
(i) that is or may be harmful or disadvantageous to the
individual or community; or
(ii) that may result in harm or disadvantage to the individual
or community.
(4) This section does not apply if the exclusion, restriction or
modification would apply to significant personal injury suffered by
a person that is caused by the reckless conduct of the supplier of
the recreational services.
(5) The supplier’s conduct is reckless conduct if the supplier:
(a) is aware, or should reasonably have been aware, of a
significant risk that the conduct could result in personal
injury to another person; and
(b) engages in the conduct despite the risk and without adequate
justification.
139B Conduct of directors, employees or agents of bodies corporate
(1) If, in a proceeding under this Part or the Australian Consumer Law
in respect of conduct that is engaged in by a body corporate and to
which this Part or the Australian Consumer Law applies, it is
necessary to establish the state of mind of the body corporate, it is
sufficient to show:
(a) that a director, employee or agent of the body corporate
engaged in that conduct within the scope of the actual or
apparent authority of the director, employee or agent; and
(b) that the director, employee or agent had that state of mind.
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Section 139C
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(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within
the scope of the actual or apparent authority of the director,
employee or agent; or
(b) by any other person:
(i) at the direction of a director, employee or agent of the
body corporate; or
(ii) with the consent or agreement (whether express or
implied) of such a director, employee or agent;
if the giving of the direction, consent or agreement is within
the scope of the actual or apparent authority of the director,
employee or agent;
is taken, for the purposes of this Part or the Australian Consumer
Law, to have been engaged in also by the body corporate.
139C Conduct of employees or agents of persons other than bodies
corporate
(1) If, in a proceeding under this Part or the Australian Consumer Law
in respect of conduct that is engaged in by a person (the principal)
other than a body corporate and to which this Part or the Australian
Consumer Law applies, it is necessary to establish the state of mind
of the principal, it is sufficient to show:
(a) that an employee or agent of the principal engaged in that
conduct within the scope of the actual or apparent authority
of the employee or agent; and
(b) the employee or agent had that state of mind.
(2) Any conduct engaged in on behalf of a person (the principal) other
than a body corporate:
(a) by an employee or agent of the principal within the scope of
the actual or apparent authority of the employee or agent; or
(b) by any other person:
(i) at the direction of an employee or agent of the principal;
or
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(ii) with the consent or agreement (whether express or
implied) of such an employee or agent;
if the giving of the direction, consent or agreement is within
the scope of the actual or apparent authority of the employee
or agent;
is taken, for the purposes of this Part or the Australian Consumer
Law, to have been engaged in also by the principal.
(3) If:
(a) a person other than a body corporate is convicted of an
offence; and
(b) subsection (1) or (2) applied in relation to the conviction on
the basis that the person was the principal mentioned in that
subsection; and
(c) the person would not have been convicted of the offence if
that subsection had not been enacted;
the person is not liable to be punished by imprisonment for that
offence.
139D Enforcement and recovery of certain fines
(1) If a person defaults in paying a fine that has been imposed on the
person for an offence against a provision of Chapter 4 of the
Australian Consumer Law or section 137G of this Act, a court
may:
(a) exercise any power that the court has apart from this section
in relation to the enforcement and recovery of the fine; or
(b) make an order (the enforcement order), on the application of
the Commonwealth Minister or the Commission, declaring
that the fine is to have effect, and may be enforced, as if it
were a judgment debt under a judgment of the court.
(2) If:
(a) the court makes an enforcement order; and
(b) the person gives security for the payment of the fine;
the court must cancel the enforcement order.
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(3) If the court makes an enforcement order, the court may, at any time
before the enforcement order is executed:
(a) allow the person a specified time in which to pay the fine; or
(b) allow the person to pay the fine by specified instalments.
(4) If the court allows the person a specified time in which to pay the
fine:
(a) the enforcement order must not be executed unless the person
fails to pay the fine within that time; and
(b) if the person pays the fine within that time—the enforcement
order is taken to have been discharged.
(5) If the court allows the person to pay the fine by specified
instalments:
(a) the enforcement order must not be executed unless the person
fails to pay such an instalment at or before the time when it
becomes payable; and
(b) if the person pays all those instalments—the enforcement
order is taken to have been discharged.
(6) The term of a sentence of imprisonment imposed by an order under
a law of a State or a Territory applied by section 15A of the Crimes
Act 1914 (including an order described in subsection 15A(1AA) of
that Act) in respect of a fine is to be calculated at the rate of one
day’s imprisonment for each $25 of the amount of the fine that is
from time to time unpaid.
139DA Application of section 229 of the Australian Consumer Law
to a person other than a body corporate
If, as a result of the operation of Part 2.4 of the Criminal Code, a
person other than a body corporate is:
(a) convicted of an offence (the relevant offence) against
subsection 229(1) of the Australian Consumer Law; or
(b) convicted of an offence (the relevant offence) against
section 11.4 of the Criminal Code in relation to an offence
referred to in subsection 229(1) of the Australian Consumer
Law;
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the relevant offence is taken to be punishable on conviction by a
fine not exceeding $550.
139E Cessation of enforcement orders etc.
(1) Subject to this section, an enforcement order in relation to a fine
ceases to have effect:
(a) on payment of the fine; or
(b) if the fine is not paid—on full compliance with the
enforcement order.
(2) Subject to this section, if a person is required under one or more
enforcement orders to serve periods of imprisonment, those periods
must be served consecutively.
(3) If:
(a) a person would, but for this subsection, be required under one
or more enforcement orders that relate to 3 or more fines to
serve periods of imprisonment that in aggregate are longer
than 3 years; and
(b) those fines were imposed (whether or not in the same
proceedings) for offences constituted by contraventions:
(i) that occurred within a period of 2 years; and
(ii) that appear to a court to have been of the same nature or
of a substantially similar nature;
the court must, by order, declare that the enforcement order or
orders cease to have effect in respect of those fines after the person
has served an aggregate of 3 years’ imprisonment.
(4) If subsection (3) would, but for this subsection, apply to a person
with respect to offences committed by the person within 2 or more
overlapping periods of 2 years, the court must make an order under
that subsection in relation to only one of those periods.
(5) The order under subsection (4) must relate to the period which
would give the person the maximum benefit under subsection (3).
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(6) For the purposes of subsection (4), the court may vary or revoke an
order made under subsection (3).
139F Compensation for acquisition of property
(1) If the operation of this Part (including Schedule 2 as applied by this
Part) would result in an acquisition of property from a person
otherwise than on just terms, the Commonwealth is liable to pay a
reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount
of the compensation, the person may institute proceedings in the
Federal Court for the recovery from the Commonwealth of such
reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in
paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the
Constitution.
139G Regulations
(1) The Governor-General may make regulations prescribing matters:
(a) required or permitted by Schedule 2 to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or
giving effect to that Schedule.
(2) Before the Governor-General makes a regulation for the purposes
of paragraph 25(n) of Schedule 2 prescribing a kind of term of a
contract, or a kind of effect that such a term has, the
Commonwealth Minister must take into consideration:
(a) the detriment that a term of that kind would cause to
consumers; and
(aa) the detriment that a term of that kind would cause to
businesses employing fewer than 20 persons; and
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(b) the impact on business generally of prescribing that kind of
term or effect; and
(c) the public interest.
(2A) Before the Governor-General makes a regulation prescribing a law
for the purposes of subsection 28(4) of Schedule 2:
(a) the Commonwealth Minister must be satisfied that the law
provides enforceable protections for businesses employing
fewer than 20 persons that are equivalent to the protections
provided by Part 2-3, together with Parts 5-1 and 5-2, of
Schedule 2; and
(b) the Commonwealth Minister must take into consideration:
(i) any detriment to businesses of that kind resulting from
prescribing the law; and
(ii) the impact on business generally resulting from
prescribing the law; and
(iii) the public interest.
(3) Before the Governor-General makes a regulation under
subsection (1) for the purposes of paragraph 65(1)(a) of Schedule 2
in relation to supplies of a particular kind, the Commonwealth
Minister must be satisfied that:
(a) the laws of the Commonwealth; and/or
(b) the laws of the States and Territories;
adequately provide for consumer rights in relation to supplies of
that kind.
(4) The regulations may, either unconditionally or subject to such
conditions as are specified in the regulations, exempt from the
application of Schedule 2 or of specified provisions of Schedule 2:
(a) conduct engaged in by a specified organisation or body that
performs functions in relation to the marketing of primary
products; or
(b) any of the following:
(i) a specified contract or proposed contract made;
(ii) contracts included in a specified class of contracts
made;
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(iii) specified conduct entered into;
pursuant to or for the purposes of a specified agreement,
arrangement or understanding between the Government of
Australia and the Government of a foreign country; or
(c) prescribed conduct engaged in in the course of a business
carried on by the Commonwealth or by a prescribed authority
of the Commonwealth.
(5) Strict compliance with a form of application or notice prescribed
for the purposes of Schedule 2 is not, and is taken never to have
been, required and substantial compliance is, and is taken always to
have been, sufficient.
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Part XIAA—Application of the Australian
Consumer Law as a law of a State or
Territory
140 Definitions
In this Part:
application law means:
(a) a law of a participating jurisdiction that applies the applied
Australian Consumer Law, either with or without
modifications, as a law of the participating jurisdiction; or
(b) any regulations or other legislative instrument made under a
law described in paragraph (a); or
(c) the applied Australian Consumer Law, applying as a law of
the participating jurisdiction, either with or without
modifications.
applied Australian Consumer Law means (according to the
context):
(a) the text described in section 140B; or
(b) that text, applying as a law of a participating jurisdiction,
either with or without modifications.
apply, in relation to the applied Australian Consumer Law, means
apply the applied Australian Consumer Law by reference:
(a) as in force from time to time; or
(b) as in force at a particular time.
Commonwealth entity means:
(a) an authority of the Commonwealth; or
(b) an officer of the Commonwealth.
imposes a duty has the meaning given by section 140G.
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modifications includes additions, omissions and substitutions.
officer, in relation to the Commonwealth, includes the following:
(a) a Minister;
(b) a person who holds:
(i) an office established by or under an Act; or
(ii) an appointment made under an Act; or
(iii) an appointment made by the Governor-General or a
Minister but not under an Act;
(c) a person who is a member or officer of an authority of the
Commonwealth;
(d) a person who is:
(i) in the service or employment of the Commonwealth, or
of an authority of the Commonwealth; or
(ii) employed or engaged under an Act.
participating jurisdiction means a participating State or
participating Territory.
participating State means a State that is a party to the
Intergovernmental Agreement for the Australian Consumer Law
and applies the applied Australian Consumer Law as a law of the
State, either with or without modifications.
participating Territory means a Territory that is a party to the
Intergovernmental Agreement for the Australian Consumer Law
and applies the applied Australian Consumer Law as a law of the
Territory, either with or without modifications.
Territory means the Australian Capital Territory or the Northern
Territory.
140A Object of this Part
The object of this Part is to facilitate the application of the
Australian Consumer Law by participating States and participating
Territories.
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140B The applied Australian Consumer Law
The applied Australian Consumer Law consists of:
(a) Schedule 2; and
(b) the regulations made under section 139G of this Act.
140C Federal Court may exercise jurisdiction under application
laws of Territories
The Federal Court may exercise jurisdiction (whether original or
appellate) conferred on that Court by an application law of a
Territory with respect to matters arising under the applied
Australian Consumer Law.
140D Exercise of jurisdiction under cross-vesting provisions
This Part does not affect the operation of any other law of the
Commonwealth, or any law of a State or Territory, relating to
cross-vesting of jurisdiction.
140E Commonwealth consent to conferral of functions etc. on
Commonwealth entities
(1) An application law may confer functions or powers, or impose
duties, on a Commonwealth entity for the purposes of the applied
Australian Consumer Law.
Note: Section 140G sets out when such a law imposes a duty on a
Commonwealth entity.
(2) Subsection (1) does not authorise the conferral of a function or
power, or the imposition of a duty, by an application law to the
extent to which:
(a) the conferral or imposition, or the authorisation, would
contravene any constitutional doctrines restricting the duties
that may be imposed on the Commonwealth entity; or
(b) the authorisation would otherwise exceed the legislative
power of the Commonwealth.
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(3) The Commonwealth entity cannot perform a duty or function, or
exercise a power, under an application law unless the conferral of
the function or power, or the imposition of the duty, is in
accordance with an agreement between the Commonwealth and the
State or Territory concerned.
140F How duty is imposed
Application
(1) This section applies if an application law purports to impose a duty
on a Commonwealth entity.
Note: Section 140G sets out when such a law imposes a duty on a
Commonwealth entity.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law
of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State
or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is
consistent with the constitutional doctrines restricting the
duties that may be imposed on the entity.
Note: If this subsection applies, the duty will be taken to be imposed by
force of the law of the State or Territory (the Commonwealth having
consented under section 140E to the imposition of the duty by that
law).
Commonwealth legislative power sufficient to support duty but
State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it
is necessary that the duty be imposed by a law of the
Commonwealth (rather than by the law of the State or Territory),
the duty is taken to be imposed by this Act to the extent necessary
to ensure that validity.
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(4) If, because of subsection (3), this Act is taken to impose the duty, it
is the intention of the Parliament to rely on all powers available to
it under the Constitution to support the imposition of the duty by
this Act.
(5) The duty is taken to be imposed by this Act in accordance with
subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the
duties that may be imposed on the entity.
(6) Subsections (1) to (5) do not limit section 140E.
140G When an application law imposes a duty
For the purposes of this Part, an application law imposes a duty on
a Commonwealth entity if:
(a) the law confers a function or power on the entity; and
(b) the circumstances in which the function or power is
conferred give rise to an obligation on the entity to perform
the function or to exercise the power.
140H Application laws may operate concurrently with this Act
This Act is not intended to exclude the operation of any application
law, to the extent that the application law is capable of operating
concurrently with this Act.
140J No doubling-up of liabilities
(1) If:
(a) an act or omission is an offence against this Act and is also
an offence against an application law; and
(b) the offender has been punished for the offence under the
application law;
the offender is not liable to be punished for the offence against this
Act.
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(2) If a person has been ordered to pay a pecuniary penalty under an
application law, the person is not liable to a pecuniary penalty
under this Act in respect of the same conduct.
140K References in instruments to the Australian Consumer Law
(1) A reference in any instrument to the Australian Consumer Law is a
reference to:
(a) the Australian Consumer Law as applied under Division 2 of
Part XI; and
(b) the applied Australian Consumer Laws of any or all of the
participating jurisdictions.
(2) Subsection (1) has effect except so far as the contrary intention
appears in the instrument or the context of the reference otherwise
requires.
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Part XIA—The Competition Code
150A Definitions
In this Part, unless the contrary intention appears:
application law means:
(a) a law of a participating jurisdiction that applies the
Competition Code, either with or without modifications, as a
law of the participating jurisdiction; or
(b) any regulations or other legislative instrument made under a
law described in paragraph (a); or
(c) the Competition Code, applying as a law of the participating
jurisdiction, either with or without modifications.
apply, in relation to the Competition Code, means apply the
Competition Code by reference:
(a) as in force from time to time; or
(b) as in force at a particular time.
Commonwealth entity means:
(a) an authority of the Commonwealth; or
(b) an officer of the Commonwealth.
Competition Code means (according to the context):
(a) the text described in section 150C; or
(b) that text, applying as a law of a participating jurisdiction,
either with or without modifications.
modifications includes additions, omissions and substitutions.
officer, in relation to the Commonwealth, includes the following:
(a) a Minister;
(b) a person who holds:
(i) an office established by or under an Act;
(ii) an appointment made under an Act;
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(iii) an appointment made by the Governor-General or a
Minister but not under an Act;
(c) a person who is a member or officer of an authority of the
Commonwealth;
(d) a person who is in the service or employment of the
Commonwealth, or of an authority of the Commonwealth, or
is employed or engaged under an Act.
participating jurisdiction means a participating State or Territory.
participating State means a State that is a party to the Conduct
Code Agreement and applies the Competition Code as a law of the
State, either with or without modifications.
participating Territory means a Territory that is a party to the
Conduct Code Agreement and applies the Competition Code as a
law of the Territory, either with or without modifications.
Schedule version of Part IV means the text that is set out in Part 1
of Schedule 1 to this Act.
Territory means the Australian Capital Territory or the Northern
Territory.
150B Objects of this Part
The objects of this Part are:
(a) to facilitate the application of the Competition Code by
participating Territories; and
(b) to facilitate the application of the Competition Code by
participating States.
150C The Competition Code
(1) The Competition Code consists of:
(a) the Schedule version of Part IV;
(b) the remaining provisions of this Act (except sections 2A, 5, 6
and 172), so far as they would relate to the Schedule version
if the Schedule version were substituted for Part IV;
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(c) the regulations under this Act, so far as they relate to any
provision covered by paragraph (a) or (b).
(2) For the purpose of forming part of the Competition Code, the
provisions referred to in paragraphs (1)(b) and (c) are to be
modified as necessary to fit in with the Schedule version of
Part IV. In particular, references to corporations are to include
references to persons who are not corporations.
150D Federal Court may exercise jurisdiction under application
laws of Territories
The Federal Court may exercise jurisdiction (whether original or
appellate) conferred on that Court by an application law of a
Territory with respect to matters arising under the Competition
Code.
150E Exercise of jurisdiction under cross-vesting provisions
This Part does not affect the operation of any other law of the
Commonwealth, or any law of a State or Territory, relating to
cross-vesting of jurisdiction.
150F Commonwealth consent to conferral of functions etc. on
Commonwealth entities
(1) An application law may confer functions or powers, or impose
duties, on a Commonwealth entity for the purposes of the
Competition Code.
Note: Section 150FB sets out when such a law imposes a duty on a
Commonwealth entity.
(2) Subsection (1) does not authorise the conferral of a function or
power, or the imposition of a duty, by an application law to the
extent to which:
(a) the conferral or imposition, or the authorisation, would
contravene any constitutional doctrines restricting the duties
that may be imposed on the Commonwealth entity; or
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(b) the authorisation would otherwise exceed the legislative
power of the Commonwealth.
(3) The Commonwealth entity cannot perform a duty or function, or
exercise a power, under an application law unless the conferral of
the function or power, or the imposition of the duty, is in
accordance with an agreement between the Commonwealth and the
State or Territory concerned.
150FA How duty is imposed
Application
(1) This section applies if an application law purports to impose a duty
on a Commonwealth entity.
Note: Section 150FB sets out when such a law imposes a duty on a
Commonwealth entity.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law
of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State
or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is
consistent with the constitutional doctrines restricting the
duties that may be imposed on the entity.
Note: If this subsection applies, the duty will be taken to be imposed by
force of the law of the State or Territory (the Commonwealth having
consented under section 150F to the imposition of the duty by that
law).
Commonwealth legislative power sufficient to support duty but
State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it
is necessary that the duty be imposed by a law of the
Commonwealth (rather than by the law of the State or Territory),
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the duty is taken to be imposed by this Act to the extent necessary
to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose the duty, it
is the intention of the Parliament to rely on all powers available to
it under the Constitution to support the imposition of the duty by
this Act.
(5) The duty is taken to be imposed by this Act in accordance with
subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the
duties that may be imposed on the entity.
(6) Subsections (1) to (5) do not limit section 150F.
150FB When an application law imposes a duty
For the purposes of sections 150F and 150FA, an application law
imposes a duty on a Commonwealth entity if:
(a) the law confers a function or power on the entity; and
(b) the circumstances in which the function or power is
conferred give rise to an obligation on the entity to perform
the function or to exercise the power.
150G Application laws may operate concurrently with this Act
This Act is not intended to exclude the operation of any application
law, to the extent that the application law is capable of operating
concurrently with this Act.
150H No doubling-up of liabilities
(1) If:
(a) an act or omission is an offence against this Act and is also
an offence against an application law; and
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(b) the offender has been punished for the offence under the
application law;
the offender is not liable to be punished for the offence against this
Act.
(2) If a person has been ordered to pay a pecuniary penalty under an
application law, the person is not liable to a pecuniary penalty
under this Act in respect of the same conduct.
150I References in instruments to the Competition Code
(1) A reference in any instrument to the Competition Code is a
reference to the Competition Codes of any or all of the
participating jurisdictions.
(2) Subsection (1) has effect except so far as the contrary intention
appears in the instrument or the context of the reference otherwise
requires.
150J Authorisations etc. under this Act may relate also to
Competition Code
The validity of an authorisation, notification, clearance or any
other thing given or done for the purposes of this Act is not
affected only because it was given or done also for the purposes of
the Competition Code.
150K Gazettal of jurisdictions that excessively modify the Code
(1) If the Minister is satisfied that the laws of a participating
jurisdiction have made significant modifications to the
Competition Code in its application to persons within the
legislative competence of the participating jurisdiction, the
Minister may publish a notice in the Gazette stating that the
Minister is so satisfied.
(2) The Minister may, by further notice in the Gazette, revoke a notice
published under subsection (1).
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Part XIB—The Telecommunications Industry:
Anti-competitive conduct and
record-keeping rules
Division 1—Introduction
151AA Simplified outline
The following is a simplified outline of this Part:
• This Part sets up a special regime for regulating anti-competitive conduct in the telecommunications industry.
The regime applies in addition to Part IV.
• The Part sets out the circumstances in which carriers and carriage service providers are said to engage in
anti-competitive conduct.
• A carrier or carriage service provider must not engage in anti-competitive conduct. This rule is called the competition
rule.
• The Commission may issue a notice stating that a specified carrier or carriage service provider has engaged, or is
engaging, in anti-competitive conduct. The notice is called a
Part A competition notice.
• Proceedings for the enforcement of the competition rule (other than proceedings for injunctive relief) must not be instituted
unless the alleged conduct is of a kind dealt with in a Part A
competition notice that was in force at the time when the
alleged conduct occurred.
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• The Commission may issue a notice stating that a specified carrier or carriage service provider has contravened, or is
contravening, the competition rule. The notice is called a Part
B competition notice.
• A Part B competition notice is prima facie evidence of the matters in the notice.
• The Commission may make an order exempting specified conduct from the scope of the definition of anti-competitive
conduct. The order is called an exemption order.
• Carriers and carriage service providers may be directed to file tariff information with the Commission. The direction is
called a tariff filing direction.
• The Commission may make record-keeping rules that apply to carriers and carriage service providers.
• Carriers and carriage service providers may be directed by the Commission to make certain reports available. The direction
is called a disclosure direction.
151AB Definitions
In this Part, unless the contrary intention appears:
ACMA means the Australian Communications and Media
Authority.
anti-competitive conduct has the meaning given by section 151AJ.
carriage service has the same meaning as in the
Telecommunications Act 1997.
carriage service provider has the same meaning as in the
Telecommunications Act 1997.
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carrier has the same meaning as in the Telecommunications Act
1997.
carrier licence has the same meaning as in the
Telecommunications Act 1997.
competition notice means:
(a) a Part A competition notice; or
(b) a Part B competition notice.
competition rule means the rule set out in section 151AK.
content service has the same meaning as in the
Telecommunications Act 1997.
data processing device means any article or material (for example,
a disk) from which information is capable of being reproduced,
with or without the aid of any other article or device.
disclosure direction means a direction under
subsection 151BUB(2), 151BUC(2), 151BUDB(2) or
151BUDC(2).
eligible partnership has the same meaning as in the
Telecommunications Act 1997.
exemption order means an order under section 151BA.
facility has the same meaning as in the Telecommunications Act
1997.
Federal Court means the Federal Court of Australia.
listed carriage service has the same meaning as in the
Telecommunications Act 1997.
Ministerially-directed report has the meaning given by
section 151BUAA.
NBN corporation has the same meaning as in the National
Broadband Network Companies Act 2011.
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Division 1 Introduction
Section 151AC
186 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part A competition notice means a notice issued under
subsection 151AKA(1) or (2).
Part B competition notice means a notice issued under
subsection 151AL(1).
person includes a partnership.
Note: Section 151CH sets out additional rules about partnerships.
record-keeping rule means a rule under section 151BU.
service provider rule has the same meaning as in the
Telecommunications Act 1997.
tariff filing direction means a direction under section 151BK.
telecommunications market has the meaning given by
section 151AF.
151AC Extension to external Territories
(1) This Part, and the other provisions of this Act so far as they relate
to this Part, extend to each eligible Territory (within the meaning
of the Telecommunications Act 1997).
(2) The operation of this Part, and the other provisions of this Act so
far as they relate to this Part, in relation to Norfolk Island is not
affected by the amendments made by Division 1 of Part 1 of
Schedule 5 to the Territories Legislation Amendment Act 2016.
151AD Continuity of partnerships
For the purposes of this Part, a change in the composition of a
partnership does not affect the continuity of the partnership.
151AE Additional operation of Part
(1) Without prejudice to its effect apart from this section, this Part also
has effect as provided by this section.
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Introduction Division 1
Section 151AF
Competition and Consumer Act 2010 187
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) This Part has, by force of this subsection, the effect it would have
if:
(a) any references in this Part to a carrier were, by express
provision, confined to a carrier that is a corporation; and
(b) any references in this Part to a carriage service provider were,
by express provision, confined to a carriage service provider
that is a corporation.
(3) In addition to the effect that this Part has as provided by
subsection (2), this Part has, by force of this subsection, the effect
it would have if subsections 151AJ(2) and (3) were, by express
provision, confined in their operation to engaging in conduct to the
extent to which the conduct takes place in the course of or in
relation to:
(a) trade or commerce between Australia and places outside
Australia; or
(b) trade or commerce among the States; or
(c) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(d) the supply of goods or services to the Commonwealth or an
authority or instrumentality of the Commonwealth.
151AF Telecommunications market
For the purposes of this Part, a telecommunications market is a
market in which any of the following goods or services are
supplied or acquired:
(a) carriage services;
(b) goods or services for use in connection with a carriage
service;
(c) access to facilities;
(d) content services.
Note: Market has a meaning affected by section 4E.
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Division 1 Introduction
Section 151AG
188 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
151AG When a body corporate is related to a partnership
For the purposes of this Part, if:
(a) a carrier or a carriage service provider is a partnership; and
(b) a body corporate is related to a partner in the partnership;
the body corporate is taken to be related to the carrier or carriage
service provider, as the case requires.
151AH Degree of power in a telecommunications market
(1) For the purposes of this Part, if:
(a) a body corporate is related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) the body corporate has a substantial degree of power in a
telecommunications market;
the carrier or carriage service provider, as the case requires, is
taken to have a substantial degree of power in that market.
(2) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to the one:
(i) carrier; or
(ii) carriage service provider; and
(b) those bodies corporate together have a substantial degree of
power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is
taken to have a substantial degree of power in that market.
(3) For the purposes of this Part, if:
(a) a body corporate is related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) the body corporate and the carrier or carriage service
provider, as the case may be, together have a substantial
degree of power in a telecommunications market;
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Introduction Division 1
Section 151AH
Competition and Consumer Act 2010 189
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
the carrier or carriage service provider, as the case requires, is
taken to have a substantial degree of power in that market.
(4) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) those bodies corporate and that carrier or carriage service
provider, as the case may be, together have a substantial
degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is
taken to have a substantial degree of power in that market.
(5) In determining, for the purposes of this Part, the degree of power
that a person has, or that persons have, in a telecommunications
market, regard must be had to the extent to which the conduct of
the person or any of those persons in that market is constrained by
the conduct of:
(a) competitors, or potential competitors, of the person or of any
of those persons in that market; or
(b) persons to whom or from whom the person or any of those
persons supplies or acquires goods or services in that market.
(5A) In determining, for the purposes of this Part, the degree of power
that a person has, or that persons have, in a telecommunications
market, regard may be had to the power that the person has, or that
the persons have, in that market that results from:
(a) any contracts, arrangements or understandings, or proposed
contracts, arrangements or understandings, that the person
has or may have, or that the persons have or may have, with
another party or parties; and
(b) any covenants, or proposed covenants, that the person is or
would be, or that the persons are or would be, bound by or
entitled to the benefit of.
(6) Subsections (5) and (5A) do not, by implication, limit the matters
to which regard may be had in determining, for the purposes of this
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Division 1 Introduction
Section 151AI
190 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part, the degree of power that a person has, or that persons have, in
a telecommunications market.
(6A) For the purposes of this Part, without limiting the matters to which
the Court may have regard for the purpose of determining whether
a person has a substantial degree of power in a telecommunications
market, a person may have a substantial degree of power in a
telecommunications market even though:
(a) the person does not substantially control the market; or
(b) the person does not have absolute freedom from constraint by
the conduct of:
(i) competitors, or potential competitors, of the person in
that market; or
(ii) persons to whom or from whom the person supplies or
acquires goods or services in that market.
(6B) To avoid doubt, for the purposes of this Part, more than 1 person
may have a substantial degree of power in a telecommunications
market.
(7) In this Part:
(a) a reference to power is a reference to market power; and
(b) a reference to power in relation to, or to conduct in, a
telecommunications market is a reference to power, or to
conduct, in that market either as a supplier or as an acquirer
of goods or services in that market.
151AI Interpretation of Part IV or VII not affected by this Part
In determining the meaning of a provision of Part IV or VII, the
provisions of this Part are to be ignored.
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Anti-competitive conduct Division 2
Section 151AJ
Competition and Consumer Act 2010 191
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 2—Anti-competitive conduct
151AJ Anti-competitive conduct
(1) This section sets out the 2 circumstances in which:
(a) a carrier; or
(b) a carriage service provider;
is said to engage in anti-competitive conduct for the purposes of
this Part.
(2) A carrier or carriage service provider engages in anti-competitive
conduct if the carrier or carriage service provider:
(a) has a substantial degree of power in a telecommunications
market; and
(b) either:
(i) takes advantage of that power in that or any other
market with the effect, or likely effect, of substantially
lessening competition in that or any other
telecommunications market; or
(ii) takes advantage of that power in that or any other
market, and engages in other conduct on one or more
occasions, with the combined effect, or likely combined
effect, of substantially lessening competition in that or
any other telecommunications market.
(2A) Without limiting the matters to which regard may be had for the
purpose of determining whether a carrier or carriage service
provider has engaged in anti-competitive conduct as defined in
subsection (2), regard may be had to:
(a) any conduct of the carrier or carriage service provider that
consisted of supplying goods or services for a sustained
period at a price that was less than the relevant cost to the
carrier or carriage service provider of supplying such goods
or services; and
(b) the reasons for that conduct.
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Section 151AJ
192 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) A carrier or carriage service provider engages in anti-competitive
conduct if the carrier or carriage service provider:
(a) engages in conduct in contravention of section 44ZZRJ,
44ZZRK, 45, 45B, 46, 47 or 48; and
(b) the conduct relates to a telecommunications market.
(4) For the purposes of the application of subsection (3) to a carrier, or
a carriage service provider, that is not a corporation, in determining
whether conduct of the carrier or provider is in contravention of
section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48, the following
assumptions are to be made:
(a) the assumption that each reference to a corporation in:
(i) those sections; and
(ii) sections 44ZZRL and 44ZZRM;
included a reference to a carrier, or a carriage service
provider, that is not a corporation;
(b) the assumption that subsections 45(8) and 47(12) and
section 44ZZRN had not been enacted.
(5) For the purposes of the application of subsection (3) to a carrier, or
a carriage service provider, that is not a corporation or a
partnership, in determining whether conduct of the carrier or
provider is in contravention of section 45, 45B, 46, 47 or 48, the
following assumptions are to be made:
(a) the assumption that the expression “or any body corporate
related to such a corporation” were omitted from
subsection 45(3);
(b) the assumption that the expression “or a body corporate
related to the corporation” were omitted from
paragraph 45(4)(b);
(c) the assumption that the expression “or of a body corporate
that is related to the corporation” were omitted from
paragraphs 46(1)(a) and (1AA)(a);
(d) the assumption that subsection 46(2) had not been enacted;
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Anti-competitive conduct Division 2
Section 151AJ
Competition and Consumer Act 2010 193
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(e) the assumption that the expression “or from a competitor of a
body corporate related to the corporation” were omitted from
each of the following provisions:
(i) paragraphs 47(2)(d) and (e);
(ii) paragraphs 47(3)(d) and (e);
(iii) subparagraphs 47(8)(a)(i) and (ii);
(f) the assumption that the expression “not being a body
corporate related to the corporation” were omitted from
subsections 47(6) and (7) and paragraphs 47(8)(c) and
47(9)(d);
(g) the assumption that the expression “or from a competitor of a
body corporate related to the corporation” were omitted from
paragraphs 47(9)(a) and (b);
(h) the assumption that the expression “, or by a body corporate
related to the corporation,” were omitted from
paragraph 47(10)(b);
(i) the assumption that the expression “or any body corporate
related to that corporation” were omitted from
subparagraph 47(13)(b)(i);
(j) the assumption that the expression “or any body corporate
related to either of those corporations” were omitted from
paragraph 47(13)(c) and the expression “any body corporate
related to the last-mentioned corporation” were substituted;
(k) the assumption that the expression “where the second person
mentioned in that paragraph is a corporation” were omitted
from subsection 96(2).
(6) A person may be taken to have engaged in anti-competitive
conduct even if the conduct involves the exercise, or proposed
exercise, of an existing legal or equitable right (whether under a
contract or otherwise).
(7) Despite anything in this section, a carrier or carriage service
provider does not engage in anti-competitive conduct if that
conduct does not constitute a contravention of section 44ZZRJ,
44ZZRK, 45, 45B, 46, 47 or 48:
(a) because an authorisation is in force; or
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Division 2 Anti-competitive conduct
Section 151AK
194 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) because of the operation of subsection 44ZZRL(1) or 45(8A)
or section 93; or
(c) because of the operation of subsection 45(9); or
(d) because of the operation of subsection 45B(8); or
(e) because of the operation of section 44ZZRM.
(8) A carrier or carriage service provider does not engage in
anti-competitive conduct if that conduct occurred before 1 July
1997.
(9) Despite anything in this section, a person does not engage in
anti-competitive conduct if, under section 577BA of the
Telecommunications Act 1997, the conduct is authorised for the
purposes of subsection 51(1) of this Act.
(10) Despite anything in this section, a person does not engage in
anti-competitive conduct if, under section 151DA, the conduct is
authorised for the purposes of subsection 51(1).
151AK The competition rule
(1) A carrier or carriage service provider must not engage in
anti-competitive conduct.
(2) For the purposes of this Part, the rule set out in subsection (1) is to
be known as the competition rule.
Note: For enforcement of the competition rule, see Division 7.
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Section 151AKA
Competition and Consumer Act 2010 195
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 3—Competition notices and exemption orders
Subdivision A—Competition notices
151AKA Part A competition notices
Particular anti-competitive conduct
(1) The Commission may issue a written notice stating that a specified
carrier or carriage service provider has engaged, or is engaging, in
a specified instance of anti-competitive conduct.
Kind of anti-competitive conduct
(2) The Commission may issue a written notice stating that a specified
carrier or carriage service provider has engaged, or is engaging, in
at least one instance of anti-competitive conduct of a kind
described in the notice.
Part A competition notice
(3) A notice under subsection (1) or (2) is to be known as a Part A
competition notice.
Part A competition notices under subsection (2)
(4) For the purposes of this Part, a kind of anti-competitive conduct
described in a Part A competition notice under subsection (2) is
taken to be conduct of a kind dealt with in the notice.
(5) To avoid doubt, a Part A competition notice under subsection (2) is
not required to specify any instance of anti-competitive conduct.
(6) In deciding how to describe a kind of anti-competitive conduct in a
Part A competition notice under subsection (2), the Commission
may have regard to:
(a) whether the carrier or carriage service provider concerned
could, by varying its conduct, continue to engage in
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Section 151AL
196 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
anti-competitive conduct and avoid proceedings against it
under one or more provisions of Division 7; and
(b) any other matters that the Commission thinks are relevant.
Threshold for issuing Part A competition notices
(7) The Commission may issue a Part A competition notice under
subsection (1) that specifies an instance of anti-competitive
conduct if the Commission has reason to believe that the carrier or
carriage service provider concerned has engaged, or is engaging, in
that instance of anti-competitive conduct.
(8) The Commission may issue a Part A competition notice under
subsection (2) that describes a kind of anti-competitive conduct if
the Commission has reason to believe that the carrier or carriage
service provider concerned has engaged, or is engaging, in at least
one instance of anti-competitive conduct of that kind.
Procedural fairness
(9) The Commission is not required to observe any requirements of
procedural fairness in relation to the issue of a Part A competition
notice.
Note: For the effect of a Part A competition notice, see
subsections 151BY(3), 151CB(3), 151CC(3) and 151CE(5).
151AL Part B competition notices
(1) The Commission may issue a written notice:
(a) stating that a specified carrier or carriage service provider has
contravened, or is contravening, the competition rule; and
(b) setting out particulars of that contravention.
(2) A notice under subsection (1) is to be known as a Part B
competition notice.
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Competition notices and exemption orders Division 3
Section 151AM
Competition and Consumer Act 2010 197
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Threshold for issuing Part B competition notices
(3) The Commission may issue a Part B competition notice relating to
a particular contravention if the Commission has reason to believe
that the carrier or carriage service provider concerned has
committed, or is committing, the contravention.
Notice may be issued after proceedings have been instituted
(4) To avoid doubt, a Part B competition notice may be issued even if
any relevant proceedings under Division 7 have been instituted.
Note: For the effect of a Part B competition notice, see
subsection 151AN(1).
151AM Competition notice to be given to carrier or carriage service
provider
As soon as practicable after issuing a competition notice, the
Commission must give a copy of the competition notice to the
carrier or carriage service provider concerned.
151AN Evidentiary effect of competition notice
(1) In any proceedings under, or arising out of, this Part, a Part B
competition notice is prima facie evidence of the matters in the
notice.
(2) A document purporting to be a competition notice must, unless the
contrary is established, be taken to be a competition notice and to
have been properly issued.
(3) The Commission may certify that a document is a copy of a
competition notice.
(4) This section applies to the certified copy as if it were the original.
151AO Duration of Part A competition notice
(1) A Part A competition notice comes into force:
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Section 151AOA
198 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) when it is issued; or
(b) if the notice specifies a later time—at that later time;
and, unless sooner revoked, remains in force until the end of the
period specified in the notice. The period must not be longer than
12 months.
(2) If a Part A competition notice expires, this Part does not prevent
the Commission from issuing a fresh Part A competition notice
under section 151AKA that relates to the same matter as the
expired notice.
151AOA Variation of competition notice
(1) If a competition notice is in force in relation to a carrier or carriage
service provider, the Commission may vary the competition notice
so long as the variation is of a minor nature.
(2) If a Part A competition notice is in force in relation to a carrier or
carriage service provider, the Commission may vary the
competition notice by omitting the time at which the notice is
expressed to come into force and substituting a later time.
(3) If a competition notice is varied, the Commission must give the
carrier or carriage service provider concerned a written notice
setting out the terms of the variation.
151AOB Revocation of competition notice
(1) The Commission may revoke a competition notice.
(2) If a competition notice is revoked, the Commission must give the
carrier or carriage service provider concerned a written notice
stating that the notice has been revoked.
151AP Guidelines
(1) In deciding whether to issue a competition notice, the Commission
must have regard to:
(a) any guidelines in force under subsection (2); and
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Section 151AQ
Competition and Consumer Act 2010 199
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) such other matters as the Commission considers relevant.
(2) The Commission must, by written instrument, formulate guidelines
for the purposes of subsection (1).
(3) Guidelines under subsection (2) must address the appropriateness
of the Commission issuing a competition notice as opposed to the
Commission taking other action under this Act.
(4) The Commission must take all reasonable steps to ensure that
guidelines under subsection (2) comply with subsection (3) within
12 months after the commencement of this subsection.
151AQ Commission to act expeditiously
(1) If the Commission has reason to suspect that a carrier or carriage
service provider has contravened, or is contravening, the
competition rule, the Commission must act expeditiously in
deciding whether to issue a competition notice in relation to that
contravention.
(2) A failure to comply with subsection (1) does not affect the validity
of a competition notice.
151AQA Stay of proceedings relating to competition notices
(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the
Administrative Decisions (Judicial Review) Act 1977 do not apply
to a decision to issue a competition notice.
(2) If a person applies to the Federal Court under subsection 39B(1) of
the Judiciary Act 1903 for a writ or injunction in relation to a
decision to issue a competition notice, the Court must not make
any orders staying or otherwise affecting the operation or
implementation of the decision pending the finalisation of the
application. However, this subsection does not apply to an order
under subsection (3).
(3) If:
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Section 151AQB
200 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) either:
(i) a person applies to the Federal Court under the
Administrative Decisions (Judicial Review) Act 1977 for
review of a decision to issue a competition notice; or
(ii) a person applies to the Federal Court under
subsection 39B(1) of the Judiciary Act 1903 for a writ
or injunction in relation to a decision to issue a
competition notice; and
(b) any relevant proceedings have been instituted under
Division 7 of this Part;
the Federal Court or a Judge of the Federal Court may, by order, on
such conditions as the Court or the Judge thinks fit, stay those
proceedings.
(4) If:
(a) a person applies to the Federal Circuit Court under the
Administrative Decisions (Judicial Review) Act 1977 for
review of a decision to issue a competition notice; and
(b) any relevant proceedings have been instituted under
Division 7 of this Part;
the Federal Circuit Court or a Judge of the Federal Circuit Court
may, by order, on such conditions as the Court or the Judge thinks
fit, stay those proceedings.
151AQB Advisory notices
Issue of advisory notice
(1) The Commission may give a carrier or carriage service provider a
written notice (an advisory notice) advising the carrier or provider
of the action it should take, or consider taking, in order to ensure
that it does not engage, or continue to engage, in anti-competitive
conduct.
(2) The Commission does not have a duty to consider whether to issue
an advisory notice in relation to:
(a) a particular instance of anti-competitive conduct; or
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Section 151AR
Competition and Consumer Act 2010 201
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) a particular kind of anti-competitive conduct;
before it issues a Part A competition notice in relation to that
instance or kind of conduct.
Nature of advisory notice
(3) An advisory notice is an instrument of an advisory character.
Varying or revoking advisory notice
(5) The Commission may vary or revoke an advisory notice.
(6) If an advisory notice is varied, the Commission must give the
carrier or carriage service provider concerned a written notice
setting out the terms of the variation.
(7) If an advisory notice is revoked, the Commission must give the
carrier or carriage service provider concerned a written notice
stating that the advisory notice has been revoked.
Publication of advisory notice
(8) If the Commission is satisfied that:
(a) the publication of an advisory notice would result, or be
likely to result, in a benefit to the public; and
(b) that benefit would outweigh any substantial prejudice to the
commercial interests of a person that would result, or be
likely to result, if the advisory notice were published;
the Commission may publish the advisory notice in such manner as
it thinks fit.
151AR Register of competition notices
(1) The Commission must keep a Register in relation to competition
notices.
(2) The Register must include particulars of all competition notices
(including notices that have expired).
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Section 151AS
202 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) The Register may be maintained by electronic means.
(4) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(5) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or
taken an extract from, the Register if the Commission gives the
person a printout of, or of the relevant parts of, the Register.
(6) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
Subdivision B—Exemption orders
151AS Exemption orders
(1) A person may apply to the Commission for an order exempting
specified conduct of the person from the scope of section 151AJ
(which deals with anti-competitive conduct). The order is called an
exemption order.
(2) An exemption order is not invalid only because the conduct
specified in the order is conduct of a kind that, apart from the
order, is outside the scope of section 151AJ (which deals with
anti-competitive conduct).
151AT Form of application
An application for an exemption order must be:
(a) in writing; and
(b) in a form approved in writing by the Commission; and
(c) accompanied by the prescribed fee.
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Section 151AU
Competition and Consumer Act 2010 203
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
151AU Further information
(1) The Commission may request an applicant for an exemption order
to give the Commission further information about the application.
(2) The Commission may refuse to consider the application until the
applicant gives the Commission the information.
(3) The Commission may withdraw its request for further information,
in whole or in part.
151AV Withdrawal of application
An applicant for an exemption order may withdraw the application
by written notice given to the Commission.
151AW Commission must publicise receipt of applications
If the Commission receives an application for an exemption order,
the Commission must publicise the receipt of the application in
such manner as it thinks fit.
151AX Commission may refuse to consider application if it relates to
the same conduct as an authorisation application
(1) This section applies if:
(a) the Commission receives, or has received, an application for
an exemption order; and
(b) the Commission receives, or has received, an application for
an authorisation under Division 1 of Part VII; and
(c) the application for the exemption order and the application
for the authorisation relate to the same conduct.
(2) The Commission may refuse to:
(a) consider the application for the exemption order; or
(b) convene a conference under section 151AZ to discuss the
application for the exemption order;
until:
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Section 151AY
204 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(c) the Commission has made a determination under section 90
in relation to the application for the authorisation; or
(d) if the Commission makes such a determination—the expiry
of the time limit allowed for a person to apply to the Tribunal
for a review of the determination; or
(e) if a person applies to the Tribunal for a review of the
determination—the review (including any court proceedings
arising out of the review) is finalised.
151AY Commission may refuse to consider application if it relates to
the same conduct as a Part VII notification
(1) This section applies if:
(a) the Commission receives, or has received, an application for
an exemption order; and
(b) the Commission receives, or has received, a notice under
subsection 93(1) or 93AB(1A) or (1); and
(c) the application for the exemption order and the notice relate
to the same conduct.
(2) The Commission may refuse to:
(a) consider the application for the exemption order; or
(b) convene a conference under section 151AZ to discuss the
application for the exemption order;
until:
(c) the Commission decides whether or not to give a notice
under subsection 93(3) or (3A) or 93AC(1) or (2); or
(d) if the Commission gives such a notice—the expiry of the
time limit allowed for a person to apply to the Tribunal for
review of the decision; or
(e) if a person applies to the Tribunal for a review of the
decision—the review (including any court proceedings
arising out of the review) is finalised.
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Section 151AZ
Competition and Consumer Act 2010 205
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
151AZ Commission may convene conference to discuss application
(1) If the Commission receives an application for an exemption order,
the Commission may convene a conference to discuss the
application.
(2) If the Commission decides to convene a conference, the
Commission must give:
(a) the applicant (or a representative of the applicant); and
(b) any other persons whom the Commission considers
interested;
a reasonable opportunity to attend and take part in the conference.
(3) This Act does not prevent a conference under this section from
being combined with a conference under section 90A or 93A if the
combined conference relates to the same conduct.
151BA Commission must grant or reject application
If the Commission receives an application for an exemption order,
the Commission must either:
(a) make the order; or
(b) refuse to make the order.
151BB Commission to give opportunity for submissions
Before making an exemption order, the Commission must give:
(a) the applicant; and
(b) any other person whom the Commission considers interested;
a reasonable opportunity to make submissions to the Commission
about the order.
151BC Criteria for making exemption order
(1) The Commission must not make an exemption order in relation to
particular conduct of a person unless it is satisfied that:
(a) both:
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Section 151BC
206 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(i) the conduct will result, or is likely to result, in a benefit
to the public; and
(ii) that benefit outweighs, or will outweigh, the detriment
to the public constituted by any lessening of competition
that will result, or is likely to result, from engaging in
the conduct; or
(b) the conduct is not anti-competitive conduct.
(2) In determining whether the Commission is satisfied about the
matters referred to in paragraph (1)(a), the Commission may have
regard to the following matters:
(a) the extent to which the conduct relates to the supply of goods
or services on favourable terms and conditions to:
(i) a financially disadvantaged individual; or
(ii) an individual who is disadvantaged on health grounds;
or
(iii) a registered charity; or
(iiia) a community organisation that is a not-for-profit entity
and is not a charity; or
(iv) an educational institution; or
(v) a health facility;
(b) the extent to which the conduct relates to the supply of goods
or services for:
(i) community, charitable or educational purposes; or
(ii) the promotion of health or safety;
on favourable terms and conditions;
(c) the need to satisfy any applicable universal service
obligation;
(d) the extent to which the conduct prevents or reduces, or is
likely to prevent or reduce, pollution or other forms of
degradation of environmental amenity;
(e) the extent to which the conduct contributes, or is likely to
contribute, to technical innovation, or the development of
new goods or services, by Australian industry.
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Section 151BD
Competition and Consumer Act 2010 207
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) Subsection (2) does not, by implication, limit the matters to which
the Commission may have regard.
(4) The Commission must not make an exemption order in relation to
particular conduct of a person if:
(a) the conduct is in contravention of section 46; and
(b) subsection 46(6) does not apply to the conduct.
(5) Subsections 151AJ(4) and (5) apply for the purposes of
subsection (4) of this section in a corresponding way to the way in
which they apply for the purposes of subsection 151AJ(3).
(6) In this section:
environment includes all aspects of the surroundings of human
beings, whether affecting human beings as individuals or in social
groupings.
151BD Notification of decision
(1) If the Commission makes an exemption order, the Commission
must give the applicant a written notice setting out the order and
the reasons for the order.
(2) If the Commission refuses to make an exemption order, the
Commission must give the applicant a written notice stating that
the order has been refused and setting out the reasons for the
refusal.
151BE Duration of exemption order may be limited
An exemption order may be expressed to be in force for a period
specified in the order.
151BF Conditions of exemption order
An exemption order may be expressed to be subject to such
conditions as are specified in the order.
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Division 3 Competition notices and exemption orders
Section 151BG
208 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
151BG Revocation of exemption order
(1) If:
(a) an exemption order is in force in relation to a person; and
(b) the Commission is satisfied that:
(i) the order was made on the basis of information that was
false or misleading in a material particular; or
(ii) a condition to which the order is subject has been
contravened; or
(iii) there has been a material change of circumstances since
the order was made;
the Commission may revoke the order.
(2) The Commission must not revoke an exemption order unless the
Commission has first:
(a) published a draft notice of revocation and invited people to
make submissions to the Commission on the draft notice; and
(b) considered any submissions that were received within the
time limit specified by the Commission when it published the
draft notice.
(3) The Commission may make a further exemption order under
section 151BA in substitution for the revoked order.
(4) If the Commission revokes an exemption order relating to a person,
the Commission must give the person a written notice stating that
the order has been revoked and setting out the reasons for the
revocation.
(5) A revocation of an exemption order takes effect:
(a) at the time when notice of the revocation is given; or
(b) if a later time is specified in the notice of the revocation—at
that later time.
151BH Register of exemption orders
(1) The Commission must keep a Register in relation to exemption
orders.
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Section 151BH
Competition and Consumer Act 2010 209
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) The Register must include the following:
(a) particulars of all exemption orders (including orders that
have expired);
(b) applications for exemption orders received by the
Commission (including applications that have been
withdrawn);
(c) particulars of decisions refusing to make exemption orders;
(d) particulars of decisions revoking, or refusing to revoke,
exemption orders;
(e) particulars of the Commission’s reasons for making
exemption orders.
(3) Despite subsection (2), the Register must not set out information
covered by subsection (2) if the disclosure of the information could
reasonably be expected to prejudice substantially the commercial
interests of the person, or any of the persons, to whom the
information relates.
(4) The Register may be maintained by electronic means.
(5) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(6) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or
taken an extract from, the Register if the Commission gives the
person a printout of, or of the relevant parts of, the Register.
(7) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
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Division 3 Competition notices and exemption orders
Section 151BJ
210 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Subdivision C—Miscellaneous
151BJ Conduct includes proposed conduct
A reference in this Division to conduct includes a reference to
proposed conduct.
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Tariff filing Division 4
Section 151BK
Competition and Consumer Act 2010 211
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 4—Tariff filing
151BK Tariff filing directions
(1) This section applies to a person who is a carrier or carriage service
provider if the Commission is satisfied that the person has a
substantial degree of power in a telecommunications market.
(2) The Commission may give the person a written direction that:
(a) contains a statement to the effect that any or all of the
following are within the scope of the direction:
(i) specified carriage services;
(ii) specified ancillary goods;
(iii) specified ancillary services; and
(b) complies with subsection (3), (4) or (5).
The direction is called a tariff filing direction.
Note: For enforcement of tariff filing directions, see Division 7.
(3) A direction complies with this subsection if it contains a
requirement that if, at the time the direction is given, the person has
charges for goods or services within the scope of the direction, the
person must give the Commission, within the period and in the
form specified in the direction, a written statement setting out such
information about those charges as is specified in the direction.
(4) A direction complies with this subsection if it contains a
requirement that the person must, at least 7 days before:
(a) imposing a new charge for goods or services within the scope
of the direction at any time when the direction is in force; or
(b) varying a charge for goods or services within the scope of the
direction at any time when the direction is in force; or
(c) ceasing to impose a charge for goods or services within the
scope of the direction at any time when the direction is in
force;
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Division 4 Tariff filing
Section 151BK
212 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
give the Commission, in the form specified in the direction, a
written statement setting out such information about the person’s
intentions as is specified in the direction.
Note: See subsection (6) for a special rule relating to this subsection.
(5) A direction complies with this subsection if it contains a
requirement that, in the event that the person:
(a) imposes a new charge for goods or services within the scope
of the direction at any time when the direction is in force; or
(b) varies a charge for goods or services within the scope of the
direction at any time when the direction is in force; or
(c) ceases to impose a charge for goods or services within the
scope of the direction at any time when the direction is in
force;
the person must give the Commission:
(d) within such period after the imposition, variation or
cessation, as the case may be, as is specified in the direction;
and
(e) in the form specified in the direction;
a written statement setting out such information about the
imposition, variation or cessation, as the case may be, as is
specified in the direction.
(6) The Commission may, on the application of the person, make a
written determination that subsection (4) has effect, in relation to a
specified matter, as if the reference in that subsection to 7 days
were a reference to such shorter period as is specified in the
determination. The determination has effect accordingly.
(7) This section does not, by implication, limit section 87B or 155.
(8) This section does not prevent 2 or more tariff filing directions
being given to the same person at the same time.
(9) For the purposes of this section, information relating to the terms
and conditions on which goods or services have been, are being or
are proposed to be supplied is taken to be information relating to
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Section 151BL
Competition and Consumer Act 2010 213
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
charges that have been imposed, are being imposed or are proposed
to be imposed for those goods or services.
(10) A tariff filing direction given before 1 July 1997 comes into force
on 1 July 1997.
(11) In this section:
ancillary goods means goods for use in connection with a carriage
service.
ancillary service means a service for use in connection with a
carriage service.
variation, in relation to a charge, means a variation of the nature of
the charge or the amount of the charge, or both.
151BL Specification of goods and services
(1) Goods or services may be specified in a tariff filing direction by
reference to any or all of the following:
(a) the nature of the goods or services;
(b) the customers to whom the goods or services are, or are
proposed to be, supplied (whether those customers are
identified by name, by inclusion in a specified class or in any
other way);
(c) the kinds of terms and conditions on which the goods or
services are, or are proposed to be, supplied.
(2) Subsection (1) does not, by implication, limit the ways in which
goods and services may be specified in a tariff filing direction.
151BM Notification of reasons
If the Commission gives a tariff filing direction to a person, the
Commission must give the person a written notice setting out the
reasons for the direction.
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Division 4 Tariff filing
Section 151BN
214 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
151BN Duration of direction may be limited
A tariff filing direction may be expressed to cease to be in force at
a time ascertained in accordance with the direction.
Note: A time specified in accordance with the direction may be the time of
occurrence of a specified event or the time when a specified condition
is satisfied.
151BO Revocation of direction
(1) If a tariff filing direction relating to a person is in force, the
Commission may revoke the direction.
(2) The Commission must give the person a written notice stating that
the direction has been revoked.
(3) A revocation of a tariff filing direction takes effect:
(a) at the time when the notice of revocation is given; or
(b) if a later time is specified in the notice of revocation—at that
later time.
151BP Variation of direction
(1) If a tariff filing direction relating to a person is in force, the
Commission may vary the direction.
(2) The Commission must give the person a written notice setting out:
(a) the terms of the variation; and
(b) the reasons for the variation.
(3) A variation of a tariff filing direction takes effect:
(a) at the time when the notice of variation is given; or
(b) if a later time is specified in the notice of variation—at that
later time.
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Section 151BQ
Competition and Consumer Act 2010 215
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
151BQ Public access to tariff information
(1) This section applies to a particular item of information given to the
Commission by a person (the first person) in accordance with a
tariff filing direction.
(2) If the Commission is satisfied that:
(a) the disclosure of the information would result, or be likely to
result, in a benefit to the public; and
(b) that benefit would outweigh both:
(i) the detriment to the public constituted by any lessening
of competition that would result, or be likely to result, if
the information were disclosed; and
(ii) any substantial prejudice to the commercial interests of
a person that would result, or be likely to result, if the
information were disclosed;
the Commission must give the first person a written notice stating
that the Commission intends to make copies of the information,
together with copies of the direction, available for inspection and
purchase by the public.
(3) If the Commission gives the first person a notice under
subsection (2), the Commission must make copies of the
information, together with copies of the direction, available for
inspection and purchase by the public:
(a) as soon as practicable after the end of the 7-day period that
began when the notice was given to the first person; or
(b) if the Commission decides that the information and direction
should not be made available during a further period of up to
14 days—after the end of that further period.
151BR Register of tariff filing directions
(1) The Commission must keep a Register in relation to tariff filing
directions.
(2) The Register must include the following:
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Division 4 Tariff filing
Section 151BT
216 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) particulars of all tariff filing directions (including directions
that have expired);
(b) particulars of all revocations of tariff filing directions;
(c) particulars of all variations of tariff filing directions.
(3) The Register may be maintained by electronic means.
(4) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(5) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or
taken an extract from, the Register if the Commission gives the
person a printout of, or of the relevant parts of, the Register.
(6) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
151BT Meaning of terms and conditions
In this Division:
terms and conditions, in relation to the supply of goods or
services, includes:
(a) charges for the supply of the goods or services; and
(b) any discounts, allowances, rebates or credits given or allowed
in relation to the supply of the goods or services; and
(c) any commissions or similar benefits (whether monetary or
otherwise) payable or given in relation to the supply of the
goods or services; and
(d) the supply of other goods or services, where the other goods
or services are supplied in connection with the
first-mentioned goods or services; and
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Section 151BT
Competition and Consumer Act 2010 217
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(e) the making of payments for such other goods or services.
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Division 5 Tariff filing by Telstra
Section 151BTA
218 Competition and Consumer Act 2010
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Division 5—Tariff filing by Telstra
151BTA Tariff filing by Telstra
(1) This section applies to a charge for a basic carriage service.
(2) At least 7 days before:
(a) imposing a new charge; or
(b) varying a charge; or
(c) ceasing to impose a charge;
Telstra must give the Commission, in a form approved in writing
by the Commission, a written statement setting out such
information about Telstra’s intentions as the Commission requires.
(3) The Commission may, on the application of Telstra, make a written
determination that subsection (2) has effect, in relation to a
specified matter, as if the reference in that subsection to 7 days
were a reference to such shorter period as specified in the
determination.
(4) A determination under subsection (3) has effect accordingly.
(5) Divisions 6 and 7 apply to a contravention of subsection (2) in a
corresponding way to the way in which they apply to a
contravention of a tariff filing direction.
(6) This section does not, by implication, limit the application of
Division 4 to Telstra.
(7) The Commission may, by written notice given to Telstra, exempt a
charge for a specified basic carriage service from the scope of
subsection (2).
(8) A basic carriage service may be specified for the purposes of
subsection (7) by reference to any or all of the following:
(a) the customers to whom the services are, or are proposed to
be, supplied;
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Section 151BTA
Competition and Consumer Act 2010 219
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(b) the kinds of terms and conditions on which the services are,
or are proposed to be, supplied.
(9) Subsection (8) does not, by implication, limit subsection (7).
(10) An exemption under subsection (7) may be unconditional or
subject to such conditions (if any) as are specified in the
exemption.
(11) Section 151BQ applies to information given to the Commission
under this section in a corresponding way to the way in which it
applies to information given to the Commission in accordance with
a tariff filing direction.
(13) In this section:
basic carriage service has the meaning given by section 174 of the
Telecommunications Act 1991, as in force before 1 July 1997, but
does not include a service supplied to an existing carrier.
existing carrier means a person who held a general
telecommunications licence, or a public mobile licence, that was in
force under the Telecommunications Act 1991 immediately before
1 July 1997.
terms and conditions has the same meaning as in section 151BT.
variation, in relation to a charge, means a variation of the nature of
the charge or the amount of the charge, or both.
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Division 6 Record-keeping rules and disclosure directions
Section 151BU
220 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 6—Record-keeping rules and disclosure directions
151BU Commission may make record-keeping rules
(1) The Commission may, by written instrument, make rules for and in
relation to requiring one or more specified carriers or one or more
specified carriage service providers to keep and retain records.
Rules under this subsection may also require those carriers or
carriage service providers to prepare reports consisting of
information contained in those records. Rules under this subsection
may also require those carriers or carriage service providers to give
any or all of the reports to the Commission. Rules under this
subsection are to be known as record-keeping rules.
Note 1: Carriers and carriage service providers may be specified by name, by
inclusion in a specified class or in any other way.
Note 2: For enforcement of the record-keeping rules, see Division 7.
(2) The rules may specify the manner and form in which the records
are to be kept.
(2A) The rules may specify the manner and form in which reports are to
be prepared.
(2B) The rules may provide for:
(a) the preparation of reports as and when required by the
Commission; or
(b) the preparation of periodic reports relating to such regular
intervals as are specified in the rules.
(2C) The rules may require or permit a report prepared in accordance
with the rules to be given to the Commission, in accordance with
specified software requirements and specified authentication
requirements:
(a) on a specified kind of data processing device; or
(b) by way of a specified kind of electronic transmission.
(2D) Subsections (2), (2A), (2B) and (2C) do not limit subsection (1).
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Section 151BUAA
Competition and Consumer Act 2010 221
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) If the rules apply to a particular carrier or carriage service provider,
the Commission must give the carrier or provider a copy of the
rules.
(4) The Commission must not exercise its powers under this section so
as to require the keeping or retention of records unless the records
contain, or will contain, information that is relevant to:
(a) ascertaining whether the competition rule has been, or is
being, complied with; or
(b) ascertaining whether tariff filing directions have been, or are
being, complied with; or
(c) the operation of this Part (other than this Division); or
(d) the operation of Part XIC (which deals with access); or
(da) the operation of the National Broadband Network Companies
Act 2011 or regulations under that Act; or
(e) the operation of Division 3 of Part 20 of the
Telecommunications Act 1997 (which deals with Rules of
Conduct relating to dealings with international
telecommunications operators); or
(f) the operation of Part 9 of the Telecommunications (Consumer
Protection and Service Standards) Act 1999 (which deals
with regulation of Telstra’s charges).
(5) Record-keeping rules made before 1 July 1997 come into force on
1 July 1997.
(6) This section does not limit section 155 (which is about the general
information-gathering powers of the Commission).
151BUAA Minister may give directions to Commission
(1) The Minister may, by legislative instrument, give a direction to the
Commission in relation to the exercise of its powers under
section 151BU, 151BUDA, 151BUDB or 151BUDC.
(1A) The Minister may only give a direction under subsection (1) that:
(a) requires the Commission to exercise its powers under
section 151BU, 151BUDA, 151BUDB or 151BUDC; or
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Division 6 Record-keeping rules and disclosure directions
Section 151BUAB
222 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) requires the Commission to exercise its powers under
section 151BU, 151BUDA, 151BUDB or 151BUDC in a
particular way.
(1B) The Minister may, by legislative instrument, give a direction to the
Commission requiring it, in the event that it receives a specified
Ministerially-directed report, to:
(a) prepare a specified kind of analysis of the report; and
(b) publish the analysis within a specified period after receiving
the report.
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(1C) The Minister may, by legislative instrument, give a direction to the
Commission requiring it, in the event that it receives a report in a
specified series of Ministerially-directed periodic reports, to:
(a) prepare a specified kind of analysis of the report; and
(b) publish the analysis within a specified period after receiving
the report.
(2) The Commission must comply with a direction under this section.
(3) If:
(a) a record-keeping rule is made as a result of a direction under
subsection (1); and
(b) the rule requires the preparation of a report;
then:
(c) the rule must contain a statement to the effect that the rule
was made as a result of a Ministerial direction; and
(d) a report prepared under the rule is to be known as a
Ministerially-directed report.
151BUAB Request for disclosure
(1) A person may request the Commission to exercise its powers
under:
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(a) section 151BUA or 151BUB in relation to a particular report;
or
(b) section 151BUC in relation to a particular series of periodic
reports.
(2) The request must be in writing.
(3) The Commission must consider the request.
(4) However, the Commission need not consider the request if it
considers that the request is frivolous, vexatious or was not made
in good faith.
151BUA Commission gives access to reports
(1) This section applies to a particular report given to the Commission
by a carrier, or a carriage service provider, in accordance with the
record-keeping rules.
Criteria for disclosure
(2) If the Commission is satisfied that the disclosure of the report, or
the disclosure of particular extracts from the report, would be
likely to:
(a) promote competition in markets for listed carriage services;
or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(iia) the National Broadband Network Companies Act 2011
or regulations under that Act; or
(iii) Division 3 of Part 20 of the Telecommunications Act
1997 (which deals with Rules of Conduct relating to
dealings with international telecommunications
operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection
and Service Standards) Act 1999 (which deals with
regulation of Telstra’s charges);
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Section 151BUA
224 Competition and Consumer Act 2010
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the Commission may give the carrier or carriage service provider
concerned:
(c) a written notice stating that the Commission intends to make
copies of the report or extracts, together with other relevant
material (if any) specified in the notice, available for
inspection and purchase by the public as soon as practicable
after the end of the period specified in the notice; or
(d) a written notice stating that the Commission intends to make
copies of the report or extracts, together with other relevant
material (if any) specified in the notice, available for
inspection and purchase:
(i) by such persons as are specified in the notice; and
(ii) on such terms and conditions (if any) as are specified in
the notice;
as soon as practicable after the end of the period specified in
the notice.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
Period specified in notice
(3) The period specified in a notice under subsection (2) must run for
at least 28 days after the notice was given.
Criteria for giving notice
(4) In deciding whether to give a notice under subsection (2), the
Commission must have regard to:
(a) the legitimate commercial interests of the carrier or carriage
service provider concerned; and
(b) such other matters as the Commission considers relevant.
Consultation before giving notice
(5) The Commission must not give the carrier or carriage service
provider concerned a notice under subsection (2) unless the
Commission has first:
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Section 151BUA
Competition and Consumer Act 2010 225
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(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the notice under
subsection (2); and
(ii) inviting the carrier or carriage service provider to make
a submission to the Commission on the draft by a
specified time limit; and
(b) considered any submission that was received within that time
limit.
The time limit specified in a notice under paragraph (a) must be at
least 28 days after the notice was given.
Public access
(6) If the Commission gives the carrier or carriage service provider
concerned a notice under paragraph (2)(c), the Commission:
(a) must make copies of the report or extracts, together with the
other material (if any) specified in the notice, available for
inspection and purchase by the public as soon as practicable
after the end of the period specified in the notice; and
(b) may also give a written direction to the carrier or carriage
service provider concerned requiring it to take such action as
is specified in the direction to inform the public, or such
persons as are specified in the direction, that the report is, or
the extracts are, so available.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
(7) A person must comply with a direction under paragraph (6)(b).
Limited access
(8) If the Commission gives the carrier or carriage service provider
concerned a notice under paragraph (2)(d), the Commission must:
(a) make copies of the report or extracts, together with the other
material (if any) specified in the notice, available for
inspection and purchase by the persons specified in the notice
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Division 6 Record-keeping rules and disclosure directions
Section 151BUB
226 Competition and Consumer Act 2010
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as soon as practicable after the end of the period specified in
the notice; and
(b) take reasonable steps to inform the persons who inspect or
purchase copies of the report or extracts of the terms and
conditions (if any) that are specified in the notice.
(9) If, in accordance with subsection (8), a person inspects or
purchases a copy of the report or extracts, the person must comply
with the terms and conditions (if any) that are specified in the
notice concerned.
Offences
(10) A person who contravenes subsection (7) commits an offence
punishable on conviction by a fine not exceeding 20 penalty units.
(11) A person who contravenes subsection (9) commits an offence
punishable on conviction by a fine not exceeding 100 penalty units.
151BUB Carrier or carriage service provider gives access to reports
(1) This section applies to a report prepared by a carrier, or a carriage
service provider, in accordance with the record-keeping rules.
Disclosure direction
(2) If the Commission is satisfied that the disclosure of the report, or
the disclosure of particular extracts from the report, would be
likely to:
(a) promote competition in markets for listed carriage services;
or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(iia) the National Broadband Network Companies Act 2011
or regulations under that Act; or
(iii) Division 3 of Part 20 of the Telecommunications Act
1997 (which deals with Rules of Conduct relating to
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Section 151BUB
Competition and Consumer Act 2010 227
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
dealings with international telecommunications
operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection
and Service Standards) Act 1999 (which deals with
regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider
concerned:
(c) a written direction requiring it to make copies of the report or
extracts, together with other relevant material (if any)
specified in the direction, available for inspection and
purchase by the public as soon as practicable after the end of
the period specified in the direction; or
(d) a written direction requiring it to make copies of the report or
extracts, together with other relevant material (if any)
specified in the direction, available for inspection and
purchase:
(i) by such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in
the direction;
as soon as practicable after the end of the period specified in
the direction.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
(3) The period specified in a direction under subsection (2) must run
for at least 28 days after the direction was given.
(4) A direction under paragraph (2)(d) is also taken to require the
carrier or carriage service provider concerned to take reasonable
steps to inform the persons who inspect or purchase copies of the
report or extracts of the terms and conditions (if any) that are
specified in the direction.
Criteria for giving direction
(5) In deciding whether to give a direction under subsection (2), the
Commission must have regard to:
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Section 151BUB
228 Competition and Consumer Act 2010
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(a) the legitimate commercial interests of the carrier or carriage
service provider concerned; and
(b) such other matters as the Commission considers relevant.
Consultation before giving direction
(6) The Commission must not give the carrier or carriage service
provider concerned a direction under subsection (2) unless the
Commission has first:
(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the direction; and
(ii) inviting the carrier or carriage service provider to make
a submission to the Commission on the draft by a
specified time limit; and
(b) considered any submission that was received within that time
limit.
The time limit specified in the notice must be at least 28 days after
the notice was given.
Direction to give information about availability of report
(7) If the Commission gives the carrier or carriage service provider
concerned a direction under paragraph (2)(c), the Commission may
also give it a written direction requiring it to take such action as is
specified in the direction to inform the public that the report is, or
extracts are, available for inspection and purchase.
(8) If the Commission gives the carrier or carriage service provider
concerned a direction under paragraph (2)(d), the Commission may
also give it a written direction requiring it to take such action as is
specified in the direction to inform the persons specified in the
paragraph (2)(d) direction that the report is, or the extracts are,
available for inspection and purchase.
(9) A person must comply with a direction under subsection (7) or (8).
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Section 151BUC
Competition and Consumer Act 2010 229
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Reasonable charge
(10) The price charged by the carrier or carriage service provider
concerned for the purchase of a copy of the report or extracts and
the other material (if any) must not exceed the reasonable costs
incurred by the carrier or carriage service provider concerned in
making the copy of the report or extracts and the other material (if
any) available for purchase.
Compliance with terms and conditions
(11) If, in accordance with a direction under paragraph (2)(d), a person
inspects or purchases a copy of the report or extracts, the person
must comply with the terms and conditions (if any) that are
specified in the direction.
Offences
(12) A person who contravenes subsection (9) commits an offence
punishable on conviction by a fine not exceeding 20 penalty units.
(13) A person who contravenes subsection (11) commits an offence
punishable on conviction by a fine not exceeding 100 penalty units.
Section 151BUC does not limit this section
(14) Section 151BUC does not limit this section.
151BUC Carrier or carriage service provider gives access to
periodic reports
(1) This section applies to a particular series of periodic reports that
are required to be prepared by a carrier, or a carriage service
provider, in accordance with the record-keeping rules.
Disclosure direction
(2) If the Commission is satisfied that the disclosure of each of the
reports in that series, or the disclosure of particular extracts from
each of the reports in that series, would be likely to:
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Section 151BUC
230 Competition and Consumer Act 2010
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(a) promote competition in markets for listed carriage services;
or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(iia) the National Broadband Network Companies Act 2011
or regulations under that Act; or
(iii) Division 3 of Part 20 of the Telecommunications Act
1997 (which deals with Rules of Conduct relating to
dealings with international telecommunications
operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection
and Service Standards) Act 1999 (which deals with
regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider
concerned:
(c) a written direction requiring it to make copies of each of
those reports or extracts, together with other relevant material
(if any) specified in the direction, available for inspection and
purchase by the public by such times as are ascertained in
accordance with the direction; or
(d) a written direction requiring it to make copies of each of
those reports or extracts, together with other relevant material
(if any) specified in the direction, available for inspection and
purchase:
(i) by such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in
the direction;
by such times as are ascertained in accordance with the
direction.
Note 1: For example, a direction under paragraph (2)(c) could require that
each report in a particular series of quarterly reports be made available
by the 28th day after the end of the quarter to which the report relates.
Note 2: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
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Section 151BUC
Competition and Consumer Act 2010 231
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) In the case of the first report in the series (or extracts from that
report), the applicable time ascertained in accordance with a
direction under subsection (2) must be later than the 28th day after
the day on which the direction was given.
(4) A direction under paragraph (2)(d) is also taken to require the
carrier or carriage service provider concerned to take reasonable
steps to inform the persons who inspect or purchase copies of the
report or extracts of the terms and conditions (if any) that are
specified in the direction.
Criteria for giving direction
(5) In deciding whether to give a direction under subsection (2), the
Commission must have regard to:
(a) the legitimate commercial interests of the carrier or carriage
service provider concerned; and
(b) such other matters as the Commission considers relevant.
Consultation before giving direction
(6) The Commission must not give the carrier or carriage service
provider concerned a direction under subsection (2) unless the
Commission has first:
(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the direction; and
(ii) inviting the carrier or carriage service provider to make
a submission to the Commission on the draft by a
specified time limit; and
(b) considered any submission that was received within that time
limit.
The time limit specified in the notice must be at least 28 days after
the notice was given.
Direction to give information about availability of reports
(7) If the Commission gives the carrier or carriage service provider
concerned a direction under paragraph (2)(c), the Commission may
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Division 6 Record-keeping rules and disclosure directions
Section 151BUC
232 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
also give it a written direction requiring it to take such action as is
specified in the direction to inform the public that each of those
reports is, or extracts are, available for inspection and purchase.
(8) If the Commission gives the carrier or carriage service provider
concerned a direction under paragraph (2)(d), the Commission may
also give it a written direction requiring it to take such action as is
specified in the direction to inform the persons specified in the
paragraph (2)(d) direction that each of those reports is, or the
extracts are, available for inspection and purchase.
(9) A person must comply with a direction under subsection (7) or (8).
Reasonable charge
(10) The price charged by the carrier or carriage service provider
concerned for the purchase of a copy of the report or extracts and
the other material (if any) must not exceed the reasonable costs
incurred by the carrier or carriage service provider concerned in
making the copy of the report or extracts and the other material (if
any) available for purchase.
Compliance with terms and conditions
(11) If, in accordance with a direction under paragraph (2)(d), a person
inspects or purchases a copy of the report or extracts, the person
must comply with the terms and conditions (if any) that are
specified in the direction.
Offences
(12) A person who contravenes subsection (9) commits an offence
punishable on conviction by a fine not exceeding 20 penalty units.
(13) A person who contravenes subsection (11) commits an offence
punishable on conviction by a fine not exceeding 100 penalty units.
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Section 151BUD
Competition and Consumer Act 2010 233
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151BUD Exemption of reports from access requirements
Full exemption
(1) The Commission may, by legislative instrument, make a
determination exempting specified reports from the scope of
sections 151BUA, 151BUB and 151BUC, either:
(a) unconditionally; or
(b) subject to such conditions (if any) as are specified in the
determination.
The determination has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(2) If all of the information contained in a report (the first report) is, or
is to be, set out in a report under Division 12A, the first report is
exempt from the scope of sections 151BUA, 151BUB and
151BUC.
Partial exemption
(3) The Commission may, by legislative instrument, make a
determination that specified information is exempt information for
the purposes of this section, either:
(a) unconditionally; or
(b) subject to such conditions (if any) as are specified in the
determination.
The determination has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(4) If some, but not all, of the information contained in a report is, or is
to be, set out in a report under Division 12A, so much of the
information as is, or is to be, set out in the Division 12A report is
exempt information for the purposes of this section.
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Section 151BUDA
234 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(5) If a report contains exempt information, sections 151BUA,
151BUB and 151BUC apply as if:
(a) the exempt information were not part of the report; and
(b) so much of the report as does not consist of the exempt
information were a report in its own right.
151BUDA Commission gives access to Ministerially-directed reports
(1) This section applies to a particular Ministerially-directed report
given to the Commission by a carrier, or a carriage service
provider, in accordance with the record-keeping rules.
Public access
(2) The Commission:
(a) may make:
(i) copies of the report or copies of extracts from the report;
and
(ii) such other relevant material (if any) as the Commission
determines;
available to the public; and
(b) may also give a written direction to the carrier or provider
requiring it to take such action as is specified in the direction
to inform the public, or such persons as are specified in the
direction, that the report is, or the extracts are, so available.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
Limited access
(3) The Commission may make:
(a) copies of the report or copies of extracts from the report; and
(b) such other relevant material (if any) as the Commission
determines;
available:
(c) to particular persons; and
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Section 151BUDA
Competition and Consumer Act 2010 235
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(d) on such terms and conditions (if any) as the Commission
determines.
(4) If subsection (3) applies, the Commission must take reasonable
steps to inform the persons who access copies of the report or
extracts of the terms and conditions (if any) on which the copies
are available.
(5) If, in accordance with subsection (3), a person accesses a copy of
the report or extracts, the person must comply with the terms and
conditions (if any) on which the copy is available.
Offences
(6) A person commits an offence if:
(a) the person is subject to a direction under paragraph (2)(b);
and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(7) A person commits an offence if:
(a) the person is subject to a requirement under subsection (5);
and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(8) The Commission may only exercise a power under this section as
required by a direction in force under section 151BUAA.
Application of section 151BUA
(9) This section does not limit section 151BUA.
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Section 151BUDB
236 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
151BUDB Carrier or carriage service provider gives access to
Ministerially-directed reports
(1) This section applies to a Ministerially-directed report prepared by a
carrier, or a carriage service provider, in accordance with the
record-keeping rules.
Disclosure direction
(2) The Commission may give the carrier or provider:
(a) a written direction requiring it to make copies of the report or
copies of particular extracts from the report, together with
other relevant material (if any) specified in the direction,
available:
(i) to the public; and
(ii) in the manner specified in the direction; and
(iii) as soon as practicable after the end of the period
specified in the direction; or
(b) a written direction requiring it to make copies of the report or
copies of particular extracts from the report, together with
other relevant material (if any) specified in the direction,
available:
(i) to such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in
the direction; and
(iii) in the manner specified in the direction; and
(iv) as soon as practicable after the end of the period
specified in the direction.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
(3) A direction under paragraph (2)(b) is also taken to require the
carrier or provider to take reasonable steps to inform the persons
who access the copies of the report or extracts of the terms and
conditions (if any) that are specified in the direction.
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Section 151BUDB
Competition and Consumer Act 2010 237
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Direction to give information about availability of report
(4) If the Commission gives the carrier or provider a direction under
paragraph (2)(a), the Commission may also give it a written
direction requiring it to take such action as is specified in the
direction to inform the public:
(a) that the report is, or extracts are, available; and
(b) of the way in which the report or extracts may be accessed.
(5) If the Commission gives the carrier or provider a direction under
paragraph (2)(b), the Commission may also give it a written
direction requiring it to take such action as is specified in the
direction to inform the persons specified in the paragraph (2)(b)
direction that:
(a) the report is, or the extracts are, available; and
(b) of the way in which the report or extracts may be accessed.
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a person
accesses a copy of the report or extracts, the person must comply
with the terms and conditions (if any) that are specified in the
direction.
Offences
(7) A person commits an offence if:
(a) the person is subject to a direction under subsection (4) or
(5); and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(8) A person commits an offence if:
(a) the person is subject to a requirement under subsection (6);
and
(b) the person does an act or omits to do an act; and
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Section 151BUDC
238 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(9) The Commission may only exercise a power under this section as
required by a direction in force under section 151BUAA.
Application of section 151BUB
(10) This section does not limit section 151BUB.
Application of section 151BUDC
(11) Section 151BUDC does not limit this section.
151BUDC Carrier or carriage service provider gives access to
Ministerially-directed periodic reports
(1) This section applies to a particular series of Ministerially-directed
periodic reports that are required to be prepared by a carrier, or a
carriage service provider, in accordance with the record-keeping
rules.
Disclosure direction
(2) The Commission may give the carrier or provider:
(a) a written direction requiring it to make copies of each of the
reports in that series or copies of particular extracts from
each of the reports in that series, together with other relevant
material (if any) specified in the direction, available:
(i) to the public; and
(ii) in the manner specified in the direction; and
(iii) by such times as are ascertained in accordance with the
direction; or
(b) a written direction requiring it to make copies of each of the
reports in the series or copies of particular extracts from each
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Section 151BUDC
Competition and Consumer Act 2010 239
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
of the reports in the series, together with other relevant
material (if any) specified in the direction, available:
(i) to such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in
the direction; and
(iii) in the manner specified in the direction; and
(iv) by such times as are ascertained in accordance with the
direction.
Note 1: For example, a direction under paragraph (2)(a) could require that
each report in a particular series of quarterly reports be made available
by the 28th day after the end of the quarter to which the report relates.
Note 2: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
(3) A direction under paragraph (2)(b) is also taken to require the
carrier or provider to take reasonable steps to inform the persons
who access the copies of the report or extracts of the terms and
conditions (if any) that are specified in the direction.
Direction to give information about availability of report
(4) If the Commission gives the carrier or provider a direction under
paragraph (2)(a), the Commission may also give it a written
direction requiring it to take such action as is specified in the
direction to inform the public:
(a) that each of those reports is, or extracts are, available; and
(b) of the way in which those reports or extracts may be
accessed.
(5) If the Commission gives the carrier or provider a direction under
paragraph (2)(b), the Commission may also give it a written
direction requiring it to take such action as is specified in the
direction to inform the persons specified in the paragraph (2)(b)
direction:
(a) that each of those reports is, or extracts are, available; and
(b) of the way in which those reports or extracts may be
accessed.
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Section 151BUDC
240 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a person
accesses a copy of the report or extracts, the person must comply
with the terms and conditions (if any) that are specified in the
direction.
Offences
(7) A person commits an offence if:
(a) the person is subject to a direction under subsection (4) or
(5); and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(8) A person commits an offence if:
(a) the person is subject to a requirement under subsection (6);
and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(9) The Commission may only exercise a power under this section as
required by a direction in force under section 151BUAA.
Application of section 151BUC
(10) This section does not limit section 151BUC.
Application of section 151BUDB
(11) Section 151BUDB does not limit this section.
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Section 151BUE
Competition and Consumer Act 2010 241
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
151BUE Access via the internet
If the Commission, a carrier or a carriage service provider is
required under this Division to make copies of a report, extracts or
other material available for inspection and purchase, the
Commission, carrier or carriage service provider, as the case may
be, may comply with that requirement by making the report,
extracts or other material available for inspection and purchase on
the internet.
151BUF Self-incrimination
(1) An individual is not excused from giving a report under the
record-keeping rules, or from making a report or extracts available
under this Division, on the ground that the report or extracts might
tend to incriminate the individual or expose the individual to a
penalty.
(2) However:
(a) giving the report or making the report or extracts available;
or
(b) any information, document or thing obtained as a direct or
indirect consequence of giving the report or making the
report or extracts available;
is not admissible in evidence against the individual in:
(c) criminal proceedings other than proceedings under, or arising
out of, section 151BV; or
(d) proceedings under section 151BY for recovery of a pecuniary
penalty in relation to a contravention of a disclosure
direction.
151BV Incorrect records
(1) A person must not, in purported compliance with a requirement
imposed by the record-keeping rules, make a record of any matter
or thing in such a way that it does not correctly record the matter or
thing.
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Section 151BV
242 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) A person who contravenes subsection (1) commits an offence
punishable on conviction by imprisonment for a term not
exceeding 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
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Section 151BW
Competition and Consumer Act 2010 243
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 7—Enforcement of the competition rule, tariff
filing directions, record-keeping rules and
disclosure directions
151BW Person involved in a contravention of the competition rule, a
tariff filing direction, a record-keeping rule or a
disclosure direction
A reference in this Division to a person involved in a contravention
of the competition rule, a tariff filing direction, a record-keeping
rule or a disclosure direction is a reference to a person who:
(a) has aided, abetted, counselled or procured the contravention;
or
(b) has induced, whether by threats or promises or otherwise, the
contravention; or
(c) has been in any way, directly or indirectly, knowingly
concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
151BX Pecuniary penalties for breach of the competition rule, a
tariff filing direction, a record-keeping rule or a
disclosure direction
(1) If the Federal Court is satisfied that a person:
(a) has contravened the competition rule, a tariff filing direction,
a record-keeping rule or a disclosure direction; or
(b) has attempted to contravene the competition rule, a tariff
filing direction, a record-keeping rule or a disclosure
direction; or
(c) has been involved in a contravention of the competition rule,
a tariff filing direction, a record-keeping rule or a disclosure
direction;
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Section 151BX
244 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
the Court may order the person to pay to the Commonwealth such
pecuniary penalty, in respect of each contravention, as the Court
determines to be appropriate.
(2) In determining a pecuniary penalty, the Court must have regard to
all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a
result of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in
proceedings under this Act to have engaged in any similar
conduct.
(3) The pecuniary penalty payable under subsection (1) by a body
corporate is not to exceed:
(a) in the case of a contravention of the competition rule—for
each contravention:
(i) if the contravention continued for more than 21 days—
the sum of $31 million and $3 million for each day in
excess of 21 that the contravention continued; or
(ii) otherwise—the sum of $10 million and $1 million for
each day that the contravention continued; or
(b) in the case of a contravention of a tariff filing direction—$10
million for each contravention; or
(c) in the case of a contravention of a record-keeping rule or of a
disclosure direction—$250,000 for each contravention.
(4) The pecuniary penalty payable under subsection (1) by a person
other than a body corporate is not to exceed:
(a) in the case of a contravention of a record-keeping rule or of a
disclosure direction—$50,000 for each contravention; or
(b) in any other case—$500,000 for each contravention.
(5) If conduct constitutes a contravention of:
(a) 2 or more tariff filing directions; or
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Section 151BY
Competition and Consumer Act 2010 245
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) 2 or more record-keeping rules; or
(c) 2 or more disclosure directions;
proceedings may be instituted under this Act against a person in
relation to the contravention of any one or more of the tariff filing
directions, record-keeping rules or disclosure directions. However,
the person is not liable to more than one pecuniary penalty under
this section in respect of the same conduct.
(6) If a person’s conduct gives rise to a liability to pay a pecuniary
penalty under:
(a) this Part; and
(b) Part VI;
proceedings relating to the conduct may be instituted against the
person under this Part or under Part VI. However, the person is not
liable to more than one pecuniary penalty in respect of the same
conduct.
151BY Civil action for recovery of pecuniary penalties
(1) The Commission may institute a proceeding in the Federal Court
for the recovery on behalf of the Commonwealth of a pecuniary
penalty referred to in section 151BX.
(2) A proceeding under subsection (1) may be commenced within 6
years after the contravention.
(3) A proceeding under subsection (1) must not be instituted in relation
to:
(a) a contravention of the competition rule; or
(b) attempting to contravene the competition rule; or
(c) aiding, abetting, counselling or procuring a person to
contravene the competition rule; or
(d) inducing, or attempting to induce, whether by threats,
promises or otherwise, a person to contravene the
competition rule; or
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Section 151BZ
246 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(e) being in any way, directly or indirectly, knowingly concerned
in, or party to, a contravention by a person of the competition
rule; or
(f) conspiring with others to contravene the competition rule;
unless:
(g) in a case where paragraph (a) applies—the alleged conduct is
of a kind dealt with in a Part A competition notice that was in
force in relation to the carrier or carriage service provider
concerned at the time when the alleged conduct occurred; or
(h) in any other case—the alleged conduct is related to conduct
of a kind dealt with in a Part A competition notice that was in
force in relation to the carrier or carriage service provider
concerned at the time when the alleged conduct occurred.
151BZ Criminal proceedings not to be brought for contraventions of
the competition rule, tariff filing directions,
record-keeping rules or disclosure directions
(1) Criminal proceedings do not lie against a person only because the
person:
(a) has contravened the competition rule, a tariff filing direction,
a record-keeping rule or a disclosure direction; or
(b) has attempted to contravene the competition rule, a tariff
filing direction, a record-keeping rule or a disclosure
direction; or
(c) has been involved in a contravention of the competition rule,
a tariff filing direction, a record-keeping rule or a disclosure
direction.
(2) To avoid doubt, this section does not affect the operation of
Division 137 of the Criminal Code in respect of tariff information.
(3) To avoid doubt, subsection (1) does not apply in relation to
proceedings for an offence against section 44ZZRF or 44ZZRG.
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Section 151CA
Competition and Consumer Act 2010 247
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
151CA Injunctions
(1) Subject to subsection (3), if the Federal Court is satisfied that a
person has engaged, or is proposing to engage, in conduct that
constitutes or would constitute:
(a) a contravention of the competition rule, a tariff filing
direction, a record-keeping rule or a disclosure direction; or
(b) attempting to contravene the competition rule, a tariff filing
direction, a record-keeping rule or a disclosure direction; or
(c) aiding, abetting, counselling or procuring a person to
contravene the competition rule, a tariff filing direction, a
record-keeping rule or a disclosure direction; or
(d) inducing, or attempting to induce, whether by threats,
promises or otherwise, a person to contravene the
competition rule, a tariff filing direction, a record-keeping
rule or a disclosure direction; or
(e) being in any way, directly or indirectly, knowingly concerned
in, or party to, the contravention by a person of the
competition rule, a tariff filing direction, a record-keeping
rule or a disclosure direction; or
(f) conspiring with others to contravene the competition rule, a
tariff filing direction, a record-keeping rule or a disclosure
direction;
the Court may, on the application of the Commission or any other
person, grant an injunction in such terms as the Court determines to
be appropriate.
(2) If:
(a) an application for an injunction under subsection (1) has been
made; and
(b) the Court determines it to be appropriate to do so;
the Court may grant an injunction by consent of all the parties to
the proceedings, whether or not the Court is satisfied that a person
has engaged, or is proposing to engage, in conduct of a kind
mentioned in subsection (1).
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Section 151CA
248 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) If, in the opinion of the Court it is desirable to do so, the Court may
grant an interim injunction pending determination of an application
under subsection (1).
(4) The Court may rescind or vary an injunction granted under
subsection (1) or (3).
(5) The power of the Court to grant an injunction restraining a person
from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends
to engage again, or to continue to engage, in conduct of that
kind; and
(b) whether or not the person has previously engaged in conduct
of that kind; and
(c) whether or not there is an imminent danger of substantial
damage to any person if the first-mentioned person engages
in conduct of that kind.
(6) The power of the Court to grant an injunction requiring a person to
do an act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends
to refuse or fail again, or to continue to refuse or fail, to do
that act or thing; and
(b) whether or not the person has previously refused or failed to
do that act or thing; and
(c) whether or not there is an imminent danger of substantial
damage to any person if the first-mentioned person refuses or
fails to do that act or thing.
(7) If the Commission makes an application to the Court for the grant
of an injunction under this section, the Court must not require the
applicant or any other person, as a condition of granting an interim
injunction, to give any undertakings as to damages.
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Section 151CB
Competition and Consumer Act 2010 249
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
151CB Orders to disclose information or publish an
advertisement—breach of the competition rule
(1) If, on the application of the Commission, the Federal Court is
satisfied that a person (the first person) has engaged in conduct
constituting a contravention of the competition rule, the Court may
make either or both of the following orders:
(a) an order requiring the first person, or a person involved in the
contravention, to disclose to the public, or to one or more
specified persons, in such manner as is specified in the order,
specified information, where the information is:
(i) in the possession of the first person; or
(ii) information to which the first person has access;
(b) an order requiring the first person, or a person involved in the
contravention, to publish, at the person’s own expense, in a
manner and at times specified in the order, advertisements
the terms of which are specified in, or are to be determined in
accordance with, the order.
(2) Subsection (1) does not limit section 151CA.
(3) An application under subsection (1) must not be made in relation to
a contravention of the competition rule unless the alleged conduct
is of a kind dealt with in a Part A competition notice that was in
force in relation to the carrier or carriage service provider
concerned at the time when the alleged conduct occurred.
151CC Actions for damages—breach of the competition rule
(1) A person who suffers loss or damage by conduct of another person
that was done in contravention of the competition rule may recover
the amount of the loss or damage by action against:
(a) that other person; or
(b) any person involved in the contravention.
(2) An action under subsection (1) may be commenced at any time
within 3 years after the date on which the cause of action accrued.
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Section 151CD
250 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) An action under subsection (1) must not be brought in relation to a
contravention of the competition rule unless the alleged conduct is
of a kind dealt with in a Part A competition notice that was in force
in relation to the carrier or carriage service provider concerned at
the time when the alleged conduct occurred.
151CD Finding of fact in proceedings to be evidence
(1) This section applies to a finding of any fact by a court made in
proceedings under section 151BY, 151CA or 151CB in which a
person has been found to have contravened, or to have been
involved in a contravention of, the competition rule or a tariff filing
direction.
(2) In:
(a) a proceeding under section 151CC against the person; or
(b) an application under subsection 151CE(1) for an order
against the person;
the finding:
(c) is prima facie evidence of that fact; and
(d) may be proved by production of a document under the seal of
the court from which the finding appears.
151CE Other orders—compensation for breach of the competition
rule
(1) If, in a proceeding instituted under this Division in relation to a
contravention of the competition rule, the Federal Court finds that
a person who is a party to the proceeding has suffered, or is likely
to suffer, loss or damage by conduct of another person that was
engaged in in contravention of the competition rule, the Court may,
on the application of a party to the proceedings, make such orders
as it thinks appropriate against:
(a) the person who engaged in the conduct; or
(b) a person who was involved in the contravention;
if the Court considers that the orders concerned will:
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Section 151CE
Competition and Consumer Act 2010 251
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(c) compensate the first-mentioned person, in whole or in part,
for the loss or damage; or
(d) prevent or reduce the loss or damage.
(2) The Federal Court may make an order under subsection (1)
whether or not it:
(a) grants an injunction under section 151CA; or
(b) makes an order under section 151BX, 151CB or 151CC.
(3) Subsection (1) does not, by implication, limit section 151CA.
(4) The Federal Court’s orders include, but are not limited to, the
following:
(a) an order declaring the whole or any part of:
(i) a contract made between the person who suffered, or is
likely to suffer, the loss or damage and the person who
engaged in the conduct or a person who was involved in
the contravention constituted by the conduct; or
(ii) a collateral arrangement relating to such a contract;
to be void and, if the Court thinks fit, to have been void ab
initio or at all times on and after such date before the date on
which the order is made as is specified in the order;
(b) an order varying such a contract or arrangement in such
manner as is specified in the order and, if the Court thinks fit,
declaring the contract or arrangement to have had effect as so
varied on and after such date before the date on which the
order is made as is so specified;
(c) an order refusing to enforce any or all of the provisions of
such a contract or collateral arrangement;
(d) an order directing:
(i) the person who engaged in the conduct; or
(ii) a person who was involved in the contravention
constituted by the conduct;
to refund money or return property to the person who
suffered the loss or damage;
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Section 151CF
252 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(e) an order directing:
(i) the person who engaged in the conduct; or
(ii) a person who was involved in the contravention
constituted by the conduct;
to pay to the person who suffered the loss or damage the
amount of the loss or damage;
(f) an order directing:
(i) the person who engaged in the conduct; or
(ii) a person who was involved in the contravention
constituted by the conduct;
at the person’s own expense, to supply specified goods or
services to the person who suffered, or is likely to suffer, the
loss or damage.
(5) An application under subsection (1) must not be made in relation to
a contravention of the competition rule unless the alleged conduct
is of a kind dealt with in a Part A competition notice that was in
force in relation to the carrier or carriage service provider
concerned at the time when the alleged conduct occurred.
(6) The powers conferred on the Federal Court by this section in
relation to a contract do not affect any powers that any other court
may have in relation to the contract in proceedings instituted in that
other court in respect of the contract.
151CF Conduct by directors, employees or agents
Part 32 of the Telecommunications Act 1997 applies in relation to
proceedings under this Division in a corresponding way to the way
in which it applies to proceedings under that Act (as defined by
section 574 of that Act).
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Section 151CG
Competition and Consumer Act 2010 253
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 8—Disclosure of documents by Commission
151CG Disclosure of documents by Commission
(1) This section applies to a person if:
(a) the person makes an application to the Commission for an
exemption order; or
(b) under section 151BG, the Commission gives the person an
opportunity to make a submission to the Commission about a
proposal to revoke an exemption order; or
(c) the Commission institutes a proceeding against the person
under Division 7.
(2) The Commission must, at the request of the person and on payment
of the fee (if any) specified in the regulations, give to the person:
(a) a copy of each document that has been given to, or obtained
by, the Commission in connection with the matter to which
the application, proposal or proceeding relates and tends to
establish the person’s case; and
(b) a copy of any other document in the possession of the
Commission that comes to the attention of the Commission
in connection with the matter and to which the application,
proposal or proceeding relates and tends to establish the
person’s case;
so long as the document is not obtained from the person or
prepared by an officer or professional adviser of the Commission.
(3) If the Commission does not comply with a request under
subsection (2), the Federal Court must, upon application by the
person, make an order directing the Commission to comply with
the request. This rule has effect subject to subsection (4).
(4) The Federal Court may refuse to make an order under
subsection (3) about a document or a part of a document if the
Federal Court considers it inappropriate to make the order on the
grounds that the disclosure of the contents of the document or part
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Section 151CG
254 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
of the document would prejudice any person, or for any other
reason.
(5) Before the Federal Court gives a decision on an application under
subsection (3), the Federal Court may require any documents to be
produced to it for inspection.
(6) An order under this section may be expressed to be subject to such
conditions as are specified in the order.
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Treatment of partnerships Division 9
Section 151CH
Competition and Consumer Act 2010 255
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 9—Treatment of partnerships
151CH Treatment of partnerships
This Part applies to a partnership as if the partnership was a person,
but it applies with the following changes:
(a) obligations that would be imposed on the partnership are
imposed instead on each partner, but may be discharged by
any of the partners;
(b) any offence against this Part that would otherwise be
committed by the partnership is taken to have been
committed by each partner who:
(i) aided, abetted, counselled or procured the relevant act or
omission; or
(ii) was in any way knowingly concerned in, or party to, the
relevant act or omission (whether directly or indirectly
and whether by any act or omission of the partner).
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Division 10 Review of decisions
Section 151CI
256 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 10—Review of decisions
151CI Review by Tribunal
(1) If the Commission makes a decision under section 151BA to refuse
to make an exemption order relating to conduct of a person, the
person may apply to the Tribunal for a review of the decision.
(2) If the Commission makes a decision under section 151BG to
revoke an exemption order relating to conduct of a person, the
person may apply to the Tribunal for a review of the decision.
(3) If the Commission makes a decision under section 151BQ to make
information obtained from a person available for inspection and
purchase, the person may apply to the Tribunal for a review of the
decision.
(3A) If the Commission:
(a) makes a decision under section 151BUA to make a report
obtained from a person, or an extract from such a report,
available for inspection and purchase; or
(b) makes a decision under section 151BUB or 151BUC to give
a person a written direction to make a report or extract
available for inspection and purchase;
the person may apply to the Tribunal for a review of the decision.
(4) An application under this section for a review of a decision must
be:
(a) in writing; and
(b) in the case of an application under subsection (1) or (2)—
made within 21 days after the Commission made the
decision; and
(c) in the case of an application under subsection (3)—made
within 7 days after the Commission made the decision; and
(d) in the case of an application under subsection (3A)—made
within 28 days after the Commission made the decision.
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Section 151CJ
Competition and Consumer Act 2010 257
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(5) If the Tribunal receives an application under this section for a
review of a decision, the Tribunal must review the decision.
151CJ Functions and powers of Tribunal
Decision on review
(1) On a review of a decision of the Commission of a kind mentioned
in section 151CI, the Tribunal may make a decision:
(a) in any case—affirming the Commission’s decision; or
(b) in the case of a review of a decision of the Commission under
section 151BA refusing to make an exemption order—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, making an
exemption order; or
(c) in the case of a review of a decision of the Commission under
section 151BG to revoke an exemption order—setting aside
the Commission’s decision; or
(d) in the case of a review of a decision of the Commission under
section 151BQ, 151BUA, 151BUB or 151BUC—setting
aside or varying the Commission’s decision;
and, for the purposes of the review, the Tribunal may perform all
the functions and exercise all the powers of the Commission.
(2) A decision by the Tribunal:
(a) affirming a decision of the Commission; or
(b) setting aside a decision of the Commission; or
(c) made in substitution for a decision of the Commission; or
(d) varying a decision of the Commission;
is taken, for the purposes of this Act (other than this Division), to
be a decision of the Commission.
Conduct of review
(3) For the purposes of a review by the Tribunal, the member of the
Tribunal presiding at the review may require the Commission to
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Section 151CK
258 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
give such information, make such reports and provide such other
assistance to the Tribunal as the member specifies.
(4) For the purposes of a review, the Tribunal may have regard to any
information given, documents produced or evidence given to the
Commission in connection with the making of the decision to
which the review relates.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
151CK Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the
Tribunal of a decision of the Commission of a kind mentioned in
section 151CI.
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Reviews of competitive safeguards within the telecommunications industry Division 11
Section 151CL
Competition and Consumer Act 2010 259
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 11—Reviews of competitive safeguards within the
telecommunications industry
151CL Reviews of competitive safeguards within the
telecommunications industry
(1) The Commission must review, and report each financial year to the
Minister on, competitive safeguards within the telecommunications
industry, including:
(a) matters relating to the operation of this Part and Part XIC;
and
(b) such other matters relating to competition in the
telecommunications industry as the Commission thinks
appropriate.
(2) The Commission must give a report under subsection (1) to the
Minister as soon as practicable after the end of the financial year
concerned.
(3) The Commission must, if directed in writing to do so by the
Minister, review, and report to the Minister on, specified matters
relating to competitive safeguards within the telecommunications
industry.
(4) The Commission must give a report under subsection (3) to the
Minister before the end of the period specified in the direction.
(5) The Minister must cause a copy of a report under this section to be
laid before each House of the Parliament within 15 sitting days of
that House after receiving the report.
(6) This section applies to a financial year ending on or after 30 June
1998.
(7) In this section:
telecommunications industry has the same meaning as in the
Telecommunications Act 1997.
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Division 12 Monitoring of telecommunications charges paid by consumers
Section 151CM
260 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 12—Monitoring of telecommunications charges
paid by consumers
151CM Monitoring of telecommunications charges paid by
consumers
(1) The Commission must monitor, and report each financial year to
the Minister on:
(a) charges paid by consumers for the following goods and
services:
(i) listed carriage services;
(ii) goods for use in connection with a listed carriage
service;
(iii) services for use in connection with a listed carriage
service; and
(b) the adequacy of Telstra’s compliance with Part 9 of the
Telecommunications (Consumer Protection and Service
Standards) Act 1999 (which deals with price control
arrangements for Telstra).
(2) The Commission must give a report under subsection (1) to the
Minister as soon as practicable after the end of the financial year
concerned.
(3) The Minister must cause a copy of a report under subsection (1) to
be laid before each House of the Parliament within 15 sitting days
of that House after receiving the report.
(4) This section applies to a financial year ending on or after 30 June
1998.
(5) In this section:
listed carriage service has the same meaning as in the
Telecommunications Act 1997.
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Reports about competition in the telecommunications industry Division 12A
Section 151CMA
Competition and Consumer Act 2010 261
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Division 12A—Reports about competition in the
telecommunications industry
151CMA Public reports about competition in the
telecommunications industry
(1) The Commission must monitor, and report to the Minister on, such
matters relating to competition in the telecommunications industry
as are specified in a determination made by the Minister for the
purposes of this subsection.
Note: For examples of matters that may be specified in a determination
under subsection (1), see section 151CMC.
(2) Reports under subsection (1) are to be given to the Minister in
respect of such regular intervals as are specified in a determination
made by the Minister for the purposes of this subsection.
(3) Reports under subsection (1) must comply with such requirements
in relation to the protection of confidential information as are
specified in a determination made by the Minister for the purposes
of this subsection. For this purpose, information is confidential
information if, and only if, the publication of the information
could reasonably be expected to prejudice substantially the
commercial interests of a person.
(4) The Commission must give a report under subsection (1) to the
Minister as soon as practicable after the end of the regular interval
to which the report relates.
(5) The Minister must cause a copy of a report under subsection (1) to
be laid before each House of the Parliament within 15 sitting days
of that House after receiving the report.
(6) The Minister may, by legislative instrument, make a determination
for the purposes of subsection (1), (2) or (3).
(7) In this section:
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Division 12A Reports about competition in the telecommunications industry
Section 151CMB
262 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
telecommunications industry has the same meaning as in the
Telecommunications Act 1997.
151CMB Confidential reports about competition in the
telecommunications industry
(1) The Commission must monitor, and report to the Minister on, such
matters relating to competition in the telecommunications industry
as are specified in a determination made by the Minister for the
purposes of this subsection.
Note: For examples of matters that may be specified in a determination
under subsection (1), see section 151CMC.
(2) Reports under subsection (1) are to be given to the Minister in
respect of such regular intervals as are specified in a determination
made by the Minister for the purposes of this subsection.
(3) The Commission must give a report under subsection (1) to the
Minister as soon as practicable after the end of the regular interval
to which the report relates.
(4) The Minister may, by legislative instrument, make a determination
for the purposes of subsection (1) or (2).
(5) In this section:
telecommunications industry has the same meaning as in the
Telecommunications Act 1997.
151CMC Examples of matters that may be specified in a
determination under section 151CMA or 151CMB
The following are examples of matters that may be specified in a
determination made for the purposes of subsection 151CMA(1) or
151CMB(1):
(a) charges for:
(i) carriage services; or
(ii) goods for use in connection with a carriage service; or
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Section 151CMC
Competition and Consumer Act 2010 263
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(iii) services for use in connection with a carriage service;
(b) carriers’ and carriage service providers’ respective shares of
the total supply of:
(i) carriage services; or
(ii) goods for use in connection with a carriage service; or
(iii) services for use in connection with a carriage service;
(c) carriers’ and carriage service providers’ revenues relating to
their respective shares of the total supply of:
(i) carriage services; or
(ii) goods for use in connection with a carriage service; or
(iii) services for use in connection with a carriage service;
(d) other indicators (whether quantitative or qualitative) relating
to the supply of:
(i) carriage services; or
(ii) goods for use in connection with a carriage service; or
(iii) services for use in connection with a carriage service.
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Division 15 Voluntary undertakings given by Telstra
Section 151CQ
264 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 15—Voluntary undertakings given by Telstra
151CQ Voluntary undertakings given by Telstra
Scope
(1) This section applies if an undertaking given by Telstra is in force
under section 577A, 577C or 577E of the Telecommunications Act
1997.
Note 1: Section 577A of the Telecommunications Act 1997 deals with
undertakings about structural separation.
Note 2: Section 577C of the Telecommunications Act 1997 deals with
undertakings about hybrid fibre-coaxial networks.
Note 3: Section 577E of the Telecommunications Act 1997 deals with
undertakings about subscription television broadcasting licences.
Commission must have regard to Telstra’s conduct
(2) If Telstra has engaged, or is required to engage, in conduct in order
to comply with the undertaking, then, in performing a function, or
exercising a power, under this Part in relation to Telstra, the
Commission must have regard to the conduct to the extent that the
conduct is relevant.
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NBN corporations Division 16
Section 151DA
Competition and Consumer Act 2010 265
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Division 16—NBN corporations
151DA Authorised conduct—subsection 51(1)
Objects
(1) The objects of this section are:
(a) to promote the national interest in structural reform of the
telecommunications industry; and
(b) to promote uniform national pricing of eligible services
supplied by NBN corporations by authorising, for the
purposes of subsection 51(1), certain conduct engaged in by
NBN corporations.
Note 1: If conduct is authorised for the purposes of subsection 51(1), the
conduct is disregarded in deciding whether a person has contravened
Part IV.
Note 2: See also subsection 151AJ(10).
Authorised conduct—points of interconnection
(2) If:
(a) an NBN corporation is a carrier or carriage service provider;
and
(b) the NBN corporation:
(i) owns or controls one or more facilities; or
(ii) is a nominated carrier in relation to one or more
facilities; and
(c) the NBN corporation refuses to permit interconnection of
those facilities at a particular location with one or more
facilities of:
(i) a service provider; or
(ii) a utility; and
(d) the location is not a listed point of interconnection; and
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Section 151DA
266 Competition and Consumer Act 2010
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(e) the refusal is reasonably necessary to achieve uniform
national pricing of eligible services supplied by the NBN
corporation to service providers and utilities;
the refusal is authorised for the purposes of subsection 51(1).
Note: For listed point of interconnection, see section 151DB.
Authorised conduct—bundling of designated access services
(3) If:
(a) an NBN corporation is a carrier or carriage service provider;
and
(b) the NBN corporation:
(i) refuses to supply; or
(ii) refuses to offer to supply;
a designated access service to a service provider or utility
unless the service provider or utility acquires, or agrees to
acquire, one or more other designated access services (other
than voice telephony facilitation services) from the NBN
corporation; and
(c) the refusal is reasonably necessary to achieve uniform
national pricing of eligible services supplied by the NBN
corporation to service providers and utilities;
the refusal is authorised for the purposes of subsection 51(1).
Authorised conduct—uniform national pricing
(4) If an NBN corporation engages in conduct that is reasonably
necessary to achieve uniform national pricing of eligible services
supplied by the NBN corporation to service providers and utilities,
that conduct is authorised for the purposes of subsection 51(1).
Uniform national pricing
(5) For the purposes of this section, uniform national pricing of an
eligible service supplied, or offered to be supplied, by an NBN
corporation to service providers and utilities is achieved, if, and
only if, the price-related terms and conditions on which the NBN
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NBN corporations Division 16
Section 151DA
Competition and Consumer Act 2010 267
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corporation supplies, or offers to supply, the eligible service to
service providers and utilities are the same throughout Australia.
(6) For the purposes of this section, in determining whether there is
uniform national pricing of an eligible service supplied, or offered
to be supplied, by an NBN corporation, disregard any
discrimination by the NBN corporation against another person on
the grounds that the NBN corporation has reasonable grounds to
believe that the other person would fail, to a material extent, to
comply with the terms and conditions on which the NBN
corporation supplies, or on which the NBN corporation is
reasonably likely to supply, the eligible service.
(6A) Examples of grounds for believing as mentioned in subsection (6)
include:
(a) evidence that the other person is not creditworthy; and
(b) repeated failures by the other person to comply with the
terms and conditions on which the same or a similar eligible
service has been supplied (whether or not by the NBN
corporation).
(7) For the purposes of this section, in determining whether eligible
services are characterised as:
(a) the same eligible service; or
(b) different eligible services;
it is immaterial whether the services are supplied, or offered to be
supplied, using:
(c) the same facilities or kinds of facilities; or
(d) different facilities or kinds of facilities.
(8) For example, the same eligible service could be supplied, or
offered to be supplied, using:
(a) an optical fibre line; or
(b) terrestrial radiocommunications equipment; or
(c) a satellite.
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Section 151DA
268 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Definitions
(9) In this section:
access virtual circuit service means an eligible service that is
known as:
(a) an access virtual circuit service; or
(b) the access virtual circuit component of a fibre access service.
connectivity virtual circuit service means an eligible service that is
known as:
(a) a connectivity virtual circuit service; or
(b) the connectivity virtual circuit component of a fibre access
service.
designated access service means:
(a) an access virtual circuit service; or
(b) a connectivity virtual circuit service; or
(c) a network-network interface service; or
(d) a user network interface service; or
(e) a voice telephony facilitation service.
eligible service has the same meaning as in section 152AL.
listed point of interconnection has the meaning given by
section 151DB.
network-network interface service means an eligible service that is
known as:
(a) a network-network interface service; or
(b) the network-network interface component of a fibre access
service.
nominated carrier has the same meaning as in the
Telecommunications Act 1997.
point of interconnection means a location for the interconnection
of facilities.
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Section 151DA
Competition and Consumer Act 2010 269
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price-related terms and conditions means terms and conditions
relating to price or a method of ascertaining price.
service provider has the same meaning as in the
Telecommunications Act 1997.
special access undertaking has the same meaning as in Part XIC.
telecommunications industry has the same meaning as in the
Telecommunications Act 1997.
uniform national pricing has the meaning given by subsections (5)
and (6).
use, in relation to a facility, means use:
(a) in isolation; or
(b) in conjunction with one or more other things.
user network interface service means an eligible service that is
known as:
(a) a user network interface service; or
(b) the user network interface service component of a fibre
access service.
utility means:
(a) Airservices Australia; or
(b) a State or Territory transport authority; or
(c) a rail corporation (within the meaning of the National
Broadband Network Companies Act 2011); or
(d) an electricity supply body (within the meaning of that Act);
or
(e) a gas supply body (within the meaning of that Act); or
(f) a water supply body (within the meaning of that Act); or
(g) a sewerage services body (within the meaning of that Act); or
(h) a storm water drainage services body (within the meaning of
that Act); or
(i) a State or Territory road authority (within the meaning of that
Act).
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Section 151DB
270 Competition and Consumer Act 2010
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voice telephony facilitation service means a service that facilitates
the supply of a carriage service that is a carriage service for the
purpose of voice telephony.
151DB Listed points of interconnection
(1) The Commission:
(a) must prepare a written list setting out points of
interconnection; and
(b) may, by writing, vary that list.
(2) For the purposes of this Division, a point of interconnection
specified in a list in force under subsection (1) is a listed point of
interconnection.
(2A) The Commission must not vary a list under subsection (1) except
with the agreement of an NBN corporation.
(2B) Subsection (2A) ceases to have effect when the Communications
Minister makes a declaration under section 48 of the National
Broadband Network Companies Act 2011 that, in the
Communications Minister’s opinion, the national broadband
network should be treated as built and fully operational.
(2C) For the purposes of subsection (2B), Communications Minister
has the same meaning as in the National Broadband Network
Companies Act 2011.
(3) The Commission must publish on its website a copy of a list in
force under subsection (1).
(4) A list under subsection (1) is not a legislative instrument.
(5) A variation of a list under subsection (1) is not a legislative
instrument.
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Introduction Division 1
Section 152AA
Competition and Consumer Act 2010 271
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Part XIC—Telecommunications access regime
Division 1—Introduction
152AA Simplified outline
The following is a simplified outline of this Part:
• This Part sets out a telecommunications access regime.
• A carriage service, or a related service, supplied, or capable of being supplied, by a carrier (other than an NBN
corporation) or a carriage service provider (other than an
NBN corporation) is a declared service if:
(a) the Commission has declared the service to be a
declared service; or
(b) the service is supplied by the carrier or carriage
service provider, and a special access undertaking
given by the carrier or carriage service provider is
in operation in relation to the service.
• A carriage service, or a related service, supplied, or capable of being supplied, by an NBN corporation is a declared
service if:
(a) the Commission has declared the service to be a
declared service; or
(b) the NBN corporation has formulated a standard
form of access agreement that relates to access to
the service; or
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272 Competition and Consumer Act 2010
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(c) the service is supplied by the NBN corporation,
and a special access undertaking given by the NBN
corporation is in operation in relation to the
service.
• Carriers and carriage service providers who provide declared services are required to comply with standard access
obligations in relation to those services.
• The standard access obligations facilitate the provision of access to declared services by service providers in order that
service providers can provide carriage services and/or
content services.
• The terms and conditions on which carriers and carriage service providers are required to comply with the standard
access obligations are subject to agreement.
• If agreement cannot be reached, but the carrier or carriage service provider has given an access undertaking, the terms
and conditions are as set out in the access undertaking.
• If agreement cannot be reached, no access undertaking is in operation, but the Commission has made binding rules of
conduct, the terms and conditions are as specified in the
binding rules of conduct.
• If agreement cannot be reached, no access undertaking is in operation, and no binding rules of conduct have been made,
the terms and conditions are as specified in an access
determination made by the Commission.
• A carrier, carriage service provider or related body must not prevent or hinder the fulfilment of a standard access
obligation.
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Introduction Division 1
Section 152AB
Competition and Consumer Act 2010 273
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Note: Even though this section mentions binding rules of conduct, binding
rules of conduct may only be made if the Commission considers that
there is an urgent need to do so.
152AB Object of this Part
Object
(1) The object of this Part is to promote the long-term interests of
end-users of carriage services or of services provided by means of
carriage services.
Promotion of the long-term interests of end-users
(2) For the purposes of this Part, in determining whether a particular
thing promotes the long-term interests of end-users of either of the
following services (the listed services):
(a) carriage services;
(b) services supplied by means of carriage services;
regard must be had to the extent to which the thing is likely to
result in the achievement of the following objectives:
(c) the objective of promoting competition in markets for listed
services;
(d) the objective of achieving any-to-any connectivity in relation
to carriage services that involve communication between
end-users;
(e) the objective of encouraging the economically efficient use
of, and the economically efficient investment in:
(i) the infrastructure by which listed services are supplied;
and
(ii) any other infrastructure by which listed services are, or
are likely to become, capable of being supplied.
Subsection (2) limits matters to which regard may be had
(3) Subsection (2) is intended to limit the matters to which regard may
be had.
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274 Competition and Consumer Act 2010
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Promoting competition
(4) In determining the extent to which a particular thing is likely to
result in the achievement of the objective referred to in
paragraph (2)(c), regard must be had to the extent to which the
thing will remove obstacles to end-users of listed services gaining
access to listed services.
Subsection (4) does not limit matters to which regard may be had
(5) Subsection (4) does not, by implication, limit the matters to which
regard may be had.
Encouraging efficient use of infrastructure etc.
(6) In determining the extent to which a particular thing is likely to
result in the achievement of the objective referred to in
paragraph (2)(e), regard must be had to the following matters:
(a) whether it is, or is likely to become, technically feasible for
the services to be supplied and charged for, having regard to:
(i) the technology that is in use, available or likely to
become available; and
(ii) whether the costs that would be involved in supplying,
and charging for, the services are reasonable or likely to
become reasonable; and
(iii) the effects, or likely effects, that supplying, and
charging for, the services would have on the operation
or performance of telecommunications networks;
(b) the legitimate commercial interests of the supplier or
suppliers of the services, including the ability of the supplier
or suppliers to exploit economies of scale and scope;
(c) the incentives for investment in:
(i) the infrastructure by which the services are supplied;
and
(ii) any other infrastructure by which the services are, or are
likely to become, capable of being supplied.
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Section 152AC
Competition and Consumer Act 2010 275
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Subsection (6) does not limit matters to which regard may be had
(7) Subsection (6) does not, by implication, limit the matters to which
regard may be had.
Investment risks
(7A) For the purposes of paragraph (6)(c), in determining incentives for
investment, regard must be had to the risks involved in making the
investment.
(7B) Subsection (7A) does not, by implication, limit the matters to
which regard may be had.
Achieving any-to-any connectivity
(8) For the purposes of this section, the objective of any-to-any
connectivity is achieved if, and only if, each end-user who is
supplied with a carriage service that involves communication
between end-users is able to communicate, by means of that
service, with each other end-user who is supplied with the same
service or a similar service, whether or not the end-users are
connected to the same telecommunications network.
152AC Definitions
In this Part, unless the contrary intention appears:
access has the meaning given by section 152AF.
access agreement has the meaning given by section 152BE.
access determination means a determination under section 152BC.
access seeker has the meaning given by section 152AG.
access undertaking means a special access undertaking.
ACMA means the Australian Communications and Media
Authority.
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binding rules of conduct means rules made under
subsection 152BD(1).
carriage service has the same meaning as in the
Telecommunications Act 1997, and includes a proposed carriage
service.
carriage service provider has the same meaning as in the
Telecommunications Act 1997.
carrier has the same meaning as in the Telecommunications Act
1997.
carrier licence has the same meaning as in the
Telecommunications Act 1997.
category A standard access obligation has the meaning given by
section 152AR.
category B standard access obligation has the meaning given by
section 152AXB.
conditional-access customer equipment means customer
equipment that:
(a) consists of or incorporates a conditional access system that
allows a service provider to determine whether an end-user is
able to receive a particular service; and
(b) either:
(i) is for use in connection with the supply of a content
service; or
(ii) is of a kind specified in the regulations.
constitutional corporation means a corporation to which
paragraph 51(xx) of the Constitution applies.
content service has the same meaning as in the
Telecommunications Act 1997, and includes a proposed content
service.
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customer equipment has the same meaning as in the
Telecommunications Act 1997.
data processing device means any article or material (for example,
a disk) from which information is capable of being reproduced,
with or without the aid of any other article or device.
declared service has the meaning given by section 152AL.
designated superfast telecommunications network has the
meaning given by section 152AGA.
facility has the same meaning as in the Telecommunications Act
1997.
Federal Court means the Federal Court of Australia.
final access determination means an access determination other
than an interim access determination.
final migration plan has the same meaning as in the
Telecommunications Act 1997.
fixed principles provision has the meaning given by
section 152BCD.
fixed principles term or condition has the meaning given by
section 152CBAA.
interim access determination means an access determination that
is expressed to be an interim access determination.
Layer 2 bitstream service has the same meaning as in the
Telecommunications Act 1997.
Ministerial pricing determination means a determination under
section 152CH.
modifications includes additions, omissions and substitutions.
national broadband network has the same meaning as in the
National Broadband Network Companies Act 2011.
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NBN Co has the same meaning as in the National Broadband
Network Companies Act 2011.
NBN corporation has the same meaning as in the National
Broadband Network Companies Act 2011.
nominated carrier has the same meaning as in the
Telecommunications Act 1997.
person includes a partnership.
Note: Section 152EN sets out additional rules about partnerships.
Procedural Rules means Procedural Rules made under
section 152ELA.
quarter means a period of 3 months ending on 31 March, 30 June,
30 September or 31 December.
service provider has the same meaning as in the
Telecommunications Act 1997.
special access undertaking means an undertaking under
Subdivision B of Division 5.
standard access obligation means:
(a) a category A standard access obligation; or
(b) a category B standard access obligation.
superfast carriage service has the same meaning as in section 141
of the Telecommunications Act 1997.
telecommunications network has the same meaning as in the
Telecommunications Act 1997.
variation agreement has the meaning given by
subsection 152BE(3).
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Section 152AD
Competition and Consumer Act 2010 279
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152AD This Part binds the Crown
(1) The following provisions of this Act bind the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital
Territory and of the Northern Territory:
(a) this Part;
(b) the other provisions of this Act so far as they relate to this
Part.
(2) This Part does not make the Crown liable to be prosecuted for an
offence.
(3) The protection in subsection (2) does not apply to an authority of
the Commonwealth or an authority of a State or Territory.
152AE Extension to external Territories
(1) This Part, and the other provisions of this Act so far as they relate
to this Part, extend to each eligible Territory (within the meaning
of the Telecommunications Act 1997).
(2) The operation of this Part, and the other provisions of this Act so
far as they relate to this Part, in relation to Norfolk Island is not
affected by the amendments made by Division 1 of Part 1 of
Schedule 5 to the Territories Legislation Amendment Act 2016.
152AF Access
(1) A reference in this Part to access, in relation to a declared service,
is a reference to access by a service provider in order that the
service provider can provide carriage services and/or content
services.
(2) For the purposes of this Part, anything done by a carrier or carriage
service provider in fulfilment of a standard access obligation is
taken to be an aspect of access to a declared service.
(3) For the purposes of this Part, if an access determination imposes a
requirement on a carrier or carriage service provider as mentioned
in paragraph 152BC(3)(e), anything done by the carrier or provider
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in fulfilment of the requirement is taken to be an aspect of access
to a declared service.
152AG Access seeker
(1) This section sets out the circumstances in which a person is taken
to be an access seeker in relation to a declared service for the
purposes of this Part.
(2) A service provider is an access seeker in relation to a declared
service if the provider makes, or proposes to make, a request in
relation to that service under section 152AR (which deals with the
category A standard access obligations) or section 152AXB (which
deals with the category B standard access obligations), whether or
not:
(a) the request is refused; or
(b) the request is being complied with.
(3) A service provider is an access seeker in relation to a declared
service if:
(a) the provider wants access to the service; or
(b) the provider wants to change some aspect of the provider’s
existing access to the service; or
(c) the supplier of the service wants to change some aspect of the
provider’s existing access to the service.
152AGA Designated superfast telecommunications network
(1) For the purposes of this Part, if:
(a) a telecommunications network is used, or is proposed to be
used, to supply one or more Layer 2 bitstream services
wholly or principally to residential or small business
customers, or prospective residential or small business
customers, in Australia; and
(b) the network is used, or is proposed to be used, to supply a
superfast carriage service wholly or principally to residential
or small business customers, or prospective residential or
small business customers, in Australia; and
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(c) the network is not the national broadband network; and
(d) either:
(i) the network came into existence on or after 1 January
2011; or
(ii) the network was altered or upgraded on or after
1 January 2011 and, as a result of the alteration or
upgrade, the network became capable of being used to
supply a superfast carriage service to residential or
small business customers, or prospective residential or
small business customers, in Australia;
the network is a designated superfast telecommunications
network.
(2) A network is not a designated superfast telecommunications
network for the purposes of this Part if, under subsection 141A(1)
of the Telecommunications Act 1997, the network is exempt from
section 141 of that Act.
Note: Section 141 of the Telecommunications Act 1997 deals with the
supply of Layer 2 bitstream services.
Deemed networks
(3) For the purposes of this section, if:
(a) a telecommunications network is altered or upgraded on or
after 1 January 2011; and
(b) as a result of the alteration or upgrade, a part of the network
became capable of being used to supply a superfast carriage
service to residential or small business customers, or
prospective residential or small business customers, in
Australia;
then:
(c) that part is taken to be a network in its own right; and
(d) the network referred to in paragraph (c) is taken to have come
into existence on or after 1 January 2011.
(4) For the purposes of this section, if:
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(a) a telecommunications network is extended on or after
1 January 2011; and
(b) the extended part of the network is capable of being used to
supply a superfast carriage service to residential or small
business customers, or prospective residential or small
business customers, in Australia;
then:
(c) the extended part is taken to be a network in its own right;
and
(d) the network referred to in paragraph (c) is taken to have come
into existence on or after 1 January 2011.
(5) If:
(a) a part of the infrastructure of a telecommunications network
is situated in a particular area that is being or was developed
as a particular stage of a real estate development project
(within the ordinary meaning of that expression); and
(b) the network is extended to another area that is being, or is to
be, developed as another stage of the project;
subsection (4) does not apply to the extension.
(6) If:
(a) a telecommunications network was in existence immediately
before 1 January 2011; and
(b) the network is extended on or after 1 January 2011; and
(c) no point on the infrastructure of the extension is located more
than:
(i) 1 kilometre; or
(ii) if a longer distance is specified in the regulations—that
longer distance;
from a point on the infrastructure of the network as the
network stood immediately before 1 January 2011;
subsection (4) does not apply to the extension.
(7) The regulations may provide that subsection (4) does not apply to a
specified extension of a telecommunications network.
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Note: For specification by class, see the Acts Interpretation Act 1901.
Certain installations and connections are not taken to be an
extension, alteration or upgrade
(8) For the purposes of this section, if:
(a) a line is or was installed for the purposes of connecting
particular premises to a telecommunications network; and
(b) the installation of the line enables or enabled the occupier of
the premises to become a customer in relation to carriage
services supplied using the network; and
(c) the premises are in close proximity to a line that forms part of
the infrastructure of the network; and
(d) the network is capable of being used to supply a superfast
carriage service; and
(e) the network came into existence before 1 January 2011;
neither the installation of the line mentioned in paragraph (a), nor
the connection of the premises, is taken to be an extension,
alteration or upgrade of the network.
Small business customer
(9) For the purposes of this section, small business customer means:
(a) a customer who is a small business employer (within the
meaning of the Fair Work Act 2009); or
(b) a customer who:
(i) carries on a business; and
(ii) does not have any employees.
For the purposes of paragraph (a), it is to be assumed that each
reference in section 23 of the Fair Work Act 2009 to a national
system employer were a reference to an employer (within the
ordinary meaning of that expression).
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Alteration
(10) For the purposes of this section, an alteration of a
telecommunications network does not include an extension of the
network.
Upgrade
(11) For the purposes of this section, an upgrade of a
telecommunications network does not include an extension of the
network.
152AH Reasonableness—terms and conditions
(1) For the purposes of this Part, in determining whether particular
terms and conditions are reasonable, regard must be had to the
following matters:
(a) whether the terms and conditions promote the long-term
interests of end-users of carriage services or of services
supplied by means of carriage services;
(b) the legitimate business interests of the carrier or carriage
service provider concerned, and the carrier’s or provider’s
investment in facilities used to supply the declared service
concerned;
(c) the interests of persons who have rights to use the declared
service concerned;
(d) the direct costs of providing access to the declared service
concerned;
(e) the operational and technical requirements necessary for the
safe and reliable operation of a carriage service, a
telecommunications network or a facility;
(f) the economically efficient operation of a carriage service, a
telecommunications network or a facility.
(2) Subsection (1) does not, by implication, limit the matters to which
regard may be had.
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152AI When public inquiry commences
For the purposes of this Part, a public inquiry held by the
Commission under Part 25 of the Telecommunications Act 1997
commences when the Commission publishes the notice under
section 498 of that Act about the inquiry.
152AJ Interpretation of Part IIIA not affected by this Part
In determining the meaning of a provision of Part IIIA, the
provisions of this Part (other than section 152CK) are to be
ignored.
152AK Operation of Parts IV and VII not affected by this Part
This Part does not affect the operation of Parts IV and VII.
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Division 2—Declared services
152AL Declared services
Eligible service
(1) For the purposes of this section, an eligible service is:
(a) a listed carriage service (within the meaning of the
Telecommunications Act 1997); or
(b) a service that facilitates the supply of a listed carriage service
(within the meaning of that Act);
where the service is supplied, or is capable of being supplied, by a
carrier or a carriage service provider (whether to itself or to other
persons).
Declaration made after public inquiry—services not supplied by an
NBN corporation
(3) The Commission may, by written instrument, declare that a
specified eligible service is a declared service if:
(a) the Commission has held a public inquiry under Part 25 of
the Telecommunications Act 1997 about a proposal to make
the declaration; and
(b) the Commission has prepared a report about the inquiry
under section 505 of the Telecommunications Act 1997; and
(c) the report was published during the 180-day period ending
when the declaration was made; and
(d) the Commission is satisfied that the making of the
declaration will promote the long-term interests of end-users
of carriage services or of services provided by means of
carriage services.
Note: Eligible services may be specified by name, by inclusion in a specified
class or in any other way.
(3A) A declaration under subsection (3) does not apply to an eligible
service to the extent to which the service is supplied, or is capable
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of being supplied, by an NBN corporation (whether to itself or to
other persons).
(3B) Before commencing to hold a public inquiry under Part 25 of the
Telecommunications Act 1997 about a proposal to make a
declaration under subsection (3) in relation to an eligible service,
the Commission must consider whether to hold a public inquiry
under that Part about a proposal to make a declaration under
subsection (8A) in relation to the service.
Note: For combined public inquiries, see section 152AN.
Mandatory declaration—Layer 2 bitstream service
(3C) As soon as practicable after the commencement of this subsection,
the Commission must declare under subsection (3) that a specified
Layer 2 bitstream service is a declared service.
(3D) A declaration mentioned in subsection (3C) has no effect except to
the extent (if any) to which the Layer 2 bitstream service is
supplied using a designated superfast telecommunications network.
Note: For designated superfast telecommunications network, see
section 152AGA.
(3E) Paragraphs (3)(a) to (d) do not apply to a declaration mentioned in
subsection (3C).
(3F) If a Layer 2 bitstream service is declared as mentioned in
subsection (3C), that subsection does not, by implication, prevent
the Commission from making a declaration under subsection (3) in
relation to another Layer 2 bitstream service.
(3G) If a Layer 2 bitstream service is declared as mentioned in
subsection (3C), that subsection does not, by implication, prevent
the Commission from making another declaration under
subsection (3) in relation to the same Layer 2 bitstream service.
(3H) The other declaration mentioned in subsection (3G) has no effect
except to the extent (if any) to which the Layer 2 bitstream service
is supplied otherwise than by using a designated superfast
telecommunications network.
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Note: For designated superfast telecommunications network, see
section 152AGA.
Declaration has effect
(4) A declaration under subsection (3) has effect accordingly.
Gazettal of declaration
(5) A copy of a declaration under subsection (3) is to be published in
the Gazette.
Related services
(6) A reference in paragraph (1)(b) to a service that facilitates the
supply of a carriage service does not include a reference to the use
of intellectual property except to the extent that it is an integral but
subsidiary part of the first-mentioned service.
Services covered by special access undertakings—services not
supplied by an NBN corporation
(7) If:
(a) a person (other than an NBN corporation) gives the
Commission a special access undertaking in relation to a
service or a proposed service; and
(b) the undertaking is in operation; and
(c) the person supplies the service or proposed service (whether
to itself or to other persons);
the service supplied by the person is a declared service. To avoid
doubt, if the undertaking is subject to limitations, the service
supplied by the person is a declared service only to the extent to
which the service falls within the scope of the limitations.
(8) The Commission may declare a service under subsection (3) even
if the service is, to any extent, covered by subsection (7).
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Declaration made after public inquiry—services supplied by an
NBN corporation
(8A) The Commission may, by written instrument, declare that a
specified eligible service, to the extent to which the service is
supplied, or is capable of being supplied, by a specified NBN
corporation (whether to itself or to other persons), is a declared
service if:
(a) the Commission has held a public inquiry under Part 25 of
the Telecommunications Act 1997 about a proposal to make
the declaration; and
(b) the Commission has prepared a report about the inquiry
under section 505 of the Telecommunications Act 1997; and
(c) the report was published during the 180-day period ending
when the declaration was made; and
(d) the Commission is satisfied that the making of the
declaration will promote the long-term interests of end-users
of carriage services or of services provided by means of
carriage services.
If the Commission does so, the declared service relates to the NBN
corporation for the purposes of subsections 152AXB(2) and
152AXC(7).
Note: Eligible services may be specified by name, by inclusion in a specified
class or in any other way.
(8B) A declaration under subsection (8A) has effect accordingly.
(8C) A copy of a declaration under section (8A) is to be published in the
Gazette.
(8CA) Subsection (3C) does not, by implication, prevent a Layer 2
bitstream service from being declared under subsection (8A).
Services supplied by an NBN corporation—standard form of
access agreement
(8D) If:
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(a) an eligible service is supplied, or is capable of being
supplied, by an NBN corporation (whether to itself or to
other persons); and
(b) the NBN corporation is a carrier or a carriage service
provider; and
(c) the NBN corporation has formulated a standard form of
access agreement that relates to access to the service; and
(d) the standard form of access agreement is available on the
NBN corporation’s website;
then:
(e) the service, to the extent to which it is supplied, or is capable
of being supplied, by the NBN corporation (whether to itself
or to other persons) is a declared service; and
(f) the declared service relates to the NBN corporation for the
purposes of subsections 152AXB(2) and 152AXC(7).
Services covered by special access undertakings—services
supplied by an NBN corporation
(8E) If:
(a) an NBN corporation gives the Commission a special access
undertaking in relation to a service or a proposed service; and
(b) the undertaking is in operation; and
(c) the NBN corporation supplies the service or proposed service
(whether to itself or to other persons);
then:
(d) the service supplied by the NBN corporation is a declared
service; and
(e) the declared service relates to the NBN corporation for the
purposes of subsections 152AXB(2) and 152AXC(7).
To avoid doubt, if the undertaking is subject to limitations, the
service supplied by the NBN corporation is a declared service only
to the extent to which the service falls within the scope of the
limitations.
(8F) The Commission may declare a service under subsection (8A) even
if the service is, to any extent, covered by subsection (8E).
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Declaration is not a legislative instrument
(9) A declaration under this section is not, and is taken never to have
been, a legislative instrument.
(10) A variation of a declaration made under this section is not, and is
taken never to have been, a legislative instrument.
(11) A revocation of a declaration made under this section is not, and is
taken never to have been, a legislative instrument.
(12) If:
(a) a declaration was made under this section before the
commencement of this subsection; and
(b) the declaration ceased to be in force before the
commencement of this subsection;
then:
(c) the declaration is taken never to have been a legislative
instrument; and
(d) if the declaration was varied or revoked before the
commencement of this subsection—the variation or
revocation is taken never to have been a legislative
instrument.
(13) For the purposes of paragraph (12)(b), assume that the Legislation
Act 2003 had never been enacted.
(14) Subsections (9) to (12) are enacted for the avoidance of doubt.
152ALA Duration of declaration
Expiry date
(1) A declaration under section 152AL (other than a declaration
mentioned in subsection 152AL(3C)) must specify an expiry date
for the declaration.
(2) In specifying an expiry date, the Commission must have regard to:
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(a) the principle that the expiry date for a declaration should
occur in the period:
(i) beginning 3 years after the declaration was made; and
(ii) ending 5 years after the declaration was made;
unless, in the Commission’s opinion, there are circumstances
that warrant the expiry date occurring in a shorter or longer
period; and
(b) such other matters (if any) as the Commission considers
relevant.
(3) Subsection (2) has effect subject to subsection (4).
Extension of expiry date
(4) The Commission may, by notice published in the Gazette, extend
or further extend the expiry date of a specified declaration under
section 152AL, so long as the extension or further extension is for
a period of not more than 5 years.
Duration of declaration
(5) Unless sooner revoked, a declaration under section 152AL (other
than a declaration mentioned in subsection 152AL(3C)) ceases to
be in force on the expiry date of the declaration.
(5A) A declaration mentioned in subsection 152AL(3C) remains in force
indefinitely.
Fresh declaration
(6) If a declaration under section 152AL expires, this Part does not
prevent the Commission from making a fresh declaration under
section 152AL in the same terms as the expired declaration.
(6A) If the fresh declaration comes into force immediately after the
expiry of the expired declaration, the fresh declaration is taken to
be a declaration that replaces the expired declaration.
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Public inquiry during 18-month period ending on the expiry date of
a declaration
(7) The Commission must:
(a) during the 18-month period ending on the expiry date of a
declaration, hold a public inquiry under Part 25 of the
Telecommunications Act 1997 about:
(i) whether to extend or further extend the expiry date of
the declaration; and
(ii) whether to revoke the declaration; and
(iii) whether to vary the declaration; and
(iv) whether to allow the declaration to expire without
making a new declaration under section 152AL; and
(v) whether to allow the declaration to expire and then to
make a new declaration under section 152AL; and
(vi) whether to extend or further extend the expiry date of a
declaration by a period of not more than 12 months and
then to allow the declaration to expire without making a
new declaration under section 152AL; and
(b) prepare a report about the inquiry under section 505 of the
Telecommunications Act 1997; and
(c) publish the report during the 180-day period ending on the
expiry date of the first-mentioned declaration.
(8) If:
(a) after holding a public inquiry under subsection (7) in relation
to a declaration, the Commission allows the declaration to
expire and then makes a new declaration under
section 152AL; and
(b) the report mentioned in paragraph (7)(b) was published
during the 180-day period ending when the new declaration
was made;
the Commission is taken to have complied with paragraphs
152AL(3)(a), (b) and (c), or paragraphs 152AL(8A)(a), (b) and (c),
as the case requires, in relation to the new declaration.
(9) If:
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(a) after holding a public inquiry under subsection (7) in relation
to a declaration, the Commission revokes or varies the
declaration; and
(b) the report mentioned in paragraph (7)(b) was published
during the 180-day period ending at the time of the
revocation or variation;
the Commission is taken to have complied with paragraphs
152AL(3)(a), (b) and (c), or paragraphs 152AL(8A)(a), (b) and (c),
as the case requires, in relation to the revocation or variation (as
those paragraphs apply to the power of revocation and variation
because of subsection 152AO(1)).
Extension notice is not a legislative instrument
(10) A notice under subsection (4) is not, and is taken never to have
been, a legislative instrument.
(11) If:
(a) a declaration was made under section 152AL before the
commencement of this subsection; and
(b) a notice relating to the declaration was published under
subsection (4) of this section before the commencement of
this subsection; and
(c) the declaration ceased to be in force before the
commencement of this subsection;
the notice is taken never to have been a legislative instrument.
(12) For the purposes of paragraph (11)(c), assume that the Legislation
Act 2003 had never been enacted.
(13) Subsections (10) and (11) are enacted for the avoidance of doubt.
152AM Inquiries about proposals to declare services
(1) This section applies to a public inquiry of a kind mentioned in
paragraph 152AL(3)(a) or (8A)(a) or 152ALA(7)(a).
(2) The Commission may hold the inquiry:
(a) on its own initiative; or
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(b) if requested in writing to do so by a person.
(3) The Commission does not have a duty to consider whether to hold
a public inquiry of a kind mentioned in paragraph 152AL(3)(a) or
(8A)(a) if the Commission is requested to do so by a person.
(4) The Commission must give the ACMA a copy of the report about
the inquiry prepared in accordance with section 505 of the
Telecommunications Act 1997.
(5) If the inquiry is held at the request of a person, the Commission
must give the person a copy of the report about the inquiry
prepared under section 505 of the Telecommunications Act 1997.
152AN Combined inquiries about proposals to declare services
(1) The Commission may decide to combine 2 or more public inquiries
of a kind mentioned in paragraph 152AL(3)(a), or (8A)(a) or
152ALA(7)(a).
(2) If the Commission makes such a decision:
(a) the Commission may publish a single notice relating to the
combined inquiry under section 498 of the
Telecommunications Act 1997; and
(b) the Commission may prepare a single discussion paper about
the combined inquiry under section 499 of that Act; and
(c) the Commission may hold hearings relating to the combined
inquiry under section 501 of that Act; and
(d) the Commission must ensure that each inquiry is covered by
a report under section 505 of that Act, whether the report
relates:
(i) to a single one of those inquiries; or
(ii) to any 2 or more of those inquiries.
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152AO Variation or revocation of declaration
(1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a
power conferred on the Commission by section 152AL, but it
applies with the following changes.
(1A) If:
(a) a declaration under section 152AL relates to a particular
service; and
(b) in the Commission’s opinion, the service is of minor
importance;
the Commission is not required to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
revoke the declaration.
(3) If a variation of a declaration under subsection 152AL(3) or (8A) is
a variation that, under the Procedural Rules, is taken to be a
variation of a minor nature, the Commission is not required to hold
a public inquiry under Part 25 of the Telecommunications Act 1997
about the proposed variation.
(4) The Commission must not vary or revoke a declaration mentioned
in subsection 152AL(3C).
Note: Subsection 152AL(3C) deals with Layer 2 bitstream services.
152AQ Register of declared services
(1) The Commission must keep a Register in relation to declarations
under section 152AL.
(2) The Register must include the following:
(a) particulars of all such declarations (including declarations
that have been revoked);
(b) particulars of variations and revocations of such declarations;
(c) copies of reports prepared in accordance with section 505 of
the Telecommunications Act 1997 in relation to inquiries
mentioned in paragraph 152AL(3)(a) or (8A)(a) or
152ALA(7)(a) of this Act.
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(3) The Register is to be maintained by electronic means.
(4) The Register is to be made available for inspection on the
Commission’s website.
(5) The Register is not a legislative instrument.
152AQC Compensation for acquisition of property
(1) If the operation of any or all of the following provisions:
(a) subsection 152AL(9), (10), (11), (12), (13) or (14);
(b) subsection 152ALA(10), (11), (12) or (13);
would result in an acquisition of property from a person otherwise
than on just terms, the Commonwealth is liable to pay a reasonable
amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount
of the compensation, the person may institute proceedings in the
Federal Court for the recovery from the Commonwealth of such
reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in
paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the
Constitution.
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Division 3—Standard access obligations
Subdivision A—Category A standard access obligations
152AR Category A standard access obligations
(1) This section sets out the category A standard access obligations.
Access provider and active declared services
(2) For the purposes of this section, if a carrier (other than an NBN
corporation) or a carriage service provider (other than an NBN
corporation) supplies declared services, whether to itself or to other
persons:
(a) the carrier or provider is an access provider; and
(b) the declared services are active declared services.
Supply of active declared service to service provider
(3) An access provider must, if requested to do so by a service
provider:
(a) supply an active declared service to the service provider in
order that the service provider can provide carriage services
and/or content services; and
(b) take all reasonable steps to ensure that the technical and
operational quality of the active declared service supplied to
the service provider is equivalent to that which the access
provider provides to itself; and
(c) take all reasonable steps to ensure that the service provider
receives, in relation to the active declared service supplied to
the service provider, fault detection, handling and
rectification of a technical and operational quality and timing
that is equivalent to that which the access provider provides
to itself.
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Limit on paragraph (3)(a) obligation
(4) Paragraph (3)(a) does not impose an obligation to the extent (if
any) to which the imposition of the obligation would have any of
the following effects:
(a) preventing a service provider who already has access to the
declared service from obtaining a sufficient amount of the
service to be able to meet the service provider’s reasonably
anticipated requirements, measured at the time when the
request was made;
(b) preventing the access provider from obtaining a sufficient
amount of the service to be able to meet the access provider’s
reasonably anticipated requirements, measured at the time
when the request was made;
(c) preventing a person from obtaining, by the exercise of a
pre-request right, a sufficient level of access to the declared
service to be able to meet the person’s actual requirements;
(d) depriving any person of a protected contractual right;
(e) preventing Telstra from complying with an undertaking in
force under section 577A, 577C or 577E of the
Telecommunications Act 1997; or
(f) if a final migration plan is in force—requiring Telstra to
engage in conduct in connection with matters covered by the
final migration plan.
Ordering and provisioning—paragraph (3)(b)
(4A) To avoid doubt, ordering and provisioning are taken to be aspects
of technical and operational quality referred to in paragraph (3)(b).
(4B) The regulations may provide that, for the purposes of
subsection (4A), a specified act or thing is taken to be ordering.
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(4C) The regulations may provide that, for the purposes of
subsection (4A), a specified act or thing is taken to be
provisioning.
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Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
Interconnection of facilities
(5) If an access provider:
(a) owns or controls one or more facilities; or
(b) is a nominated carrier in relation to one or more facilities;
the access provider must, if requested to do so by a service
provider:
(c) permit interconnection of those facilities with the facilities of
the service provider for the purpose of enabling the service
provider to be supplied with active declared services in order
that the service provider can provide carriage services and/or
content services; and
(d) take all reasonable steps to ensure that:
(i) the technical and operational quality and timing of the
interconnection is equivalent to that which the access
provider provides to itself; and
(ii) if a standard is in force under section 384 of the
Telecommunications Act 1997—the interconnection
complies with the standard; and
(e) take all reasonable steps to ensure that the service provider
receives, in relation to the interconnection, fault detection,
handling and rectification of a technical and operational
quality and timing that is equivalent to that which the access
provider provides to itself.
Provision of billing information
(6) If a service provider uses active declared services supplied by an
access provider in accordance with subsection (3), the access
provider must, if requested to do so by the service provider, give
the service provider billing information in connection with matters
associated with, or incidental to, the supply of those active declared
services.
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Timing and content of billing information
(7) The billing information referred to in subsection (6) must:
(a) be given at such times or intervals as are ascertained in
accordance with the regulations; and
(b) be given in a manner and form ascertained in accordance
with the regulations; and
(c) set out such particulars as are ascertained in accordance with
the regulations.
Conditional-access customer equipment
(8) If an access provider supplies an active declared service by means
of conditional-access customer equipment, the access provider
must, if requested to do so by a service provider who has made a
request referred to in subsection (3), supply to the service provider
any service that is necessary to enable the service provider to
supply carriage services and/or content services by means of the
active declared service and using the equipment.
Exceptions
(9) This section does not impose an obligation on an access provider if
there are reasonable grounds to believe that:
(a) the access seeker would fail, to a material extent, to comply
with the terms and conditions on which the access provider
complies, or on which the access provider is reasonably
likely to comply, with that obligation; or
(b) the access seeker would fail, in connection with that
obligation, to protect:
(i) the integrity of a telecommunications network; or
(ii) the safety of individuals working on, or using services
supplied by means of, a telecommunications network or
a facility.
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Examples—paragraph (9)(a) grounds
(10) Examples of grounds for believing as mentioned in
paragraph (9)(a) include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the access provider).
Starting date for obligations
(11) An obligation imposed by this section does not arise before 1 July
1997.
Definitions
(12) In this section:
pre-request right, in relation to a request made for the purposes of
paragraph (3)(a), means a right under a contract that was in force at
the time when the request was made.
protected contractual right means a right under a contract that was
in force at the beginning of 13 September 1996.
152ARA Layer 2 bitstream services to be supplied on a
non-discriminatory basis
No discrimination between access seekers
(1) If a Layer 2 bitstream service is:
(a) supplied using a designated superfast telecommunications
network; and
(b) a declared service;
a carrier (other than an NBN corporation) or carriage service
provider (other than an NBN corporation) must not, in complying
with any of its category A standard access obligations in relation to
the service, discriminate between access seekers.
Note: For explanatory material, see section 152CJH.
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(2) The rule in subsection (1) does not prevent discrimination against
an access seeker if the carrier or carriage service provider has
reasonable grounds to believe that the access seeker would fail, to a
material extent, to comply with the terms and conditions on which
the carrier or carriage service provider complies, or on which the
carrier or carriage service provider is reasonably likely to comply,
with the relevant obligation.
(3) Examples of grounds for believing as mentioned in subsection (2)
include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the carrier or carriage
service provider).
No discrimination by a carrier or carriage service provider in
favour of itself
(7) If:
(a) a Layer 2 bitstream service is:
(i) supplied using a designated superfast
telecommunications network; and
(ii) a declared service; and
(b) the carrier (other than an NBN corporation) or carriage
service provider (other than an NBN corporation) supplies, or
is capable of supplying, the service to itself and to other
persons; and
(c) the carrier or carriage service provider is subject to a
category A standard access obligation in relation to the
service;
the carrier or carriage service provider must not discriminate in
favour of itself in relation to the supply of the service.
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152ARB Layer 2 bitstream services—carriers and carriage service
providers to carry on related activities on a
non-discriminatory basis
Scope
(1) This section applies to a carrier or carriage service provider if:
(a) a Layer 2 bitstream service is:
(i) supplied using a designated superfast
telecommunications network; and
(ii) a declared service; and
(b) the carrier or provider is subject to a category A standard
access obligation in relation to the service.
No discrimination
(2) The carrier or provider must not, in carrying on any of the
following activities, discriminate between access seekers:
(a) developing a new eligible service;
(b) enhancing a declared service;
(c) extending or enhancing the capability of a facility or
telecommunications network by means of which a declared
service is, or is to be, supplied;
(d) planning for a facility or telecommunications network by
means of which a declared service is, or is to be, supplied;
(e) an activity that is preparatory to the supply of a declared
service;
(f) an activity that is ancillary or incidental to the supply of a
declared service;
(g) giving information to service providers about any of the
above activities.
Note: For explanatory material, see section 152CJH.
Definition
(6) In this section:
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eligible service has the same meaning as in section 152AL.
152ASA Anticipatory class exemptions from category A standard
access obligations
Determination providing for exemption
(1) The Commission may, by written instrument, determine that, in the
event that a specified service or proposed service becomes an
active declared service, each of the members of a specified class of
carrier or of a specified class of carriage service provider are
exempt from any or all of the obligations referred to in
section 152AR, to the extent to which the obligations relate to the
active declared service.
(1A) A service or a proposed service must not be specified in a
determination under this section if, at the time when the
determination is made, the service or proposed service is a declared
service.
(2) A determination under this section may be unconditional or subject
to such conditions or limitations as are specified in the
determination.
Note: For judicial enforcement of conditions and limitations, see
section 152BBAA.
(2A) A determination under this section may:
(a) provide that the determination must not be varied; or
(b) provide that the determination must not be varied except in
such circumstances as are specified in the determination.
(2B) A determination under this section may:
(a) provide that the determination must not be revoked; or
(b) provide that the determination must be revoked except in
such circumstances as are specified in the determination.
(3) A determination under this section has effect accordingly.
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Criteria for making determination
(4) The Commission must not make a determination under this section
unless the Commission is satisfied that the making of the
determination will promote the long-term interests of end-users of
carriage services or of services supplied by means of carriage
services.
Expiry time of determination
(8) A determination under this section must specify the expiry time of
the determination. If a determination expires, this Part does not
prevent the Commission from making a fresh determination under
this section in the same terms as the expired determination.
(9) The expiry time of the determination may be described by
reference to the end of a period beginning when the service or
proposed service becomes an active declared service.
(10) Subsection (9) does not, by implication, limit subsection (8).
Consultation
(11) If, in the Commission’s opinion, the making of a determination
under this section is likely to have a material effect on the interests
of a person, then, before making the determination, the
Commission must first:
(a) publish a draft of the determination and invite people to make
submissions to the Commission on the question of whether
the draft determination should be made; and
(b) consider any submissions that were received within the time
limit specified by the Commission when it published the
draft determination.
Variation or revocation of determination
(11A) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a
power conferred on the Commission by subsection (1), but it
applies with the following changes.
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(11B) A provision referred to in paragraph (2A)(a) or (b) or (2B)(a) or (b)
cannot be varied or removed.
(11C) A determination under this section must not be varied or revoked
in a manner that is inconsistent with a provision referred to in
paragraph (2A)(a) or (b) or (2B)(a) or (b).
Determination is not a legislative instrument
(12) A determination made under subsection (1) is not a legislative
instrument.
Definition
(13) In this section:
active declared service has the same meaning as in section 152AR.
152ATA Anticipatory individual exemptions from category A
standard access obligations
Application for exemption order
(1) A person who is, or expects to be, a carrier or a carriage service
provider may apply to the Commission for a written order that, in
the event that a specified service or proposed service becomes an
active declared service, the person is exempt from any or all of the
obligations referred to in section 152AR, to the extent to which the
obligations relate to the active declared service.
(2) An application under subsection (1) must be:
(a) in writing; and
(b) in a form approved in writing by the Commission for the
purposes of this paragraph.
(2A) Before the Commission makes a decision under subsection (3) in
relation to the application, the applicant may, by written notice
given to the Commission within the time allowed by the Procedural
Rules, modify the application, so long as the modification is a
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modification that, under the Procedural Rules, is taken to be a
modification of a minor nature.
Commission must make exemption order or refuse application
(3) After considering the application, the Commission must:
(a) make a written order that, in the event that the service or
proposed service becomes an active declared service, the
applicant is exempt from one or more of the obligations
referred to in section 152AR, to the extent to which the
obligations relate to the active declared service; or
(b) refuse the application.
(3A) A service or a proposed service must not be specified in an order
under paragraph (3)(a) if, at the time when the order is made, the
service or proposed service is a declared service.
(4) An order under paragraph (3)(a) may be unconditional or subject to
such conditions or limitations as are specified in the order.
Note: For judicial enforcement of conditions and limitations, see
section 152BBAA.
(4A) An order under paragraph (3)(a) may:
(a) provide that the order must not be varied; or
(b) provide that the order must not be varied except in such
circumstances as are specified in the order.
(4B) An order under paragraph (3)(a) may:
(a) provide that the order must not be revoked; or
(b) provide that the order must not be revoked except in such
circumstances as are specified in the order.
(5) An order under paragraph (3)(a) has effect accordingly.
Criteria for making exemption order
(6) The Commission must not make an order under paragraph (3)(a)
unless the Commission is satisfied that the making of the order will
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promote the long-term interests of end-users of carriage services or
of services provided by means of carriage services.
Serial applications
(7) If:
(a) a person makes an application (the first application) under
subsection (1) for an order in relation to a service or
proposed service; and
(b) the Commission refuses the first application; and
(c) the person subsequently makes another application under
subsection (1); and
(d) the Commission is satisfied that:
(i) the first application and the other application have
material similarities; or
(ii) the grounds on which the person made the first
application are materially similar to the grounds on
which the person has made the other application;
the Commission may refuse to consider the other application.
Expiry time for exemption order
(10) An order under paragraph (3)(a) must specify the expiry time for
the order. If an order expires, this Part does not prevent the
Commission from making a fresh order under paragraph (3)(a) in
the same terms as the expired order.
(10A) The expiry time for the order may be described by reference to the
end of a period beginning when the service or proposed service
becomes an active declared service.
(10B) Subsection (10A) does not, by implication, limit subsection (10).
Consultation
(11) If, in the Commission’s opinion, the making of an order under
paragraph (3)(a) is likely to have a material effect on the interests
of a person, then, before making the order, the Commission must
first:
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(a) publish the application for the order and invite people to
make submissions to the Commission on the question of
whether the order should be made; and
(b) consider any submissions that were received within the time
limit specified by the Commission when it published the
application.
Commission to make decision within 6 months
(12) If the Commission does not make a decision on an application
under this section within 6 months after receiving the application,
the Commission is taken to have made, at the end of that 6-month
period, an order under paragraph (3)(a) in accordance with the
terms of the application.
(13) In calculating the 6-month period referred to in subsection (12),
disregard:
(a) if the Commission has published the application under
subsection (11)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the
Commission when it published the application; and
(b) if the Commission has requested further information under
section 152AU in relation to the application—a day during
any part of which the request, or any part of the request,
remains unfulfilled.
Extension of decision-making period
(14) The Commission may, by written notice given to the applicant,
extend or further extend the 6-month period referred to in
subsection (12), so long as:
(a) the extension or further extension is for a period of not more
than 3 months; and
(b) the notice includes a statement explaining why the
Commission has been unable to make a decision on the
application within that 6-month period or that 6-month period
as previously extended, as the case may be.
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(15) As soon as practicable after the Commission gives a notice under
subsection (14), the Commission must cause a copy of the notice to
be made available on the internet.
Notification of refusal of application
(16) If the Commission makes a decision refusing an application under
subsection (1), the Commission must give the applicant a written
statement setting out the reasons for the refusal.
(16A) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a
power conferred on the Commission by paragraph (3)(a), but it
applies with the following changes.
(16B) A provision referred to in paragraph (4A)(a) or (b) or (4B)(a) or (b)
cannot be varied or removed.
(16C) An order under paragraph (3)(a) must not be varied or revoked in a
manner that is inconsistent with a provision referred to in (4A)(a)
or (b) or (4B)(a) or (b).
Definition
(18) In this section:
active declared service has the same meaning as in section 152AR.
152AU Individual exemptions—request for further information
(1) This section applies to an application under
subsection 152ATA(1).
(2) The Commission may request the applicant to give the
Commission further information about the application.
(2A) If:
(a) the Procedural Rules make provision for or in relation to a
time limit for giving the information; and
(b) the applicant does not give the Commission the information
within the time limit allowed by the Procedural Rules;
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the Commission may, by written notice given to the applicant,
refuse the application.
(2B) Subsection (2A) has effect despite anything in this Division.
(3) If the Procedural Rules do not make provision for or in relation to a
time limit for giving the information, the Commission may refuse
to consider the application until the applicant gives the
Commission the information.
(4) The Commission may withdraw its request for further information,
in whole or in part.
152AXA Statement of reasons for decision—specification of
documents
If the Commission:
(a) makes a decision under section 152ATA; and
(b) gives a person a written statement setting out the reasons for
the decision;
the statement must specify the documents that the Commission
examined in the course of making the decision.
Subdivision B—Category B standard access obligations
152AXB Category B standard access obligations
(1) This section sets out the category B standard access obligations.
Supply of declared service to service provider
(2) If:
(a) an NBN corporation is a carrier or carriage service provider;
and
(b) under subsection 152AL(8A), (8D) or (8E), a declared
service relates to the NBN corporation;
the NBN corporation must, if requested to do so by a service
provider, supply the service to the service provider in order that the
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service provider can provide carriage services and/or content
services.
Note: For declared services, see subsections 152AL(8A), (8D) and (8E).
Limit on subsection (2) obligations
(3) Subsection (2) does not impose an obligation to the extent (if any)
to which the imposition of the obligation would have any of the
following effects:
(a) preventing a service provider who already has access to the
declared service from obtaining a sufficient amount of the
service to be able to meet the service provider’s reasonably
anticipated requirements, measured at the time when the
request was made;
(b) preventing the NBN corporation from obtaining a sufficient
amount of the service to be able to meet the NBN
corporation’s reasonably anticipated requirements, measured
at the time when the request was made;
(c) preventing a person from obtaining, by the exercise of a
pre-request right, a sufficient level of access to the declared
service to be able to meet the person’s actual requirements.
(3A) Subsection (2) does not impose an obligation on an NBN
corporation to supply a service in circumstances where a refusal by
the NBN corporation to supply the service is authorised under
section 151DA for the purposes of subsection 51(1).
Interconnection of facilities
(4) If:
(a) an NBN corporation is a carrier or carriage service provider;
and
(b) the NBN corporation:
(i) owns or controls one or more facilities; or
(ii) is a nominated carrier in relation to one or more
facilities;
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the NBN corporation must, if requested to do so by a service
provider:
(c) permit interconnection of those facilities with the facilities of
the service provider for the purpose of enabling the service
provider to be supplied with declared services in order that
the service provider can provide carriage services and/or
content services; and
(d) take all reasonable steps to ensure that, if a standard is in
force under section 384 of the Telecommunications Act 1997,
the interconnection complies with the standard.
(4A) Subsection (4) does not apply to an interconnection at a location
that is not a listed point of interconnection (within the meaning of
section 151DB).
Conditional-access customer equipment
(5) If:
(a) an NBN corporation is a carrier or carriage service provider;
and
(b) the NBN corporation supplies a declared service by means of
conditional-access customer equipment;
the NBN corporation must, if requested to do so by a service
provider who has made a request referred to in subsection (2),
supply to the service provider any service that is necessary to
enable the service provider to supply carriage services and/or
content services by means of the declared service and using the
equipment.
Exceptions
(6) This section does not impose an obligation on an NBN corporation
if there are reasonable grounds to believe that:
(a) the access seeker would fail, to a material extent, to comply
with the terms and conditions on which the NBN corporation
complies, or on which the NBN corporation is reasonably
likely to comply, with that obligation; or
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(b) the access seeker would fail, in connection with that
obligation, to protect:
(i) the integrity of a telecommunications network; or
(ii) the safety of individuals working on, or using services
supplied by means of, a telecommunications network or
a facility.
Examples—paragraph (6)(a) grounds
(7) Examples of grounds for believing as mentioned in
paragraph (6)(a) include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the NBN corporation).
Definition
(8) In this section:
pre-request right, in relation to a request made for the purposes of
subsection (2), means a right under a contract that was in force at
the time when the request was made.
152AXC NBN corporation to supply declared services on a
non-discriminatory basis
No discrimination between access seekers
(1) An NBN corporation must not, in complying with any of its
category B standard access obligations, discriminate between
access seekers.
Note: For explanatory material, see section 152CJH.
(2) The rule in subsection (1) does not prevent discrimination against
an access seeker if the NBN corporation has reasonable grounds to
believe that the access seeker would fail, to a material extent, to
comply with the terms and conditions on which the NBN
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corporation complies, or on which the NBN corporation is
reasonably likely to comply, with the relevant obligation.
(3) Examples of grounds for believing as mentioned in subsection (2)
include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the NBN corporation).
No discrimination by an NBN corporation in favour of itself
(7) If:
(a) an NBN corporation is a carrier or carriage service provider;
and
(b) under subsection 152AL(8A), (8D) or (8E), a declared
service relates to the NBN corporation; and
(c) the NBN corporation is subject to a category B standard
access obligation in relation to the service;
the NBN corporation must not discriminate in favour of itself in
relation to the supply of the service.
Authorised conduct
(12) If conduct is authorised under section 151DA for the purposes of
subsection 51(1), the conduct is taken not to be discrimination for
the purposes of this section.
152AXD NBN corporation to carry on related activities on a
non-discriminatory basis
(1) An NBN corporation must not, in carrying on any of the following
activities, discriminate between access seekers:
(a) developing a new eligible service;
(b) enhancing a declared service;
(c) extending or enhancing the capability of a facility or
telecommunications network by means of which a declared
service is, or is to be, supplied;
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(d) planning for a facility or telecommunications network by
means of which a declared service is, or is to be, supplied;
(e) an activity that is preparatory to the supply of a declared
service;
(f) an activity that is ancillary or incidental to the supply of a
declared service;
(g) giving information to service providers about any of the
above activities.
Note: For explanatory material, see section 152CJH.
(5A) If conduct is authorised under section 151DA for the purposes of
subsection 51(1), the conduct is taken not to be discrimination for
the purposes of this section.
Definition
(6) In this section:
eligible service has the same meaning as in section 152AL.
Subdivision C—Compliance with standard access obligations
152AY Compliance with standard access obligations
(1) This section applies if a carrier or carriage service provider is
required to comply with any or all of the standard access
obligations.
(2) The carrier or carriage service provider must comply with the
obligations:
(a) if an access agreement between:
(i) the carrier or carriage service provider, as the case
requires; and
(ii) the access seeker;
is in operation and specifies terms and conditions about a
particular matter—on such terms and conditions relating to
that matter as are set out in the agreement; or
(b) if:
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(i) paragraph (a) does not apply in relation to terms and
conditions about a particular matter; and
(ii) a special access undertaking given by the carrier or
carriage service provider is in operation, and the
undertaking specifies terms and conditions about that
matter—on such terms and conditions relating to that
matter as are set out in the undertaking; or
(c) if:
(i) neither paragraph (a) nor (b) applies to terms and
conditions about a particular matter; and
(ii) binding rules of conduct specify terms and conditions
about that matter;
on such terms and conditions relating to that matter as are set
out in the binding rules of conduct; or
(d) if:
(i) none of the above paragraphs applies to terms and
conditions about a particular matter; and
(ii) an access determination specifies terms and conditions
about that matter;
on such terms and conditions relating to that matter as are set
out in the access determination.
Note 1: Sections 152BCC, 152BDB, 152BDE, 152CBIA, 152CBIB and
152CBIC, which deal with inconsistency, should be read and applied
before this section is read and applied.
Note 2: Even though subsection (2) mentions binding rules of conduct,
binding rules of conduct may only be made if the Commission
considers that there is an urgent need to do so.
Note 3: For transitional provisions, see Division 2 of Part 2 of Schedule 1 to
the Telecommunications Legislation Amendment (Competition and
Consumer Safeguards) Act 2010.
152AYA Ancillary obligations—confidential information
If:
(a) a carrier or carriage service provider is required to comply
with a standard access obligation that arose because of a
request made by an access seeker; and
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(b) at or after the time when the request was made, the access
seeker gives particular information to the carrier or carriage
service provider to enable the carrier or carriage service
provider to comply with the standard access obligation; and
(c) at or before the time when the information was given, the
access seeker gave the carrier or carriage service provider a
written notice to the effect that:
(i) that information; or
(ii) a class of information that includes that information;
is to be regarded as having been given on a confidential basis
for the purpose of enabling the carrier or carriage service
provider to comply with the standard access obligation;
the carrier or carriage service provider must not, without the
written consent of the access seeker, use that information for a
purpose other than enabling the carrier or carriage service provider
to comply with:
(d) the standard access obligation; or
(e) any other standard access obligation that arose because of a
request made by the access seeker; or
(f) any other obligation imposed by a law.
152AZ Carrier licence condition
A carrier licence held by a carrier is subject to a condition that the
carrier must comply with:
(a) any standard access obligations that are applicable to the
carrier; and
(aa) any rule in section 152ARA, 152ARB, 152AXC or 152AXD
that is applicable to the carrier; and
(b) any obligations under section 152AYA that are applicable to
the carrier.
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152BA Service provider rule
(1) In addition to the rules mentioned in section 98 of the
Telecommunications Act 1997, the rule set out in subsection (2) of
this section is a service provider rule for the purposes of that Act.
(2) A carriage service provider must comply with:
(a) any standard access obligations that are applicable to the
provider; and
(aa) any rule in section 152ARA, 152ARB, 152AXC or 152AXD
that is applicable to the provider; and
(b) any obligations under section 152AYA that are applicable to
the provider.
152BB Judicial enforcement of standard access obligations
(1) If the Federal Court is satisfied that a carrier or carriage service
provider has contravened any of the standard access obligations
that are applicable to the carrier or provider, the Court may, on the
application of:
(a) the Commission; or
(b) any person whose interests are affected by the contravention;
make all or any of the following orders:
(c) an order directing the carrier or provider to comply with the
obligation;
(d) an order directing the carrier or provider to compensate any
other person who had suffered loss or damage as a result of
the contravention;
(e) any other order that the Court thinks appropriate.
(1AA) If the Federal Court is satisfied that a carrier or carriage service
provider has contravened the rule in subsection 152ARA(1) or (7)
or 152ARB(2), the Court may, on the application of:
(a) the Commission; or
(b) any person whose interests are affected by the contravention;
make all or any of the following orders:
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(c) an order directing the carrier or provider to comply with the
obligation;
(d) an order directing the carrier or provider to compensate any
other person who had suffered loss or damage as a result of
the contravention;
(e) any other order that the Court thinks appropriate.
(1AB) If the Federal Court is satisfied that an NBN corporation has
contravened the rule in subsection 152AXC(1) or (7) or
152AXD(1), the Court may, on the application of:
(a) the Commission; or
(b) any person whose interests are affected by the contravention;
make all or any of the following orders:
(c) an order directing the NBN corporation to comply with that
rule;
(d) an order directing the NBN corporation to compensate any
other person who had suffered loss or damage as a result of
the contravention;
(e) any other order that the Court thinks appropriate.
(1A) If the Federal Court is satisfied that a carrier or carriage service
provider has contravened an obligation imposed by
section 152AYA, the Court may, on the application of:
(a) the Commission; or
(b) the access seeker who gave the information concerned;
make all or any of the following orders:
(c) an order directing the carrier or carriage service provider to
comply with the obligation;
(d) an order directing the carrier or carriage service provider to
compensate any other person who has suffered loss or
damage as a result of the contravention;
(e) any other order that the Court thinks appropriate.
(2) The Federal Court may discharge or vary an order granted under
this section.
(3) This section does not limit section 152BBAA.
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152BBAA Judicial enforcement of conditions and limitations of
exemption determinations and orders
(1) If the Federal Court is satisfied that a person has contravened any
of the conditions or limitations of:
(a) a determination under section 152ASA; or
(b) an order under section 152ATA;
the Court may, on the application of:
(c) the Commission; or
(d) any person whose interests are affected by the contravention;
make all or any of the following orders:
(e) an order directing the person to comply with the condition or
limitation;
(f) an order directing the person to compensate any other person
who had suffered loss or damage as a result of the
contravention;
(g) any other order that the Court thinks appropriate.
(2) The Federal Court may discharge or vary an order granted under
this section.
(3) This section does not limit section 152BB.
152BBA Commission may give directions in relation to negotiations
(1) This section applies if a carrier or carriage service provider is
required to comply with any or all of the standard access
obligations.
(2) If the following parties:
(a) the carrier or carriage service provider, as the case requires;
(b) the access seeker;
propose to negotiate, or are negotiating, with a view to agreeing on
terms and conditions as mentioned in paragraph 152AY(2)(a), the
Commission may, for the purposes of facilitating those
negotiations, if requested in writing to do so by either party, give a
party a written procedural direction requiring the party to do, or
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refrain from doing, a specified act or thing relating to the conduct
of those negotiations.
(3) The following are examples of the kinds of procedural directions
that may be given under subsection (2):
(a) a direction requiring a party to give relevant information to
the other party;
(b) a direction requiring a party to carry out research or
investigations in order to obtain relevant information;
(c) a direction requiring a party not to impose unreasonable
procedural conditions on the party’s participation in
negotiations;
(d) a direction requiring a party to respond in writing to the other
party’s proposal or request in relation to the time and place of
a meeting;
(e) a direction requiring a party, or a representative of a party, to
attend a mediation conference;
(f) a direction requiring a party, or a representative of a party, to
attend a conciliation conference.
(4) For the purposes of paragraph (3)(c), if a party (the first party)
imposes, as a condition on the first party’s participation in
negotiations, a requirement that the other party must not disclose to
the Commission any or all information, or the contents of any or all
documents, provided in the course of negotiations, that condition is
taken to be an unreasonable procedural condition on the first
party’s participation in those negotiations.
(5) A person must not contravene a direction under subsection (2).
(6) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (5); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (5); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (5); or
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(d) conspire with others to effect a contravention of
subsection (5).
(7) In deciding whether to give a direction under subsection (2), the
Commission must have regard to:
(a) any guidelines in force under subsection (8); and
(b) such other matters as the Commission considers relevant.
(8) The Commission may, by written instrument, formulate guidelines
for the purposes of subsection (7).
(9) In addition to its effect apart from this subsection, this section also
has the effect it would have if:
(a) each reference to a carrier were, by express provision,
confined to a carrier that is a constitutional corporation; and
(b) each reference to a carriage service provider were, by express
provision, confined to a carriage service provider that is a
constitutional corporation; and
(c) each reference to an access seeker were, by express
provision, confined to an access seeker that is a constitutional
corporation.
152BBB Enforcement of directions
(1) If the Federal Court is satisfied that a person has contravened
subsection 152BBA(5) or (6), the Court may order the person to
pay to the Commonwealth such pecuniary penalty, in respect of
each contravention, as the Court determines to be appropriate.
(2) In determining the pecuniary penalty, the Court must have regard
to all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a
result of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in
proceedings under this Act to have engaged in any similar
conduct.
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(3) The pecuniary penalty payable under subsection (1) by a body
corporate is not to exceed $250,000 for each contravention.
(4) The pecuniary penalty payable under subsection (1) by a person
other than a body corporate is not to exceed $50,000 for each
contravention.
(5) The Commission may institute a proceeding in the Federal Court
for the recovery on behalf of the Commonwealth of a pecuniary
penalty referred to in subsection (1).
(6) A proceeding under subsection (5) may be commenced within
6 years after the contravention.
(7) Criminal proceedings do not lie against a person only because the
person has contravened subsection 152BBA(5) or (6).
152BBC Commission’s role in negotiations
(1) This section applies if a carrier or carriage service provider is
required to comply with any or all of the standard access
obligations.
(2) If the following parties:
(a) the carrier or carriage service provider, as the case requires;
(b) the access seeker;
propose to negotiate, or are negotiating, with a view to agreeing on
terms and conditions as mentioned in paragraph 152AY(2)(a), the
parties may jointly request the Commission in writing to arrange
for a representative of the Commission to attend, or mediate at,
those negotiations.
(3) The Commission may comply with the request if the Commission
considers that compliance with the request would be likely to
facilitate those negotiations.
(4) For the purposes of this section, each of the following persons may
be a representative of the Commission:
(a) a member, or associate member, of the Commission; or
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(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
152BBD Reaching agreement on terms and conditions of access
(1) The Commission must, in exercising its powers under
sections 152BBA and 152BBC in relation to any of the category A
standard access obligations, have regard to the desirability of
access providers (within the meaning of section 152AR) and access
seekers agreeing on terms and conditions as mentioned in
paragraph 152AY(2)(a) in a timely manner.
(2) The Commission must, in exercising its powers under
sections 152BBA and 152BBC in relation to any of the category B
standard access obligations, have regard to the desirability of NBN
corporations and access seekers agreeing on terms and conditions
as mentioned in paragraph 152AY(2)(a) in a timely manner.
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Division 4—Access determinations
Subdivision A—Commission may make access determinations
152BC Access determinations
(1) The Commission may make a written determination relating to
access to a declared service.
(2) A determination under subsection (1) is to be known as an access
determination.
(3) An access determination may:
(a) specify any or all of the terms and conditions on which a
carrier or carriage service provider is to comply with any or
all of the standard access obligations applicable to the carrier
or provider; or
(b) specify any other terms and conditions of an access seeker’s
access to the declared service; or
(c) require a carrier or carriage service provider to comply with
any or all of the standard access obligations applicable to the
carrier or provider in a manner specified in the determination;
or
(d) require a carrier or carriage service provider to extend or
enhance the capability of a facility by means of which the
declared service is supplied; or
(e) impose other requirements on a carrier or carriage service
provider in relation to access to the declared service; or
(f) specify the terms and conditions on which a carrier or
carriage service provider is to comply with any or all of those
other requirements; or
(g) require access seekers to accept, and pay for, access to the
declared service; or
(h) provide that any or all of the obligations referred to in
section 152AR are not applicable to a carrier or carriage
service provider, either:
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(i) unconditionally; or
(ii) subject to such conditions or limitations as are specified
in the determination; or
(i) restrict or limit the application to a carrier or carriage service
provider of any or all of the obligations referred to in
section 152AR; or
(j) deal with any other matter relating to access to the declared
service.
(4) Subsection (3) does not limit subsection (1).
(4AA) Paragraphs (3)(h) and (i) do not apply to an access determination
that relates to a declared service that is a Layer 2 bitstream service
supplied using a designated superfast telecommunications network.
(4A) An access determination may be expressed to be an NBN-specific
access determination.
(4B) An access determination does not apply in relation to access to a
declared service to the extent to which the service is supplied, or is
capable of being supplied, by an NBN corporation unless the
access determination is expressed to be an NBN-specific access
determination.
(4C) If an access determination is expressed to be an NBN-specific
access determination, the access determination does not apply in
relation to access to a declared service to the extent to which the
service is supplied, or is capable of being supplied, by a person
other than an NBN corporation.
(5) An access determination may make different provision with respect
to:
(a) different carriers or carriage service providers; or
(b) different classes of carriers or carriage service providers; or
(c) different access seekers; or
(d) different classes of access seekers.
(6) Subsection (5) does not, by implication, limit subsection 33(3A) of
the Acts Interpretation Act 1901.
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(7) An access determination may provide for the Commission to
perform functions, and exercise powers, under the determination.
(8) Terms and conditions specified in an access determination as
mentioned in paragraph (3)(a), (b) or (f) must include terms and
conditions relating to price or a method of ascertaining price.
(9) An access determination is not a legislative instrument.
152BCA Matters that the Commission must take into account
(1) The Commission must take the following matters into account in
making an access determination:
(a) whether the determination will promote the long-term
interests of end-users of carriage services or of services
supplied by means of carriage services;
(b) the legitimate business interests of a carrier or carriage
service provider who supplies, or is capable of supplying, the
declared service, and the carrier’s or provider’s investment in
facilities used to supply the declared service;
(c) the interests of all persons who have rights to use the
declared service;
(d) the direct costs of providing access to the declared service;
(e) the value to a person of extensions, or enhancement of
capability, whose cost is borne by someone else;
(f) the operational and technical requirements necessary for the
safe and reliable operation of a carriage service, a
telecommunications network or a facility;
(g) the economically efficient operation of a carriage service, a
telecommunications network or a facility.
(2) If a carrier or carriage service provider who supplies, or is capable
of supplying, the declared service supplies one or more other
eligible services, then, in making an access determination that is
applicable to the carrier or provider, as the case may be, the
Commission may take into account:
(a) the characteristics of those other eligible services; and
(b) the costs associated with those other eligible services; and
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(c) the revenues associated with those other eligible services;
and
(d) the demand for those other eligible services.
(3) The Commission may take into account any other matters that it
thinks are relevant.
(4) This section does not apply to an interim access determination.
(5) In this section:
eligible service has the same meaning as in section 152AL.
152BCB Restrictions on access determinations
(1) The Commission must not make an access determination that
would have any of the following effects:
(a) preventing a service provider who already has access to the
declared service from obtaining a sufficient amount of the
service to be able to meet the service provider’s reasonably
anticipated requirements, measured at the time when the
access seeker made a request in relation to the service under
section 152AR or 152AXB;
(b) preventing a carrier or carriage service provider from
obtaining a sufficient amount of the service to be able to
meet the carrier’s or provider’s reasonably anticipated
requirements, measured at the time when the access seeker
made a request in relation to the service under section 152AR
or 152AXB;
(c) preventing a person from obtaining, by the exercise of a
pre-determination right, a sufficient level of access to the
declared service to be able to meet the person’s actual
requirements;
(d) depriving any person of a protected contractual right;
(e) resulting in an access seeker becoming the owner (or one of
the owners) of any part of a facility without the consent of
the owner of the facility;
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(f) requiring a person (other than an access seeker) to bear an
unreasonable amount of the costs of:
(i) extending or enhancing the capability of a facility; or
(ii) maintaining extensions to or enhancements of the
capability of a facility;
(g) requiring a carrier or carriage service provider to provide an
access seeker with access to a declared service if there are
reasonable grounds to believe that:
(i) the access seeker would fail, to a material extent, to
comply with the terms and conditions on which the
carrier or provider provides, or is reasonably likely to
provide, that access; or
(ii) the access seeker would fail, in connection with that
access, to protect the integrity of a telecommunications
network or to protect the safety of individuals working
on, or using services supplied by means of, a
telecommunications network or a facility.
(2) Examples of grounds for believing as mentioned in
subparagraph (1)(g)(i) include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the carrier or carriage
service provider).
(3) The Commission must not make an access determination that is
inconsistent with any of the standard access obligations that are, or
will be, applicable to a carrier or carriage service provider.
(3A) If a final migration plan is in force, the Commission must not make
an access determination that would have the effect of requiring
Telstra to engage in conduct in connection with matters covered by
the final migration plan.
(3B) The Commission must not make an access determination that
would have the effect of:
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(a) requiring an NBN corporation to engage in conduct that is
inconsistent with conduct authorised under
subsection 151DA(2) or (3) for the purposes of
subsection 51(1); or
(b) preventing an NBN corporation from giving a refusal that is
authorised under subsection 151DA(3) for the purposes of
subsection 51(1).
(3C) The Commission must not make an access determination that
would have the effect of preventing an NBN corporation from
engaging in conduct that is reasonably necessary to achieve
uniform national pricing of eligible services supplied by the NBN
corporation to service providers and utilities.
(3D) In subsection (3C), eligible services, uniform national pricing and
utilities have the same meaning as in section 151DA.
(4) If the Commission makes an access determination that has the
effect of depriving a person (the second person) of a
pre-determination right to require the carrier or provider to provide
access to the declared service to the second person, the
determination must also require the access seeker:
(a) to pay to the second person such amount (if any) as the
Commission considers is fair compensation for the
deprivation; and
(b) to reimburse the carrier or provider and the Commonwealth
for any compensation that the carrier or provider or the
Commonwealth agrees, or is required by a court order, to pay
to the second person as compensation for the deprivation.
(4A) The Commission must not make an access determination that:
(a) relates to any or all of the category B standard access
obligations applicable to an NBN corporation; and
(b) has the effect (whether direct or indirect) of discriminating
between access seekers.
Note: For explanatory material, see section 152CJH.
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(4B) Subsection (4A) does not prevent discrimination against an access
seeker if the Commission has reasonable grounds to believe that
the access seeker would fail, to a material extent, to comply with
the terms and conditions on which the NBN corporation complies,
or on which the NBN corporation is reasonably likely to comply,
with the relevant obligation.
(4C) Examples of grounds for believing as mentioned in subsection (4B)
include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the NBN corporation).
(4G) The Commission must not make an access determination that:
(a) relates to a declared service that is:
(i) a Layer 2 bitstream service; and
(ii) supplied using a designated superfast
telecommunications network; and
(iii) supplied by a carrier (other than an NBN corporation) or
a carriage service provider (other than an NBN
corporation); and
(b) has the effect (whether direct or indirect) of discriminating
between access seekers.
Note: For explanatory material, see section 152CJH.
(4H) Subsection (4G) does not prevent discrimination against an access
seeker if the Commission has reasonable grounds to believe that
the access seeker would fail, to a material extent, to comply with
the terms and conditions on which the carrier or carriage service
provider complies, or on which the carrier or carriage service
provider is reasonably likely to comply, with the relevant
obligation.
(4J) Examples of grounds for believing as mentioned in
subsection (4H) include:
(a) evidence that the access seeker is not creditworthy; and
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334 Competition and Consumer Act 2010
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(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the carrier or carriage
service provider).
(5) An access determination is of no effect to the extent to which it
contravenes subsection (1), (3), (3A), (3B), (3C), (4A) or (4G).
(6) In this section:
pre-determination right means a right under a contract that was in
force:
(a) if the access determination is one of a series of 2 or more
successive access determinations—immediately before the
first access determination came into force; or
(b) otherwise—immediately before the access determination
came into force.
protected contractual right means a right under a contract that was
in force at the beginning of 13 September 1996.
152BCC Access agreements prevail over inconsistent access
determinations
If an access determination is applicable to the following parties:
(a) a carrier or carriage service provider;
(b) an access seeker;
the access determination has no effect to the extent to which it is
inconsistent with an access agreement that is applicable to those
parties.
152BCCA Final migration plan prevails over inconsistent access
determinations
If a final migration plan is in force, an access determination has no
effect to the extent to which it would have the effect of:
(a) preventing Telstra from complying with the final migration
plan; or
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Competition and Consumer Act 2010 335
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(b) requiring Telstra to engage in conduct in connection with
matters covered by the final migration plan.
152BCD Fixed principles provisions
(1) An access determination may include a provision that is specified
in the determination to be a fixed principles provision.
(2) If a fixed principles provision is included in an access
determination, the determination must provide that a specified date
is the nominal termination date for the fixed principles provision.
The nominal termination date may be later than the expiry date for
the determination.
(3) If:
(a) an access determination (the replacement access
determination) is expressed to replace a previous access
determination; and
(b) the previous access determination included a fixed principles
provision; and
(c) the nominal termination date for the fixed principles
provision is later than the day on which the replacement
access determination comes into force;
then:
(d) the replacement access determination must include a
provision in the same terms as the fixed principles provision;
and
(e) the provision must be specified in the replacement access
determination to be a fixed principles provision; and
(f) the nominal termination date for the fixed principles
provision so included in the replacement access
determination must be the same as, or later than, the nominal
termination date for the fixed principles provision included in
the previous access determination; and
(g) if the previous access determination provided that the
previous access determination must not be varied so as to
alter or remove the fixed principles provision—the
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336 Competition and Consumer Act 2010
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replacement access determination must provide that the
replacement access determination must not be varied so as to
alter or remove the fixed principles provision; and
(h) if the previous access determination provided that the
previous access determination must not be varied so as to
alter or remove the fixed principles provision except in such
circumstances as are specified in the previous access
determination:
(i) the replacement access determination must provide that
the replacement access determination must not be varied
so as to alter or remove the fixed principles provision
except in such circumstances as are specified in the
replacement access determination; and
(ii) those circumstances must be the same as the
circumstances specified in the previous access
determination.
(4) If:
(a) a fixed principles provision is included in an access
determination; and
(b) the access determination ceases to be in force before the
nominal termination date for the fixed principles provision;
the fixed principles provision ceases to be in force when the access
determination ceases to be in force.
Note: Even though a fixed principles provision ceases to be in force when
the access determination ceases to be in force, subsection (3) requires
that a replacement access determination include a provision in the
same terms as the fixed principles provision.
(5) If a fixed principles provision is included in an access
determination, the access determination must:
(a) provide that the access determination must not be varied so
as to alter or remove the fixed principles provision; or
(b) provide that the access determination must not be varied so
as to alter or remove the fixed principles provision except in
such circumstances as are specified in the access
determination.
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Section 152BCE
Competition and Consumer Act 2010 337
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152BCE Access determinations may be set out in the same document
Two or more access determinations may be set out in the same
document.
152BCF Duration of access determination
(1) An access determination relating to access to a declared service:
(a) comes into force on the day specified in the determination as
the day on which the determination is to come into force; and
(b) unless sooner revoked, ceases to be in force on the expiry
date for the determination.
(2) The specified day may be earlier than the day on which the
determination was made.
(2A) The specified day must not be earlier than the date of
commencement of this section.
(3) If the declared service is covered by a declaration under
section 152AL, and the declaration is not a fresh declaration that
replaces a previous declaration, the specified day must not be
earlier than the day on which the declaration came into force.
(3A) If the declared service is covered by subsection 152AL(7), the
specified day must not be earlier than the day on which the service
became a declared service under that subsection.
(3B) If the declared service is covered by subsection 152AL(8D), the
specified day must not be earlier than the day on which the service
became a declared service under that subsection.
(3C) If the declared service is covered by subsection 152AL(8E), the
specified day must not be earlier than the day on which the service
became a declared service under that subsection.
(4) If:
(a) an access determination is expressed to replace a previous
access determination relating to access to the declared
service; and
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338 Competition and Consumer Act 2010
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(b) the previous access determination is not an interim access
determination;
the specified day must be the first day after the expiry of the
previous access determination.
(4A) If:
(a) an access determination is expressed to replace a previous
access determination relating to access to the declared
service; and
(b) the previous access determination is an interim access
determination; and
(c) the declared service is covered by a declaration under
section 152AL;
the specified day must not be earlier than the day on which the
declaration came into force.
Expiry date
(5) An access determination must specify an expiry date for the
determination.
(6) In specifying an expiry date for an access determination, the
Commission must have regard to:
(a) in a case where the declared service is covered by a
declaration under section 152AL—the principle that the
expiry date for the determination should be the same as the
expiry date for the declaration (as that declaration stood at
the time when the access determination was made) unless, in
the Commission’s opinion, there are circumstances that
warrant the specification of another date as the expiry date
for the access determination; and
(b) such other matters (if any) as the Commission considers
relevant.
(7) If an access determination expires, this Part does not prevent the
Commission from making a fresh access determination under
section 152BC in the same terms as the expired access
determination.
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Section 152BCF
Competition and Consumer Act 2010 339
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Automatic revocation of access determination
(8) If:
(a) an access determination relating to access to a declared
service is in force; and
(b) the declared service is covered by a declaration under
section 152AL, and the declaration ceases to be in force; and
(c) the Commission does not make a fresh declaration under
section 152AL that replaces the declaration referred to in
paragraph (b) of this subsection;
the access determination is taken to be revoked at the time of the
cessation.
(9) If:
(a) an access determination relating to access to a declared
service is in force; and
(b) the declared service is covered by a declaration under
section 152AL, and the declaration is revoked; and
(c) the Commission does not make a fresh declaration under
section 152AL that replaces the declaration referred to in
paragraph (b) of this subsection;
the access determination is taken to be revoked at the time of the
revocation of the declaration.
(9A) If:
(a) an interim access determination relating to access to a
declared service is in force; and
(b) a final access determination relating to access to the declared
service comes into force;
the interim access determination is taken to be revoked at the time
when the final access determination comes into force.
Extension of access determination
(10) If:
(a) an access determination (the original access determination)
relating to access to a declared service is in force; and
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Section 152BCF
340 Competition and Consumer Act 2010
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(b) the Commission has commenced to hold a public inquiry
under Part 25 of the Telecommunications Act 1997 about a
proposal to make another access determination in relation to
access to the service; and
(c) the Commission considers that it will make the other access
determination, but will not be in a position to do so before
the expiry date for the original access determination;
the Commission may, by writing, declare that the expiry date for
the original access determination is taken to be the day
immediately before the day on which the other access
determination comes into force.
(11) The Commission must publish a declaration under subsection (10)
on the Commission’s website.
(12) If:
(a) after holding a public inquiry under subsection 152ALA(7) in
relation to a section 152AL declaration, the Commission:
(i) extends or further extends the expiry date for the
declaration by a period of not more than 12 months; and
(ii) decides to allow the declaration to expire after the end
of that period; and
(b) an access determination is in force in relation to access to the
declared service;
the Commission may, by writing, extend the expiry date for the
access determination by the same period.
(13) The Commission must publish an instrument under subsection (12)
on the Commission’s website.
(14) The Commission is not required to observe any requirements of
procedural fairness in relation to a decision under subsection (10)
or (12).
(15) A declaration under subsection (10) is not a legislative instrument.
(16) An instrument under subsection (12) is not a legislative instrument.
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Section 152BCG
Competition and Consumer Act 2010 341
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152BCG Interim access determinations
(1) If:
(a) the Commission makes a declaration under section 152AL
after the commencement of this section; and
(b) the declaration is not a fresh declaration that replaces a
previous declaration; and
(c) the Commission has commenced to hold a public inquiry
under Part 25 of the Telecommunications Act 1997 about a
proposal to make an access determination in relation to
access to the declared service; and
(d) either:
(i) the Commission considers that it is unlikely that a final
access determination in relation to access to the service
will be made within 6 months after the commencement
of the public inquiry; or
(ii) the Commission considers that there is an urgent need to
make an access determination in relation to access to the
service before the completion of the public inquiry;
the Commission must make an interim access determination in
relation to access to the service.
(2) If:
(a) a declaration is in force under section 152AL; and
(b) no access determination has previously been made in relation
to access to the declared service;
the Commission may make an interim access determination in
relation to access to the service.
(3) The day specified in an interim access determination as the day on
which the determination is to come into force must not be earlier
than the day on which the declaration mentioned in
paragraph (1)(a) or (2)(a), as the case may be, came into force.
(4) The Commission is not required to observe any requirements of
procedural fairness in relation to the making of an interim access
determination.
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Section 152BCGA
342 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(5) The Commission must not make an interim access determination
otherwise than in accordance with this section.
152BCGA Stay of access determinations
(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the
Administrative Decisions (Judicial Review) Act 1977 do not apply
to a decision of the Commission to make an access determination.
(2) If a person applies to the Federal Court under subsection 39B(1) of
the Judiciary Act 1903 for a writ or injunction in relation to a
decision of the Commission to make an access determination, the
Court must not make any orders staying or otherwise affecting the
operation or implementation of the decision pending the
finalisation of the application.
Subdivision B—Public inquiries about proposals to make access
determinations
152BCH Access determination to be made after public inquiry
(1) The Commission must not make an access determination unless:
(a) the Commission has held a public inquiry under Part 25 of
the Telecommunications Act 1997 about a proposal to make
the determination; and
(b) the Commission has prepared a report about the inquiry
under section 505 of the Telecommunications Act 1997; and
(c) the report was published during the 180-day period ending
when the determination was made.
(2) Subsection (1) does not apply to an interim access determination.
(3) Subsection (1) has effect subject to section 152BCI.
152BCI When public inquiry must be held
(1) If:
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Section 152BCI
Competition and Consumer Act 2010 343
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(a) the Commission makes a declaration under section 152AL
after the commencement of this section; and
(b) no access determination has previously been made in relation
to access to the declared service;
the Commission must, within 30 days after the declaration is made,
commence to hold a public inquiry under Part 25 of the
Telecommunications Act 1997 about a proposal to make an access
determination relating to access to the declared service.
(2) If:
(a) a declaration is in force under section 152AL immediately
after the commencement of this section; and
(b) no access determination has previously been made in relation
to access to the declared service;
the Commission must, during the 12-month period beginning at the
commencement of this section, commence to hold a public inquiry
under Part 25 of the Telecommunications Act 1997 about a
proposal to make an access determination relating to access to the
declared service.
(3) If:
(a) a declaration is in force under section 152AL; and
(b) an access determination has previously been made in relation
to access to the declared service;
the Commission must, during the period:
(c) beginning 18 months before the expiry date for the access
determination; and
(d) ending 6 months before the expiry date for the access
determination;
commence to hold a public inquiry under Part 25 of the
Telecommunications Act 1997 about a proposal to make an access
determination relating to access to the declared service.
(4) Subsection (3) has effect subject to subsections (5), (6) and (7).
(5) If:
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Section 152BCI
344 Competition and Consumer Act 2010
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(a) a declaration (the current declaration) is in force under
section 152AL; and
(b) an access determination has previously been made in relation
to access to the declared service; and
(c) the expiry date of the current declaration is extended or
further extended for a period of not more than 12 months;
and
(d) the Commission decides to allow the current declaration to
expire without making a new declaration under
section 152AL;
the Commission is not required to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
make an access determination relating to access to the declared
service.
(6) If:
(a) a declaration is in force under section 152AL; and
(b) an access determination (the current determination) is in
force in relation to access to the declared service; and
(c) the Commission commences to hold a public inquiry under
subsection 152ALA(7) in relation to the declaration;
then:
(d) the Commission may defer holding a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal
to make an access determination relating to access to the
declared service until the Commission decides whether to
extend or further extend the expiry date for the declaration;
and
(e) if the Commission decides to extend or further extend the
expiry date for the declaration—the Commission must
commence to hold such a public inquiry before the expiry
date for the current access determination; and
(f) if the Commission decides not to extend or further extend the
expiry date for the declaration—the Commission is not
required to hold such a public inquiry.
(7) If:
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Section 152BCJ
Competition and Consumer Act 2010 345
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) a declaration is in force under section 152AL; and
(b) an access determination has previously been made in relation
to access to the declared service; and
(c) after holding a public inquiry under subsection 152ALA(7) in
relation to the declaration, the Commission decides to allow
the declaration to expire without making a new declaration
under section 152AL;
the Commission is not required to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
make an access determination relating to access to the declared
service.
Note: If a service is a declared service under subsection 152AL(7) (which
deals with special access undertakings), there is no need for the
Commission to make a declaration of the service under
section 152AL.
(8) Despite anything else in this section, if:
(a) the Commission makes binding rules of conduct that relate to
access to a declared service; and
(b) no access determination is in force in relation to access to the
declared service;
the Commission must, within 30 days after the binding rules of
conduct are made, commence to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
make an access determination relating to access to the declared
service.
152BCJ Combined inquiries about proposals to make access
determinations
(1) The Commission may decide to combine 2 or more public inquiries
of a kind mentioned in section 152BCH.
(2) If the Commission makes such a decision:
(a) the Commission may publish a single notice relating to the
combined inquiry under section 498 of the
Telecommunications Act 1997; and
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Section 152BCK
346 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) the Commission may prepare a single discussion paper about
the combined inquiry under section 499 of that Act; and
(c) the Commission may hold hearings relating to the combined
inquiry under section 501 of that Act; and
(d) the Commission must ensure that each inquiry is covered by
a report under section 505 of that Act, whether the report
relates:
(i) to a single one of those inquiries; or
(ii) to any 2 or more of those inquiries.
152BCK Time limit for making an access determination
(1) This section applies if the Commission commences to hold a public
inquiry under Part 25 of the Telecommunications Act 1997 about a
proposal to make an access determination, and the declared service
to which the access determination relates is not covered by
subsection 152AL(8D).
(2) The Commission must make a final access determination within 6
months after that commencement.
Extension of decision-making period
(3) The Commission may, by written notice published on its website,
extend or further extend the 6-month period referred to in
subsection (2), so long as:
(a) the extension or further extension is for a period of not more
than 6 months; and
(b) the notice includes a statement explaining why the
Commission has been unable to make a final access
determination within that 6-month period or that 6-month
period as previously extended, as the case may be.
Note: The Commission may be required to make an interim access
determination—see section 152BCG.
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Section 152BCN
Competition and Consumer Act 2010 347
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Subdivision C—Variation or revocation of access
determinations
152BCN Variation or revocation of access determinations
(1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a
power conferred on the Commission by section 152BC, but it
applies with the following changes.
(2) The Commission is not required to hold a public inquiry under
Part 25 the Telecommunications Act 1997 about a proposal to vary
an access determination if:
(a) the variation is of a minor nature; or
(b) each:
(i) carrier or carriage service provider; and
(ii) access seeker;
whose interests are likely to be affected by the variation has
consented in writing to the variation.
(3) The Commission is not required to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
revoke an access determination if the Commission is satisfied that
each:
(a) carrier or service provider; and
(b) access seeker;
whose interests are likely to be affected by the revocation has
consented in writing to the revocation.
(4) If a fixed principles provision is included in an access
determination:
(a) a provision referred to in paragraph 152BCD(5)(a) or (b)
cannot be varied or removed; and
(b) the access determination must not be varied in a manner that
is inconsistent with a provision referred to in
paragraph 152BCD(5)(a) or (b).
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Section 152BCN
348 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(5) The Commission does not have a duty to consider whether to
exercise the power to vary or revoke an access determination,
whether the Commission is requested to do so by another person,
or in any other circumstances.
(6) If the Commission has commenced to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
vary an access determination, the Commission may alter the
proposed variation.
(7) Notice of the alteration is to be published in the same way in which
a notice relating to the public inquiry was published under
section 498 of the Telecommunications Act 1997.
(8) Subsection (7) does not apply in relation to an alteration if:
(a) the alteration is of a minor nature; or
(b) each:
(i) carrier or carriage service provider; and
(ii) access seeker;
whose interests are likely to be affected by the alteration has
consented in writing to the alteration.
(9) Despite anything else in this section, if:
(a) the Commission makes binding rules of conduct that relate to
access to a declared service; and
(b) an access determination is in force in relation to access to the
declared service;
the Commission must, within 30 days after the binding rules of
conduct are made, commence to hold a public inquiry under
Part 25 of the Telecommunications Act 1997 about a proposal to
vary the access determination.
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Section 152BCO
Competition and Consumer Act 2010 349
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Subdivision D—Compliance with access determinations
152BCO Carrier licence condition
A carrier licence held by a carrier is subject to a condition that the
carrier must comply with any access determinations that are
applicable to the carrier.
152BCP Service provider rule
(1) In addition to the rules mentioned in section 98 of the
Telecommunications Act 1997, the rule set out in subsection (2) of
this section is a service provider rule for the purposes of that Act.
(2) A carriage service provider must comply with any access
determinations that are applicable to the provider.
Subdivision E—Private enforcement of access determinations
152BCQ Private enforcement of access determinations
(1) If the Federal Court is satisfied, on the application of:
(a) an access seeker; or
(b) a carrier; or
(c) a carriage service provider;
that a person has engaged, is engaging, or is proposing to engage in
conduct that constitutes a contravention of an access determination,
the Court may make any or all of the following orders:
(d) an order granting an injunction on such terms as the Court
thinks appropriate:
(i) restraining the person from engaging in the conduct; or
(ii) if the conduct involves refusing or failing to do
something—requiring the person to do that thing;
(e) an order directing the person to compensate the applicant for
loss or damage suffered as a result of the contravention;
(f) any other order that the Court thinks appropriate.
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Section 152BCR
350 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) The revocation or expiry of an access determination does not affect
any remedy under subsection (1) in respect of a contravention of
the access determination that occurred when the access
determination was in force.
(3) If the Federal Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular
conduct, or requiring a person to do anything, the Court may make
any other orders (including granting an injunction) that it thinks
appropriate against any other person who was involved in the
contravention concerned.
(4) A reference in this section to a person involved in the
contravention is a reference to a person who has:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced the contravention, whether through threats or
promises or otherwise; or
(c) been in any way (directly or indirectly) knowingly concerned
in or a party to the contravention; or
(d) conspired with others to effect the contravention.
152BCR Consent injunctions
On an application for an injunction under section 152BCQ, the
Federal Court may grant an injunction by consent of all of the
parties to the proceedings, whether or not the Court is satisfied that
the section applies.
152BCS Interim injunctions
The Federal Court may grant an interim injunction pending
determination of an application under section 152BCQ.
152BCT Factors relevant to granting a restraining injunction
The power of the Federal Court to grant an injunction under
section 152BCQ restraining a person from engaging in conduct
may be exercised whether or not:
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Section 152BCU
Competition and Consumer Act 2010 351
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) it appears to the Court that the person intends to engage
again, or to continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person engages in conduct of
that kind.
152BCU Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant an injunction under
section 152BCQ requiring a person to do a thing may be exercised
whether or not:
(a) it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person refuses or fails to do that
thing.
152BCV Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order
granted under this Subdivision.
Subdivision F—Register of Access Determinations
152BCW Register of Access Determinations
(1) The Commission is to maintain a register, to be known as the
Register of Access Determinations, in which the Commission
includes all access determinations in force.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Commission’s website.
(4) The Register is not a legislative instrument.
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Section 152BCW
352 Competition and Consumer Act 2010
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(5) If the Commission is satisfied that:
(a) publication of a particular provision of an access
determination could reasonably be expected to prejudice
substantially the commercial interests of a person; and
(b) the prejudice outweighs the public interest in the publication
of the provision;
the Commission may remove the provision from the version of the
access determination that is included in the Register.
(6) If the Commission does so, the Commission must include in the
Register an annotation to that effect.
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Binding rules of conduct Division 4A
Section 152BD
Competition and Consumer Act 2010 353
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 4A—Binding rules of conduct
Subdivision A—Commission may make binding rules of
conduct
152BD Binding rules of conduct
(1) The Commission may make written rules that:
(a) specify any or all of the terms and conditions on which a
carrier or carriage service provider is to comply with any or
all of the standard access obligations applicable to the carrier
or provider in relation to a specified declared service; or
(b) require a carrier or carriage service provider to comply with
any or all of the standard access obligations applicable to the
carrier or provider in relation to a specified declared service
in a manner specified in the rules;
if the Commission considers that there is an urgent need to do so.
Note: For variation and revocation, see subsection 33(3) of the Acts
Interpretation Act 1901.
(2) Rules under subsection (1) are to be known as binding rules of
conduct.
(3) Binding rules of conduct may be of general application or may be
limited as provided in the rules.
(4) In particular, binding rules of conduct may be limited to:
(a) particular carriers or carriage service providers; or
(b) particular classes of carriers or carriage service providers; or
(c) particular access seekers; or
(d) particular classes of access seekers.
(4A) Binding rules of conduct may be expressed to be NBN-specific
binding rules of conduct.
(4B) Binding rules of conduct do not apply in relation to access to a
declared service to the extent to which the service is supplied, or is
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Division 4A Binding rules of conduct
Section 152BDAA
354 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
capable of being supplied, by an NBN corporation unless the
binding rules of conduct are expressed to be NBN-specific binding
rules of conduct.
(4C) If binding rules of conduct are expressed to be NBN-specific
binding rules of conduct, the binding rules of conduct do not apply
in relation to access to a declared service to the extent to which the
service is supplied, or is capable of being supplied, by a person
other than an NBN corporation.
(5) Subsection (4) does not, by implication, limit subsection 33(3A) of
the Acts Interpretation Act 1901.
(6) The Commission is not required to observe any requirements of
procedural fairness in relation to the making of binding rules of
conduct.
(7) The Commission does not have a duty to consider whether to make
binding rules of conduct, whether at the request of a person or in
any other circumstances.
(8) Binding rules of conduct may provide for the Commission to
perform functions, and exercise powers, under the rules.
(9) An instrument under subsection (1) is not a legislative instrument.
152BDAA Matters that the Commission must take into account
(1) The Commission must take the following matters into account in
making binding rules of conduct:
(a) whether the binding rules of conduct will promote the
long-term interests of end-users of carriage services or of
services supplied by means of carriage services;
(b) the legitimate business interests of a carrier or carriage
service provider who supplies, or is capable of supplying, the
declared service, and the carrier’s or provider’s investment in
facilities used to supply the declared service;
(c) the interests of all persons who have rights to use the
declared service;
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Section 152BDAA
Competition and Consumer Act 2010 355
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(d) the direct costs of providing access to the declared service;
(e) the value to a person of extensions, or enhancement of
capability, whose cost is borne by someone else;
(f) the operational and technical requirements necessary for the
safe and reliable operation of a carriage service, a
telecommunications network or a facility;
(g) the economically efficient operation of a carriage service, a
telecommunications network or a facility.
(2) If a carrier or carriage service provider who supplies, or is capable
of supplying, the declared service supplies one or more other
eligible services, then, in making binding rules of conduct that are
applicable to the carrier or provider, as the case may be, the
Commission may take into account:
(a) the characteristics of those other eligible services; and
(b) the costs associated with those other eligible services; and
(c) the revenues associated with those other eligible services;
and
(d) the demand for those other eligible services.
(3) The Commission may take into account any other matters that it
thinks are relevant.
(4) The Commission is not required by subsection (1) or (2) to take a
matter into account if it is not reasonably practicable for the
Commission to do so, having regard to the urgent need to make the
binding rules of conduct.
(5) For the purposes of taking a particular matter into account under
this section, the Commission is not required to obtain information,
or further information, that is not already in the possession of the
Commission if it is not reasonably practicable for the Commission
to do so, having regard to the urgent need to make the binding rules
of conduct.
(6) In this section:
eligible service has the same meaning as in section 152AL.
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Part XIC Telecommunications access regime
Division 4A Binding rules of conduct
Section 152BDA
356 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152BDA Restrictions on binding rules of conduct
(1) The Commission must not make binding rules of conduct that
would have any of the following effects:
(a) preventing a service provider who already has access to the
declared service from obtaining a sufficient amount of the
service to be able to meet the service provider’s reasonably
anticipated requirements, measured at the time when the
access seeker made a request in relation to the service under
section 152AR or 152AXB;
(b) preventing a carrier or carriage service provider from
obtaining a sufficient amount of the service to be able to
meet the carrier’s or provider’s reasonably anticipated
requirements, measured at the time when the access seeker
made a request in relation to the service under section 152AR
or 152AXB;
(c) preventing a person from obtaining, by the exercise of a
pre-rules right, a sufficient level of access to the declared
service to be able to meet the person’s actual requirements;
(d) depriving any person of a protected contractual right;
(e) resulting in an access seeker becoming the owner (or one of
the owners) of any part of a facility without the consent of
the owner of the facility;
(f) requiring a person (other than an access seeker) to bear an
unreasonable amount of the costs of:
(i) extending or enhancing the capability of a facility; or
(ii) maintaining extensions to or enhancements of the
capability of a facility;
(g) requiring a carrier or carriage service provider to provide an
access seeker with access to a declared service if there are
reasonable grounds to believe that:
(i) the access seeker would fail, to a material extent, to
comply with the terms and conditions on which the
carrier or provider provides, or is reasonably likely to
provide, that access; or
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Section 152BDA
Competition and Consumer Act 2010 357
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(ii) the access seeker would fail, in connection with that
access, to protect the integrity of a telecommunications
network or to protect the safety of individuals working
on, or using services supplied by means of, a
telecommunications network or a facility.
(2) Examples of grounds for believing as mentioned in
subparagraph (1)(g)(i) include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the carrier or carriage
service provider).
(3) The Commission must not make binding rules of conduct that are
inconsistent with any of the standard access obligations that are, or
will be, applicable to a carrier or carriage service provider.
(3A) If a final migration plan is in force, the Commission must not make
binding rules of conduct that would have the effect of requiring
Telstra to engage in conduct in connection with matters covered by
the final migration plan.
(3B) The Commission must not make binding rules of conduct that
would have the effect of:
(a) requiring an NBN corporation to engage in conduct that is
inconsistent with conduct authorised under
subsection 151DA(2) or (3) for the purposes of
subsection 51(1); or
(b) preventing an NBN corporation from giving a refusal that is
authorised under subsection 151DA(3) for the purposes of
subsection 51(1).
(3C) The Commission must not make binding rules of conduct that
would have the effect of preventing an NBN corporation from
engaging in conduct that is reasonably necessary to achieve
uniform national pricing of eligible services supplied by the NBN
corporation to service providers and utilities.
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Division 4A Binding rules of conduct
Section 152BDA
358 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3D) In subsection (3C), eligible services, uniform national pricing and
utilities have the same meaning as in section 151DA.
(4) If the Commission makes binding rules of conduct that have the
effect of depriving a person (the second person) of a pre-rules right
to require the carrier or provider to provide access to the declared
service to the second person, the rules must also require the access
seeker:
(a) to pay to the second person such amount (if any) as the
Commission considers is fair compensation for the
deprivation; and
(b) to reimburse the carrier or provider and the Commonwealth
for any compensation that the carrier or provider or the
Commonwealth agrees, or is required by a court order, to pay
to the second person as compensation for the deprivation.
(4A) The Commission must not make binding rules of conduct that:
(a) relate to any or all of the category B standard access
obligations applicable to an NBN corporation; and
(b) have the effect (whether direct or indirect) of discriminating
between access seekers.
Note: For explanatory material, see section 152CJH.
(4B) Subsection (4A) does not prevent discrimination against an access
seeker if the Commission has reasonable grounds to believe that
the access seeker would fail, to a material extent, to comply with
the terms and conditions on which the NBN corporation complies,
or on which the NBN corporation is reasonably likely to comply,
with the relevant obligation.
(4C) Examples of grounds for believing as mentioned in subsection (4B)
include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the NBN corporation).
(4G) The Commission must not make binding rules of conduct that:
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Section 152BDA
Competition and Consumer Act 2010 359
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(a) relate to a declared service that is:
(i) a Layer 2 bitstream service; and
(ii) supplied using a designated superfast
telecommunications network; and
(iii) supplied by a carrier (other than an NBN corporation) or
a carriage service provider (other than an NBN
corporation); and
(b) have the effect (whether direct or indirect) of discriminating
between access seekers.
Note: For explanatory material, see section 152CJH.
(4H) Subsection (4G) does not prevent discrimination against an access
seeker if the Commission has reasonable grounds to believe that
the access seeker would fail, to a material extent, to comply with
the terms and conditions on which the carrier or carriage service
provider complies, or on which the carrier or carriage service
provider is reasonably likely to comply, with the relevant
obligation.
(4J) Examples of grounds for believing as mentioned in
subsection (4H) include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the
terms and conditions on which the same or similar access has
been provided (whether or not by the carrier or carriage
service provider).
(5) Binding rules of conduct are of no effect to the extent to which
they contravene subsection (1), (3), (3A), (3B), (3C), (4A) or (4G).
(6) In this section:
pre-rules right means a right under a contract that was in force
immediately before the binding rules of conduct came into force.
protected contractual right means a right under a contract that was
in force at the beginning of 13 September 1996.
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Division 4A Binding rules of conduct
Section 152BDB
360 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152BDB Access agreements prevail over inconsistent binding rules
of conduct
If binding rules of conduct are applicable to the following parties:
(a) a carrier or carriage service provider;
(b) an access seeker;
the binding rules of conduct have no effect to the extent to which
they are inconsistent with an access agreement that is applicable to
those parties.
152BDC Duration of binding rules of conduct
(1) Binding rules of conduct come into force on the day specified in
the rules as the day on which the rules are to come into force.
(2) Binding rules of conduct must specify an expiry date for the rules.
(3) An expiry date must occur in the 12-month period beginning when
the rules were made.
(4) Unless sooner revoked, binding rules of conduct cease to be in
force on the expiry date for the rules.
152BDCA Final migration plan prevails over inconsistent binding
rules of conduct
If a final migration plan is in force, binding rules of conduct have
no effect to the extent to which they would have the effect of:
(a) preventing Telstra from complying with the final migration
plan; or
(b) requiring Telstra to engage in conduct in connection with
matters covered by the final migration plan.
152BDD Commission must give copy of binding rules of conduct to
carrier etc.
If binding rules of conduct are limited to a particular carrier,
carriage service provider or access seeker, as soon as practicable
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Binding rules of conduct Division 4A
Section 152BDE
Competition and Consumer Act 2010 361
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
after making the rules, the Commission must give a copy of the
rules to the carrier, carriage service provider or access seeker, as
the case may be.
152BDE Access determinations that are inconsistent with binding
rules of conduct
If a provision of an access determination (other than a fixed
principles provision) is inconsistent with binding rules of conduct,
the provision has no effect to the extent of the inconsistency.
152BDEA Stay of binding rules of conduct
(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the
Administrative Decisions (Judicial Review) Act 1977 do not apply
to a decision of the Commission to make binding rules of conduct.
(2) If a person applies to the Federal Court under subsection 39B(1) of
the Judiciary Act 1903 for a writ or injunction in relation to a
decision of the Commission to make binding rules of conduct, the
Court must not make any orders staying or otherwise affecting the
operation or implementation of the decision pending the
finalisation of the application.
Subdivision B—Compliance with binding rules of conduct
152BDF Carrier licence condition
A carrier licence held by a carrier is subject to a condition that the
carrier must comply with any binding rules of conduct that are
applicable to the carrier.
152BDG Service provider rule
(1) In addition to the rules mentioned in section 98 of the
Telecommunications Act 1997, the rule set out in subsection (2) of
this section is a service provider rule for the purposes of that Act.
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Division 4A Binding rules of conduct
Section 152BDH
362 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) A carriage service provider must comply with any binding rules of
conduct that are applicable to the provider.
Subdivision C—Private enforcement of binding rules of
conduct
152BDH Private enforcement of binding rules of conduct
(1) If the Federal Court is satisfied, on the application of:
(a) an access seeker; or
(b) a carrier; or
(c) a carriage service provider;
that a person has engaged, is engaging, or is proposing to engage in
conduct that constitutes a contravention of binding rules of
conduct, the Court may make any or all of the following orders:
(d) an order granting an injunction on such terms as the Court
thinks appropriate:
(i) restraining the person from engaging in the conduct; or
(ii) if the conduct involves refusing or failing to do
something—requiring the person to do that thing;
(e) an order directing the person to compensate the applicant for
loss or damage suffered as a result of the contravention;
(f) any other order that the Court thinks appropriate.
(2) The revocation or expiry of binding rules of conduct does not
affect any remedy under subsection (1) in respect of a
contravention of the rules that occurred when the rules were in
force.
(3) If the Federal Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular
conduct, or requiring a person to do anything, the Court may make
any other orders (including granting an injunction) that it thinks
appropriate against any other person who was involved in the
contravention concerned.
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Section 152BDI
Competition and Consumer Act 2010 363
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(4) A reference in this section to a person involved in the
contravention is a reference to a person who has:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced the contravention, whether through threats or
promises or otherwise; or
(c) been in any way (directly or indirectly) knowingly concerned
in or a party to the contravention; or
(d) conspired with others to effect the contravention.
152BDI Consent injunctions
On an application for an injunction under section 152BDH, the
Federal Court may grant an injunction by consent of all of the
parties to the proceedings, whether or not the Court is satisfied that
the section applies.
152BDJ Interim injunctions
The Federal Court may grant an interim injunction pending
determination of an application under section 152BDH.
152BDK Factors relevant to granting a restraining injunction
The power of the Federal Court to grant an injunction under
section 152BDH restraining a person from engaging in conduct
may be exercised whether or not:
(a) it appears to the Court that the person intends to engage
again, or to continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person engages in conduct of
that kind.
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Division 4A Binding rules of conduct
Section 152BDL
364 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152BDL Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant an injunction under
section 152BDH requiring a person to do a thing may be exercised
whether or not:
(a) it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person refuses or fails to do that
thing.
152BDM Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order
granted under this Subdivision.
Subdivision D—Register of Binding Rules of Conduct
152BDN Register of Binding Rules of Conduct
(1) The Commission is to maintain a register, to be known as the
Register of Binding Rules of Conduct, in which the Commission
includes all binding rules of conduct in force.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Commission’s website.
(4) The Register is not a legislative instrument.
(5) If the Commission is satisfied that:
(a) publication of a particular provision of binding rules of
conduct could reasonably be expected to prejudice
substantially the commercial interests of a person; and
(b) the prejudice outweighs the public interest in the publication
of the provision;
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Section 152BDN
Competition and Consumer Act 2010 365
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
the Commission may remove the provision from the version of the
rules that is included in the Register.
(6) If the Commission does so, the Commission must include in the
Register an annotation to that effect.
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Part XIC Telecommunications access regime
Division 4B Access agreements
Section 152BE
366 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 4B—Access agreements
152BE Access agreements
(1) For the purposes of this Part, an access agreement is an agreement,
where:
(a) the agreement is in writing; and
(b) the agreement is legally enforceable; and
(c) the agreement relates to access to a declared service; and
(d) the parties to the agreement are:
(i) an access seeker; and
(ii) the carrier or carriage service provider who supplies, or
proposes to supply, the declared service; and
(e) any of the following subparagraphs applies:
(i) the agreement embodies any or all of the terms and
conditions on which the carrier or carriage service
provider is to comply with any or all of the standard
access obligations applicable to the carrier or provider;
(ii) if an access determination imposes requirements on a
carrier or carriage service provider in relation to access
to the declared service, as mentioned in
paragraph 152BC(3)(e)—the agreement embodies any
or all of the terms and conditions on which the carrier or
carriage service provider is to comply with any or all of
those requirements;
(iii) the agreement embodies any other terms and conditions
of the access seeker’s access to the declared service;
(iv) the agreement requires the carrier or carriage service
provider to comply with any or all of the standard
access obligations applicable to the carrier or provider
in a manner specified in the agreement;
(v) the agreement requires the carrier or carriage service
provider to extend or enhance the capability of a facility
by means of which the declared service is supplied;
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Section 152BE
Competition and Consumer Act 2010 367
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(vi) the agreement imposes other requirements on the carrier
or carriage service provider in relation to access to the
declared service;
(vii) the agreement specifies the terms and conditions on
which the carrier or carriage service provider is to
comply with any or all of those other requirements;
(viii) the agreement requires the access seeker to accept, and
pay for, access to the declared service;
(ix) the agreement provides that any or all of the obligations
referred to in section 152AR are not applicable to the
carrier or carriage service provider, either
unconditionally or subject to such conditions or
limitations as are specified in the agreement;
(x) the agreement restricts or limits the application to the
carrier or carriage service provider of any or all of the
obligations referred to in section 152AR;
(xi) the agreement deals with any other matter relating to
access to the declared service.
(1A) Paragraph (1)(b) does not apply to the agreement to the extent (if
any) to which the agreement is covered by subparagraph (1)(e)(ix)
or (x).
(1B) Subparagraphs (1)(e)(ix) and (x) do not apply to an agreement that
relates to a declared service that is a Layer 2 bitstream service
supplied using a designated superfast telecommunications network.
(2) If:
(a) an agreement relates to access to an eligible service (within
the meaning of section 152AN( � and
(b) at the time the agreement was entered into to, the eligible
service was a not a declared service; and
(c) at a later time (the declaration time), the eligible service
becomes a declared service; and
(d) if the agreement had been entered into immediately after the
declaration time, the agreement would have been an access
agreement;
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Division 4B Access agreements
Section 152BEA
368 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
the agreement becomes an access agreement immediately after the
declaration time.
(3) If:
(a) an access agreement is varied by another agreement (the
variation agreement); and
(b) the variation agreement is in writing; and
(c) the variation agreement is legally enforceable;
a reference in this Part to the access agreement is a reference to the
access agreement as varied by the variation agreement.
(4) It is immaterial whether an access agreement or variation
agreement was entered into before or after the commencement of
this section.
(5) An access agreement is not a legislative instrument.
(6) A variation agreement is not a legislative instrument.
152BEA Quarterly reports about access agreements
(1) Within 30 days after the end of each quarter, a carrier or carriage
service provider who supplies, or proposes to supply, a declared
service must give the Commission a written statement setting out
details of any access agreement in relation to the service in force at
any time during that quarter.
(2) The details that must be given under subsection (1) are:
(a) the parties to the agreement; and
(b) the service to which the agreement relates; and
(c) the date the agreement was entered into; and
(d) the period of the agreement; and
(e) if the agreement was varied during the quarter—the details
referred to in paragraphs (a) to (d) and (g) in relation to the
variation agreement; and
(f) if the agreement was terminated, rescinded or cancelled
before the expiry of the agreement—the date the agreement
was terminated, rescinded or cancelled; and
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Access agreements Division 4B
Section 152BEB
Competition and Consumer Act 2010 369
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(g) such information (if any) about the agreement as is specified
in an instrument in force under subsection (3).
(3) The Commission may, by writing, specify information for the
purposes of paragraph (2)(g).
(4) An instrument under subsection (3) (including the instrument as
amended) ceases to be in force 5 years after the day it is made
(unless it is revoked sooner).
(5) The Commission must publish an instrument under subsection (3)
on the Commission’s website.
(6) An instrument under subsection (3) is not a legislative instrument.
(7) The Commission may, by writing, require information in a
statement given to the Commission under this section to be verified
by statutory declaration.
(8) This section does not limit section 155.
152BEB Commission may request copy of access agreement or
variation agreement
(1) The Commission may, by writing, request a carrier or carriage
service provider who supplies, or proposes to supply, a declared
service to provide a copy of either or both of the following:
(a) an access agreement in relation to the service;
(b) a variation agreement for an access agreement in relation to
the service.
Note: The Procedural Rules may provide for the practice and procedure to
be followed by the Commission in making a request under this
subsection.
(2) The carrier or carriage service provider must provide a copy of the
document within 10 days after the day the request was made under
subsection (1).
(3) An instrument under subsection (1) is not a legislative instrument.
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Division 4B Access agreements
Section 152BEBA
370 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(4) This section does not limit section 155.
152BEBA NBN corporation to give the Commission a statement
about the differences between an access agreement and a
standard form of access agreement
Access agreement
(1) If:
(a) an access agreement is covered by subsection 152BE(1); and
(b) the carrier or carriage service provider who supplies, or
proposes to supply, the declared service is an NBN
corporation; and
(c) immediately before the access agreement was entered into, a
standard form of access agreement relating to access to the
service was available on the NBN corporation’s website; and
(d) the terms and conditions set out in the access agreement are
not the same as the terms and conditions set out in the
standard form of access agreement;
the NBN corporation must, within 7 days after the day on which
the access agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(e) identifying the parties to the access agreement; and
(f) describing the differences between the terms and conditions
set out in the access agreement and the terms and conditions
set out in the standard form of access agreement; and
(j) setting out such other information (if any) about the access
agreement as is required by the form.
Variation agreement
(2) If:
(a) a variation agreement is entered into after the commencement
of this section; and
(b) the carrier or carriage service provider who supplies, or
proposes to supply, the service to which the relevant access
agreement relates is an NBN corporation; and
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Section 152BEBB
Competition and Consumer Act 2010 371
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(c) immediately before the variation agreement was entered into,
a standard form of access agreement relating to access to the
service was available on the NBN corporation’s website; and
(d) the terms and conditions set out in the relevant access
agreement (as varied by the variation agreement) are not the
same as the terms and conditions set out in the standard form
of access agreement;
the NBN corporation must, within 7 days after the day on which
the variation agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(e) identifying the parties to the relevant access agreement (as
varied by the variation agreement); and
(f) describing the differences between the terms and conditions
set out in the relevant access agreement (as varied by the
variation agreement) and the terms and conditions set out in
the standard form of access agreement; and
(j) setting out such other information (if any) about the relevant
access agreement (as varied by the variation agreement) as is
required by the form.
152BEBB NBN corporation to give the Commission a statement
about the differences between an access agreement and a
special access undertaking
Access agreement
(1) If:
(a) an access agreement is covered by subsection 152BE(1); and
(b) the carrier or carriage service provider who supplies, or
proposes to supply, the declared service is an NBN
corporation; and
(c) immediately before the access agreement was entered into, a
special access undertaking that:
(i) relates to access to the service; and
(ii) was given by the NBN corporation;
was in operation; and
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Section 152BEBB
372 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(d) the terms and conditions set out in the access agreement are
not the same as the terms and conditions set out in the special
access undertaking;
the NBN corporation must, within 7 days after the day on which
the access agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(e) identifying the parties to the access agreement; and
(f) describing the differences between the terms and conditions
set out in the access agreement and the terms and conditions
set out in the special access undertaking; and
(j) setting out such other information (if any) about the access
agreement as is required by the form.
Variation agreement
(2) If:
(a) a variation agreement is entered into after the commencement
of this section; and
(b) the carrier or carriage service provider who supplies, or
proposes to supply, the service to which the relevant access
agreement relates is an NBN corporation; and
(c) immediately before the variation agreement was entered into,
a special access undertaking that:
(i) relates to access to the service; and
(ii) was given by the NBN corporation;
was in operation; and
(d) the terms and conditions set out in the relevant access
agreement (as varied by the variation agreement) are not the
same as the terms and conditions set out in the special access
undertaking;
the NBN corporation must, within 7 days after the day on which
the variation agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(e) identifying the parties to the relevant access agreement (as
varied by the variation agreement); and
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Section 152BEBC
Competition and Consumer Act 2010 373
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(f) describing the differences between the terms and conditions
set out in the relevant access agreement (as varied by the
variation agreement) and the terms and conditions set out in
the special access undertaking; and
(j) setting out such other information (if any) about the relevant
access agreement (as varied by the variation agreement) as is
required by the form.
152BEBC NBN corporation to give the Commission a statement
about the differences between an access agreement and an
access determination
Access agreement
(1) If:
(a) an access agreement is covered by subsection 152BE(1); and
(b) the carrier or carriage service provider who supplies, or
proposes to supply, the declared service is an NBN
corporation; and
(c) immediately before the access agreement was entered into, an
access determination relating to access to the service was in
force; and
(d) the terms and conditions set out in the access agreement are
not the same as the terms and conditions set out in the access
determination;
the NBN corporation must, within 7 days after the day on which
the access agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(e) identifying the parties to the access agreement; and
(f) describing the differences between the terms and conditions
set out in the access agreement and the terms and conditions
set out in the access determination; and
(j) setting out such other information (if any) about the access
agreement as is required by the form.
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Division 4B Access agreements
Section 152BEBD
374 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Variation agreement
(2) If:
(a) a variation agreement is entered into after the commencement
of this section; and
(b) the carrier or carriage service provider who supplies, or
proposes to supply, the service to which the relevant access
agreement relates is an NBN corporation; and
(c) immediately before the variation agreement was entered into,
an access determination relating to access to the service was
in force; and
(d) the terms and conditions set out in the relevant access
agreement (as varied by the variation agreement) are not the
same as the terms and conditions set out in the access
determination;
the NBN corporation must, within 7 days after the day on which
the variation agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(e) identifying the parties to the relevant access agreement (as
varied by the variation agreement); and
(f) describing the differences between the terms and conditions
set out in the relevant access agreement (as varied by the
variation agreement) and the terms and conditions set out in
the access determination; and
(j) setting out such other information (if any) about the relevant
access agreement (as varied by the variation agreement) as is
required by the form.
152BEBD Register of NBN Access Agreement Statements
(1) The Commission is to maintain a register, to be known as the
Register of NBN Access Agreement Statements, in which the
Commission includes all statements given to it under the following
provisions:
(a) section 152BEBA;
(b) section 152BEBB;
(c) section 152BEBC.
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Section 152BEBE
Competition and Consumer Act 2010 375
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Commission’s website.
(4) The Register is not a legislative instrument.
(5) If the Commission is satisfied that:
(a) publication of particular material contained in a statement
could reasonably be expected to prejudice substantially the
commercial interests of a person; and
(b) the prejudice outweighs the public interest in the publication
of the matter;
the Commission may remove the material from the version of the
statement that is included in the Register.
(6) If the Commission does so, the Commission must include in the
Register an annotation to that effect.
152BEBE Layer 2 bitstream services—carrier or carriage service
provider to give the Commission a statement about the
differences between an access agreement and a special
access undertaking
Access agreement
(1) If:
(a) an access agreement is covered by subsection 152BE(1); and
(b) the declared service to which the agreement relates is a Layer
2 bitstream service supplied using a designated superfast
telecommunications network; and
(c) the carrier or carriage service provider who supplies, or
proposes to supply, the declared service is not an NBN
corporation; and
(d) immediately before the access agreement was entered into, a
special access undertaking that:
(i) relates to access to the service; and
(ii) was given by the carrier or provider;
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Section 152BEBE
376 Competition and Consumer Act 2010
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was in operation; and
(e) the terms and conditions set out in the access agreement are
not the same as the terms and conditions set out in the special
access undertaking;
the carrier or provider must, within 7 days after the day on which
the access agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(f) identifying the parties to the access agreement; and
(g) describing the differences between the terms and conditions
set out in the access agreement and the terms and conditions
set out in the special access undertaking; and
(k) setting out such other information (if any) about the access
agreement as is required by the form.
Variation agreement
(2) If:
(a) a variation agreement is entered into after the commencement
of this section; and
(b) the declared service to which the relevant access agreement
relates is a Layer 2 bitstream service supplied using a
designated superfast telecommunications network; and
(c) the carrier or carriage service provider who supplies, or
proposes to supply, the service to which the relevant access
agreement relates is not an NBN corporation; and
(d) immediately before the variation agreement was entered into,
a special access undertaking that:
(i) relates to access to the service; and
(ii) was given by the carrier or provider;
was in operation; and
(e) the terms and conditions set out in the relevant access
agreement (as varied by the variation agreement) are not the
same as the terms and conditions set out in the special access
undertaking;
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Section 152BEBF
Competition and Consumer Act 2010 377
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
the carrier or provider must, within 7 days after the day on which
the variation agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(f) identifying the parties to the relevant access agreement (as
varied by the variation agreement); and
(g) describing the differences between the terms and conditions
set out in the relevant access agreement (as varied by the
variation agreement) and the terms and conditions set out in
the special access undertaking; and
(k) setting out such other information (if any) about the relevant
access agreement (as varied by the variation agreement) as is
required by the form.
152BEBF Layer 2 bitstream services—carrier or carriage service
provider to give the Commission a statement about the
differences between an access agreement and an access
determination
Access agreement
(1) If:
(a) an access agreement is covered by subsection 152BE(1); and
(b) the declared service to which the agreement relates is a Layer
2 bitstream service supplied using a designated superfast
telecommunications network; and
(c) the carrier or carriage service provider who supplies, or
proposes to supply, the declared service is not an NBN
corporation; and
(d) immediately before the access agreement was entered into, an
access determination relating to access to the service was in
force; and
(e) the terms and conditions set out in the access agreement are
not the same as the terms and conditions set out in the access
determination;
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Section 152BEBF
378 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
the carrier or provider must, within 7 days after the day on which
the access agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(f) identifying the parties to the access agreement; and
(g) describing the differences between the terms and conditions
set out in the access agreement and the terms and conditions
set out in the access determination; and
(k) setting out such other information (if any) about the access
agreement as is required by the form.
Variation agreement
(2) If:
(a) a variation agreement is entered into after the commencement
of this section; and
(b) the declared service to which the relevant access agreement
relates is a Layer 2 bitstream service supplied using a
designated superfast telecommunications network; and
(c) the carrier or carriage service provider who supplies, or
proposes to supply, the service to which the relevant access
agreement relates is not an NBN corporation; and
(d) immediately before the variation agreement was entered into,
an access determination relating to access to the service was
in force; and
(e) the terms and conditions set out in the relevant access
agreement (as varied by the variation agreement) are not the
same as the terms and conditions set out in the access
determination;
the carrier or provider must, within 7 days after the day on which
the variation agreement was entered into, give the Commission a
statement, in a form approved in writing by the Commission:
(f) identifying the parties to the relevant access agreement (as
varied by the variation agreement); and
(g) describing the differences between the terms and conditions
set out in the relevant access agreement (as varied by the
variation agreement) and the terms and conditions set out in
the access determination; and
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Section 152BEBG
Competition and Consumer Act 2010 379
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(k) setting out such other information (if any) about the relevant
access agreement (as varied by the variation agreement) as is
required by the form.
152BEBG Register of Layer 2 Bitstream Access Agreement
Statements
(1) The Commission is to maintain a register, to be known as the
Register of Layer 2 Bitstream Access Agreement Statements, in
which the Commission includes all statements given to it under the
following provisions:
(a) section 152BEBE;
(b) section 152BEBF.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Commission’s website.
(4) The Register is not a legislative instrument.
(5) If the Commission is satisfied that:
(a) publication of particular material contained in a statement
could reasonably be expected to prejudice substantially the
commercial interests of a person; and
(b) the prejudice outweighs the public interest in the publication
of the matter;
the Commission may remove the material from the version of the
statement that is included in the Register.
(6) If the Commission does so, the Commission must include in the
Register an annotation to that effect.
152BEC Carrier licence condition
A carrier licence held by a carrier is subject to a condition that the
carrier must comply with sections 152BEA, 152BEB, 152BEBA,
152BEBB, 152BEBC, 152BEBE and 152BEBF.
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Section 152BED
380 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152BED Service provider rule
(1) In addition to the rules mentioned in section 98 of the
Telecommunications Act 1997, the rule set out in subsection (2) of
this section is a service provider rule for the purposes of that Act.
(2) A carriage service provider must comply with sections 152BEA,
152BEB, 152BEBA, 152BEBB, 152BEBC, 152BEBE and
152BEBF.
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Section 152CBA
Competition and Consumer Act 2010 381
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 5—Access undertakings
Subdivision B—Special access undertakings
152CBA What is a special access undertaking?
Scope
(1) This section applies to:
(a) a person (other than an NBN corporation) who is, or expects
to be, a carrier or a carriage service provider supplying:
(i) a listed carriage service (within the meaning of the
Telecommunications Act 1997); or
(ii) a service that facilitates the supply of a listed carriage
service (within the meaning of that Act);
whether to itself or to other persons, so long as the service is
not a declared service; or
(b) a person who is an NBN corporation and who is, or expects
to be, a carrier or carriage service provider supplying or
capable of supplying:
(i) a listed carriage service (within the meaning of the
Telecommunications Act 1997); or
(ii) a service that facilitates the supply of a listed carriage
service (within the meaning of that Act);
whether to itself or to other persons, so long as:
(iii) the service is not a declared service under
subsection 152AL(8A); and
(iv) there is no access determination that applies in relation
to access to the service.
Undertaking
(2) The person may give a written undertaking (a special access
undertaking) to the Commission in connection with the provision
of access to the service.
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Section 152CBA
382 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) If paragraph (1)(a) applies, the undertaking must state that, in the
event that the person supplies the service (whether to itself or to
other persons), the person:
(a) agrees to be bound by the obligations referred to in
section 152AR, to the extent that those obligations would
apply to the person in relation to the service if the service
were treated as an active declared service; and
(b) undertakes to comply with the terms and conditions specified
in the undertaking in relation to the obligations referred to in
paragraph (a).
Note: The undertaking need not specify all terms and conditions—see
subparagraph 152AY(2)(b)(ii).
(3A) If paragraph (1)(b) applies, the undertaking must state that, in the
event that the person supplies, or becomes capable of supplying,
the service (whether to itself or to other persons), the person:
(a) agrees to be bound by the obligations referred to in
section 152AXB, to the extent that those obligations would
apply to the person in relation to the service if the service
were treated as a declared service; and
(b) undertakes to comply with the terms and conditions specified
in the undertaking in relation to the obligations referred to in
section 152AXB.
Note: The undertaking need not specify all terms and conditions—see
subparagraph 152AY(2)(b)(ii).
(3B) The undertaking may also state, in the event that the person
supplies the service (whether to itself or to other persons), the
person:
(a) will engage in specified conduct in relation to access to the
service; and
(b) will do so on such terms and conditions as are specified in
the undertaking.
(3C) If the person is an NBN corporation, the undertaking may also state
that the NBN corporation will engage in specified conduct in
relation to:
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Section 152CBA
Competition and Consumer Act 2010 383
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(a) developing a new eligible service (within the meaning of
section 152AN( � or
(b) enhancing a declared service; or
(c) extending or enhancing the capability of a facility or
telecommunications network by means of which a declared
service is, or is to be, supplied; or
(d) planning for a facility or telecommunications network by
means of which a declared service is, or is to be, supplied; or
(e) an activity that is preparatory to the supply of a declared
service; or
(f) an activity that is ancillary or incidental to the supply of a
declared service; or
(g) giving information to service providers about any of the
above activities.
(3D) For the purposes of this Part, in determining whether the
undertaking relates to a particular service or proposed service,
disregard a statement included in the undertaking in accordance
with subsection (3C).
(4) The undertaking must be in a form approved in writing by the
Commission.
(5) The undertaking may be without limitations or may be subject to
such limitations as are specified in the undertaking.
Expiry time
(6) The undertaking must specify the expiry time of the undertaking.
(7) The expiry time of the undertaking may be described by reference
to the end of a period beginning:
(a) when the undertaking comes into operation; or
(b) when the person begins to supply the service (whether to
itself or to other persons).
(8) Subsection (7) does not, by implication, limit subsection (6).
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Section 152CBAA
384 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(9) The undertaking may provide for the person to extend, or further
extend, the expiry time of the undertaking, so long as:
(a) the extension or further extension is approved by the
Commission; and
(b) the undertaking sets out criteria that are to be applied by the
Commission in deciding whether to approve the extension or
further extension.
(10) If the undertaking expires, this Part does not prevent the person
from giving a fresh special access undertaking in the same terms as
the expired undertaking.
Commission may perform functions or exercise powers
(10A) If the undertaking provides for the Commission to perform
functions or exercise powers in relation to the undertaking, the
Commission may perform those functions, and exercise those
powers, in accordance with the undertaking.
Related services
(11) A reference in subparagraphs (1)(a)(ii) and (b)(ii) to a service that
facilitates the supply of a carriage service does not include a
reference to the use of intellectual property except to the extent that
it is an integral but subsidiary part of the first-mentioned service.
Definition
(12) In this section:
active declared service has the same meaning as in section 152AR
(disregarding subsection 152AL(7)).
Note: A service includes a proposed service—see section 152CBJ.
152CBAA Fixed principles terms and conditions
(1) A special access undertaking may provide that a term or condition
specified in the undertaking is a fixed principles term or condition
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Section 152CBAA
Competition and Consumer Act 2010 385
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
for a period that, under the undertaking, is expressed to be the
notional fixed period for the fixed principles term or condition.
(2) If the undertaking does so, the undertaking may also provide that
one or more specified circumstances are qualifying circumstances
in relation to the fixed principles term or condition.
(3) The notional fixed period for a fixed principles term or condition
must:
(a) begin when the undertaking comes into operation; and
(b) end:
(i) at the expiry time of the undertaking; or
(ii) if an earlier time is ascertained in accordance with the
undertaking—at that earlier time; or
(iii) if a later time is ascertained in accordance with the
undertaking—at that later time.
(4) If:
(a) a fixed principles term or condition is specified in a special
access undertaking; and
(b) the undertaking ceases to be in operation before the end of
the notional fixed period for the fixed principles term or
condition;
the fixed principles term or condition ceases to be in operation
when the undertaking ceases to be in operation.
Note: Even though the fixed principles term or condition ceases to be in
operation when the undertaking ceases to be in operation,
subsection (5) ensures that a fresh undertaking can include an identical
fixed principles term or condition.
Consequences—acceptance of other undertaking
(5) If:
(a) a special access undertaking (the original undertaking)
given by a person in relation to a particular service contained
a fixed principles term or condition (the original fixed
principles term or condition); and
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Section 152CBAA
386 Competition and Consumer Act 2010
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(b) the original undertaking was accepted by the Commission;
and
(c) during the notional fixed period for the original fixed
principles term or condition, the person gives the
Commission another special access undertaking (the other
undertaking) in relation to the service; and
(d) the other undertaking contains a fixed principles term or
condition (the corresponding fixed principles term or
condition) that is identical to the original fixed principles
term or condition; and
(e) the notional fixed period for the corresponding fixed
principles term or condition ends at or before the end of the
notional fixed period for the original fixed principles term or
condition; and
(f) if there are qualifying circumstances in relation to the
original fixed principles term or condition:
(i) there are qualifying circumstances in relation to the
corresponding fixed principles term or condition; and
(ii) those qualifying circumstances are identical to the
qualifying circumstances in relation to the original fixed
principles term or condition; and
(g) if there are qualifying circumstances in relation to the
original fixed principles term or condition—none of those
circumstances exist;
then:
(h) the Commission must not reject the other undertaking for a
reason that concerns:
(i) the corresponding fixed principles term or condition; or
(ii) the notional fixed period for the corresponding fixed
principles term or condition; or
(iii) if there are qualifying circumstances in relation to the
corresponding fixed principles term or condition—the
specification of those circumstances; and
(i) paragraphs 152CBD(2)(a), (b), (c) and (ca) do not apply to:
(i) the corresponding fixed principles term or condition; or
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Section 152CBAA
Competition and Consumer Act 2010 387
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(ii) the notional fixed period for the corresponding fixed
principles term or condition; or
(iii) if there are qualifying circumstances in relation to the
corresponding fixed principles term or condition—those
circumstances; and
(j) if the corresponding fixed principles term or condition is the
only term or condition contained in the other undertaking—
paragraph 152CBD(2)(d) does not apply to the other
undertaking; and
(k) if the corresponding fixed principles term or condition is not
the only term or condition contained in the other
undertaking—subparagraph 152CBD(2)(d)(ii) does not
require the Commission to consider any submissions to the
extent to which they relate to:
(i) the corresponding fixed principles term or condition; or
(ii) the notional fixed period for the corresponding fixed
principles term or condition; or
(iii) if there are qualifying circumstances in relation to the
corresponding fixed principles term or condition—those
circumstances.
Consequences—variation of undertaking
(6) If:
(a) a special access undertaking given by a person in relation to a
particular service contains a fixed principles term or
condition (the original fixed principles term or condition);
and
(b) the undertaking has been accepted by the Commission; and
(c) during the notional fixed period for the original fixed
principles term or condition, the person gives the
Commission a variation of the undertaking; and
(d) the varied undertaking contains a fixed principles term or
condition (the corresponding fixed principles term or
condition) that is identical to the original fixed principles
term or condition; and
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Section 152CBB
388 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(e) the notional fixed period for the corresponding fixed
principles term or condition is identical to the notional fixed
period for the original fixed principles term or condition; and
(f) if there are qualifying circumstances in relation to the
original fixed principles term or condition:
(i) there are qualifying circumstances in relation to the
corresponding fixed principles term or condition; and
(ii) those qualifying circumstances are identical to the
qualifying circumstances in relation to the original fixed
principles term or condition; and
(g) if there are qualifying circumstances in relation to the
original fixed principles term or condition—none of those
circumstances exist;
the Commission must not reject the variation for a reason that
concerns:
(h) the corresponding fixed principles term or condition; or
(i) the notional fixed period for the corresponding fixed
principles term or condition; or
(j) if there are qualifying circumstances in relation to the
corresponding fixed principles term or condition—the
specification of those circumstances.
152CBB Further information about undertaking
(1) This section applies if a person gives a special access undertaking
to the Commission.
(2) The Commission may request the person to give the Commission
further information about the undertaking.
(2A) If:
(a) the Procedural Rules make provision for or in relation to a
time limit for giving the information; and
(b) the person does not give the Commission the information
within the time limit allowed by the Procedural Rules;
the Commission may, by written notice given to the person, reject
the undertaking.
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Section 152CBC
Competition and Consumer Act 2010 389
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2B) Subsection (2A) has effect despite anything in this Division.
(2C) If the Commission makes a decision under subsection (2A) to
reject the undertaking, subsection 152CBC(5) has effect as if the
decision had been made under subsection 152CBC(2).
(3) If the Procedural Rules do not make provision for or in relation to a
time limit for giving the information, the Commission may refuse
to consider the undertaking until the person gives the Commission
the information.
(4) The Commission may withdraw its request for further information,
in whole or in part.
152CBC Commission to accept or reject access undertaking
(1) This section applies if a person gives a special access undertaking
to the Commission.
(1A) Before the Commission makes a decision under subsection (2) in
relation to the undertaking, the person may, by written notice given
to the Commission within the time allowed by the Procedural
Rules, modify the undertaking, so long as the modification is a
modification that, under the Procedural Rules, is taken to be of a
minor nature.
Decision to accept or reject undertaking
(2) After considering the undertaking, the Commission must:
(a) accept the undertaking; or
(b) reject the undertaking.
Notice of decision
(3) If the Commission accepts the undertaking, the Commission must
give the person a written notice stating that the undertaking has
been accepted.
(4) If the Commission rejects the undertaking, the Commission must
give the person a written notice:
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Section 152CBC
390 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) stating that the undertaking has been rejected; and
(b) setting out the reasons for the rejection.
Commission to make decision within 6 months
(5) If the Commission does not make a decision under subsection (2)
about the undertaking within 6 months after receiving the
undertaking, the Commission is taken to have made, at the end of
that 6-month period, a decision under subsection (2) to accept the
undertaking.
(6) In calculating the 6-month period referred to in subsection (5),
disregard:
(aa) if:
(i) the Commission has given a notice under
section 152CBDA in relation to the undertaking; and
(ii) no varied undertaking was given to the Commission in
response to the notice;
a day in the period specified in the notice; and
(ab) if:
(i) the Commission has given a notice under
section 152CBDA in relation to the undertaking; and
(ii) a varied undertaking was given to the Commission in
response to the notice; and
(iii) the Commission did not publish the varied undertaking
under paragraph 152CBD(2)(d);
a day in the period:
(iv) beginning on the day in which the notice was given; and
(v) ending when the varied undertaking was given to the
Commission in response to the notice; and
(ac) if:
(i) the Commission has given a notice under
section 152CBDA in relation to the undertaking; and
(ii) a varied undertaking was given to the Commission in
response to the notice; and
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Section 152CBC
Competition and Consumer Act 2010 391
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(iii) the varied undertaking was published under
paragraph 152CBD(2)(d);
a day in the period:
(iv) beginning on the day on which the notice was given;
and
(v) ending at the end of the time specified by the
Commission when it published the varied undertaking;
and
(a) if paragraph (ac) does not apply and the Commission has
published the undertaking under paragraph 152CBD(2)(d)—
a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the
Commission when it published the undertaking; and
(b) if the Commission has requested further information under
section 152CBB in relation to the undertaking—a day during
any part of which the request, or any part of the request,
remains unfulfilled.
Extension of decision-making period
(7) The Commission may, by written notice given to the person,
extend or further extend the 6-month period referred to in
subsection (5), so long as:
(a) the extension or further extension is for a period of not more
than 3 months; and
(b) the notice includes a statement explaining why the
Commission has been unable to make a decision on the
undertaking within that 6-month period or that 6-month
period as previously extended, as the case may be.
(8) As soon as practicable after the Commission gives a notice under
subsection (7), the Commission must cause a copy of the notice to
be made available on the internet.
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Section 152CBCA
392 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152CBCA Serial undertakings
If:
(a) a person gives a special access undertaking (the first special
access undertaking) to the Commission; and
(b) the Commission rejects the first special access undertaking;
and
(c) the person subsequently gives another special access
undertaking to the Commission; and
(d) the Commission is satisfied that any or all of the provisions
of the first special access application are materially similar to
any or all of the provisions of the other special access
undertaking;
the Commission may refuse to consider the other special access
undertaking.
152CBD Criteria for accepting access undertaking
(1) This section applies if a person gives the Commission a special
access undertaking relating to a service.
(2) The Commission must not accept the undertaking unless:
(a) if paragraph 152CBA(1)(a) applies—the Commission is
satisfied that:
(i) the terms and conditions referred to in
paragraph 152CBA(3)(b) would be consistent with the
obligations referred to in paragraph 152CBA(3)(a); and
(ii) those terms and conditions are reasonable; and
(b) if paragraph 152CBA(1)(b) applies—the Commission is
satisfied that:
(i) the terms and conditions referred to in
subsection 152CBA(3A) would be consistent with the
obligations referred to in section 152AXB; and
(ii) those terms and conditions are reasonable; and
(c) the Commission is satisfied that the undertaking is consistent
with any Ministerial pricing determination; and
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Section 152CBD
Competition and Consumer Act 2010 393
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(ca) if subsection 152CBA(3B) applies—the Commission is
satisfied that:
(i) the conduct referred to in paragraph 152CBA(3B)(a)
will promote the long-term interests of end-users of
carriage services or of services supplied by means of
carriage services; and
(ii) the terms and conditions referred to in
paragraph 152CBA(3B)(b) are reasonable; and
(cb) if subsection 152CBA(3C) applies—the Commission is
satisfied that the conduct specified in accordance with that
subsection will promote the long-term interests of end-users
of carriage services or of services supplied by means of
carriage services; and
(d) the Commission has:
(i) published the undertaking and invited people to make
submissions to the Commission on the undertaking; and
(ii) considered any submissions that were received within
the time limit specified by the Commission when it
published the undertaking.
Note: Section 152AH contains a list of matters to be taken into account in
determining whether terms and conditions are reasonable.
(3) Subsection (2) has effect subject to subsection 152CBAA(5) (fixed
principles terms and conditions).
(4) If the undertaking provides that a term or condition specified in the
undertaking is a fixed principles term or condition for a period
that, under the undertaking, is expressed to be the notional fixed
period for the fixed principles term or condition, the Commission
must refuse to accept the undertaking if the Commission considers
that:
(a) the fixed principles term or condition should not be a fixed
principles term or condition; or
(b) that notional fixed period should not be the notional fixed
period for the fixed principles term or condition; or
(c) if the undertaking provides that one or more specified
circumstances are qualifying circumstances in relation to the
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Section 152CBD
394 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
fixed principles term or condition—any of the qualifying
circumstances should not be qualifying circumstances in
relation to the fixed principles term or condition; or
(d) if the undertaking does not provide that particular
circumstances are qualifying circumstances in relation to the
fixed principles term or condition—those circumstances
should be qualifying circumstances in relation to the fixed
principles term or condition.
(5) Subsection (4) has effect subject to subsection 152CBAA(5) (fixed
principles terms and conditions).
(5A) If:
(a) the undertaking contains price-related terms and conditions
relating to the supply of a service; and
(b) the price-related terms and conditions are reasonably
necessary to achieve uniform national pricing of eligible
services supplied by the NBN corporation to service
providers and utilities;
then:
(c) the Commission must not reject the undertaking for a reason
that concerns the price-related terms and conditions; and
(d) paragraph (2)(b) does not apply to the price-related terms and
conditions.
(5B) In subsection (5A), eligible services, price-related terms and
conditions, uniform national pricing and utilities have the same
meaning as in section 151DA.
(5C) If a refusal is authorised under subsection 151DA(2) or (3) for the
purposes of subsection 51(1):
(a) the Commission must not reject the undertaking for a reason
that concerns that refusal; and
(b) paragraph (2)(b) of this section does not apply to that refusal.
(6) If a special access undertaking is given to the Commission in
response to a notice under section 152CBDA, the Commission is
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Section 152CBDA
Competition and Consumer Act 2010 395
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
not required to publish the undertaking under paragraph (2)(d) of
this section unless the Commission is satisfied that:
(a) the variations specified in the notice are not of a minor
nature; or
(b) the variations specified in the notice are likely to have a
material adverse effect on the legitimate commercial interests
of any person.
152CBDA Variation of special access undertaking
(1) This section applies if a person gives a special access undertaking
(the original undertaking) to the Commission.
(2) The Commission may give the person a written notice stating that,
if the person:
(a) makes such variations to the original undertaking as are
specified in the notice; and
(b) gives the varied undertaking to the Commission within the
period specified in the notice;
the Commission will consider the varied undertaking under
section 152CBC as if the varied undertaking had been given to the
Commission instead of the original undertaking.
(3) If the person gives the Commission a varied undertaking in
response to the notice, the Commission must consider the varied
undertaking under section 152CBC as if the varied undertaking had
been given to the Commission instead of the original undertaking.
(4) The Commission does not have a duty to consider whether to give
a notice under subsection (2).
152CBE Extension of access undertaking
(1) This section applies if:
(a) a special access undertaking is given by a person; and
(b) the undertaking is in operation; and
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Section 152CBE
396 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(c) the undertaking provides for the person to extend the expiry
time of the undertaking, so long as the extension is approved
by the Commission; and
(d) the undertaking sets out criteria that are to be applied by the
Commission in deciding whether to approve the extension.
(2) The person may apply to the Commission for approval of the
extension. The application must be made in the 12-month period
ending at the expiry time.
(3) An application under subsection (2) must be:
(a) in writing; and
(b) in a form approved in writing by the Commission.
(4) After considering the application, the Commission must decide
whether to:
(a) approve the extension; or
(b) refuse to approve the extension.
(5) The Commission must approve the extension if the Commission is
satisfied that the criteria referred to in paragraph (1)(d) have been
met.
(6) If the Commission approves the extension, the Commission must
give the person a written notice stating that the extension has been
approved.
(7) If the Commission refuses to approve the extension, the
Commission must give the person a written notice:
(a) stating that the Commission has refused to approve the
extension; and
(b) setting out the reasons for the refusal.
(8) In this section, a reference to an extension includes a reference to a
further extension.
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Section 152CBF
Competition and Consumer Act 2010 397
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152CBF Duration of access undertaking
(1) This section applies if a person gives the Commission a special
access undertaking relating to a service.
(2) If the Commission accepts the undertaking:
(a) the undertaking comes into operation at the time of
acceptance; and
(b) the undertaking continues in operation until:
(i) it expires; or
(ii) it is withdrawn as mentioned in section 152CBI;
even if, in the case of an undertaking covered by
subsection 152CBA(3), the service becomes an active
declared service.
(3) In this section:
active declared service has the same meaning as in section 152AR
(disregarding subsection 152AL(7)).
152CBG Variation of access undertakings
(1) This section applies if a special access undertaking given by a
person is in operation.
(2) The person may give the Commission a variation of the
undertaking.
(2A) Before the Commission makes a decision under subsection (3) in
relation to the variation, the person may, by written notice given to
the Commission within the time allowed by the Procedural Rules,
modify the variation, so long as the modification is a modification
that, under the Procedural Rules, is taken to be a modification of a
minor nature.
Decision to accept or reject variation
(3) After considering the variation, the Commission must decide to:
(a) accept the variation; or
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Section 152CBG
398 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) reject the variation.
(4) Section 152CBD applies to the variation in a corresponding way to
the way in which it applies to an undertaking. However, if the
variation is a variation that, under the Procedural Rules, is taken to
be a variation of a minor nature, the Commission is not required to
comply with paragraph 152CBD(2)(d) in relation to the variation.
(4A) Subsection (4) has effect subject to subsection 152CBAA(6) (fixed
principles terms and conditions).
Notice of decision
(5) If the Commission accepts the variation, the Commission must
give the person a written notice:
(a) stating that the variation has been accepted; and
(b) setting out the terms of the variation.
(6) If the Commission rejects the variation, the Commission must give
the person a written notice:
(a) stating that the variation has been rejected; and
(b) setting out the reasons for the rejection.
Commission to make decision within 6 months
(7) If the Commission does not make a decision under subsection (3)
about the variation within 6 months after receiving the variation,
the Commission is taken to have made, at the end of that 6-month
period, a decision under subsection (3) to accept the variation.
(8) In calculating the 6-month period referred to in subsection (7),
disregard:
(a) if the Commission has published the variation under
paragraph 152CBD(2)(d)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the
Commission when it published the variation; and
(b) if the Commission has requested further information under
section 152CBH in relation to the variation—a day during
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Section 152CBH
Competition and Consumer Act 2010 399
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
any part of which the request, or any part of the request,
remains unfulfilled.
Extension of decision-making period
(9) The Commission may, by written notice given to the person,
extend or further extend the 6-month period referred to in
subsection (7), so long as:
(a) the extension or further extension is for a period of not more
than 3 months; and
(b) the notice includes a statement explaining why the
Commission has been unable to make a decision on the
variation within that 6-month period or that 6-month period
as previously extended, as the case may be.
(10) As soon as practicable after the Commission gives a notice under
subsection (9), the Commission must cause a copy of the notice to
be made available on the internet.
152CBH Further information about variation of access undertaking
(1) This section applies if a person gives the Commission a variation
of a special access undertaking.
(2) The Commission may request the person to give the Commission
further information about the variation.
(2A) If:
(a) the Procedural Rules make provision for or in relation to a
time limit for giving the information; and
(b) the person does not give the Commission the information
within the time limit allowed by the Procedural Rules;
the Commission may, by written notice given to the person, reject
the variation.
(2B) Subsection (2A) has effect despite anything in this Division.
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Section 152CBI
400 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2C) If the Commission makes a decision under subsection (2A) to
reject the variation, subsection 152CBG(7) has effect as if the
decision had been made under subsection 152CBG(3).
(3) If the Procedural Rules do not make provision for or in relation to a
time limit for giving the information, the Commission may refuse
to consider the variation until the person gives the Commission the
information.
(4) The Commission may withdraw its request for further information,
in whole or in part.
152CBI Voluntary withdrawal of undertaking
(1) This section applies if a special access undertaking given by a
person is in operation.
(2) The person may, by written notice given to the Commission,
withdraw the undertaking if:
(a) the service to which the undertaking relates is a declared
service when the notice is given; or
(b) both:
(i) the service to which the undertaking relates is not a
declared service when the notice is given; and
(ii) at least 12 months before the notice is given, the person
informed the Commission in writing that the person
proposed to withdraw the undertaking.
(3) For the purposes of this section, in determining whether a service is
a declared service, disregard subsections 152AL(7) and (8E).
152CBIA Special access undertakings prevail over inconsistent
access determinations
An access determination has no effect to the extent to which it is
inconsistent with a special access undertaking that is in operation.
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Section 152CBIB
Competition and Consumer Act 2010 401
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152CBIB Special access undertakings prevail over inconsistent
binding rules of conduct
Binding rules of conduct have no effect to the extent to which they
are inconsistent with a special access undertaking that is in
operation.
152CBIC Access agreements prevail over special access
undertakings
A special access undertaking has no effect to the extent to which it
is inconsistent with an access agreement.
152CBJ Proposed service
In this Subdivision, a reference to a service includes a reference to
a proposed service.
Subdivision C—General provisions
152CC Register of access undertakings
(1) The Commission is to maintain a Register in which the
Commission includes:
(a) all access undertakings that have been accepted by the
Commission (including those that are no longer in operation);
and
(b) all variations of access undertakings.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Commission’s website.
(4) The Register is not a legislative instrument.
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Section 152CD
402 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152CD Enforcement of access undertakings
(1) This section applies if an access undertaking given by a person (the
first person) is in operation.
(2) If:
(a) the Commission; or
(b) any person (the affected person) whose interests are affected
by the undertaking;
thinks that the first person has breached the access undertaking, the
Commission or affected person may apply to the Federal Court for
an order under subsection (3).
(3) If the Federal Court is satisfied that the first person has breached
the undertaking, the Court may make all or any of the following
orders:
(a) an order directing the first person to comply with the
undertaking;
(b) an order directing the first person to compensate any other
person who has suffered loss or damage as a result of the
breach;
(c) any other order that the Court thinks appropriate.
(4) The Federal Court may discharge or vary an order granted under
this section.
152CDA Deferral of consideration of an access undertaking etc.
(1) The Procedural Rules may authorise the Commission to defer
consideration of:
(a) an access undertaking; or
(b) a variation of an access undertaking.
(2) Subsection (1) has effect despite anything in this Division.
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Ministerial pricing determinations Division 6
Section 152CH
Competition and Consumer Act 2010 403
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 6—Ministerial pricing determinations
152CH Ministerial pricing determinations
(1) The Minister may, by legislative instrument, make a determination
setting out principles dealing with price-related terms and
conditions relating to the standard access obligations. The
determination is to be known as a Ministerial pricing
determination.
Note 3A: Subsection 152CBD(2) provides that the Commission must not accept
a special access undertaking unless the undertaking is consistent with
any Ministerial pricing determination.
Note 4: Subsection 152CI(1) provides that a provision of an access
undertaking has no effect to the extent that the provision is
inconsistent with any Ministerial pricing determination.
Note 5: Subsection 152CI(2) provides that a provision of an access
determination has no effect to the extent that the provision is
inconsistent with any Ministerial pricing determination.
Note 5A: Subsection 152CI(3) provides that a provision of binding rules of
conduct have no effect to the extent that the provision is inconsistent
with any Ministerial pricing determination.
(3) In this section:
price-related terms and conditions means terms and conditions
relating to price or a method of ascertaining price.
152CI Undertakings, access determinations and binding rules of
conduct that are inconsistent with Ministerial pricing
determinations
(1) If a provision of an access undertaking is inconsistent with any
Ministerial pricing determination, the provision has no effect to the
extent of the inconsistency.
(2) If a provision of an access determination is inconsistent with any
Ministerial pricing determination, the provision has no effect to the
extent of the inconsistency.
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Division 6 Ministerial pricing determinations
Section 152CJ
404 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) If a provision of binding rules of conduct is inconsistent with any
Ministerial pricing determination, the provision has no effect to the
extent of the inconsistency.
152CJ Register of Ministerial pricing determinations
(1) The Commission must keep a Register of Ministerial pricing
determinations.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Commission’s website.
(4) The Register is not a legislative instrument.
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Supply of services by NBN corporations Division 6A
Section 152CJA
Competition and Consumer Act 2010 405
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 6A—Supply of services by NBN corporations
152CJA Supply of services by NBN corporations
(1) An NBN corporation must not supply an eligible service (within
the meaning of section 152AL) to another person unless:
(a) the service is a declared service under
subsection 152AL(8A); or
(b) both:
(i) the NBN corporation has formulated a standard form of
access agreement that relates to access to the service;
and
(ii) the standard form of access agreement is available on
the NBN corporation’s website; or
(c) both:
(i) a special access undertaking given by the NBN
corporation is in operation; and
(ii) the undertaking relates to the service.
(2) If:
(a) as the result of a request made by an access seeker under
section 152AXB, an NBN corporation is subject to a
category B standard access obligation in relation to a
declared service; and
(b) the NBN corporation has formulated a standard form of
access agreement that relates to access to the service; and
(c) the standard form of access agreement is available on the
NBN corporation’s website; and
(d) the access seeker requests the NBN corporation to enter into
an access agreement that:
(i) relates to access to the service; and
(ii) sets out terms and conditions that are the same as the
terms and conditions set out in the standard form of
access agreement;
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Section 152CJB
406 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
the NBN corporation must comply with the request mentioned in
paragraph (d).
Note: An NBN corporation will not be subject to a category B standard
access obligation in the circumstances set out in
subsection 152AXB(3) or (6).
(3) If an access seeker does not make a request under paragraph (2)(d),
this Part does not, by implication, prevent the NBN corporation
and the access seeker from entering into an access agreement that
sets out terms and conditions that are not the same as the terms and
conditions set out in the standard form of access agreement.
152CJB Mandatory NBN services
Scope
(1) This section applies if a condition of a carrier licence held by an
NBN corporation requires the NBN corporation to comply with
this section in relation to a specified eligible service (within the
meaning of section 152AL) that is supplied, or is capable of being
supplied, by the NBN corporation (whether to itself or other
persons).
Note 1: See section 41 of the National Broadband Network Companies Act
2011.
Note 2: For declaration of carrier licence conditions, see section 63 of the
Telecommunications Act 1997.
Compliance by NBN corporation
(2) The NBN corporation must, within 90 days after the carrier licence
condition comes into force:
(a) both:
(i) formulate a standard form of access agreement that
relates to access to the service; and
(ii) make the standard form of access agreement available
on the NBN corporation’s website; or
(b) give the Commission a special access undertaking in
connection with the provision of access to the service.
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Section 152CJB
Competition and Consumer Act 2010 407
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) If:
(a) the NBN corporation, in accordance with paragraph (2)(b),
gives the Commission a special access undertaking in
connection with the provision of access to the service; and
(b) the Commission rejects the undertaking;
the NBN corporation must, within 90 days after the rejection of the
undertaking:
(c) formulate a standard form of access agreement that relates to
access to the service; and
(d) make the standard form of access agreement available on the
NBN corporation’s website.
(4) If the NBN corporation, in accordance with
(a) subparagraph (2)(a)(ii); or
(b) paragraph (3)(d);
makes a standard form of access agreement available on the NBN
corporation’s website, the NBN corporation must ensure that a
standard form of access agreement that:
(c) relates to access to the service; and
(d) is formulated by the NBN corporation;
is available on the NBN corporation’s website at all times during
the remainder of the period when the carrier licence condition is in
force.
(5) If:
(a) the NBN corporation, in accordance with paragraph (2)(b),
gives the Commission a special access undertaking in
connection with the provision of access to the service; and
(b) the Commission accepts the undertaking; and
(c) the undertaking subsequently ceases to be in operation;
the NBN corporation must ensure that a standard form of access
agreement that:
(d) relates to access to the service; and
(e) is formulated by the NBN corporation;
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Section 152CJC
408 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
is available on the NBN corporation’s website at all times during
the remainder of the period when the carrier licence condition is in
force.
152CJC Carrier licence condition
A carrier licence held by an NBN corporation is subject to a
condition that the NBN corporation must comply with any rules in
section 152CJA that are applicable to the NBN corporation.
Note: See also section 62D of the Telecommunications Act 1997.
152CJD Service provider rule
(1) In addition to the rules mentioned in section 98 of the
Telecommunications Act 1997, the rule set out in subsection (2) of
this section is a service provider rule for the purposes of that Act.
(2) If an NBN corporation is a service provider, the NBN corporation
must comply with any rules in section 152CJA that are applicable
to the NBN corporation.
152CJE Judicial enforcement of obligations
(1) If the Federal Court is satisfied that an NBN corporation has
contravened an obligation imposed by section 152CJA or 152CJB,
the Court may, on the application of:
(a) the Commission; or
(b) any person whose interests are affected by the contravention;
make all or any of the following orders:
(c) an order directing the NBN corporation to comply with the
obligation;
(d) an order directing the NBN corporation to compensate any
other person who has suffered loss or damage as a result of
the contravention;
(e) any other order that the Court thinks appropriate.
(2) The Federal Court may discharge or vary an order granted under
this section.
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Supply of services by NBN corporations Division 6A
Section 152CJF
Competition and Consumer Act 2010 409
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152CJF Standard form of access agreement
For the purposes of this Part, if, at a particular time, a service is not
a declared service, a standard form of access agreement relating to
access to the service may be formulated by an NBN corporation at
that time on the assumption that the service is a declared service.
152CJG When NBN corporation is not capable of supplying a
carriage service
Condition of a carrier licence
(1) If a condition of a carrier licence held by an NBN corporation
prohibits the NBN corporation from supplying a specified carriage
service to carriers or service providers, then, for the purposes of:
(a) this Part; and
(b) subsections 41(1) and (2) of the National Broadband
Network Companies Act 2011;
the NBN corporation is taken not to be capable of supplying the
service.
Note: See subsection 41(3) of the National Broadband Network Companies
Act 2011.
Avoidance of doubt
(2) Subsection (1) is enacted for the avoidance of doubt.
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Division 6B Explanatory material relating to anti-discrimination provisions
Section 152CJH
410 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 6B—Explanatory material relating to
anti-discrimination provisions
152CJH Explanatory material relating to anti-discrimination
provisions
The Commission must:
(a) as soon as practicable after the commencement of this
section, publish on its website explanatory material relating
to the following provisions:
(ia) section 152ARA;
(ib) section 152ARB;
(i) section 152AXC;
(ii) section 152AXD;
(iii) subsections 152BCB(4A) to (4C) and (4G) to (4J);
(iv) subsections 152BDA(4A) to (4C) and (4G) to (4J); and
(b) keep that statement up-to-date.
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Relationship between this Part and Part IIIA Division 7
Section 152CK
Competition and Consumer Act 2010 411
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 7—Relationship between this Part and Part IIIA
152CK Relationship between this Part and Part IIIA
(1) A notification must not be given under section 44S in relation to an
access dispute if:
(a) the dispute relates to one or more aspects of access to a
declared service (within the meaning of this Part); and
(b) the third party referred to in that section is a service provider
(within the meaning of this Part).
(2) The Commission must not accept an undertaking under
section 44ZZA that relates to a declared service (within the
meaning of this Part) if the terms and conditions set out in the
undertaking relate to the provision of access to one or more service
providers (within the meaning of this Part).
(3) If:
(a) an undertaking under section 44ZZA is in operation in
relation to a particular service; and
(b) at a particular time, the service becomes a declared service
(within the meaning of this Part);
the undertaking ceases to be in operation to the extent (if any) to
which it sets out terms and conditions relating to the provision of
access to one or more service providers (within the meaning of this
Part).
(4) For the purposes of this section, if a special access undertaking
given by a person other than an NBN corporation is in operation,
assume that subsection 152AL(7) has effect in relation to the
undertaking as if paragraph 152AL(7)(c) had not been enacted.
(5) For the purposes of this section, if a special access undertaking
given by an NBN corporation is in operation, assume that
subsection 152AL(8E) has effect in relation to the undertaking as if
paragraph 152AL(8E)(c) had not been enacted.
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Division 10 Hindering the fulfilment of a standard access obligation etc.
Section 152EF
412 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 10—Hindering the fulfilment of a standard access
obligation etc.
152EF Prohibition on hindering the fulfilment of a standard access
obligation etc.
(1) A person must not engage in conduct for the purpose of preventing
or hindering the fulfilment of:
(a) a standard access obligation; or
(b) a requirement imposed by an access determination; or
(ba) a requirement imposed by binding rules of conduct;
if the person is:
(c) a carrier or a carriage service provider who supplies a
declared service; or
(d) a service provider to whom a declared service is being
supplied by a carrier or carriage service provider; or
(e) a body corporate that is related to a carrier or provider
referred to in paragraph (c) or (d).
(2) A person may be taken to have engaged in conduct for the purpose
referred to in subsection (1) even though, after all the evidence has
been considered, the existence of that purpose is ascertainable only
by inference from the conduct of the person or from other relevant
circumstances. This subsection does not limit the manner in which
the purpose of a person may be established for the purposes of
subsection (1).
(3) Subsection (1) does not have effect before 1 July 1997.
152EG Enforcement of prohibition on hindering the fulfilment of a
standard access obligation etc.
(1) If the Federal Court is satisfied, on the application of any person,
that another person (the obstructor) has engaged, is engaging, or is
proposing to engage in conduct constituting a contravention of
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Section 152EH
Competition and Consumer Act 2010 413
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
section 152EF, the Court may make all or any of the following
orders:
(a) an order granting an injunction on such terms as the Court
thinks appropriate:
(i) restraining the obstructor from engaging in the conduct;
or
(ii) if the conduct involves refusing or failing to do
something—requiring the obstructor to do that thing;
(b) an order directing the obstructor to compensate a person who
has suffered loss or damage as a result of the contravention;
(c) any other order that the Court thinks appropriate.
(2) If the Federal Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular
conduct, or requiring a person to do anything, the Court may make
any other orders (including granting an injunction) that it thinks
appropriate against any other person who was involved in the
contravention concerned.
152EH Consent injunctions
On an application for an injunction under section 152EG, the
Federal Court may grant an injunction by consent of all of the
parties to the proceedings, whether or not the Court is satisfied that
the section applies.
152EI Interim injunctions
(1) The Federal Court may grant an interim injunction pending
determination of an application under section 152EG.
(2) If the Commission makes an application under section 152EG to
the Federal Court for an injunction, the Court must not require the
Commission or any other person, as a condition of granting an
interim injunction, to give any undertakings as to damages.
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Division 10 Hindering the fulfilment of a standard access obligation etc.
Section 152EJ
414 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152EJ Factors relevant to granting a restraining injunction
The power of the Federal Court to grant an injunction under
section 152EG restraining a person from engaging in conduct may
be exercised whether or not:
(a) it appears to the Court that the person intends to engage
again, or to continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person engages in conduct of
that kind.
152EK Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant an injunction under
section 152EG requiring a person to do a thing may be exercised
whether or not:
(a) it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person refuses or fails to do that
thing.
152EL Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order
granted under this Division.
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Procedural Rules Division 10A
Section 152ELA
Competition and Consumer Act 2010 415
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 10A—Procedural Rules
152ELA Procedural Rules
(1) The Commission may, by written instrument, make rules:
(a) making provision for or in relation to the practice and
procedure to be followed by the Commission in performing
functions, or exercising powers, under this Part; or
(b) making provision for or in relation to all matters and things
incidental to any such practice or procedure, or necessary or
convenient to be prescribed for the conduct of any business
of the Commission under this Part; or
(c) prescribing matters required or permitted by any other
provision of this Part to be prescribed by the Procedural
Rules.
(2) Rules under subsection (1) are to be known as Procedural Rules.
(3) The Procedural Rules may make provision for or in relation to any
or all of the following:
(a) the confidentiality of information or documents given to the
Commission by:
(i) an applicant for an order under subsection 152ATA(1);
or
(ii) a person who gave the Commission an access
undertaking or a variation of an access undertaking;
(c) the form and content of applications, undertakings, variations
or other documents given to the Commission under this Part.
(4) Subsection (3) does not limit subsection (1).
(5) The Procedural Rules may make provision for or in relation to a
matter by empowering the Commission to make decisions of an
administrative character.
(6) Subsection (5) does not limit subsection (1).
(8) An instrument under subsection (1) is a legislative instrument.
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Division 10A Procedural Rules
Section 152ELB
416 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Note: For variation and revocation of instruments under subsection (1), see
subsection 33(3) of the Acts Interpretation Act 1901.
152ELB Public consultation
(1) Before making any Procedural Rules, the Commission must:
(a) publish a draft of the Procedural Rules on the Commission’s
website and invite people to make submissions to the
Commission on the draft Procedural Rules; and
(b) consider any submissions that are received within the time
limit specified by the Commission when it published the
draft Procedural Rules.
(2) The time limit specified by the Commission must be at least 30
days after the day of publication of the draft Procedural Rules.
152ELC Plan for the development of Procedural Rules
(1) Within 6 months after the commencement of this section, the
Commission must:
(a) prepare a written plan setting out:
(i) an outline of the Commission’s proposals for making
Procedural Rules; and
(ii) an indicative timetable for making those Procedural
Rules; and
(b) make a copy of the plan available on the Commission’s
website.
(2) A failure to comply with the plan does not affect the validity of an
instrument under subsection 152ELA(1).
(3) The plan is not a legislative instrument.
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Miscellaneous Division 11
Section 152ELD
Competition and Consumer Act 2010 417
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 11—Miscellaneous
152ELD Compensation for acquisition of property
(1) If the operation of this Part would result in an acquisition of
property from a person otherwise than on just terms, the
Commonwealth is liable to pay a reasonable amount of
compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount
of the compensation, the person may institute proceedings in a
court of competent jurisdiction for the recovery from the
Commonwealth of such reasonable amount of compensation as the
court determines.
(3) In this section:
acquisition of property has the same meaning as in
paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the
Constitution.
this Part includes Division 2 of Part 2 of Schedule 1 to the
Telecommunications Legislation Amendment (Competition and
Consumer Safeguards) Act 2010.
152EM Continuity of partnerships
For the purposes of this Part, a change in the composition of a
partnership does not affect the continuity of the partnership.
152EN Treatment of partnerships
This Part applies to a partnership as if the partnership were a
person, but it applies with the following changes:
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Division 11 Miscellaneous
Section 152EO
418 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) obligations that would be imposed on the partnership are
imposed instead on each partner, but may be discharged by
any of the partners;
(b) any offence against this Part that would otherwise be
committed by the partnership is taken to have been
committed by each partner who:
(i) aided, abetted, counselled or procured the relevant act or
omission; or
(ii) was in any way knowingly concerned in, or party to, the
relevant act or omission (whether directly or indirectly
and whether by any act or omission of the partner).
152EO Conduct by directors, servants or agents
(1) If, in a proceeding under this Part in respect of conduct engaged in
by a body corporate, it is necessary to establish the state of mind of
the body corporate in relation to particular conduct, it is sufficient
to show:
(a) that the conduct was engaged in by a director, servant or
agent of the body corporate within the scope of his or her
actual or apparent authority; and
(b) that the director, servant or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, servant or agent of the body corporate within
the scope of the person’s actual or apparent authority; or
(b) by any other person at the direction or with the consent or
agreement (whether express or implied) of a director, servant
or agent of the body corporate, if the giving of the direction,
consent or agreement is within the scope of the actual or
apparent authority of the director, servant or agent;
is taken for the purposes of this Part to have been engaged in also
by the body corporate, unless the body corporate establishes that
the body corporate took reasonable precautions and exercised due
diligence to avoid the conduct.
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Miscellaneous Division 11
Section 152EOA
Competition and Consumer Act 2010 419
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) A reference in subsection (1) to the state of mind of a person
includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the
person; and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
(4) A reference in this section to a director of a body corporate
includes a reference to a constituent member of a body corporate
incorporated for a public purpose by a law of the Commonwealth,
of a State or of a Territory.
152EOA Review of operation of this Part etc.
(1) Before 30 June 2014, the Minister must cause to be conducted a
review of the operation of:
(a) this Part; and
(b) the remaining provisions of this Act so far as they relate to
this Part; and
(c) Division 2 of Part 2 of the National Broadband Network
Companies Act 2011; and
(d) the remaining provisions of the National Broadband Network
Companies Act 2011 so far as they relate to Division 2 of
Part 2 of that Act.
(1A) Without limiting subsection (1), a review under that subsection
must consider the following matters:
(a) the supply by NBN corporations of eligible services covered
by section 10, 11, 12, 13, 14, 15 or 16 of the National
Broadband Network Companies Act 2011;
(b) the types of eligible services that have been, are being, or are
proposed to be, supplied by NBN corporations.
(1B) For the purposes of subsection (1A), eligible service has the same
meaning as in section 152AL.
(2) A review under subsection (1) must make provision for public
consultation.
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Division 11 Miscellaneous
Section 152EP
420 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) The Minister must cause to be prepared a report of a review under
subsection (1).
(4) The Minister must cause copies of the report to be tabled in each
House of the Parliament within 15 sitting days of that House after
the completion of the preparation of the report.
152EP Regulations about fees for inspection etc. of registers
The regulations may make provision about the inspection of
registers maintained under this Part (including provision about
fees).
152EQ Assistance to independent telecommunications adjudicator
(1) For the purposes of this section, the independent
telecommunications adjudicator is a company that:
(a) is limited by guarantee; and
(b) is identified, in an undertaking in force under section 577A
of the Telecommunications Act 1997, as the independent
telecommunications adjudicator for the purpose of this
section.
(2) The Commission may assist the independent telecommunications
adjudicator.
(3) The assistance may include the following:
(a) the provision of information (including protected information
within the meaning of section 155AAA);
(b) the provision of advice;
(c) the making available of resources and facilities (including
secretariat services and clerical assistance).
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Miscellaneous Division 11
Section 152ER
Competition and Consumer Act 2010 421
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152ER Voluntary undertakings given by Telstra
Scope
(1) This section applies if an undertaking given by Telstra is in force
under section 577A, 577C or 577E of the Telecommunications Act
1997.
Note 1: Section 577A of the Telecommunications Act 1997 deals with
undertakings about structural separation.
Note 2: Section 577C of the Telecommunications Act 1997 deals with
undertakings about hybrid fibre-coaxial networks.
Note 3: Section 577E of the Telecommunications Act 1997 deals with
undertakings about subscription television broadcasting licences.
Commission must have regard to Telstra’s conduct
(2) If Telstra has engaged, or is required to engage, in conduct in order
to comply with the undertaking, then, in performing a function, or
exercising a power, under this Part in relation to Telstra, the
Commission must have regard to the conduct to the extent that the
conduct is relevant.
Commission must not prevent Telstra from complying with the
undertaking
(3) The Commission must not perform a function, or exercise a power,
under this Part so as to prevent Telstra from complying with the
undertaking.
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Part XID Search and seizure
Division 1 Preliminary
Section 154
422 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part XID—Search and seizure
Division 1—Preliminary
154 Simplified outline
The following is a simplified outline of this Part:
• This Part sets out an enforcement regime for the purposes of
finding out whether there has been a contravention of this Act,
Part 20 of the Telecommunications Act 1997 or Part 9 of the
Telecommunications (Consumer Protection and Service
Standards) Act 1999.
• Division 2 provides for the appointment of inspectors and the
issue of identity cards.
• Division 3 deals with entry to premises with the consent of the
occupier of the premises.
• Division 4 deals with entry to premises under a search warrant
issued by a magistrate. It sets out the powers available under a
search warrant, the obligations of persons entering the
premises and the rights and responsibilities of the occupier of
the premises.
• Division 5 contains some general provisions relating to the
operation of electronic equipment at premises.
Note: See also section 155 (which deals with the obtaining of information,
documents and evidence).
154A Definitions
In this Part:
consultant means a person engaged under section 27A.
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Preliminary Division 1
Section 154A
Competition and Consumer Act 2010 423
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
contravention, in relation to a law, includes an offence against
section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an
offence against that law.
data includes:
(a) information in any form; or
(b) any program (or part of a program).
data held in a computer includes:
(a) data held in any removable data storage device for the time
being held in a computer; or
(b) data held in a data storage device on a computer network of
which the computer forms a part.
data storage device means a thing containing, or designed to
contain, data for use by a computer.
evidential material means a document or other thing that may
afford evidence relating to:
(a) a contravention of this Act; or
(b) a contravention of Part 20 of the Telecommunications Act
1997; or
(c) a contravention of Part 9 of the Telecommunications
(Consumer Protection and Service Standards) Act 1999; or
(d) a contravention of section 137.1, 137.2 or 149.1 of the
Criminal Code that relates to this Part.
executing officer, for a search warrant, means:
(a) the inspector named in the warrant as being responsible for
executing the warrant; or
(b) if that inspector does not intend to be present at the execution
of the warrant—another inspector whose name has been
written in the warrant by the inspector so named; or
(c) another inspector whose name has been written in the
warrant by the inspector last named in the warrant.
inspector means a person appointed as an inspector under
section 154B.
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Division 1 Preliminary
Section 154A
424 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
occupier, in relation to premises, includes a person present at the
premises who apparently represents the occupier.
officer assisting, for a search warrant, means:
(a) an inspector who is assisting in executing the warrant; or
(b) a person authorised under section 154K in relation to the
warrant.
premises means:
(a) an area of land or any other place (whether or not it is
enclosed or built on); or
(b) a building or other structure; or
(c) a vehicle, vessel or aircraft; or
(d) a part of any such premises.
search warrant means a warrant issued by a magistrate under
section 154X or signed by a magistrate under section 154Y.
thing includes a thing in electronic or magnetic form.
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Appointment of inspectors and identity cards Division 2
Section 154B
Competition and Consumer Act 2010 425
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 2—Appointment of inspectors and identity cards
154B Appointment of inspectors
(1) The Chairperson may, by writing, appoint a member of the staff
assisting the Commission to be an inspector.
Staff member to have suitable qualifications and experience
(2) The Chairperson must not do so unless he or she is satisfied that
the staff member has suitable qualifications and experience to
properly exercise the powers of an inspector.
Inspector to comply with Chairperson’s directions
(3) An inspector must comply with any directions of the Chairperson
in exercising powers or performing functions as an inspector.
154C Identity cards
(1) The Chairperson must issue an identity card to an inspector.
Form of identity card
(2) The identity card must:
(a) be in the form prescribed by the regulations; and
(b) contain a recent photograph of the inspector.
Offence
(3) A person commits an offence if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an inspector; and
(c) the person does not return the identity card to the
Chairperson as soon as practicable.
Penalty: 1 penalty unit.
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Division 2 Appointment of inspectors and identity cards
Section 154C
426 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(4) An offence against subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Card lost or destroyed
(5) Subsection (3) does not apply if the identity card was lost or
destroyed.
Note: A defendant bears an evidential burden in relation to the matter in this
subsection: see subsection 13.3(3) of the Criminal Code.
Inspector must carry card
(6) An inspector must carry his or her identity card at all times when
exercising powers or performing functions as an inspector.
Inspector must produce card on request
(7) An inspector is not entitled to exercise any powers under this Part
in relation to premises if:
(a) the occupier of the premises has requested the inspector to
produce the inspector’s identity card for inspection by the
occupier; and
(b) the inspector fails to comply with the request.
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Entry to premises with consent Division 3
Section 154D
Competition and Consumer Act 2010 427
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 3—Entry to premises with consent
154D Entry with consent
Entry
(1) An inspector may enter premises if:
(a) the Commission, the Chairperson or a Deputy Chairperson
has reasonable grounds for suspecting that there may be
evidential material on the premises; and
(b) the inspector obtains the consent of the occupier of the
premises to enter the premises.
(2) The inspector may be accompanied by any one or more of the
following persons (each of whom is an assistant):
(a) another member of the staff assisting the Commission;
(b) a consultant.
Obtaining consent
(3) Before obtaining the consent of a person to enter premises under
this Division, the inspector must inform the person that the person
may refuse consent.
(4) A consent of a person is not effective for the purposes of this
section unless it is voluntary.
154E Powers in relation to premises
(1) The inspector or an assistant may do any of the following after
entering premises under this Division:
(a) search the premises, and any thing on the premises, for the
evidential material;
(b) make copies of the evidential material found on the premises;
(c) operate electronic equipment at the premises to see whether
the evidential material is accessible by doing so;
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Division 3 Entry to premises with consent
Section 154F
428 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Note: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).
(d) remove the evidential material from the premises with the
consent of the owner of the material;
Note: See also subsection (2).
(e) secure the evidential material, pending the obtaining of a
search warrant to seize it;
(f) take equipment and material onto the premises, and use it, for
any of the above purposes.
Obtaining consent to remove evidential material
(2) Before obtaining the consent of a person to remove evidential
material from premises under paragraph (1)(d), the inspector or an
assistant must inform the person of the purpose for which the
material is required and that the person may refuse consent. A
consent of a person is not effective for the purposes of that
paragraph unless the consent is voluntary.
154F Operation of electronic equipment at premises
(1) If:
(a) an inspector or an assistant enters premises under this
Division; and
(b) he or she believes on reasonable grounds that any data
accessed by operating electronic equipment at the premises
(including data not held at the premises) might constitute
evidential material;
he or she may do only 1 of 2 things.
Removal of documents
(2) One thing he or she may do is operate the equipment or other
facilities at the premises to put the data in documentary form and
remove the documents so produced from the premises.
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Entry to premises with consent Division 3
Section 154F
Competition and Consumer Act 2010 429
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Removal of disk, tape or other storage device
(3) The other thing he or she may do is operate the equipment or other
facilities at the premises to transfer the data to a disk, tape or other
storage device that:
(a) is brought to the premises for the exercise of the power; or
(b) is at the premises and the use of which for the purpose has
been agreed to in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the
premises.
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Section 154G
430 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 4—Entry to premises under a search warrant
Subdivision A—Powers available under a search warrant
154G The things that are authorised by a search warrant
(1) A search warrant that is in force in relation to premises authorises
the executing officer or an officer assisting to do any of the
following:
(a) enter the premises;
(b) search the premises, and any thing on the premises, for the
kind of evidential material specified in the warrant, and seize
things of that kind found on the premises;
(c) make copies of the kind of evidential material specified in the
warrant found on the premises;
(d) operate electronic equipment at the premises to see whether
the kind of evidential material specified in the warrant is
accessible by doing so;
Note: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).
(e) take equipment and material onto the premises, and use it, for
any of the above purposes.
(1A) In executing a search warrant that is in force in relation to
premises, the executing officer or an officer assisting may:
(a) for a purpose incidental to the execution of the warrant; or
(b) with the written consent of the occupier of the premises;
take photographs, or make video recordings, of the premises or of
anything at the premises.
(1B) If a search warrant in relation to premises is being executed, the
executing officer and the officers assisting may, if the warrant is
still in force, complete the execution of the warrant after all of
them temporarily cease its execution and leave the premises:
(a) for not more than one hour; or
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Section 154GA
Competition and Consumer Act 2010 431
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) for a longer period if the occupier of the premises consents in
writing.
Seizing other evidence
(2) If:
(a) the executing officer or an officer assisting, in the course of
searching for the kind of evidential material specified in the
warrant, finds another thing that he or she believes on
reasonable grounds to be evidence of:
(i) an indictable offence against this Act; or
(ii) an indictable offence against Part 20 of the
Telecommunications Act 1997; or
(iii) an indictable offence against Part 9 of the
Telecommunications (Consumer Protection and Service
Standards) Act 1999; or
(iv) an offence against section 137.1, 137.2 or 149.1 of the
Criminal Code that relates to this Part; and
(b) he or she believes on reasonable grounds that it is necessary
to seize the other thing in order to prevent its concealment,
loss or destruction;
then he or she may seize that other thing.
154GA Removing things for examination or processing
(1) A thing found at the premises may be moved to another place for
examination or processing in order to determine whether it may be
seized under a search warrant if:
(a) both of the following subparagraphs apply:
(i) it is significantly more practicable to do so having
regard to the timeliness and cost of examining or
processing the thing at another place and the availability
of expert assistance;
(ii) there are reasonable grounds to believe that the thing
contains or constitutes evidential material; or
(b) the occupier of the premises consents in writing.
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Section 154H
432 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Notice to occupier
(2) If a thing is moved to another place for the purpose of examination
or processing under subsection (1), the executing officer must, if it
is practicable to do so:
(a) inform the occupier of the address of the place and the time
at which the examination or processing will be carried out;
and
(b) allow the occupier or his or her representative to be present
during the examination or processing.
Period of removal
(3) The thing may be moved to another place for examination or
processing for no longer than 72 hours.
Extensions
(4) An executing officer may apply to a magistrate for one or more
extensions of that time if the executing officer believes on
reasonable grounds that the thing cannot be examined or processed
within 72 hours or that time as previously extended.
(5) The executing officer must give notice of the application to the
occupier of the premises of his or her intention to apply for an
extension, and the occupier is entitled to be heard in relation to the
application.
(6) The magistrate may order an extension for a period specified in the
order if the magistrate is satisfied that the extension is necessary.
154H Operation of electronic equipment at premises
(1) If:
(a) a search warrant is in force in relation to premises; and
(b) the executing officer or an officer assisting believes on
reasonable grounds that any data accessed by operating
electronic equipment at the premises (including data not held
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Section 154H
Competition and Consumer Act 2010 433
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
at the premises) might constitute evidential material of the
kind specified in the warrant;
he or she may do only 1 of 3 things.
Seizure
(2) One thing he or she may do is seize the equipment and any disk,
tape or other associated device.
Note: Subsection (5) sets out limitations on seizure.
Removal of documents
(3) Another thing he or she may do is operate the equipment or other
facilities at the premises to put the data in documentary form and
remove the documents so produced from the premises.
Note: An executing officer can obtain an order requiring a person with
knowledge of a computer or computer system to provide assistance—
see section 154RA.
Removal of disk, tape or other storage device
(4) The final thing he or she may do is operate the equipment or other
facilities at the premises to transfer the data to a disk, tape or other
storage device that:
(a) is brought to the premises; or
(b) is at the premises and the use of which for the purpose has
been agreed to in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the
premises.
Note: An executing officer can obtain an order requiring a person with
knowledge of a computer or computer system to provide assistance—
see section 154RA.
Limitation on seizure
(5) A person may seize a thing under subsection (2) only if:
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Section 154J
434 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) it is not practicable to put the data in documentary form as
mentioned in subsection (3) or to transfer the data as
mentioned in subsection (4); or
(b) possession of the thing by the occupier could constitute an
offence against a law of the Commonwealth.
154J Securing electronic equipment for use by experts
(1) If a search warrant in relation to premises is being executed and the
executing officer or an officer assisting believes on reasonable
grounds that:
(a) the kind of evidential material specified in the warrant may
be accessible by operating electronic equipment at the
premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the
material may be destroyed, altered or otherwise interfered
with;
he or she may do whatever is necessary to secure the equipment,
whether by locking it up, placing a guard or otherwise.
Notice to occupier
(2) The executing officer or officer assisting must give notice to the
occupier of the premises of his or her intention to secure the
equipment and of the fact that the equipment may be secured for up
to 24 hours.
Period equipment may be secured
(3) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
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Section 154K
Competition and Consumer Act 2010 435
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Extensions
(4) If the executing officer or officer assisting believes on reasonable
grounds that the expert assistance will not be available within
24 hours, he or she may apply to a magistrate for an extension of
that period.
(5) The executing officer or officer assisting must give notice to the
occupier of the premises of his or her intention to apply for an
extension, and the occupier is entitled to be heard in relation to the
application.
(6) The magistrate may order an extension for a period specified in the
order if the magistrate is satisfied that the extension is necessary.
Subdivision B—Availability of assistance and use of force in
executing a search warrant
154K Authorisation of officers assisting
The executing officer for a search warrant may, by writing,
authorise a member of the Australian Federal Police, a member of
the staff assisting the Commission, or a consultant, to assist in
executing the warrant.
154L Availability of assistance and use of force in executing a search
warrant
In executing a search warrant:
(a) the executing officer may obtain such assistance as is
necessary and reasonable in the circumstances; and
(b) the executing officer, or another inspector who is an officer
assisting, may use such force against persons and things as is
necessary and reasonable in the circumstances; and
(ba) a member of the Australian Federal Police who is an officer
assisting may use such force against persons and things as is
necessary and reasonable in the circumstances; and
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Section 154M
436 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(c) a person who is not an inspector, but who is an officer
assisting, may use such force against things as is necessary
and reasonable in the circumstances.
Subdivision C—Obligations of executing officer and officers
assisting
154M Announcement before entry
(1) Before any person enters premises under a search warrant, the
executing officer must:
(a) announce that he or she is authorised to enter the premises;
and
(b) give any person at the premises an opportunity to allow entry
to the premises.
(2) However, the executing officer is not required to comply with
subsection (1) if he or she believes on reasonable grounds that
immediate entry to the premises is required to ensure that the
effective execution of the warrant is not frustrated.
154N Details of warrant to be given to occupier
If a search warrant in relation to premises is being executed and the
occupier of the premises is present at the premises, the executing
officer or an officer assisting must make available to the occupier a
copy of the warrant or a copy of the form of warrant.
Subdivision D—Occupier’s rights and responsibilities
154P Occupier entitled to observe search being conducted
(1) If a search warrant in relation to premises is being executed and the
occupier of the premises is present at the premises, the occupier is
entitled to observe the search being conducted.
(2) The occupier’s right to observe the search being conducted ends if
the occupier impedes the search.
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Section 154Q
Competition and Consumer Act 2010 437
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
154Q Occupier to provide reasonable facilities and assistance
The occupier of premises in relation to which a search warrant is
being executed must provide the executing officer and any officer
assisting with all reasonable facilities and assistance for the
effective exercise of their powers.
Penalty: 30 penalty units.
154R Answering of questions or producing evidential material
(1) If a search warrant in relation to premises is being executed, the
executing officer or an officer assisting may:
(a) require a person at the premises to answer questions or
produce evidential material to which the warrant relates; and
(b) seize that evidential material.
(2) A person commits an offence if the person fails to comply with a
requirement under subsection (1).
Penalty: 30 penalty units or imprisonment for 12 months, or both.
Self-incrimination is no excuse
(3) An individual is not excused from answering a question or
producing evidential material on the ground that the answer, or the
production of the material, might tend to incriminate the individual
or make the individual liable to a penalty.
(4) However, the answer is not admissible in evidence against the
individual in any criminal proceedings, other than:
(a) proceedings for an offence against subsection (2); or
(b) proceedings for an offence against section 137.1, 137.2 or
149.1 of the Criminal Code that relates to this Part.
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Section 154RA
438 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
154RA Person with computer knowledge to assist access etc.
(1) The executing officer for a search warrant may apply to a
magistrate for an order requiring a specified person to provide any
information or assistance that is reasonable and necessary to allow
the officer to do one or more of the following:
(a) access data held in, or accessible from, a computer that is on
premises to which the warrant relates;
(b) transfer the data to a disk, tape or other storage device;
(c) convert the data into documentary form.
(2) The magistrate may grant the order if the magistrate is satisfied
that:
(a) there are reasonable grounds for suspecting that evidential
material is held in, or is accessible from, the computer; and
(b) the specified person is:
(i) reasonably suspected of having committed the
contravention, or one or more of the contraventions,
stated in the search warrant; or
(ii) the owner or lessee of the computer; or
(iii) an employee of the owner or lessee of the computer; and
(c) the specified person has relevant knowledge of:
(i) the computer or a computer network of which the
computer forms a part; or
(ii) measures applied to protect data held in, or accessible
from, the computer.
(3) A person commits an offence if:
(a) the person is subject to an order under this section; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the order.
Penalty for a contravention of this subsection: Imprisonment for
6 months.
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Section 154S
Competition and Consumer Act 2010 439
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Subdivision E—General provisions relating to seizure
154S Copies of seized things to be provided
(1) If, under a search warrant relating to premises, the executing
officer or an officer assisting seizes:
(a) a document, film, computer file or other thing that can be
readily copied; or
(b) a storage device the information in which can be readily
copied;
then he or she must, if requested to do so by the occupier of the
premises, give a copy of the thing or the information to the
occupier as soon as practicable after the seizure.
(2) However, subsection (1) does not apply if possession of the
document, film, computer file, thing or information by the occupier
could constitute an offence against a law of the Commonwealth.
154T Receipts for things seized or moved under warrant
(1) If a thing is seized under a search warrant or moved under
subsection 154GA(1), the executing officer or an officer assisting
must provide a receipt for the thing.
(2) If 2 or more things are seized or moved, they may be covered in
the one receipt.
154U Return of seized things
(1) Subject to any contrary order of a court, if a person (the seizer)
seizes a thing under this Division, the person must return it if:
(a) the reason for its seizure no longer exists or it is decided that
it is not to be used in evidence; or
(b) the period of 120 days after its seizure ends;
whichever first occurs, unless the thing is forfeited or forfeitable to
the Commonwealth or is the subject of a dispute as to ownership.
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Section 154V
440 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) At the end of the 120 days specified in subsection (1), the seizer
must take reasonable steps to return the thing to the person from
whom it was seized (or to the owner if that person is not entitled to
possess it), unless:
(a) proceedings in respect of which the thing may afford
evidence were instituted before the end of the 120 days and
have not been completed (including an appeal to a court in
relation to those proceedings); or
(b) an inspector may retain the thing because of an order under
section 154V; or
(c) the seizer is otherwise authorised (by a law, or an order of a
court, of the Commonwealth or of a State or Territory) to
retain, destroy or dispose of the thing.
154V Magistrate may permit a thing to be retained
Application for extension
(1) An inspector may apply to a magistrate for an order that he or she
may retain the thing for a further period if:
(a) before the end of 120 days after the seizure; or
(b) before the end of a period previously specified in an order of
a magistrate under this section;
proceedings in respect of which the thing may afford evidence
have not commenced.
Grant of extension
(2) If the magistrate is satisfied that it is necessary for the inspector to
continue to retain the thing for the purposes of an investigation as
to whether there has been:
(a) a contravention of this Act; or
(b) a contravention of Part 20 of the Telecommunications Act
1997; or
(c) a contravention of Part 9 of the Telecommunications
(Consumer Protection and Service Standards) Act 1999; or
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Section 154W
Competition and Consumer Act 2010 441
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(d) a contravention of section 137.1, 137.2 or 149.1 of the
Criminal Code that relates to this Part;
the magistrate may order that the inspector may retain the thing for
a period (not exceeding 3 years) specified in the order.
Affect on interested parties
(3) Before making the application, the inspector must:
(a) take reasonable steps to discover who has an interest in the
retention of the thing; and
(b) if it is practicable to do so, notify each person whom the
inspector believes to have such an interest of the proposed
application.
154W Disposal of things if there is no owner or owner cannot be
located
If:
(a) a thing is seized under this Division; and
(b) a person would otherwise be required to return the thing to its
owner; and
(c) there is no owner or the person cannot, despite making
reasonable efforts, locate the owner;
the person may dispose of the thing in such manner as he or she
thinks appropriate.
Subdivision F—Search warrants
154X Issue of search warrants
Application for warrant
(1) An inspector may apply to a magistrate for a warrant under this
section in relation to premises.
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Section 154X
442 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Issue of warrant
(2) The magistrate may issue the warrant if the magistrate is satisfied,
by information on oath or affirmation, that there are reasonable
grounds for suspecting that:
(a) there is evidential material on the premises; or
(b) there may be evidential material on the premises within the
next 72 hours.
Note: A magistrate who holds office under a law of a State or Territory may
issue a warrant in relation to premises even if those premises are not
in that State or Territory.
(3) However, the magistrate must not issue the warrant unless the
inspector or some other person has given to the magistrate, either
orally or by affidavit, such further information (if any) as the
magistrate requires concerning the grounds on which the issue of
the warrant is being sought.
Content of warrant
(4) The warrant must state:
(a) a description of the premises to which the warrant relates;
and
(b) the kind of evidential material that is to be searched for under
the warrant (including stating the contraventions to which the
warrant relates); and
(c) the name of the inspector who is to be responsible for
executing the warrant; and
(d) whether the warrant may be executed at any time of the day
or night or during specified hours of the day or night; and
(e) the day (not more than one week after the issue of the
warrant) on which the warrant ceases to have effect.
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Section 154Y
Competition and Consumer Act 2010 443
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
154Y Search warrants by telephone, fax etc.
Application for warrant
(1) If, in an urgent case, an inspector considers it necessary to do so,
the inspector may apply to a magistrate by telephone, fax or other
electronic means for a warrant under section 154X in relation to
premises.
Voice communication
(2) The magistrate may require communication by voice to the extent
that it is practicable in the circumstances.
Information
(3) Before applying for the warrant, the inspector must prepare an
information of the kind mentioned in subsection 154X(2) in
relation to the premises that sets out the grounds on which the
warrant is sought. If it is necessary to do so, the inspector may
apply for the warrant before the information is sworn or affirmed.
Issue of warrant
(4) If the magistrate is satisfied:
(a) after having considered the terms of the information; and
(b) after having received such further information (if any) as the
magistrate requires concerning the grounds on which the
issue of the warrant is being sought;
that there are reasonable grounds for issuing the warrant, the
magistrate may complete and sign the same warrant that the
magistrate would issue under section 154X if the application had
been made under that section.
Notification
(5) If the magistrate completes and signs the warrant, the magistrate
must inform the applicant, by telephone, fax or other electronic
means, of:
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444 Competition and Consumer Act 2010
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(a) the terms of the warrant; and
(b) the day on which and the time at which the warrant was
signed; and
(c) the day (not more than one week after the magistrate
completes and signs the warrant) on which the warrant ceases
to have effect.
Form of warrant
(6) The applicant must then complete a form of warrant in the same
terms as the warrant completed and signed by the magistrate,
stating on the form the name of the magistrate and the day on
which and the time at which the warrant was signed.
Completed form of warrant to be given to magistrate
(7) The applicant must also, not later than the day after the day of
expiry or execution of the warrant, whichever is the earlier, send to
the magistrate:
(a) the form of warrant completed by the applicant; and
(b) the information referred to in subsection (3), which must
have been duly sworn or affirmed.
Attachment
(8) The magistrate is to attach to the documents provided under
subsection (7) the warrant completed by the magistrate.
Authority of warrant
(9) A form of warrant duly completed under subsection (6) is authority
for the same powers as are authorised by the warrant signed by the
magistrate.
(10) If:
(a) it is material, in any proceedings, for a court to be satisfied
that an exercise of a power was authorised by this section;
and
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Section 154Z
Competition and Consumer Act 2010 445
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) the warrant signed by the magistrate authorising the exercise
of the power is not produced in evidence;
the court must assume, unless the contrary is proved, that the
exercise of the power was not authorised by such a warrant.
154Z Offences relating to warrants
(1) An inspector must not make, in an application for a warrant, a
statement that the inspector knows to be false or misleading in a
material particular.
Penalty: Imprisonment for 2 years.
(2) An inspector must not:
(a) state in a document that purports to be a form of warrant
under section 154Y the name of a magistrate unless that
magistrate issued the warrant; or
(b) state on a form of warrant under that section a matter that, to
the inspector’s knowledge, departs in a material particular
from the form authorised by the magistrate; or
(c) purport to execute, or present to another person, a document
that purports to be a form of warrant under that section that
the inspector knows:
(i) has not been approved by a magistrate under that
section; or
(ii) departs in a material particular from the terms
authorised by a magistrate under that section; or
(d) give to a magistrate a form of warrant under that section that
is not the form of warrant that the inspector purported to
execute.
Penalty: Imprisonment for 2 years.
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Section 154ZA
446 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Subdivision G—Powers of magistrates
154ZA Powers conferred on magistrates
(1) A power conferred on a magistrate by this Division is conferred on
the magistrate in a personal capacity and not as a court or a
member of a court. The magistrate need not accept the power
conferred.
(2) A magistrate exercising such a power has the same protection and
immunity as if he or she were exercising that power as, or as a
member of, the court of which the magistrate is a member.
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Section 154ZB
Competition and Consumer Act 2010 447
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 5—General provisions relating to electronic
equipment
154ZB Operation of electronic equipment at premises
A person may operate electronic equipment at premises in order to
exercise a power under this Part only if he or she believes on
reasonable grounds that the operation of the equipment can be
carried out without damage to the equipment.
154ZC Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of electronic equipment being operated as
mentioned in section 154E, 154F, 154G, 154H or 154J:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or
with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person
who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating
the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the
user of the data or programs, such reasonable compensation for the
damage or corruption as the Commonwealth and the owner or user
agree on.
(3) However, if the owner or user and the Commonwealth fail to
agree, the owner or user may institute proceedings in the Federal
Court of Australia for such reasonable amount of compensation as
the Court determines.
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Section 154ZC
448 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(4) In determining the amount of compensation payable, regard is to
be had to whether the occupier of the premises, or the occupier’s
employees and agents, if they were available at the time, provided
any appropriate warning or guidance on the operation of the
equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of data or
addition of other data.
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Section 155
Competition and Consumer Act 2010 449
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part XII—Miscellaneous
155 Power to obtain information, documents and evidence
(1) Subject to subsection (2A), if the Commission, the Chairperson or
a Deputy Chairperson has reason to believe that a person is capable
of furnishing information, producing documents or giving evidence
relating to a matter that constitutes, or may constitute, a
contravention of this Act or Division 4A or 4B of Part 3.3 of the
Radiocommunications Act 1992, or is relevant to a designated
communications matter (as defined by subsection (9)) or a
designated water matter (as defined by subsection (9A)) or is
relevant to the making of a decision by the Commission under
subsection 91B(4), 91C(4), 93(3) or (3A) or 93AC(1) or (2) or
95AS(7) or the making of an application under
subsection 95AZM(6), a member of the Commission may, by
notice in writing served on that person, require that person:
(a) to furnish to the Commission, by writing signed by that
person or, in the case of a body corporate, by a competent
officer of the body corporate, within the time and in the
manner specified in the notice, any such information;
(b) to produce to the Commission, or to a person specified in the
notice acting on its behalf, in accordance with the notice, any
such documents; or
(c) to appear before the Commission, or before a member of the
staff assisting the Commission who is an SES employee or an
acting SES employee and who is specified in the notice, at a
time and place specified in the notice to give any such
evidence, either orally or in writing, and produce any such
documents.
(2A) A member of the Commission may not give a notice under
subsection (1) merely because:
(a) a person has refused or failed to comply with a notice under
subsection 95ZK(1) or (2) on the ground that complying with
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the notice would tend to incriminate the person, or to expose
the person to a penalty; or
(b) a person has refused or failed to answer a question that the
person was required to answer by the person presiding at an
inquiry under Part VIIA, on the ground that the answer
would tend to incriminate the person, or to expose the person
to a penalty; or
(c) a person has refused or failed to produce a document referred
to in a summons under subsection 95S(3), on the ground that
production of the document would tend to incriminate the
person, or to expose the person to a penalty.
(3) If a notice under subsection (1) requires a person to appear before
the Commission to give evidence, the Commission may require the
evidence to be given on oath or affirmation. For that purpose, any
member of the Commission may administer an oath or affirmation.
(3A) If a notice under subsection (1) requires a person to appear before a
member of the staff assisting the Commission to give evidence, the
staff member may require the evidence to be given on oath or
affirmation and may administer an oath or affirmation.
(4) A member of the Commission may exercise, or continue to
exercise, a power under subsection (1) in relation to a matter
referred to in that subsection until:
(a) the Commission commences proceedings in relation to the
matter (other than proceedings for an injunction, whether
interim or finan( � or
(b) the close of pleadings in relation to an application by the
Commission for a final injunction in relation to the matter.
(5) A person shall not:
(a) refuse or fail to comply with a notice under this section;
(b) in purported compliance with such a notice, knowingly
furnish information or give evidence that is false or
misleading.
(5A) Paragraph (5)(a) does not apply to the extent that the person is not
capable of complying with the notice.
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Note: A defendant bears an evidential burden in relation to the matters in
subsection (5A), see subsection 13.3(3) of the Criminal Code.
(6A) A person who contravenes subsection (5) is guilty of an offence
punishable on conviction by a fine not exceeding 20 penalty units
or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with
penalties.
(7) A person is not excused from furnishing information or producing
a document in pursuance of this section on the ground that the
information or document may tend to incriminate the person or
expose the person to a penalty, but the answer by an individual to
any question asked in a notice under this section or the furnishing
by an individual of any information in pursuance of such a notice is
not admissible in evidence against the individual in any criminal
proceedings, other than:
(a) proceedings for an offence against this section; or
(b) proceedings for an offence against section 137.1, 137.2 or
149.1 of the Criminal Code that relates to this section.
(7A) This section does not require a person:
(a) to give information or evidence that would disclose the
contents of a document prepared for the purposes of a
meeting of the Cabinet of a State or Territory; or
(b) to produce a document prepared for the purposes of a
meeting of the Cabinet of a State or Territory; or
(c) to give information or evidence, or to produce a document,
that would disclose the deliberations of the Cabinet of a State
or Territory.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (7A), see subsection 13.3(3) of the Criminal Code.
(7B) This section does not require a person to produce a document that
would disclose information that is the subject of legal professional
privilege.
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Note: A defendant bears an evidential burden in relation to the matter in this
subsection (see subsection 13.3(3) of the Criminal Code).
(8) Nothing in this section implies that notices may not be served
under this section and section 155A in relation to the same
conduct.
(9) A reference in this section to a designated communications matter
is a reference to the performance of a function, or the exercise of a
power, conferred on the Commission by or under:
(a) the Telecommunications Act 1997; or
(b) the Telecommunications (Consumer Protection and Service
Standards) Act 1999; or
(ba) the National Broadband Network Companies Act 2011; or
(c) Part XIB or XIC of this Act; or
(d) Division 4A or 4B of Part 3.3 of the Radiocommunications
Act 1992.
(9A) A reference in this section to a designated water matter is a
reference to the performance of a function, or the exercise of a
power, conferred on the Commission by or under:
(a) Part 4 or 4A of the Water Act 2007; or
(b) regulations made under that Act for the purposes of Part 4 of
that Act; or
(c) water charge rules, or water market rules, made under Part 4
of that Act.
(10) In this section:
legal professional privilege includes privilege under Division 1 of
Part 3.10 of the Evidence Act 1995.
155AAA Protection of certain information
(1) A Commission official must not disclose any protected information
to any person except:
(a) when the Commission official is performing duties or
functions as a Commission official; or
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(b) when the Commission official or the Commission is required
or permitted by:
(i) this Act or any other law of the Commonwealth; or
(ii) a prescribed law of a State or internal Territory;
to disclose the information.
(2) Subsection (1) does not allow a Commission official to disclose
protected information when performing a function of the
Commission described in section 28.
Disclosure to Ministers
(3) A Commission official may disclose protected information to the
designated Minister.
(4) If protected information relates to a matter arising under:
(a) a provision of this Act; or
(b) a provision of another Act;
that is administered by a Minister other than the designated
Minister, a Commission official may disclose the protected
information to the other Minister.
(5) Subsection (4) does not limit subsection (3).
Disclosure to Secretaries etc.
(6) A Commission official may disclose protected information to:
(a) the Secretary of the designated Department; or
(b) an officer of the designated Department who is authorised by
the Secretary of that Department, in writing, for the purposes
of this subsection;
for the purpose of advising the designated Minister.
(7) If protected information relates to a matter arising under:
(a) a provision of this Act; or
(b) a provision of another Act;
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that is administered by a Minister other than the designated
Minister, a Commission official may disclose the protected
information to:
(c) the Secretary of the Department that is administered by the
other Minister; or
(d) an officer of that Department who is authorised by the
Secretary of that Department, in writing, for the purposes of
this subsection;
for the purpose of advising the other Minister.
(8) Subsection (7) does not limit subsection (6).
Disclosure to a Royal Commission
(9) A Commission official may disclose protected information to a
Royal Commission.
(10) The Chairperson may, by writing, impose conditions to be
complied with in relation to protected information disclosed under
subsection (9).
(11) An instrument under subsection (10) is not a legislative instrument.
Disclosure to certain agencies, bodies and persons
(12) If the Chairperson is satisfied that particular protected information
will enable or assist any of the following agencies, bodies or
persons:
(a) the Australian Bureau of Statistics;
(b) the Australian Communications and Media Authority;
(c) the Australian Prudential Regulation Authority;
(d) the Australian Securities and Investments Commission;
(e) the National Competition Council;
(f) the Productivity Commission;
(g) any other agency within the meaning of the Freedom of
Information Act 1982;
(h) the Australian Statistician;
(i) the Commissioner of Taxation;
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(j) the Australian Competition Tribunal;
(k) the Director of Public Prosecutions;
(l) the Reserve Bank of Australia;
(la) the Clean Energy Regulator;
(lb) the Climate Change Authority;
(m) a State/Territory government body;
(n) a foreign government body;
to perform or exercise any of the functions or powers of the
agency, body or person, an authorised Commission official may
disclose that protected information to the agency, body or person
concerned.
(13) The Chairperson may, by writing, impose conditions to be
complied with in relation to protected information disclosed under
subsection (12).
(14) An instrument under subsection (13) is not a legislative instrument.
Disclosure with consent
(15) A Commission official may disclose protected information that
relates to the affairs of a person if:
(a) the person has consented to the disclosure; and
(b) the disclosure is in accordance with that consent.
Disclosure of publicly available information
(16) A Commission official may disclose protected information if it is
already publicly available.
Disclosure of summaries or statistics
(17) A Commission official may disclose:
(a) summaries of protected information; or
(b) statistics derived from protected information;
if those summaries or statistics, as the case may be, are not likely
to enable the identification of a person.
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Disclosure authorised by regulations
(18) The regulations may:
(a) authorise a Commission official to disclose protected
information in specified circumstances; and
(b) provide that the Chairperson may, by writing, impose
conditions to be complied with in relation to the disclosure of
protected information in those circumstances.
(19) An instrument under regulations made for the purposes of
paragraph (18)(b) is not a legislative instrument.
Delegation
(20) The Chairperson may, by writing, delegate any or all of his or her
functions and powers under:
(a) this section; or
(b) regulations made for the purposes of subsection (18);
to a member of the Commission.
Definitions
(21) In this section:
authorised Commission official means a Commission official
authorised by the Chairperson, in writing, for the purposes of this
section.
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
core statutory provision means:
(a) a provision of Part IV, V, VII, VIII, XI, XIB or XIC; or
(b) the remaining provisions of this Act so far as they relate to a
provision covered by paragraph (a); or
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(c) a provision of the regulations made under section 172 so far
as it relates to a provision covered by paragraph (a) or (b); or
(d) a provision of the Australian Consumer Law (other than
Part 5-3); or
(e) a provision of the regulations made under section 139G so far
as it relates to a provision covered by paragraph (d).
designated Department means the Department that is responsible
for the administration of this section (other than subsections (4)
and (7)).
designated Minister means the Minister who is responsible for the
administration of this section (other than subsections (4) and (7)).
disclose means divulge or communicate.
foreign country includes a region where:
(a) the region is a colony, territory or protectorate of a foreign
country; or
(b) the region is part of a foreign country; or
(c) the region is under the protection of a foreign country; or
(d) a foreign country exercises jurisdiction or control over the
region; or
(e) a foreign country is responsible for the region’s international
relations.
foreign government body means:
(a) the government of a foreign country; or
(b) an agency or authority of a foreign country; or
(c) the government of part of a foreign country; or
(d) an agency or authority of part of a foreign country.
information includes information in a document and information
given in evidence.
protected information means:
(a) information that:
(i) was given in confidence to the Commission; and
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(ii) relates to a matter arising under a core statutory
provision; or
(b) information that:
(i) was obtained by the Commission under Part XID or
section 155; and
(ii) relates to a matter arising under a core statutory
provision; or
(ba) information that was obtained by the Commission under
paragraph 60FD(2)(b) or section 60FA or 60H; or
(c) information that:
(i) was obtained by the Commission under section 151AU,
152AU, 152CBB or 152CBH or rules in force under
section 151BU; and
(ii) relates to a matter arising under Part XIB or XIC; or
(d) information that was obtained by the Commission under
section 118C, 118G, 118NE or 118NI of the
Radiocommunications Act 1992; or
(e) information that:
(i) was given in confidence to the Commission by a foreign
government body; and
(ii) relates to a matter arising under a provision of a law of a
foreign country or of a part of a foreign country; or
(f) information that:
(i) was obtained by the Commission under section 155; and
(ii) relates to a designated water matter within the meaning
of that section.
For the purposes of this definition, it is immaterial whether the
information was given to or obtained by the Commission before, at
or after the commencement of this section.
Royal Commission has the same meaning as in the Royal
Commissions Act 1902.
State/Territory government body means:
(a) the government of a State or Territory; or
(b) an agency or authority of a State or Territory.
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155AA Protection of Part VB information
(1) A Commission official must not disclose any protected Part VB
information to any person, except:
(a) when the Commission official is performing duties or
functions as a Commission official; or
(b) when the Commission official or the Commission is required
or permitted by law to disclose the information.
(2) Subsection (1) does not allow a Commission official to disclose
protected Part VB information when performing a function of the
Commission described in section 28.
(3) In this section:
Commission official means:
(a) a member, or associate member, of the Commission;
(b) a person referred to in subsection 27(1);
(c) a person engaged under section 27A.
disclose means divulge or communicate.
information includes information in a document and information
given in evidence.
protected Part VB information means:
(a) information that:
(i) was obtained by the Commission under Part XID or
section 155; and
(ii) relates to a matter that arose under Part VB before its
repeal by item 32 of Schedule 1 to the Statute Stocktake
(Regulatory and Other Laws) Act 2009; or
(b) information that was obtained by the Commission under
section 75AY before its repeal by item 32 of Schedule 1 to
the Statute Stocktake (Regulatory and Other Laws) Act 2009.
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155A Power to obtain information and documents in New Zealand
relating to trans-Tasman markets
(1) Where the Commission, the Chairperson or a Deputy Chairperson
has reason to believe that a person is capable of furnishing
information or producing documents relating to a matter that
constitutes, or may constitute, a contravention of section 46A, a
member of the Commission may, by written notice served on the
person in New Zealand, require the person:
(a) to furnish to the Commission, by writing signed by the
person or, in the case of a body corporate, by a competent
officer of the body corporate, within the time and in the
manner specified in the notice, any such information; or
(b) to produce to the Commission, or to a person specified in the
notice acting on behalf of the Commission, in accordance
with the notice, any such documents.
(2) The person may comply with the notice by providing the
information or document to the New Zealand Commerce
Commission for transmission to the Australian Competition and
Consumer Commission.
(3) Nothing in this section implies that notices may not be served
under this section and section 155 in relation to the same conduct.
(4) This section binds the Crown in all its capacities.
155B Australian Competition and Consumer Commission may
receive information and documents on behalf of New
Zealand Commerce Commission
(1) Where, by notice under section 98H of the Commerce Act 1986 of
New Zealand, the New Zealand Commerce Commission requires a
person to furnish any information or produce any document, the
information or document may be provided to the Australian
Competition and Consumer Commission for transmission to the
New Zealand Commerce Commission.
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(2) As soon as practicable after the information or document is
provided to the Australian Competition and Consumer
Commission, the Australian Competition and Consumer
Commission is to transmit it to the New Zealand Commerce
Commission.
(3) A person must not:
(a) contravene a notice under section 98H of the Commerce Act
1986 of New Zealand; or
(b) in purported compliance with such a notice, knowingly
furnish information that is false or misleading in a material
particular.
Penalty: 20 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with
penalties.
(3A) Paragraph (3)(a) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (3A), see subsection 13.3(3) of the Criminal Code.
(4) A person is not excused from furnishing information or producing
a document under a notice under section 98H of the Commerce Act
1986 of New Zealand on the ground that the information, or the
production of the document, may tend to incriminate the person,
but:
(a) any information furnished or document produced under such
a notice; and
(b) any information, document or thing obtained as a direct or
indirect consequence of furnishing the information or
producing the document;
is not admissible in evidence against the person in any criminal
proceedings, other than proceedings for an offence against
subsection (3).
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(5) This section binds the Crown in all its capacities, but nothing in
this section permits the Crown in any of its capacities to be
prosecuted for an offence.
(6) This section applies in and outside Australia.
156 Inspection of documents by Commission
(1) A member of the Commission, or a person authorized by a member
of the Commission, may inspect a document produced in
pursuance of a notice under section 155 or 155A and may make
copies of, or take extracts from, the document.
(2) The Commission may, for the purposes of this Act, take, and retain
for as long as is necessary for those purposes, possession of a
document produced in pursuance of a notice under section 155 or
155A but the person otherwise entitled to possession of the
document is entitled to be supplied, as soon as practicable, with a
copy certified by a member of the Commission under his or her
hand to be a true copy and the certified copy shall be received in all
courts as evidence as if it were the original.
(3) Until such a certified copy is supplied, the Commission shall, at
such times and places as it thinks appropriate, permit the person
otherwise entitled to possession of the document, or a person
authorized by that person, to inspect and make copies of or take
extracts from the document.
157 Disclosure of documents by Commission
(1) Subject to subsection (1A), if:
(a) a corporation makes an application to the Commission under
section 88, 91A, 91B or 91C or Subdivision B of Division 3
of Part VII; or
(b) the Commission proposes the revocation of an authorization
under subsection 91B(3) or the revocation of an authorization
and the substitution of another authorization under
subsection 91C(3); or
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(ba) the Commission proposes to revoke, or to revoke and
substitute, a clearance under section 95AS; or
(c) a proceeding is instituted against a corporation or other
person under section 77, 80, 80AC, 81 or 81A; or
(d) an application is made under, subsection 51ADB(1),
section 86C or 86D or subsection 87(1A) for an order against
a corporation or other person;
the Commission shall, at the request of the corporation or other
person and upon payment of the prescribed fee (if any), furnish to
the corporation or other person:
(e) a copy of every document that has been furnished to, or
obtained by, the Commission in connexion with the matter to
which the application, notice or proceeding relates and tends
to establish the case of the corporation or other person; and
(f) a copy of any other document in the possession of the
Commission that comes to the attention of the Commission
in connexion with the matter to which the application, notice
or proceeding relates and tends to establish the case of the
corporation or other person;
not being a document obtained from the corporation or other
person or prepared by an officer or professional adviser of the
Commission.
(1AA) Subject to subsections (1AB) and (1A), if an application for an
order against a person is made under:
(a) section 137F; or
(b) subsection 237(1), or section 246 or 247, of the Australian
Consumer Law;
the Commission must, at the request of the person and upon
payment of the prescribed fee (if any), give the person:
(c) a copy of every document that has been given to, or obtained
by, the Commission in connection with the matter to which
the application relates and tends to establish the case of the
person; and
(d) a copy of any other document in the possession of the
Commission that comes to the attention of the Commission
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in connection with the matter to which the application relates
and tends to establish the case of the person.
(1AB) Subsection (1AA) does not apply to a document obtained from the
person, or prepared by an officer or professional adviser of the
Commission.
Protected cartel information—Commission may refuse to comply
with request
(1A) If a request under subsection (1) relates to a document containing
protected cartel information, the Commission may refuse to
comply with the request.
(1B) In exercising its powers under subsection (1A), the Commission
must have regard to the following matters:
(a) the fact that the protected cartel information was given to the
Commission in confidence;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international
efforts relating to law enforcement, criminal intelligence and
criminal investigation;
(d) in a case where the protected cartel information was given by
an informant:
(i) the protection or safety of the informant or of persons
associated with the informant; and
(ii) the fact that the production of a document containing
protected cartel information, or the disclosure of
protected cartel information, may discourage informants
from giving protected cartel information in the future;
(e) the legitimate interests of the corporation which, or the
person who, made the request under subsection (1);
(f) such other matters (if any) as the Commission considers
relevant.
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Court order
(2) If the Commission does not comply with a request under
subsection (1) otherwise than because of a refusal under
subsection (1A), the Court shall, subject to subsection (3), upon
application by the corporation which, or other person who, made
the request, make an order directing the Commission to comply
with the request.
(3) The Court may refuse to make an order under subsection (2) in
respect of a document or part of a document if the Court considers
it inappropriate to make the order by reason that the disclosure of
the contents of the document or part of the document would
prejudice any person, or for any other reason.
(4) Before the Court gives a decision on an application under
subsection (2), the Court may require any documents to be
produced to it for inspection.
(5) An order under this section may be expressed to be subject to
conditions specified in the order.
Definition
(6) In this section:
protected cartel information has the same meaning as in
section 157B.
157AA Disclosure of documents by Tribunal in relation to merger
authorisations
(1) If:
(a) a corporation makes an application to the Tribunal in relation
to an authorisation under Subdivision C of Division 3 of
Part VII; or
(b) the Tribunal proposes to revoke, or to revoke and substitute,
an authorisation granted to the corporation under
section 95AZM;
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the Tribunal must, at the request of the corporation and upon
payment of the prescribed fee (if any), give to the corporation:
(c) a copy of every document that has been given to, or obtained
by, the Tribunal in relation to the application or revocation
that tends to establish the corporation’s case; and
(d) a copy of any other document in the Tribunal’s possession
that comes to the Tribunal’s attention in relation to the
application or revocation that tends to establish the
corporation’s case.
(2) However, subsection (1) does not require the Tribunal to give to
the corporation a document that was:
(a) obtained from the corporation; or
(b) prepared by an officer or professional adviser of the Tribunal.
(3) If the Tribunal does not comply with a requirement under
subsection (1), then, subject to subsection (4), the Court must, upon
application by the corporation, make an order directing the
Tribunal to comply with the requirement.
(4) The Court may refuse to make an order under subsection (3) in
respect of a document or part of a document if the Court considers
it inappropriate to make the order by reason that the disclosure of
the contents of the document or part of the document would
prejudice any person, or for any other reason.
(5) Before the Court gives a decision on an application under
subsection (3), the Court may require any documents to be
produced to it for inspection.
(6) An order under this section may be expressed to be subject to
conditions specified in the order.
157A Disclosure of information by Commission
(1) The Commission or a Commission official may disclose to:
(a) the AER; or
(b) the AEMC; or
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(c) any staff or consultant assisting the AER or the AEMC in
performing its functions or exercising its powers;
any information that it obtains under this Act that is relevant to the
functions or powers of the AER or the AEMC.
Note: The Privacy Act 1988 also contains provisions relevant to the use and
disclosure of information.
(2) The AER or a person mentioned in paragraph (1)(c) may use the
information for any purpose connected with the performance of the
AER’s functions or the exercise of its powers.
(3) The AEMC or a person mentioned in paragraph (1)(c) may use the
information for any purpose connected with the performance of the
AEMC’s functions or the exercise of its powers.
(4) The Commission or a Commission official may impose conditions
to be complied with in relation to information disclosed.
(5) In this section:
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
157B Disclosure of protected cartel information to a court or
tribunal
Commission or a Commission official not required to disclose
protected cartel information
(1) The Commission or a Commission official is not to be required:
(a) to produce to a court or tribunal a document containing
protected cartel information; or
(b) to disclose protected cartel information to a court or tribunal;
except with the leave of the court or tribunal.
(2) In exercising its powers to grant leave under subsection (1), the
court or tribunal must have regard to the following matters:
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(a) the fact that the protected cartel information was given to the
Commission in confidence;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international
efforts relating to law enforcement, criminal intelligence and
criminal investigation;
(d) in a case where the protected cartel information was given by
an informant:
(i) the protection or safety of the informant or of persons
associated with the informant; and
(ii) the fact that the production of a document containing
protected cartel information, or the disclosure of
protected cartel information, may discourage informants
from giving protected cartel information in the future;
(e) in the case of a court—the interests of the administration of
justice;
(f) in the case of a tribunal—the interests of securing the
effective performance of the tribunal’s functions;
and must not have regard to any other matters.
(3) If:
(a) a document is produced; or
(b) information is disclosed;
to a court or tribunal in accordance with leave granted under
subsection (1) in relation to particular proceedings, the document
or information must not be adduced in other proceedings before the
court or tribunal except:
(c) in accordance with leave granted under subsection (1) in
relation to the other proceedings; or
(d) as a result of an exercise of power under subsection (4) in
relation to the other proceedings.
Commission or a Commission official may disclose protected
cartel information
(4) The Commission or a Commission official may:
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(a) produce to the court or tribunal a document containing
protected cartel information; or
(b) disclose protected cartel information to the court or tribunal.
(5) In exercising the powers conferred by subsection (4), the
Commission or Commission official must have regard to the
following matters:
(a) the fact that the protected cartel information was given to the
Commission in confidence;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international
efforts relating to law enforcement, criminal intelligence and
criminal investigation;
(d) in a case where the protected cartel information was given by
an informant:
(i) the protection or safety of the informant or of persons
associated with the informant; and
(ii) the fact that the production of a document containing
protected cartel information, or the disclosure of
protected cartel information, may discourage informants
from giving protected cartel information in the future;
(e) in the case of production or disclosure to a court—the
interests of the administration of justice;
(f) in the case of production or disclosure to a tribunal—the
interests of securing the effective performance of the
tribunal’s functions;
and must not have regard to any other matters.
(6) If:
(a) a document is produced; or
(b) information is disclosed;
to a court or tribunal as a result of an exercise of power under
subsection (4) in relation to particular proceedings, the document
or information must not be adduced in other proceedings before the
court or tribunal except:
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(c) in accordance with leave granted under subsection (1) in
relation to the other proceedings; or
(d) as a result of an exercise of power under subsection (4) in
relation to the other proceedings.
Definitions
(7) In this section:
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
disclose means divulge or communicate.
protected cartel information means information that:
(a) was given to the Commission in confidence; and
(b) relates to a breach, or a possible breach, of section 44ZZRF,
44ZZRG, 44ZZRJ or 44ZZRK.
157C Disclosure of protected cartel information to a party to court
proceedings etc.
Commission or Commission official not required to make discovery
of documents containing protected cartel information etc.
(1) If:
(a) a person is a party to proceedings before a court; and
(b) the Commission is not a party to the proceedings;
the Commission or a Commission official is not to be required, in
connection with the proceedings, to:
(c) make discovery (however described) to the person of a
document containing protected cartel information; or
(d) produce to the person a document containing protected cartel
information.
(2) If:
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(a) a person is considering instituting proceedings before a court;
and
(b) the proceedings have not yet been instituted;
the Commission or a Commission official is not to be required, in
connection with the prospective proceedings, to:
(c) make discovery (however described) to the person of a
document containing protected cartel information; or
(d) produce to the person a document containing protected cartel
information.
Commission or Commission official may disclose protected cartel
information
(3) If:
(a) a person is a party to proceedings before a court; and
(b) the Commission is not a party to the proceedings;
the Commission or a Commission official may, on application by
the person:
(c) make a copy of a document containing protected cartel
information; and
(d) give the copy to the person.
(4) If:
(a) a person is considering instituting proceedings before a court;
and
(b) the proceedings have not yet been instituted;
the Commission or a Commission official may, on application by
the person:
(c) make a copy of a document containing protected cartel
information; and
(d) give the copy to the person.
(5) In exercising the powers conferred by subsection (3) or (4), the
Commission or Commission official must have regard to the
following matters:
(a) the fact that the protected cartel information was given to the
Commission in confidence;
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(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international
efforts relating to law enforcement, criminal intelligence and
criminal investigation;
(d) in a case where the protected cartel information was given by
an informant:
(i) the protection or safety of the informant or of persons
associated with the informant; and
(ii) the fact that the production of a document containing
protected cartel information, or the disclosure of
protected cartel information, may discourage informants
from giving protected cartel information in the future;
(e) the interests of the administration of justice;
and must not have regard to any other matters.
(6) If a copy of a document is given to a party, or prospective party, to
proceedings before a court as a result of an exercise of power under
subsection (3) or (4), the copy must not be adduced in other
proceedings before:
(a) the court; or
(b) another court; or
(c) a tribunal;
except:
(d) as a result of an exercise of power under subsection (3) or (4)
in relation to the other proceedings; or
(e) in accordance with leave granted under subsection 157B(1)
in relation to the other proceedings; or
(f) as a result of an exercise of power under subsection 157B(4)
in relation to the other proceedings.
Definitions
(7) In this section:
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
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(c) a person engaged under section 27A.
protected cartel information means information that:
(a) was given to the Commission in confidence; and
(b) relates to a breach, or a possible breach, of section 44ZZRF,
44ZZRG, 44ZZRJ or 44ZZRK.
157D General powers of a court
Power of a court in a criminal or civil proceeding
(1) The power of a court to control the conduct of a criminal or civil
proceeding, in particular with respect to abuse of process, is not
affected by section 157B or 157C, except so far as that section
expressly or impliedly provides otherwise.
Stay order—criminal proceeding
(2) A refusal by a court to grant leave under subsection 157B(1) does
not prevent the court from later ordering that a criminal proceeding
be stayed on the ground that the refusal would have a substantial
adverse effect on a defendant’s right to receive a fair hearing.
Stay order—civil proceeding
(3) A refusal by a court to grant leave under subsection 157B(1) does
not prevent the court from later ordering that a civil proceeding be
stayed on the ground that the refusal would have a substantial
adverse effect on the hearing in the proceeding.
(4) In deciding whether to order a stay of the civil proceeding, the
court must consider:
(a) the extent of any financial loss that a party would suffer as a
result of the proceeding being stayed; and
(b) whether a party has reasonable prospects of obtaining a
remedy in the proceeding; and
(c) any other matter the court considers relevant.
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158 Protection of members of Tribunal, counsel and witnesses
(1) A member of the Tribunal has, in the performance of his or her
duty as a member, the same protection and immunity as a Justice
of the High Court.
(2) A person appearing before the Tribunal on behalf of a person, or
assisting the Tribunal as counsel, has the same protection and
immunity as a barrister has in appearing for a party in proceedings
in the High Court.
(3) Subject to this Act, a person appearing before the Tribunal or the
Commission to give evidence has the same protection, and is, in
addition to the penalties provided by this Act, subject to the same
liabilities, in any civil or criminal proceedings as a witness in
proceedings in the High Court.
159 Incriminating answers
(1) A person appearing before the Commission to give evidence or
produce documents is not excused from answering a question, or
producing a document, on the ground that the answer to the
question, or the document, may tend to incriminate the person or
expose the person to a penalty.
(2) Evidence given by an individual before the Commission is not
admissible against the individual in any criminal proceedings,
other than:
(a) proceedings for an offence against this Part; or
(b) proceedings for an offence against section 137.1, 137.2 or
149.1 of the Criminal Code that relates to this Part.
160 Failure of witness to attend
(1) A person served, as prescribed, with a summons to appear as a
witness before the Tribunal shall not:
(a) fail to attend as required by the summons; or
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(b) fail to appear and report himself or herself from day to day
unless excused, or released from further attendance, by a
member of the Tribunal.
(1A) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (1A), see subsection 13.3(3) of the Criminal Code.
(2) A person who contravenes subsection (1) is guilty of an offence
punishable on conviction by a fine not exceeding 20 penalty units
or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with
penalties.
161 Refusal to be sworn or to answer questions
(1) A person appearing as a witness before the Tribunal shall not:
(a) refuse or fail to be sworn or to make an affirmation;
(b) refuse or fail to answer a question that he or she is required to
answer by the member presiding at the proceedings; or
(c) refuse or fail to produce a document that he or she was
required to produce by a summons under this Act served on
him or her as prescribed.
(1A) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (1A), see subsection 13.3(3) of the Criminal Code.
(2) It is a reasonable excuse for an individual to refuse or fail to
answer a question that he or she is required to answer under this
section that the answer to the question may tend to incriminate him
or her.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (2), see subsection 13.3(3) of the Criminal Code.
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(3) A person who contravenes subsection (1) is guilty of an offence
punishable on conviction by a fine not exceeding 20 penalty units
or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with
penalties.
162 Contempt
(1) A person shall not:
(a) insult a member of the Tribunal, a member of the
Commission or an AER member in the exercise of his or her
powers or functions as a member;
(b) interrupt the proceedings of the Tribunal or a conference held
by the Commission under section 90 or 93A, Division 3 of
Part XI or section 151AZ;
(c) create a disturbance, or take part in creating or continuing a
disturbance, in or near a place where the Tribunal is sitting or
the Commission is holding such a conference; or
(d) do any other act or thing that would, if the Tribunal were a
court of record, constitute a contempt of that court.
(2) A person who contravenes subsection (1) is guilty of an offence
punishable on conviction by a fine not exceeding 20 penalty units
or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with
penalties.
162A Intimidation etc.
A person who:
(a) threatens, intimidates or coerces another person; or
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(b) causes or procures damage, loss or disadvantage to another
person;
for or on account of that other person proposing to furnish or
having furnished information, or proposing to produce or having
produced documents, to the Commission, the Tribunal or the AER,
or for or on account of the other person proposing to appear or
having appeared as a witness before the Tribunal is guilty of an
offence punishable on conviction by a fine not exceeding 20
penalty units or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with
penalties.
163 Prosecutions
(1) Prosecutions for offences against this Act may be brought in any
court having jurisdiction in the matter.
(2) In so far as this section has effect as a law of the Commonwealth,
the Federal Court has jurisdiction in any matter in respect of which
a criminal proceeding is instituted for an offence to which
subsection (1) applies, and that jurisdiction is exclusive of the
jurisdiction of any other court other than:
(a) the jurisdiction of a Supreme Court of a State or Territory
under section 68 of the Judiciary Act 1903 with respect to
any matter in respect of which a criminal proceeding is
instituted for an offence against section 44ZZRF or 44ZZRG;
and
(b) the jurisdiction of a court under section 68 of the Judiciary
Act 1903 with respect to the examination and commitment
for trial on indictment of a person who is charged with an
indictable offence; and
(c) the jurisdiction of the High Court under section 75 of the
Constitution.
(4) Proceedings under this section, other than proceedings instituted
by:
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(aa) the Director of Public Prosecutions; or
(a) the Commission; or
(b) a person authorised in writing by the Commission; or
(c) a person authorised in writing by the Secretary of the
Department;
shall not be instituted except with the consent in writing of the
Minister or of a person authorised by the Minister in writing to
give such consents.
(5) A prosecution for an offence against section 118, 154Q, 155 or
155B may be commenced at any time after the commission of the
offence.
(6) Despite subsection (2), the Federal Court does not have jurisdiction
in any matter in respect of which a criminal proceeding is instituted
for an offence against section 44ZZRF or 44ZZRG if the
proceeding is instituted before the commencement of Schedule 1 to
the Federal Court of Australia Amendment (Criminal Jurisdiction)
Act 2009.
163A Declarations and orders
Declarations and orders
(1) Subject to this section, a person may, in relation to a matter arising
under this Act, institute a proceeding in a court having jurisdiction
to hear and determine proceedings under this section seeking the
making of:
(a) a declaration in relation to the operation or effect of any
provision of this Act other than the following provisions:
(i) Part V;
(ii) Part XIB;
(iii) Part XIC; or
(aaa) a declaration in relation to the operation or effect of any
provision of the Australian Consumer Law other than
Division 1 of Part 3-2 or Part 5-4; or
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(aa) a declaration in relation to the validity of any act or thing
done, proposed to be done or purporting to have been done
under this Act; or
(b) an order by way of, or in the nature of, prohibition, certiorari
or mandamus;
or both such a declaration and such an order.
(1A) Subsection (1) does not apply in relation to a matter arising under
Part IIIAA.
When Minister may institute, or intervene in, proceedings
(2) Subject to subsection (2A), the Minister may institute a proceeding
under this section and may intervene in any proceeding instituted
under this section or in a proceeding instituted otherwise than
under this section in which a party is seeking the making of a
declaration of a kind mentioned in paragraph (1)(a) or (aa) or an
order of a kind mentioned in paragraph (1)(b).
(2A) Subsections (1) and (2) do not permit the Minister:
(a) to institute a proceeding seeking a declaration, or an order
described in paragraph (1)(b), that relates to Part IV; or
(b) to intervene in a proceeding so far as it relates to a matter that
arises under Part IV.
When Commission may institute proceedings
(3) The Commission may institute a proceeding in the Court seeking,
in relation to a matter arising under this Act, the making of a
declaration of the kind that may be made under paragraph (1)(a).
Jurisdiction of Federal Court
(3A) Subject to subsections (4B) and (4C), in so far as this section has
effect as a law of the Commonwealth, the Federal Court has
jurisdiction to hear and determine proceedings under this section.
(4) The jurisdiction of the Federal Court under subsection (3A) to
make:
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(a) a declaration in relation to the validity of any act or thing
done, proposed to be done or purporting to have been done
under this Act by the Tribunal; or
(b) an order of a kind mentioned in paragraph (1)(b) directed to
the Tribunal;
shall be exercised by not less than 3 Judges.
Jurisdiction of State/Territory Supreme Courts etc.
(4A) In so far as this section has effect as a law of the Commonwealth,
the Supreme Court of a State or Territory does not have
jurisdiction to hear and determine proceedings under this section
otherwise than in accordance with subsection (4B) or (4C). This
subsection has effect despite any other law, including section 39 of
the Judiciary Act 1903.
(4B) If a decision to prosecute a person for an offence against
section 44ZZRF or 44ZZRG has been made and the prosecution is
proposed to be commenced in the Supreme Court of a State or
Territory:
(a) the Federal Court does not have jurisdiction with respect to
any matter in which a person seeks the making of a
paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in
relation to that decision; and
(b) if the Supreme Court is the Supreme Court of a State—in so
far as this section has effect as a law of the Commonwealth,
the Supreme Court is invested with federal jurisdiction with
respect to any such matter; and
(c) if the Supreme Court is the Supreme Court of a Territory,
then:
(i) in so far as this section has effect as a law of the
Commonwealth; and
(ii) subject to the Constitution;
the Supreme Court is conferred with jurisdiction with respect
to any such matter.
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(4C) Subject to subsection (4D), at any time when:
(a) a prosecution for an offence against section 44ZZRF or
44ZZRG is before the Supreme Court of a State or Territory;
or
(b) an appeal arising out of such a prosecution is before the
Supreme Court of a State or Territory;
the following apply:
(c) the Federal Court does not have jurisdiction with respect to
any matter in which the person who is or was the defendant
in the prosecution seeks the making of a paragraph (1)(aa)
declaration, or a paragraph (1)(b) order, in relation to a
related criminal justice process decision;
(d) if the Supreme Court is the Supreme Court of a State—in so
far as this section has effect as a law of the Commonwealth,
the Supreme Court is invested with federal jurisdiction with
respect to any such matter;
(e) if the Supreme Court is the Supreme Court of a Territory,
then:
(i) in so far as this section has effect as a law of the
Commonwealth; and
(ii) subject to the Constitution;
the Supreme Court is conferred with jurisdiction with respect
to any such matter.
(4D) Subsection (4C) does not apply if, before the commencement of a
prosecution for an offence against section 44ZZRF or 44ZZRG, a
person seeks the making of a paragraph (1)(aa) declaration, or a
paragraph (1)(b) order, in relation to a related criminal justice
process decision.
(4E) If subsection (4D) applies, the prosecutor may apply to the Federal
Court for a permanent stay of the paragraph (1)(aa) or (b)
proceedings referred to in that subsection, and the Federal Court
may grant such a stay if the Federal Court determines that:
(a) the matters the subject of the proceedings are more
appropriately dealt with in the criminal justice process; and
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(b) a stay of proceedings will not substantially prejudice the
person.
Definitions
(5) In this section, proceeding includes a cross-proceeding.
(6) In this section:
related criminal justice process decision has the same meaning as
in section 39B of the Judiciary Act 1903.
165 Inspection of, furnishing of copies of, and evidence of,
documents
(1) A person may, on application in accordance with the regulations
and on payment of the prescribed fee (if any):
(a) inspect any document contained in the register kept under
subsection 89(3) or 95(1) or section 95AH; and
(b) obtain a copy of such a document (including, where the
person so requests, a copy certified to be a true copy under
the hand of a person authorized by the Commission to certify
such copies).
(2) Subject to subsection (3) and to any direction under
subsection 106(2), a person may, on application in accordance with
the regulations and on payment of the prescribed fee (if any):
(a) inspect the document recording a declaration under
section 50A or a determination of the Tribunal or any
document furnished to, or recorded in the records of, the
Tribunal in pursuance of this Act or the regulations; and
(b) obtain a copy of such a document (including, where the
person so requests, a copy certified to be a true copy under
the hand of the Registrar or of a Deputy Registrar).
(3) Unless the Tribunal in a particular case otherwise directs,
subsection (2) does not apply in relation to a document furnished to
the Tribunal if the person by whom the document was furnished
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claims, as prescribed, that the document contains matter of a
confidential nature.
(3A) Subject to any direction under subsection 106(2), a person may, on
application in accordance with the regulations and on payment of
the prescribed fee (if any):
(a) inspect any document contained in the register kept under
section 95AZ; and
(b) obtain a copy of such a document (including, where the
person so requests, a copy certified to be a true copy by the
Registrar or a Deputy Registrar).
(4) A copy of a determination of the Commission, certified to be a true
copy by a person authorized by the Commission to certify copies
of determinations of the Commission, shall be received in all
courts as evidence of the determination.
(5) A document purporting to be a copy of a determination of the
Commission and to be certified to be a true copy in accordance
with subsection (4) shall, unless the contrary is established, be
deemed to be such a copy and to be so certified.
(6) A copy of a declaration under section 50A or a determination of, or
undertaking given to, the Tribunal, certified to be a true copy under
the hand of the Registrar or of a Deputy Registrar, shall be
received in all courts as evidence of the declaration, determination
or undertaking.
166 Certificates as to furnishing of particulars to Commission
(1) Where particulars of, or of a provision of, a contract, arrangement
or understanding have been furnished to the Commission for the
purposes of paragraph 51(2)(g), the Commission shall, on
application by a party to the contract or to the arrangement or
understanding, cause to be furnished to the party a certificate
signed by a member of the Commission specifying the particulars
so furnished and the date on which the particulars were furnished.
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(2) A certificate referred to in subsection (1) shall be received in all
courts as evidence that the particulars specified in the certificate
were furnished to the Commission on the date so specified.
(3) A person is not entitled to inspect any particulars of, or of a
provision of, a contract, arrangement or understanding that have
been furnished to the Commission for the purposes of
paragraph 51(2)(g), but the Commission may make those
particulars available to the Minister or to an officer acting on
behalf of, and with the authority of, the Minister or to a court.
167 Judicial notice
(1) All courts shall take judicial notice of:
(a) the official signature of any person who holds or has held the
office of President, Deputy President, member of the
Tribunal, Chairperson, Deputy Chairperson, member of the
Commission, Registrar, Deputy Registrar, AER Chair or
AER member and of the fact that that person holds or has
held that office; and
(b) the official seal of the Tribunal, of the Commission or of the
AER;
if the signature or seal purports to be attached or appended to an
official document.
(1A) All courts must take judicial notice of:
(a) the official signature of a person who holds or has held the
office of Chairman, Deputy Chairman, or member (including
associate member) of the New Zealand Commerce
Commission and of the fact that the person holds or has held
the office; and
(b) the imprint of the common seal of the New Zealand
Commerce Commission;
if the signature or imprint purports to be attached or appended to an
official document.
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(2) In this section, court includes a Federal Court or a court of a State
or Territory and all persons authorized by law or by consent of
parties to receive evidence.
170 Legal and financial assistance
(1) A person:
(a) who has instituted, or proposes to institute, a proceeding
before the Commission or the Tribunal, or a proceeding
before the Court under Part IVB, Part VI or section 163A, or
under Part 3-5 or Chapter 5 of the Australian Consumer Law;
(b) who is entitled to participate, or has been permitted to
intervene, in a proceeding before the Commission or the
Tribunal; or
(c) against whom a proceeding before the Court has been
instituted under Part IVB, Part VI or section 163A, or under
Part 3-5 or Chapter 5 of the Australian Consumer Law;
may apply to the Attorney-General for a grant of assistance under
this section in respect of the proceeding.
(2) Where an application is made by a person under subsection (1), the
Attorney-General, or a person appointed or engaged under the
Public Service Act 1999 (the public servant) authorized in writing
by the Attorney-General, may, if he or she is satisfied that it would
involve hardship to that person to refuse the application and that, in
all the circumstances, it is reasonable that the application should be
granted, authorize the grant by the Commonwealth to the person,
either unconditionally or subject to such conditions as the
Attorney-General or public servant determines, of such legal or
financial assistance in relation to the proceeding as the
Attorney-General or public servant determines.
(3) In this section:
(a) a reference to a proceeding before the Commission is a
reference to a proceeding in relation to an application for, or
in relation to the revocation of, an authorisation under
Division 1 of Part VII or a clearance under Division 3 of
Part VII; and
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(b) a reference to a proceeding before the Tribunal is a reference
to:
(i) an application to the Tribunal for a declaration under
subsection 50A(1); or
(ii) a proceeding in relation to an application for, or the
revocation of, an authorisation under Division 3 of
Part VII; or
(iii) an application for a review of a determination, or of the
giving of a notice, by the Commission.
171 Annual report by Commission
(1) The Commission shall, within 60 days after each year ending on
30 June, furnish to the Minister, for presentation to the Parliament,
a report with respect to its operations in that year.
(2) The report must include a cumulative list of all Commonwealth,
State and Territory laws that the Commission knows about that
authorise things for the purposes of subsection 51(1) of this Act or
subsection 51(1) of the Competition Code (as defined in
section 150A).
(3) The report must also include:
(aa) details of the time taken by the Commission to:
(i) make final determinations under section 44V in relation
to access disputes; and
(ii) make decisions on access undertaking applications
(within the meaning of section 44B) or access code
applications (within the meaning of that section); and
(iii) make decisions on applications under
subsection 44PA(1) (about government tendering); and
(a) the number of:
(i) notices given by the Commission under section 155; and
(iii) notices given by the Commission under section 155A;
and
(b) a general description of the nature of the matters in respect of
which the notices were given; and
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(c) the number of proceedings brought to challenge the validity
of the notices; and
(ca) the number of search warrants issued by a judge under
section 135Z or signed by a judge under section 136; and
(d) the number of search warrants issued by a magistrate under
section 154X or signed by a magistrate under section 154Y;
and
(da) a general description of the nature of the matters in respect of
which the search warrants referred to in paragraph (ca) or (d)
were issued or signed; and
(db) the number of proceedings brought to challenge the validity
of the search warrants referred to in paragraph (ca) or (d);
and
(dc) the number of entries onto premises under section 133B or
133C, Division 6 of Part XI or Part XID; and
(e) the number of complaints received by the Commission; and
(f) a general summary of the kinds of complaints received by the
Commission and how it dealt with them; and
(g) a general description of the major matters investigated by the
Commission; and
(h) the number of times the Commission has intervened in
proceedings and a general description of the reasons for
doing so.
171A Charges by the Commission
(1) The Commission may make a charge of an amount, or at a rate,
determined by the Commission for:
(a) supplying a person with material published by the
Commission in the course of carrying out its functions or
exercising its powers; or
(b) permitting a person to attend or take part in a prescribed
activity arranged by or on behalf of the Commission for the
purpose of carrying out any of its functions.
(2) Where:
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(a) the Commission provides a discretionary service for a
person; and
(b) this Act does not otherwise provide for a charge for the
service;
the Commission may make a charge of such amount, or at such a
rate, as is agreed between the Commission and the person.
(3) In this section, a reference to the provision by the Commission of a
discretionary service for a person is a reference to the doing of an
act by the Commission, being a prescribed act that:
(a) the Commission has power to do but is not required to do by
or under any law; and
(b) the Commission does at the person’s request.
171B Division 3 of Part IIIA does not confer judicial power on the
Commission
(1) Division 3 of Part IIIA has no effect to the extent (if any) to which
it purports to confer judicial power on the Commission.
(2) In this section:
judicial power means the judicial power of the Commonwealth
referred to in section 71 of the Constitution.
172 Regulations
(1) The Governor-General may make regulations, not inconsistent with
this Act, prescribing all matters that are required or permitted by
this Act (other than Schedule 2) to be prescribed or are necessary
or convenient to be prescribed for carrying out or giving effect to
this Act (other than Schedule 2) and, in particular, prescribing:
(a) matters in connexion with the procedure of the Tribunal, the
Commission and the AER; and
(b) the fees and expenses of witnesses in proceedings before the
Tribunal and the Commission; and
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(c) matters for and in relation to the costs, if any, that may be
awarded by the Court in proceedings before the Court under
this Act; and
(d) the fees payable to the Commission on making a prescribed
application, or giving a prescribed notice, to the Commission
under this Act or the regulations.
(1B) Regulations made for the purposes of paragraph (1)(a) or (b) do not
apply in relation to the functions of the Tribunal under a
State/Territory energy law or a designated Commonwealth energy
law.
Note: See section 44ZZR.
(2) The regulations may, either unconditionally or subject to such
conditions as are specified in the regulations, exempt from the
application of this Act (other than Part IV or Schedule 2) or of
specified provisions of this Act (other than Part IV or Schedule 2):
(a) conduct engaged in by a specified organization or body that
performs functions in relation to the marketing of primary
products;
(b) a prescribed contract or proposed contract, contracts included
in a prescribed class of contracts, or prescribed conduct,
being a contract, proposed contract or class of contracts
made, or conduct engaged in, in pursuance of or for the
purposes of a specified agreement, arrangement or
understanding between the Government of Australia and the
Government of a country outside Australia; or
(c) prescribed conduct engaged in in the course of a business
carried on by the Commonwealth or by a prescribed authority
of the Commonwealth.
(2A) The regulations may prescribe the circumstances in which the
Commission may, on behalf of the Commonwealth, wholly or
partly waive the fee that would otherwise be payable for an
application referred to in subsection 89(1).
(2B) Subsection (2A) does not apply to an application for an
authorisation under subsection 88(9), a minor variation of such an
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authorisation, a revocation of such an authorisation or a revocation
of such an authorisation and the substitution of another
authorisation.
(3) Strict compliance with a form of application or notice prescribed
for the purposes of this Act is not, and shall be deemed never to
have been, required and substantial compliance is, and shall be
deemed always to have been, sufficient.
173 Authorisation for the purposes of subsection 51(1)
(1) In deciding whether a person (including a corporation) has
contravened section 50 of this Act, the vesting of ownership of
primary products in the person by legislation is to be taken, for the
purposes of subparagraph 51(1)(a)(i), to be specified in, and
specifically authorised by, this section.
(2) In this section:
primary products means:
(a) agricultural or horticultural produce, including produce that
has been subjected to a manufacturing process; or
(b) crops, whether on or attached to the land or not; or
(c) animals (whether dead or alive); or
(d) the bodily produce (including natural increase) of animals.
Note: An example of agricultural produce that has been subjected to a
manufacturing process is sugar cane that has been transformed into
raw sugar.
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Cartel conduct Division 1
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Part XIII—Application and transitional provisions
relating to the competition provisions
Division 1—Cartel conduct
174 Definitions
In this Division:
commencement time means the commencement of Division 1 of
Part IV.
175 Giving effect after the commencement time to a cartel provision
in existence before that time
The following provisions of this Act:
(a) paragraph 88(1A)(b);
(b) paragraph 93AB(1A)(c);
(c) paragraph 93AB(1A)(d);
apply in relation to a contract or arrangement made, or an
understanding arrived at, before, at or after the commencement
time.
176 Proceedings relating to price-fixing contraventions taking place
before the commencement time
Despite the repeal of section 76D by the Trade Practices
Amendment (Cartel Conduct and Other Measures) Act 2009, that
section continues to apply, in relation to proceedings (whether
instituted before or after the commencement time) in relation to a
contravention that took place before the commencement time, as if
that repeal had not happened.
177 Authorisations in force before the commencement time
(1) This section applies if:
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(a) an authorisation (the pre-commencement authorisation) was
granted to a person to give effect to a provision of a contract,
arrangement or understanding; and
(b) the provision is a cartel provision; and
(c) the authorisation was in force immediately before the
commencement time.
(2) This Act has effect, after the commencement time, as if:
(a) the Commission had, at the commencement time, granted to
the person an authorisation under subsection 88(1A) to give
effect to the cartel provision; and
(b) the day specified in the subsection 88(1A) authorisation as
the day the authorisation comes into force were the day on
which Division 1 of Part IV commenced; and
(c) if, immediately before the commencement time, the
pre-commencement authorisation was expressed to be in
force for a period (the initial period) specified in that
authorisation—the subsection 88(1A) authorisation were
expressed to be in force for a period specified in the
subsection 88(1A) authorisation, and that period were the
period:
(i) starting at the commencement time; and
(ii) ending at the end of the initial period; and
(d) any requirements for the granting of the subsection 88(1A)
authorisation were satisfied.
(3) Subsection (2) does not prevent the subsection 88(1A)
authorisation from being varied, revoked or set aside in accordance
with this Act.
178 Notifications in force before the commencement time
(1) This section applies if:
(a) a person gave the Commission a collective bargaining notice
under subsection 93AB(1) in relation to a proposal to give
effect to a provision of a contract, arrangement or
understanding; and
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(b) the provision is a cartel provision of the kind referred to in
paragraph 93AB(1A)(c) or (d); and
(c) the subsection 93AB(1) notice is in force immediately before
the commencement time.
(2) This Act has effect, after the commencement time, as if:
(a) the person had, at the commencement time, given the
Commission a collective bargaining notice under
subsection 93AB(1A) in relation to a proposal to give effect
to the cartel provision; and
(b) despite subsections 93AD(1) and (2), the
subsection 93AB(1A) notice had come into force at the
commencement time; and
(c) despite paragraph 93AD(3)(c), the period applicable to the
subsection 93AB(1A) notice for the purposes of
paragraph 93AD(3)(c) were the period:
(i) starting at the commencement time; and
(ii) ending at the end of the period of 3 years starting on the
day the person gave the subsection 93AB(1) notice to
the Commission; and
(d) any requirements for the giving of the subsection 93AB(1A)
notice were satisfied.
(3) Subsection (2) does not prevent the subsection 93AB(1A) notice
from ceasing to be in force in accordance with this Act.
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Division 2 Application of amendments made by the Competition and Consumer
Legislation Amendment Act 2011
Section 179
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Division 2—Application of amendments made by the
Competition and Consumer Legislation
Amendment Act 2011
179 Amendments of section 50
The amendments of section 50 made by Schedule 1 to the
Competition and Consumer Legislation Amendment Act 2011
apply to acquisitions occurring after the commencement of that
Schedule.
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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
Schedule 1—The Schedule version of Part IV 1
Part 1—Schedule version of Part IV 1
Division 1—Cartel conduct 1
Subdivision A—Introduction 1
44ZZRA Simplified outline..............................................................1
44ZZRB Definitions.........................................................................1
44ZZRC Extended meaning of party ...............................................3
44ZZRD Cartel provisions ...............................................................3
44ZZRE Meaning of expressions in other provisions of this
Act.....................................................................................9
Subdivision B—Offences etc. 9
44ZZRF Making a contract etc. containing a cartel
provision............................................................................9
44ZZRG Giving effect to a cartel provision ...................................10
44ZZRH Determining guilt ............................................................11
44ZZRI Court may make related civil orders................................12
Subdivision C—Civil penalty provisions 12
44ZZRJ Making a contract etc. containing a cartel
provision..........................................................................12
44ZZRK Giving effect to a cartel provision ...................................12
Subdivision D—Exceptions 13
44ZZRL Conduct notified..............................................................13
44ZZRM Cartel provision subject to grant of authorisation............13
44ZZRN Contracts, arrangements or understandings
between related bodies corporate ....................................14
44ZZRO Joint ventures—prosecution ............................................14
44ZZRP Joint ventures—civil penalty proceedings.......................17
44ZZRQ Covenants affecting competition .....................................19
44ZZRR Resale price maintenance ................................................20
44ZZRS Exclusive dealing ............................................................20
44ZZRT Dual listed company arrangement ...................................21
44ZZRU Acquisition of shares or assets.........................................21
44ZZRV Collective acquisition of goods or services by the
parties to a contract, arrangement or understanding ........22
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Division 1A—Anti-competitive disclosure of pricing and other
information 23
44ZZS Definitions.......................................................................23
44ZZT Goods and services to which this Division applies..........23
44ZZU Provisions affecting whether a person has
disclosed information to another person..........................23
44ZZV Meaning of private disclosure to competitors .................25
44ZZW Person must not make private disclosure of pricing
information etc. to competitors........................................26
44ZZX Person must not make disclosure of pricing
information etc. for purpose of substantially
lessening competition ......................................................26
44ZZY Exceptions that apply to sections 44ZZW and
44ZZX.............................................................................28
44ZZZ Additional exceptions that only apply to
section 44ZZW................................................................30
44ZZZA Burden of proof ...............................................................32
44ZZZB Mere receipt of information does not constitute
being knowingly involved in contravention ....................33
Division 2—Other provisions 34
45 Contracts, arrangements or understandings that
restrict dealings or affect competition .............................34
45B Covenants affecting competition .....................................37
45C Covenants in relation to prices ........................................41
45D Secondary boycotts for the purpose of causing
substantial loss or damage ...............................................43
45DA Secondary boycotts for the purpose of causing
substantial lessening of competition................................44
45DC Involvement and liability of employee
organisations ...................................................................45
45DD Situations in which boycotts permitted............................47
45E Prohibition of contracts, arrangements or
understandings affecting the supply or acquisition
of goods or services.........................................................50
45EA Provisions contravening section 45E not to be
given effect......................................................................53
45EB Sections 45D to 45EA do not affect operation of
other provisions of Part ...................................................54
46 Misuse of market power ..................................................54
47 Exclusive dealing ............................................................58
48 Resale price maintenance ................................................65
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49 Dual listed company arrangements that affect
competition......................................................................65
50 Prohibition of acquisitions that would result in a
substantial lessening of competition................................66
51 Exceptions .......................................................................68
Schedule 2—The Australian Consumer Law 73
Chapter 1—Introduction 86 1 Application of this Schedule ...........................................86
2 Definitions.......................................................................86
3 Meaning of consumer ....................................................100
4 Misleading representations with respect to future
matters ...........................................................................104
5 When donations are treated as supplies or
acquisitions....................................................................105
6 Related bodies corporate ...............................................105
7 Meaning of manufacturer..............................................105
8 Goods affixed to land or premises .................................107
9 Meaning of safety defect in relation to goods ................107
10 Asserting a right to payment..........................................108
11 References to acquisition, supply and re-supply............108
12 Application of Schedule in relation to leases and
licences of land and buildings .......................................109
13 Loss or damage to include injury ..................................110
14 Meaning of continuing credit contract ..........................110
15 Contraventions of this Schedule ....................................111
16 Severability ...................................................................111
17 References to provisions in this Schedule .....................111
Chapter 2—General protections 112
Part 2-1—Misleading or deceptive conduct 112
18 Misleading or deceptive conduct ...................................112
19 Application of this Part to information providers ..........112
Part 2-2—Unconscionable conduct 114
20 Unconscionable conduct within the meaning of the
unwritten law.................................................................114
21 Unconscionable conduct in connection with goods
or services......................................................................114
22 Matters the court may have regard to for the
purposes of section 21 ...................................................115
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22A Presumptions relating to whether representations
are misleading ...............................................................118
Part 2-3—Unfair contract terms 119
23 Unfair terms of consumer contracts and small
business contracts ..........................................................119
24 Meaning of unfair..........................................................120
25 Examples of unfair terms...............................................120
26 Terms that define main subject matter of consumer
contracts or small business contracts etc. are
unaffected......................................................................121
27 Standard form contracts.................................................122
28 Contracts to which this Part does not apply...................123
Chapter 3—Specific protections 124
Part 3-1—Unfair practices 124
Division 1—False or misleading representations etc. 124
29 False or misleading representations about goods or
services..........................................................................124
30 False or misleading representations about sale etc.
of land ...........................................................................125
31 Misleading conduct relating to employment .................126
32 Offering rebates, gifts, prizes etc. ..................................127
33 Misleading conduct as to the nature etc. of goods .........128
34 Misleading conduct as to the nature etc. of services......128
35 Bait advertising .............................................................128
36 Wrongly accepting payment..........................................129
37 Misleading representations about certain business
activities ........................................................................131
38 Application of provisions of this Division to
information providers ....................................................131
Division 2—Unsolicited supplies 134
39 Unsolicited cards etc. ....................................................134
40 Assertion of right to payment for unsolicited goods
or services......................................................................135
41 Liability etc. of recipient for unsolicited goods .............136
42 Liability of recipient for unsolicited services ................137
43 Assertion of right to payment for unauthorised
entries or advertisements ...............................................137
Division 3—Pyramid schemes 140
44 Participation in pyramid schemes..................................140
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45 Meaning of pyramid scheme .........................................140
46 Marketing schemes as pyramid schemes .......................141
Division 4—Pricing 143
47 Multiple pricing.............................................................143
48 Single price to be specified in certain
circumstances ................................................................144
Division 5—Other unfair practices 148
49 Referral selling ..............................................................148
50 Harassment and coercion...............................................148
Part 3-2—Consumer transactions 149
Division 1—Consumer guarantees 149
Subdivision A—Guarantees relating to the supply of goods 149
51 Guarantee as to title.......................................................149
52 Guarantee as to undisturbed possession ........................149
53 Guarantee as to undisclosed securities etc. ....................150
54 Guarantee as to acceptable quality ................................151
55 Guarantee as to fitness for any disclosed purpose
etc. .................................................................................152
56 Guarantee relating to the supply of goods by
description .....................................................................153
57 Guarantees relating to the supply of goods by
sample or demonstration model.....................................154
58 Guarantee as to repairs and spare parts..........................154
59 Guarantee as to express warranties................................155
Subdivision B—Guarantees relating to the supply of services 155
60 Guarantee as to due care and skill .................................155
61 Guarantees as to fitness for a particular purpose
etc. .................................................................................155
62 Guarantee as to reasonable time for supply ...................156
63 Services to which this Subdivision does not apply ........157
Subdivision C—Guarantees not to be excluded etc. by contract 157
64 Guarantees not to be excluded etc. by contract..............157
64A Limitation of liability for failures to comply with
guarantees......................................................................157
Subdivision D—Miscellaneous 159
65 Application of this Division to supplies of gas,
electricity and telecommunications ...............................159
66 Display notices ..............................................................159
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67 Conflict of laws .............................................................160
68 Convention on Contracts for the International Sale
of Goods ........................................................................160
Division 2—Unsolicited consumer agreements 161
Subdivision A—Introduction 161
69 Meaning of unsolicited consumer agreement ................161
70 Presumption that agreements are unsolicited
consumer agreements ....................................................162
71 Meaning of dealer .........................................................163
72 Meaning of negotiation .................................................163
Subdivision B—Negotiating unsolicited consumer agreements 163
73 Permitted hours for negotiating an unsolicited
consumer agreement......................................................163
74 Disclosing purpose and identity ....................................164
75 Ceasing to negotiate on request .....................................164
76 Informing person of termination period etc. ..................165
77 Liability of suppliers for contraventions by dealers.......166
Subdivision C—Requirements for unsolicited consumer
agreements etc. 166
78 Requirement to give document to the consumer............166
79 Requirements for all unsolicited consumer
agreements etc. ..............................................................167
80 Additional requirements for unsolicited consumer
agreements not negotiated by telephone........................168
81 Requirements for amendments of unsolicited
consumer agreements ....................................................168
Subdivision D—Terminating unsolicited consumer agreements 169
82 Terminating an unsolicited consumer agreement
during the termination period ........................................169
83 Effect of termination .....................................................170
84 Obligations of suppliers on termination ........................171
85 Obligations and rights of consumers on
termination ....................................................................171
86 Prohibition on supplies etc. for 10 business days ..........173
87 Repayment of payments received after termination ......174
88 Prohibition on recovering amounts after
termination ....................................................................174
Subdivision E—Miscellaneous 175
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89 Certain provisions of unsolicited consumer
agreements void.............................................................175
90 Waiver of rights.............................................................176
91 Application of this Division to persons to whom
rights of consumers and suppliers are assigned etc........176
92 Application of this Division to supplies to third
parties ............................................................................176
93 Effect of contravening this Division..............................177
94 Regulations may limit the application of this
Division.........................................................................177
95 Application of this Division to certain conduct
covered by the Corporations Act ...................................177
Division 3—Lay-by agreements 178
96 Lay-by agreements must be in writing etc.....................178
97 Termination of lay-by agreements by consumers ..........178
98 Termination of lay-by agreements by suppliers.............179
99 Effect of termination .....................................................179
Division 4—Miscellaneous 181
100 Supplier must provide proof of transaction etc..............181
101 Consumer may request an itemised bill .........................182
102 Prescribed requirements for warranties against
defects ...........................................................................183
103 Repairers must comply with prescribed
requirements ..................................................................183
Part 3-3—Safety of consumer goods and product related services 185
Division 1—Safety standards 185
104 Making safety standards for consumer goods and
product related services .................................................185
105 Declaring safety standards for consumer goods
and product related services ..........................................186
106 Supplying etc. consumer goods that do not comply
with safety standards .....................................................186
107 Supplying etc. product related services that do not
comply with safety standards ........................................188
108 Requirement to nominate a safety standard...................189
Division 2—Bans on consumer goods and product related services 190
Subdivision A—Interim bans 190
109 Interim bans on consumer goods or product related
services that will or may cause injury to any
person etc. .....................................................................190
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110 Places in which interim bans apply ...............................191
111 Ban period for interim bans...........................................191
112 Interaction of multiple interim bans ..............................192
113 Revocation of interim bans............................................193
Subdivision B—Permanent bans 193
114 Permanent bans on consumer goods or product
related services ..............................................................193
115 Places in which permanent bans apply ..........................194
116 When permanent bans come into force .........................194
117 Revocation of permanent bans ......................................194
Subdivision C—Compliance with interim bans and permanent
bans 195
118 Supplying etc. consumer goods covered by a ban .........195
119 Supplying etc. product related services covered by
a ban ..............................................................................196
Subdivision D—Temporary exemption from mutual recognition
principles 197
120 Temporary exemption under the Trans-Tasman
Mutual Recognition Act 1997 ........................................197
121 Temporary exemption under the Mutual
Recognition Act 1992 ....................................................197
Division 3—Recall of consumer goods 199
Subdivision A—Compulsory recall of consumer goods 199
122 Compulsory recall of consumer goods ..........................199
123 Contents of a recall notice .............................................199
124 Obligations of a supplier in relation to a recall
notice.............................................................................201
125 Notification by persons who supply consumer
goods outside Australia if there is compulsory
recall..............................................................................201
126 Interaction of multiple recall notices .............................202
127 Compliance with recall notices......................................203
Subdivision B—Voluntary recall of consumer goods 204
128 Notification requirements for a voluntary recall of
consumer goods.............................................................204
Division 4—Safety warning notices 206
129 Safety warning notices about consumer goods and
product related services .................................................206
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130 Announcement of the results of an investigation
etc. .................................................................................206
Division 5—Consumer goods, or product related services,
associated with death or serious injury or illness 208
131 Suppliers to report consumer goods associated
with the death or serious injury or illness of any
person ............................................................................208
132 Suppliers to report product related services
associated with the death or serious injury or
illness of any person ......................................................210
132A Confidentiality of notices given under this
Division.........................................................................212
Division 6—Miscellaneous 213
133 Liability under a contract of insurance ..........................213
Part 3-4—Information standards 214
134 Making information standards for goods and
services..........................................................................214
135 Declaring information standards for goods and
services..........................................................................214
136 Supplying etc. goods that do not comply with
information standards ....................................................215
137 Supplying etc. services that do not comply with
information standards ....................................................216
Part 3-5—Liability of manufacturers for goods with safety
defects 218
Division 1—Actions against manufacturers for goods with safety
defects 218
138 Liability for loss or damage suffered by an injured
individual.......................................................................218
139 Liability for loss or damage suffered by a person
other than an injured individual.....................................218
140 Liability for loss or damage suffered by a person if
other goods are destroyed or damaged ..........................219
141 Liability for loss or damage suffered by a person if
land, buildings or fixtures are destroyed or
damaged ........................................................................219
142 Defences to defective goods actions..............................220
Division 2—Defective goods actions 221
143 Time for commencing defective goods actions .............221
144 Liability joint and several ..............................................221
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145 Survival of actions.........................................................221
146 No defective goods action where workers’
compensation law etc. applies .......................................221
147 Unidentified manufacturer.............................................222
148 Commonwealth liability for goods that are
defective only because of compliance with
Commonwealth mandatory standard .............................222
149 Representative actions by the regulator.........................223
Division 3—Miscellaneous 224
150 Application of all or any provisions of this Part
etc. not to be excluded or modified ...............................224
Chapter 4—Offences 225
Part 4-1—Offences relating to unfair practices 225
Division 1—False or misleading representations etc. 225
151 False or misleading representations about goods or
services..........................................................................225
152 False or misleading representations about sale etc.
of land ...........................................................................227
153 Misleading conduct relating to employment .................227
154 Offering rebates, gifts, prizes etc. ..................................228
155 Misleading conduct as to the nature etc. of goods .........229
156 Misleading conduct as to the nature etc. of services......230
157 Bait advertising .............................................................230
158 Wrongly accepting payment..........................................231
159 Misleading representations about certain business
activities ........................................................................233
160 Application of provisions of this Division to
information providers ....................................................234
Division 2—Unsolicited supplies 237
161 Unsolicited cards etc. ....................................................237
162 Assertion of right to payment for unsolicited goods
or services......................................................................238
163 Assertion of right to payment for unauthorised
entries or advertisements ...............................................239
Division 3—Pyramid schemes 241
164 Participation in pyramid schemes..................................241
Division 4—Pricing 242
165 Multiple pricing.............................................................242
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166 Single price to be specified in certain
circumstances ................................................................242
Division 5—Other unfair practices 244
167 Referral selling ..............................................................244
168 Harassment and coercion...............................................244
Part 4-2—Offences relating to consumer transactions 246
Division 1—Consumer guarantees 246
169 Display notices ..............................................................246
Division 2—Unsolicited consumer agreements 247
Subdivision A—Negotiating unsolicited consumer agreements 247
170 Permitted hours for negotiating an unsolicited
consumer agreement......................................................247
171 Disclosing purpose and identity ....................................247
172 Ceasing to negotiate on request .....................................248
173 Informing person of termination period etc. ..................249
Subdivision B—Requirements for unsolicited consumer
agreements etc. 250
174 Requirement to give document to the consumer............250
175 Requirements for all unsolicited consumer
agreements etc. ..............................................................251
176 Additional requirements for unsolicited consumer
agreements not negotiated by telephone........................252
177 Requirements for amendments of unsolicited
consumer agreements ....................................................253
Subdivision C—Terminating unsolicited consumer agreements 253
178 Obligations of suppliers on termination ........................253
179 Prohibition on supplies for 10 business days.................254
180 Repayment of payments received after termination ......254
181 Prohibition on recovering amounts after
termination ....................................................................255
Subdivision D—Miscellaneous 256
182 Certain provisions of unsolicited consumer
agreements void.............................................................256
183 Waiver of rights.............................................................256
184 Application of this Division to persons to whom
rights of consumers and suppliers are assigned etc........257
185 Application of this Division to supplies to third
parties ............................................................................257
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186 Regulations may limit the application of this
Division.........................................................................257
187 Application of this Division to certain conduct
covered by the Corporations Act ...................................258
Division 3—Lay-by agreements 259
188 Lay-by agreements must be in writing etc.....................259
189 Termination charges ......................................................259
190 Termination of lay-by agreements by suppliers.............260
191 Refund of amounts ........................................................260
Division 4—Miscellaneous 261
192 Prescribed requirements for warranties against
defects ...........................................................................261
193 Repairers must comply with prescribed
requirements ..................................................................261
Part 4-3—Offences relating to safety of consumer goods and
product related services 262
Division 1—Safety standards 262
194 Supplying etc. consumer goods that do not comply
with safety standards .....................................................262
195 Supplying etc. product related services that do not
comply with safety standards ........................................263
196 Requirement to nominate a safety standard...................264
Division 2—Bans on consumer goods and product related services 265
197 Supplying etc. consumer goods covered by a ban .........265
198 Supplying etc. product related services covered by
a ban ..............................................................................266
Division 3—Recall of consumer goods 268
199 Compliance with recall orders.......................................268
200 Notification by persons who supply consumer
goods outside Australia if there is compulsory
recall..............................................................................268
201 Notification requirements for a voluntary recall of
consumer goods.............................................................269
Division 4—Consumer goods, or product related services,
associated with death or serious injury or illness 270
202 Suppliers to report consumer goods etc. associated
with the death or serious injury or illness of any
person ............................................................................270
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Part 4-4—Offences relating to information standards 271
203 Supplying etc. goods that do not comply with
information standards ....................................................271
204 Supplying etc. services that do not comply with
information standards ....................................................272
Part 4-5—Offences relating to substantiation notices 274
205 Compliance with substantiation notices ........................274
206 False or misleading information etc. .............................274
Part 4-6—Defences 276
207 Reasonable mistake of fact ............................................276
208 Act or default of another person etc. .............................276
209 Publication of advertisements in the ordinary
course of business..........................................................277
210 Supplying goods acquired for the purpose of
re-supply........................................................................277
211 Supplying services acquired for the purpose of
re-supply........................................................................279
Part 4-7—Miscellaneous 280
212 Prosecutions to be commenced within 3 years ..............280
213 Preference must be given to compensation for
victims...........................................................................280
214 Penalties for contraventions of the same nature etc. ......280
215 Penalties for previous contraventions of the same
nature etc. ......................................................................281
216 Granting of injunctions etc. ...........................................282
217 Criminal proceedings not to be brought for
contraventions of Chapter 2 or 3 ...................................282
Chapter 5—Enforcement and remedies 283
Part 5-1—Enforcement 283
Division 1—Undertakings 283
218 Regulator may accept undertakings...............................283
Division 2—Substantiation notices 284
219 Regulator may require claims to be substantiated
etc. .................................................................................284
220 Extending periods for complying with
substantiation notices ....................................................285
221 Compliance with substantiation notices ........................286
222 False or misleading information etc. .............................286
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Division 3—Public warning notices 288
223 Regulator may issue a public warning notice ................288
Part 5-2—Remedies 289
Division 1—Pecuniary penalties 289
224 Pecuniary penalties........................................................289
225 Pecuniary penalties and offences...................................293
226 Defence .........................................................................294
227 Preference must be given to compensation for
victims...........................................................................294
228 Civil action for recovery of pecuniary penalties............295
229 Indemnification of officers ............................................295
230 Certain indemnities not authorised and certain
documents void .............................................................295
Division 2—Injunctions 296
232 Injunctions.....................................................................296
233 Consent injunctions .......................................................297
234 Interim injunctions ........................................................298
235 Variation and discharge of injunctions ..........................298
Division 3—Damages 299
236 Actions for damages......................................................299
Division 4—Compensation orders etc. for injured persons and
orders for non-party consumers 300
Subdivision A—Compensation orders etc. for injured persons 300
237 Compensation orders etc. on application by an
injured person or the regulator.......................................300
238 Compensation orders etc. arising out of other
proceedings ...................................................................301
Subdivision B—Orders for non-party consumers 301
239 Orders to redress etc. loss or damage suffered by
non-party consumers .....................................................301
240 Determining whether to make a redress order etc.
for non-party consumers................................................303
241 When a non-party consumer is bound by a redress
order etc.........................................................................303
Subdivision C—Miscellaneous 304
242 Applications for orders ..................................................304
243 Kinds of orders that may be made .................................304
244 Power of a court to make orders ....................................305
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245 Interaction with other provisions...................................305
Division 5—Other remedies 306
246 Non-punitive orders.......................................................306
247 Adverse publicity orders ...............................................307
248 Order disqualifying a person from managing
corporations...................................................................308
249 Privilege against exposure to penalty or
forfeiture—disqualification from managing
corporations...................................................................309
250 Declarations relating to consumer contracts and
small business contracts ................................................309
Division 6—Defences 311
251 Publication of advertisement in the ordinary
course of business..........................................................311
252 Supplying consumer goods for the purpose of
re-supply........................................................................311
253 Supplying product related services for the purpose
of re-supply ...................................................................312
Part 5-3—Country of origin representations 314
254 Overview.......................................................................314
255 Country of origin representations do not
contravene certain provisions ........................................314
258 Proceedings relating to false, misleading or
deceptive conduct or representations.............................316
Part 5-4—Remedies relating to guarantees 317
Division 1—Action against suppliers 317
Subdivision A—Action against suppliers of goods 317
259 Action against suppliers of goods..................................317
260 When a failure to comply with a guarantee is a
major failure ..................................................................318
261 How suppliers may remedy a failure to comply
with a guarantee ............................................................319
262 When consumers are not entitled to reject goods ..........319
263 Consequences of rejecting goods ..................................320
264 Replaced goods .............................................................321
265 Termination of contracts for the supply of services
that are connected with rejected goods..........................321
266 Rights of gift recipients .................................................322
Subdivision B—Action against suppliers of services 322
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267 Action against suppliers of services ..............................322
268 When a failure to comply with a guarantee is a
major failure ..................................................................323
269 Termination of contracts for the supply of services.......324
270 Termination of contracts for the supply of goods
that are connected with terminated services ..................325
Division 2—Action for damages against manufacturers of goods 326
271 Action for damages against manufacturers of
goods .............................................................................326
272 Damages that may be recovered by action against
manufacturers of goods .................................................327
273 Time limit for actions against manufacturers of
goods .............................................................................328
Division 3—Miscellaneous 329
274 Indemnification of suppliers by manufacturers .............329
275 Limitation of liability etc...............................................330
276 This Part not to be excluded etc. by contract .................330
276A Limitation in certain circumstances of liability of
manufacturer to seller ....................................................331
277 Representative actions by the regulator.........................332
Part 5-5—Liability of suppliers and credit providers 333
Division 1—Linked credit contracts 333
278 Liability of suppliers and linked credit providers
relating to linked credit contracts ..................................333
279 Action by consumer to recover amount of loss or
damage ..........................................................................334
280 Cases where a linked credit provider is not liable .........334
281 Amount of liability of linked credit providers ...............336
282 Counter-claims and offsets ............................................337
283 Enforcement of judgments etc. ......................................337
284 Award of interest to consumers .....................................339
285 Liability of suppliers to linked credit providers,
and of linked credit providers to suppliers.....................339
286 Joint liability proceedings and recovery under
section 135 of the National Credit Code........................340
Division 2—Non-linked credit contracts 342
287 Liability of suppliers and credit providers relating
to non-linked credit contracts ........................................342
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Chapter 6—Application and transitional provisions 344
Part 1—Application and transitional provisions relating to the
Consumer Credit Legislation Amendment
(Enhancements) Act 2012 344
288 Application of amendments relating to lay-by
agreements.....................................................................344
289 Application of amendment relating to repairs ...............344
290 Saving of regulations relating to repairs ........................344
Part 1A—Application provision relating to the Treasury
Legislation Amendment (Small Business and Unfair
Contract Terms) Act 2015 345 290A Application....................................................................345
Endnotes 347
Endnote 1—About the endnotes 347
Endnote 2—Abbreviation key 349
Endnote 3—Legislation history 350
Endnote 4—Amendment history 371
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Section 44ZZRA
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Part 1—Schedule version of Part IV Note: See section 150A.
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 person 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:
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annual turnover, of a body corporate during a 12-month period,
means 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 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.
knowledge has the same meaning as in the Criminal Code.
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.
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obtaining includes:
(a) obtaining for another person; and
(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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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 person commits an offence if:
(a) the person makes a contract or arrangement, or arrives at an
understanding; and
(b) the contract, arrangement or understanding contains a cartel
provision.
(2) The fault element for paragraph (1)(b) is knowledge or belief.
Penalty
(3) An offence against subsection (1) committed by a body corporate
is punishable on conviction by a fine not exceeding the greater of
the following:
(a) $10,000,000;
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(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 body corporate’s annual turnover
during the 12-month period ending at the end of the month in
which the body corporate committed, or began committing,
the offence.
(4) An offence against subsection (1) committed by a person other
than a body corporate is punishable on conviction by a term of
imprisonment not exceeding 10 years or a fine not exceeding 2,000
penalty units, or both.
Indictable offence
(5) An offence against subsection (1) is an indictable offence.
44ZZRG Giving effect to a cartel provision
Offence
(1) A person commits an offence if:
(a) a contract, arrangement or understanding contains a cartel
provision; and
(b) the person gives effect to the cartel provision.
(2) The fault element for paragraph (1)(a) is knowledge or belief.
Penalty
(3) An offence against subsection (1) committed by a body corporate
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:
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(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 body corporate’s annual turnover
during the 12-month period ending at the end of the month in
which the body corporate committed, or began committing,
the offence.
(4) An offence against subsection (1) committed by a person other
than a body corporate is punishable on conviction by a term of
imprisonment not exceeding 10 years or a fine not exceeding 2,000
penalty units, or both.
Pre-commencement contracts etc.
(5) Paragraph (1)(a) applies to contracts or arrangements made, or
understandings arrived at, before, at or after the commencement of
this section.
Indictable offence
(6) An offence against subsection (1) is an indictable offence.
44ZZRH Determining guilt
(1) A person 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.
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(2) A person 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.
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 person contravenes this section if:
(a) the person 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 person contravenes this section if:
(a) a contract, arrangement or understanding contains a cartel
provision; and
(b) the person gives effect to the cartel provision.
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Note: For enforcement, see Part VI.
(2) Paragraph (1)(a) applies to contracts or arrangements made, or
understandings arrived at, before, at or after the commencement of
this section.
Subdivision D—Exceptions
44ZZRL Conduct notified
(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply to
a person 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 person 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.
(2) A person who wishes to rely on subsection (1) 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 person is granted an
authorisation to give effect to the provision; and
(b) the person applies for the grant of such an authorisation
within 14 days after the contract is made.
(2) A person who wishes to rely on subsection (1) bears an evidential
burden in relation to that matter.
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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.
(2) A person who wishes to rely on subsection (1) 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.
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 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
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(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: 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 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
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(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: 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.
Notice to prosecutor
(3) 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
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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.
(4) 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 (3); or
(b) extend the time within which the person is required to
comply with subsection (3).
(5) For the purposes of paragraph (3)(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
(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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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
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:
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(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: 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.
(2) A person who wishes to rely on subsection (1) bears an evidential
burden in relation to that matter.
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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.
(2) A person who wishes to rely on subsection (1) 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.
(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
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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.
(3) A person who wishes to rely on subsection (1) or (2) 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.
(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.
(3) A person who wishes to rely on subsection (1) or (2) 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:
(a) any shares in the capital of a body corporate; or
(b) any assets of a person.
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(2) A person who wishes to rely on subsection (1) 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.
(2) A person who wishes to rely on subsection (1) bears an evidential
burden in relation to that matter.
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Section 44ZZS
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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
This Division applies to goods and services of the classes
prescribed by the regulations for the purpose of section 44ZZT of
the Competition and Consumer Act 2010.
44ZZU Provisions affecting whether a person has disclosed
information to another person
Disclosure to director, employee or agent etc. of another person
(1) For the purpose of this Division:
(a) if a person (the first person) makes a disclosure of
information to another person (the second person) in the
second person’s capacity as a director, employee or agent of
a body corporate, the disclosure is taken to have been made
by the first person to the body corporate; and
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(b) if a person (the first person) makes a disclosure of
information to another person (the second person) in the
second 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 first person to that other person.
Disclosure to discloser’s own agent
(2) For the purpose of this Division, the disclosure of information by a
person (the first person) to another person is to be disregarded if:
(a) the disclosure is made to the other person in the other
person’s capacity as an agent of the first person; and
(b) subsection (3) does not apply to the disclosure.
Disclosure through intermediary
(3) If:
(a) a person (the first person) makes a disclosure of information
to another person (the intermediary); and
(b) the first person 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
(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 first person; 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 first person in a market).
Accidental disclosure
(4) For the purpose of this Division, the disclosure of information by a
person (the first person) to another person (the recipient) is to be
disregarded if the disclosure to the recipient is due to:
(a) an accident; or
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(b) the default of a person other than the first person; or
(c) some other cause beyond the control of the first person.
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 person 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 person 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.
Anti-avoidance
(2) For the purpose of determining whether a person (the first person)
has made a private disclosure to competitors in relation to a
particular market, the fact that the disclosure is also made to
another person who is not a competitor or potential competitor of
the first person in that market is to be disregarded if:
(a) for a disclosure that is not made through an intermediary—
the first person made the disclosure to the other 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 first person directed or requested the intermediary to
disclose the information to the other person for the
purpose of avoiding the application of section 44ZZW
to the disclosure; or
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(ii) the intermediary disclosed the information to the other
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 person is a
private disclosure to competitors is not affected by the information
otherwise being or becoming available to competitors or potential
competitors of the person in the market, or to other persons.
44ZZW Person must not make private disclosure of pricing
information etc. to competitors
A person 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 person in a market (whether or
not the information also relates to other matters); and
(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) or notified under
subsection 93(1).
44ZZX Person must not make disclosure of pricing information etc.
for purpose of substantially lessening competition
The prohibition
(1) A person 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
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likely to be supplied, or acquired or likely to be
acquired, by the person;
(ii) the capacity, or likely capacity, of the person to supply
or acquire Division 1A goods or services;
(iii) any aspect of the commercial strategy of the person that
relates to Division 1A goods or services; and
(b) the person 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).
Determining whether disclosure made for purpose of substantially
lessening competition
(2) In determining, for the purpose of this section, if a person 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):
(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 person.
(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
person 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 person or of any other person or from other relevant
circumstances.
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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 person 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).
Disclosure to related bodies corporate
(2) Sections 44ZZW and 44ZZX do not apply to the disclosure of
information by a body corporate (the first body corporate) if the
disclosure is to one or more other bodies corporate that are related
to the first body corporate, 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 first body corporate, 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 person if:
(a) the person 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:
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(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 person if:
(a) an authorisation under section 88 (other than
subsection 88(6A)) applies to or in relation to the person; and
(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 person if:
(a) the person 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 person if the disclosure is made for the purpose of
complying with Chapter 6CA of the Corporations Act 2001.
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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 person (the first person) to another person (the recipient) if:
(a) the information relates to goods or services supplied or likely
to be supplied, by the first person to the recipient; or
(b) the information relates to goods or services acquired or likely
to be acquired, by the first person from the recipient.
Disclosure to unknown competitor
(2) Section 44ZZW does not apply to the disclosure of information by
a person (the first person) to another person (the recipient) if:
(a) the recipient is a competitor or potential competitor of the
first person in the market referred to in that section; and
(b) the first person did not know, and could not reasonably be
expected to have known, that the recipient 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 person if:
(a) either:
(i) the person is a participant in a joint venture for the
production and/or supply of goods or services; or
(ii) the person 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.
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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 persons (the relevant persons) if:
(a) the information relates to services, being loans or credit,
supplied, or likely to be supplied, by one or more of the
relevant persons; and
(b) 2 or more of the relevant persons 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 person to another person if:
(a) one of the persons is a credit provider, and the other person
provides a credit service, within the meaning of the National
Consumer Credit Protection Act 2009; and
(b) the disclosure is made in the course of the relationship
between the persons 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 person (the first person) 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
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of a body corporate, or any assets of a person, by or from the first
person.
Note: For the meaning of acquisition of shares, and acquisition of assets, see
subsection 4(4).
Disclosure if borrower insolvent etc.
(5) Section 44ZZW does not apply to the disclosure of information
between 2 or more persons (the relevant persons) if:
(a) at least one of the relevant persons:
(i) has provided a loan or credit to another person (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 persons; and
(c) the disclosure is for the purpose of one or more of the
relevant persons 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 person is notified of a
borrower insolvency situation if:
(a) the person 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 persons; and
(b) the notification is given by the borrower, or by a person
referred to in subparagraph (a)(ii).
44ZZZA Burden of proof
If:
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(a) proceedings are brought against a person in respect of
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;
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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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 this
section:
(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 person.
(2) A person 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 person who 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 person, 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 person, 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 person or a body corporate
related to the person 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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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 person engaging in conduct
described in that subsection if:
(a) the person 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 person 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 person is granted an
authorization to give effect to the provision; and
(b) the person 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
person 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 first
person or on a person associated with a first person if the covenant
has, or is likely to have, the effect of substantially lessening
competition in any market in which the first person or any person
associated with the first person supplies or acquires, or is likely to
supply or acquire, goods or services or would, but for the covenant,
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supply or acquire, or be likely to supply or acquire, goods or
services.
(2) A first person or a person associated with a first person 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 first person, or any person associated with the first
person 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 first person 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 first person;
(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
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(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;
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 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 person referred to in
paragraph (a);
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
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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.
(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), the first person and another person (the
second person) shall be taken to be associated with each other in
relation to a covenant or proposed covenant if, and only if:
(a) the first person is a body corporate and the second 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 first person in relation to the covenant or proposed
covenant; or
(b) the second person is a body corporate in relation to which the
first person 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.
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(9) This section does not apply to or in relation to a covenant or
proposed covenant if:
(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 first person or any person associated with
the first person 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.
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(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
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,
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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 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) 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.
45DA Secondary boycotts for the purpose of causing substantial
lessening of competition
(1) A person must not, in concert with a second person, engage in
conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth
person (who is not an employer of the first person or the
second person); or
(ii) a third person acquiring goods or services from a fourth
person (who is not an employer of the first person or the
second person); and
(b) that is engaged in for the purpose, and would have or be
likely to have the effect, of causing a substantial lessening of
competition in any market in which the fourth person
supplies or acquires goods or services.
Note 1: Conduct that would otherwise contravene this section can be
authorised under subsection 88(7).
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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.
Note: This version of Part IV does not contain an equivalent of
section 45DB of the Competition and Consumer Act 2010.
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 and 45DA:
(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) or
45DA(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) or 45DA(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.
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Taking proceedings if organisation is a body corporate
(4) If the organisation is a body corporate, no action under section 82
to recover the amount of the loss or damage may be brought
against any of the members or officers of the organisation in
respect of the conduct.
Taking proceedings if organisation is not a body corporate
(5) If the organisation is not a body corporate:
(a) a proceeding in respect of the conduct may be brought under
section 77, 80 or 82 against an officer of the organisation as a
representative of the organisation’s members and the
proceeding is taken to be a proceeding against all the persons
who were members of the organisation at the time when the
conduct was engaged in; and
(b) subsection 76(2) does not prevent an order being made in a
proceeding mentioned in paragraph (a) that was brought
under section 77; and
(c) the maximum pecuniary penalty that may be imposed in a
proceeding mentioned in paragraph (a) that was brought
under section 77 is the penalty applicable under section 76 in
relation to a body corporate; and
(d) except as provided by paragraph (a), a proceeding in respect
of the conduct must not be brought under section 77 or 82
against any of the members or officers of the organisation;
and
(e) for the purpose of enforcing any judgment or order given or
made in a proceeding mentioned in paragraph (a) that was
brought under section 77 or 82, process may be issued and
executed against the following property or interests as if the
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;
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(ii) any property in which the organisation or any branch or
part of the organisation has a beneficial interest,
whether vested in trustees or however otherwise held;
(iii) any property in which any members of the organisation
or of a branch or part of the organisation have a
beneficial interest in their capacity as members, whether
vested in trustees or however otherwise held; and
(f) if paragraph (e) applies, no process is to be issued or
executed against any property of members or officers of the
organisation or of a branch or part of the organisation except
as provided in that paragraph.
45DD Situations in which boycotts permitted
Dominant purpose of conduct relates to employment matters—
conduct by a person
(1) A person does not contravene, and is not involved in a
contravention of, subsection 45D(1) or 45DA(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
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(c) the dominant purpose for which the conduct is engaged in is
substantially related to the remuneration, conditions of
employment, hours of work or working conditions of the
employee, or any of the employees, covered by
paragraph (a);
the persons covered by paragraph (a) do not contravene, and are
not involved in a contravention of, subsection 45D(1) or 45DA(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) or 45DA(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) and 45DA(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) and 45DA(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) and 45DA(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) and 45DA(1) and who may also be covered by this exemption.
Meaning of industrial action—basic definition
(4) In subsection (3), industrial action means:
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(a) the performance of work in a manner different from that in
which it is customarily performed, or the adoption of a
practice in relation to work, the result of which is a restriction
or limitation on, or a delay in, the performance of the work,
where:
(i) the terms and conditions of the work are prescribed,
wholly or partly, by a workplace instrument or an order
of an industrial body; or
(ii) the work is performed, or the practice is adopted, in
connection with an industrial dispute; or
(b) a ban, limitation or restriction on the performance of work, or
on acceptance of or offering for work, in accordance with the
terms and conditions prescribed by a workplace instrument or
by an order of an industrial body; or
(c) a ban, limitation or restriction on the performance of work, or
on acceptance of or offering for work, that is adopted in
connection with an industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure
or refusal to perform any work at all by persons who attend
for work.
For this purpose, industrial body and workplace instrument have
the same meanings as in the Fair Work Act 2009.
Meaning of industrial action—further clarification
(5) For the purposes of subsection (3):
(a) conduct is capable of constituting industrial action even if the
conduct relates to part only of the duties that persons are
required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a
course of conduct consisting of a series of industrial actions.
Subsections (1), (2) and (3) do not protect people not covered by
them
(6) In applying subsection 45D(1) or 45DA(1) to a person who is not
covered by subsection (1), (2) or (3) in respect of certain conduct,
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disregard the fact that other persons may be covered by one of
those subsections in respect of the same conduct.
Note: Section 415 of the Fair Work Act 2009 limits the right to bring actions
under the Competition Code 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
acquire goods or services from another person (the second
person).
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:
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(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
provision included for the purpose, or for purposes including the
purpose, of:
(a) preventing or hindering the first person from acquiring or
continuing to acquire such goods or services from the second
person; or
(b) preventing or hindering the first person from acquiring or
continuing to acquire such goods or services from the second
person, except subject to a condition:
(i) that is not a condition to which the acquisition of such
goods or services by the first person from the second
person has previously been subject because of a
provision in a contract between those persons; and
(ii) that is about the persons to whom, the manner in which
or the terms on which the second person may supply
any goods or services.
No contravention if second person gives written consent to written
contract etc.
(4) Subsections (2) and (3) do not apply to a contract, arrangement or
understanding if it is in writing and was made or arrived at with the
written consent of the second person.
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Meaning of accustomed to supply
(5) In this section, a reference to a person who has been accustomed to
supply goods or services to a second person includes (subject to
subsection (6)):
(a) a regular supplier of such goods or services to the second
person; or
(b) the latest supplier of such goods or services to the second
person; or
(c) a person who, at any time during the immediately preceding
3 months, supplied such goods or services to the second
person.
Exception to subsection (5)
(6) If:
(a) goods or services have been supplied by a person to a second
person under a contract between them that required the first
person to supply such goods or services over a period; and
(b) the period has ended; and
(c) after the end of the period, the second person has been
supplied with such goods or services by another person and
has not also been supplied with such goods or services by the
first person;
then, for the purposes of the application of this section in relation
to anything done after the second person has been supplied with
goods or services as mentioned in paragraph (c), the first person is
not to be taken to be a person who has been accustomed to supply
such goods or services to the second person.
Meaning of accustomed to acquire
(7) In this section, a reference to a person who has been accustomed to
acquire goods or services from a second person includes (subject
to subsection (8)):
(a) a regular acquirer of such goods or services from the second
person; or
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(b) a person who, when last acquiring such goods or services,
acquired them from the second person; or
(c) a person who, at any time during the immediately preceding
3 months, acquired such goods or services from the second
person.
Exception to subsection (7)
(8) If:
(a) goods or services have been acquired by a person from a
second person under a contract between them that required
the first person to acquire such goods or services over a
period; and
(b) the period has ended; and
(c) after the end of the period, the second person has refused to
supply such goods or services to the first person;
then, for the purposes of the application of this section in relation
to anything done after the second person has refused to supply
goods or services as mentioned in paragraph (c), the first person is
not to be taken to be a person who has been accustomed to acquire
such goods or services from the second person.
Note: Conduct that would otherwise contravene this section can be
authorised under 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).
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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, 45DC, 45DD, 45E or 45EA affects
the operation of any other provision of this Part.
46 Misuse of market power
(1) A person (the first person) who 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:
(a) eliminating or substantially damaging a competitor of the
first person or of a body corporate that is related to the first
person 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 person supplies goods or services for a sustained period at a
price that is less than the relevant cost to the person of supplying
the goods or services, the person may contravene subsection (1)
even if the person cannot, and might not ever be able to, recoup
losses incurred by supplying the goods or services.
(1AA) A person 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 person of supplying
such goods or services, for the purpose of:
(a) eliminating or substantially damaging a competitor of the
person or of a body corporate that is related to the person in
that or any other market; or
(b) preventing the entry of a person into that or any other market;
or
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(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 person has a substantial share of a market, the Court may
have regard to the number and size of the competitors of the person
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
(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 person (the first person)
has, or 2 or more bodies corporate each of which is related to
the one person (the first person) together have, a substantial
degree of power in a market; or
(b) a person (the first person) and a body corporate that is, or a
person (the first person) and 2 or more bodies corporate each
of which is, related to the first person, together have a
substantial degree of power in a market;
the first person 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 person (the first person) or bodies corporate has or have in a
market, the court shall have regard to the extent to which the
conduct of the first person or of any of those bodies corporate in
that market is constrained by the conduct of:
(a) competitors, or potential competitors, of the first person or of
any of those bodies corporate in that market; or
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(b) persons to whom or from whom the first person 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 person (the first person) or bodies corporate has or have in a
market, the court may have regard to the power the first person 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 first
person or bodies corporate has or have, or may have, with
another party or other parties; and
(b) any covenants, or proposed covenants, that the first person or
bodies corporate is or are, or would be, bound by or entitled
to the benefit of.
(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 person 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 person has a substantial degree of power in a market, a
person may have a substantial degree of power in a market even
though:
(a) the person does not substantially control the market; or
(b) the person does not have absolute freedom from constraint by
the conduct of:
(i) competitors, or potential competitors, of the person in
that market; or
(ii) persons to whom or from whom the person supplies or
acquires goods or services in that market.
(3D) To avoid doubt, for the purposes of this section, more than 1
person may have a substantial degree of power in a market.
(4) In this section:
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(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 person has contravened
subsection (1), the court may have regard to:
(a) any conduct of the person that consisted of supplying goods
or services for a sustained period at a price that was less than
the relevant cost to the person of supplying such goods or
services; and
(b) the reasons for that conduct.
(5) Without extending by implication the meaning of subsection (1), a
person shall not be taken to contravene that subsection by reason
only that the person acquires plant or equipment.
(6) This section does not prevent a person 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 person has taken advantage of the person’s
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
person’s substantial degree of power in the market;
(b) whether the person engaged in the conduct in reliance on the
person’s substantial degree of power in the market;
(c) whether it is likely that the person would have engaged in the
conduct if the person did not have a substantial degree of
power in the market;
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(d) whether the conduct is otherwise related to the person’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 person may be taken to have taken advantage of the
person’s 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 person or of any other person or from other
relevant circumstances.
47 Exclusive dealing
(1) Subject to this section, a person shall not, in trade or commerce,
engage in the practice of exclusive dealing.
(2) A person (the first person) engages in the practice of exclusive
dealing if the first person:
(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 first person;
on the condition that the person (the second person) to whom the
first person supplies, or offers or proposes to supply, the goods or
services or, if the second 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
first person or from a competitor of a body corporate related
to the first person;
(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
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description, acquired directly or indirectly from a competitor
of the first person or from a competitor of a body corporate
related to the first person; or
(f) in the case where the first person 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 person (the first person) also engages in the practice of
exclusive dealing if the first person refuses:
(a) to supply goods or services to a second person;
(b) to supply goods or services to a second 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 second person;
for the reason that the second person or, if the second 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
first person or from a competitor of a body corporate related
to the first person;
(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 first person or from a competitor of a body corporate
related to the first person; 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 first person to any person, or
has re-supplied, or has not agreed not to re-supply, goods or
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services, or goods or services of a particular kind or
description, acquired from the first person:
(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 person (the first person) also engages in the practice of
exclusive dealing if the first person:
(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 (the second person) from whom
the first person acquires or offers to acquire the goods or services
or, if the second 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 person (the first person) also engages in the practice of
exclusive dealing if the first person refuses:
(a) to acquire goods or services from a second person; or
(b) to acquire goods or services at a particular price from a
second person;
for the reason that the second person or, if the second 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.
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(6) A person (the first person) also engages in the practice of
exclusive dealing if the first person:
(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 first person;
on the condition that the person (the second person) to whom the
first person supplies or offers or proposes to supply the goods or
services or, if the second 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 first
person.
(7) A person (the first person) also engages in the practice of
exclusive dealing if the first person refuses:
(a) to supply goods or services to a second person;
(b) to supply goods or services at a particular price to a second
person; or
(c) to give or allow a discount, allowance, rebate or credit in
relation to the supply of goods or services to a second person;
for the reason that the second person or, if the second person is a
body corporate, a body corporate related to that body corporate has
not acquired, or has not agreed to acquire, goods or services of a
particular kind or description directly or indirectly from another
person not being a body corporate related to the first person.
(8) A person (the first person) also engages in the practice of
exclusive dealing if the first person grants or renews, or makes it
known that the first person 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:
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(i) acquire goods or services, or goods or services of a
particular kind or description, directly or indirectly from
a competitor of the first person or from a competitor of
a body corporate related to the first person; 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 first person or from a
competitor of a body corporate related to the first
person;
(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 first person.
(9) A person (the first person) also engages in the practice of
exclusive dealing if the first person refuses to grant or renew, or
exercises a power or right to terminate, a lease of, or a licence in
respect of, land or a building or part of a building for the reason
that another party to the lease or licence or, if that other party is a
body corporate, a body corporate related to that body corporate:
(a) has acquired, or has not agreed not to acquire, goods or
services, or goods or services of a particular kind or
description, directly or indirectly from a competitor of the
first person or from a competitor of a body corporate related
to the first person;
(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 first person or from a competitor of a body corporate
related to the first person;
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(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 first person.
(10) Subsection (1) does not apply to the practice of exclusive dealing
constituted by a person 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 person 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 person in that conduct, and the engaging
by the person, or by a body corporate related to the person, 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 person engaging in conduct
described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if:
(a) the person 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
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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 person engaging in the conduct or any body
corporate related to that person; or
(ii) any person whose business dealings are restricted,
limited or otherwise circumscribed by the conduct or, if
that person is a body corporate, any body corporate
related to that body corporate;
supplies or acquires, or is likely to supply or acquire, goods
or services or would, but for the conduct, supply or acquire,
or be likely to supply or acquire, goods or services; and
(c) a reference to competition, in relation to conduct to which
subsection (8) or (9) applies, shall be read as a reference to
competition in any market in which the person engaging in
the conduct or any other person whose business dealings are
restricted, limited or otherwise circumscribed by the conduct,
or any body corporate related to either of those persons,
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.
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48 Resale price maintenance
A person shall not engage in the practice of resale price
maintenance.
49 Dual listed company arrangements that affect competition
(1) A person 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 person of a dual listed company arrangement that
contains a provision that has the purpose, or would have or be
likely to have the effect, of substantially lessening competition
does not contravene this section if:
(a) the arrangement is subject to a condition that the provision
will not come into force unless and until the person is granted
an authorisation to give effect to the provision; and
(b) the person applies for the grant of such an authorisation
within 14 days after the arrangement is made.
However, this subsection does not permit the person 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
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dual listed company arrangement, means competition in any
market in which:
(a) a person 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 person;
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 person, 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 person or a body corporate
related to the person is or would be a party;
together have or are likely to have that effect.
50 Prohibition of acquisitions that would result in a substantial
lessening of competition
(1) A person 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 person 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).
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(3) Without limiting the matters that may be taken into account for the
purposes of subsection (1) in determining whether the acquisition
would have the effect, or be likely to have the effect, of
substantially lessening competition in a market, the following
matters must be taken into account:
(a) the actual and potential level of import competition in the
market;
(b) the height of barriers to entry to the market;
(c) the level of concentration in the market;
(d) the degree of countervailing power in the market;
(e) the likelihood that the acquisition would result in the acquirer
being able to significantly and sustainably increase prices or
profit margins;
(f) the extent to which substitutes are available in the market or
are likely to be available in the market;
(g) the dynamic characteristics of the market, including growth,
innovation and product differentiation;
(h) the likelihood that the acquisition would result in the removal
from the market of a vigorous and effective competitor;
(i) the nature and extent of vertical integration in the market.
(4) Where:
(a) a person has entered into a contract to acquire shares in the
capital of a body corporate or assets of a person;
(b) the contract is subject to a condition that the provisions of the
contract relating to the acquisition will not come into force
unless and until the person has been granted 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
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(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.
(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.
51 Exceptions
(1) In deciding whether a person has contravened this Part, the
following must be disregarded:
(a) anything that is disregarded for the purposes of Part IV of the
Competition and Consumer Act 2010 because of
subsection 51(1) of that 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;
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(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
(b) the law specifies the attributes of the conduct except those
mentioned in paragraph (a).
For this purpose, law means a State Act, enactment or Ordinance.
(1B) Subsections (1) and (1A) apply regardless of when the State Acts,
enactments, Ordinances, regulations or instruments referred to in
those subsections were passed, made or issued.
(1C) The operation of subsection (1) (other than paragraph (1)(a)) 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 the Competition Code;
(b) paragraphs (1)(b), (c), (d) and (e) do not apply in deciding
whether a person has contravened section 50;
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(c) regulations referred to in subparagraph (1)(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)(b)(ii), (c)(ii) or
(d)(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 that:
(i) were made for the purposes of the subparagraph
concerned; and
(ii) came into operation more than 2 years before the
particular thing happened.
(2) In determining whether a contravention of a provision of this Part
other than section 45D, 45DA, 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
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
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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 or
48 shall not be taken to have been committed by reason of:
(a) the imposing of, or giving effect to, a condition of:
(i) a licence granted by the proprietor, licensee or owner of
a patent, of a registered design, of a copyright or of EL
rights within the meaning of the Circuit Layouts Act
1989, or by a person who has applied for a patent or for
the registration of a design; or
(ii) an assignment of a patent, of a registered design, of a
copyright or of such EL rights, or of the right to apply
for a patent or for the registration of a design;
to the extent that the condition relates to:
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(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
manner as it applies in determining whether a contravention of a
provision of this Part has been committed.
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Schedule 2—The Australian Consumer Law Note: See Part XI.
Chapter 1—Introduction 1 Application of this Schedule
2 Definitions
3 Meaning of consumer
4 Misleading representations with respect to future matters
5 When donations are treated as supplies or acquisitions
6 Related bodies corporate
7 Meaning of manufacturer
8 Goods affixed to land or premises
9 Meaning of safety defect in relation to goods
10 Asserting a right to payment
11 References to acquisition, supply and re-supply
12 Application of Schedule in relation to leases and licences of land
and buildings
13 Loss or damage to include injury
14 Meaning of continuing credit contract
15 Contraventions of this Schedule
16 Severability
17 References to provisions in this Schedule
Chapter 2—General protections
Part 2-1—Misleading or deceptive conduct 18 Misleading or deceptive conduct
19 Application of this Part to information providers
Part 2-2—Unconscionable conduct 20 Unconscionable conduct within the meaning of the unwritten law
21 Unconscionable conduct in connection with goods or services
22 Matters the court may have regard to for the purposes of
section 21
22A Presumptions relating to whether representations are misleading
Part 2-3—Unfair contract terms 23 Unfair terms of consumer contracts
24 Meaning of unfair
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25 Examples of unfair terms
26 Terms that define main subject matter of consumer contracts etc.
are unaffected
27 Standard form contracts
28 Contracts to which this Part does not apply
Chapter 3—Specific protections
Part 3-1—Unfair practices
Division 1—False or misleading representations etc.
29 False or misleading representations about goods or services
30 False or misleading representations about sale etc. of land
31 Misleading conduct relating to employment
32 Offering rebates, gifts, prizes etc.
33 Misleading conduct as to the nature etc. of goods
34 Misleading conduct as to the nature etc. of services
35 Bait advertising
36 Wrongly accepting payment
37 Misleading representations about certain business activities
38 Application of provisions of this Division to information providers
Division 2—Unsolicited supplies
39 Unsolicited cards etc.
40 Assertion of right to payment for unsolicited goods or services
41 Liability etc. of recipient for unsolicited goods
42 Liability of recipient for unsolicited services
43 Assertion of right to payment for unauthorised entries or
advertisements
Division 3—Pyramid schemes
44 Participation in pyramid schemes
45 Meaning of pyramid scheme
46 Marketing schemes as pyramid schemes
Division 4—Pricing
47 Multiple pricing
48 Single price to be specified in certain circumstances
Division 5—Other unfair practices
49 Referral selling
50 Harassment and coercion
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Part 3-2—Consumer transactions
Division 1—Consumer guarantees
Subdivision A—Guarantees relating to the supply of goods
51 Guarantee as to title
52 Guarantee as to undisturbed possession
53 Guarantee as to undisclosed securities etc.
54 Guarantee as to acceptable quality
55 Guarantee as to fitness for any disclosed purpose etc.
56 Guarantee relating to the supply of goods by description
57 Guarantees relating to the supply of goods by sample or
demonstration model
58 Guarantee as to repairs and spare parts
59 Guarantee as to express warranties
Subdivision B—Guarantees relating to the supply of services
60 Guarantee as to due care and skill
61 Guarantees as to fitness for a particular purpose etc.
62 Guarantee as to reasonable time for supply
63 Services to which this Subdivision does not apply
Subdivision C—Guarantees not to be excluded etc. by contract
64 Guarantees not to be excluded etc. by contract
64A Limitation of liability for failures to comply with guarantees
Subdivision D—Miscellaneous
65 Application of this Division to supplies of gas, electricity and
telecommunications
66 Display notices
67 Conflict of laws
68 Convention on Contracts for the International Sale of Goods
Division 2—Unsolicited consumer agreements
Subdivision A—Introduction
69 Meaning of unsolicited consumer agreement
70 Presumption that agreements are unsolicited consumer agreements
71 Meaning of dealer
72 Meaning of negotiation
Subdivision B—Negotiating unsolicited consumer agreements
73 Permitted hours for negotiating an unsolicited consumer
agreement
74 Disclosing purpose and identity
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75 Ceasing to negotiate on request
76 Informing person of termination period etc.
77 Liability of suppliers for contraventions by dealers
Subdivision C—Requirements for unsolicited consumer
agreements etc.
78 Requirement to give document to the consumer
79 Requirements for all unsolicited consumer agreements etc.
80 Additional requirements for unsolicited consumer agreements not
negotiated by telephone
81 Requirements for amendments of unsolicited consumer
agreements
Subdivision D—Terminating unsolicited consumer agreements
82 Terminating an unsolicited consumer agreement during the
termination period
83 Effect of termination
84 Obligations of suppliers on termination
85 Obligations and rights of consumers on termination
86 Prohibition on supplies etc. for 10 business days
87 Repayment of payments received after termination
88 Prohibition on recovering amounts after termination
Subdivision E—Miscellaneous
89 Certain provisions of unsolicited consumer agreements void
90 Waiver of rights
91 Application of this Division to persons to whom rights of
consumers and suppliers are assigned etc.
92 Application of this Division to supplies to third parties
93 Effect of contravening this Division
94 Regulations may limit the application of this Division
95 Application of this Division to certain conduct covered by the
Corporations Act
Division 3—Lay-by agreements
96 Lay-by agreements must be in writing etc.
97 Termination of lay-by agreements by consumers
98 Termination of lay-by agreements by suppliers
99 Effect of termination
Division 4—Miscellaneous
100 Supplier must provide proof of transaction etc.
101 Consumer may request an itemised bill
102 Prescribed requirements for warranties against defects
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103 Repairers must comply with prescribed requirements
Part 3-3—Safety of consumer goods and product related
services
Division 1—Safety standards
104 Making safety standards for consumer goods and product related
services
105 Declaring safety standards for consumer goods and product
related services
106 Supplying etc. consumer goods that do not comply with safety
standards
107 Supplying etc. product related services that do not comply with
safety standards
108 Requirement to nominate a safety standard
Division 2—Bans on consumer goods and product related
services
Subdivision A—Interim bans
109 Interim bans on consumer goods or product related services that
will or may cause injury to any person etc.
110 Places in which interim bans apply
111 Ban period for interim bans
112 Interaction of multiple interim bans
113 Revocation of interim bans
Subdivision B—Permanent bans
114 Permanent bans on consumer goods or product related services
115 Places in which permanent bans apply
116 When permanent bans come into force
117 Revocation of permanent bans
Subdivision C—Compliance with interim bans and permanent
bans
118 Supplying etc. consumer goods covered by a ban
119 Supplying etc. product related services covered by a ban
Subdivision D—Temporary exemption from mutual recognition
principles
120 Temporary exemption under the Trans-Tasman Mutual
Recognition Act 1997
121 Temporary exemption under the Mutual Recognition Act 1992
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Division 3—Recall of consumer goods
Subdivision A—Compulsory recall of consumer goods
122 Compulsory recall of consumer goods
123 Contents of a recall notice
124 Obligations of a supplier in relation to a recall notice
125 Notification by persons who supply consumer goods outside
Australia if there is compulsory recall
126 Interaction of multiple recall notices
127 Compliance with recall notices
Subdivision B—Voluntary recall of consumer goods
128 Notification requirements for a voluntary recall of consumer
goods
Division 4—Safety warning notices
129 Safety warning notices about consumer goods and product
related services
130 Announcement of the results of an investigation etc.
Division 5—Consumer goods, or product related services,
associated with death or serious injury or illness
131 Suppliers to report consumer goods associated with the death or
serious injury or illness of any person
132 Suppliers to report product related services associated with the
death or serious injury or illness of any person
132A Confidentiality of notices given under this Division
Division 6—Miscellaneous
133 Liability under a contract of insurance
Part 3-4—Information standards 134 Making information standards for goods and services
135 Declaring information standards for goods and services
136 Supplying etc. goods that do not comply with information
standards
137 Supplying etc. services that do not comply with information
standards
Part 3-5—Liability of manufacturers for goods with safety
defects
Division 1—Actions against manufacturers for goods with safety
defects
138 Liability for loss or damage suffered by an injured individual
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139 Liability for loss or damage suffered by a person other than an
injured individual
140 Liability for loss or damage suffered by a person if other goods
are destroyed or damaged
141 Liability for loss or damage suffered by a person if land,
buildings or fixtures are destroyed or damaged
142 Defences to defective goods actions
Division 2—Defective goods actions
143 Time for commencing defective goods actions
144 Liability joint and several
145 Survival of actions
146 No defective goods action where workers’ compensation law etc.
applies
147 Unidentified manufacturer
148 Commonwealth liability for goods that are defective only
because of compliance with Commonwealth
mandatory standard
149 Representative actions by the regulator
Division 3—Miscellaneous
150 Application of all or any provisions of this Part etc. not to be
excluded or modified
Chapter 4—Offences
Part 4-1—Offences relating to unfair practices
Division 1—False or misleading representations etc.
151 False or misleading representations about goods or services
152 False or misleading representations about sale etc. of land
153 Misleading conduct relating to employment
154 Offering rebates, gifts, prizes etc.
155 Misleading conduct as to the nature etc. of goods
156 Misleading conduct as to the nature etc. of services
157 Bait advertising
158 Wrongly accepting payment
159 Misleading representations about certain business activities
160 Application of provisions of this Division to information
providers
Division 2—Unsolicited supplies
161 Unsolicited cards etc.
162 Assertion of right to payment for unsolicited goods or services
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163 Assertion of right to payment for unauthorised entries or
advertisements
Division 3—Pyramid schemes
164 Participation in pyramid schemes
Division 4—Pricing
165 Multiple pricing
166 Single price to be specified in certain circumstances
Division 5—Other unfair practices
167 Referral selling
168 Harassment and coercion
Part 4-2—Offences relating to consumer transactions
Division 1—Consumer guarantees
169 Display notices
Division 2—Unsolicited consumer agreements
Subdivision A—Negotiating unsolicited consumer agreements
170 Permitted hours for negotiating an unsolicited consumer
agreement
171 Disclosing purpose and identity
172 Ceasing to negotiate on request
173 Informing person of termination period etc.
Subdivision B—Requirements for unsolicited consumer
agreements etc.
174 Requirement to give document to the consumer
175 Requirements for all unsolicited consumer agreements etc.
176 Additional requirements for unsolicited consumer agreements not
negotiated by telephone
177 Requirements for amendments of unsolicited consumer
agreements
Subdivision C—Terminating unsolicited consumer agreements
178 Obligations of suppliers on termination
179 Prohibition on supplies for 10 business days
180 Repayment of payments received after termination
181 Prohibition on recovering amounts after termination
Subdivision D—Miscellaneous
182 Certain provisions of unsolicited consumer agreements void
183 Waiver of rights
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184 Application of this Division to persons to whom rights of
consumers and suppliers are assigned etc.
185 Application of this Division to supplies to third parties
186 Regulations may limit the application of this Division
187 Application of this Division to certain conduct covered by the
Corporations Act
Division 3—Lay-by agreements
188 Lay-by agreements must be in writing etc.
189 Termination charges
190 Termination of lay-by agreements by suppliers
191 Refund of amounts
Division 4—Miscellaneous
192 Prescribed requirements for warranties against defects
193 Repairers must comply with prescribed requirements
Part 4-3—Offences relating to safety of consumer goods and
product related services
Division 1—Safety standards
194 Supplying etc. consumer goods that do not comply with safety
standards
195 Supplying etc. product related services that do not comply with
safety standards
196 Requirement to nominate a safety standard
Division 2—Bans on consumer goods and product related
services
197 Supplying etc. consumer goods covered by a ban
198 Supplying etc. product related services covered by a ban
Division 3—Recall of consumer goods
199 Compliance with recall orders
200 Notification by persons who supply consumer goods outside
Australia if there is compulsory recall
201 Notification requirements for a voluntary recall of consumer
goods
Division 4—Consumer goods, or product related services,
associated with death or serious injury or illness
202 Suppliers to report consumer goods etc. associated with the death
or serious injury or illness of any person
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Part 4-4—Offences relating to information standards 203 Supplying etc. goods that do not comply with information
standards
204 Supplying etc. services that do not comply with information
standards
Part 4-5—Offences relating to substantiation notices 205 Compliance with substantiation notices
206 False or misleading information etc.
Part 4-6—Defences 207 Reasonable mistake of fact
208 Act or default of another person etc.
209 Publication of advertisements in the ordinary course of business
210 Supplying goods acquired for the purpose of re-supply
211 Supplying services acquired for the purpose of re-supply
Part 4-7—Miscellaneous 212 Prosecutions to be commenced within 3 years
213 Preference must be given to compensation for victims
214 Penalties for contraventions of the same nature etc.
215 Penalties for previous contraventions of the same nature etc.
216 Granting of injunctions etc.
217 Criminal proceedings not to be brought for contraventions of
Chapter 2 or 3
Chapter 5—Enforcement and remedies
Part 5-1—Enforcement
Division 1—Undertakings
218 Regulator may accept undertakings
Division 2—Substantiation notices
219 Regulator may require claims to be substantiated etc.
220 Extending periods for complying with substantiation notices
221 Compliance with substantiation notices
222 False or misleading information etc.
Division 3—Public warning notices
223 Regulator may issue a public warning notice
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Part 5-2—Remedies
Division 1—Pecuniary penalties
224 Pecuniary penalties
225 Pecuniary penalties and offences
226 Defence
227 Preference must be given to compensation for victims
228 Civil action for recovery of pecuniary penalties
229 Indemnification of officers
230 Certain indemnities not authorised and certain documents void
Division 2—Injunctions
232 Injunctions
233 Consent injunctions
234 Interim injunctions
235 Variation and discharge of injunctions
Division 3—Damages
236 Actions for damages
Division 4—Compensation orders etc. for injured persons and
orders for non-party consumers
Subdivision A—Compensation orders etc. for injured persons
237 Compensation orders etc. on application by an injured person or
the regulator
238 Compensation orders etc. arising out of other proceedings
Subdivision B—Orders for non-party consumers
239 Orders to redress etc. loss or damage suffered by non-party
consumers
240 Determining whether to make a redress order etc. for non-party
consumers
241 When a non-party consumer is bound by a redress order etc.
Subdivision C—Miscellaneous
242 Applications for orders
243 Kinds of orders that may be made
244 Power of a court to make orders
245 Interaction with other provisions
Division 5—Other remedies
246 Non-punitive orders
247 Adverse publicity orders
248 Order disqualifying a person from managing corporations
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249 Privilege against exposure to penalty or forfeiture—
disqualification from managing corporations
250 Declarations relating to consumer contracts
Division 6—Defences
251 Publication of advertisement in the ordinary course of business
252 Supplying consumer goods for the purpose of re-supply
253 Supplying product related services for the purpose of re-supply
Part 5-3—Country of origin representations 254 Overview
255 Country of origin representations do not contravene certain
provisions
256 Cost of producing or manufacturing goods
257 Rules for determining the percentage of costs of production or
manufacture attributable to a country
258 Proceedings relating to false, misleading or deceptive conduct or
representations
Part 5-4—Remedies relating to guarantees
Division 1—Action against suppliers
Subdivision A—Action against suppliers of goods
259 Action against suppliers of goods
260 When a failure to comply with a guarantee is a major failure
261 How suppliers may remedy a failure to comply with a guarantee
262 When consumers are not entitled to reject goods
263 Consequences of rejecting goods
264 Replaced goods
265 Termination of contracts for the supply of services that are
connected with rejected goods
266 Rights of gift recipients
Subdivision B—Action against suppliers of services
267 Action against suppliers of services
268 When a failure to comply with a guarantee is a major failure
269 Termination of contracts for the supply of services
270 Termination of contracts for the supply of goods that are
connected with terminated services
Division 2—Action for damages against manufacturers of goods
271 Action for damages against manufacturers of goods
272 Damages that may be recovered by action against manufacturers
of goods
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273 Time limit for actions against manufacturers of goods
Division 3—Miscellaneous
274 Indemnification of suppliers by manufacturers
275 Limitation of liability etc.
276 This Part not to be excluded etc. by contract
276A Limitation in certain circumstances of liability of manufacturer
to seller
277 Representative actions by the regulator
Part 5-5—Liability of suppliers and credit providers
Division 1—Linked credit contracts
278 Liability of suppliers and linked credit providers relating to
linked credit contracts
279 Action by consumer to recover amount of loss or damage
280 Cases where a linked credit provider is not liable
281 Amount of liability of linked credit providers
282 Counter-claims and offsets
283 Enforcement of judgments etc.
284 Award of interest to consumers
285 Liability of suppliers to linked credit providers, and of linked
credit providers to suppliers
286 Joint liability proceedings and recovery under section 135 of the
National Credit Code
Division 2—Non-linked credit contracts
287 Liability of suppliers and credit providers relating to non-linked
credit contracts
Chapter 6—Application and transitional provisions
Part 1—Application and transitional provisions relating to the
Consumer Credit Legislation Amendment
(Enhancements) Act 2012 288 Application of amendments relating to lay-by agreements
289 Application of amendment relating to repairs
290 Saving of regulations relating to repairs
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Chapter 1—Introduction
1 Application of this Schedule
This Schedule applies to the extent provided by:
(a) Part XI of the Competition and Consumer Act; or
(b) an application law.
2 Definitions
(1) In this Schedule:
ABN has the meaning given by section 41 of the A New Tax
System (Australian Business Number) Act 1999.
acceptable quality: see sections 54(2) to (7).
ACN has the meaning given by section 9 of the Corporations Act
2001.
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.
Note: Section 5 deals with when receipt of a donation is an acquisition.
adverse publicity order: see section 247(2).
affected person, in relation to goods, means:
(a) a consumer who acquires the goods; or
(b) a person who acquires the goods from the consumer (other
than for the purpose of re-supply); or
(c) a person who derives title to the goods through or under the
consumer.
agreement document: see section 78(2).
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applicable industry code has the meaning given by
section 51ACA(1) of the Competition and Consumer Act.
application law has the same meaning as in section 140 of the
Competition and Consumer Act.
article includes a token, card or document.
ASIC means the Australian Securities and Investments
Commission.
assert a right to payment: see section 10(1).
associate regulator:
(a) for the purposes of the application of this Schedule as a law
of the Commonwealth—means a body that is, for the
purposes of the application of this Schedule as a law of a
State or a Territory, the regulator within the meaning of the
application law of the State or Territory; or
(b) for the purposes of the application of this Schedule as a law
of a State or a Territory—means:
(i) the Commission; or
(ii) a body that is, for the purposes of the application of this
Schedule as a law of another State or a Territory, the
regulator within the meaning of the application law of
that other State or Territory.
authority, in relation to a State or a 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.
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
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(b) an incorporated company in which the Commonwealth, or a
body corporate referred to in paragraph (a), has a controlling
interest.
banker has the same meaning as in section 4(1) of the Competition
and Consumer Act.
ban period for an interim ban: see section 111(1).
business includes a business not carried on for profit.
business day, in relation to an unsolicited consumer agreement,
means a day that is not:
(a) a Saturday or Sunday; or
(b) a public holiday in the place where the agreement was made.
business or professional relationship includes a relationship
between employer and employee, or a similar relationship.
call on, in relation to negotiating an unsolicited consumer
agreement, does not include call by telephone.
Commission has the same meaning as in section 4(1) of the
Competition and Consumer Act.
Commonwealth mandatory standard, in relation to goods, means
a mandatory standard in respect of the goods imposed by a law of
the Commonwealth.
Commonwealth Minister means the Minister who administers
Part XI of the Competition and Consumer Act.
Competition and Consumer Act means the Competition and
Consumer Act 2010.
consumer: see section 3.
consumer contract: see section 23(3).
consumer goods means goods that are intended to be used, or are
of a kind likely to be used, for personal, domestic or household use
or consumption, and includes any such goods that have become
fixtures since the time they were supplied if:
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(a) a recall notice for the goods has been issued; or
(b) a person has voluntarily taken action to recall the goods.
continuing credit contract: see section 14(1).
contravening conduct: see section 239(1)(a)(i).
court, in relation to a matter, means any court having jurisdiction
in the matter.
covering includes a stopper, glass, bottle, vessel, box, capsule,
case, frame or wrapper.
credit card: see section 39(5).
credit provider means a person providing, or proposing to provide,
in the course of a business carried on by the person, credit to
consumers in relation to the acquisition of goods or services.
dealer: see section 71.
debit card: see section 39(6).
declared term: see section 239(1)(a)(ii).
defective goods action means an action under section 138, 139,
140 or 141, and includes such an action because of section 138(3)
or 145.
disclosed purpose: see section 55(2).
displayed price: see sections 47(2) to (5).
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.
enforcement proceeding means:
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(a) a proceeding for an offence against Chapter 4; or
(b) a proceeding instituted under Chapter 5 (other than under
sections 237 and 239).
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.
express warranty, in relation to goods, means an undertaking,
assertion or representation:
(a) that relates to:
(i) the quality, state, condition, performance or
characteristics of the goods; or
(ii) the provision of services that are or may at any time be
required for the goods; or
(iii) the supply of parts that are or may at any time be
required for the goods; or
(iv) the future availability of identical goods, or of goods
constituting or forming part of a set of which the goods,
in relation to which the undertaking, assertion or
representation is given or made, form part; and
(b) that is given or made in connection with the supply of the
goods, or in connection with the promotion by any means of
the supply or use of the goods; and
(c) the natural tendency of which is to induce persons to acquire
the goods.
financial product has the meaning given by section 12BAA of the
Australian Securities and Investments Commission Act 2001.
financial service has the meaning given by section 12BAB of the
Australian Securities and Investments Commission Act 2001.
free item includes a free service.
goods includes:
(a) ships, aircraft and other vehicles; and
(b) animals, including fish; and
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(c) minerals, trees and crops, whether on, under or attached to
land or not; and
(d) gas and electricity; and
(e) computer software; and
(f) second-hand goods; and
(g) any component part of, or accessory to, goods.
grown: see section 255(7).
GST has the meaning given by section 195-1 of the A New Tax
System (Goods and Services Tax) Act 1999.
industry code has the meaning given by section 51ACA of the
Competition and Consumer Act.
information provider: see sections 19(5) and (6).
information standard: see sections 134(1) and 135(1).
inner container includes any container into which goods are
packed, other than a shipping or airline container, pallet or other
similar article.
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
(c) a right, power or privilege over, or in connection with, the
land.
interim ban: see sections 109(1) and (2).
involved: a person is involved, in a contravention of a provision of
this Schedule or in conduct that constitutes such a contravention, if
the person:
(a) has aided, abetted, counselled or procured the contravention;
or
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(b) has induced, whether by threats or promises or otherwise, the
contravention; or
(c) has been in any way, directly or indirectly, knowingly
concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
joint liability proceedings means proceedings relating to the joint
and several liability under section 278 of a linked credit provider
and a supplier of goods or services.
label includes a band or ticket.
lay-by agreement: see section 96(3).
linked credit contract: see section 278(2).
linked credit provider, in relation to a supplier of goods or
services, means a credit provider:
(a) with whom the supplier has a contract, arrangement or
understanding relating to:
(i) the supply to the supplier of goods in which the supplier
deals; or
(ii) the business carried on by the supplier of supplying
goods or services; or
(iii) the provision to persons to whom goods or services are
supplied by the supplier of credit in respect of payment
for those goods or services; or
(b) to whom the supplier, by arrangement with the credit
provider, regularly refers persons for the purpose of
obtaining credit; or
(c) whose forms of contract, forms of application or offers for
credit are, by arrangement with the credit provider, made
available to persons by the supplier; or
(d) with whom the supplier has a contract, arrangement or
understanding under which contracts, applications or offers
for credit from the credit provider may be signed by persons
at premises of the supplier.
listed public company has the meaning given by section 995-1(1)
the Income Tax Assessment Act 1997.
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loan contract means a contract under which a person in the course
of a business carried on by that person provides or agrees to
provide, whether on one or more occasions, credit to a consumer in
one or more of the following ways:
(a) by paying an amount to, or in accordance with the
instructions of, the consumer;
(b) by applying an amount in satisfaction or reduction of an
amount owed to the person by the consumer;
(c) by varying the terms of a contract under which money owed
to the person by the consumer is payable;
(d) by deferring an obligation of the consumer to pay an amount
to the person;
(e) by taking from the consumer a bill of exchange or other
negotiable instrument on which the consumer (whether alone
or with another person or other persons) is liable as drawer,
acceptor or endorser.
major failure: see sections 260 and 268.
mandatory standard, in relation to goods, means a standard:
(a) for the goods or anything relating to the goods; and
(b) that, under a law of the Commonwealth, a State or a
Territory, must be complied with when the goods are
supplied by their manufacturer, being a law creating an
offence or liability if there is such non-compliance;
but does not include a standard which may be complied with by
meeting a higher standard.
manufacturer: see section 7.
market has the same meaning as in section 4E of the Competition
and Consumer Act.
materials, in relation to goods, means:
(a) if the goods are unmanufactured raw products—those
products; and
(b) if the goods are manufactured goods—all matter or
substances used or consumed in the manufacture of the goods
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(other than matter or substances that are treated as
overheads); and
(c) in either case—the inner containers in which the goods are
packed.
mixed supply: see section 3(11).
National Credit Code has the meaning given by section 5(1) of the
National Consumer Credit Protection Act 2009.
negotiated by telephone: see section 78(3).
negotiation: see section 72.
new participant: see section 45(2).
non-linked credit contract: see section 287(5).
non-party consumer means:
(a) in relation to conduct referred to in section 239(1)(a)(i)—a
person who is not, or has not been, a party to an enforcement
proceeding in relation to the conduct; and
(b) in relation to a term of a contract referred to in
section 239(1)(a)(ii)—a person who is not, or has not been, a
party to an enforcement proceeding in relation to the term.
participant, in a pyramid scheme, means a person who participates
in the scheme.
participate, in a pyramid scheme: see section 44(3).
participation payment: see section 45(1)(a).
permanent ban: see sections 114(1) and (2).
premises means:
(a) an area of land or any other place (whether or not it is
enclosed or built on); or
(b) a building or other structure; or
(c) a vehicle, vessel or aircraft; or
(d) a part of any such premises.
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price, of goods or services, means:
(a) the amount paid or payable (including any charge of any
description) for their acquisition; or
(b) if such an amount is not specified because the acquisition is
part only of a transaction for which a total amount is paid or
payable:
(i) the lowest amount (including any charge of any
description) for which the goods or services could
reasonably have been acquired from the supplier at the
time of the transaction or, if not from the supplier, from
another supplier; or
(ii) if they could not reasonably have been acquired
separately from another supplier—their value at the
time of the transaction.
prior negotiations or arrangements, in relation to the acquisition
of goods by a consumer, means negotiations or arrangements:
(a) that were conducted or made with the consumer by another
person in the course of a business carried on by the other
person; and
(b) that induced the consumer to acquire the goods, or otherwise
promoted the acquisition of the goods by the consumer.
product related service means a service for or relating to:
(a) the installation of consumer goods of a particular kind; or
(b) the maintenance, repair or cleaning of consumer goods of a
particular kind; or
(c) the assembly of consumer goods of a particular kind; or
(d) the delivery of consumer goods of a particular kind;
and, without limiting paragraphs (a) to (d), includes any other
service that relates to the supply of consumer goods of that kind.
proof of transaction: see section 100(4).
publish, in relation to an advertisement, means include in a
publication intended for sale or public distribution (whether to the
public generally or to a restricted class or number of persons) or for
public display (including in an electronic form).
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pyramid scheme: see section 45(1).
recall notice: see section 122(1).
recovery period: see section 41(4).
recruitment payment: see section 45(1)(b).
regulations means regulations made under section 139G of the
Competition and Consumer Act.
regulator:
(a) for the purposes of the application of this Schedule as a law
of the Commonwealth—means the Commission; or
(b) for the purposes of the application of this Schedule as a law
of a State or a Territory—has the meaning given by the
application law of the State or Territory.
rejection period: see section 262(2).
related, in relation to a body corporate: see section 6.
related contract or instrument: see section 83(2).
rely on, in relation to a term of a consumer contract or small
business contract, includes the following:
(a) attempt to enforce the term;
(b) attempt to exercise a right conferred, or purportedly
conferred, by the term;
(c) assert the existence of a right conferred, or purportedly
conferred, by the term.
responsible Minister means:
(a) the Commonwealth Minister; or
(b) the Minister of a State who administers the application law of
the State; or
(c) the Minister of a Territory who administers the application
law of the Territory.
safety defect, in relation to goods: see section 9.
safety standard: see sections 104(1) and 105(1).
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sale by auction, in relation to the supply of goods by a person,
means a sale by auction that is conducted by an agent of the person
(whether the agent acts in person or by electronic means).
send includes deliver, and sent and sender have corresponding
meanings.
serious injury or illness means an acute physical injury or illness
that requires medical or surgical treatment by, or under the
supervision of, a medical practitioner or a nurse (whether or not in
a hospital, clinic or similar place), but does not include:
(a) an ailment, disorder, defect or morbid condition (whether of
sudden onset or gradual development); or
(b) the recurrence, or aggravation, of such an ailment, disorder,
defect or morbid condition.
services includes:
(a) 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
(b) without limiting paragraph (a), the rights, benefits, privileges
or facilities that are, or are to be, provided, granted or
conferred under:
(i) a contract for or in relation to the performance of work
(including work of a professional nature), whether with
or without the supply of goods; or
(ii) a contract for or in relation to the provision of, or the
use or enjoyment of facilities for, amusement,
entertainment, recreation or instruction; or
(iii) a contract for or in relation to the conferring of rights,
benefits or privileges for which remuneration is payable
in the form of a royalty, tribute, levy or similar exaction;
or
(iv) a contract of insurance; or
(v) 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
(vi) any contract for or in relation to the lending of money;
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but does not include rights or benefits being the supply of goods or
the performance of work under a contract of service.
share includes stock.
ship has the meaning given by section 3(1) of the Admiralty Act
1988.
single price: see section 48(7).
small business contract: see subsection 23(4).
standard form contract has a meaning affected by section 27.
substantially transformed, in relation to goods: see section 255(2).
substantiation notice means a notice under section 219.
substantiation notice compliance period: see section 221(2).
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.
Note: Section 5 deals with when a donation is a supply.
supply of limited title: see section 51(2).
telecommunications service: see section 65(2).
termination charge: see section 97(2).
termination period, in relation to an unsolicited consumer
agreement, means the period within which the consumer under the
agreement is, under section 82 or under the agreement, entitled to
terminate the agreement.
tied continuing credit contract means a continuing credit contract
under which a credit provider provides credit in respect of the
payment by a consumer for goods or services supplied by a
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supplier in relation to whom the credit provider is a linked credit
provider.
tied loan contract means a loan contract entered into between a
credit provider and a consumer where:
(a) the credit provider knows, or ought reasonably to know, that
the consumer enters into the loan contract wholly or partly
for the purposes of payment for goods or services supplied by
a supplier; and
(b) at the time the loan contract is entered into the credit provider
is a linked credit provider of the supplier.
trade or commerce means:
(a) trade or commerce within Australia; or
(b) trade or commerce between Australia and places outside
Australia;
and includes any business or professional activity (whether or not
carried on for profit).
transparent:
(a) in relation to a document—means:
(i) expressed in reasonably plain language; and
(ii) legible; and
(iii) presented clearly; and
(b) in relation to a term of a consumer contract or small business
contract—see section 24(3).
unfair, in relation to a term of a consumer contract or small
business contract: see section 24(1).
unsolicited consumer agreement: see section 69.
unsolicited goods means goods sent to a person without any
request made by the person or on his or her behalf.
unsolicited services means services supplied to a person without
any request made by the person or on his or her behalf.
upfront price: see section 26(2).
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warranty against defects: see section 102(3).
(2) In this Schedule:
(a) a reference to engaging in conduct is a reference to doing or
refusing to do any act, including:
(i) the making of, or the giving effect to a provision of, a
contract or arrangement; or
(ii) the arriving at, or the giving effect to a provision of, an
understanding; or
(iii) the requiring of the giving of, or the giving of, a
covenant; and
(b) a reference to conduct, when that expression is used as a
noun otherwise than as mentioned in paragraph (a), is a
reference to the doing of or the refusing to do any act,
including:
(i) the making of, or the giving effect to a provision of, a
contract or arrangement; or
(ii) the arriving at, or the giving effect to a provision of, an
understanding; or
(iii) the requiring of the giving of, or the giving of, a
covenant; and
(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 Meaning of consumer
Acquiring goods as a consumer
(1) A person is taken to have acquired particular goods as a consumer
if, and only if:
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(a) the amount paid or payable for the goods, as worked out
under subsections (4) to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is prescribed for the purposes of this
paragraph—that greater amount; or
(b) the goods were of a kind ordinarily acquired for personal,
domestic or household use or consumption; or
(c) the goods consisted of a vehicle or trailer acquired for use
principally in the transport of goods on public roads.
(2) However, subsection (1) does not apply if the person acquired the
goods, or held himself or herself out as acquiring the goods:
(a) for the purpose of re-supply; or
(b) for the purpose of using them up or transforming them, in
trade or commerce:
(i) in the course of a process of production or manufacture;
or
(ii) in the course of repairing or treating other goods or
fixtures on land.
Acquiring services as a consumer
(3) A person is taken to have acquired particular services as a
consumer if, and only if:
(a) the amount paid or payable for the services, as worked out
under subsections (4) to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is prescribed for the purposes of
subsection (1)(a)—that greater amount; or
(b) the services were of a kind ordinarily acquired for personal,
domestic or household use or consumption.
Amounts paid or payable for purchases
(4) For the purposes of subsection (1) or (3), the amount paid or
payable for goods or services purchased by a person is taken to be
the price paid or payable by the person for the goods or services,
unless subsection (5) applies.
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(5) For the purposes of subsection (1) or (3), if a person purchased
goods or services by a mixed supply and a specified price was not
allocated to the goods or services in the contract under which they
were purchased, the amount paid or payable for goods or services
is taken to be:
(a) if, at the time of the acquisition, the person could have
purchased from the supplier the goods or services other than
by a mixed supply—the price at which they could have been
purchased from the supplier; or
(b) if:
(i) paragraph (a) does not apply; but
(ii) at the time of the acquisition, goods or services of the
kind acquired could have been purchased from another
supplier other than by a mixed supply;
the lowest price at which the person could, at that time,
reasonably have purchased goods or services of that kind
from another supplier; or
(c) if, at the time of the acquisition, goods or services of the kind
acquired could not have been purchased from any supplier
except by a mixed supply—the value of the goods or services
at that time.
Amounts paid or payable for other acquisitions
(6) For the purposes of subsection (1) or (3), the amount paid or
payable for goods or services acquired by a person other than by
way of purchase is taken to be the price at which, at the time of the
acquisition, the person could have purchased the goods or services
from the supplier, unless subsection (7) or (8) applies.
(7) For the purposes of subsection (1) or (3), if:
(a) goods or services acquired by a person other than by way of
purchase could not, at the time of the acquisition, have been
purchased from the supplier, or could have been purchased
only by a mixed supply; but
(b) at that time, goods or services of the kind acquired could
have been purchased from another supplier other than by a
mixed supply;
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the amount paid or payable for the goods or services is taken to be
the lowest price at which the person could, at that time, reasonably
have purchased goods or services of that kind from another
supplier.
(8) For the purposes of subsection (1) or (3), if goods or services
acquired by a person other than by way of purchase could not, at
the time of the acquisition, have been purchased from any supplier
other than by a mixed supply, the amount paid or payable for the
goods or services is taken to be the value of the goods or services
at that time.
Amounts paid or payable for obtaining credit
(9) If:
(a) a person obtains credit in connection with the acquisition of
goods or services by him or her; and
(b) the amount paid or payable by him or her for the goods or
services is increased because he or she so obtains credit;
obtaining the credit is taken for the purposes of subsection (3) to be
the acquisition of a service, and the amount paid or payable by him
or her for the service of being provided with the credit is taken to
include the amount of the increase.
Presumption that persons are consumers
(10) If it is alleged in any proceeding under this Schedule, or in any
other proceeding in respect of a matter arising under this Schedule,
that a person was a consumer in relation to particular goods or
services, it is presumed, unless the contrary is established, that the
person was a consumer in relation to those goods or services.
Mixed supplies
(11) A purchase or other acquisition of goods or services is made by a
mixed supply if the goods or services are purchased or acquired
together with other property or services, or together with both other
property and other services.
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Supplies to consumers
(12) In this Schedule, a reference to a supply of goods or services to a
consumer is a reference to a supply of goods or services to a person
who is taken to have acquired them as a consumer.
4 Misleading representations with respect to future matters
(1) If:
(a) a person makes a representation with respect to any future
matter (including the doing of, or the refusing to do, any act);
and
(b) the person does not have reasonable grounds for making the
representation;
the representation is taken, for the purposes of this Schedule, to be
misleading.
(2) For the purposes of applying subsection (1) in relation to a
proceeding concerning a representation made with respect to a
future matter by:
(a) a party to the proceeding; or
(b) any other person;
the party or other person is taken not to have had reasonable
grounds for making the representation, unless evidence is adduced
to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the
contrary is adduced, the person who made the representation
is taken to have had reasonable grounds for making the
representation; or
(b) have the effect of placing on any person an onus of proving
that the person who made the representation had reasonable
grounds for making the representation.
(4) Subsection (1) does not limit by implication the meaning of a
reference in this Schedule to:
(a) a misleading representation; or
(b) a representation that is misleading in a material particular; or
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(c) conduct that is misleading or is likely or liable to mislead;
and, in particular, does not imply that a representation that a person
makes with respect to any future matter is not misleading merely
because the person has reasonable grounds for making the
representation.
5 When donations are treated as supplies or acquisitions
(1) For the purposes of this Schedule, other than Parts 3-3, 3-4, 4-3
and 4-4:
(a) a donation of goods or services is not treated as a supply of
the goods or services unless the donation is for promotional
purposes; and
(b) receipt of a donation of goods or services is not treated as an
acquisition of the goods or services unless the donation is for
promotional purposes.
(2) For the purposes of Parts 3-3, 3-4, 4-3 and 4-4:
(a) any donation of goods or services is treated as a supply of the
goods or services; and
(b) receipt of any donation of goods or services is treated as an
acquisition of the goods or services.
6 Related bodies corporate
(1) A body corporate is taken to be related to another body corporate if
the bodies corporate would, under section 4A(5) of the
Competition and Consumer Act, be deemed to be related to each
other.
(2) In proceedings under this Schedule, it is presumed, unless the
contrary is established, that bodies corporate are not, or were not at
a particular time, related to each other.
7 Meaning of manufacturer
(1) A manufacturer includes the following:
(a) a person who grows, extracts, produces, processes or
assembles goods;
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(b) a person who holds himself or herself out to the public as the
manufacturer of goods;
(c) a person who causes or permits the name of the person, a
name by which the person carries on business or a brand or
mark of the person to be applied to goods supplied by the
person;
(d) a person (the first person) who causes or permits another
person, in connection with:
(i) the supply or possible supply of goods by that other
person; or
(ii) the promotion by that other person by any means of the
supply or use of goods;
to hold out the first person to the public as the manufacturer
of the goods;
(e) a person who imports goods into Australia if:
(i) the person is not the manufacturer of the goods; and
(ii) at the time of the importation, the manufacturer of the
goods does not have a place of business in Australia.
(2) For the purposes of subsection (1)(c):
(a) a name, brand or mark is taken to be applied to goods if:
(i) it is woven in, impressed on, worked into or annexed or
affixed to the goods; or
(ii) it is applied to a covering, label, reel or thing in or with
which the goods are supplied; and
(b) if the name of a person, a name by which a person carries on
business or a brand or mark of a person is applied to goods, it
is presumed, unless the contrary is established, that the
person caused or permitted the name, brand or mark to be
applied to the goods.
(3) If goods are imported into Australia on behalf of a person, the
person is taken, for the purposes of paragraph (1)(e), to have
imported the goods into Australia.
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8 Goods affixed to land or premises
For the purposes of this Schedule, goods are taken to be supplied to
a consumer even if they are affixed to land or premises at the time
of the supply.
9 Meaning of safety defect in relation to goods
(1) For the purposes of this Schedule, goods have a safety defect if
their safety is not such as persons generally are entitled to expect.
(2) In determining the extent of the safety of goods, regard is to be
given to all relevant circumstances, including:
(a) the manner in which, and the purposes for which, they have
been marketed; and
(b) their packaging; and
(c) the use of any mark in relation to them; and
(d) any instructions for, or warnings with respect to, doing, or
refraining from doing, anything with or in relation to them;
and
(e) what might reasonably be expected to be done with or in
relation to them; and
(f) the time when they were supplied by their manufacturer.
(3) An inference that goods have a safety defect is not to be made only
because of the fact that, after they were supplied by their
manufacturer, safer goods of the same kind were supplied.
(4) An inference that goods have a safety defect is not to be made only
because:
(a) there was compliance with a Commonwealth mandatory
standard for them; and
(b) that standard was not the safest possible standard having
regard to the latest state of scientific or technical knowledge
when they were supplied by their manufacturer.
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Subdivision D Exceptions
Section 10
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10 Asserting a right to payment
(1) A person is taken to assert a right to payment from another person
if the person:
(a) makes a demand for the payment or asserts a present or
prospective right to the payment; or
(b) threatens to bring any legal proceedings with a view to
obtaining the payment; or
(c) places or causes to be placed the name of the other person on
a list of defaulters or debtors, or threatens to do so, with a
view to obtaining the payment; or
(d) invokes or causes to be invoked any other collection
procedure, or threatens to do so, with a view to obtaining the
payment; or
(e) sends any invoice or other document that:
(i) states the amount of the payment; or
(ii) sets out the price of unsolicited goods or unsolicited
services; or
(iii) sets out the charge for placing, in a publication, an entry
or advertisement;
and does not contain a statement, to the effect that the
document is not an assertion of a right to a payment, that
complies with any requirements prescribed by the
regulations.
(2) For the purposes of this section, an invoice or other document
purporting to have been sent by or on behalf of a person is taken to
have been sent by that person unless the contrary is established.
11 References to acquisition, supply and re-supply
In this Schedule:
(a) a reference to the acquisition of goods includes a reference to
the acquisition of property in, or rights in relation to, goods
pursuant to a supply of the goods; and
(b) a reference to the supply or acquisition of goods or services
includes a reference to agreeing to supply or acquire goods or
services; and
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(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; and
(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; and
(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; and
(f) a reference to the re-supply of services (the original services)
acquired from a person (the original supplier) includes a
reference to:
(i) a supply of the original services to another person in an
altered form or condition; and
(ii) a supply to another person of other services that are
substantially similar to the original services, and could
not have been supplied if the original services had not
been acquired by the person who acquired them from
the original supplier.
12 Application of Schedule in relation to leases and licences of land
and buildings
In this Schedule:
(a) a reference to a contract includes a reference to a lease of, or
a licence in respect of, land or a building or part of a building
(despite the express references in this Schedule to such leases
or licences); and
(b) a reference to making or entering into a contract, in relation
to such a lease or licence, is 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, includes a reference to any person bound by, or
entitled to the benefit of, any provision contained in the lease
or licence.
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Subdivision D Exceptions
Section 13
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13 Loss or damage to include injury
In this Schedule:
(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.
14 Meaning of continuing credit contract
(1) If:
(a) a person (the creditor), in the course of a business carried on
by the creditor, agrees with a consumer to provide credit to
the consumer in relation to:
(i) payment for goods or services; or
(ii) cash supplied by the creditor to the consumer from time
to time; or
(iii) payment by the creditor to another person in relation to
goods or services, or cash, supplied by that other person
to the consumer from time to time; and
(b) the creditor:
(i) has an agreement, arrangement or understanding (the
credit agreement) with the consumer in relation to the
provision of the credit; or
(ii) is engaged in a course of dealing (the credit dealing)
with the consumer in relation to the provision of the
credit; and
(c) the amounts owing to the creditor from time to time under
the credit agreement or credit dealing are, or are to be,
calculated on the basis that:
(i) all amounts owing; and
(ii) all payments made;
by the consumer under, or in respect of, the credit agreement
or credit dealing are entered in one or more accounts kept for
the purpose of that agreement or dealing;
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the credit agreement or credit dealing is taken, for the purposes of
this Schedule, to be a continuing credit contract.
(2) If subsection (1)(a)(iii) applies, the creditor is taken, for the
purposes of this section, to have provided credit to the consumer in
relation to any goods or services, or cash, supplied by another
person to the consumer to the extent of any payments made, or to
be made, by the creditor to that other person.
15 Contraventions of this Schedule
Conduct is not taken, for the purposes of this Schedule, to
contravene a provision of this Schedule merely because of the
application of:
(a) section 23(1); or
(b) a provision of Division 1 of Part 3-2 (other than
section 66(2)); or
(c) a provision of Part 3-5.
16 Severability
(1) If the making of a contract after the commencement of this section
contravenes this Schedule because the contract includes a
particular provision, nothing in this Schedule affects the validity or
enforceability of the contract otherwise than in relation to that
provision, so far as that provision is severable.
(2) This section has effect subject to any order made under Division 4
of Part 5-2.
17 References to provisions in this Schedule
In this Schedule, a reference to a provision is a reference to a
provision of this Schedule, unless the contrary intention appears.
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Chapter 2 General protections
Part 2-1 Misleading or deceptive conduct
Section 18
112 Competition and Consumer Act 2010
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Chapter 2—General protections
Part 2-1—Misleading or deceptive conduct
18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is
misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in Part 3-1 (which is about unfair practices) limits by
implication subsection (1).
Note: For rules relating to representations as to the country of origin of
goods, see Part 5-3.
19 Application of this Part to information providers
(1) This Part does not apply to a publication of matter by an
information provider if:
(a) in any case—the information provider made the publication
in the course of carrying on a business of providing
information; or
(b) if the information provider is the Australian Broadcasting
Corporation, the Special Broadcasting Service Corporation or
the holder of a licence granted under the Broadcasting
Services Act 1992—the publication was by way of a radio or
television broadcast by the information provider.
(2) Subsection (1) does not apply to a publication of an advertisement.
(3) Subsection (1) does not apply to a publication of matter in
connection with the supply or possible supply of, or the promotion
by any means of the supply or use of, goods or services (the
publicised goods or services), if:
(a) the publicised goods or services were goods or services of a
kind supplied by the information provider or, if the
information provider is a body corporate, by a body corporate
that is related to the information provider; or
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(b) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a person who
supplies goods or services of the same kind as the publicised
goods or services; or
(c) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a body
corporate that is related to a body corporate that supplies
goods or services of the same kind as the publicised goods or
services.
(4) Subsection (1) does not apply to a publication of matter in
connection with the sale or grant, or possible sale or grant, of, or
the promotion by any means of the sale or grant of, interests in land
(the publicised interests in land), if:
(a) the publicised interests in land were interests of a kind sold
or granted by the information provider or, if the information
provider is a body corporate, by a body corporate that is
related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a person who
sells or grants interests of the same kind as the publicised
interests in land; or
(c) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a body
corporate that is related to a body corporate that sells or
grants interests of the same kind as the publicised interests in
land.
(5) An information provider is a person who carries on a business of
providing information.
(6) Without limiting subsection (5), each of the following is an
information provider:
(a) the holder of a licence granted under the Broadcasting
Services Act 1992;
(b) a person who is the provider of a broadcasting service under
a class licence under that Act;
(d) the Australian Broadcasting Corporation;
(e) the Special Broadcasting Service Corporation.
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Chapter 2 General protections
Part 2-2 Unconscionable conduct
Section 20
114 Competition and Consumer Act 2010
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Part 2-2—Unconscionable conduct
20 Unconscionable conduct within the meaning of the unwritten law
(1) A person must not, in trade or commerce, engage in conduct that is
unconscionable, within the meaning of the unwritten law from time
to time.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) This section does not apply to conduct that is prohibited by
section 21.
21 Unconscionable conduct in connection with goods or services
(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to a person
(other than a listed public company); or
(b) the acquisition or possible acquisition of goods or services
from a person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
(2) This section does not apply to conduct that is engaged in only
because the person engaging in the conduct:
(a) institutes legal proceedings in relation to the supply or
possible supply, or in relation to the acquisition or possible
acquisition; or
(b) refers to arbitration a dispute or claim in relation to the
supply or possible supply, or in relation to the acquisition or
possible acquisition.
(3) For the purpose of determining whether a person has contravened
subsection (1):
(a) the court must not have regard to any circumstances that
were not reasonably foreseeable at the time of the alleged
contravention; and
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(b) the court may have regard to conduct engaged in, or
circumstances existing, before the commencement of this
section.
(4) It is the intention of the Parliament that:
(a) this section is not limited by the unwritten law relating to
unconscionable conduct; and
(b) this section is capable of applying to a system of conduct or
pattern of behaviour, whether or not a particular individual is
identified as having been disadvantaged by the conduct or
behaviour; and
(c) in considering whether conduct to which a contract relates is
unconscionable, a court’s consideration of the contract may
include consideration of:
(i) the terms of the contract; and
(ii) the manner in which and the extent to which the
contract is carried out;
and is not limited to consideration of the circumstances
relating to formation of the contract.
22 Matters the court may have regard to for the purposes of
section 21
(1) Without limiting the matters to which the court may have regard
for the purpose of determining whether a person (the supplier) has
contravened section 21 in connection with the supply or possible
supply of goods or services to a person (the customer), the court
may have regard to:
(a) the relative strengths of the bargaining positions of the
supplier and the customer; and
(b) whether, as a result of conduct engaged in by the supplier,
the customer was required to comply with conditions that
were not reasonably necessary for the protection of the
legitimate interests of the supplier; and
(c) whether the customer was able to understand any documents
relating to the supply or possible supply of the goods or
services; and
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(d) whether any undue influence or pressure was exerted on, or
any unfair tactics were used against, the customer or a person
acting on behalf of the customer by the supplier or a person
acting on behalf of the supplier in relation to the supply or
possible supply of the goods or services; and
(e) the amount for which, and the circumstances under which,
the customer could have acquired identical or equivalent
goods or services from a person other than the supplier; and
(f) the extent to which the supplier’s conduct towards the
customer was consistent with the supplier’s conduct in
similar transactions between the supplier and other like
customers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the customer
acted on the reasonable belief that the supplier would comply
with that code; and
(i) the extent to which the supplier unreasonably failed to
disclose to the customer:
(i) any intended conduct of the supplier that might affect
the interests of the customer; and
(ii) any risks to the customer arising from the supplier’s
intended conduct (being risks that the supplier should
have foreseen would not be apparent to the customer);
and
(j) if there is a contract between the supplier and the customer
for the supply of the goods or services:
(i) the extent to which the supplier was willing to negotiate
the terms and conditions of the contract with the
customer; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the supplier and the customer in
complying with the terms and conditions of the contract;
and
(iv) any conduct that the supplier or the customer engaged
in, in connection with their commercial relationship,
after they entered into the contract; and
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(k) without limiting paragraph (j), whether the supplier has a
contractual right to vary unilaterally a term or condition of a
contract between the supplier and the customer for the supply
of the goods or services; and
(l) the extent to which the supplier and the customer acted in
good faith.
(2) Without limiting the matters to which the court may have regard
for the purpose of determining whether a person (the acquirer) has
contravened section 21 in connection with the acquisition or
possible acquisition of goods or services from a person (the
supplier), the court may have regard to:
(a) the relative strengths of the bargaining positions of the
acquirer and the supplier; and
(b) whether, as a result of conduct engaged in by the acquirer,
the supplier was required to comply with conditions that
were not reasonably necessary for the protection of the
legitimate interests of the acquirer; and
(c) whether the supplier was able to understand any documents
relating to the acquisition or possible acquisition of the goods
or services; and
(d) whether any undue influence or pressure was exerted on, or
any unfair tactics were used against, the supplier or a person
acting on behalf of the supplier by the acquirer or a person
acting on behalf of the acquirer in relation to the acquisition
or possible acquisition of the goods or services; and
(e) the amount for which, and the circumstances in which, the
supplier could have supplied identical or equivalent goods or
services to a person other than the acquirer; and
(f) the extent to which the acquirer’s conduct towards the
supplier was consistent with the acquirer’s conduct in similar
transactions between the acquirer and other like suppliers;
and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the supplier
acted on the reasonable belief that the acquirer would comply
with that code; and
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(i) the extent to which the acquirer unreasonably failed to
disclose to the supplier:
(i) any intended conduct of the acquirer that might affect
the interests of the supplier; and
(ii) any risks to the supplier arising from the acquirer’s
intended conduct (being risks that the acquirer should
have foreseen would not be apparent to the supplier);
and
(j) if there is a contract between the acquirer and the supplier for
the acquisition of the goods or services:
(i) the extent to which the acquirer was willing to negotiate
the terms and conditions of the contract with the
supplier; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the acquirer and the supplier in
complying with the terms and conditions of the contract;
and
(iv) any conduct that the acquirer or the supplier engaged in,
in connection with their commercial relationship, after
they entered into the contract; and
(k) without limiting paragraph (j), whether the acquirer has a
contractual right to vary unilaterally a term or condition of a
contract between the acquirer and the supplier for the
acquisition of the goods or services; and
(l) the extent to which the acquirer and the supplier acted in
good faith.
22A Presumptions relating to whether representations are
misleading
Section 4 applies for the purposes of sections 21 and 22 in the
same way as it applies for the purposes of Division 1 of Part 3-1.
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Part 2-3—Unfair contract terms
23 Unfair terms of consumer contracts and small business contracts
(1) A term of a consumer contract or small business contract is void if:
(a) the term is unfair; and
(b) the contract is a standard form contract.
(2) The contract continues to bind the parties if it is capable of
operating without the unfair term.
(3) A consumer contract is a contract for:
(a) a supply of goods or services; or
(b) a sale or grant of an interest in land;
to an individual whose acquisition of the goods, services or interest
is wholly or predominantly for personal, domestic or household use
or consumption.
(4) A contract is a small business contract if:
(a) the contract is for a supply of goods or services, or a sale or
grant of an interest in land; and
(b) at the time the contract is entered into, at least one party to
the contract is a business that employs fewer than 20 persons;
and
(c) either of the following applies:
(i) the upfront price payable under the contract does not
exceed $300,000;
(ii) the contract has a duration of more than 12 months and
the upfront price payable under the contract does not
exceed $1,000,000.
(5) In counting the persons employed by a business for the purposes of
paragraph (4)(b), a casual employee is not to be counted unless he
or she is employed by the business on a regular and systematic
basis.
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Part 2-3 Unfair contract terms
Section 24
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24 Meaning of unfair
(1) A term of a consumer contract or small business contract is unfair
if:
(a) it would cause a significant imbalance in the parties’ rights
and obligations arising under the contract; and
(b) it is not reasonably necessary in order to protect the
legitimate interests of the party who would be advantaged by
the term; and
(c) it would cause detriment (whether financial or otherwise) to a
party if it were to be applied or relied on.
(2) In determining whether a term of a contract is unfair under
subsection (1), a court may take into account such matters as it
thinks relevant, but must take into account the following:
(a) the extent to which the term is transparent;
(b) the contract as a whole.
(3) A term is transparent if the term is:
(a) expressed in reasonably plain language; and
(b) legible; and
(c) presented clearly; and
(d) readily available to any party affected by the term.
(4) For the purposes of subsection (1)(b), a term of a contract is
presumed not to be reasonably necessary in order to protect the
legitimate interests of the party who would be advantaged by the
term, unless that party proves otherwise.
25 Examples of unfair terms
Without limiting section 24, the following are examples of the
kinds of terms of a consumer contract or small business contract
that may be unfair:
(a) a term that permits, or has the effect of permitting, one party
(but not another party) to avoid or limit performance of the
contract;
(b) a term that permits, or has the effect of permitting, one party
(but not another party) to terminate the contract;
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(c) a term that penalises, or has the effect of penalising, one
party (but not another party) for a breach or termination of
the contract;
(d) a term that permits, or has the effect of permitting, one party
(but not another party) to vary the terms of the contract;
(e) a term that permits, or has the effect of permitting, one party
(but not another party) to renew or not renew the contract;
(f) a term that permits, or has the effect of permitting, one party
to vary the upfront price payable under the contract without
the right of another party to terminate the contract;
(g) a term that permits, or has the effect of permitting, one party
unilaterally to vary the characteristics of the goods or
services to be supplied, or the interest in land to be sold or
granted, under the contract;
(h) a term that permits, or has the effect of permitting, one party
unilaterally to determine whether the contract has been
breached or to interpret its meaning;
(i) a term that limits, or has the effect of limiting, one party’s
vicarious liability for its agents;
(j) a term that permits, or has the effect of permitting, one party
to assign the contract to the detriment of another party
without that other party’s consent;
(k) a term that limits, or has the effect of limiting, one party’s
right to sue another party;
(l) a term that limits, or has the effect of limiting, the evidence
one party can adduce in proceedings relating to the contract;
(m) a term that imposes, or has the effect of imposing, the
evidential burden on one party in proceedings relating to the
contract;
(n) a term of a kind, or a term that has an effect of a kind,
prescribed by the regulations.
26 Terms that define main subject matter of consumer contracts or
small business contracts etc. are unaffected
(1) Section 23 does not apply to a term of a consumer contract or small
business contract to the extent, but only to the extent, that the term:
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(a) defines the main subject matter of the contract; or
(b) sets the upfront price payable under the contract; or
(c) is a term required, or expressly permitted, by a law of the
Commonwealth, a State or a Territory.
(2) The upfront price payable under a contract is the consideration
that:
(a) is provided, or is to be provided, for the supply, sale or grant
under the contract; and
(b) is disclosed at or before the time the contract is entered into;
but does not include any other consideration that is contingent on
the occurrence or non-occurrence of a particular event.
27 Standard form contracts
(1) If a party to a proceeding alleges that a contract is a standard form
contract, it is presumed to be a standard form contract unless
another party to the proceeding proves otherwise.
(2) In determining whether a contract is a standard form contract, a
court may take into account such matters as it thinks relevant, but
must take into account the following:
(a) whether one of the parties has all or most of the bargaining
power relating to the transaction;
(b) whether the contract was prepared by one party before any
discussion relating to the transaction occurred between the
parties;
(c) whether another party was, in effect, required either to accept
or reject the terms of the contract (other than the terms
referred to in section 26(1)) in the form in which they were
presented;
(d) whether another party was given an effective opportunity to
negotiate the terms of the contract that were not the terms
referred to in section 26(1);
(e) whether the terms of the contract (other than the terms
referred to in section 26(1)) take into account the specific
characteristics of another party or the particular transaction;
(f) any other matter prescribed by the regulations.
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28 Contracts to which this Part does not apply
(1) This Part does not apply to:
(a) a contract of marine salvage or towage; or
(b) a charterparty of a ship; or
(c) a contract for the carriage of goods by ship.
(2) Without limiting subsection (1)(c), the reference in that subsection
to a contract for the carriage of goods by ship includes a reference
to any contract covered by a sea carriage document within the
meaning of the amended Hague Rules referred to in section 7(1) of
the Carriage of Goods by Sea Act 1991.
(3) This Part does not apply to a contract that is the constitution
(within the meaning of section 9 of the Corporations Act 2001) of
a company, managed investment scheme or other kind of body.
(4) This Part does not apply to a small business contract to which a
prescribed law of the Commonwealth, a State or a Territory
applies.
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Chapter 3 Specific protections
Part 3-1 Unfair practices
Division 1 False or misleading representations etc.
Section 29
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Chapter 3—Specific protections
Part 3-1—Unfair practices
Division 1—False or misleading representations etc.
29 False or misleading representations about goods or services
(1) A person must not, in trade or commerce, in connection with the
supply or possible supply of goods or services or in connection
with the promotion by any means of the supply or use of goods or
services:
(a) make a false or misleading representation that goods are of a
particular standard, quality, value, grade, composition, style
or model or have had a particular history or particular
previous use; or
(b) make a false or misleading representation that services are of
a particular standard, quality, value or grade; or
(c) make a false or misleading representation that goods are new;
or
(d) make a false or misleading representation that a particular
person has agreed to acquire goods or services; or
(e) make a false or misleading representation that purports to be
a testimonial by any person relating to goods or services; or
(f) make a false or misleading representation concerning:
(i) a testimonial by any person; or
(ii) a representation that purports to be such a testimonial;
relating to goods or services; or
(g) make a false or misleading representation that goods or
services have sponsorship, approval, performance
characteristics, accessories, uses or benefits; or
(h) make a false or misleading representation that the person
making the representation has a sponsorship, approval or
affiliation; or
(i) make a false or misleading representation with respect to the
price of goods or services; or
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(j) make a false or misleading representation concerning the
availability of facilities for the repair of goods or of spare
parts for goods; or
(k) make a false or misleading representation concerning the
place of origin of goods; or
(l) make a false or misleading representation concerning the
need for any goods or services; or
(m) make a false or misleading representation concerning the
existence, exclusion or effect of any condition, warranty,
guarantee, right or remedy (including a guarantee under
Division 1 of Part 3-2); or
(n) make a false or misleading representation concerning a
requirement to pay for a contractual right that:
(i) is wholly or partly equivalent to any condition,
warranty, guarantee, right or remedy (including a
guarantee under Division 1 of Part 3-2); and
(ii) a person has under a law of the Commonwealth, a State
or a Territory (other than an unwritten law).
Note 1: A pecuniary penalty may be imposed for a contravention of this
subsection.
Note 2: For rules relating to representations as to the country of origin of
goods, see Part 5-3.
(2) For the purposes of applying subsection (1) in relation to a
proceeding concerning a representation of a kind referred to in
subsection (1)(e) or (f), the representation is taken to be misleading
unless evidence is adduced to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the
contrary is adduced, the representation is not misleading; or
(b) have the effect of placing on any person an onus of proving
that the representation is not misleading.
30 False or misleading representations about sale etc. of land
(1) A person must not, in trade or commerce, in connection with the
sale or grant, or the possible sale or grant, of an interest in land or
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in connection with the promotion by any means of the sale or grant
of an interest in land:
(a) make a false or misleading representation that the person
making the representation has a sponsorship, approval or
affiliation; or
(b) make a false or misleading representation concerning the
nature of the interest in the land; or
(c) make a false or misleading representation concerning the
price payable for the land; or
(d) make a false or misleading representation concerning the
location of the land; or
(e) make a false or misleading representation concerning the
characteristics of the land; or
(f) make a false or misleading representation concerning the use
to which the land is capable of being put or may lawfully be
put; or
(g) make a false or misleading representation concerning the
existence or availability of facilities associated with the land.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) This section does not affect the application of any other provision
of Part 2-1 or this Part in relation to the supply or acquisition, or
the possible supply or acquisition, of interests in land.
31 Misleading conduct relating to employment
A person must not, in relation to employment that is to be, or may
be, offered by the person or by another person, engage in conduct
that is liable to mislead persons seeking the employment as to:
(a) the availability, nature, terms or conditions of the
employment; or
(b) any other matter relating to the employment.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
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32 Offering rebates, gifts, prizes etc.
(1) A person must not, in trade or commerce, offer any rebate, gift,
prize or other free item with the intention of not providing it, or of
not providing it as offered, 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; or
(c) the sale or grant, or the possible sale or grant, of an interest in
land; or
(d) the promotion by any means of the sale or grant of an interest
in land.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) If a person offers any rebate, gift, prize or other free item 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; or
(c) the sale or grant, or the possible sale or grant, of an interest in
land; or
(d) the promotion by any means of the sale or grant of an interest
in land;
the person must, within the time specified in the offer or (if no such
time is specified) within a reasonable time after making the offer,
provide the rebate, gift, prize or other free item in accordance with
the offer.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) Subsection (2) does not apply if:
(a) the person’s failure to provide the rebate, gift, prize or other
free item in accordance with the offer was due to the act or
omission of another person, or to some other cause beyond
the person’s control; and
(b) the person took reasonable precautions and exercised due
diligence to avoid the failure.
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(4) Subsection (2) does not apply to an offer that the person makes to
another person if:
(a) the person offers to the other person a different rebate, gift,
prize or other free item as a replacement; and
(b) the other person agrees to receive the different rebate, gift,
prize or other free item.
(5) This section does not affect the application of any other provision
of Part 2-1 or this Part in relation to the supply or acquisition, or
the possible supply or acquisition, of interests in land.
33 Misleading conduct as to the nature etc. of goods
A person must not, in trade or commerce, engage in conduct that is
liable to mislead the public as to the nature, the manufacturing
process, the characteristics, the suitability for their purpose or the
quantity of any goods.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
34 Misleading conduct as to the nature etc. of services
A person must not, in trade or commerce, engage in conduct that is
liable to mislead the public as to the nature, the characteristics, the
suitability for their purpose or the quantity of any services.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
35 Bait advertising
(1) A person must not, in trade or commerce, advertise goods or
services for supply at a specified price if:
(a) there are reasonable grounds for believing that the person
will not be able to offer for supply those goods or services at
that price for a period that is, and in quantities that are,
reasonable, having regard to:
(i) the nature of the market in which the person carries on
business; and
(ii) the nature of the advertisement; and
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(b) the person is aware or ought reasonably to be aware of those
grounds.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person who, in trade or commerce, advertises goods or services
for supply at a specified price must offer such goods or services for
supply at that price for a period that is, and in quantities that are,
reasonable having regard to:
(a) the nature of the market in which the person carries on
business; and
(b) the nature of the advertisement.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
36 Wrongly accepting payment
(1) A person must not, in trade or commerce, accept payment or other
consideration for goods or services if, at the time of the acceptance,
the person intends not to supply the goods or services.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not, in trade or commerce, accept payment or other
consideration for goods or services if, at the time of the acceptance,
the person intends to supply goods or services materially different
from the goods or services in respect of which the payment or other
consideration is accepted.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) A person must not, in trade or commerce, accept payment or other
consideration for goods or services if, at the time of the acceptance:
(a) there are reasonable grounds for believing that the person
will not be able to supply the goods or services:
(i) within the period specified by or on behalf of the person
at or before the time the payment or other consideration
was accepted; or
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(ii) if no period is specified at or before that time—within a
reasonable time; and
(b) the person is aware or ought reasonably to be aware of those
grounds.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(4) A person who, in trade or commerce, accepts payment or other
consideration for goods or services must supply all the goods or
services:
(a) within the period specified by or on behalf of the person at or
before the time the payment or other consideration was
accepted; or
(b) if no period is specified at or before that time—within a
reasonable time.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(5) Subsection (4) does not apply if:
(a) the person’s failure to supply all the goods or services within
the period, or within a reasonable time, was due to the act or
omission of another person, or to some other cause beyond
the person’s control; and
(b) the person took reasonable precautions and exercised due
diligence to avoid the failure.
(6) Subsection (4) does not apply if:
(a) the person offers to supply different goods or services as a
replacement to the person (the customer) to whom the
original supply was to be made; and
(b) the customer agrees to receive the different goods or services.
(7) Subsections (1), (2), (3) and (4) apply whether or not the payment
or other consideration that the person accepted represents the
whole or a part of the payment or other consideration for the
supply of the goods or services.
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37 Misleading representations about certain business activities
(1) A person must not, in trade or commerce, make a representation
that:
(a) is false or misleading in a material particular; and
(b) concerns the profitability, risk or any other material aspect of
any business activity that the person has represented as one
that can be, or can be to a considerable extent, carried on at
or from a person’s place of residence.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not, in trade or commerce, make a representation
that:
(a) is false or misleading in a material particular; and
(b) concerns the profitability, risk or any other material aspect of
any business activity:
(i) that the person invites (whether by advertisement or
otherwise) other persons to engage or participate in, or
to offer or apply to engage or participate in; and
(ii) that requires the performance of work by other persons,
or the investment of money by other persons and the
performance by them of work associated with the
investment.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
38 Application of provisions of this Division to information
providers
(1) Sections 29, 30, 33, 34 and 37 do not apply to a publication of
matter by an information provider if:
(a) in any case—the information provider made the publication
in the course of carrying on a business of providing
information; or
(b) if the information provider is the Australian Broadcasting
Corporation, the Special Broadcasting Service Corporation or
the holder of a licence granted under the Broadcasting
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Services Act 1992—the publication was by way of a radio or
television broadcast by the information provider.
(2) Subsection (1) does not apply to a publication of an advertisement.
(3) Subsection (1) does not apply to a publication of matter in
connection with the supply or possible supply of, or the promotion
by any means of the supply or use of, goods or services (the
publicised goods or services), if:
(a) the publicised goods or services were goods or services of a
kind supplied by the information provider or, if the
information provider is a body corporate, by a body corporate
that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a person who
supplies goods or services of the same kind as the publicised
goods or services; or
(c) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a body
corporate that is related to a body corporate that supplies
goods or services of the same kind as the publicised goods or
services.
(4) Subsection (1) does not apply to a publication of matter in
connection with the sale or grant, or possible sale or grant, of, or
the promotion by any means of the sale or grant of, interests in land
(the publicised interests in land), if:
(a) the publicised interests in land were interests of a kind sold
or granted by the information provider or, if the information
provider is a body corporate, by a body corporate that is
related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a person who
sells or grants interests of the same kind as the publicised
interests in land; or
(c) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a body
corporate that is related to a body corporate that sells or
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grants interests of the same kind as the publicised interests in
land.
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Section 39
134 Competition and Consumer Act 2010
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Division 2—Unsolicited supplies
39 Unsolicited cards etc.
(1) A person must not send a credit card or a debit card, or an article
that may be used as a credit card and a debit card, to another
person except:
(a) pursuant to a written request by the person who will be under
a liability to the person who issued the card or article in
respect of the use of the card or article; or
(b) in renewal or replacement of, or in substitution for:
(i) a card or article of the same kind previously sent to the
other person pursuant to a written request by the person
who was under a liability, to the person who issued the
card previously so sent, in respect of the use of that
card; or
(ii) a card or article of the same kind previously sent to the
other person and used for a purpose for which it was
intended to be used.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) Subsection (1) does not apply unless the card or article is sent by or
on behalf of the person who issued it.
(3) A person must not take any action that enables another person who
has a credit card to use the card as a debit card, except in
accordance with the other person’s written request.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(4) A person must not take any action that enables another person who
has a debit card to use the card as a credit card, except in
accordance with the other person’s written request.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(5) A credit card is an article that is one or more of the following:
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(a) an article of a kind commonly known as a credit card;
(b) a similar article intended for use in obtaining cash, goods or
services on credit;
(c) an article of a kind that persons carrying on business
commonly issue to their customers, or prospective customers,
for use in obtaining goods or services from those persons on
credit;
and includes an article that may be used as an article referred to in
paragraph (a), (b) or (c).
(6) A debit card is:
(a) an article intended for use by a person in obtaining access to
an account that is held by the person for the purpose of
withdrawing or depositing cash or obtaining goods or
services; or
(b) an article that may be used as an article referred to in
paragraph (a).
40 Assertion of right to payment for unsolicited goods or services
(1) A person must not, in trade or commerce, assert a right to payment
from another person for unsolicited goods unless the person has
reasonable cause to believe that there is a right to the payment.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not, in trade or commerce, assert a right to payment
from another person for unsolicited services unless the person has
reasonable cause to believe that there is a right to the payment.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) A person must not, in trade or commerce, send to another person
an invoice or other document that:
(a) states the amount of a payment, or sets out the charge, for
supplying unsolicited goods or unsolicited services; and
(b) does not contain a warning statement that complies with the
requirements set out in the regulations;
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unless the person has reasonable cause to believe that there is a
right to the payment or charge.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(4) In a proceeding against a person in relation to a contravention of
this section, the person bears the onus of proving that the person
had reasonable cause to believe that there was a right to the
payment or charge.
41 Liability etc. of recipient for unsolicited goods
(1) If a person, in trade or commerce, supplies unsolicited goods to
another person, the other person:
(a) is not liable to make any payment for the goods; and
(b) is not liable for loss of or damage to the goods, other than
loss or damage resulting from the other person doing a wilful
and unlawful act in relation to the goods during the recovery
period.
(2) If a person sends, in trade or commerce, unsolicited goods to
another person:
(a) neither the sender nor any person claiming under the sender
is entitled, after the end of the recovery period, to take action
for the recovery of the goods from the other person; and
(b) at the end of the recovery period, the goods become, by force
of this section, the property of the other person freed and
discharged from all liens and charges of any description.
(3) However, subsection (2) does not apply to or in relation to
unsolicited goods sent to a person if:
(a) the person has, at any time during the recovery period,
unreasonably refused to permit the sender or the owner of the
goods to take possession of the goods; or
(b) the sender or the owner of the goods has within the recovery
period taken possession of the goods; or
(c) the goods were received by the person in circumstances in
which the person knew, or might reasonably be expected to
have known, that the goods were not intended for him or her.
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(4) The recovery period is whichever of the following periods ends
first:
(a) the period of 3 months starting on the day after the day on
which the person received the goods;
(b) if the person who receives the unsolicited goods gives notice
with respect to the goods to the supplier or sender in
accordance with subsection (5)—the period of one month
starting on the day after the day on which the notice is given.
(5) A notice under subsection (4)(b):
(a) must be in writing; and
(b) must state the name and address of the person who received
the goods; and
(c) must state the address at which possession may be taken of
the goods, if it is not the address of the person; and
(d) must contain a statement to the effect that the goods are
unsolicited goods.
42 Liability of recipient for unsolicited services
If a person, in trade or commerce, supplies unsolicited services to
another person, the other person:
(a) is not liable to make any payment for the services; and
(b) is not liable for loss or damage as a result of the supply of the
services.
43 Assertion of right to payment for unauthorised entries or
advertisements
(1) A person must not assert a right to payment from another person of
a charge for placing, in a publication, an entry or advertisement
relating to:
(a) the other person; or
(b) the other person’s profession, business, trade or occupation;
unless the person knows, or has reasonable cause to believe, that
the other person authorised the placing of the entry or
advertisement.
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Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not send to another person an invoice or other
document that:
(a) states the amount of a payment, or sets out the charge, for
placing, in a publication, an entry or advertisement relating
to:
(i) the other person; or
(ii) the other person’s profession, business, trade or
occupation; and
(b) does not contain a warning statement that complies with the
requirements set out in the regulations;
unless the person knows, or has reasonable cause to believe, that
the other person authorised the placing of the entry or
advertisement.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) Subsections (1) and (2) do not apply to an entry or advertisement
that is placed in a publication published by a person who is:
(a) the publisher of a publication that has an audited circulation
of 10,000 copies or more per week, as confirmed by the most
recent audit of the publication by a body specified in the
regulations; or
(b) a body corporate related to such a publisher; or
(c) the Commonwealth, a State or a Territory, or an authority of
the Commonwealth, a State or a Territory; or
(d) a person specified in the regulations.
(4) A person:
(a) is not liable to make any payment to another person; and
(b) is entitled to recover by action in a court against another
person any payment made by the person to the other person;
in full or part satisfaction of a charge for placing, in a publication,
an entry or advertisement, unless the person authorised the placing
of the entry or advertisement.
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(5) A person is not taken for the purposes of this section to have
authorised the placing of the entry or advertisement, unless:
(a) a document authorising the placing of the entry or
advertisement has been signed by the person or by another
person authorised by him or her; and
(b) a copy of the document has been given to the person before
the right to payment of a charge for the placing of the entry
or advertisement is asserted; and
(c) the document specifies:
(i) the name and address of the person publishing the entry
or advertisement; and
(ii) particulars of the entry or advertisement; and
(iii) the amount of the charge for the placing of the entry or
advertisement, or the basis on which the charge is, or is
to be, calculated.
(6) In a proceeding against a person in relation to a contravention of
this section, the person bears the onus of proving that the person
knew or had reasonable cause to believe that the person against
whom a right to payment was asserted had authorised the placing
of the entry or advertisement.
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Section 44
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Division 3—Pyramid schemes
44 Participation in pyramid schemes
(1) A person must not participate in a pyramid scheme.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not induce, or attempt to induce, another person to
participate in a pyramid scheme.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) To participate in a pyramid scheme is:
(a) to establish or promote the scheme (whether alone or
together with another person); or
(b) to take part in the scheme in any capacity (whether or not as
an employee or agent of a person who establishes or
promotes the scheme, or who otherwise takes part in the
scheme).
45 Meaning of pyramid scheme
(1) A pyramid scheme is a scheme with both of the following
characteristics:
(a) to take part in the scheme, some or all new participants must
provide, to another participant or participants in the scheme,
either of the following (a participation payment):
(i) a financial or non-financial benefit to, or for the benefit
of, the other participant or participants;
(ii) a financial or non-financial benefit partly to, or for the
benefit of, the other participant or participants and
partly to, or for the benefit of, other persons;
(b) the participation payments are entirely or substantially
induced by the prospect held out to new participants that they
will be entitled, in relation to the introduction to the scheme
of further new participants, to be provided with either of the
following (a recruitment payment):
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(i) a financial or non-financial benefit to, or for the benefit
of, new participants;
(ii) a financial or non-financial benefit partly to, or for the
benefit of, new participants and partly to, or for the
benefit of, other persons.
(2) A new participant includes a person who has applied, or been
invited, to participate in the scheme.
(3) A scheme may be a pyramid scheme:
(a) no matter who holds out to new participants the prospect of
entitlement to recruitment payments; and
(b) no matter who is to make recruitment payments to new
participants; and
(c) no matter who is to make introductions to the scheme of
further new participants.
(4) A scheme may be a pyramid scheme even if it has any or all of the
following characteristics:
(a) the participation payments may (or must) be made after the
new participants begin to take part in the scheme;
(b) making a participation payment is not the only requirement
for taking part in the scheme;
(c) the holding out of the prospect of entitlement to recruitment
payments does not give any new participant a legally
enforceable right;
(d) arrangements for the scheme are not recorded in writing
(whether entirely or partly);
(e) the scheme involves the marketing of goods or services (or
both).
46 Marketing schemes as pyramid schemes
(1) To decide, for the purpose of this Schedule, whether a scheme that
involves the marketing of goods or services (or both) is a pyramid
scheme, a court must have regard to the following matters in
working out whether participation payments under the scheme are
entirely or substantially induced by the prospect held out to new
participants of entitlement to recruitment payments:
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(a) whether the participation payments bear a reasonable
relationship to the value of the goods or services that
participants are entitled to be supplied with under the scheme
(as assessed, if appropriate, by reference to the price of
comparable goods or services available elsewhere);
(b) the emphasis given in the promotion of the scheme to the
entitlement of participants to the supply of goods or services
by comparison with the emphasis given to their entitlement
to recruitment payments.
(2) Subsection (1) does not limit the matters to which the court may
have regard in working out whether participation payments are
entirely or substantially induced by the prospect held out to new
participants of entitlement to recruitment payments.
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Section 47
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Division 4—Pricing
47 Multiple pricing
(1) A person must not, in trade or commerce, supply goods if:
(a) the goods have more than one displayed price; and
(b) the supply takes place for a price that is not the lower, or
lowest, of the displayed prices.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A displayed price for goods is a price for the goods, or any
representation that may reasonably be inferred to be a
representation of a price for the goods:
(a) that is annexed or affixed to, or is written, printed, stamped
or located on, or otherwise applied to, the goods or any
covering, label, reel or thing used in connection with the
goods; or
(b) that is used in connection with the goods or anything on
which the goods are mounted for display or exposed for
supply; or
(c) that is determined on the basis of anything encoded on or in
relation to the goods; or
(d) that is published in relation to the goods in a catalogue
available to the public if:
(i) a time is specified in the catalogue as the time after
which the goods will not be sold at that price and that
time has not passed; or
(ii) in any other case—the catalogue may reasonably be
regarded as not out-of-date; or
(e) that is in any other way represented in a manner from which
it may reasonably be inferred that the price or representation
is applicable to the goods;
and includes such a price or representation that is partly obscured
by another such price or representation that is written, stamped or
located partly over that price or representation.
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(3) If:
(a) a price or representation is included in a catalogue; and
(b) the catalogue is expressed to apply only to goods supplied at
a specified location, or in a specified region;
the price or representation is taken, for the purposes of
subsection (2)(d), not to have been made in relation to supply of
the goods at a different location, or in a different region, as the case
may be.
(4) Despite subsection (2), a price or representation is not a displayed
price for goods if:
(a) the price or representation is wholly obscured by another
such price or representation that is written, stamped or
located wholly over that price or representation; or
(b) the price or representation:
(i) is expressed as a price per unit of mass, volume, length
or other unit of measure; and
(ii) is presented as an alternative means of expressing the
price for supply of the goods that is a displayed price for
the goods; or
(c) the price or representation is expressed as an amount in a
currency other than Australian currency; or
(d) the price or representation is expressed in a way that is
unlikely to be interpreted as an amount of Australian
currency.
(5) Despite subsection (2), a displayed price for goods that is a
displayed price because it has been published in a catalogue or
advertisement ceases to be a displayed price for the goods if:
(a) the displayed price is retracted; and
(b) the retraction is published in a manner that has at least a
similar circulation or audience as the catalogue or
advertisement.
48 Single price to be specified in certain circumstances
(1) A person must not, in trade or commerce, in connection with:
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(a) the supply, or possible supply, to another person of goods or
services of a kind ordinarily acquired for personal, domestic
or household use or consumption; or
(b) the promotion by any means of the supply to another person,
or of the use by another person, of goods or services of a kind
ordinarily acquired for personal, domestic or household use
or consumption;
make a representation with respect to an amount that, if paid,
would constitute a part of the consideration for the supply of the
goods or services unless the person also specifies, in a prominent
way and as a single figure, the single price for the goods or
services.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person is not required to include, in the single price for goods, a
charge that is payable in relation to sending the goods from the
supplier to the other person.
(3) However, if:
(a) the person does not include in the single price a charge that is
payable in relation to sending the goods from the supplier to
the other person; and
(b) the person knows, at the time of the representation, the
minimum amount of a charge in relation to sending the goods
from the supplier to the other person that must be paid by the
other person;
the person must not make the representation referred to in
subsection (1) unless the person also specifies that minimum
amount.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(4) Subsection (1) does not apply if the representation is made
exclusively to a body corporate.
(4A) Subsection (1) does not apply if:
(a) the representation is in a class of representations prescribed
by the regulations; and
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(b) the conditions (if any) prescribed by the regulations in
relation to representations in that class have been complied
with.
Note: If the representation is in a class prescribed for paragraph (a) of this
subsection and subsection (1) is complied with in relation to the
representation, there is no need to also comply with any conditions
prescribed for paragraph (b) of this subsection.
(5) For the purposes of subsection (1), the person is taken not to have
specified a single price for the goods or services in a prominent
way unless the single price is at least as prominent as the most
prominent of the parts of the consideration for the supply.
(6) Subsection (5) does not apply in relation to services to be supplied
under a contract if:
(a) the contract provides for the supply of the services for the
term of the contract; and
(b) the contract provides for periodic payments for the services
to be made during the term of the contract; and
(c) if the contract also provides for the supply of goods—the
goods are directly related to the supply of the services.
(7) The single price is the minimum quantifiable consideration for the
supply of the goods or services at the time of the representation,
including each of the following amounts (if any) that is
quantifiable at that time:
(a) a charge of any description payable to the person making the
representation by another person (other than a charge that is
payable at the option of the other person);
(b) the amount which reflects any tax, duty, fee, levy or charge
imposed on the person making the representation in relation
to the supply;
(c) any amount paid or payable by the person making the
representation in relation to the supply with respect to any
tax, duty, fee, levy or charge if:
(i) the amount is paid or payable under an agreement or
arrangement made under a law of the Commonwealth, a
State or a Territory; and
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(ii) the tax, duty, fee, levy or charge would have otherwise
been payable by another person in relation to the supply.
Example 1: A person advertises lounge suites for sale. Persons have the option of
paying for fabric protection. The fabric protection charge does not
form part of the single price because of the exception in paragraph (a).
Example 2: The GST may be an example of an amount covered by paragraph (b).
Example 3: The passenger movement charge imposed under the Passenger
Movement Charge Act 1978 may be an example of an amount covered
by paragraph (c). Under an arrangement under section 10 of the
Passenger Movement Charge Collection Act 1978, airlines may pay
an amount equal to the charge that would otherwise be payable by
passengers departing Australia.
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Section 49
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Division 5—Other unfair practices
49 Referral selling
A person must not, in trade or commerce, induce a consumer to
acquire goods or services by representing that the consumer will,
after the contract for the acquisition of the goods or services is
made, receive a rebate, commission or other benefit in return for:
(a) giving the person the names of prospective customers; or
(b) otherwise assisting the person to supply goods or services to
other consumers;
if receipt of the rebate, commission or other benefit is contingent
on an event occurring after that contract is made.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
50 Harassment and coercion
(1) A person must not use physical force, or undue harassment or
coercion, in connection with:
(a) the supply or possible supply of goods or services; or
(b) the payment for goods or services; or
(c) the sale or grant, or the possible sale or grant, of an interest in
land; or
(d) the payment for an interest in land.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) Subsections (1)(c) and (d) do not affect the application of any other
provision of Part 2-1 or this Part in relation to the supply or
acquisition, or the possible supply or acquisition, of interests in
land.
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Consumer guarantees Division 1
Section 51
Competition and Consumer Act 2010 149
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part 3-2—Consumer transactions
Division 1—Consumer guarantees
Subdivision A—Guarantees relating to the supply of goods
51 Guarantee as to title
(1) If a person (the supplier) supplies goods to a consumer, there is a
guarantee that the supplier will have a right to dispose of the
property in the goods when that property is to pass to the
consumer.
(2) Subsection (1) does not apply to a supply (a supply of limited title)
if an intention that the supplier of the goods should transfer only
such title as the supplier, or another person, may have:
(a) appears from the contract for the supply; or
(b) is to be inferred from the circumstances of that contract.
(3) This section does not apply if the supply is a supply by way of hire
or lease.
52 Guarantee as to undisturbed possession
(1) If:
(a) a person (the supplier) supplies goods to a consumer; and
(b) the supply is not a supply of limited title;
there is a guarantee that the consumer has the right to undisturbed
possession of the goods.
(2) Subsection (1) does not apply to the extent that the consumer’s
undisturbed possession of the goods may be lawfully disturbed by
a person who is entitled to the benefit of any security, charge or
encumbrance disclosed to the consumer before the consumer
agreed to the supply.
(3) If:
(a) a person (the supplier) supplies goods to a consumer; and
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Section 53
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(b) the supply is a supply of limited title;
there is a guarantee that the following persons will not disturb the
consumer’s possession of the goods:
(c) the supplier;
(d) if the parties to the contract for the supply intend that the
supplier should transfer only such title as another person may
have—that other person;
(e) anyone claiming through or under the supplier or that other
person (otherwise than under a security, charge or
encumbrance disclosed to the consumer before the consumer
agreed to the supply).
(4) This section applies to a supply by way of hire or lease only for the
period of the hire or lease.
53 Guarantee as to undisclosed securities etc.
(1) If:
(a) a person (the supplier) supplies goods to a consumer; and
(b) the supply is not a supply of limited title;
there is a guarantee that:
(c) the goods are free from any security, charge or encumbrance:
(i) that was not disclosed to the consumer, in writing,
before the consumer agreed to the supply; or
(ii) that was not created by or with the express consent of
the consumer; and
(d) the goods will remain free from such a security, charge or
encumbrance until the time when the property in the goods
passes to the consumer.
(2) A supplier does not fail to comply with the guarantee only because
of the existence of a floating charge over the supplier’s assets
unless and until the charge becomes fixed and enforceable by the
person to whom the charge is given.
Note: Section 339 of the Personal Property Securities Act 2009 affects the
meaning of the references in this subsection to a floating charge and a
fixed charge.
(3) If:
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(a) a person (the supplier) supplies goods to a consumer; and
(b) the supply is a supply of limited title;
there is a guarantee that all securities, charges or encumbrances
known to the supplier, and not known to the consumer, were
disclosed to the consumer before the consumer agreed to the
supply.
(4) This section does not apply if the supply is a supply by way of hire
or lease.
54 Guarantee as to acceptable quality
(1) If:
(a) a person supplies, in trade or commerce, goods to a
consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are of acceptable quality.
(2) Goods are of acceptable quality if they are as:
(a) fit for all the purposes for which goods of that kind are
commonly supplied; and
(b) acceptable in appearance and finish; and
(c) free from defects; and
(d) safe; and
(e) durable;
as a reasonable consumer fully acquainted with the state and
condition of the goods (including any hidden defects of the goods),
would regard as acceptable having regard to the matters in
subsection (3).
(3) The matters for the purposes of subsection (2) are:
(a) the nature of the goods; and
(b) the price of the goods (if relevant); and
(c) any statements made about the goods on any packaging or
label on the goods; and
(d) any representation made about the goods by the supplier or
manufacturer of the goods; and
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Section 55
152 Competition and Consumer Act 2010
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(e) any other relevant circumstances relating to the supply of the
goods.
(4) If:
(a) goods supplied to a consumer are not of acceptable quality;
and
(b) the only reason or reasons why they are not of acceptable
quality were specifically drawn to the consumer’s attention
before the consumer agreed to the supply;
the goods are taken to be of acceptable quality.
(5) If:
(a) goods are displayed for sale or hire; and
(b) the goods would not be of acceptable quality if they were
supplied to a consumer;
the reason or reasons why they are not of acceptable quality are
taken, for the purposes of subsection (4), to have been specifically
drawn to a consumer’s attention if those reasons were disclosed on
a written notice that was displayed with the goods and that was
transparent.
(6) Goods do not fail to be of acceptable quality if:
(a) the consumer to whom they are supplied causes them to
become of unacceptable quality, or fails to take reasonable
steps to prevent them from becoming of unacceptable
quality; and
(b) they are damaged by abnormal use.
(7) Goods do not fail to be of acceptable quality if:
(a) the consumer acquiring the goods examines them before the
consumer agrees to the supply of the goods; and
(b) the examination ought reasonably to have revealed that the
goods were not of acceptable quality.
55 Guarantee as to fitness for any disclosed purpose etc.
(1) If:
(a) a person (the supplier) supplies, in trade or commerce, goods
to a consumer; and
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(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are reasonably fit for any
disclosed purpose, and for any purpose for which the supplier
represents that they are reasonably fit.
(2) A disclosed purpose is a particular purpose (whether or not that
purpose is a purpose for which the goods are commonly supplied)
for which the goods are being acquired by the consumer and that:
(a) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or
arrangements in relation to the acquisition of the goods
were conducted or made; or
(b) the consumer makes known to the manufacturer of the goods
either directly or through the supplier or the person referred
to in paragraph (a)(ii).
(3) This section does not apply if the circumstances show that the
consumer did not rely on, or that it was unreasonable for the
consumer to rely on, the skill or judgment of the supplier, the
person referred to in subsection (2)(a)(ii) or the manufacturer, as
the case may be.
56 Guarantee relating to the supply of goods by description
(1) If:
(a) a person supplies, in trade or commerce, goods by
description to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods correspond with the description.
(2) A supply of goods is not prevented from being a supply by
description only because, having been exposed for sale or hire,
they are selected by the consumer.
(3) If goods are supplied by description as well as by reference to a
sample or demonstration model, the guarantees in this section and
in section 57 both apply.
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Section 57
154 Competition and Consumer Act 2010
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57 Guarantees relating to the supply of goods by sample or
demonstration model
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer
by reference to a sample or demonstration model; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that:
(c) the goods correspond with the sample or demonstration
model in quality, state or condition; and
(d) if the goods are supplied by reference to a sample—the
consumer will have a reasonable opportunity to compare the
goods with the sample; and
(e) the goods are free from any defect that:
(i) would not be apparent on reasonable examination of the
sample or demonstration model; and
(ii) would cause the goods not to be of acceptable quality.
(2) If goods are supplied by reference to a sample or demonstration
model as well as by description, the guarantees in section 56 and in
this section both apply.
58 Guarantee as to repairs and spare parts
(1) If:
(a) a person supplies, in trade or commerce, goods to a
consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the manufacturer of the goods will take
reasonable action to ensure that facilities for the repair of the
goods, and parts for the goods, are reasonably available for a
reasonable period after the goods are supplied.
(2) This section does not apply if the manufacturer took reasonable
action to ensure that the consumer would be given written notice,
at or before the time when the consumer agrees to the supply of the
goods, that:
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(a) facilities for the repair of the goods would not be available or
would not be available after a specified period; or
(b) parts for the goods would not be available or would not be
available after a specified period.
59 Guarantee as to express warranties
(1) If:
(a) a person supplies, in trade or commerce, goods to a
consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the manufacturer of the goods will comply
with any express warranty given or made by the manufacturer in
relation to the goods.
(2) If:
(a) a person supplies, in trade or commerce, goods to a
consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the supplier will comply with any express
warranty given or made by the supplier in relation to the goods.
Subdivision B—Guarantees relating to the supply of services
60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to a consumer,
there is a guarantee that the services will be rendered with due care
and skill.
61 Guarantees as to fitness for a particular purpose etc.
(1) If:
(a) a person (the supplier) supplies, in trade or commerce,
services to a consumer; and
(b) the consumer, expressly or by implication, makes known to
the supplier any particular purpose for which the services are
being acquired by the consumer;
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there is a guarantee that the services, and any product resulting
from the services, will be reasonably fit for that purpose.
(2) If:
(a) a person (the supplier) supplies, in trade or commerce,
services to a consumer; and
(b) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or
arrangements in relation to the acquisition of the
services were conducted or made;
the result that the consumer wishes the services to achieve;
there is a guarantee that the services, and any product resulting
from the services, will be of such a nature, and quality, state or
condition, that they might reasonably be expected to achieve that
result.
(3) This section does not apply if the circumstances show that the
consumer did not rely on, or that it was unreasonable for the
consumer to rely on, the skill or judgment of the supplier.
(4) This section does not apply to a supply of services of a professional
nature by a qualified architect or engineer.
62 Guarantee as to reasonable time for supply
If:
(a) a person (the supplier) supplies, in trade or commerce,
services to a consumer; and
(b) the time within which the services are to be supplied:
(i) is not fixed by the contract for the supply of the
services; or
(ii) is not to be determined in a manner agreed to by the
consumer and supplier;
there is a guarantee that the services will be supplied within a
reasonable time.
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Guarantees not to be excluded etc. by contract Subdivision C
Section 63
Competition and Consumer Act 2010 157
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
63 Services to which this Subdivision does not apply
This Subdivision does not apply to services that are, or are to be,
supplied under:
(a) a contract for or in relation to the transportation or storage of
goods for the purposes of a business, trade, profession or
occupation carried on or engaged in by the person for whom
the goods are transported or stored; or
(b) a contract of insurance.
Subdivision C—Guarantees not to be excluded etc. by contract
64 Guarantees not to be excluded etc. by contract
(1) A term of a contract (including a term that is not set out in the
contract but is incorporated in the contract by another term of the
contract) is void to the extent that the term purports to exclude,
restrict or modify, or has the effect of excluding, restricting or
modifying:
(a) the application of all or any of the provisions of this
Division; or
(b) the exercise of a right conferred by such a provision; or
(c) any liability of a person for a failure to comply with a
guarantee that applies under this Division to a supply of
goods or services.
(2) A term of a contract is not taken, for the purposes of this section, to
exclude, restrict or modify the application of a provision of this
Division unless the term does so expressly or is inconsistent with
the provision.
64A Limitation of liability for failures to comply with guarantees
(1) A term of a contract for the supply by a person of goods other than
goods of a kind ordinarily acquired for personal, domestic or
household use or consumption is not void under section 64 merely
because the term limits the person’s liability for failure to comply
with a guarantee (other than a guarantee under section 51, 52 or
53) to one or more of the following:
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(a) the replacement of the goods or the supply of equivalent
goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring
equivalent goods;
(d) the payment of the cost of having the goods repaired.
(2) A term of a contract for the supply by a person of services other
than services of a kind ordinarily acquired for personal, domestic
or household use or consumption is not void under section 64
merely because the term limits the person’s liability for failure to
comply with a guarantee to:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
(3) This section does not apply in relation to a term of a contract if the
person to whom the goods or services were supplied establishes
that it is not fair or reasonable for the person who supplied the
goods or services to rely on that term of the contract.
(4) In determining for the purposes of subsection (3) whether or not
reliance on a term of a contract is fair or reasonable, a court is to
have regard to all the circumstances of the case, and in particular to
the following matters:
(a) the strength of the bargaining positions of the person who
supplied the goods or services and the person to whom the
goods or services were supplied (the buyer) relative to each
other, taking into account, among other things, the
availability of equivalent goods or services and suitable
alternative sources of supply;
(b) whether the buyer received an inducement to agree to the
term or, in agreeing to the term, had an opportunity of
acquiring the goods or services or equivalent goods or
services from any source of supply under a contract that did
not include that term;
(c) whether the buyer knew or ought reasonably to have known
of the existence and extent of the term (having regard, among
other things, to any custom of the trade and any previous
course of dealing between the parties);
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(d) in the case of the supply of goods, whether the goods were
manufactured, processed or adapted to the special order of
the buyer.
Subdivision D—Miscellaneous
65 Application of this Division to supplies of gas, electricity and
telecommunications
(1) This Division does not apply to a supply if the supply:
(a) is a supply of a kind specified in the regulations; and
(b) is a supply of gas, electricity or a telecommunications
service.
(2) A telecommunications service is a service for carrying
communications by means of guided or unguided electromagnetic
energy or both.
66 Display notices
(1) The Commonwealth Minister may determine, in writing, that
persons (the suppliers) who make supplies, or supplies of a
specified kind, to which guarantees apply under this Division are
required to display, in accordance with the determination, a notice
that meets the requirements of the determination.
(2) A supplier who makes a supply to a consumer to which a guarantee
applies under this Division, and to which such a determination
relates, must ensure that a notice that meets those requirements is,
in accordance with the determination:
(a) if the consumer takes delivery of the goods or services at the
supplier’s premises—displayed at those premises; or
(b) otherwise—drawn to the consumer’s attention before the
consumer agrees to the supply of the goods.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) Without limiting subsection (1), a determination under that
subsection may do all or any of the following:
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(a) require the notice to include specified information about the
application of all or any of the provisions of this Division and
Part 5-4;
(b) specify where the notice must be displayed;
(c) specify how the notice must be drawn to the attention of
consumers;
(d) specify requirements as to the form of the notice.
67 Conflict of laws
If:
(a) the proper law of a contract for the supply of goods or
services to a consumer would be the law of any part of
Australia but for a term of the contract that provides
otherwise; or
(b) a contract for the supply of goods or services to a consumer
contains a term that purports to substitute, or has the effect of
substituting, the following provisions for all or any of the
provisions of this Division:
(i) the provisions of the law of a country other than
Australia;
(ii) the provisions of the law of a State or a Territory;
the provisions of this Division apply in relation to the supply under
the contract despite that term.
68 Convention on Contracts for the International Sale of Goods
The provisions of the United Nations Convention on Contracts for
the International Sale of Goods, done at Vienna on 11 April 1980,
as amended and in force for Australia from time to time, prevail
over the provisions of this Division to the extent of any
inconsistency.
Note: The text of the Convention is set out in Australian Treaty Series 1988
No. 32 ([1988] ATS 32). In 2010, the text of a Convention in the
Australian Treaty Series was accessible through the Australian
Treaties Library on the AustLII website (www.austlii.edu.au).
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Division 2—Unsolicited consumer agreements
Subdivision A—Introduction
69 Meaning of unsolicited consumer agreement
(1) An agreement is an unsolicited consumer agreement if:
(a) it is for the supply, in trade or commerce, of goods or
services to a consumer; and
(b) it is made as a result of negotiations between a dealer and the
consumer:
(i) in each other’s presence at a place other than the
business or trade premises of the supplier of the goods
or services; or
(ii) by telephone;
whether or not they are the only negotiations that precede the
making of the agreement; and
(c) the consumer did not invite the dealer to come to that place,
or to make a telephone call, for the purposes of entering into
negotiations relating to the supply of those goods or services
(whether or not the consumer made such an invitation in
relation to a different supply); and
(d) the total price paid or payable by the consumer under the
agreement:
(i) is not ascertainable at the time the agreement is made;
or
(ii) if it is ascertainable at that time—is more than $100 or
such other amount prescribed by the regulations.
(1A) The consumer is not taken, for the purposes of subsection (1)(c), to
have invited the dealer to come to that place, or to make a
telephone call, merely because the consumer has:
(a) given his or her name or contact details other than for the
predominant purpose of entering into negotiations relating to
the supply of the goods or services referred to in
subsection (1)(c); or
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(b) contacted the dealer in connection with an unsuccessful
attempt by the dealer to contact the consumer.
(2) An invitation merely to quote a price for a supply is not taken, for
the purposes of subsection (1)(c), to be an invitation to enter into
negotiations for a supply.
(3) An agreement is also an unsolicited consumer agreement if it is an
agreement of a kind that the regulations provide are unsolicited
consumer agreements.
(4) However, despite subsections (1) and (3), an agreement is not an
unsolicited consumer agreement if it is an agreement of a kind
that the regulations provide are not unsolicited consumer
agreements.
70 Presumption that agreements are unsolicited consumer
agreements
(1) In a proceeding relating to a contravention or possible
contravention of this Division (other than a criminal proceeding),
an agreement is presumed to be an unsolicited consumer agreement
if:
(a) a party to the proceeding alleges that the agreement is an
unsolicited consumer agreement; and
(b) no other party to the proceeding proves that the agreement is
not an unsolicited consumer agreement.
(2) In a proceeding relating to a contravention or possible
contravention of this Division (other than a criminal proceeding), it
is presumed that a proposed agreement would be an unsolicited
consumer agreement if it were made if:
(a) a party to the proceeding alleges that the proposed agreement
would be an unsolicited consumer agreement if it were made;
and
(b) no other party to the proceeding proves that the proposed
agreement would not be an unsolicited consumer agreement
if it were made.
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Section 71
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71 Meaning of dealer
A dealer is a person who, in trade or commerce:
(a) enters into negotiations with a consumer with a view to
making an agreement for the supply of goods or services to
the consumer; or
(b) calls on, or telephones, a consumer for the purpose of
entering into such negotiations;
whether or not that person is, or is to be, the supplier of the goods
or services.
72 Meaning of negotiation
A negotiation, in relation to an agreement or a proposed
agreement, includes any discussion or dealing directed towards the
making of the agreement or proposed agreement (whether or not
the terms of the agreement or proposed agreement are open to any
discussion or dealing).
Subdivision B—Negotiating unsolicited consumer agreements
73 Permitted hours for negotiating an unsolicited consumer
agreement
(1) A dealer must not call on a person for the purpose of negotiating an
unsolicited consumer agreement, or for an incidental or related
purpose:
(a) at any time on a Sunday or a public holiday; or
(b) before 9 am on any other day; or
(c) after 6 pm on any other day (or after 5 pm if the other day is
a Saturday).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) Subsection (1) does not apply if the dealer calls on the person in
accordance with consent that:
(a) was given by the person to the dealer or a person acting on
the dealer’s behalf; and
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(b) was not given in the presence of the dealer or a person acting
on the dealer’s behalf.
Note: The Do Not Call Register Act 2006 may apply to a telephone call
made for the purpose of negotiating an unsolicited consumer
agreement.
74 Disclosing purpose and identity
A dealer who calls on a person for the purpose of negotiating an
unsolicited consumer agreement, or for an incidental or related
purpose, must, as soon as practicable and in any event before
starting to negotiate:
(a) clearly advise the person that the dealer’s purpose is to seek
the person’s agreement to a supply of the goods or services
concerned; and
(b) clearly advise the person that the dealer is obliged to leave
the premises immediately on request; and
(c) provide to the person such information relating to the
dealer’s identity as is prescribed by the regulations.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
75 Ceasing to negotiate on request
(1) A dealer who calls on a person at any premises for the purpose of
negotiating an unsolicited consumer agreement, or for an incidental
or related purpose, must leave the premises immediately on the
request of:
(a) the occupier of the premises, or any person acting with the
actual or apparent authority of the occupier; or
(b) the person (the prospective consumer) with whom the
negotiations are being conducted.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) If the prospective consumer makes such a request, the dealer must
not contact the prospective consumer for the purpose of negotiating
an unsolicited consumer agreement (or for an incidental or related
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purpose) for at least 30 days after the prospective consumer makes
the request.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) If the dealer is not, or is not to be, the supplier of the goods or
services to which the negotiations relate:
(a) subsection (2) applies to that supplier, and any person acting
on behalf of that supplier, in the same way that it applies to
the dealer; but
(b) subsection (2) does not apply to the dealer contacting the
prospective customer in relation to a supply by another
supplier.
76 Informing person of termination period etc.
A dealer must not make an unsolicited consumer agreement with a
person unless:
(a) before the agreement is made, the person is given
information as to the following:
(i) the person’s right to terminate the agreement during the
termination period;
(ii) the way in which the person may exercise that right;
(iii) such other matters as are prescribed by the regulations;
and
(b) if the agreement is made in the presence of both the dealer
and the person—the person is given the information in
writing; and
(c) if the agreement is made by telephone—the person is given
the information by telephone, and is subsequently given the
information in writing; and
(d) the form in which, and the way in which, the person is given
the information complies with any other requirements
prescribed by the regulations.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
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Section 77
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77 Liability of suppliers for contraventions by dealers
If:
(a) a dealer contravenes a provision of this Subdivision in
relation to an unsolicited consumer agreement; and
(b) the dealer is not, or is not to be, the supplier of the goods or
services to which the agreement relates;
the supplier of the goods or services is also taken to have
contravened that provision in relation to the agreement.
Subdivision C—Requirements for unsolicited consumer
agreements etc.
78 Requirement to give document to the consumer
(1) If an unsolicited consumer agreement was not negotiated by
telephone, the dealer who negotiated the agreement must give a
copy of the agreement to the consumer under the agreement
immediately after the consumer signs the agreement.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) If an unsolicited consumer agreement was negotiated by telephone,
the dealer who negotiated the agreement must, within 5 business
days after the agreement was made or such longer period agreed by
the parties, give to the consumer under the agreement:
(a) personally; or
(b) by post; or
(c) with the consumer’s consent—by electronic communication;
a document (the agreement document) evidencing the agreement.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) An unsolicited consumer agreement was negotiated by telephone if
the negotiations that resulted in the making of the agreement took
place by telephone (whether or not other negotiations preceded the
making of the agreement).
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79 Requirements for all unsolicited consumer agreements etc.
The supplier under an unsolicited consumer agreement must ensure
that the agreement, or (if the agreement was negotiated by
telephone) the agreement document, complies with the following
requirements:
(a) it must set out in full all the terms of the agreement,
including:
(i) the total consideration to be paid or provided by the
consumer under the agreement or, if the total
consideration is not ascertainable at the time the
agreement is made, the way in which it is to be
calculated; and
(ii) any postal or delivery charges to be paid by the
consumer;
(b) its front page must include a notice that:
(i) conspicuously and prominently informs the consumer of
the consumer’s right to terminate the agreement; and
(ii) conspicuously and prominently sets out any other
information prescribed by the regulations; and
(iii) complies with any other requirements prescribed by the
regulations;
(c) it must be accompanied by a notice that:
(i) may be used by the consumer to terminate the
agreement; and
(ii) complies with any requirements prescribed by the
regulations;
(d) it must conspicuously and prominently set out in full:
(i) the supplier’s name; and
(ii) if the supplier has an ABN—the supplier’s ABN; and
(iii) if the supplier does not have an ABN but has an ACN—
the supplier’s ACN; and
(iv) the supplier’s business address (not being a post box) or,
if the supplier does not have a business address, the
supplier’s residential address; and
(v) if the supplier has an email address—the supplier’s
email address; and
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(vi) if the supplier has a fax number—the supplier’s fax
number;
(e) it must be printed clearly or typewritten (apart from any
amendments to the printed or typewritten form, which may
be handwritten);
(f) it must be transparent.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
80 Additional requirements for unsolicited consumer agreements
not negotiated by telephone
The supplier under an unsolicited consumer agreement that was not
negotiated by telephone must ensure that, in addition to complying
with the requirements of section 79, the agreement complies with
the following requirements:
(a) the agreement must be signed by the consumer under the
agreement;
(b) if the agreement is signed by a person on the supplier’s
behalf—the agreement must state that the person is acting on
the supplier’s behalf, and must set out in full:
(i) the person’s name; and
(ii) the person’s business address (not being a post box) or,
if the person does not have a business address, the
person’s residential address; and
(iii) if the person has an email address—the person’s email
address.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
81 Requirements for amendments of unsolicited consumer
agreements
The supplier under an unsolicited consumer agreement must ensure
that any amendments to the agreement are signed by both parties to
the agreement.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
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Section 82
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Subdivision D—Terminating unsolicited consumer agreements
82 Terminating an unsolicited consumer agreement during the
termination period
(1) The consumer under an unsolicited consumer agreement may,
during the period provided under subsection (3), terminate the
agreement by indicating, in an oral or written notice to the supplier
under the agreement, an intention to terminate the agreement.
(2) A right of termination under this section may be exercised:
(a) despite affirmation of the agreement by the consumer; and
(b) even though the agreement has been fully executed.
(3) The period during which the consumer may terminate the
agreement is whichever of the following periods is the longest:
(a) if the agreement was not negotiated by telephone—the period
of 10 business days starting at the start of the first business
day after the day on which the agreement was made;
(b) if the agreement was negotiated by telephone—the period of
10 business days starting at the start of the first business day
after the day on which the consumer was given the agreement
document relating to the agreement;
(c) if one or more of the following were contravened in relation
to the agreement:
(i) section 73 (permitted hours for negotiating an
unsolicited consumer agreement);
(ii) section 74 (disclosing purpose and identity);
(iii) section 75 (ceasing to negotiate on request);
the period of 3 months starting at the start of the first day
after the day on which the agreement was made or, if the
agreement was negotiated by telephone, the agreement
document was given;
(d) if one or more of the following were contravened in relation
to the agreement:
(i) section 76 (informing consumer of termination period);
(ii) a provision of Subdivision C (requirements for
unsolicited consumer agreements);
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(iii) section 86 (prohibition on supplies for 10 business
days);
the period of 6 months starting at the start of the first day
after the day on which the agreement was made or, if the
agreement was negotiated by telephone, the agreement
document was given;
(e) such other period as the agreement provides.
(4) If the notice under subsection (1) is written, it may be given:
(a) by delivering it personally to the supplier; or
(b) by delivering it, or sending it by post, in an envelope
addressed to the supplier, to the supplier’s address referred to
in section 79(d)(iv); or
(c) if the supplier has an email address—by sending it to the
supplier’s email address referred to in section 79(d)(v); or
(d) if the supplier has a fax number—by faxing it to the
supplier’s fax number referred to in section 79(d)(vi).
(5) A notice under subsection (1) sent by post to a supplier is taken to
have been given to the supplier at the time of posting.
(6) There are no requirements relating to the form or content of a
notice under subsection (1).
83 Effect of termination
(1) If an unsolicited consumer agreement is terminated in accordance
with section 82:
(a) the agreement is taken to have been rescinded by mutual
consent; and
(b) any related contract or instrument is void.
(2) A related contract or instrument, in relation to an unsolicited
consumer agreement, is:
(a) any contract of guarantee or indemnity that is related to the
agreement; or
(b) any instrument related to the agreement that creates a
mortgage or charge in favour of the supplier under the
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contract or the dealer in relation to the contract (or a person
nominated by the supplier or dealer); or
(c) any contract or instrument (other than an instrument of a kind
referred to in paragraph (b)) that is collateral or related to the
agreement;
but does not include a tied continuing credit contract (within the
meaning of section 127(2) of Schedule 1 to the National Consumer
Credit Protection Act 2009), or a tied loan contract (within the
meaning of section 127(3) of that Schedule).
(3) The termination of an unsolicited consumer agreement has effect
for the purposes of section 82 and this section even if:
(a) the supplier under the agreement has not received the notice
of termination; or
(b) the goods or services supplied under the agreement have
been wholly or partly consumed or used.
84 Obligations of suppliers on termination
If an unsolicited consumer agreement is terminated in accordance
with section 82, the supplier under the agreement must,
immediately upon being notified of the termination, return or
refund to the consumer under the agreement any consideration (or
the value of any consideration) that the consumer gave under the
agreement or a related contract or instrument.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
85 Obligations and rights of consumers on termination
(1) If an unsolicited consumer agreement is terminated in accordance
with section 82, the consumer under the agreement must, within a
reasonable time:
(a) return to the supplier under the agreement any goods:
(i) that have been received from the supplier under the
agreement; and
(ii) that the consumer has not already consumed; or
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(b) notify the supplier of the place where the supplier may
collect the goods.
(2) The goods become the property of the consumer, freed and
discharged from all liens and charges of any description, if:
(a) the consumer gives notice to the supplier under
subsection (1)(b); and
(b) the supplier does not collect the goods within 30 days after
the termination of the contract.
(3) If:
(a) the agreement is terminated in accordance with section 82
after the end of the period of 10 business days starting:
(i) if the agreement was not negotiated by telephone—at
the start of the first business day after the day on which
the agreement was made; or
(ii) if the agreement was negotiated by telephone—at the
start of the first business day after the day on which the
consumer was given the agreement document relating to
the agreement; and
(b) the consumer returns the goods to the supplier, or the
supplier collects the goods, under this section; and
(c) the consumer has failed to take reasonable care of the goods;
the consumer is liable to pay compensation to the supplier for the
damage to, or depreciation in the value of, the goods.
(4) The compensation is recoverable in a court of competent
jurisdiction.
(5) However, the consumer is not liable for any such damage or
depreciation attributable to normal use of the goods or to
circumstances beyond the consumer’s control.
(6) If:
(a) an unsolicited consumer agreement is terminated in
accordance with section 82 after the end of the period of 10
business days starting:
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(i) if the agreement was not negotiated by telephone—at
the start of the first business day after the day on which
the agreement was made; or
(ii) if the agreement was negotiated by telephone—at the
start of the first business day after the day on which the
consumer was given the agreement document relating to
the agreement; and
(b) prior to the termination, but after the end of that period, a
service was supplied under the agreement;
the termination does not affect any liability of the consumer under
the agreement to provide consideration for the service.
86 Prohibition on supplies etc. for 10 business days
(1) The supplier under an unsolicited consumer agreement must not:
(a) supply to the consumer under the agreement the goods or
services to be supplied under the agreement; or
(b) accept any payment, or any other consideration, in
connection with those goods or services; or
(c) require any payment, or any other consideration, in
connection with those goods or services;
during the period of 10 business days starting:
(d) if the agreement was not negotiated by telephone—at the
start of the first business day after the day on which the
agreement was made; or
(e) if the agreement was negotiated by telephone—at the start of
the first business day after the day on which the consumer
was given the agreement document relating to the agreement.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) If the supplier supplies goods to the consumer in contravention of
this section, the consumer has the same rights in relation to the
goods as if the goods were unsolicited goods.
Note: Section 41 deals with unsolicited goods.
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Section 87
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(3) If the supplier supplies services to the consumer in contravention
of this section, the consumer has the same rights in relation to the
services as if the services were unsolicited services.
Note: Section 42 deals with unsolicited services.
87 Repayment of payments received after termination
If an unsolicited consumer agreement is terminated in accordance
with section 82, the supplier under the agreement must
immediately refund to the consumer under the agreement any
payment:
(a) that the consumer, or a person acting on the consumer’s
behalf, makes to the supplier after the termination; and
(b) that purports to be made under the agreement or a related
contract or instrument.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
88 Prohibition on recovering amounts after termination
(1) If an unsolicited consumer agreement is terminated in accordance
with section 82, a person must not:
(a) bring, or assert an intention to bring, legal proceedings
against the consumer; or
(b) take, or assert an intention to take, any other action against
the consumer;
in relation to an amount alleged to be payable, under the agreement
or a related contract or instrument, by the consumer under the
agreement.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(1A) Subsection (1) does not apply to:
(a) bringing, or asserting an intention to bring, legal proceedings
against the consumer; or
(b) taking, or asserting an intention to take, any other action
against the consumer;
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Section 89
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to enforce a liability under section 85(3), or a liability of a kind
referred to in section 85(6).
(2) If an unsolicited consumer agreement is terminated in accordance
with section 82, a person must not, for the purpose of recovering an
amount alleged to be payable, under the agreement or a related
contract or instrument, by the consumer under the agreement:
(a) place the consumer’s name, or cause the consumer’s name to
be placed, on a list of defaulters or debtors; or
(b) assert an intention to place the consumer’s name, or cause the
consumer’s name to be placed, on such a list.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) Without limiting Division 2 of Part 5-2, an injunction granted
under that Division may require a person responsible for keeping a
list of defaulters or debtors on which the consumer’s name has
been wrongly placed to remove the name from that list.
Subdivision E—Miscellaneous
89 Certain provisions of unsolicited consumer agreements void
(1) A provision (however described) of an unsolicited consumer
agreement is void if it has the effect of, or purports to have the
effect of:
(a) excluding, limiting, modifying or restricting a right of the
consumer under the agreement to terminate the agreement
under this Division; or
(b) otherwise excluding, limiting, modifying or restricting the
effect or operation of this Division; or
(c) making a dispute relating to the agreement, or to a supply to
which the agreement relates, justiciable by a court by which
the dispute would not otherwise be justiciable.
(2) The supplier under an unsolicited consumer agreement must ensure
that the agreement does not include, or purport to include, a
provision (however described) that is, or would be, void because of
subsection (1).
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176 Competition and Consumer Act 2010
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Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) The supplier under an unsolicited consumer agreement must not
attempt to enforce or rely on a provision (however described) that
is void because of subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
90 Waiver of rights
(1) The consumer under an unsolicited consumer agreement is not
competent to waive any right conferred by this Division.
(2) The supplier under the unsolicited consumer agreement must not
induce, or attempt to induce, the consumer to waive any right
conferred by this Division.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
91 Application of this Division to persons to whom rights of
consumers and suppliers are assigned etc.
(1) This Division applies in relation to a person to whom the rights of
a consumer (the original consumer) under a contract for the supply
of goods or services are assigned or transferred, or pass by
operation of law, (whether from the original consumer or from
another person) as if the person were the original consumer.
(2) This Division applies in relation to a person to whom the rights of
a supplier (the original supplier) under a contract for the supply of
goods or services are assigned or transferred, or pass by operation
of law, (whether from the original supplier or from another person)
as if the person were the original supplier.
92 Application of this Division to supplies to third parties
This Division applies in relation to a contract for the supply of
goods or services to a consumer (the original consumer) on the
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order of another person as if the other person were also the
consumer.
93 Effect of contravening this Division
(1) The supplier under an unsolicited consumer agreement cannot
enforce the agreement against the consumer under the agreement if
a provision of this Division (other than section 85) has been
contravened in relation to the agreement.
(2) This section does not prevent any action being taken under this
Schedule in relation to the contravention.
94 Regulations may limit the application of this Division
This Division (other than section 73) does not apply, or provisions
of this Division (other than section 73) that are specified in the
regulations do not apply, to or in relation to:
(a) circumstances of a kind specified in the regulations; or
(b) agreements of a kind specified in the regulations; or
(c) the conduct of businesses of a kind specified in the
regulations.
95 Application of this Division to certain conduct covered by the
Corporations Act
This Division does not apply in relation to conduct to which
section 736, 992A or 992AA of the Corporations Act 2001 applies.
Note: Section 736 of the Corporations Act 2001 prohibits hawking of
securities. Section 992A of that Act prohibits hawking of certain
financial products. Section 992AA of that Act prohibits hawking of
managed investment products.
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Section 96
178 Competition and Consumer Act 2010
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Division 3—Lay-by agreements
96 Lay-by agreements must be in writing etc.
(1) A supplier of goods who is a party to a lay-by agreement must
ensure that:
(a) the agreement is in writing; and
(b) a copy of the agreement is given to the consumer to whom
the goods are, or are to be, supplied.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A supplier of goods who is a party to a lay-by agreement must
ensure that the agreement is transparent.
(3) A lay-by agreement is an agreement between a supplier of goods
and a consumer for the supply, in trade or commerce, of the goods
on terms (whether express or implied) which provide that:
(a) the goods will not be delivered to the consumer until the total
price of the goods has been paid; and
(b) the price of the goods is to be paid by:
(i) 3 or more instalments; or
(ii) if the agreement specifies that it is a lay-by agreement—
2 or more instalments.
(4) For the purposes of subsection (3)(b), any deposit paid by the
consumer for the goods is taken to be an instalment.
97 Termination of lay-by agreements by consumers
(1) A consumer who is party to a lay-by agreement may terminate the
agreement at any time before the goods to which the agreement
relates are delivered to the consumer under the agreement.
(2) A supplier of goods who is a party to a lay-by agreement must
ensure that the agreement does not require the consumer to pay a
charge (a termination charge) for the termination of the agreement
unless:
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(a) the agreement is terminated by the consumer; and
(b) the supplier has not breached the agreement.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) A supplier of goods who is a party to a lay-by agreement must
ensure that, if the agreement provides that a termination charge is
payable, the amount of the charge is not more than the supplier’s
reasonable costs in relation to the agreement.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
98 Termination of lay-by agreements by suppliers
A supplier of goods who is a party to a lay-by agreement must not
terminate the agreement unless:
(a) the consumer who is a party to the agreement breached a
term of the agreement; or
(b) the supplier is no longer engaged in trade or commerce; or
(c) the goods to which the agreement relates are no longer
available.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
99 Effect of termination
(1) If a lay-by agreement is terminated by a party to the agreement, the
supplier must refund to the consumer all the amounts paid by the
consumer under the agreement other than any termination charge
that is payable under the agreement.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) The supplier is entitled to recover any unpaid termination charge
from the consumer as a debt if the amounts paid by the consumer
under the lay-by agreement are not enough to cover the charge.
(3) If a lay-by agreement is terminated by a party to the agreement, the
supplier is not entitled to damages, or to enforce any other remedy,
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in relation to that termination except as provided for by this
section.
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Division 4—Miscellaneous
100 Supplier must provide proof of transaction etc.
(1) If:
(a) a person (the supplier), in trade or commerce, supplies goods
or services to a consumer; and
(b) the total price (excluding GST) of the goods or services is
$75 or more;
the supplier must give the consumer a proof of transaction as soon
as practicable after the goods or services are so supplied.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) If:
(a) a person (the supplier), in trade or commerce, supplies goods
or services to a consumer; and
(b) the total price (excluding GST) of the goods or services is
less than $75;
the consumer may request a proof of transaction from the supplier
as soon as practicable after the goods or services are so supplied.
(3) If a request is made under subsection (2), the supplier must give
the proof of transaction within 7 days after the request is made.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(4) A proof of transaction for a supply of goods or services to a
consumer is a document that:
(a) identifies the supplier of the goods or services; and
(b) if the supplier has an ABN—states the supplier’s ABN; and
(c) if the supplier does not have an ABN but has an ACN—
states the supplier’s ACN; and
(d) states the date of the supply; and
(e) states the goods or services supplied to the consumer; and
(f) states the price of the goods or services.
Note: The following are examples of a proof of transaction:
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(a) a tax invoice within the meaning of the A New Tax System (Goods and Services Tax) Act 1999;
(b) a cash register receipt;
(c) a credit card or debit card statement;
(d) a handwritten receipt;
(e) a lay-by agreement;
(f) a confirmation or receipt number provided for a telephone or internet transaction.
(5) The supplier must ensure that the proof of transaction given under
subsection (1) or (3) is transparent.
101 Consumer may request an itemised bill
(1) If a person (the supplier), in trade or commerce, supplies services
to a consumer, the consumer may request that the supplier give the
consumer an itemised bill that:
(a) specifies how the price of the services was calculated; and
(b) includes, if applicable, the number of hours of labour that
related to the supply of the services and the hourly rate for
that labour; and
(c) includes, if applicable, a list of the materials used to supply
the services and the amount charged for those materials.
(2) The request under subsection (1) must be made within 30 days
after:
(a) the services are supplied; or
(b) the consumer receives a bill or account from the supplier for
the supply of the services;
whichever occurs later.
(3) The supplier must give the consumer the itemised bill within 7
days after the request is made.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(4) The supplier must not charge the consumer for the itemised bill.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(5) The supplier must ensure that the itemised bill is transparent.
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102 Prescribed requirements for warranties against defects
(1) The regulations may prescribe requirements relating to the form
and content of warranties against defects.
(2) A person must not, in connection with the supply, in trade or
commerce, of goods or services to a consumer:
(a) give to the consumer a document that evidences a warranty
against defects that does not comply with the requirements
prescribed for the purposes of subsection (1); or
(b) represent directly to the consumer that the goods or services
are goods or services to which such a warranty against
defects relates.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) A warranty against defects is a representation communicated to a
consumer in connection with the supply of goods or services, at or
about the time of supply, to the effect that a person will
(unconditionally or on specified conditions):
(a) repair or replace the goods or part of them; or
(b) provide again or rectify the services or part of them; or
(c) wholly or partly recompense the consumer;
if the goods or services or part of them are defective, and includes
any document by which such a representation is evidenced.
103 Repairers must comply with prescribed requirements
(1) The regulations may prescribe requirements relating to the form
and content of notices to be given relating to the repair of goods
supplied to a consumer.
(2) A person (the repairer) must not, in trade or commerce, accept
from another person goods that the other person acquired as a
consumer if the repairer:
(a) accepts the goods for the purpose of repairing them; and
(b) does not give to the other person a notice that complies with
the requirements prescribed for the purposes of
subsection (1).
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184 Competition and Consumer Act 2010
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Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
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Section 104
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Part 3-3—Safety of consumer goods and product related
services
Division 1—Safety standards
104 Making safety standards for consumer goods and product
related services
(1) The Commonwealth Minister may, by written notice published on
the internet, make a safety standard for one or both of the
following:
(a) consumer goods of a particular kind;
(b) product related services of a particular kind.
(2) A safety standard for consumer goods of a particular kind may
consist of such requirements about the following matters as are
reasonably necessary to prevent or reduce risk of injury to any
person:
(a) the performance, composition, contents, methods of
manufacture or processing, design, construction, finish or
packaging of consumer goods of that kind;
(b) the testing of consumer goods of that kind during, or after the
completion of, manufacture or processing;
(c) the form and content of markings, warnings or instructions to
accompany consumer goods of that kind.
(3) A safety standard for product related services of a particular kind
may consist of such requirements about the following matters as
are reasonably necessary to prevent or reduce risk of injury to any
person:
(a) the manner in which services of that kind are supplied
(including, but not limited to, the method of supply);
(b) the skills or qualifications of persons who supply such
services;
(c) the materials used in supplying such services;
(d) the testing of such services;
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(e) the form and content of warnings, instructions or other
information about such services.
105 Declaring safety standards for consumer goods and product
related services
(1) The Commonwealth Minister may, by written notice published on
the internet, declare that the following is a safety standard for
consumer goods, or product related services, of a kind specified in
the instrument:
(a) a particular standard, or a particular part of a standard,
prepared or approved by Standards Australia or by an
association prescribed by the regulations;
(b) such a standard, or such a part of a standard, with additions
or variations specified in the notice.
(2) The Commonwealth Minister must not declare under
subsection (1) that a standard, or a part of a standard, referred to in
that subsection is a safety standard for:
(a) consumer goods of a particular kind; or
(b) product related services of a particular kind;
if that standard or part is inconsistent with a safety standard for
those goods or services that is in force and that was made under
section 104(1).
106 Supplying etc. consumer goods that do not comply with safety
standards
(1) A person must not, in trade or commerce, supply consumer goods
of a particular kind if:
(a) a safety standard for consumer goods of that kind is in force;
and
(b) those goods do not comply with the standard.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not, in trade or commerce, offer for supply (other
than for export) consumer goods the supply of which is prohibited
by subsection (1).
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Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) A person must not, in or for the purposes of trade or commerce,
manufacture, possess or have control of consumer goods the supply
of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(4) In a proceeding under Part 5-2 in relation to a contravention of
subsection (3), it is a defence if the defendant proves that the
defendant’s manufacture, possession or control of the goods was
not for the purpose of supplying the goods (other than for export).
(5) A person must not, in trade or commerce, export consumer goods
the supply of which is prohibited by subsection (1) unless:
(a) the person applies, in writing, to the Commonwealth Minister
for an approval to export those goods; and
(b) the Commonwealth Minister gives such an approval by
written notice given to the person.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(6) If the Commonwealth Minister gives an approval under
subsection (5), he or she must cause a statement setting out
particulars of the approval to be tabled in each House of the
Parliament of the Commonwealth within 7 sitting days of that
House after the approval is given.
(7) If:
(a) a person supplies consumer goods in contravention of this
section; and
(b) another person suffers loss or damage:
(i) because of a defect in, or a dangerous characteristic of,
the goods; or
(ii) because of a reasonably foreseeable use (including a
misuse) of the goods; or
(iii) because, contrary to the safety standard, he or she was
not provided with particular information in relation to
the goods; and
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(c) the other person would not have suffered the loss or damage
if the goods had complied with the safety standard;
the other person is taken, for the purposes of this Schedule, to have
suffered the loss or damage because of that supply.
107 Supplying etc. product related services that do not comply with
safety standards
(1) A person must not, in trade or commerce, supply product related
services of particular kind if:
(a) a safety standard for services of that kind is in force; and
(b) those services do not comply with the standard.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not, in trade or commerce, offer for supply product
related services the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) If:
(a) a person supplies product related services in contravention of
this section; and
(b) another person suffers loss or damage:
(i) because of defect in, or a dangerous characteristic of,
consumer goods that results from the services being
supplied; or
(ii) because of a reasonably foreseeable use (including a
misuse) of consumer goods that results from the
services being supplied; or
(iii) because, contrary to the safety standard, he or she was
not provided with particular information in relation to
the services; and
(c) the other person would not have suffered the loss or damage
if the services had complied with the safety standard;
the other person is taken, for the purposes of this Schedule, to have
suffered the loss or damage because of that supply.
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108 Requirement to nominate a safety standard
If:
(a) a safety standard for consumer goods of a particular kind is
in force; and
(b) the standard specifies, as alternative methods of complying
with the standard (or part of the standard), 2 or more sets of
requirements relating to goods of that kind; and
(c) the regulator gives to a supplier of goods of that kind a
written request that the supplier nominate which of those sets
of requirements the supplier intends to comply with as the
supplier’s method of complying with the standard;
the supplier must, within the period specified in the request, give to
the regulator a written notice specifying which of those sets of
requirements the supplier intends to comply with as the supplier’s
method of complying with the standard.
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Division 2—Bans on consumer goods and product related
services
Subdivision A—Interim bans
109 Interim bans on consumer goods or product related services
that will or may cause injury to any person etc.
(1) A responsible Minister may, by written notice published on the
internet, impose an interim ban on consumer goods of a particular
kind if:
(a) it appears to the responsible Minister that:
(i) consumer goods of that kind will or may cause injury to
any person; or
(ii) a reasonably foreseeable use (including a misuse) of
consumer goods of that kind will or may cause injury to
any person; or
(b) another responsible Minister has imposed, under
paragraph (a), an interim ban:
(i) on consumer goods of the same kind; or
(ii) on consumer goods of a kind that includes those goods;
and that ban is still in force.
(2) A responsible Minister may, by written notice published on the
internet, impose an interim ban on product related services of a
particular kind if:
(a) it appears to the responsible Minister that:
(i) as a result of services of that kind being supplied,
consumer goods of a particular kind will or may cause
injury to any person; or
(ii) a reasonably foreseeable use (including a misuse) of
consumer goods of a particular kind, to which such
services relate, will or may cause injury to any person as
a result of such services being supplied; or
(b) another responsible Minister has imposed, under
paragraph (a), an interim ban:
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(i) on product related services of the same kind; or
(ii) on product related services that include those services;
and that ban is still in force.
110 Places in which interim bans apply
(1) An interim ban imposed by the Commonwealth Minister applies in
all States and Territories.
(2) An interim ban imposed by a responsible Minister who is Minister
of a State applies in the State.
(3) An interim ban imposed by a responsible Minister who is a
Minister of a Territory applies in the Territory.
111 Ban period for interim bans
(1) An interim ban imposed by a responsible Minister is in force
during the period (the ban period) that:
(a) starts on the day (the start day) specified in the notice
imposing the ban; and
(b) subject to this Subdivision, ends at the end of 60 days after
the start day.
(2) Before the ban period for the interim ban ends, the responsible
Minister may, by written notice published on the internet, extend
the ban period for the ban by a period of up to 30 days.
(3) If:
(a) the ban period for the interim ban is extended under
subsection (2); and
(b) the extended ban period for the ban has not ended; and
(c) the interim ban was not imposed by the Commonwealth
Minister;
the responsible Minister may, in writing, request the
Commonwealth Minister to extend the extended ban period for the
ban.
(4) If a request is made under subsection (3), the Commonwealth
Minister may, by written notice published on the internet, extend
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the extended ban period for the interim ban by a further period of
up to 30 days.
(5) If:
(a) a request is made under subsection (3); and
(b) the Commonwealth Minister has not made a decision on the
request immediately before the extended ban period for the
interim ban is to end;
the Commonwealth Minister is taken to have decided to extend the
extended ban period for the ban by a further period of 30 days.
(6) If:
(a) the ban period for the interim ban is extended under
subsection (2); and
(b) the extended ban period for the ban has not ended; and
(c) the interim ban was imposed by the Commonwealth
Minister;
the Commonwealth Minister may, by written notice published on
the internet, extend the extended ban period for the interim ban by
a further period of up to 30 days.
112 Interaction of multiple interim bans
(1) If:
(a) an interim ban (the original ban) on consumer goods of a
particular kind (the banned goods) is imposed by a
responsible Minister other than the Commonwealth Minister;
and
(b) while the original ban is in force, the Commonwealth
Minister imposes an interim ban (the Commonwealth ban):
(i) on the banned goods; or
(ii) on consumer goods of a kind that includes the banned
goods;
the original ban, to the extent that it is a ban on the banned goods,
ceases to be in force immediately before the Commonwealth ban
comes into force.
(2) If:
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(a) an interim ban (the original ban) on product related services
of a particular kind (the banned services) is imposed by a
responsible Minister other than the Commonwealth Minister;
and
(b) while the original ban is in force, the Commonwealth
Minister imposes an interim ban (the Commonwealth ban):
(i) on the banned services; or
(ii) on product related services of a kind that includes the
banned services;
the original ban, to the extent that it is a ban on the banned
services, ceases to be in force immediately before the
Commonwealth ban comes into force.
113 Revocation of interim bans
If a responsible Minister imposes an interim ban:
(a) the responsible Minister may, by written notice published on
the internet, revoke the ban at any time; and
(b) the ban ceases to be in force on the day specified by the
responsible Minister in the notice.
Subdivision B—Permanent bans
114 Permanent bans on consumer goods or product related services
(1) The Commonwealth Minister may, by written notice published on
the internet, impose a permanent ban on consumer goods of a
particular kind if:
(a) one or more interim bans on consumer goods of that kind
(the banned goods), or on consumer goods of a kind that
include the banned goods, are in force; or
(b) it appears to the Commonwealth Minister that:
(i) consumer goods of that kind will or may cause injury to
any person; or
(ii) a reasonably foreseeable use (including a misuse) of
consumer goods of that kind will or may cause injury to
any person.
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Subdivision C Compliance with interim bans and permanent bans
Section 115
194 Competition and Consumer Act 2010
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(2) The Commonwealth Minister may, by written notice published on
the internet, impose a permanent ban on product related services
of a particular kind if:
(a) one or more interim bans on product related services of that
kind (the banned services), or on product related services of
a kind that include the banned services, are in force; or
(b) it appears to the Commonwealth Minister that:
(i) as a result of services of that kind being supplied,
consumer goods of a particular kind will or may cause
injury to any person; or
(ii) a reasonably foreseeable use (including a misuse) of
consumer goods of a particular kind, to which such
services relate, will or may cause injury to any person as
a result of such services being supplied.
115 Places in which permanent bans apply
A permanent ban applies in all States and Territories.
116 When permanent bans come into force
A permanent ban comes into force on the day specified by the
Commonwealth Minister in the instrument imposing the ban.
117 Revocation of permanent bans
If the Commonwealth Minister imposes a permanent ban:
(a) the Commonwealth Minister may, by written notice
published on the internet, revoke the ban at any time; and
(b) the ban ceases to be in force on the day specified by the
Commonwealth Minister in the notice.
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Section 118
Competition and Consumer Act 2010 195
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Subdivision C—Compliance with interim bans and permanent
bans
118 Supplying etc. consumer goods covered by a ban
(1) A person must not, in trade or commerce, supply consumer goods
of a particular kind if:
(a) an interim ban on consumer goods of that kind is in force in
the place where the supply occurs; or
(b) a permanent ban on consumer goods of that kind is in force.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not, in trade or commerce, offer for supply (other
than for export) consumer goods the supply of which is prohibited
by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) A person must not, in or for the purposes of trade or commerce,
manufacture, possess or have control of consumer goods the supply
of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(4) In a proceeding under Part 5-2 in relation to a contravention of
subsection (3), it is a defence if the defendant proves that the
defendant’s manufacture, possession or control of the goods was
not for the purpose of supplying the goods (other than for export).
(5) A person must not, in trade or commerce, export consumer goods
the supply of which is prohibited by subsection (1) unless:
(a) the person applies, in writing, to the Commonwealth Minister
for an approval to export those goods; and
(b) the Commonwealth Minister gives such an approval by
written notice given to the person.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
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Subdivision C Compliance with interim bans and permanent bans
Section 119
196 Competition and Consumer Act 2010
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(6) If the Commonwealth Minister gives an approval under
subsection (5), he or she must cause a statement setting out
particulars of the approval to be tabled in each House of the
Parliament of the Commonwealth within 7 sitting days of that
House after the approval is given.
(7) If:
(a) a person supplies consumer goods in contravention of
subsection (1); and
(b) another person suffers loss or damage:
(i) because of a defect in, or a dangerous characteristic of,
the goods; or
(ii) because of a reasonably foreseeable use (including a
misuse) of the goods;
the other person is taken, for the purposes of this Schedule, to have
suffered the loss or damage because of that supply.
119 Supplying etc. product related services covered by a ban
(1) A person must not, in trade or commerce, supply product related
services of a particular kind if:
(a) an interim ban on services of that kind is in force in the place
where the supply occurs; or
(b) a permanent ban on services of that kind is in force.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not, in trade or commerce, offer for supply product
related services the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) If:
(a) a person supplies product related services in contravention of
subsection (1); and
(b) another person suffers loss or damage:
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Section 120
Competition and Consumer Act 2010 197
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(i) because of a defect in, or a dangerous characteristic of,
consumer goods that results from the services being
supplied; or
(ii) because of a reasonably foreseeable use (including a
misuse) of consumer goods that results from the
services being supplied;
the other person is taken, for the purposes of this Schedule, to have
suffered the loss or damage because of that supply.
Subdivision D—Temporary exemption from mutual
recognition principles
120 Temporary exemption under the Trans-Tasman Mutual
Recognition Act 1997
(1) If:
(a) an interim ban on consumer goods of a particular kind is in
force; or
(b) a permanent ban on consumer goods of a particular kind is in
force;
the goods are taken, for the purposes of section 46 of the
Trans-Tasman Mutual Recognition Act 1997, to be goods of a kind
that are declared, in the manner provided by section 46(2) of that
Act, to be exempt from the operation of that Act.
(2) This section does not affect the application of section 46(4) of that
Act in relation to such an exemption.
121 Temporary exemption under the Mutual Recognition Act 1992
(1) If:
(a) an interim ban on consumer goods of a particular kind is in
force; and
(b) the interim ban was not imposed by the Commonwealth
Minister;
the goods are taken, for the purposes of section 15 of the Mutual
Recognition Act 1992, to be goods of a kind that are declared, in
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Section 121
198 Competition and Consumer Act 2010
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the manner provided by section 15(1) of that Act, to be goods to
which that section applies.
(2) This section does not affect the application of section 15(3) of that
Act in relation to such an exemption.
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Section 122
Competition and Consumer Act 2010 199
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Division 3—Recall of consumer goods
Subdivision A—Compulsory recall of consumer goods
122 Compulsory recall of consumer goods
(1) A responsible Minister may, by written notice published on the
internet, issue a recall notice for consumer goods of a particular
kind if:
(a) a person, in trade or commerce, supplies consumer goods of
that kind; and
(b) any of the following applies:
(i) it appears to the responsible Minister that such goods
will or may cause injury to any person;
(ii) it appears to the responsible Minister that a reasonably
foreseeable use (including a misuse) of such goods will
or may cause injury to any person;
(iii) a safety standard for such goods is in force and the
goods do not comply with the standard;
(iv) an interim ban, or a permanent ban, on such goods is in
force; and
(c) it appears to the responsible Minister that one or more
suppliers of such goods have not taken satisfactory action to
prevent those goods causing injury to any person.
(2) It is not necessary for the purposes of subsection (1)(c) for the
responsible Minister to know the identities of any of the suppliers
of the consumer goods of that kind.
(3) A recall notice for consumer goods may be issued under
subsection (1) even if the consumer goods have become fixtures
since the time they were supplied.
123 Contents of a recall notice
(1) A recall notice for the consumer goods may require one or more
suppliers of the goods, or (if no such supplier is known to the
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Section 123
200 Competition and Consumer Act 2010
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responsible Minister who issued the notice) the regulator, to take
one or more of the following actions:
(a) recall the goods;
(b) disclose to the public, or to a class of persons specified in the
notice, one or more of the following:
(i) the nature of a defect in, or a dangerous characteristic
of, the goods as identified in the notice;
(ii) the circumstances as identified in the notice in which a
reasonably foreseeable use or misuse of the goods is
dangerous;
(iii) procedures as specified in the notice for disposing of the
goods;
(c) if the identities of any of those suppliers are known to the
responsible Minister—inform the public, or a class of
persons specified in the notice, that the supplier undertakes to
do whichever of the following the supplier thinks is
appropriate:
(i) unless the notice identifies a dangerous characteristic of
the goods—repair the goods;
(ii) replace the goods;
(iii) refund to a person to whom the goods were supplied
(whether by the supplier or by another person) the price
of the goods.
(2) The recall notice may specify:
(a) the manner in which the action required to be taken by the
notice must be taken; and
(b) the period within which the action must be taken.
(3) If the recall notice requires the regulator to take action to recall the
consumer goods, the responsible Minister may specify in the notice
that the regulator must retain, destroy or otherwise dispose of the
goods.
(4) If the recall notice requires a supplier of the consumer goods to
take action of a kind referred to in subsection (1)(c), the
responsible Minister may specify in the notice that, if:
(a) the supplier undertakes to refund the price of the goods; and
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Section 124
Competition and Consumer Act 2010 201
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(b) a period of more than 12 months has elapsed since a person
(whether or not the person to whom the refund is to be made)
acquired the goods from the supplier;
the amount of a refund may be reduced by the supplier by an
amount calculated in a manner specified in the notice that is
attributable to the use which a person has had of the goods.
124 Obligations of a supplier in relation to a recall notice
(1) This section applies if a recall notice for consumer goods requires a
supplier to take action of a kind referred to in section 123(1)(c).
(2) If the supplier undertakes to repair the consumer goods, the
supplier must cause the goods to be repaired so that:
(a) any defect in the goods identified in the recall notice is
remedied; and
(b) if a safety standard for the goods is in force—the goods
comply with that standard.
(3) If the supplier undertakes to replace the consumer goods, the
supplier must replace the goods with similar consumer goods
which:
(a) if a defect in, or a dangerous characteristic of, the goods to be
replaced was identified in the recall notice—do not contain
that defect or have that characteristic; and
(b) if a safety standard for the goods to be replaced is in force—
comply with that standard.
(4) If the supplier undertakes:
(a) to repair the consumer goods; or
(b) to replace the consumer goods;
the cost of the repair or replacement, including any necessary
transportation costs, must be paid by the supplier.
125 Notification by persons who supply consumer goods outside
Australia if there is compulsory recall
(1) If consumer goods of a particular kind are recalled as required by a
recall notice, a person who has supplied or supplies those
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Section 126
202 Competition and Consumer Act 2010
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consumer goods to a person outside Australia must give the person
outside Australia a written notice that complies with subsection (2).
(2) The notice given under subsection (1) must:
(a) state that the consumer goods are subject to recall; and
(b) if the consumer goods contain a defect or have a dangerous
characteristic—set out the nature of that defect or
characteristic; and
(c) if a reasonably foreseeable use or misuse of the consumer
goods is dangerous—set out the circumstances of that use or
misuse; and
(d) if the consumer goods do not comply with a safety standard
for such goods that is in force—set out the nature of the
non-compliance; and
(e) if an interim ban, or a permanent ban, on the consumer goods
is in force—state that fact.
(3) The notice under subsection (1) must be given as soon as
practicable after the supply of the consumer goods to the person
outside Australia.
(4) A person who is required to give a notice under subsection (1)
must, within 10 days after giving the notice, give a copy of the
notice to the responsible Minister who issued the recall notice.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
126 Interaction of multiple recall notices
If:
(a) a recall notice (the original recall notice) for consumer
goods of a particular kind (the recalled goods) is issued by a
responsible Minister other than the Commonwealth Minister;
and
(b) while the original recall notice is in force, the
Commonwealth Minister issues a recall notice (the
Commonwealth recall notice):
(i) for the recalled goods; or
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Competition and Consumer Act 2010 203
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(ii) for consumer goods of a kind that includes the recalled
goods;
the original recall notice, to the extent that it relates to the recalled
goods, ceases to be in force immediately before the
Commonwealth recall notice is issued.
127 Compliance with recall notices
(1) If:
(a) a recall notice for consumer goods is in force; and
(b) the notice requires a person (other than the regulator) to do
one or more things;
the person must comply with the notice.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) If a recall notice for consumer goods is in force, a person must not,
in trade or commerce:
(a) if the notice identifies a defect in, or a dangerous
characteristic of, the consumer goods—supply consumer
goods of the kind to which the notice relates which contain
that defect or have that characteristic; or
(b) in any other case—supply consumer goods of the kind to
which the notice relates.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) If:
(a) a person contravenes subsection (1) or (2) in relation to
consumer goods; and
(b) another person suffers loss or damage:
(i) because of a defect in, or a dangerous characteristic of,
the goods; or
(ii) because of a reasonably foreseeable use (including a
misuse) of the goods; or
(iii) because, contrary to the recall notice, the other person
was not provided with particular information in relation
to the goods;
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Subdivision B Voluntary recall of consumer goods
Section 128
204 Competition and Consumer Act 2010
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the other person is taken, for the purposes of this Schedule, to have
suffered the loss or damage because of the contravention.
Subdivision B—Voluntary recall of consumer goods
128 Notification requirements for a voluntary recall of consumer
goods
(1) This section applies if a person voluntarily takes action to recall
consumer goods of a particular kind (including consumer goods
that have become fixtures since being supplied) because:
(a) the consumer goods will or may cause injury to any other
person; or
(b) a reasonably foreseeable use (including a misuse) of the
consumer goods will or may cause injury to any other person;
or
(c) a safety standard for the consumer goods is in force and they
do not, or it is likely that they do not, comply with the
standard; or
(d) an interim ban, or a permanent ban, on the consumer goods is
in force.
(2) The person must, within 2 days after taking the action, give the
Commonwealth Minister a written notice that complies with
subsection (7).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) The Commonwealth Minister may publish a copy of the notice on
the internet.
(4) A person who has supplied or supplies consumer goods of that
kind to another person outside Australia must give the other person
a written notice that complies with subsection (7).
(5) The notice under subsection (4) must be given as soon as
practicable after the supply of the consumer goods to the person
outside Australia.
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Section 128
Competition and Consumer Act 2010 205
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(6) A person who is required to give a notice under subsection (4)
must, within 10 days after giving the notice, give a copy of the
notice to the Commonwealth Minister.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(7) A notice given under subsection (2) or (4) must:
(a) state that the consumer goods are subject to recall; and
(b) if the consumer goods contain a defect or have a dangerous
characteristic—set out the nature of that defect or
characteristic; and
(c) if a reasonably foreseeable use or misuse of the consumer
goods is dangerous—set out the circumstances of that use or
misuse; and
(d) if the consumer goods do not, or it is likely that they do not,
comply with a safety standard for the goods that is in force—
set out the nature of the non-compliance or likely
non-compliance; and
(e) if an interim ban, or a permanent ban, on the consumer goods
is in force—state that fact.
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Section 129
206 Competition and Consumer Act 2010
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Division 4—Safety warning notices
129 Safety warning notices about consumer goods and product
related services
(1) A responsible Minister may publish on the internet a written notice
containing one or both of the following:
(a) a statement that consumer goods of a kind specified in the
notice are under investigation to determine whether:
(i) those goods will or may cause injury to any person; or
(ii) a reasonably foreseeable use (including a misuse) of
those goods will or may cause injury to any person;
(b) a warning of possible risks involved in the use of consumer
goods of a kind specified in the notice.
(2) A responsible Minister may publish on the internet a written notice
containing one or both of the following:
(a) a statement that product related services of a kind specified in
the notice are under investigation to determine whether:
(i) consumer goods of a particular kind will or may cause
injury to any person as a result of services of that kind
being supplied; or
(ii) a reasonably foreseeable use (including a misuse) of
consumer goods of a particular kind, to which such
services relate, will or may cause injury to any person as
a result of such services being supplied;
(b) a warning of possible risks involved in the supply of product
related services of a kind specified in the notice.
130 Announcement of the results of an investigation etc.
(1) If:
(a) an investigation of consumer goods, or product related
services, specified in a notice under section 129(1) or (2) has
been completed; and
(b) none of the following have been published or issued in
relation to those goods or services:
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(i) a proposed ban notice under section 132 of the
Competition and Consumer Act;
(ii) a proposed recall notice under section 132A of that Act;
(iii) a notice under section 132J(1) or (2) of that Act;
the responsible Minister who issued the notice under
section 129(1) or (2) must, as soon as practicable after the
completion of the investigation, announce, by written notice
published on the internet, the results of the investigation.
(2) The responsible Minister may announce in a notice published
under subsection (1) of this section:
(a) whether any action under this Part is proposed to be taken in
relation to the consumer goods or product related services;
and
(b) if it is proposed to take any such action—what action is
proposed to be taken.
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serious injury or illness
Section 131
208 Competition and Consumer Act 2010
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Division 5—Consumer goods, or product related services,
associated with death or serious injury or illness
131 Suppliers to report consumer goods associated with the death or
serious injury or illness of any person
(1) If:
(a) a person (the supplier), in trade or commerce, supplies
consumer goods; and
(b) the supplier becomes aware of the death or serious injury or
illness of any person and:
(i) considers that the death or serious injury or illness was
caused, or may have been caused, by the use or
foreseeable misuse of the consumer goods; or
(ii) becomes aware that a person other than the supplier
considers that the death or serious injury or illness was
caused, or may have been caused, by the use or
foreseeable misuse of the consumer goods;
the supplier must, within 2 days of becoming so aware, give the
Commonwealth Minister a written notice that complies with
subsection (5).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) Subsection (1) does not apply if:
(a) it is clear that the death or serious injury or illness was not
caused by the use or foreseeable misuse of the consumer
goods; or
(b) it is very unlikely that the death or serious injury or illness
was caused by the use or foreseeable misuse of the consumer
goods; or
(c) the supplier, or another person, is required to notify the death
or serious injury or illness in accordance with a law of the
Commonwealth, a State or a Territory that is a law specified
in the regulations; or
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Section 131
Competition and Consumer Act 2010 209
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(d) the supplier, or another person, is required to notify the death
or serious injury or illness in accordance with an industry
code of practice that:
(i) applies to the supplier or other person; and
(ii) is specified in the regulations.
(3) Subsection (1) applies whether or not the consumer goods were
being used before or at the time the death or serious injury or
illness occurred.
(4) Without limiting subsection (1), the ways in which the supplier
may become aware as mentioned in subsection (1)(b) include
receiving the relevant information from any of the following:
(a) a consumer;
(b) a person who re-supplies the consumer goods;
(c) a repairer or insurer of the goods;
(d) an industry organisation or consumer organisation.
(5) The notice must:
(a) identify the consumer goods; and
(b) include information about the following matters to the extent
that it is known by the supplier at the time the notice is given:
(i) when, and in what quantities, the consumer goods were
manufactured in Australia, supplied in Australia,
imported into Australia or exported from Australia;
(ii) the circumstances in which the death or serious injury or
illness occurred;
(iii) the nature of any serious injury or illness suffered by
any person;
(iv) any action that the supplier has taken, or is intending to
take, in relation to the consumer goods.
(6) The giving of the notice under subsection (1) is not to be taken for
any purpose to be an admission by the supplier of any liability in
relation to:
(a) the consumer goods; or
(b) the death or serious injury or illness of any person.
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Section 132
210 Competition and Consumer Act 2010
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132 Suppliers to report product related services associated with the
death or serious injury or illness of any person
(1) If:
(a) a person (the supplier), in trade or commerce, supplies
product related services; and
(b) the supplier becomes aware of the death or serious injury or
illness of any person and:
(i) considers that the death or serious injury or illness was
caused, or may have been caused, by the use or
foreseeable misuse of the consumer goods to which the
services relate; or
(ii) becomes aware that a person other than the supplier
considers that the death or serious injury or illness was
caused, or may have been caused, by the use or
foreseeable misuse of the consumer goods to which the
services relate;
the supplier must, within 2 days of becoming so aware, give the
Commonwealth Minister a written notice that complies with
subsection (5).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) Subsection (1) does not apply if:
(a) it is clear that the death or serious injury or illness was not
caused by the use or foreseeable misuse of the consumer
goods to which the services relate; or
(b) it is very unlikely that the death or serious injury or illness
was caused by the use or foreseeable misuse of the consumer
goods to which the services relate; or
(c) the supplier, or another person, is required to notify the death
or serious injury or illness in accordance with a law of the
Commonwealth, a State or a Territory that is a law specified
in the regulations; or
(d) the supplier, or another person, has notified the death or
serious injury or illness in accordance with an industry code
of practice that:
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(i) applies to the supplier or other person; and
(ii) is specified in the regulations.
(3) Subsection (1) applies whether or not consumer goods to which the
product related services relate were being used before or at the
time the death or serious injury or illness occurred.
(4) Without limiting subsection (1), the ways in which the supplier
may become aware as mentioned in subsection (1)(b) include
receiving the relevant information from any of the following:
(a) a consumer;
(b) a person who re-supplies the product related services;
(c) an insurer of the services;
(d) an industry organisation or consumer organisation.
(5) The notice must:
(a) identify the product related services and the consumer goods
to which the services relate; and
(b) include information about the following matters to the extent
that it is known by the supplier at the time the notice is given:
(i) when the services have been supplied;
(ii) the circumstances in which the death or serious injury or
illness occurred;
(iii) the nature of any serious injury or illness suffered by
any person;
(iv) any action that the supplier has taken, or is intending to
take, in relation to the services.
(6) The giving of the notice under subsection (1) is not to be taken for
any purpose to be an admission by the supplier of any liability in
relation to:
(a) the product related services; or
(b) the consumer goods to which the services relate; or
(c) the death or serious injury or illness of any person.
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Schedule 2 The Australian Consumer Law
Chapter 3 Specific protections
Part 3-3 Safety of consumer goods and product related services
Division 5 Consumer goods, or product related services, associated with death or
serious injury or illness
Section 132A
212 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
132A Confidentiality of notices given under this Division
(1) A person must not disclose to any other person a notice given
under this Division, or any part of or information contained in such
a notice, unless the person who gave the notice has consented to
the notice, or that part or information, not being treated as
confidential.
(2) This section does not apply if:
(a) the disclosure is made by the Commonwealth Minister to:
(i) another responsible Minister; or
(ii) the regulator; or
(iii) an associate regulator; or
(b) the disclosure is made by the Commonwealth Minister and
the Commonwealth Minister considers that the disclosure is
in the public interest; or
(c) the disclosure is made by a member of the staff of the
regulator, or an associate regulator, in the performance of his
or her duties as such a member of staff, and is made:
(i) to another member of the staff of the regulator or
associate regulator; or
(ii) if the person making the disclosure is a member of the
staff of the regulator—to an associate regulator; or
(iii) if the person making the disclosure is a member of the
staff of an associate regulator—to the regulator or
another associate regulator; or
(d) the disclosure is required or authorised by or under law; or
(e) the disclosure is reasonably necessary for the enforcement of
the criminal law or of a law imposing a pecuniary penalty.
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Specific protections Chapter 3
Safety of consumer goods and product related services Part 3-3
Miscellaneous Division 6
Section 133
Competition and Consumer Act 2010 213
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 6—Miscellaneous
133 Liability under a contract of insurance
If:
(a) a contract of insurance between an insurer and a person
relates to:
(i) the recall of consumer goods that are supplied by the
person, or which the person proposes to supply; or
(ii) the liability of the person with respect to possible
defects in such consumer goods; and
(b) the person gives information relating to any such consumer
goods to:
(i) a responsible Minister; or
(ii) the regulator; or
(iii) a person appointed or engaged under the Public Service
Act 1999, or under a corresponding law of a State or a
Territory; or
(iv) an officer of an authority of the Commonwealth or of a
State or Territory;
the liability of the insurer under the contract is not affected only
because the person gave the information.
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Schedule 2 The Australian Consumer Law
Chapter 3 Specific protections
Part 3-4 Information standards
Section 134
214 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part 3-4—Information standards
134 Making information standards for goods and services
(1) The Commonwealth Minister may, by written notice published on
the internet, make an information standard for one or both of the
following:
(a) goods of a particular kind;
(b) services of a particular kind.
(2) Without limiting subsection (1), an information standard for goods
or services of a particular kind may:
(a) make provision in relation to the content of information
about goods or services of that kind; or
(b) require the provision of specified information about goods or
services of that kind; or
(c) provide for the manner or form in which such information is
to be provided; or
(d) provide that such information is not to be provided in a
specified manner or form; or
(e) provide that information of a specified kind is not to be
provided about goods or services of that kind; or
(f) assign a meaning to specified information about goods or
services.
135 Declaring information standards for goods and services
(1) The Commonwealth Minister may, by written notice published on
the internet, declare that the following is an information standard
for goods or services of a kind specified in the instrument:
(a) a particular standard, or a particular part of a standard,
prepared or approved by Standards Australia or by an
association prescribed by the regulations;
(b) such a standard, or such a part of a standard, with additions
or variations specified in the notice.
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Specific protections Chapter 3
Information standards Part 3-4
Section 136
Competition and Consumer Act 2010 215
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) The Commonwealth Minister must not declare under
subsection (1) that a standard, or a part of a standard, referred to in
that subsection is an information standard for:
(a) goods of a particular kind; or
(b) services of a particular kind;
if that standard or part is inconsistent with an information standard
for those goods or services that is in force and was made under
section 134(1).
136 Supplying etc. goods that do not comply with information
standards
(1) A person must not, in trade or commerce, supply goods of a
particular kind if:
(a) an information standard for goods of that kind is in force; and
(b) the person has not complied with that standard.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not, in trade or commerce, offer for supply goods
the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) A person must not, in or for the purposes of trade or commerce,
manufacture, possess or have control of goods the supply of which
is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(4) In a proceeding under Part 5-2 in relation to a contravention of
subsection (3), it is a defence if the defendant proves that the
defendant’s manufacture, possession or control of the goods was
not for the purpose of supplying the goods.
(5) Subsections (1), (2) and (3) do not apply to goods that are intended
to be used outside Australia.
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Chapter 3 Specific protections
Part 3-4 Information standards
Section 137
216 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(6) Unless the contrary is established, it is presumed, for the purposes
of this section, that goods are intended to be used outside Australia
if either of the following is applied to the goods:
(a) a statement that the goods are for export only;
(b) a statement indicating, by the use of words authorised by the
regulations to be used for the purposes of this subsection, that
the goods are intended to be used outside Australia.
(7) Without limiting subsection (6), a statement may, for the purposes
of that subsection, be applied to goods by being:
(a) woven in, impressed on, worked into or annexed or affixed to
the goods; or
(b) applied to a covering, label, reel or thing in or with which the
goods are supplied.
(8) If:
(a) a person (the supplier) supplies goods in contravention of
subsection (1), (2) or (3); and
(b) another person suffers loss or damage because, contrary to
the information standard, he or she was not provided with
particular information in relation to the goods; and
(c) the other person would not have suffered the loss or damage
if the supplier had complied with the information standard;
the other person is taken, for the purposes of this Schedule, to have
suffered the loss or damage because of that supply.
137 Supplying etc. services that do not comply with information
standards
(1) A person must not, in trade or commerce, supply services of a
particular kind if:
(a) an information standard for services of that kind is in force;
and
(b) the person has not complied with that standard.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
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Information standards Part 3-4
Section 137
Competition and Consumer Act 2010 217
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) A person must not, in trade or commerce, offer for supply services
the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) If:
(a) a person (the supplier) supplies services in contravention of
subsection (1) or (2); and
(b) another person suffers loss or damage because, contrary to
the information standard, he or she was not provided with
particular information in relation to the services; and
(c) the other person would not have suffered the loss or damage
if the supplier had complied with the information standard;
the other person is taken, for the purposes of this Schedule, to have
suffered the loss or damage because of that supply.
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Chapter 3 Specific protections
Part 3-5 Liability of manufacturers for goods with safety defects
Division 1 Actions against manufacturers for goods with safety defects
Section 138
218 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part 3-5—Liability of manufacturers for goods with safety
defects
Division 1—Actions against manufacturers for goods with
safety defects
138 Liability for loss or damage suffered by an injured individual
(1) A manufacturer of goods is liable to compensate an individual if:
(a) the manufacturer supplies the goods in trade or commerce;
and
(b) the goods have a safety defect; and
(c) the individual suffers injuries because of the safety defect.
(2) The individual may recover, by action against the manufacturer,
the amount of the loss or damage suffered by the individual.
(3) If the individual dies because of the injuries, a law of a State or a
Territory about liability in respect of the death of individuals
applies as if:
(a) the action were an action under the law of the State or
Territory for damages in respect of the injuries; and
(b) the safety defect were the manufacturer’s wrongful act,
neglect or default.
139 Liability for loss or damage suffered by a person other than an
injured individual
(1) A manufacturer of goods is liable to compensate a person if:
(a) the manufacturer supplies the goods in trade or commerce;
and
(b) the goods have a safety defect; and
(c) an individual (other than the person) suffers injuries because
of the safety defect; and
(d) the person suffers loss or damage because of:
(i) the injuries; or
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The Australian Consumer Law Schedule 2
Specific protections Chapter 3
Liability of manufacturers for goods with safety defects Part 3-5
Actions against manufacturers for goods with safety defects Division 1
Section 140
Competition and Consumer Act 2010 219
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(ii) if the individual dies because of the injuries—the
individual’s death; and
(e) the loss or damage does not come about because of a
business or professional relationship between the person and
the individual.
(2) The person may recover, by action against the manufacturer, the
amount of the loss or damage suffered by the person.
140 Liability for loss or damage suffered by a person if other goods
are destroyed or damaged
(1) A manufacturer of goods is liable to compensate a person if:
(a) the manufacturer supplies the goods in trade or commerce;
and
(b) the goods have a safety defect; and
(c) other goods of a kind ordinarily acquired for personal,
domestic or household use or consumption are destroyed or
damaged because of the safety defect; and
(d) the person used or consumed, or intended to use or consume,
the destroyed or damaged goods for personal, domestic or
household use or consumption; and
(e) the person suffers loss or damage as a result of the
destruction or damage.
(2) The person may recover, by action against the manufacturer, the
amount of the loss or damage suffered by the person.
141 Liability for loss or damage suffered by a person if land,
buildings or fixtures are destroyed or damaged
(1) A manufacturer of goods is liable to compensate a person if:
(a) the manufacturer supplies the goods in trade or commerce;
and
(b) the goods have a safety defect; and
(c) land, buildings or fixtures are destroyed or damaged because
of the safety defect; and
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Chapter 3 Specific protections
Part 3-5 Liability of manufacturers for goods with safety defects
Division 1 Actions against manufacturers for goods with safety defects
Section 142
220 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(d) the land, buildings or fixtures are ordinarily acquired for
private use; and
(e) the person used, or intended to use, the land, buildings or
fixtures for private use; and
(f) the person suffers loss or damage as a result of the
destruction or damage.
(2) The person may recover, by action against the manufacturer, the
amount of the loss or damage suffered by the person.
142 Defences to defective goods actions
In a defective goods action, it is a defence if it is established that:
(a) the safety defect in the goods that is alleged to have caused
the loss or damage did not exist:
(i) in the case of electricity—at the time at which the
electricity was generated, being a time before it was
transmitted or distributed; or
(ii) in any other case—at the time when the goods were
supplied by their actual manufacturer; or
(b) the goods had that safety defect only because there was
compliance with a mandatory standard for them; or
(c) the state of scientific or technical knowledge at the time
when the goods were supplied by their manufacturer was not
such as to enable that safety defect to be discovered; or
(d) if the goods that had that safety defect were comprised in
other goods—that safety defect is attributable only to:
(i) the design of the other goods; or
(ii) the markings on or accompanying the other goods; or
(iii) the instructions or warnings given by the manufacturer
of the other goods.
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Specific protections Chapter 3
Liability of manufacturers for goods with safety defects Part 3-5
Defective goods actions Division 2
Section 143
Competition and Consumer Act 2010 221
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 2—Defective goods actions
143 Time for commencing defective goods actions
(1) Subject to subsection (2), a person may commence a defective
goods action at any time within 3 years after the time the person
became aware, or ought reasonably to have become aware, of all of
the following:
(a) the alleged loss or damage;
(b) the safety defect of the goods;
(c) the identity of the person who manufactured the goods.
(2) A defective goods action must be commenced within 10 years of
the supply by the manufacturer of the goods to which the action
relates.
144 Liability joint and several
If 2 or more persons are liable under Division 1 for the same loss
or damage, they are jointly and severally liable.
145 Survival of actions
A law of a State or a Territory about the survival of causes of
action vested in persons who die applies to actions under
Division 1.
146 No defective goods action where workers’ compensation law etc.
applies
Division 1 does not apply to a loss or damage in respect of which
an amount has been, or could be, recovered under a law of the
Commonwealth, a State or a Territory that:
(a) relates to workers’ compensation; or
(b) gives effect to an international agreement.
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Schedule 2 The Australian Consumer Law
Chapter 3 Specific protections
Part 3-5 Liability of manufacturers for goods with safety defects
Division 2 Defective goods actions
Section 147
222 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
147 Unidentified manufacturer
(1) A person who:
(a) wishes to institute a defective goods action; but
(b) does not know who is the manufacturer of the goods to which
the action would relate;
may, by written notice given to a supplier, or each supplier, of the
goods who is known to the person, request the supplier or suppliers
to give the person particulars identifying the manufacturer of the
goods, or the supplier of the goods to the supplier requested.
(2) If, 30 days after the person made the request or requests, the person
still does not know who is the manufacturer of the goods, then each
supplier:
(a) to whom the request was made; and
(b) who did not comply with the request;
is taken, for the purposes of the defective goods liability action (but
not for the purposes of section 142(c)), to be the manufacturer of
the goods.
148 Commonwealth liability for goods that are defective only
because of compliance with Commonwealth mandatory
standard
(1) If a person (however described) against whom a defective goods
action is brought raises the defence that the goods had the alleged
safety defect only because there was compliance with a
Commonwealth mandatory standard for the goods, the person
must, as soon as practicable after raising that defence, give the
Commonwealth:
(a) a prescribed notice of the action and of that defence; and
(b) a copy of the person’s defence in the action.
(2) The giving of the notice and defence makes the Commonwealth a
defendant in the action.
(3) If, in the action, the court finds that the person (the plaintiff) by
whom the action is brought would, but for the defence referred to
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Specific protections Chapter 3
Liability of manufacturers for goods with safety defects Part 3-5
Defective goods actions Division 2
Section 149
Competition and Consumer Act 2010 223
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
in subsection (1), have succeeded against the person (other than the
Commonwealth) against which the action is brought, then:
(a) the Commonwealth, and not the person (other than the
Commonwealth) against which the action is brought, is liable
to pay the plaintiff for the amount of the loss or damage
caused by the safety defect; and
(b) the court is to enter judgment against the Commonwealth for
that amount; and
(c) the court may make such orders for costs as the court
considers just.
149 Representative actions by the regulator
(1) The regulator may, by application, commence a defective goods
action on behalf of one or more persons identified in the
application who have suffered the loss or damage in relation to
which the action is commenced.
(2) The regulator may only make the application if it has obtained the
written consent of the person, or each of the persons, on whose
behalf the application is being made.
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Schedule 2 The Australian Consumer Law
Chapter 3 Specific protections
Part 3-5 Liability of manufacturers for goods with safety defects
Division 3 Miscellaneous
Section 150
224 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 3—Miscellaneous
150 Application of all or any provisions of this Part etc. not to be
excluded or modified
(1) Any term of a contract (including a term that is not set out in the
contract but is incorporated in the contract by another term) that
purports to exclude, restrict or modify, or has the effect of
excluding, restricting or modifying, any of the following is void:
(a) the application of all or any of the provisions of this Part;
(b) the exercise of a right conferred by any of those provisions;
(c) any liability under any of those provisions.
(2) A term of a contract is not taken to exclude, restrict or modify the
application of a provision of this Part unless the term does so
expressly or is inconsistent with that provision.
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Offences Chapter 4
Offences relating to unfair practices Part 4-1
False or misleading representations etc. Division 1
Section 151
Competition and Consumer Act 2010 225
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Chapter 4—Offences
Part 4-1—Offences relating to unfair practices
Division 1—False or misleading representations etc.
151 False or misleading representations about goods or services
(1) A person commits an offence if the person, in trade or commerce,
in connection with the supply or possible supply of goods or
services or in connection with the promotion by any means of the
supply or use of goods or services:
(a) makes a false or misleading representation that goods are of a
particular standard, quality, value, grade, composition, style
or model or have had a particular history or particular
previous use; or
(b) makes a false or misleading representation that services are
of a particular standard, quality, value or grade; or
(c) makes a false or misleading representation that goods are
new; or
(d) makes a false or misleading representation that a particular
person has agreed to acquire goods or services; or
(e) makes a false or misleading representation that purports to be
a testimonial by any person relating to goods or services; or
(f) makes a false or misleading representation concerning:
(i) a testimonial by any person; or
(ii) a representation that purports to be such a testimonial;
relating to goods or services; or
(g) makes a false or misleading representation that goods or
services have sponsorship, approval, performance
characteristics, accessories, uses or benefits; or
(h) makes a false or misleading representation that the person
making the representation has a sponsorship, approval or
affiliation; or
(i) makes a false or misleading representation with respect to the
price of goods or services; or
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Chapter 4 Offences
Part 4-1 Offences relating to unfair practices
Division 1 False or misleading representations etc.
Section 151
226 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(j) makes a false or misleading representation concerning the
availability of facilities for the repair of goods or of spare
parts for goods; or
(k) makes a false or misleading representation concerning the
place of origin of goods; or
(l) makes a false or misleading representation concerning the
need for any goods or services; or
(m) makes a false or misleading representation concerning the
existence, exclusion or effect of any condition, warranty,
guarantee, right or remedy (including a guarantee under
Division 1 of Part 3-2); or
(n) makes a false or misleading representation concerning a
requirement to pay for a contractual right that:
(i) is wholly or partly equivalent to any condition,
warranty, guarantee, right or remedy (including a
guarantee under Division 1 of Part 3-2); and
(ii) a person has under a law of the Commonwealth, a State
or a Territory (other than an unwritten law).
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
Note: For rules relating to representations as to the country of origin of
goods, see Part 5-3.
(2) For the purposes of applying subsection (1) in relation to a
proceeding concerning a representation of a kind referred to in
subsection (1)(e) or (f), the representation is taken to be misleading
unless evidence is adduced to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the
contrary is adduced, the representation is not misleading; or
(b) have the effect of placing on any person an onus of proving
that the representation is not misleading.
(4) Subsection (1) is an offence of strict liability.
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Offences Chapter 4
Offences relating to unfair practices Part 4-1
False or misleading representations etc. Division 1
Section 152
Competition and Consumer Act 2010 227
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
152 False or misleading representations about sale etc. of land
(1) A person commits an offence if the person, in trade or commerce,
in connection with the sale or grant, or the possible sale or grant, of
an interest in land or in connection with the promotion by any
means of the sale or grant of an interest in land:
(a) makes a false or misleading representation that the person
making the representation has a sponsorship, approval or
affiliation; or
(b) makes a false or misleading representation concerning the
nature of the interest in the land; or
(c) makes a false or misleading representation concerning the
price payable for the land; or
(d) makes a false or misleading representation concerning the
location of the land; or
(e) makes a false or misleading representation concerning the
characteristics of the land; or
(f) makes a false or misleading representation concerning the
use to which the land is capable of being put or may lawfully
be put; or
(g) makes a false or misleading representation concerning the
existence or availability of facilities associated with the land.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) Subsection (1) is an offence of strict liability.
(3) This section does not affect the application of any other provision
of this Part in relation to the supply or acquisition, or the possible
supply or acquisition, of interests in land.
153 Misleading conduct relating to employment
(1) A person commits an offence if the person, in relation to
employment that is to be, or may be, offered by the person or by
another person, engages in conduct that is liable to mislead persons
seeking the employment as to:
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Schedule 2 The Australian Consumer Law
Chapter 4 Offences
Part 4-1 Offences relating to unfair practices
Division 1 False or misleading representations etc.
Section 154
228 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) the availability, nature, terms or conditions of the
employment; or
(b) any other matter relating to the employment.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) Subsection (1) is an offence of strict liability.
154 Offering rebates, gifts, prizes etc.
(1) A person commits an offence if:
(a) the person, in trade or commerce, offers any rebate, gift,
prize or other free item; and
(b) the offer is connected with:
(i) the supply or possible supply of goods or services; or
(ii) the promotion by any means of the supply or use of
goods or services; or
(iii) the sale or grant, or the possible sale or grant, of an
interest in land; or
(iv) the promotion by any means of the sale or grant of an
interest in land; and
(c) the offer is made with the intention of not providing the
rebate, gift, prize or other free item, or of not providing it as
offered.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers any rebate, gift,
prize or other free item; and
(b) the offer is connected with:
(i) the supply or possible supply of goods or services; or
(ii) the promotion by any means of the supply or use of
goods or services; or
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Offences Chapter 4
Offences relating to unfair practices Part 4-1
False or misleading representations etc. Division 1
Section 155
Competition and Consumer Act 2010 229
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(iii) the sale or grant, or the possible sale or grant, of an
interest in land; or
(iv) the promotion by any means of the sale or grant of an
interest in land; and
(c) the person fails to provide the rebate, gift, prize or other free
item, in accordance with the offer, within the time specified
in the offer or (if no such time is specified) within a
reasonable time after making the offer.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(3) Subsection (2) does not apply if:
(a) the person’s failure to provide the rebate, gift, prize or other
free item in accordance with the offer was due to the act or
omission of another person, or to some other cause beyond
the person’s control; and
(b) the person took reasonable precautions and exercised due
diligence to avoid the failure.
(4) Subsection (2) does not apply to an offer that the person makes to
another person if:
(a) the person offers to the other person a different rebate, gift,
prize or other free item as a replacement; and
(b) the other person agrees to receive the different rebate, gift,
prize or other free item.
(5) Strict liability applies to subsections (1)(b) and (2)(b).
(6) This section does not affect the application of any other provision
of this Part in relation to the supply or acquisition, or the possible
supply or acquisition, of interests in land.
155 Misleading conduct as to the nature etc. of goods
(1) A person commits an offence if the person, in trade or commerce,
engages in conduct that is liable to mislead the public as to the
nature, the manufacturing process, the characteristics, the
suitability for their purpose or the quantity of any goods.
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Schedule 2 The Australian Consumer Law
Chapter 4 Offences
Part 4-1 Offences relating to unfair practices
Division 1 False or misleading representations etc.
Section 156
230 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) Subsection (1) is an offence of strict liability.
156 Misleading conduct as to the nature etc. of services
(1) A person commits an offence if the person, in trade or commerce,
engages in conduct that is liable to mislead the public as to the
nature, the characteristics, the suitability for their purpose or the
quantity of any services.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) Subsection (1) is an offence of strict liability.
157 Bait advertising
(1) A person commits an offence if:
(a) the person, in trade or commerce, advertises goods or
services for supply at a specified price; and
(b) there are reasonable grounds for believing that the person
will not be able to offer for supply those goods or services at
that price for a period that is, and in quantities that are,
reasonable, having regard to:
(i) the nature of the market in which the person carries on
business; and
(ii) the nature of the advertisement.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce, advertises goods or
services for supply at a specified price; and
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Offences relating to unfair practices Part 4-1
False or misleading representations etc. Division 1
Section 158
Competition and Consumer Act 2010 231
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) the person fails to offer such goods or services for supply at
that price for a period that is, and in quantities that are,
reasonable having regard to:
(i) the nature of the market in which the person carries on
business; and
(ii) the nature of the advertisement.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(3) Subsections (1) and (2) are offences of strict liability.
(4) In a prosecution of a person (the defendant) under subsection (2),
for failing to offer goods or services to another person (the
customer), it is a defence if:
(a) the defendant proves that:
(i) he or she offered to supply, or to procure a third person
to supply, goods or services of the kind advertised to the
customer within a reasonable time, in a reasonable
quantity and at the advertised price; or
(ii) he or she offered to supply immediately, or to procure a
third person to supply within a reasonable time,
equivalent goods or services to the customer in a
reasonable quantity and at the price at which the
first-mentioned goods or services were advertised; and
(b) in either case, if the offer was accepted by the customer, the
defendant proves that he or she has so supplied, or procured a
third person to supply, the goods or services.
158 Wrongly accepting payment
(1) A person commits an offence if:
(a) the person, in trade or commerce, accepts payment or other
consideration for goods or services; and
(b) at the time of the acceptance, the person intends not to supply
the goods or services.
Penalty:
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Chapter 4 Offences
Part 4-1 Offences relating to unfair practices
Division 1 False or misleading representations etc.
Section 158
232 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) Strict liability applies to subsection (1)(a).
(3) A person commits an offence if:
(a) the person, in trade or commerce, accepts payment or other
consideration for goods or services; and
(b) at the time of the acceptance, the person intends to supply
goods or services materially different from the goods or
services in respect of which the payment or other
consideration is accepted.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(4) Strict liability applies to subsection (3)(a).
(5) A person commits an offence if:
(a) the person, in trade or commerce, accepts payment or other
consideration for goods or services; and
(b) at the time of the acceptance, the person was reckless as to
whether he or she would be able to supply the goods or
services:
(i) within the period specified by or on behalf of the person
at or before the time the payment or other consideration
was accepted; or
(ii) if no period is specified at or before that time—within a
reasonable time.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(6) Strict liability applies to subsection (5)(a).
(7) A person commits an offence if:
(a) the person, in trade or commerce, accepts payment or other
consideration for goods or services; and
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Offences Chapter 4
Offences relating to unfair practices Part 4-1
False or misleading representations etc. Division 1
Section 159
Competition and Consumer Act 2010 233
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) the person fails to supply all the goods or services:
(i) within the period specified by or on behalf of the person
at or before the time the payment or other consideration
was accepted; or
(ii) if no period is specified at or before that time—within a
reasonable time.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(8) Subsection (7) does not apply if:
(a) the person’s failure to supply all the goods or services within
the period, or within a reasonable time, was due to the act or
omission of another person, or to some other cause beyond
the person’s control; and
(b) the person took reasonable precautions and exercised due
diligence to avoid the failure.
(9) Subsection (7) does not apply if:
(a) the person offers to supply different goods or services as a
replacement to the person (the customer) to whom the
original supply was to be made; and
(b) the customer agrees to receive the different goods or services.
(10) Subsection (7) is an offence of strict liability.
(11) Subsections (1), (3), (5) and (7) apply whether or not the payment
or other consideration that the person accepted represents the
whole or a part of the payment or other consideration for the
supply of the goods or services.
159 Misleading representations about certain business activities
(1) A person commits an offence if:
(a) the person, in trade or commerce, makes a representation;
and
(b) the representation is false or misleading in a material
particular; and
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Schedule 2 The Australian Consumer Law
Chapter 4 Offences
Part 4-1 Offences relating to unfair practices
Division 1 False or misleading representations etc.
Section 160
234 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(c) the representation concerns the profitability, risk or any other
material aspect of any business activity that the person has
represented as one that can be, or can be to a considerable
extent, carried on at or from a person’s place of residence.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce, makes a representation;
and
(b) the representation is false or misleading in a material
particular; and
(c) the representation concerns the profitability, risk or any other
material aspect of any business activity:
(i) that the person invites (whether by advertisement or
otherwise) other persons to engage or participate in, or
to offer or apply to engage or participate in; and
(ii) that requires the performance of work by other persons,
or the investment of money by other persons and the
performance by them of work associated with the
investment.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(3) Subsections (1) and (2) are offences of strict liability.
160 Application of provisions of this Division to information
providers
(1) Sections 151, 152, 155, 156 and 159 do not apply to a publication
of matter by an information provider if:
(a) in any case—the information provider made the publication
in the course of carrying on a business of providing
information; or
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Offences Chapter 4
Offences relating to unfair practices Part 4-1
False or misleading representations etc. Division 1
Section 160
Competition and Consumer Act 2010 235
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) if the information provider is the Australian Broadcasting
Corporation, the Special Broadcasting Service Corporation or
the holder of a licence granted under the Broadcasting
Services Act 1992—the publication was by way of a radio or
television broadcast by the information provider.
(2) Subsection (1) does not apply to a publication of an advertisement.
(3) Subsection (1) does not apply to a publication of matter in
connection with the supply or possible supply of, or the promotion
by any means of the supply or use of, goods or services (the
publicised goods or services), if:
(a) the publicised goods or services were goods or services of a
kind supplied by the information provider or, if the
information provider is a body corporate, by a body corporate
that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a person who
supplies goods or services of the same kind as the publicised
goods or services; or
(c) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a body
corporate that is related to a body corporate that supplies
goods or services of the same kind as the publicised goods or
services.
(4) Subsection (1) does not apply to a publication of matter in
connection with the sale or grant, or possible sale or grant, of, or
the promotion by any means of the sale or grant of, interests in land
(the publicised interests in land), if:
(a) the publicised interests in land were interests of a kind sold
or granted by the information provider or, if the information
provider is a body corporate, by a body corporate that is
related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a person who
sells or grants interests of the same kind as the publicised
interests in land; or
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Schedule 2 The Australian Consumer Law
Chapter 4 Offences
Part 4-1 Offences relating to unfair practices
Division 1 False or misleading representations etc.
Section 160
236 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(c) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a body
corporate that is related to a body corporate that sells or
grants interests of the same kind as the publicised interests in
land.
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The Australian Consumer Law Schedule 2
Offences Chapter 4
Offences relating to unfair practices Part 4-1
Unsolicited supplies Division 2
Section 161
Competition and Consumer Act 2010 237
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 2—Unsolicited supplies
161 Unsolicited cards etc.
(1) A person commits an offence if:
(a) the person sends a credit card or a debit card, or an article
that may be used as a credit card and a debit card, to another
person; and
(b) either:
(i) the person had issued the card; or
(ii) the card was sent on behalf of the person who had
issued the card.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) Subsection (1) does not apply if the person sends the card to the
other person:
(a) pursuant to a written request by the person who will be under
a liability to the person who issued the card or article in
respect of the use of the card or article; or
(b) in renewal or replacement of, or in substitution for:
(i) a card or article of the same kind previously sent to the
other person pursuant to a written request by the person
who was under a liability, to the person who issued the
card previously so sent, in respect of the use of that
card; or
(ii) a card or article of the same kind previously sent to the
other person and used for a purpose for which it was
intended to be used.
(3) A person commits an offence if the person takes any action that
enables another person who has a credit card to use the card as a
debit card.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
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Schedule 2 The Australian Consumer Law
Chapter 4 Offences
Part 4-1 Offences relating to unfair practices
Division 2 Unsolicited supplies
Section 162
238 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) if the person is not a body corporate—$220,000.
(4) A person commits an offence if the person takes any action that
enables another person who has a debit card to use the card as a
credit card.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(5) Subsection (3) or (4) does not apply if the person takes the action
in accordance with the other person’s written request.
(6) Subsections (1), (3) and (4) are offences of strict liability.
162 Assertion of right to payment for unsolicited goods or services
(1) A person commits an offence if the person, in trade or commerce,
asserts a right to payment from another person for unsolicited
goods.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if the person, in trade or commerce,
asserts a right to payment from another person for unsolicited
services.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(3) A person commits an offence if the person, in trade or commerce,
sends to another person an invoice or other document that:
(a) states the amount of a payment, or sets out the charge, for
supplying unsolicited goods or unsolicited services; and
(b) does not contain a warning statement that complies with the
requirements set out in the regulations made for the purposes
of section 40(3)(b).
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The Australian Consumer Law Schedule 2
Offences Chapter 4
Offences relating to unfair practices Part 4-1
Unsolicited supplies Division 2
Section 163
Competition and Consumer Act 2010 239
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(4) Subsection (1), (2) or (3) does not apply if the person proves that
he or she had reasonable cause to believe that there was a right to
the payment or charge.
(5) Subsections (1), (2) and (3) are offences of strict liability.
163 Assertion of right to payment for unauthorised entries or
advertisements
(1) A person commits an offence if the person asserts a right to
payment from another person of a charge for placing, in a
publication, an entry or advertisement relating to:
(a) the other person; or
(b) the other person’s profession, business, trade or occupation.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if the person sends to another person
an invoice or other document that:
(a) states the amount of a payment, or sets out the charge, for
placing, in a publication, an entry or advertisement relating
to:
(i) the other person; or
(ii) the other person’s profession, business, trade or
occupation; and
(b) does not contain a warning statement that complies with the
requirements set out in the regulations made for the purposes
of section 43(2)(b).
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
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Chapter 4 Offences
Part 4-1 Offences relating to unfair practices
Division 2 Unsolicited supplies
Section 163
240 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) Subsections (1) and (2) do not apply if the person proves that he or
she knew, or had reasonable cause to believe, that the other person
authorised the placing of the entry or advertisement.
(4) Subsections (1) and (2) do not apply to an entry or advertisement
that is placed in a publication published by a person who is:
(a) the publisher of a publication that has an audited circulation
of 10,000 copies or more per week, as confirmed by the most
recent audit of the publication by a body specified in the
regulations made for the purposes of section 43(3)(a); or
(b) a body corporate related to such a publisher; or
(c) the Commonwealth, a State or a Territory, or an authority of
the Commonwealth, a State or a Territory; or
(d) a person specified in regulations made for the purposes of
section 43(3)(d).
(5) Subsections (1) and (2) are offences of strict liability.
(6) A person is not taken for the purposes of this section to have
authorised the placing of the entry or advertisement, unless:
(a) a document authorising the placing of the entry or
advertisement has been signed by the person or by another
person authorised by him or her; and
(b) a copy of the document has been given to the person before
the right to payment of a charge for the placing of the entry
or advertisement is asserted; and
(c) the document specifies:
(i) the name and address of the person publishing the entry
or advertisement; and
(ii) particulars of the entry or advertisement; and
(iii) the amount of the charge for the placing of the entry or
advertisement, or the basis on which the charge is, or is
to be, calculated.
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Offences Chapter 4
Offences relating to unfair practices Part 4-1
Pyramid schemes Division 3
Section 164
Competition and Consumer Act 2010 241
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 3—Pyramid schemes
164 Participation in pyramid schemes
(1) A person commits an offence if the person participates in a
pyramid scheme.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if the person induces another person
to participate in a pyramid scheme.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(3) Subsections (1) and (2) are offences of strict liability.
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Chapter 4 Offences
Part 4-1 Offences relating to unfair practices
Division 4 Pricing
Section 165
242 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 4—Pricing
165 Multiple pricing
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies goods; and
(b) the goods have more than one displayed price; and
(c) the supply takes place for a price that is not the lower, or
lowest, of the displayed prices.
Penalty:
(a) if the person is a body corporate—$5,000; or
(b) if the person is not a body corporate—$1,000.
(2) Subsection (1) is an offence of strict liability.
166 Single price to be specified in certain circumstances
(1) A person commits an offence if the person, in trade or commerce,
in connection with:
(a) the supply, or possible supply, to another person of goods or
services of a kind ordinarily acquired for personal, domestic
or household use or consumption; or
(b) the promotion by any means of the supply to another person,
or of the use by another person, of goods or services of a kind
ordinarily acquired for personal, domestic or household use
or consumption;
makes a representation with respect to an amount that, if paid,
would constitute a part of the consideration for the supply of the
goods or services.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person is not required to include, in the single price for goods, a
charge that is payable in relation to sending the goods from the
supplier to the other person.
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Offences Chapter 4
Offences relating to unfair practices Part 4-1
Pricing Division 4
Section 166
Competition and Consumer Act 2010 243
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(3) Subsection (1) does not apply if the person also:
(a) specifies, in a prominent way and as a single figure, the
single price for the goods or services; and
(b) if, in relation to goods:
(i) the person does not include in the single price a charge
that is payable in relation to sending the goods from the
supplier to the other person; and
(ii) the person knows, at the time of the representation, the
minimum amount of a charge in relation to sending the
goods from the supplier to the other person that must be
paid by the other person;
specifies that minimum amount.
(4) Subsection (1) does not apply if the representation is made
exclusively to a body corporate.
(5) For the purposes of subsection (3)(a), the person is taken not to
have specified a single price for the goods or services in a
prominent way unless the single price is at least as prominent as
the most prominent of the parts of the consideration for the supply.
(6) Subsection (5) does not apply in relation to services to be supplied
under a contract if:
(a) the contract provides for the supply of the services for the
term of the contract; and
(b) the contract provides for periodic payments for the services
to be made during the term of the contract; and
(c) if the contract also provides for the supply of goods—the
goods are directly related to the supply of the services.
(7) Subsection (1) is an offence of strict liability.
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Schedule 2 The Australian Consumer Law
Chapter 4 Offences
Part 4-1 Offences relating to unfair practices
Division 5 Other unfair practices
Section 167
244 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 5—Other unfair practices
167 Referral selling
(1) A person commits an offence if:
(a) the person, in trade or commerce, induces a consumer to
acquire goods or services by representing that the consumer
will, after the contract for the acquisition of the goods or
services is made, receive a rebate, commission or other
benefit in return for:
(i) giving the person the names of prospective customers;
or
(ii) otherwise assisting the person to supply goods or
services to other consumers; and
(b) the receipt of the rebate, commission or other benefit is
contingent on an event occurring after that contract is made.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) Subsection (1) is an offence of strict liability.
168 Harassment and coercion
(1) A person commits an offence if:
(a) the person uses physical force, or undue harassment or
coercion; and
(b) the physical force, or undue harassment or coercion is used in
connection with:
(i) the supply or possible supply of goods or services; or
(ii) the payment for goods or services; or
(iii) the sale or grant, or the possible sale or grant, of an
interest in land; or
(iv) the payment for an interest in land.
Penalty:
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The Australian Consumer Law Schedule 2
Offences Chapter 4
Offences relating to unfair practices Part 4-1
Other unfair practices Division 5
Section 168
Competition and Consumer Act 2010 245
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) Subsection (1) is an offence of strict liability.
(3) Subsections (1)(b)(iii) and (iv) do not affect the application of any
other provision of this Part in relation to the supply or acquisition,
or the possible supply or acquisition, of interests in land.
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Schedule 2 The Australian Consumer Law
Chapter 4 Offences
Part 4-2 Offences relating to consumer transactions
Division 1 Consumer guarantees
Section 169
246 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part 4-2—Offences relating to consumer transactions
Division 1—Consumer guarantees
169 Display notices
(1) A person commits an offence if:
(a) the person makes a supply to a consumer to which:
(i) guarantees apply under Division 1 of Part 3-2; and
(ii) a determination under subsection 66(1) applies; and
(b) a notice that meets the requirements of the determination is
not, in accordance with the determination:
(i) if the consumer takes delivery of the goods or services
at the supplier’s premises—displayed at those premises;
or
(ii) otherwise—drawn to the consumer’s attention before
the consumer agrees to the supply of the goods.
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) Subsection (1) is an offence of strict liability.
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The Australian Consumer Law Schedule 2
Offences Chapter 4
Offences relating to consumer transactions Part 4-2
Unsolicited consumer agreements Division 2
Section 170
Competition and Consumer Act 2010 247
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 2—Unsolicited consumer agreements
Subdivision A—Negotiating unsolicited consumer agreements
170 Permitted hours for negotiating an unsolicited consumer
agreement
(1) A dealer commits an offence if the dealer calls on a person for the
purpose of negotiating an unsolicited consumer agreement, or for
an incidental or related purpose:
(a) at any time on a Sunday or a public holiday; or
(b) before 9 am on any other day; or
(c) after 6 pm on any other day (or after 5 pm if the other day is
a Saturday).
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) Subsection (1) does not apply if the dealer calls on, or telephones,
the person in accordance with consent that:
(a) was given by the person to the dealer or a person acting on
the dealer’s behalf; and
(b) was not given in the presence of the dealer or a person acting
on the dealer’s behalf.
(3) Subsection (1) is an offence of strict liability.
171 Disclosing purpose and identity
(1) A dealer commits an offence if the dealer:
(a) calls on a person for the purpose of negotiating an unsolicited
consumer agreement, or for an incidental or related purpose;
and
(b) does not as soon as practicable and in any event before
starting to negotiate:
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Schedule 2 The Australian Consumer Law
Chapter 4 Offences
Part 4-2 Offences relating to consumer transactions
Subdivision A Negotiating unsolicited consumer agreements
Section 172
248 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(i) clearly advise the person that the dealer’s purpose is to
seek the person’s agreement to a supply of the goods or
services concerned; and
(ii) clearly advise the person that the dealer is obliged to
leave the premises immediately on request; and
(iii) provide to the person such information relating to the
dealer’s identity as is prescribed by the regulations
made for the purposes of section 74(c).
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) Subsection (1) is an offence of strict liability.
172 Ceasing to negotiate on request
(1) A dealer commits an offence if the dealer:
(a) calls on a person at any premises for the purpose of
negotiating an unsolicited consumer agreement, or for an
incidental or related purpose; and
(b) does not leave the premises immediately on the request of:
(i) the occupier of the premises, or any person acting with
the actual or apparent authority of the occupier; or
(ii) the person (the prospective consumer) with whom the
negotiations are being conducted.
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) A dealer commits an offence if:
(a) the prospective consumer has made the request referred to in
subsection (1)(b); and
(b) the dealer contacts the prospective consumer for the purpose
of negotiating an unsolicited consumer agreement (or for an
incidental or related purpose) within 30 days after the
prospective consumer made the request.
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Offences relating to consumer transactions Part 4-2
Negotiating unsolicited consumer agreements Subdivision A
Section 173
Competition and Consumer Act 2010 249
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(3) If the dealer is not, or is not to be, the supplier of the goods or
services to which the negotiations relate, subsection (2) applies to
that supplier, and any person acting on behalf of the supplier, in the
same way that it applies to the dealer.
(4) Subsection (2) does not apply to the dealer contacting the
prospective consumer if:
(a) the dealer is not, or is not to be, the supplier of the goods or
services to which the negotiations relate; and
(b) the contact relates to a supply by another supplier.
(5) Subsections (1) and (2) are offences of strict liability.
173 Informing person of termination period etc.
(1) A dealer commits an offence if the dealer makes an unsolicited
consumer agreement with a person, and:
(a) before the agreement is made, the person is not given
information as to the following:
(i) the person’s right to terminate the agreement during the
termination period;
(ii) the way in which the person may exercise that right;
(iii) such other matters as are prescribed by regulations made
for the purposes of section 76(a)(iii); or
(b) if the agreement is made in the presence of both the dealer
and the person—the person is not given the information in
writing; or
(c) if the agreement is made by telephone—the person is not:
(i) given the information by telephone; and
(ii) subsequently given the information in writing; or
(d) the form in which, and the way in which, the person is given
the information does not comply with any other requirements
prescribed by regulations made for the purposes of
section 76(d).
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Part 4-2 Offences relating to consumer transactions
Subdivision B Requirements for unsolicited consumer agreements etc.
Section 174
250 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) If:
(a) a dealer contravenes subsection (1) in relation to an
unsolicited consumer agreement; and
(b) the dealer is not, or is not to be, the supplier of the goods or
services to which the agreement relates;
the supplier of the goods or services is also taken to have
contravened subsection (1) in relation to the agreement.
(3) Subsection (1) is an offence of strict liability.
Subdivision B—Requirements for unsolicited consumer
agreements etc.
174 Requirement to give document to the consumer
(1) The dealer who negotiated an unsolicited consumer agreement
commits an offence if:
(a) the agreement was not negotiated by telephone; and
(b) the dealer does not give a copy of the agreement to the
consumer under the agreement immediately after the
consumer signs the agreement.
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) The dealer who negotiated an unsolicited consumer agreement
commits an offence if:
(a) the agreement was negotiated by telephone; and
(b) the dealer does not, within 5 business days after the
agreement was made or such longer period agreed by the
parties, give to the consumer under the agreement:
(i) personally; or
(ii) by post; or
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Offences relating to consumer transactions Part 4-2
Requirements for unsolicited consumer agreements etc. Subdivision B
Section 175
Competition and Consumer Act 2010 251
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(iii) with the consumer’s consent—by electronic
communication;
an agreement document evidencing the agreement.
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(3) Subsections (1) and (2) are offences of strict liability.
175 Requirements for all unsolicited consumer agreements etc.
(1) The supplier under an unsolicited consumer agreement commits an
offence if the agreement, or (if the agreement was negotiated by
telephone) the agreement document, does not comply with the
following requirements:
(a) it must set out in full all the terms of the agreement,
including:
(i) the total consideration to be paid or provided by the
consumer under the agreement or, if the total
consideration is not ascertainable at the time the
agreement is made, the way in which it is to be
calculated; and
(ii) any postal or delivery charges to be paid by the
consumer;
(b) its front page must include a notice that:
(i) conspicuously and prominently informs the consumer of
the consumer’s right to terminate the agreement; and
(ii) conspicuously and prominently sets out any other
information prescribed by regulations made for the
purposes of section 79(b)(ii); and
(iii) complies with any other requirements prescribed by
regulations made for the purposes of section 79(b)(iii);
(c) it must be accompanied by a notice that:
(i) may be used by the consumer to terminate the
agreement; and
(ii) complies with any requirements prescribed by
regulations made for the purposes of section 79(c)(ii);
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Subdivision B Requirements for unsolicited consumer agreements etc.
Section 176
252 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(d) it must conspicuously and prominently set out in full:
(i) the supplier’s name; and
(ii) if the supplier has an ABN—the supplier’s ABN; and
(iii) if the supplier does not have an ABN but has an ACN—
the supplier’s ACN; and
(iv) the supplier’s business address (not being a post box) or,
if the supplier does not have a business address, the
supplier’s residential address; and
(v) if the supplier has an email address—the supplier’s
email address; and
(vi) if the supplier has a fax number—the supplier’s fax
number;
(e) it must be printed clearly or typewritten (apart from any
amendments to the printed or typewritten form, which may
be handwritten);
(f) it must be transparent.
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) Subsection (1) is an offence of strict liability.
176 Additional requirements for unsolicited consumer agreements
not negotiated by telephone
(1) The supplier under an unsolicited consumer agreement that was not
negotiated by telephone commits an offence if the agreement does
not comply with the following requirements:
(a) the agreement must be signed by the consumer under the
agreement;
(b) if the agreement is signed by a person on the supplier’s
behalf—the agreement must state that the person is acting on
the supplier’s behalf, and must set out in full:
(i) the person’s name; and
(ii) the person’s business address (not being a post box) or,
if the person does not have a business address, the
person’s residential address; and
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Offences Chapter 4
Offences relating to consumer transactions Part 4-2
Terminating unsolicited consumer agreements Subdivision C
Section 177
Competition and Consumer Act 2010 253
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(iii) if the person has an email address—the person’s email
address.
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) Subsection (1) is an offence of strict liability.
(3) This section does not limit the operation of section 175.
177 Requirements for amendments of unsolicited consumer
agreements
(1) The supplier under an unsolicited consumer agreement commits an
offence if any amendments to the agreement are not signed by both
parties to the agreement.
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) Subsection (1) is an offence of strict liability.
Subdivision C—Terminating unsolicited consumer agreements
178 Obligations of suppliers on termination
(1) The supplier under an unsolicited consumer agreement commits an
offence if:
(a) the agreement is terminated in accordance with section 82;
and
(b) the supplier does not, immediately upon being notified of the
termination, return or refund to the consumer under the
agreement any consideration (or the value of any
consideration) that the consumer gave under the agreement or
a related contract or instrument.
Penalty:
(a) if the person is a body corporate—$50,000; or
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Chapter 4 Offences
Part 4-2 Offences relating to consumer transactions
Subdivision C Terminating unsolicited consumer agreements
Section 179
254 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(b) if the person is not a body corporate—$10,000.
(2) Subsection (1) is an offence of strict liability.
179 Prohibition on supplies for 10 business days
(1) The supplier under an unsolicited consumer agreement commits an
offence if:
(a) the supplier:
(i) supplies to the consumer under the agreement the goods
or services to be supplied under the agreement; or
(ii) accepts any payment, or any other consideration, in
connection with those goods or services; or
(iii) requires any payment, or any other consideration, in
connection with those goods or services; and
(b) the supply, acceptance or requirement occurs during the
period of 10 business days starting:
(i) if the agreement was not negotiated by telephone—at
the start of the first business day after the day on which
the agreement was made; or
(ii) if the agreement was negotiated by telephone—at the
start of the first business day after the day on which the
consumer was given the agreement document relating to
the agreement.
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) Strict liability applies to subsection (1)(a).
180 Repayment of payments received after termination
(1) The supplier under an unsolicited consumer agreement commits an
offence if:
(a) the agreement is terminated in accordance with section 82;
and
(b) the supplier does not immediately refund to the consumer
under the agreement any payment:
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Offences relating to consumer transactions Part 4-2
Terminating unsolicited consumer agreements Subdivision C
Section 181
Competition and Consumer Act 2010 255
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(i) that the consumer, or a person acting on the consumer’s
behalf, makes to the supplier after the termination; and
(ii) that purports to be made under the agreement or a
related contract or instrument.
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) Subsection (1) is an offence of strict liability.
181 Prohibition on recovering amounts after termination
(1) A person commits an offence if:
(a) an unsolicited consumer agreement is terminated in
accordance with section 82; and
(b) the person:
(i) brings, or asserts an intention to bring, legal proceedings
against the consumer; or
(ii) takes, or asserts an intention to take, any other action
against the consumer;
in relation to an amount alleged to be payable, under the
agreement or a related contract or instrument, by the
consumer under the agreement.
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) A person commits an offence if:
(a) an unsolicited consumer agreement is terminated in
accordance with section 82; and
(b) for the purpose of recovering an amount alleged to be
payable, under the agreement or a related contract or
instrument, by the consumer under the agreement, the person:
(i) places the consumer’s name, or causes the consumer’s
name to be placed, on a list of defaulters or debtors; or
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Chapter 4 Offences
Part 4-2 Offences relating to consumer transactions
Subdivision D Miscellaneous
Section 182
256 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(ii) asserts an intention to place the consumer’s name, or to
cause the consumer’s name to be placed, on such a list.
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(3) Subsection (1) is an offence of strict liability.
(4) Strict liability applies to subsection (2)(a).
Subdivision D—Miscellaneous
182 Certain provisions of unsolicited consumer agreements void
(1) The supplier under an unsolicited consumer agreement commits an
offence if the agreement includes, or purports to include, a
provision (however described) that is, or would be, void because of
section 89(1).
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) The supplier under an unsolicited consumer agreement commits an
offence if the supplier attempts to enforce or rely on a provision
(however described) that is void because of section 89(1).
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(3) Subsections (1) and (2) are offences of strict liability.
183 Waiver of rights
(1) The supplier under an unsolicited consumer agreement commits an
offence if the supplier induces the consumer to waive any right
conferred by Division 2 of Part 3-2.
Penalty:
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Miscellaneous Subdivision D
Section 184
Competition and Consumer Act 2010 257
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) Subsection (1) is an offence of strict liability.
184 Application of this Division to persons to whom rights of
consumers and suppliers are assigned etc.
(1) This Division applies in relation to a person to whom the rights of
a consumer (the original consumer) under a contract for the supply
of goods or services are assigned or transferred, or pass by
operation of law, (whether from the original consumer or from
another person) as if the person were the original consumer.
(2) This Division applies in relation to a person to whom the rights of
a supplier (the original supplier) under a contract for the supply of
goods or services are assigned or transferred, or pass by operation
of law, (whether from the original supplier or from another person)
as if the person were the original supplier.
185 Application of this Division to supplies to third parties
This Division applies in relation to a contract for the supply of
goods or services to a consumer (the original consumer) on the
order of another person as if the other person were also the
consumer.
186 Regulations may limit the application of this Division
This Division (other than section 170) does not apply, or
provisions of this Division (other than section 170) that are
specified in regulations made for the purposes of section 94 do not
apply, to or in relation to:
(a) circumstances of a kind specified in those regulations; or
(b) agreements of a kind specified in those regulations; or
(c) the conduct of businesses of a kind specified in those
regulations.
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Subdivision D Miscellaneous
Section 187
258 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
187 Application of this Division to certain conduct covered by the
Corporations Act
This Division does not apply in relation to conduct to which
section 736, 992A or 992AA of the Corporations Act 2001 applies.
Note: Section 736 of the Corporations Act 2001 prohibits hawking of
securities. Section 992A of that Act prohibits hawking of certain
financial products. Section 992AA of that Act prohibits hawking of
managed investment products.
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Offences relating to consumer transactions Part 4-2
Lay-by agreements Division 3
Section 188
Competition and Consumer Act 2010 259
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 3—Lay-by agreements
188 Lay-by agreements must be in writing etc.
(1) A supplier of goods who is a party to a lay-by agreement commits
an offence if:
(a) the agreement is not in writing; or
(b) a copy of the agreement is not given to the consumer to
whom the goods are, or are to be, supplied.
Penalty:
(a) if the person is a body corporate—$30,000; or
(b) if the person is not a body corporate—$6,000.
(2) Subsection (1) is an offence of strict liability.
189 Termination charges
(1) A supplier of goods who is a party to a lay-by agreement commits
an offence if the agreement requires the consumer to pay a
termination charge.
Penalty:
(a) if the person is a body corporate—$30,000; or
(b) if the person is not a body corporate—$6,000.
(2) Subsection (1) does not apply if the termination charge is payable
only if:
(a) the agreement is terminated by the consumer; and
(b) the supplier has not breached the agreement.
(3) A supplier of goods who is a party to a lay-by agreement commits
an offence if:
(a) the agreement provides that a termination charge is payable;
and
(b) the amount of the charge is more than the supplier’s
reasonable costs in relation to the agreement.
Penalty:
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Part 4-2 Offences relating to consumer transactions
Division 3 Lay-by agreements
Section 190
260 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) if the person is a body corporate—$30,000; or
(b) if the person is not a body corporate—$6,000.
(4) Subsections (1) and (3) are offences of strict liability.
190 Termination of lay-by agreements by suppliers
(1) A supplier of goods who is a party to a lay-by agreement commits
an offence if the supplier terminates the agreement.
Penalty:
(a) if the person is a body corporate—$30,000; or
(b) if the person is not a body corporate—$6,000.
(2) Subsection (1) does not apply if:
(a) the consumer who is a party to the agreement breached a
term of the agreement; or
(b) the supplier is no longer engaged in trade or commerce; or
(c) the goods to which the agreement relates are no longer
available.
(3) Subsection (1) is an offence of strict liability.
191 Refund of amounts
(1) A supplier of goods who is a party to a lay-by agreement commits
an offence if:
(a) the agreement is terminated by a party to the agreement; and
(b) the supplier fails to refund to the consumer all the amounts
paid by the consumer under the agreement (other than any
termination charge that is payable under the agreement).
Penalty:
(a) if the person is a body corporate—$30,000; or
(b) if the person is not a body corporate—$6,000.
(2) Subsection (1) is an offence of strict liability.
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Offences relating to consumer transactions Part 4-2
Miscellaneous Division 4
Section 192
Competition and Consumer Act 2010 261
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 4—Miscellaneous
192 Prescribed requirements for warranties against defects
(1) A person commits an offence if the person, in connection with the
supply, in trade or commerce, of goods or services to a consumer:
(a) gives to the consumer a document that evidences a warranty
against defects and that does not comply with the
requirements prescribed for the purposes of section 102(1);
or
(b) represents directly to the consumer that the goods or services
are goods or services to which such a warranty against
defects relates.
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) Subsection (1) is an offence of strict liability.
193 Repairers must comply with prescribed requirements
(1) A person commits an offence if:
(a) the person accepts from another person goods that the other
person acquired as a consumer; and
(b) the goods are accepted for the purpose of repairing them; and
(c) the person does not give to the other person a notice that
complies with the requirements prescribed for the purposes
of section 103(1).
Penalty:
(a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate—$10,000.
(2) Subsection (1) is an offence of strict liability.
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Chapter 4 Offences
Part 4-3 Offences relating to safety of consumer goods and product related services
Division 1 Safety standards
Section 194
262 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part 4-3—Offences relating to safety of consumer goods
and product related services
Division 1—Safety standards
194 Supplying etc. consumer goods that do not comply with safety
standards
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies consumer goods
of a particular kind; and
(b) a safety standard for consumer goods of that kind is in force;
and
(c) those goods do not comply with the standard.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers for supply (other
than for export) consumer goods of a particular kind; and
(b) a safety standard for consumer goods of that kind is in force;
and
(c) those goods do not comply with the standard.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(3) A person commits an offence if:
(a) the person, in or for the purposes of trade or commerce,
manufactures, possesses or has control of consumer goods of
a particular kind; and
(b) a safety standard for consumer goods of that kind is in force;
and
(c) those goods do not comply with the standard.
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Offences relating to safety of consumer goods and product related services Part 4-3
Safety standards Division 1
Section 195
Competition and Consumer Act 2010 263
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(4) Subsection (3) does not apply if the person does not manufacture,
possess or control the goods for the purpose of supplying the goods
(other than for export).
(5) A person commits an offence if:
(a) the person, in trade or commerce, exports consumer goods of
a particular kind; and
(b) a safety standard for consumer goods of that kind is in force;
and
(c) those goods do not comply with the standard.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(6) Subsection (5) does not apply if the Commonwealth Minister has,
by written notice given to the person, approved the export of the
goods under section 106(5).
(7) Subsections (1), (2), (3) and (5) are offences of strict liability.
195 Supplying etc. product related services that do not comply with
safety standards
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies product related
services of a particular kind; and
(b) a safety standard for services of that kind is in force; and
(c) those services do not comply with the standard.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if:
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Chapter 4 Offences
Part 4-3 Offences relating to safety of consumer goods and product related services
Division 1 Safety standards
Section 196
264 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(a) the person, in trade or commerce, offers for supply product
related services of a particular kind; and
(b) a safety standard for services of that kind is in force; and
(c) those services do not comply with the standard.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(3) Subsections (1) and (2) are offences of strict liability.
196 Requirement to nominate a safety standard
(1) A person commits an offence if the person refuses or fails to
comply with a request given to the person under section 108.
Penalty:
(a) if the person is a body corporate—$22,000; or
(b) if the person is not a body corporate—$4,400.
(2) Subsection (1) is an offence of strict liability.
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Offences relating to safety of consumer goods and product related services Part 4-3
Bans on consumer goods and product related services Division 2
Section 197
Competition and Consumer Act 2010 265
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 2—Bans on consumer goods and product related
services
197 Supplying etc. consumer goods covered by a ban
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies consumer goods
of a particular kind; and
(b) either:
(i) an interim ban on goods of that kind is in force in the
place where the supply occurs; or
(ii) a permanent ban on goods of that kind is in force.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers for supply (other
than for export) consumer goods of a particular kind; and
(b) the supply would be prohibited by subsection (1).
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(3) A person commits an offence if:
(a) the person, in or for the purposes of trade or commerce,
manufactures, possesses or has control of consumer goods of
a particular kind; and
(b) supply of the goods would be prohibited by subsection (1).
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
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Chapter 4 Offences
Part 4-3 Offences relating to safety of consumer goods and product related services
Division 2 Bans on consumer goods and product related services
Section 198
266 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(4) Subsection (3) does not apply if the person does not manufacture,
possess or control the goods for the purpose of supplying the goods
(other than for export).
(5) A person commits an offence if:
(a) the person exports consumer goods of a particular kind; and
(b) supply of the goods would be prohibited by subsection (1).
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(6) Subsection (5) does not apply if the Commonwealth Minister has,
by written notice given to the person, approved the export of the
goods under section 118(5).
(7) Subsections (1), (2), (3) and (5) are offences of strict liability.
198 Supplying etc. product related services covered by a ban
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies product related
services of a particular kind; and
(b) either:
(i) an interim ban on services of that kind is in force in the
place where the supply occurs; or
(ii) a permanent ban on services of that kind is in force.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers for supply product
related services of a particular kind; and
(b) the supply would be prohibited by subsection (1).
Penalty:
(a) if the person is a body corporate—$1,100,000; or
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Section 198
Competition and Consumer Act 2010 267
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(b) if the person is not a body corporate—$220,000.
(3) Subsections (1) and (2) are offences of strict liability.
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Chapter 4 Offences
Part 4-3 Offences relating to safety of consumer goods and product related services
Division 3 Recall of consumer goods
Section 199
268 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 3—Recall of consumer goods
199 Compliance with recall orders
(1) A person commits an offence if:
(a) a recall notice for consumer goods is in force; and
(b) the notice requires the person (other than the regulator) to do
one or more things; and
(c) the person refuses or fails to comply with the notice.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if:
(a) a recall notice for consumer goods is in force; and
(b) the person, in trade or commerce:
(i) if the notice identifies a defect in, or a dangerous
characteristic of, the consumer goods—supplies
consumer goods of the kind to which the notice relates
which contain that defect or have that characteristic; or
(ii) in any other case—supplies consumer goods of the kind
to which the notice relates.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(3) Subsections (1) and (2) are offences of strict liability.
200 Notification by persons who supply consumer goods outside
Australia if there is compulsory recall
(1) A person commits an offence if:
(a) the person is required by section 125(4) to give a copy of a
notice to a responsible Minister; and
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Recall of consumer goods Division 3
Section 201
Competition and Consumer Act 2010 269
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(b) the person refuses or fails to give the copy as required by that
section.
Penalty:
(a) if the person is a body corporate—$16,650; or
(b) if the person is not a body corporate—$3,330.
(2) Subsection (1) is an offence of strict liability.
201 Notification requirements for a voluntary recall of consumer
goods
(1) A person commits an offence if:
(a) the person is required by section 128(2) to give a notice to
the Commonwealth Minister; and
(b) the person refuses or fails to give the notice as required by
that section.
Penalty:
(a) if the person is a body corporate—$16,650; or
(b) if the person is not a body corporate—$3,330.
(2) A person commits an offence if:
(a) the person is required by section 128(6) to give a copy of a
notice to the Commonwealth Minister; and
(b) the person refuses or fails to give the copy as required by that
section.
Penalty:
(a) if the person is a body corporate—$16,650; or
(b) if the person is not a body corporate—$3,330.
(3) Subsections (1) and (2) are offences of strict liability.
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Chapter 4 Offences
Part 4-3 Offences relating to safety of consumer goods and product related services
Division 4 Consumer goods, or product related services, associated with death or
serious injury or illness
Section 202
270 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 4—Consumer goods, or product related services,
associated with death or serious injury or illness
202 Suppliers to report consumer goods etc. associated with the
death or serious injury or illness of any person
(1) A person commits an offence if:
(a) the person is required by section 131 or 132 to give a notice
to the Commonwealth Minister; and
(b) the person refuses or fails to give the notice as required by
that section.
Penalty:
(a) if the person is a body corporate—$16,650; or
(b) if the person is not a body corporate—$3,330.
(2) Subsection (1) is an offence of strict liability.
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Offences relating to information standards Part 4-4
Section 203
Competition and Consumer Act 2010 271
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Part 4-4—Offences relating to information standards
203 Supplying etc. goods that do not comply with information
standards
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies goods of a
particular kind; and
(b) an information standard for goods of that kind is in force; and
(c) the person has not complied with the standard in relation to
the goods.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers for supply goods of
a particular kind; and
(b) an information standard for goods of that kind is in force; and
(c) the person has not complied with the standard in relation to
the goods.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(3) A person commits an offence if:
(a) the person, in or for the purposes of trade or commerce,
manufactures, possesses or has control of goods of a
particular kind; and
(b) an information standard for goods of that kind is in force; and
(c) the person has not complied with the standard in relation to
the goods.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
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Section 204
272 Competition and Consumer Act 2010
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(b) if the person is not a body corporate—$220,000.
(4) Subsection (3) does not apply if the person does not manufacture,
possess or control the goods for the purpose of supplying the
goods.
(5) Subsection (1), (2) or (3) does not apply to goods that are intended
to be used outside Australia.
(6) Unless the contrary is established, it is presumed, for the purposes
of this section, that goods are intended to be used outside Australia
if either of the following is applied to the goods:
(a) a statement that the goods are for export only;
(b) a statement indicating, by the use of words authorised by
regulations made for the purposes of section 136(6)(b) to be
used for the purposes of section 136(6), that the goods are
intended to be used outside Australia.
(7) Without limiting subsection (6), a statement may, for the purposes
of that subsection, be applied to goods by being:
(a) woven in, impressed on, worked into or annexed or affixed to
the goods; or
(b) applied to a covering, label, reel or thing in or with which the
goods are supplied.
(8) Subsections (1), (2) and (3) are offences of strict liability.
204 Supplying etc. services that do not comply with information
standards
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies services of a
particular kind; and
(b) an information standard for services of that kind is in force;
and
(c) the person has not complied with the standard in relation to
the services.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
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Section 204
Competition and Consumer Act 2010 273
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(b) if the person is not a body corporate—$220,000.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers for supply services
of a particular kind; and
(b) an information standard for services of that kind is in force;
and
(c) the person has not complied with the standard in relation to
the services.
Penalty:
(a) if the person is a body corporate—$1,100,000; or
(b) if the person is not a body corporate—$220,000.
(3) Subsections (1) and (2) are offences of strict liability.
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Chapter 4 Offences
Part 4-5 Offences relating to substantiation notices
Section 205
274 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part 4-5—Offences relating to substantiation notices
205 Compliance with substantiation notices
(1) A person commits an offence if the person:
(a) is given a substantiation notice; and
(b) refuses or fails to comply with it within the substantiation
notice compliance period for the notice.
Penalty:
(a) if the person is a body corporate—$16,500; or
(b) if the person is not a body corporate—$3,300.
(2) Subsection (1) does not apply if:
(a) the person is an individual; and
(b) the person refuses or fails to give particular information or
produce a particular document in compliance with a
substantiation notice; and
(c) the information, or production of the document, might tend to
incriminate the individual or to expose the individual to a
penalty.
(3) Subsection (1) is an offence of strict liability.
206 False or misleading information etc.
(1) A person commits an offence if the person, in compliance or
purported compliance with a substantiation notice given by the
regulator:
(a) gives to the regulator false or misleading information; or
(b) produces to the regulator documents that contain false or
misleading information.
Penalty:
(a) if the person is a body corporate—$27,500; or
(b) if the person is not a body corporate—$5,500.
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Section 206
Competition and Consumer Act 2010 275
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(2) This section does not apply to:
(a) information that the person could not have known was false
or misleading; or
(b) the production to the regulator of a document containing
false or misleading information if the document is
accompanied by a statement of the person that the
information is false or misleading.
(3) Subsection (1) is an offence of strict liability.
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Chapter 4 Offences
Part 4-6 Defences
Section 207
276 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part 4-6—Defences
207 Reasonable mistake of fact
(1) In a prosecution for a contravention of a provision of this Chapter,
it is a defence if the defendant proves that the contravention was
caused by a reasonable mistake of fact, including a mistake of fact
caused by reasonable reliance on information supplied by another
person.
(2) However, subsection (1) does not apply in relation to information
relied upon by the defendant that was supplied to the defendant by
another person who was, at the time when the contravention
occurred:
(a) an employee or agent of the defendant; or
(b) if the defendant is a body corporate—a director, employee or
agent of the defendant.
(3) If a defence provided by subsection (1) involves an allegation that
a contravention was due to reliance on information supplied by
another person, the defendant is not entitled to rely on that defence
unless:
(a) the court gives leave; or
(b) the defendant has, not later than 7 days before the day on
which the hearing of the proceeding commences, served on
the person who instituted the proceeding a written notice
giving such information as the defendant then had that would
identify or assist in identifying the other person.
208 Act or default of another person etc.
(1) In a prosecution for a contravention of a provision of this Chapter,
it is a defence if the defendant proves that:
(a) the contravention was due to the act or default of another
person, to an accident or to some other cause beyond the
defendant’s control; and
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Competition and Consumer Act 2010 277
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(b) the defendant took reasonable precautions and exercised due
diligence to avoid the contravention.
(2) However, subsection (1) does not apply in relation to the act or
default of another person who was, at the time when the
contravention occurred:
(a) an employee or agent of the defendant; or
(b) if the defendant is a body corporate—a director, employee or
agent of the defendant.
(3) If a defence provided by subsection (1) involves an allegation that
a contravention was due to the act or default of another person, the
defendant is not entitled to rely on that defence unless:
(a) the court gives leave; or
(b) the defendant has, not later than 7 days before the day on
which the hearing of the proceeding commences, served on
the person who instituted the proceeding a written notice
giving such information as the defendant then had that would
identify or assist in identifying the other person.
209 Publication of advertisements in the ordinary course of business
In a prosecution for a contravention of a provision of this Chapter
that was committed by publication of an advertisement, it is a
defence if the defendant proves that:
(a) the defendant is a person whose business it is to publish or
arrange for the publication of advertisements; and
(b) the defendant received the advertisement for publication in
the ordinary course of business; and
(c) the defendant did not know, and had no reason to suspect,
that its publication would amount to a contravention of such
a provision.
210 Supplying goods acquired for the purpose of re-supply
(1) In a prosecution for a contravention of a provision of this Chapter
that was committed by supplying goods in contravention of
section 194 or 203, it is a defence if the defendant proves that:
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(a) the goods were acquired by the defendant for the purpose of
re-supply; and
(b) the goods were so acquired from a person who carried on in
Australia a business of supplying such goods otherwise than
as the agent of a person outside Australia; and
(c) in the case of a contravention of section 194—the defendant:
(i) did not know, and could not with reasonable diligence
have ascertained, that the goods did not comply with the
safety standard to which the contravention relates; or
(ii) relied in good faith on a representation by the person
from whom the defendant acquired the goods that there
was no safety standard for such goods; and
(d) in the case of a contravention of section 203—the defendant:
(i) did not know, and could not with reasonable diligence
have ascertained, that the defendant had not complied
with the information standard to which the
contravention relates; or
(ii) relied in good faith on a representation by the person
from whom the defendant acquired the goods that there
was no information standard for such goods.
Note: Section 194 is about supply of consumer goods that do not comply
with safety standards, and section 203 is about supply of goods that do
not comply with information standards.
(2) A defendant is not entitled to rely on the defence provided by
subsection (1) unless:
(a) the court gives leave; or
(b) the defendant has, not later than 7 days before the day on
which the hearing of the proceeding commences, served on
the person who instituted the proceeding a written notice
identifying the person from whom the defendant acquired the
goods.
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Defences Part 4-6
Section 211
Competition and Consumer Act 2010 279
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211 Supplying services acquired for the purpose of re-supply
(1) In a prosecution for a contravention of a provision of this Chapter
that was committed by supplying services in contravention of
section 195 or 204, it is a defence if the defendant proves that:
(a) the services were acquired by the defendant for the purpose
of re-supply; and
(b) the services were so acquired from a person who carried on
in Australia a business of supplying such services otherwise
than as the agent of a person outside Australia; and
(c) in the case of a contravention of section 195—the defendant:
(i) did not know, and could not with reasonable diligence
have ascertained, that the services did not comply with
the safety standard to which the contravention relates; or
(ii) relied in good faith on a representation by the person
from whom the defendant acquired the services that
there was no safety standard for such services; and
(d) in the case of a contravention of section 204—the defendant:
(i) did not know, and could not with reasonable diligence
have ascertained, that the defendant had not complied
with the information standard to which the
contravention relates; or
(ii) relied in good faith on a representation by the person
from whom the defendant acquired the services that
there was no information standard for such services.
Note: Section 195 is about supply of product related services that do not
comply with safety standards, and section 204 is about supply of
services that do not comply with information standards.
(2) A defendant is not entitled to rely on the defence provided by
subsection (1) unless:
(a) the court gives leave; or
(b) the defendant has, not later than 7 days before the day on
which the hearing of the proceeding commences, served on
the person who instituted the proceeding a written notice
identifying the person from whom the defendant acquired the
services.
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Chapter 4 Offences
Part 4-7 Miscellaneous
Section 212
280 Competition and Consumer Act 2010
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Part 4-7—Miscellaneous
212 Prosecutions to be commenced within 3 years
A prosecution for an offence against a provision of this Chapter
may be commenced at any time within 3 years after the
commission of the offence.
213 Preference must be given to compensation for victims
If a court considers that:
(a) it is appropriate to impose a fine on a person (the defendant)
under this Chapter in relation to:
(i) a contravention of a provision of this Schedule; or
(ii) an attempt to contravene such a provision; or
(iii) aiding, abetting, counselling or procuring a person to
contravene such a provision; or
(iv) inducing, or attempting to induce, a person, whether by
threats or promises or otherwise, to contravene such a
provision; or
(v) being in any way, directly or indirectly, knowingly
concerned in, or party to, the contravention by a person
of such a provision; or
(vi) conspiring with others to contravene such a provision;
and
(b) it is appropriate to order the defendant to pay compensation
to a person who has suffered loss or damage as result of that
contravention or conduct; and
(c) the defendant does not have sufficient financial resources to
pay both the fine and the compensation;
the court must give preference to making an order for
compensation.
214 Penalties for contraventions of the same nature etc.
(1) If:
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(a) a person is convicted of 2 or more offences constituted by, or
relating to, contraventions of the same provision of this
Chapter; and
(b) the contraventions appear to the court:
(i) to have been of the same nature or a substantially
similar nature; and
(ii) to have occurred at or about the same time;
the court must not, in respect of the offences, impose on the person
fines that, in the aggregate, exceed the maximum fine that would
be applicable in respect of one offence by that person against that
provision.
(2) This section applies whether or not the person is also convicted of
an offence or offences constituted by, or relating to, another
contravention or other contraventions of that provision that were of
a different nature or occurred at a different time.
215 Penalties for previous contraventions of the same nature etc.
(1) If:
(a) a person is convicted of an offence constituted by, or relating
to, a contravention of a provision of this Chapter; and
(b) a fine has, or fines have, previously been imposed on the
person by the court for an offence or offences constituted by,
or relating to, another contravention or other contraventions
of the same provision; and
(c) the contravention, or each of the contraventions, mentioned
in paragraph (b) appear to the court:
(i) to have been of the same nature as, or a substantially
similar nature to, the contravention mentioned in
paragraph (a); and
(ii) to have occurred at or about the same time as the
contravention mentioned in paragraph (a);
the court must not, in respect of the offence mentioned in
paragraph (a), impose on the person a fine that exceeds the amount
(if any) by which the maximum fine applicable in respect of that
offence is greater than the amount of the fine, or the sum of the
amounts of the fines, referred to in paragraph (b).
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Section 216
282 Competition and Consumer Act 2010
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(2) This section applies whether or not a fine has, or fines have, also
previously been imposed on the person for an offence or offences
constituted by, or relating to, a contravention or contraventions of
that provision that were of a different nature or occurred at a
different time.
216 Granting of injunctions etc.
In proceedings against a person for a contravention of a provision
of this Chapter, the court may:
(a) grant an injunction under Division 2 of Part 5-2 against the
person in relation to:
(i) the conduct that constitutes, or is alleged to constitute,
the contravention; or
(ii) other conduct of that kind; or
(b) make an order under section 246, 247 or 248 in relation to
the contravention.
217 Criminal proceedings not to be brought for contraventions of
Chapter 2 or 3
Criminal proceedings do not lie against a person only because the
person:
(a) has contravened a provision of Chapter 2 or 3; or
(b) has attempted to contravene such a provision; or
(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.
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Enforcement and remedies Chapter 5
Enforcement Part 5-1
Undertakings Division 1
Section 218
Competition and Consumer Act 2010 283
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Chapter 5—Enforcement and remedies
Part 5-1—Enforcement
Division 1—Undertakings
218 Regulator may accept undertakings
(1) The regulator 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 regulator has a power or function under this
Schedule.
(2) The person may, with the consent of the regulator, withdraw or
vary the undertaking at any time.
(3) If the regulator considers that the person who gave the undertaking
has breached any of its terms, the regulator may apply to a 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, or
to a State or Territory, 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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Chapter 5 Enforcement and remedies
Part 5-1 Enforcement
Division 2 Substantiation notices
Section 219
284 Competition and Consumer Act 2010
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Division 2—Substantiation notices
219 Regulator may require claims to be substantiated etc.
(1) This section applies if a person has, in trade or commerce, made a
claim or representation promoting, or apparently intended to
promote:
(a) a supply, or possible supply, of goods or services by the
person or another person; or
(b) a sale or grant, or possible sale or grant, of an interest in land
by the person or another person; or
(c) employment that is to be, or may be, offered by the person or
another person.
(2) The regulator may give the person who made the claim or
representation a written notice that requires the person to do one or
more of the following:
(a) give information and/or produce documents to the regulator
that could be capable of substantiating or supporting the
claim or representation;
(b) if the claim or representation relates to a supply, or possible
supply, of goods or services by the person or another
person—give information and/or produce documents to the
regulator that could be capable of substantiating:
(i) the quantities in which; and
(ii) the period for which;
the person or other person is or will be able to make such a
supply (whether or not the claim or representation relates to
those quantities or that period);
(c) give information and/or produce documents to the regulator
that are of a kind specified in the notice;
within 21 days after the notice is given to the person who made the
claim or representation.
(3) Any kind of information or documents that the regulator specifies
under subsection (2)(c) must be a kind that the regulator is satisfied
is relevant to:
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(a) substantiating or supporting the claim or representation; or
(b) if the claim or representation relates to a supply, or possible
supply, of goods or services by the person or another
person—substantiating the quantities in which, or the period
for which, the person or other person is or will be able to
make such a supply.
(4) The notice must:
(a) name the person to whom it is given; and
(b) specify the claim or representation to which it relates; and
(c) explain the effect of sections 220, 221 and 222.
(5) The notice may relate to more than one claim or representation that
the person has made.
(6) This section does not apply to a person who made the claim or
representation if the person:
(a) is an information provider; and
(b) made the claim or representation by publishing it on behalf of
another person in the course of carrying on a business of
providing information; and
(c) does not have a commercial relationship with the other
person other than for the purpose of:
(i) publishing claims or representations promoting, or
apparently intended to promote, the other person’s
business or other activities; or
(ii) the other person supplying goods or services, or selling
or granting interests in land to the person.
220 Extending periods for complying with substantiation notices
(1) A person who has been given a substantiation notice may, at any
time within 21 days after the notice was given to the person by the
regulator, apply in writing to the regulator for an extension of the
period for complying with the notice.
(2) The regulator may, by written notice given to the person, extend
the period within which the person must comply with the notice.
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Division 2 Substantiation notices
Section 221
286 Competition and Consumer Act 2010
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221 Compliance with substantiation notices
(1) A person who is given a substantiation notice must comply with it
within the substantiation notice compliance period for the notice.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) The substantiation notice compliance period for a 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 220—the period as so extended;
and includes (if an application has been made under section 220(1)
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
regulator’s decision on the application.
(3) Despite subsection (1), an individual may refuse or fail to give
particular information or produce a particular document in
compliance with a substantiation notice on the ground that the
information or production of the document might tend to
incriminate the individual or to expose the individual to a penalty.
222 False or misleading information etc.
(1) A person must not, in compliance or purported compliance with a
substantiation notice given by the regulator:
(a) give to the regulator false or misleading information; or
(b) produce to the regulator documents that contain false or
misleading information.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) This section does not apply to:
(a) information that the person could not have known was false
or misleading; or
(b) the production to the regulator of a document containing
false or misleading information if the document is
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Section 222
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accompanied by a statement of the person that the
information is false or misleading.
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Chapter 5 Enforcement and remedies
Part 5-1 Enforcement
Division 3 Public warning notices
Section 223
288 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 3—Public warning notices
223 Regulator may issue a public warning notice
(1) The regulator may issue to the public a written notice containing a
warning about the conduct of a person if:
(a) the regulator has reasonable grounds to suspect that the
conduct may constitute a contravention of a provision of
Chapter 2, 3 or 4; and
(b) the regulator is satisfied that one or more other persons has
suffered, or is likely to suffer, detriment as a result of the
conduct; and
(c) the regulator is satisfied that it is in the public interest to
issue the notice.
(2) Without limiting subsection (1), if:
(a) a person refuses to respond to a substantiation notice given
by the regulator to the person, or fails to respond to the notice
before the end of the substantiation notice compliance period
for the notice; and
(b) the regulator is satisfied that it is in the public interest to
issue a notice under this subsection;
the regulator may issue to the public a written notice containing a
warning that the person has refused or failed to respond to the
substantiation notice within that period, and specifying the matter
to which the substantiation notice related.
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Remedies Part 5-2
Pecuniary penalties Division 1
Section 224
Competition and Consumer Act 2010 289
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Part 5-2—Remedies
Division 1—Pecuniary penalties
224 Pecuniary penalties
(1) If a court is satisfied that a person:
(a) has contravened any of the following provisions:
(i) a provision of Part 2-2 (which is about unconscionable
conduct);
(ii) a provision of Part 3-1 (which is about unfair practices);
(iii) section 66(2) (which is about display notices);
(iv) a provision (other than section 85) of Division 2 of
Part 3-2 (which is about unsolicited consumer
agreements);
(v) a provision (other than section 96(2)) of Division 3 of
Part 3-2 (which is about lay-by agreements);
(vi) section 100(1) or (3) or 101(3) or (4) (which are about
proof of transactions and itemised bills);
(vii) section 102(2) or 103(2) (which are about prescribed
requirements for warranties and repairers);
(viii) section 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2),
(3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or
(6), 131(1) or 132(1) (which are about safety of
consumer goods and product related services);
(ix) section 136(1), (2) or (3) or 137(1) or (2) (which are
about information standards);
(x) section 221(1) or 222(1) (which are about substantiation
notices); or
(b) has attempted to contravene such a provision; or
(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
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Division 1 Pecuniary penalties
Section 224
290 Competition and Consumer Act 2010
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(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, State
or Territory, as the case may be, 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.
(2) In determining the appropriate pecuniary penalty, the court must
have regard to all relevant matters including:
(a) the nature and extent of the act or omission and of any loss or
damage suffered as a result of the act or omission; and
(b) the circumstances in which the act or omission took place;
and
(c) whether the person has previously been found by a court in
proceedings under Chapter 4 or this Part to have engaged in
any similar conduct.
(3) The pecuniary penalty payable under subsection (1) is not to
exceed the amount worked out using the following table:
Amount of pecuniary penalty
Item For each act or omission to
which this section applies
that relates to ...
the pecuniary penalty is
not to exceed ...
1 a provision of Part 2-2 (a) if the person is a body
corporate—$1.1 million;
or
(b) if the person is not a
body corporate—
$220,000.
2 a provision of Part 3-1 (other
than section 47(1))
(a) if the person is a body
corporate—$1.1 million;
or
(b) if the person is not a
body corporate—
$220,000.
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Section 224
Competition and Consumer Act 2010 291
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Amount of pecuniary penalty
Item For each act or omission to
which this section applies
that relates to ...
the pecuniary penalty is
not to exceed ...
3 section 47(1) (a) if the person is a body
corporate—$5,000; or
(b) if the person is not a
body corporate—$1,000.
4 section 66(2) (a) if the person is a body
corporate—$50,000; or
(b) if the person is not a
body corporate—
$10,000.
5 a provision of Division 2 of
Part 3-2 (other than
section 85)
(a) if the person is a body
corporate—$50,000; or
(b) if the person is not a
body corporate—
$10,000.
6 a provision of Division 3 of
Part 3-2 (other than
section 96(2))
(a) if the person is a body
corporate—$30,000; or
(b) if the person is not a
body corporate—$6,000.
7 section 100(1) or (3) or 101(3)
or (4)
(a) if the person is a body
corporate—$15,000; or
(b) if the person is not a
body corporate—$3,000.
8 section 102(2) or 103(2) (a) if the person is a body
corporate—$50,000; or
(b) if the person is not a
body corporate—
$10,000.
9 section 106(1), (2), (3) or (5),
107(1) or (2), 118(1), (2), (3)
or (5) or 119(1) or (2)
(a) if the person is a body
corporate—$1.1 million;
or
(b) if the person is not a
body corporate—
$220,000.
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Division 1 Pecuniary penalties
Section 224
292 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Amount of pecuniary penalty
Item For each act or omission to
which this section applies
that relates to ...
the pecuniary penalty is
not to exceed ...
10 section 125(4) (a) if the person is a body
corporate—$16,500; or
(b) if the person is not a
body corporate—$3,300.
11 section 127(1) or (2) (a) if the person is a body
corporate—$1.1 million;
or
(b) if the person is not a
body corporate—
$220,000.
12 section 128(2) or (6), 131(1)
or 132(1)
(a) if the person is a body
corporate—$16,500; or
(b) if the person is not a
body corporate—$3,300.
13 section 136(1), (2) or (3) or
137(1) or (2)
(a) if the person is a body
corporate—$1.1 million;
or
(b) if the person is not a
body corporate—
$220,000.
14 section 221(1) (a) if the person is a body
corporate—$16,500; or
(b) if the person is not a
body corporate—$3,300.
15 section 222(1) (a) if the person is a body
corporate—$27,500; or
(b) if the person is not a
body corporate—$5,500.
(4) If conduct constitutes a contravention of 2 or more provisions
referred to in subsection (1)(a):
(a) a proceeding may be instituted under this Schedule against a
person in relation to the contravention of any one or more of
the provisions; but
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(b) a person is not liable to more than one pecuniary penalty
under this section in respect of the same conduct.
225 Pecuniary penalties and offences
(1) A court must not make an order under section 224 against a person
in relation to either of the following matters (a consumer
protection breach):
(a) a contravention of a provision referred to in
section 224(1)(a);
(b) conduct referred to in section 224(1)(b), (c), (d), (e) or (f)
that relates to a contravention of such a provision;
if the person has been convicted of an offence constituted by
conduct that is substantially the same as the conduct constituting
the consumer protection breach.
(2) Proceedings for an order under section 224 against a person in
relation to a consumer protection breach 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 consumer
protection breach.
The proceedings for the order may be resumed if the person is not
convicted of the offence. Otherwise, the proceedings are dismissed.
(3) Criminal proceedings may be started against a person for conduct
that is substantially the same as conduct constituting a consumer
protection breach regardless of whether an order under section 224
has been made against the person in respect of the breach.
(4) Evidence of information given, or evidence of the 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 an order under section 224
against the individual in relation to a consumer protection
breach (whether or not the order was made); and
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Section 226
294 Competition and Consumer Act 2010
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(b) the conduct alleged to constitute the offence is substantially
the same as the conduct that was claimed to constitute the
consumer protection breach.
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 order.
226 Defence
If, in proceedings under section 224 against a person other than a
body corporate, it appears to a court that the person has, or may
have:
(a) engaged in conduct in contravention of a provision referred
to in subsection (1)(a) of that section; or
(b) engaged in conduct referred to in subsection (1)(b), (c), (d),
(e) or (f) of that section that relates to a contravention of such
a provision;
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 a pecuniary penalty under that section.
227 Preference must be given to compensation for victims
If a court considers that:
(a) it is appropriate to order a person (the defendant) to pay a
pecuniary penalty under section 224 in relation to:
(i) a contravention of a provision referred to in
subsection (1)(a) of that section; or
(ii) conduct referred to in subsection (1)(b), (c), (d), (e) or
(f) of that section that relates to a contravention such a
provision; and
(b) it is appropriate to order the defendant to pay compensation
to a person who has suffered loss or damage as result of that
contravention or conduct; and
(c) the defendant does not have sufficient financial resources to
pay both the pecuniary penalty and the compensation;
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Section 228
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the court must give preference to making an order for
compensation.
228 Civil action for recovery of pecuniary penalties
(1) The regulator may institute a proceeding in a court for the recovery
on behalf of the Commonwealth, a State or a Territory, as the case
may be, of a pecuniary penalty referred to in section 224.
(2) A proceeding under subsection (1) may be commenced at any time
within 6 years after the contravention or conduct.
229 Indemnification of officers
(1) A body corporate (the first body), or a body corporate related to the
first body, commits an offence if it indemnifies a person (whether
by agreement or by making a payment and whether directly or
through an interposed entity) against either of the following
liabilities incurred as an officer (within the meaning of the
Corporations Act 2001) of the first body:
(a) a liability to pay a pecuniary penalty under section 224;
(b) legal costs incurred in defending or resisting proceedings in
which the person is found to have such a liability.
Penalty: $2,750.
(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.
230 Certain indemnities not authorised and certain documents void
(1) Section 229 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 229.
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Part 5-2 Remedies
Division 2 Injunctions
Section 232
296 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 2—Injunctions
232 Injunctions
(1) A court may grant an injunction, in such terms as the court
considers appropriate, if 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 a provision of Chapter 2, 3 or 4; 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.
(2) The court may grant the injunction on application by the regulator
or any other person.
(3) Subsection (1) applies in relation to conduct constituted by
applying or relying on, or purporting to apply or rely on, a term of
a contract that has been declared under section 250 to be an unfair
term as if the conduct were a contravention of a provision of
Chapter 2.
(4) The power of the court to grant an injunction under subsection (1)
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 a
kind referred to in that subsection; and
(b) whether or not the person has previously engaged in conduct
of that kind; and
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Section 233
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(c) whether or not there is an imminent danger of substantial
damage to any other person if the person engages in conduct
of that kind.
(5) Without limiting subsection (1), the court may grant an injunction
under that subsection restraining a person from carrying on a
business or supplying goods or services (whether or not as part of,
or incidental to, the carrying on of another business):
(a) for a specified period; or
(b) except on specified terms and conditions.
(6) Without limiting subsection (1), the court may grant an injunction
under that subsection requiring a person to do any of the following:
(a) refund money;
(b) transfer property;
(c) honour a promise;
(d) destroy or dispose of goods.
(7) The power of the court to grant an injunction under subsection (1)
requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the court that the person intends
to refuse or fail again, or to continue to refuse or fail, to do
that act or thing; and
(b) whether or not the person has previously refused or failed to
do that act or thing; and
(c) whether or not there is an imminent danger of substantial
damage to any other person if the person refuses or fails to do
that act or thing.
233 Consent injunctions
If an application is made under section 232, the court may, if it
considers that it is appropriate to do so, grant an injunction under
this section by consent of all the parties to the proceedings,
whether or not the court is satisfied as required by section 232(1).
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Division 2 Injunctions
Section 234
298 Competition and Consumer Act 2010
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234 Interim injunctions
(1) If an application is made under section 232, the court may, if it
considers it is desirable to do so, grant an interim injunction under
this subsection pending the determination of the application.
(2) If a responsible Minister or the regulator made the application
under section 232, the court must not require the applicant or any
other person to give any undertakings as to damages as a condition
of granting the interim injunction.
(3) If:
(a) in a case to which subsection (2) does not apply the court
would, but for this subsection, require a person to give an
undertaking as to damages or costs; and
(b) a responsible Minister gives the undertaking;
the court must accept the undertaking by the responsible Minister
and must not require a further undertaking from any other person.
235 Variation and discharge of injunctions
A court may vary or discharge an injunction (including an interim
injunction) that it has granted under this Division.
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Damages Division 3
Section 236
Competition and Consumer Act 2010 299
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Division 3—Damages
236 Actions for damages
(1) If:
(a) a person (the claimant) suffers loss or damage because of the
conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
the claimant 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.
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Division 4 Compensation orders etc. for injured persons and orders for non-party
consumers
Section 237
300 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 4—Compensation orders etc. for injured persons and
orders for non-party consumers
Subdivision A—Compensation orders etc. for injured persons
237 Compensation orders etc. on application by an injured person
or the regulator
(1) A court may:
(a) on application of a person (the injured person) who has
suffered, or is likely to suffer, loss or damage because of the
conduct of another person that:
(i) was engaged in a contravention of a provision of
Chapter 2, 3 or 4; or
(ii) constitutes applying or relying on, or purporting to
apply or rely on, a term of a contract that has been
declared under section 250 to be an unfair term; or
(b) on the application of the regulator made on behalf of one or
more such injured persons;
make such order or orders as the court thinks appropriate against
the person who engaged in the conduct, or a person involved in
that conduct.
Note 1: For applications for an order or orders under this subsection, see
section 242.
Note 2: The orders that the court may make include all or any of the orders set
out in section 243.
(2) The order must be an order that the court considers will:
(a) compensate the injured person, or any such injured persons,
in whole or in part for the loss or damage; or
(b) prevent or reduce the loss or damage suffered, or likely to be
suffered, by the injured person or any such injured persons.
(3) An application under subsection (1) may be made at any time
within 6 years after the day on which:
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Section 238
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(a) if subsection (1)(a)(i) applies—the cause of action that relates
to the conduct referred to in that subsection accrued; or
(b) if subsection (1)(a)(ii) applies—the declaration referred to in
that subsection is made.
238 Compensation orders etc. arising out of other proceedings
(1) If a court finds, in a proceeding instituted under a provision of
Chapter 4 or this Chapter (other than this section), that a person
(the injured person) who is a party to the proceeding has suffered,
or is likely to suffer, loss or damage because of the conduct of
another person that:
(a) was engaged in a contravention of a provision of Chapter 2, 3
or 4; or
(b) constitutes applying or relying on, or purporting to apply or
rely on, a term of a contract that has been declared under
section 250 to be an unfair term;
the court may make such order or orders as it thinks appropriate
against the person who engaged in the conduct, or a person
involved in that conduct.
Note: The orders that the court may make include all or any of the orders set
out in section 243.
(2) The order must be an order that the court considers will:
(a) compensate the injured person in whole or in part for the loss
or damage; or
(b) prevent or reduce the loss or damage.
Subdivision B—Orders for non-party consumers
239 Orders to redress etc. loss or damage suffered by non-party
consumers
(1) If:
(a) a person:
(i) engaged in conduct (the contravening conduct) in
contravention of a provision of Chapter 2, Part 3-1,
Division 2, 3 or 4 of Part 3-2 or Chapter 4; or
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(ii) is a party to a contract who is advantaged by a term (the
declared term) of the contract in relation to which a
court has made a declaration under section 250; and
(b) the contravening conduct or declared term caused, or is likely
to cause, a class of persons to suffer loss or damage; and
(c) the class includes persons who are non-party consumers in
relation to the contravening conduct or declared term;
a court may, on the application of the regulator, 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 1: For applications for an order or orders under this subsection, see
section 242.
Note 2: The orders that the court may make include all or any of the orders set
out in section 243.
(2) An order under subsection (1) may be made against:
(a) if subsection (1)(a)(i) applies—the person who engaged in
the contravening conduct, or a person involved in that
conduct; or
(b) if subsection (1)(a)(ii) applies—a party to the contract who is
advantaged by the declared term.
(3) The order must be an order that the court considers will:
(a) redress, in whole or in part, the loss or damage suffered by
the non-party consumers in relation to the contravening
conduct or declared term; or
(b) prevent or reduce the loss or damage suffered, or likely to be
suffered, by the non-party consumers in relation to the
contravening conduct or declared term.
(4) An application under subsection (1) may be made at any time
within 6 years after the day on which:
(a) if subsection (1)(a)(i) applies—the cause of action that relates
to the contravening conduct accrued; or
(b) if subsection (1)(a)(ii) applies—the declaration is made.
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240 Determining whether to make a redress order etc. for non-party
consumers
(1) In determining whether to make an order under section 239(1)
against a person referred to in section 239(2)(a), the court may
have regard to the conduct of the person, and of the non-party
consumers in relation to the contravening conduct, since the
contravention occurred.
(2) In determining whether to make an order under section 239(1)
against a person referred to in section 239(2)(b), the court may
have regard to the conduct of the person, and of the non-party
consumers in relation to the declared term, since the declaration
was made.
(3) In determining whether to make an order under section 239(1), the
court need not make a finding about either of the following
matters:
(a) which persons are non-party consumers in relation to the
contravening conduct or declared term;
(b) the nature of the loss or damage suffered, or likely to be
suffered, by such persons.
241 When a non-party consumer is bound by a redress order etc.
(1) A non-party consumer is bound by an order made under
section 239(1) against a person if:
(a) the loss or damage suffered, or likely to be suffered, by the
non-party consumer in relation to the contravening conduct,
or the declared term, to which the order relates has been
redressed, prevented or reduced in accordance with the order;
and
(b) the non-party consumer has accepted the redress, prevention
or reduction.
(2) Any other order made under section 239(1) that relates to that loss
or damage has no effect in relation to the non-party consumer.
(3) Despite any other provision of:
(a) this Schedule; or
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(b) any other law of the Commonwealth, or a State or a
Territory;
no claim, action or demand may be made or taken against the
person by the non-party consumer in relation to that loss or
damage.
Subdivision C—Miscellaneous
242 Applications for orders
(1) An application may be made under section 237(1) or 239(1) even if
an enforcement proceeding in relation to the conduct, or the term
of a contract, referred to in that subsection has not been instituted.
(2) The regulator must not make an application under
section 237(1)(b) on behalf of one or more persons unless those
persons have consented in writing to the making of the application.
243 Kinds of orders that may be made
Without limiting section 237(1), 238(1) or 239(1), the orders that a
court may make under any of those sections 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 person (the injured person)
who suffered, or is likely to suffer, the loss or damage
referred to in that section, or of 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
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such date as is specified in the order (which may be a
date that is before the date on which the order is made);
(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 the injured person;
(e) except if the order is to be made under section 239(1)—an
order directing the respondent to pay the injured person the
amount of the loss or damage;
(f) an order directing the respondent, at his or her own expense,
to repair, or provide parts for, goods that had been supplied
by the respondent to the injured person;
(g) an order directing the respondent, at his or her own expense,
to supply specified services to the injured person;
(h) an order, in relation to an instrument creating or transferring
an interest in land, 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.
244 Power of a court to make orders
A court may make an order under Subdivision A or B of this
Division whether or not the court:
(a) grants an injunction under Division 2 of this Part; or
(b) makes an order under section 236, 246, 247 or 248.
245 Interaction with other provisions
Subdivisions A and B of this Division do not limit the generality of
Division 2 of this Part.
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Division 5—Other remedies
246 Non-punitive orders
(1) A court may, on application of the regulator, make one or more of
the orders mentioned in subsection (2) in relation to a person who
has engaged in conduct that:
(a) contravenes a provision of Chapter 2, 3 or 4; or
(b) constitutes an involvement in a contravention of such a
provision.
(2) The court may make the following orders in relation to the person
who has engaged in the conduct:
(a) an order directing the person to perform a service that is
specified in the order, and that relates to the conduct, for the
benefit of the community or a section of the community;
(b) an order for the purpose of ensuring that the person does not
engage in the conduct, similar conduct, or related conduct,
during the period of the order (which must not be longer than
3 years) including:
(i) 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 such conduct; and
(ii) an order directing the person to establish an education
and training program for employees or other persons
involved in the person’s business, being a program
designed to ensure their awareness of the
responsibilities and obligations in relation to such
conduct; and
(iii) an order directing the person to revise the internal
operations of the person’s business which led to the
person engaging in such conduct;
(c) an order requiring the person to disclose, in the way and to
the persons specified in the order, such information as is so
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specified, being information that the person has possession of
or access to;
(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.
Note: The following are examples of orders that the court may make under
subsection (2)(a):
(a) an order requiring a person who has made false representations to make available a training video which explains advertising obligations under this Schedule;
(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.
(3) This section does not limit a court’s powers under any other
provision of this Schedule.
247 Adverse publicity orders
(1) A court may, on application of the regulator, make an adverse
publicity order in relation to a person who:
(a) has contravened a provision of Part 2-2 or Chapter 3; or
(b) has committed an offence against Chapter 4.
(2) An adverse publicity order in relation to a person is an order that
requires the person:
(a) 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) 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 a court’s powers under any other
provision of this Schedule.
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248 Order disqualifying a person from managing corporations
(1) A court may, on application of the regulator, 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 any of the following provisions:
(i) a provision of Part 2-2 (which is about unconscionable
conduct);
(ii) a provision of Part 3-1 (which is about unfair practices);
(iii) a provision (other than section 85) of Division 2 of
Part 3-2 (which is about unsolicited consumer
agreements);
(iv) section 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2),
(3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or
(6), 131(1) or 132(1) (which are about safety of
consumer goods and product related services);
(v) section 136(1), (2) or (3) or 137(1) or (2) (which are
about information standards);
(vi) a provision of Chapter 4 (which is about offences); 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) 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) If the court makes an order under subsection (1), the regulator
must:
(a) notify ASIC; and
(b) give ASIC a copy of any such order.
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Note: ASIC must keep a register of persons who have been disqualified
from managing corporations: see section 1274AA of the Corporations
Act 2001.
(4) For the purposes of this Schedule (other than this section or
section 249), an order under this section is not a penalty.
249 Privilege against exposure to penalty or forfeiture—
disqualification from managing corporations
(1) In a civil or criminal proceeding under, or arising out of, this
Schedule, 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 (including
forfeiture) by way of an order under section 248.
(2) Subsection (1) applies whether or not the person is a defendant in
the proceeding or in any other proceeding.
(3) A person is not entitled to refuse or fail to comply with a
requirement under this Schedule:
(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 (including
forfeiture) by way of an order under section 248.
250 Declarations relating to consumer contracts and small business
contracts
(1) The Court may declare that a term of a consumer contract is an
unfair term, on application by:
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(a) a party to the contract; or
(b) the regulator.
(2) The Court may declare that a term of a small business contract is
an unfair term, on application by:
(a) a party to the contract, if the party was a business of the kind
referred to in paragraph 23(4)(b) at the time the contract was
entered into; or
(b) the regulator.
(3) Subsections (1) and (2) do not apply unless the contract is a
standard form contract.
(4) Subsections (1) and (2) do not apply if Part 2-3 does not apply to
the contract.
(5) Subsections (1) and (2) do not limit any other power of the court to
make declarations.
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Division 6—Defences
251 Publication of advertisement in the ordinary course of business
(1) This section applies to a proceeding under this Part in relation to a
contravention of a provision of Part 2-1 or 2-2 or Chapter 3 if the
contravention was committed by the publication of an
advertisement.
(2) In the proceeding, it is a defence if the defendant proves that:
(a) the defendant is a person whose business it is to publish or
arrange for the publication of advertisements; and
(b) the defendant received the advertisement for publication in
the ordinary course of business; and
(c) the defendant did not know, and had no reason to suspect,
that its publication would amount to a contravention of such
a provision.
252 Supplying consumer goods for the purpose of re-supply
(1) This section applies to a proceeding under this Part in relation to a
contravention of a provision of Part 2-1 or 2-2 or Chapter 3
committed by:
(a) the supplying of consumer goods that did not comply with a
safety standard for such goods; or
(b) the supplying of consumer goods by a supplier who did not
comply with an information standard for such goods.
(2) In the proceeding, it is a defence if the defendant proves that:
(a) the consumer goods were acquired by the defendant for the
purpose of re-supply; and
(b) the consumer goods were so acquired from a person who
carried on in Australia a business of supplying such goods
otherwise than as the agent of a person outside Australia; and
(c) either:
(i) the defendant did not know, and could not with
reasonable diligence have ascertained, that the
consumer goods did not comply with that safety
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standard, or that the defendant had not complied with
that information standard, as the case may be; or
(ii) the defendant relied in good faith on a representation by
the person from whom the defendant acquired the goods
that there was no safety standard or information
standard, as the case may be, for such consumer goods.
(3) A defendant is not entitled to rely on the defence provided by
subsection (2) unless:
(a) the court gives leave; or
(b) the defendant has, not later than 7 days before the day on
which the hearing of the proceeding commences, served on
the person who instituted the proceeding a written notice
identifying the person from whom the defendant acquired the
consumer goods.
253 Supplying product related services for the purpose of re-supply
(1) This section applies to a proceeding under this Part in relation to a
contravention of a provision of Part 2-1 or 2-2 or Chapter 3
committed by:
(a) the supplying of product related services that did not comply
with a safety standard for such services; or
(b) the supplying of product related services by a supplier who
did not comply with an information standard for such
services.
(2) In the proceeding, it is a defence if the defendant proves that:
(a) the product related services were acquired by the defendant
for the purpose of re-supply; and
(b) the product related services were so acquired from a person
who carried on in Australia a business of supplying such
services otherwise than as the agent of a person outside
Australia; and
(c) either:
(i) the defendant did not know, and could not with
reasonable diligence have ascertained, that the product
related services did not comply with that safety
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standard, or that the defendant had not complied with
that information standard, as the case may be; or
(ii) the defendant relied in good faith on a representation by
the person from whom the defendant acquired the goods
that there was no safety standard or information
standard, as the case may be, for such product related
services.
(3) A defendant is not entitled to rely on the defence provided by
subsection (2) unless:
(a) the court gives leave; or
(b) the defendant has, not later than 7 days before the day on
which the hearing of the proceeding commences, served on
the person who instituted the proceeding a written notice
identifying the person from whom the defendant acquired the
product related services.
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Section 254
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Part 5-3—Country of origin representations
254 Overview
This Part provides that certain country of origin representations
made about goods do not contravene:
(a) section 18 (which deals with misleading or deceptive
conduct); or
(b) section 29(1)(a) or (k) or 151(1)(a) or (k) (which deal with
false or misleading representations).
255 Country of origin representations do not contravene certain
provisions
(1) A person does not contravene section 18, 29(1)(a) or (k) or
151(1)(a) or (k) only by making a representation of a kind referred
to in an item in the first column of this table, if the requirements of
the corresponding item in the second column are met.
Country of origin representations
Item Representation Requirements to be met
1 A representation that goods
were grown in a particular
country
(a) each significant ingredient or significant
component of the goods was grown in
that country; and
(b) all, or virtually all, processes involved in
the production or manufacture of the
goods happened in that country.
2 A representation that goods
are the produce of a
particular country
(a) the country was the country of origin of
each significant ingredient or significant
component of the goods; and
(b) all, or virtually all, processes involved in
the production or manufacture of the
goods happened in that country.
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Country of origin representations
Item Representation Requirements to be met
3 A representation that goods
were made or manufactured
in, or otherwise originate in,
a particular country
(a) the goods were last substantially
transformed in that country; and
(b) the representation is not a representation
to which item 1 or 2 of this table applies.
4 A representation in the form
of a mark specified in an
information standard
relating to country of origin
labelling of goods
the requirements under the information
standard relating to the use of that mark.
(2) Goods were substantially transformed in a country if:
(a) the goods met, in relation to that country, the requirements of
item 1 or 2 in the second column of the table in
subsection (1); or
(b) as a result of one or more processes undertaken in that
country, the goods are fundamentally different in identity,
nature or essential character from all of their ingredients or
components that were imported into that country.
(3) Without limiting subsection (2), the regulations:
(a) may prescribe (in relation to particular classes of goods or
otherwise) processes or combinations of processes that, for
the purposes of that subsection, do not have the result
described in subsection (2)(b); and
(b) may include examples (in relation to particular classes of
goods or otherwise) of processes or combinations of
processes that, for the purposes of that subsection, have the
result described in subsection (2)(b).
(5) Item 2 of the table in subsection (1) applies to a representation that
goods are the produce of a particular country whether the
representation uses the words “product of”, “produce of” or any
other grammatical variation of the word “produce”.
(7) Goods, or ingredients or components of goods, are grown in a
country if they:
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(a) are materially increased in size or materially altered in
substance in that country by natural development; or
(b) germinated or otherwise arose in, or issued in, that country;
or
(c) are harvested, extracted or otherwise derived from an
organism that has been materially increased in size, or
materially altered in substance, in that country by natural
development.
(8) For the purposes of item 1 of the table in subsection (1) in relation
to particular goods, packaging materials are not treated as
ingredients or components of the goods.
(9) For the purposes of item 1 of the table in subsection (1) in relation
to an ingredient or component, water added to the ingredient or
component is treated as having the same origin as the ingredient or
component, regardless of its actual origin, if:
(a) the ingredient or component has been dried or concentrated
by the evaporation of water; and
(b) the added water returns the water content of the ingredient or
component to no more than its natural level.
258 Proceedings relating to false, misleading or deceptive conduct or
representations
If:
(a) proceedings are brought against a person in respect of
section 18, 29(1)(a) or (k) or 151(1)(a) or (k); and
(b) the person seeks to rely on a provision of this Part, or of a
regulation made for the purposes of a provision of this Part,
in the proceedings;
the person bears an evidential burden in relation to the matters set
out in the provision on which the person seeks to rely.
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Action against suppliers Division 1
Section 259
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Part 5-4—Remedies relating to guarantees
Division 1—Action against suppliers
Subdivision A—Action against suppliers of goods
259 Action against suppliers of goods
(1) A consumer may take action under this section if:
(a) a person (the supplier) supplies, in trade or commerce, goods
to the consumer; and
(b) a guarantee that applies to the supply under Subdivision A of
Division 1 of Part 3-2 (other than sections 58 and 59(1)) is
not complied with.
(2) If the failure to comply with the guarantee can be remedied and is
not a major failure:
(a) the consumer may require the supplier to remedy the failure
within a reasonable time; or
(b) if such a requirement is made of the supplier but the supplier
refuses or fails to comply with the requirement, or fails to
comply with the requirement within a reasonable time—the
consumer may:
(i) otherwise have the failure remedied and, by action
against the supplier, recover all reasonable costs
incurred by the consumer in having the failure so
remedied; or
(ii) subject to section 262, notify the supplier that the
consumer rejects the goods and of the ground or
grounds for the rejection.
(3) If the failure to comply with the guarantee cannot be remedied or is
a major failure, the consumer may:
(a) subject to section 262, notify the supplier that the consumer
rejects the goods and of the ground or grounds for the
rejection; or
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(b) by action against the supplier, recover compensation for any
reduction in the value of the goods below the price paid or
payable by the consumer for the goods.
(4) The consumer may, by action against the supplier, recover
damages for any loss or damage suffered by the consumer because
of the failure to comply with the guarantee if it was reasonably
foreseeable that the consumer would suffer such loss or damage as
a result of such a failure.
(5) Subsection (4) does not apply if the failure to comply with the
guarantee occurred only because of a cause independent of human
control that occurred after the goods left the control of the supplier.
(6) To avoid doubt, subsection (4) applies in addition to
subsections (2) and (3).
(7) The consumer may take action under this section whether or not
the goods are in their original packaging.
260 When a failure to comply with a guarantee is a major failure
A failure to comply with a guarantee referred to in
section 259(1)(b) that applies to a supply of goods is a major
failure if:
(a) the goods would not have been acquired by a reasonable
consumer fully acquainted with the nature and extent of the
failure; or
(b) the goods depart in one or more significant respects:
(i) if they were supplied by description—from that
description; or
(ii) if they were supplied by reference to a sample or
demonstration model—from that sample or
demonstration model; or
(c) the goods are substantially unfit for a purpose for which
goods of the same kind are commonly supplied and they
cannot, easily and within a reasonable time, be remedied to
make them fit for such a purpose; or
(d) the goods are unfit for a disclosed purpose that was made
known to:
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(i) the supplier of the goods; or
(ii) a person by whom any prior negotiations or
arrangements in relation to the acquisition of the goods
were conducted or made;
and they cannot, easily and within a reasonable time, be
remedied to make them fit for such a purpose; or
(e) the goods are not of acceptable quality because they are
unsafe.
261 How suppliers may remedy a failure to comply with a guarantee
If, under section 259(2)(a), a consumer requires a supplier of goods
to remedy a failure to comply with a guarantee referred to in
section 259(1)(b), the supplier may comply with the requirement:
(a) if the failure relates to title—by curing any defect in title; or
(b) if the failure does not relate to title—by repairing the goods;
or
(c) by replacing the goods with goods of an identical type; or
(d) by refunding:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other
consideration provided by the consumer for the goods.
262 When consumers are not entitled to reject goods
(1) A consumer is not entitled, under section 259, to notify a supplier
of goods that the consumer rejects the goods if:
(a) the rejection period for the goods has ended; or
(b) the goods have been lost, destroyed or disposed of by the
consumer; or
(c) the goods were damaged after being delivered to the
consumer for reasons not related to their state or condition at
the time of supply; or
(d) the goods have been attached to, or incorporated in, any real
or personal property and they cannot be detached or isolated
without damaging them.
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(2) The rejection period for goods is the period from the time of the
supply of the goods to the consumer within which it would be
reasonable to expect the relevant failure to comply with a
guarantee referred to in section 259(1)(b) to become apparent
having regard to:
(a) the type of goods; and
(b) the use to which a consumer is likely to put them; and
(c) the length of time for which it is reasonable for them to be
used; and
(d) the amount of use to which it is reasonable for them to be put
before such a failure becomes apparent.
263 Consequences of rejecting goods
(1) This section applies if, under section 259, a consumer notifies a
supplier of goods that the consumer rejects the goods.
(2) The consumer must return the goods to the supplier unless:
(a) the goods have already been returned to, or retrieved by, the
supplier; or
(b) the goods cannot be returned, removed or transported without
significant cost to the consumer because of:
(i) the nature of the failure to comply with the guarantee to
which the rejection relates; or
(ii) the size or height, or method of attachment, of the
goods.
(3) If subsection (2)(b) applies, the supplier must, within a reasonable
time, collect the goods at the supplier’s expense.
(4) The supplier must, in accordance with an election made by the
consumer:
(a) refund:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other
consideration provided by the consumer for the goods;
or
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(b) replace the rejected goods with goods of the same type, and
of similar value, if such goods are reasonably available to the
supplier.
(5) The supplier cannot satisfy subsection (4)(a) by permitting the
consumer to acquire goods from the supplier.
(6) If the property in the rejected goods had passed to the consumer
before the rejection was notified, the property in those goods
revests in the supplier on the notification of the rejection.
264 Replaced goods
If the goods are replaced under section 261(c) or 263(4)(b):
(a) the replacement goods are taken, for the purposes of
Division 1 of Part 3-2 and this Part, to be supplied by the
supplier; and
(b) the provisions of Division 1 of Part 3-2 and this Part apply in
relation to the replacement goods.
265 Termination of contracts for the supply of services that are
connected with rejected goods
(1) If:
(a) under section 259, a consumer notifies a supplier of goods
that the consumer rejects the goods; and
(b) the supplier is required under section 263(4)(a) to give the
consumer a refund; and
(c) a person supplies, in trade or commerce, services to the
consumer that are connected with the rejected goods;
the consumer may terminate the contract for the supply of the
services.
(2) The termination takes effect:
(a) at the time the termination is made known to the supplier of
the services (whether by words or by conduct indicating the
consumer’s intention to terminate the contract); or
(b) if it is not reasonably practicable to communicate with the
supplier of the services—at the time the consumer indicates,
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by means which are reasonable in the circumstances, his or
her intention to terminate the contract.
(3) The consumer is entitled to recover, by action against the supplier
of the services, a refund of:
(a) any money paid by the consumer for the services; and
(b) an amount that is equal to the value of any other
consideration provided by the consumer for the services;
to the extent that the consumer has not already consumed the
services at the time the termination takes effect.
266 Rights of gift recipients
If a consumer acquires goods from a supplier and gives them to
another person as a gift, the other person may, subject to any
defence which would be available to the supplier against the
consumer:
(a) exercise any rights or remedies under this Subdivision which
would be available to the other person if he or she had
acquired the goods from the supplier; and
(b) any reference in this Subdivision to a consumer includes a
reference to the other person accordingly.
Subdivision B—Action against suppliers of services
267 Action against suppliers of services
(1) A consumer may take action under this section if:
(a) a person (the supplier) supplies, in trade or commerce,
services to the consumer; and
(b) a guarantee that applies to the supply under Subdivision B of
Division 1 of Part 3-2 is not complied with; and
(c) unless the guarantee is the guarantee under section 60—the
failure to comply with the guarantee did not occur only
because of:
(i) an act, default or omission of, or a representation made
by, any person other than the supplier, or an agent or
employee of the supplier; or
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(ii) a cause independent of human control that occurred
after the services were supplied.
(2) If the failure to comply with the guarantee can be remedied and is
not a major failure:
(a) the consumer may require the supplier to remedy the failure
within a reasonable time; or
(b) if such a requirement is made of the supplier but the supplier
refuses or fails to comply with the requirement, or fails to
comply with the requirement within a reasonable time—the
consumer may:
(i) otherwise have the failure remedied and, by action
against the supplier, recover all reasonable costs
incurred by the consumer in having the failure so
remedied; or
(ii) terminate the contract for the supply of the services.
(3) If the failure to comply with the guarantee cannot be remedied or is
a major failure, the consumer may:
(a) terminate the contract for the supply of the services; or
(b) by action against the supplier, recover compensation for any
reduction in the value of the services below the price paid or
payable by the consumer for the services.
(4) The consumer may, by action against the supplier, recover
damages for any loss or damage suffered by the consumer because
of the failure to comply with the guarantee if it was reasonably
foreseeable that the consumer would suffer such loss or damage as
a result of such a failure.
(5) To avoid doubt, subsection (4) applies in addition to
subsections (2) and (3).
268 When a failure to comply with a guarantee is a major failure
A failure to comply with a guarantee referred to in
section 267(1)(b) that applies to a supply of services is a major
failure if:
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(a) the services would not have been acquired by a reasonable
consumer fully acquainted with the nature and extent of the
failure; or
(b) the services are substantially unfit for a purpose for which
services of the same kind are commonly supplied and they
cannot, easily and within a reasonable time, be remedied to
make them fit for such a purpose; or
(c) both of the following apply:
(i) the services, and any product resulting from the
services, are unfit for a particular purpose for which the
services were acquired by the consumer that was made
known to the supplier of the services;
(ii) the services, and any of those products, cannot, easily
and within a reasonable time, be remedied to make them
fit for such a purpose; or
(d) both of the following apply:
(i) the services, and any product resulting from the
services, are not of such a nature, or quality, state or
condition, that they might reasonably be expected to
achieve a result desired by the consumer that was made
known to the supplier;
(ii) the services, and any of those products, cannot, easily
and within a reasonable time, be remedied to achieve
such a result; or
(e) the supply of the services creates an unsafe situation.
269 Termination of contracts for the supply of services
(1) This section applies if, under section 267, a consumer terminates a
contract for the supply of services.
(2) The termination takes effect:
(a) at the time the termination is made known to the supplier of
the services (whether by words or by conduct indicating the
consumer’s intention to terminate the contract); or
(b) if it is not reasonably practicable to communicate with the
supplier of the services—at the time the consumer indicates,
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by means which are reasonable in the circumstances, his or
her intention to terminate the contract.
(3) The consumer is entitled to recover, by action against the supplier
of the services, a refund of:
(a) any money paid by the consumer for the services; and
(b) an amount that is equal to the value of any other
consideration provided by the consumer for the services;
to the extent that the consumer has not already consumed the
services at the time the termination takes effect.
270 Termination of contracts for the supply of goods that are
connected with terminated services
(1) If:
(a) under section 267, a consumer terminates a contract for the
supply of services; and
(b) a person (the supplier) has supplied, in trade or commerce,
goods to the consumer that are connected with the services;
then:
(c) the consumer is taken to have rejected the goods at the time
the termination of the contract takes effect; and
(d) the consumer must return the goods to the supplier of the
goods unless:
(i) the goods have already been returned to, or retrieved by,
the supplier; or
(ii) the goods cannot be returned, removed or transported
without significant cost to the consumer because of the
nature of the failure to comply with the guarantee to
which the rejection relates, or because of the size or
height, or method of attachment, of the goods; and
(e) the supplier must refund:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other
consideration provided by the consumer for the goods.
(2) If subsection (1)(d)(ii) applies, the supplier must collect the goods
at the supplier’s expense.
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Section 271
326 Competition and Consumer Act 2010
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Division 2—Action for damages against manufacturers of goods
271 Action for damages against manufacturers of goods
(1) If:
(a) the guarantee under section 54 applies to a supply of goods to
a consumer; and
(b) the guarantee is not complied with;
an affected person in relation to the goods may, by action against
the manufacturer of the goods, recover damages from the
manufacturer.
(2) Subsection (1) does not apply if the guarantee under section 54 is
not complied with only because of:
(a) an act, default or omission of, or any representation made by,
any person other than the manufacturer or an employee or
agent of the manufacturer; or
(b) a cause independent of human control that occurred after the
goods left the control of the manufacturer; or
(c) the fact that the price charged by the supplier was higher than
the manufacturer’s recommended retail price, or the average
retail price, for the goods.
(3) If:
(a) a person supplies, in trade or commerce, goods by
description to a consumer; and
(b) the description was applied to the goods by or on behalf of
the manufacturer of the goods, or with express or implied
consent of the manufacturer; and
(c) the guarantee under section 56 applies to the supply and it is
not complied with;
an affected person in relation to the goods may, by action against
the manufacturer of the goods, recover damages from the
manufacturer.
(4) Subsection (3) does not apply if the guarantee under section 56 is
not complied with only because of:
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(a) an act, default or omission of any person other than the
manufacturer or an employee or agent of the manufacturer;
or
(b) a cause independent of human control that occurred after the
goods left the control of the manufacturer.
(5) If:
(a) the guarantee under section 58 or 59(1) applies to a supply of
goods to a consumer; and
(b) the guarantee is not complied with;
an affected person in relation to the goods may, by action against
the manufacturer of the goods, recover damages from the
manufacturer.
(6) If an affected person in relation to goods has, in accordance with
an express warranty given or made by the manufacturer of the
goods, required the manufacturer to remedy a failure to comply
with a guarantee referred to in subsection (1), (3) or (5):
(a) by repairing the goods; or
(b) by replacing the goods with goods of an identical type;
then, despite that subsection, the affected person is not entitled to
commence an action under that subsection to recover damages of a
kind referred to in section 272(1)(a) unless the manufacturer has
refused or failed to remedy the failure, or has failed to remedy the
failure within a reasonable time.
(7) The affected person in relation to the goods may commence an
action under this section whether or not the goods are in their
original packaging.
272 Damages that may be recovered by action against
manufacturers of goods
(1) In an action for damages under this Division, an affected person in
relation to goods is entitled to recover damages for:
(a) any reduction in the value of the goods, resulting from the
failure to comply with the guarantee to which the action
relates, below whichever of the following prices is lower:
(i) the price paid or payable by the consumer for the goods;
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(ii) the average retail price of the goods at the time of
supply; and
(b) any loss or damage suffered by the affected person because
of the failure to comply with the guarantee to which the
action relates if it was reasonably foreseeable that the
affected person would suffer such loss or damage as a result
of such a failure.
(2) Without limiting subsection (1)(b), the cost of inspecting and
returning the goods to the manufacturer is taken to be a reasonably
foreseeable loss suffered by the affected person as a result of the
failure to comply with the guarantee.
(3) Subsection (1)(b) does not apply to loss or damage suffered
through a reduction in the value of the goods.
273 Time limit for actions against manufacturers of goods
An affected person may commence an action for damages under
this Division at any time within 3 years after the day on which the
affected person first became aware, or ought reasonably to have
become aware, that the guarantee to which the action relates has
not been complied with.
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Division 3—Miscellaneous
274 Indemnification of suppliers by manufacturers
(1) A manufacturer of goods is liable to indemnify a person (the
supplier) who supplies the goods to a consumer if:
(a) the supplier is liable to pay damages under section 259(4) to
the consumer for loss or damage suffered by the consumer;
and
(b) the manufacturer is or would be liable under section 271 to
pay damages to the consumer for the same loss or damage.
(2) Without limiting subsection (1), a manufacturer of goods is liable
to indemnify a person (the supplier) who supplies the goods to a
consumer if:
(a) the supplier incurs costs because the supplier is liable under
this Part for a failure to comply with a guarantee that applies
to the supply under Subdivision A of Division 1 of Part 3-2;
and
(b) the failure is:
(i) a failure to comply with the guarantee under section 54;
or
(ii) a failure to comply with the guarantee under section 55
in relation to a disclosed purpose that the consumer
made known to the manufacturer either directly or
through the supplier or the person referred to in
section 55(2)(a)(ii); or
(iii) a failure to comply with the guarantee under section 56
in relation to a description that was applied to the goods
by or on behalf of the manufacturer of the goods, or
with the express or implied consent of the manufacturer.
(3) The supplier may, with respect to the manufacturer’s liability to
indemnify the supplier, commence an action against the
manufacturer in a court of competent jurisdiction for such legal or
equitable relief as the supplier could have obtained if that liability
had arisen under a contract of indemnity made between them.
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Section 275
330 Competition and Consumer Act 2010
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(4) The supplier may commence the action at any time within 3 years
after the earliest of the following days:
(a) the day, or the first day, as the case may be, on which the
supplier made a payment with respect to, or otherwise
discharged in whole or in part, the liability of the supplier to
the consumer;
(b) the day on which a proceeding was commenced by the
consumer against the supplier with respect to that liability or,
if more than one such proceeding was commenced, the day
on which the first such proceeding was commenced.
275 Limitation of liability etc.
If:
(a) there is a failure to comply with a guarantee that applies to a
supply of services under Subdivision B of Division 1 of
Part 3-2; and
(b) the law of a State or a Territory is the proper law of the
contract;
that law applies to limit or preclude liability for the failure, and
recovery of that liability (if any), in the same way as it applies to
limit or preclude liability, and recovery of any liability, for a
breach of a term of the contract for the supply of the services.
276 This Part not to be excluded etc. by contract
(1) A term of a contract (including a term that is not set out in the
contract but is incorporated in the contract by another term of the
contract) is void to the extent that the term purports to exclude,
restrict or modify, or has the effect of excluding, restricting or
modifying:
(a) the application of all or any of the provisions of this Part; or
(b) the exercise of a right a conferred by such a provision; or
(c) any liability of a person in relation to a failure to comply with
a guarantee that applies under Division 1 of Part 3-2 to a
supply of goods or services.
(2) A term of a contract is not taken, for the purposes of this section, to
exclude, restrict or modify the application of a provision of this
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Part unless the term does so expressly or is inconsistent with the
provision.
(3) This section does not apply to a term of a contract that is a term
referred to in section 276A(4).
276A Limitation in certain circumstances of liability of
manufacturer to seller
(1) Despite section 274, if goods are not of a kind ordinarily acquired
for personal, domestic or household use or consumption, the
liability under that section of the manufacturer of the goods to a
person (the supplier) who supplied the goods to a consumer is
limited to a liability to pay to the supplier an amount equal to:
(a) the cost of replacing the goods; or
(b) the cost of obtaining equivalent goods; or
(c) the cost of having the goods repaired;
whichever is the lowest amount.
(2) Subsection (1) does not apply in relation to particular goods if the
supplier establishes that it is not fair or reasonable for the liability
of the manufacturer of the goods to be limited as mentioned in
subsection (1).
(3) In determining for the purposes of subsection (2) whether or not it
is fair or reasonable for the liability of a manufacturer to a supplier
in relation to goods to be limited as mentioned in subsection (1), a
court is to have regard to all the circumstances of the case, and in
particular to the following matters:
(a) the availability of suitable alternative sources of supply of the
goods;
(b) the availability of equivalent goods;
(c) whether the goods were manufactured, processed or adapted
to the special order of the supplier.
(4) This section is subject to any term of a contract between the
manufacturer and the supplier imposing on the manufacturer a
greater liability than the liability mentioned in subsection (1).
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277 Representative actions by the regulator
(1) The regulator may, by application, commence an action under this
Part on behalf of one or more persons identified in the application
who are entitled under this Part to take the action.
(2) The regulator may only make the application if it has obtained the
written consent of the person, or each of the persons, on whose
behalf the application is being made.
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Linked credit contracts Division 1
Section 278
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Part 5-5—Liability of suppliers and credit providers
Division 1—Linked credit contracts
278 Liability of suppliers and linked credit providers relating to
linked credit contracts
(1) If a consumer who is a party to a linked credit contract suffers loss
or damage as a result of:
(a) a misrepresentation relating to the credit provided under that
linked credit contract, or to a supply of goods or services (a
related supply) to which that contract relates; or
(b) a breach of the linked credit contract, or of a contract for a
related supply; or
(c) the failure of consideration in relation to the linked credit
contract, or to a contract for a related supply; or
(d) a failure to comply with a guarantee that applies, under
section 54, 55, 56, 57, 60, 61 or 62, in relation to a related
supply; or
(e) a breach of a warranty that is implied in the linked credit
contract by section 12ED of the Australian Securities and
Investments Commission Act 2001;
the linked credit provider who is a party to the contract, and the
supplier of a related supply, are jointly and severally liable to the
consumer for the amount of the loss or damage.
(2) A linked credit contract is a contract that a consumer enters into
with a linked credit provider of a person (the supplier) for the
provision of credit in relation to:
(a) the supply by way of sale, lease, hire or hire-purchase of
goods to the consumer by the linked credit provider where
the supplier supplies the goods, or causes the goods to be
supplied, to the linked credit provider; or
(b) the supply by the supplier of goods or services, or goods and
services, to the consumer.
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279 Action by consumer to recover amount of loss or damage
(1) If a linked credit provider, and a supplier of the goods or services,
are liable under section 278 to a consumer for an amount of loss or
damage, the consumer may recover the amount by action in a court
of competent jurisdiction.
(2) The consumer must bring the action against the linked credit
provider and the supplier jointly.
(3) Subsection (2) does not apply if:
(a) the supplier has been dissolved or the winding up of the
supplier has commenced; or
(b) both of the following apply:
(i) in the opinion of the court in which the action is taken,
it is not reasonably likely that a judgment obtained
against the supplier would be satisfied;
(ii) that court has, on the application of the consumer,
declared that that subsection does not apply in relation
to the proceedings.
280 Cases where a linked credit provider is not liable
(1) In joint liability proceedings, a linked credit provider is not liable
to a consumer under section 278 if the linked credit provider
establishes that:
(a) the credit provided by the credit provider to the consumer
was the result of an approach made to the credit provider by
the consumer; and
(b) the approach was not induced by the supplier of the goods or
services to which the linked credit contract relates.
(2) In joint liability proceedings, a linked credit provider is not liable
to a consumer under section 278 if the proceedings relate to the
supply by way of lease, hire or hire-purchase of goods to the
consumer by the linked credit provider, and the credit provider
establishes that:
(a) after due inquiry before becoming a linked credit provider of
the supplier of the goods, the credit provider was satisfied
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that the reputation of the supplier in respect of the supplier’s
financial standing and business conduct was good; and
(b) after becoming a linked credit provider of the supplier, the
credit provider had not had cause to suspect that:
(i) the consumer might be entitled to recover an amount of
loss or damage suffered as a result of a
misrepresentation, breach, failure of consideration,
failure to comply with a guarantee, or breach of a
warranty, referred to in section 278(1); and
(ii) the supplier might be unable to meet the supplier’s
liabilities as and when they fall due.
(3) In joint liability proceedings, a linked credit provider is not liable
to a consumer under section 278 if the proceedings relate to a
contract of sale in relation to which a tied loan contract applies and
the linked credit provider establishes that:
(a) after due inquiry before becoming a linked credit provider of
the supplier of goods to which the contract relates, the credit
provider was satisfied that the reputation of the supplier in
respect of the supplier’s financial standing and business
conduct was good; and
(b) after becoming a linked credit provider of the supplier, but
before the tied loan contract was entered into, the linked
credit provider had not had cause to suspect that:
(i) the consumer might, if the tied loan contract was
entered into, be entitled to recover an amount of loss or
damage suffered as a result of a misrepresentation,
breach, failure of consideration, failure to comply with a
guarantee, or breach of a warranty, referred to in
section 278(1); and
(ii) the supplier might be unable to meet the supplier’s
liabilities as and when they fall due.
(4) In joint liability proceedings, a linked credit provider is not liable
to a consumer under section 278 if:
(a) the proceedings relate to a contract of sale in relation to
which a tied continuing credit contract entered into by the
linked credit provider applies; and
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(b) the credit provider establishes the matter referred to in
subsection (5), having regard to:
(i) the nature and volume of business carried on by the
credit provider; and
(ii) such other matters as appear to be relevant in the
circumstances of the case.
(5) The matter for the purposes of subsection (4) is that the linked
credit provider, before first becoming aware of:
(a) the contract of sale referred to in paragraph (a) of that
subsection; or
(b) proposals for the making of such a contract;
had not had cause to suspect that a person entering into such a
contract with the supplier might be entitled to claim damages
against, or recover a sum of money from, the supplier for a
misrepresentation, breach, failure of consideration, failure to
comply with a guarantee, or a breach of a warranty, referred to in
section 278(1).
(6) This section has effect despite section 278(1).
281 Amount of liability of linked credit providers
The liability of a linked credit provider to a consumer under
section 278(1) in relation to a contract referred to in section 278(1)
is limited to an amount that does not exceed the sum of:
(a) the amount financed under the tied loan contract, tied
continuing credit contract, lease contract, contract of hire or
contract of hire-purchase; and
(b) the amount of interest (if any), or damages in the nature of
interest, allowed or awarded against the credit provider by
the court in which the action in relation to the liability is
taken; and
(c) the amount of costs (if any) awarded by that court against the
credit provider or supplier, or both.
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The Australian Consumer Law Schedule 2
Enforcement and remedies Chapter 5
Liability of suppliers and credit providers Part 5-5
Linked credit contracts Division 1
Section 282
Competition and Consumer Act 2010 337
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
282 Counter-claims and offsets
(1) If proceedings in relation to a linked credit contract are brought
against a consumer who is party to the contract by the linked credit
provider who is a party to the contract, the consumer is not entitled
to:
(a) make a counter-claim in relation to the credit provider’s
liability under section 278(1); or
(b) exercise a right conferred by subsection (3) of this section in
relation to that liability;
unless the consumer claims in the proceedings against the supplier
in respect of the liability, by third-party proceedings or otherwise.
(2) Subsection (1) does not apply if:
(a) the supplier has been dissolved or the winding up of the
supplier has commenced; or
(b) both of the following apply:
(i) in the opinion of the court in which the proceedings are
taken, it is not reasonably likely that a judgment
obtained against the supplier would be satisfied;
(ii) that court has, on the application of the consumer,
declared that that subsection does not apply in relation
to the proceedings.
(3) In any proceedings in relation to a linked credit contract in which
the linked credit provider who is a party to the contract claims
damages or an amount of money from a consumer, the consumer
may offset, in whole or in part, the consumer’s liability against any
liability of the credit provider under section 278(1).
283 Enforcement of judgments etc.
(1) If, in joint liability proceedings, judgment is given against a
supplier and a linked credit provider, the judgment must not be
enforced against the credit provider unless a written demand made
on the supplier for satisfaction of the judgment has remained
unsatisfied for at least 30 days.
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Schedule 2 The Australian Consumer Law
Chapter 5 Enforcement and remedies
Part 5-5 Liability of suppliers and credit providers
Division 1 Linked credit contracts
Section 283
338 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(2) If the judgment can be enforced against the linked credit provider,
it may only be enforced to the extent of the lesser of the following
amounts:
(a) the amount calculated in accordance with section 281;
(b) so much of the judgment debt as has not been satisfied by the
supplier.
(3) If, in joint liability proceedings, a right conferred by section 282(3)
is established by a consumer against a linked credit provider, the
consumer must not receive the benefit of the right unless:
(a) judgment has been given against the supplier and credit
provider; and
(b) a written demand has been made on the supplier for
satisfaction of the judgment; and
(c) the demand has remained unsatisfied for at least 30 days.
(4) If the consumer can receive the benefit of a right conferred by
section 282(3), the consumer may only receive the benefit to the
extent of the lesser of the following amounts:
(a) the amount calculated in accordance with section 281;
(b) so much of the judgment debt as has not been satisfied by the
supplier.
(5) Subsections (1) and (3) do not apply if:
(a) the supplier has been dissolved or the winding up of the
supplier has commenced; or
(b) both of the following apply:
(i) in the opinion of the court in which the proceedings are
taken, it is not reasonably likely that a judgment
obtained against the supplier would be satisfied;
(ii) that court has, on the application of the consumer,
declared that those subsections do not apply in relation
to the proceedings.
(6) If a judgment given in joint liability proceedings is enforced
against a linked credit provider of a supplier, the credit provider is
subrogated to the extent of the enforced judgment to any rights that
the consumer would have had but for the judgment against the
supplier or any other person.
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The Australian Consumer Law Schedule 2
Enforcement and remedies Chapter 5
Liability of suppliers and credit providers Part 5-5
Linked credit contracts Division 1
Section 284
Competition and Consumer Act 2010 339
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
284 Award of interest to consumers
(1) If, in joint liability proceedings, judgment is given against the
following (the defendant) for an amount of loss or damage:
(a) a supplier and a linked credit provider;
(b) a linked credit provider;
the court must, on the application of the consumer who suffered the
loss or damage, award interest to the consumer against the
defendant upon the whole or a part of the amount, unless good
cause is shown to the contrary.
(2) The interest must be awarded from the time when the consumer
became entitled to recover the amount until the date on which the
judgment is given, at the greater of the following rates:
(a) if the amount payable by the consumer to the linked credit
provider for obtaining credit in connection with the goods or
services to which the proceedings relate may be calculated at
a percentage rate per annum—that rate or, if more than one
such rate may be calculated, the lower or lowest of those
rates;
(b) 8%, or such other rate as is prescribed by the regulations.
(3) In determining whether good cause is shown against the awarding
of interest under subsection (1), the court must take into account
any payment made into court by the supplier or the linked credit
provider.
(4) This section applies despite any other law.
285 Liability of suppliers to linked credit providers, and of linked
credit providers to suppliers
(1) If a linked credit provider and supplier are liable, under
section 278, to a consumer who is a party to a linked credit
contract:
(a) if the liability relates to a supply of goods or services to
which the linked credit contract relates—the supplier is liable
to the credit provider for the amount of loss suffered by the
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Schedule 2 The Australian Consumer Law
Chapter 5 Enforcement and remedies
Part 5-5 Liability of suppliers and credit providers
Division 1 Linked credit contracts
Section 286
340 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
credit provider, unless the supplier and credit provider
otherwise agree; or
(b) if the liability relates to the linked credit contract—the credit
provider is liable to the supplier for the amount of loss
suffered by the supplier, unless the supplier and credit
provider otherwise agree.
(2) The amount for which the supplier is liable under subsection (1)(a)
of this section is an amount not exceeding the sum of the following
amounts:
(a) the maximum amount of the linked credit provider’s liability
under section 281;
(b) unless the court otherwise determines, the amount of costs (if
any) reasonably incurred by the linked credit provider in
defending the joint liability proceedings.
286 Joint liability proceedings and recovery under section 135 of the
National Credit Code
(1) If:
(a) a consumer is seeking, in joint liability proceedings, to
recover an amount under section 279 in relation to a contract
for the supply of goods or services; and
(b) the contract has been rescinded or discharged (whether under
this Schedule or any other law); and
(c) as a result of the contract being rescinded or discharged, the
consumer is entitled under section 135 of the National Credit
Code to terminate a linked credit contract; and
(d) the consumer terminates the linked credit contract under that
section;
the following amounts may be recovered in the joint liability
proceedings (to the extent that they have not been recovered under
section 135 of the National Credit Code):
(e) any amount that the consumer is entitled under section 135 of
the National Credit Code to recover from the credit provider
under the linked credit contract;
(f) any amount that the credit provider is entitled under
section 135 of the National Credit Code to recover from:
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The Australian Consumer Law Schedule 2
Enforcement and remedies Chapter 5
Liability of suppliers and credit providers Part 5-5
Linked credit contracts Division 1
Section 286
Competition and Consumer Act 2010 341
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(i) the consumer; or
(ii) if the supplier under the contract for the supply of goods
or services is a party to the joint liability proceedings—
the supplier.
(2) An amount that is recovered under subsection (1) ceases to be
recoverable under section 135 of the National Credit Code.
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Schedule 2 The Australian Consumer Law
Chapter 5 Enforcement and remedies
Part 5-5 Liability of suppliers and credit providers
Division 2 Non-linked credit contracts
Section 287
342 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Division 2—Non-linked credit contracts
287 Liability of suppliers and credit providers relating to non-linked
credit contracts
(1) If a consumer who is a party to a non-linked credit contract suffers
loss or damage as a result of a failure to comply with a guarantee
that applies, under section 54, 55, 56, 57, 60, 61 or 62, in relation
to a supply to which the contract relates, the credit provider who is
a party to the contract is not under any liability to the consumer for
the amount of the loss or damage.
(2) Subsection (1) does not prevent the consumer from recovering that
amount by action against the supplier of the goods or services to
which the contract relates.
(3) If a consumer who is a party to a non-linked credit contract suffers
loss or damage as a result of a breach of a warranty that is implied
in the contract by section 12ED of the Australian Securities and
Investments Commission Act 2001, the supplier of the goods or
services to which the contract relates is not under any liability to
the consumer for the amount of the loss or damage.
(4) Subsection (3) does not prevent the consumer from recovering that
amount by action against the credit provider who is a party to the
contract.
(5) A non-linked credit contract is a contract that a consumer enters
into with a credit provider for the provision of credit in relation to:
(a) the supply by way of sale, lease, hire or hire-purchase of
goods to the consumer where:
(i) a person (the supplier) supplies the goods, or the causes
the goods to be supplied, to the credit provider; and
(ii) the credit provider is not a linked credit provider of the
supplier; and
(iii) prior negotiations or arrangements in relation to the
acquisition of the goods were conducted or made with
the consumer by or on behalf of the supplier; and
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The Australian Consumer Law Schedule 2
Enforcement and remedies Chapter 5
Liability of suppliers and credit providers Part 5-5
Non-linked credit contracts Division 2
Section 287
Competition and Consumer Act 2010 343
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
(iv) the credit provider did not take physical possession of
the goods before they were delivered to the consumer;
or
(b) the supply of services to the consumer by a person in relation
to whom the credit provider is not a linked credit provider.
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Schedule 2 The Australian Consumer Law
Chapter 6 Application and transitional provisions
Part 1 Application and transitional provisions relating to the Consumer Credit
Legislation Amendment (Enhancements) Act 2012
Section 288
344 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Chapter 6—Application and transitional provisions
Part 1—Application and transitional provisions relating to
the Consumer Credit Legislation Amendment
(Enhancements) Act 2012
288 Application of amendments relating to lay-by agreements
The amendments made by items 1 to 8 and 10 to 15 of Schedule 7
to the Consumer Credit Legislation Amendment (Enhancements)
Act 2012 apply to lay-by agreements entered into on or after the
commencement of those items.
289 Application of amendment relating to repairs
The amendment made by item 9 of Schedule 7 to the Consumer
Credit Legislation Amendment (Enhancements) Act 2012 applies to
notices to be given in relation to the repair of goods accepted on or
after the commencement of that item.
290 Saving of regulations relating to repairs
Despite the amendment made to subsection 103(1) of Schedule 2 to
the Competition and Consumer Act 2010 by item 9 of Schedule 7
to the Consumer Credit Legislation Amendment (Enhancements)
Act 2012, regulations that:
(a) were made for the purposes of that subsection; and
(b) were in force immediately before the commencement of that
item;
continue in force (and may be dealt with) as if they were made for
the purposes of that subsection as amended by that item.
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The Australian Consumer Law Schedule 2
Application provision relating to the Treasury Legislation Amendment (Small Business
and Unfair Contract Terms) Act 2015 Part 1A
Section 290A
Competition and Consumer Act 2010 345
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Part 1A—Application provision relating to the
Treasury Legislation Amendment (Small
Business and Unfair Contract Terms) Act
2015
290A Application
(1) The amendments made by Schedule 1 to the Treasury Legislation
Amendment (Small Business and Unfair Contract Terms) Act 2015
apply in relation to a contract entered into on or after the
commencement of that Schedule.
(2) The amendments do not apply to a contract entered into before the
commencement of that Schedule. However:
(a) if the contract is renewed on or after that commencement—
the amendments apply to the contract as renewed, on and
from the day (the renewal day) on which the renewal takes
effect, in relation to conduct that occurs on or after the
renewal day; or
(b) if a term of the contract is varied on or after that
commencement and paragraph (a) has not already applied in
relation to the contract—the amendments apply to the term as
varied, on and from the day (the variation day) on which the
variation takes effect, in relation to conduct that occurs on
and after the variation day.
(3) If paragraph (2)(b) of this section applies to a term of a contract,
subsection 23(2) and section 27 apply to the contract.
(4) Despite paragraphs (2)(a) and (b) and subsection (3) of this section,
the amendments do not apply to a contract, or a term of a contract,
to the extent that the operation of the amendments would result in
an acquisition of property (within the meaning of
paragraph 51(xxxi) of the Constitution) from a person otherwise
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Schedule 2 The Australian Consumer Law
Part 1A Application provision relating to the Treasury Legislation Amendment (Small
Business and Unfair Contract Terms) Act 2015
Section 290A
346 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
than on just terms (within the meaning of that paragraph of the
Constitution).
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Endnotes
Endnote 1—About the endnotes
Competition and Consumer Act 2010 347
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that
has amended (or will amend) the compiled law. The information includes
commencement details for amending laws and details of any application, saving
or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at
the provision (generally section or equivalent) level. It also includes information
about any provision of the compiled law that has been repealed in accordance
with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make
editorial and presentational changes to a compiled law in preparing a
compilation of the law for registration. The changes must not change the effect
of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief
outline of the changes in general terms. Full details of any changes can be
obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe
the amendment to be made. If, despite the misdescription, the amendment can
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Endnotes
Endnote 1—About the endnotes
348 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
be given effect as intended, the amendment is incorporated into the compiled
law and the abbreviation “(md)” added to the details of the amendment included
in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the
abbreviation “(md not incorp)” is added to the details of the amendment
included in the amendment history.
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Endnotes
Endnote 2—Abbreviation key
Competition and Consumer Act 2010 349
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Endnote 2—Abbreviation key
ad = added or inserted o = order(s)
am = amended Ord = Ordinance
amdt = amendment orig = original
c = clause(s) par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x /sub-subparagraph(s)
Ch = Chapter(s) pres = present
def = definition(s) prev = previous
Dict = Dictionary (prev…) = previously
disallowed = disallowed by Parliament Pt = Part(s)
Div = Division(s) r = regulation(s)/rule(s)
ed = editorial change reloc = relocated
exp = expires/expired or ceases/ceased to have renum = renumbered
effect rep = repealed
F = Federal Register of Legislation rs = repealed and substituted
gaz = gazette s = section(s)/subsection(s)
LA = Legislation Act 2003 Sch = Schedule(s)
LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given SLI = Select Legislative Instrument
effect SR = Statutory Rules
(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)
cannot be given effect SubPt = Subpart(s)
mod = modified/modification underlining = whole or part not
No. = Number(s) commenced or to be commenced
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Endnotes
Endnote 3—Legislation history
350 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Endnote 3—Legislation history
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Trade Practices Act 1974 51, 1974 24 Aug
1974
s 1 and 2: 24 Aug 1974
(s 2(1))
s 55: 27 Sept 1975 (s 2(2)
and gaz 1975, No. S178)
Remainder: 1 Oct 1974
(s 2(3) and gaz 1974,
No. 75B)
Postal and
Telecommunications
Commissions
(Transitional Provisions)
Act 1975
56, 1975 12 June
1975
Sch 2 and 3: 1 July 1975
(s 2(1) and gaz 1975, No
S122)
—
Trade Practices Act 1975 63, 1975 19 June
1975
19 June 1975 (s 2) —
Trade Practices
Amendment Act 1976
88, 1976 31 Aug
1976
s 3(a), 8 and 17: 1 Oct
1974 (s 2)
Remainder: 31 Aug 1976
(s 2)
s 2 and 6(2)
Federal Court of
Australia (Consequential
Provisions) Act 1976
157, 1976 9 Dec 1976 Sch: 1 Feb 1977 (s 2 and
gaz 1977, No S3)
—
Trade Practices
Amendment Act 1977
81, 1977 16 June
1977
s 3–80, 82: 1 July 1977
(s 2)
s 8(2)–(6), 22(2),
40(2), 41(2),
42(2), 47(2),
52(2), 54(2)–(7),
58(2), 62(2),
63(2) and 82
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Endnotes
Endnote 3—Legislation history
Competition and Consumer Act 2010 351
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Remuneration and
Allowances Amendment
Act 1977
111, 1977 28 Oct
1977
s 18, 19(2): 28 Oct 1977
(s 2(1))
s 19(1): 1 June 1977
(s 2(2))
s 19(2)
Trade Practices
Amendment Act (No. 2)
1977
151, 1977 10 Nov
1977
10 Nov 1977 (s 2) s 6
Trade Practices
Amendment Act 1978
206, 1978 6 Dec 1978 6 Dec 1978 (s 2) s 8(2) and 20
Trade Practices
Amendment Act (No. 2)
1978
207, 1978 6 Dec 1978 6 Dec 1978 (s 2) —
Trade Practices
(Boycotts) Amendment
Act 1980
73, 1980 29 May
1980
29 May 1980 (s 2) —
Statute Law Revision
Act 1981
61, 1981 12 June
1981
Sch 1: 12 June 1981
(s 2(1))
—
Statute Law
(Miscellaneous
Amendments) Act 1981
176, 1981 2 Dec 1981 s 68: 30 Dec 1981
(s 2(12))
—
Statute Law
(Miscellaneous
Amendments) Act
(No. 2) 1982
80, 1982 22 Sept
1982
s 279: 20 Oct 1982
(s 2(16))
s 280(2) and (3): 22 Sept
1982 (s 2(1))
s 280(2) and (3)
Statute Law
(Miscellaneous
Provisions) Act (No. 1)
1983
39, 1983 20 June
1983
s 7(1), (3), (4) and Sch 1:
18 July 1983 (s 2(1))
s 7(1), (3) and (4)
Public Service Reform
Act 1984
63, 1984 25 June
1984
s 151(9) and Sch 4: 1 July
1984 (s 2(4) and gaz
1984, No S245)
s 151(9)
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Endnotes
Endnote 3—Legislation history
352 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Remuneration and
Allowances Amendment
Act 1984
73, 1984 25 June
1984
s 22: 25 June 1984 (s 2) —
Statute Law
(Miscellaneous
Provisions) Act (No. 2)
1984
165, 1984 25 Oct
1984
s 2(32): 22 Nov 1984
(s 2(1))
Sch 1: 25 Oct 1984
(s 2(28))
s 2(32)
as amended by
Trade Practices
Revision Act 1986
17, 1986 13 May
1986
s 75 and 76: 25 Oct 1984
(s 2(2))
—
Statute Law
(Miscellaneous
Provisions) Act (No. 1)
1985
65, 1985 5 June 1985 Sch 1: 3 July 1985
(s 2(1))
—
Trade Practices (Transfer
of Market Dominance)
Amendment Act 1986
8, 1986 1 May 1986 1 June 1986 (s 2 and gaz
1986, No S251)
—
Trade Practices Revision
Act 1986
17, 1986 13 May
1986
s 4–30, 32–34, 36–48,
49(2), 50, 51(2), 52–63,
64(2), 65–73: 1 June 1986
(s 2(4) and gaz 1986, No
S251)
s 31 and 35: 1 July 1986
(s 2(3))
s 49(1), 51(1) and 64(1):
13 May 1986 (s 2(1))
s 27(2), 31(2),
33(2), 34(2),
47(2), 50(2),
59(3) and 65(2)
Statute Law
(Miscellaneous
Provisions) Act (No. 2)
1986
168, 1986 18 Dec
1986
s 5(1) and Sch 1: 18 Dec
1986 (s 2(1))
s 5(1)
Jurisdiction of Courts
(Miscellaneous
Amendments) Act 1987
23, 1987 26 May
1987
s 4: 26 May 1987 (s 2(1))
Sch: 1 Sept 1987 (s 2(2)
and gaz 1987, No S217)
s 4
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Endnotes
Endnote 3—Legislation history
Competition and Consumer Act 2010 353
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Statute Law
(Miscellaneous
Provisions) Act 1987
141, 1987 18 Dec
1987
s 5(1): 18 Dec 1987
(s 2(1))
Sch 1: 1 Apr 1989
(s 2(32) and gaz 1989, No
S88)
s 5(1)
Family Court of
Australia (Additional
Jurisdiction and Exercise
of Powers) Act 1988
8, 1988 5 Apr 1988 s 41 and 42: 1 July 1988
(s 2(3) and gaz 1988, No
S191)
—
as amended by
Law and Justice
Legislation
Amendment Act 1988
120, 1988 14 Dec
1988
s 35: 5 Apr 1988 (s 2(6)) —
Trade Practices
Amendment Act 1988
20, 1988 11 May
1988
s 4: 1 July 1988 (s 2(2))
Remainder: 11 May 1988
(s 2(1))
—
Industrial Relations
(Consequential
Provisions) Act 1988
87, 1988 8 Nov 1988 Sch 2: 1 Mar 1989
(s 2(2))
—
as amended by
Industrial Relations
Legislation
Amendment Act
(No. 2) 1990
108, 1990 18 Dec
1990
s 24(d): 1 Mar 1989
(s 2(2))
—
Circuit Layouts Act
1989
28, 1989 22 May
1989
Sch: 1 Oct 1990 (s 2(2)
and gaz 1990, No S261)
—
Trade Practices
(International Liner
Cargo Shipping)
Amendment Act 1989
34, 1989 30 May
1989
1 Aug 1989 (s 2(1) and
gaz 1989, No S260)
s 6
Law and Justice
Legislation Amendment
Act 1989
11, 1990 17 Jan 1990 s 58 and 59: 14 Feb 1990
(s 2(1))
—
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Endnotes
Endnote 3—Legislation history
354 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Trade Practices (Misuse
of Trans-Tasman Market
Power) Act 1990
70, 1990 16 June
1990
s 4–15: 1 July 1990
(s 2(1) and gaz 1990, No
S172)
—
Trade Practices
Amendment Act 1991
49, 1991 24 Apr
1991
21 Dec 1990 (s 2) —
Industrial Relations
Legislation Amendment
Act 1991
122, 1991 27 June
1991
Sch: 10 Dec 1991 (s 2(3)
and gaz 1991, No S332)
s 31(2)
Law and Justice
Legislation Amendment
Act 1991
136, 1991 12 Sept
1991
s 23–25: 10 Oct 1991
(s 2(1))
s 25
Transport and
Communications
Legislation Amendment
Act 1991
173, 1991 25 Nov
1991
s 49–56: 25 Nov 1991
(s 2(1))
—
Special Broadcasting
Service Act 1991
180, 1991 25 Nov
1991
Sch: 23 Dec 1991 (s 2(1)) —
Law and Justice
Legislation Amendment
Act 1992
22, 1992 13 Apr
1992
Sch: 13 Apr 1992 (s 2(1)) —
Territories Law Reform
Act 1992
104, 1992 30 June
1992
Sch 4: 1 July 1992
(s 2(3))
—
Broadcasting Services
(Transitional Provisions
and Consequential
Amendments) Act 1992
105, 1992 9 July 1992 Sch 2: 5 Oct 1992 (s 2) —
Trade Practices
Amendment Act 1992
106, 1992 9 July 1992 9 July 1992 (s 2) s 3
Trade Practices
Legislation Amendment
Act 1992
222, 1992 24 Dec
1992
s 2–18, 21 and Sch 1:
21 Jan 1993 (Date of
commencement)
s 10(2), 16(2),
18(2) and 21
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Endnotes
Endnote 3—Legislation history
Competition and Consumer Act 2010 355
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Industrial Relations
Reform Act 1993
98, 1993 22 Dec
1993
s 43–47, 54 and Sch 3:
30 Mar 1994 (s 2(6) and
gaz 1994, No S104)
s 54
Insurance Laws
Amendment Act (No. 2)
1994
49, 1994 7 Apr 1994 Sch (item 19): 7 Apr 1994
(s 2(1))
—
Law and Justice
Legislation Amendment
Act (No. 2) 1994
141, 1994 28 Nov
1994
Sch 1 (items 21–26):
28 Nov 1994 (s 2(1))
—
Competition Policy
Reform Act 1995
88, 1995 20 July
1995
s 3–30, 32, 88–90, 92 and
Sch 1: 17 Aug 1995
(s 2(1))
s 35–76 and 78: 6 Nov
1995 (s 2(2) and gaz
1995, No S423)
s 80–87 and 91: 20 July
1996 (s 2(4), (5))
s 33, 34, 78, 88–
90 and 92
Statute Law Revision
Act 1996
43, 1996 25 Oct
1996
Sch 4 (items 1, 147):
25 Oct 1996 (s 2(1))
—
Workplace Relations and
Other Legislation
Amendment Act 1996
60, 1996 25 Nov
1996
Sch 17 (items 1–11, 14–
24, 29–37): 17 Jan 1997
(s 2(2) and gaz 1997, No
S18)
Sch 17 (items 29–
37)
as amended by
Workplace Relations
and Other Legislation
Amendment Act
(No. 2) 1996
77, 1996 19 Dec
1996
Sch 3 (items 1, 2):
25 Nov 1996 (s 2(4))
—
Trade Practices
Amendment (Industry
Access Codes) Act 1997
28, 1997 10 Apr
1997
10 Apr 1997 (s 2) —
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
356 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Trade Practices
Amendment
(Telecommunications)
Act 1997
58, 1997 30 Apr
1997
30 Apr 1997 (s 2) Sch 1 (item 15)
Audit (Transitional and
Miscellaneous)
Amendment Act 1997
152, 1997 24 Oct
1997
Sch 2 (item 1260): 1 Jan
1998 (s 2(2))
—
Telecommunications
Legislation Amendment
Act 1997
200, 1997 16 Dec
1997
Sch 2 (items 30–34):
30 Apr 1997 (s 2(4))
—
Trade Practices
Amendment (Fair
Trading) Act 1998
36, 1998 22 Apr
1998
Sch 2: 1 July 1998
(s 2(2)(b)(i) and gaz
1998, No S301)
Remainder: 22 Apr 1998
(s 2(1))
—
Financial Sector Reform
(Consequential
Amendments) Act 1998
48, 1998 29 June
1998
Sch 1 (item 194) and
Sch 2 (items 24–29):
1 July 1998 (s 2(2))
—
Gas Pipelines Access
(Commonwealth) Act
1998
101, 1998 30 July
1998
Sch 1 (items 11–26):
30 July 1998 (s 2(1))
Sch 1 (items 27–56):
30 July 1998 (s 2(3))
Sch 1 (items 36,
47, 50)
Trade Practices
Amendment (Country of
Origin Representations)
Act 1998
106, 1998 30 July
1998
Sch 1: 13 Aug 1998
(s 2(2) and gaz 1998, No
S398)
Remainder: 30 July 1998
(s 2(1))
—
Telecommunications
Legislation Amendment
Act 1999
52, 1999 5 July 1999 Sch 1 (items 6–77): 5 July
1999 (s 2(1))
Sch 3 (items 69–76, 81):
2 Aug 1999 (s 2(4))
Sch 4 (items 17–20, 28):
1 July 1999 (s 2(6))
Sch 1 (items 72–
77), Sch 3
(item 81) and Sch
4 (item 28)
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
Competition and Consumer Act 2010 357
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
A New Tax System
(Trade Practices
Amendment) Act 1999
61, 1999 8 July 1999 9 July 1999 (s 2) —
Public Employment
(Consequential and
Transitional)
Amendment Act 1999
146, 1999 11 Nov
1999
Sch 1 (items 944–955):
5 Dec 1999 (s 2(1), (2))
—
A New Tax System
(Indirect Tax and
Consequential
Amendments) Act 1999
176, 1999 22 Dec
1999
Sch 4: 22 Dec 1999
(s 2(1))
—
Federal Magistrates
(Consequential
Amendments) Act 1999
194, 1999 23 Dec
1999
Sch 25: 23 Dec 1999
(s 2(1))
—
Jurisdiction of Courts
Legislation Amendment
Act 2000
57, 2000 30 May
2000
Sch 1 (items 77–90):
30 May 2000 (s 2(1))
—
A New Tax System
(Trade Practices
Amendment) Act 2000
69, 2000 22 June
2000
Sch 2 (item 1): 6 Nov
1995 (s 2(2))
Sch 2 (item 2): 10 Apr
1997 (s 2(3))
Remainder: 22 June 2000
(s 2(1))
—
Trade Practices
Amendment
(International Liner
Cargo Shipping) Act
2000
123, 2000 5 Oct 2000 Sch 1 (items 154–170,
180): 2 Mar 2001
(s 2(2)(a))
Remainder: 2 Nov 2000
(s 2(1))
Sch 1 (items 171–
180)
Jurisdiction of Courts
(Miscellaneous
Amendments) Act 2000
161, 2000 21 Dec
2000
Sch 1 (items 4, 5): 21 Dec
2000 (s 2)
—
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
358 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Treasury Legislation
Amendment
(Application of Criminal
Code) Act (No. 1) 2001
31, 2001 28 Apr
2001
Sch 1 (items 240–290):
15 Dec 2001 (s 2(4))
—
as amended by
Statute Law Revision
Act 2002
63, 2002 3 July 2002 Sch 2 (item 35): 15 Dec
2001 (s 2(1) item 64)
—
Communications and the
Arts Legislation
Amendment Act 2001
46, 2001 5 June 2001 s 6 and Sch 1 (items 9–
18): 5 June 2001 (s 2)
s 6
Corporations (Repeals,
Consequentials and
Transitionals) Act 2001
55, 2001 28 June
2001
s 4–14 and Sch 3
(items 550–557): 15 July
2001 (s 2(3))
s 4–14
Trade Practices
Amendment Act (No. 1)
2001
63, 2001 28 June
2001
Sch 2 (items 1–3, 6–8):
15 Dec 2001 (s 2(3))
Remainder: 26 July 2001
(s 2(1), (2)(a))
Sch 1 (items 5, 8,
10, 13, 15, 17, 19,
21, 23, 25, 27, 29,
32, 34, 36, 38)
and Sch 2
(items 3, 5, 8)
as amended by
Statute Law Revision
Act 2002
63, 2002 3 July 2002 Sch 2 (item 32): 15 Dec
2001 (s 2(1) item 61)
—
Treasury Legislation
Amendment
(Application of Criminal
Code) Act (No. 3) 2001
117, 2001 18 Sept
2001
s 4 and Sch 3 (items 16–
56): 15 Dec 2001 (s 2(1),
(4))
s 4
Financial Services
Reform (Consequential
Provisions) Act 2001
123, 2001 27 Sept
2001
Sch 1 (items 364–364D,
365–365B): 11 Mar 2002
(s 2(1), (6), (15))
—
Trade Practices
Amendment
(Telecommunications)
Act 2001
124, 2001 27 Sept
2001
27 Sept 2001 (s 2) Sch 1 (items 23,
24)
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
Competition and Consumer Act 2010 359
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Treasury Legislation
Amendment
(Application of Criminal
Code) Act (No. 2) 2001
146, 2001 1 Oct 2001 s 4 and Sch 2: 15 Dec
2001 (s 2(1), (2))
s 4
Statute Law Revision
Act 2002
63, 2002 3 July 2002 Sch 1 (items 34, 35, 38):
1 July 1999 s 2(1)
items 27, 29)
Sch 1 (items 36, 37):
3 July 2002 (s 2(1)
item 28)
—
Trade Practices
Amendment Act (No. 1)
2002
128, 2002 11 Dec
2002
11 Dec 2002 (s 2) Sch 1 (items 4, 7,
9)
Telecommunications
Competition Act 2002
140, 2002 19 Dec
2002
Sch 2: 19 Dec 2002 (s 2) Sch 2 (items 9,
15, 19, 21, 69,
110, 111, 113,
115)
Trade Practices
Amendment (Liability
for Recreational
Services) Act 2002
146, 2002 19 Dec
2002
19 Dec 2002 (s 2) —
Maritime Legislation
Amendment Act 2003
7, 2003 19 Mar
2003
Sch 2: 19 Mar 2003
(s 2(1) item 4)
—
Industry, Tourism and
Resources Legislation
Amendment Act 2003
21, 2003 11 Apr
2003
Sch 1 (items 25–29):
12 Apr 2003 (s 2(1)
item 7)
Sch 1 (item 29)
Trade Practices
Legislation Amendment
Act 2003
134, 2003 17 Dec
2003
Sch 1 and Sch 2
(items 32–44–53, 56): 1
Mar 2004 (s 2(1) item 2
and gaz 2004, No GN8)
Sch 2 (items 44–
53, 56)
Postal Services
Legislation Amendment
Act 2004
69, 2004 22 June
2004
Sch 1 (item 25): 22 June
2004 (s 2)
—
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
360 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Corporate Law
Economic Reform
Program (Audit Reform
and Corporate
Disclosure) Act 2004
103, 2004 30 June
2004
Sch 3 (items 5, 6): 26 July
2004 (s 2(1) item 3 and
gaz 2004, No GN28)
—
Trade Practices
Amendment (Australian
Energy Market) Act
2004
108, 2004 30 June
2004
Sch 1: 23 May 2005
(s 2(1) item 2)
—
Trade Practices
Amendment (Personal
Injuries and Death) Act
(No. 2) 2004
113, 2004 13 July
2004
13 July 2004 (s 2) Sch 1 (item 11)
Treasury Legislation
Amendment
(Professional Standards)
Act 2004
118, 2004 13 July
2004
Sch 1 (items 8A, 9–11):
13 July 2004 (s 2)
—
Australian
Communications and
Media Authority
(Consequential and
Transitional Provisions)
Act 2005
45, 2005 1 Apr 2005 Sch 1 (items 168–171),
Sch 2 and 4: 1 July 2005
(s 2(1) items 2, 3, 10)
Sch 4
Telecommunications
Legislation Amendment
(Competition and
Consumer Issues) Act
2005
119, 2005 23 Sept
2005
Sch 4–6, Sch 7 (items 1–
3, 5–12, 14–19, 21–28),
Sch 9 and 12: 24 Sept
2005 (s 2(1) items 4, 5, 7,
9, 11, 12, 14)
Sch 7 (items 4, 13, 20):
23 Mar 2006 (s 2(1)
items 6, 8, 10)
Sch 11 (items 8, 9): 1 Jan
2006 (s 2(1) item 13)
Sch 4 (item 2)
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
Competition and Consumer Act 2010 361
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Trade Practices
Amendment (Personal
Injuries and Death) Act
2006
11, 2006 23 Mar
2006
Sch 1: 20 Apr 2006
(s 2(1) item 2)
Sch 1 (item 8)
Offshore Petroleum
(Repeals and
Consequential
Amendments) Act 2006
17, 2006 29 Mar
2006
Sch 2 (items 113–116):
1 July 2008 (s 2(1)
item 2)
—
Jurisdiction of the
Federal Magistrates
Court Legislation
Amendment Act 2006
23, 2006 6 Apr 2006 Sch 1: 4 May 2006 (s 2(1)
item 2)
Sch 1 (items 2, 5)
Energy Legislation
Amendment Act 2006
60, 2006 22 June
2006
Sch 1 (items 2–13) and
Sch 2 (item 14): 22 June
2006 (s 2(1) items 2, 6)
Sch 2 (items 12, 13, 15,
16): 23 May 2005 (s 2(1)
items 5, 7)
—
Trade Practices
Amendment (National
Access Regime) Act
2006
92, 2006 18 Aug
2006
Sch 1: 1 Oct 2006 (s 2(1)
item 2)
Sch 1 (items 114–
136)
Tax Laws Amendment
(Repeal of Inoperative
Provisions) Act 2006
101, 2006 14 Sept
2006
Sch 5 (items 164, 165):
14 Sept 2006 (s 2(1)
item 4)
—
Maritime Transport and
Offshore Facilities
Security Amendment
(Security Plans and
Other Measures) Act
2006
109, 2006 27 Sept
2006
Sch 2 (items 97–103):
27 Sept 2006 (s 2(1)
item 5)
—
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
362 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Trade Practices
Legislation Amendment
Act (No. 1) 2006
131, 2006 6 Nov 2006 Sch 1–8 and Sch 9
(items 1–15, 20–24):
1 Jan 2007 (s 2(1)
items 2, 3)
Sch 10: 7 Nov 2006
(s 2(1) item 54)
Sch 11: 6 Nov 2006
(s 2(1) item 5)
Sch 1 (items 52,
53), Sch 2
(items 13, 14),
Sch 3 (items 28,
29), Sch4
(item 2), Sch 5
(item 4), Sch 6
(item 20), Sch 7
(items 18, 33, 35),
Sch 8 (items 28,
29) and Sch 9
(items 15, 21, 24)
Australian Energy
Market Amendment
(Gas Legislation) Act
2007
45, 2007 10 Apr
2007
Sch 1 (items 58–81):
1 July 2008 (s 2(1)
item 2)
—
Broadcasting Legislation
Amendment (Digital
Radio) Act 2007
68, 2007 28 May
2007
Sch 1 (items 178–182):
29 May 2007 (s 2(1)
item 2)
Sch 2 (item 3): 19 July
2007 (s 2(1) item 3)
—
Corporations (NZ Closer
Economic Relations) and
Other Legislation
Amendment Act 2007
85, 2007 21 June
2007
Sch 3 (items 3–9): 19 July
2007 (s 2(1) item 7)
—
Water (Consequential
Amendments) Act 2007
138, 2007 3 Sept 2007 Sch 1 (items 6–8): 3 Mar
2008 (s 2(1) item 2)
—
Trade Practices
Legislation Amendment
Act (No. 1) 2007
159, 2007 24 Sept
2007
Sch 1, 2 and Sch 3
(items 5–9): 25 Sept 2007
(s 2)
Sch 1 (item 4),
Sch 2 (item 12)
and Sch 3 (item 9)
Trade Practices
Amendment (Access
Declarations) Act 2008
7, 2008 20 Mar
2008
20 Mar 2008 (s 2) —
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
Competition and Consumer Act 2010 363
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Australian Energy
Market Amendment
(Minor Amendments)
Act 2008
60, 2008 30 June
2008
Sch 4: 1 July 2008 (s 2(1)
item 4)
—
Trade Practices
Legislation Amendment
Act 2008
116, 2008 21 Nov
2008
Sch 1, 2 and Sch 3
(items 7–15): 22 Nov
2008 (s 2)
Sch 3 (items 13,
15)
Offshore Petroleum
Amendment
(Greenhouse Gas
Storage) Act 2008
117, 2008 21 Nov
2008
Sch 3 (item 60): 22 Nov
2008 (s 2(1) item 4)
—
Trade Practices
Amendment (Clarity in
Pricing) Act 2008
126, 2008 25 Nov
2008
Sch 1: 25 May 2009
(s 2(1) item 2)
Sch 2: 26 Nov 2008
(s 2(1) item 3)
Sch 1 (item 5)
Water Amendment Act
2008
139, 2008 8 Dec 2008 Sch 2 (items 3–5): 15 Dec
2008 (s 2(1) item 3)
—
Australian Energy
Market Amendment
(AEMO and Other
Measures) Act 2009
17, 2009 26 Mar
2009
Sch 1 (items 12, 14):
27 Mar 2009 (s 2(1)
items 4, 6)
Sch 1 (item 13): 1 July
2009 (s 2(1) item 5)
—
Fair Work (State
Referral and
Consequential and Other
Amendments) Act 2009
54, 2009 25 June
2009
Sch 18 (items 24–31):
1 July 2009 (s 2(1)
item 41)
—
Trade Practices
Amendment (Cartel
Conduct and Other
Measures) Act 2009
59, 2009 26 June
2009
Sch 1 (items 3–128) and
Sch 2 (items 1–49, 52,
53): 24 July 2009 (s 2(1)
items 2, 3, 5)
Sch 2 (items 50, 51):
27 June 2009 (s 2(1)
item 4)
Sch 1 (item 118)
and Sch 2
(items 52, 53)
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
364 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Statute Stocktake
(Regulatory and Other
Laws) Act 2009
111, 2009 16 Nov
2009
Sch 1 (items 26–50, 107–
109): 17 Nov 2009 (s 2)
Sch 1 (items 49,
50)
Crimes Legislation
Amendment (Serious
and Organised Crime)
Act (No. 2) 2010
4, 2010 19 Feb
2010
Sch 11 (item 23): 20 Feb
2010 (s 2(1) item 13)
—
Statute Law Revision
Act 2010
8, 2010 1 Mar 2010 Sch 5 (items 125, 126,
137): 1 Mar 2010 (s 2(1)
items 37, 38)
—
Trade Practices
Amendment (Australian
Consumer Law) Act
(No. 1) 2010
44, 2010 14 Apr
2010
Sch 1, Sch 2 (items 27,
29, 31, 32, 41–43, 46–50,
56–70, 72–74) and Sch 4
(items 4, 5): 1 July 2010
(s 2(1) items 2, 4, 6, 7,
14)
Sch 2 (items 1–26) and
Sch 4 (item 3): 15 Apr
2010 (s 2(1) items 3, 13)
Sch 2 (item 40): never
commenced (s 2(1)
item 5)
Sch 1 (item 2)
Trade Practices
Amendment
(Infrastructure Access)
Act 2010
102, 2010 13 July
2010
Sch 1–5: 14 July 2010
(s 2(1) items 2–5)
Sch 1 (item 72),
Sch 3 (item 11),
Sch 4 (item 5) and
Sch 5 (items 20–
25)
Trade Practices
Amendment (Australian
Consumer Law) Act
(No. 2) 2010
103, 2010 13 July
2010
Sch 1, 2, 4, 5 and 7: 1 Jan
2011 (s 2(1) items 2, 8)
Sch 4 (item 5) and
Sch 7
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
Competition and Consumer Act 2010 365
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
as amended by
Competition and
Consumer Legislation
Amendment Act 2011
184, 2011 6 Dec 2011 Sch 3: 1 Jan 2011 (s 2(1)
(item 4)
—
Statute Law Revision
Act 2012
136, 2012 22 Sept
2012
Sch 2 (items 39, 40):
12 Apr 2012 (s 2(1)
item 30)
Sch 2 (item 43): 1 Jan
2011 (s 2(1) item 33)
—
Telecommunications
Legislation Amendment
(Competition and
Consumer Safeguards)
Act 2010
140, 2010 15 Dec
2010
Sch 1 (items 32–40, 114–
195, 195A, 196–198,
202–213): 1 Jan 2011
(s 2(1) items 2, 5)
Sch 1 (items 57–59):
awaiting commencement
(s 2(1) item 3)
Sch 1 (items 66, 67):
6 Mar 2012 (s 2(1)
item 4)
Sch 1 (items 40,
198, 202–210,
213)
Financial Framework
Legislation Amendment
Act 2010
148, 2010 17 Dec
2010
Sch 6: 18 Dec 2010
(s 2(1) item 6)
Sch 6 (items 2, 3)
Statute Law Revision
Act 2011
5, 2011 22 Mar
2011
Sch 7 (items 38, 39):
19 Apr 2011 (s 2(1)
item 18)
—
Telecommunications
Legislation Amendment
(National Broadband
Network Measures—
Access Arrangements)
Act 2011
23, 2011 12 Apr
2011
Sch 1 (items 25–83):
13 Apr 2011 (s 2(1)
item 2)
Sch 1 (items 89–114):
12 Apr 2012 (s 2(1)
item 4)
Sch 1 (item 83)
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
366 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
as amended by
Statute Law Revision
Act 2012
136, 2012 22 Sept
2012
Sch 2 (items 39, 40):
12 Apr 2012 (s 2(1)
item 30)
—
Acts Interpretation
Amendment Act 2011
46, 2011 27 June
2011
Sch 2 (items 409–441)
and Sch 3 (items 10, 11):
27 Dec 2011 (s 2(1)
items 3, 12)
Sch 3 (items 10,
11)
Carbon Credits
(Consequential
Amendments) Act 2011
102, 2011 15 Sept
2011
Sch 1 (item 8): 8 Dec
2011 (s 2(1) item 2)
—
Australian Energy
Market Amendment
(National Energy Retail
Law) Act 2011
119, 2011 14 Oct
2011
Sch 2 (items 2–25): 1 July
2012 (s 2(1) items 3–5)
Sch 2 (item 13)
Clean Energy
(Consequential
Amendments) Act 2011
132, 2011 18 Nov
2011
Sch 1 (items 100–102):
2 Apr 2012 (s 2(1) item 2)
Sch 1 (items 258B–
258D): 1 July 2012
(s 2(1) item 3)
—
Competition and
Consumer Legislation
Amendment Act 2011
184, 2011 6 Dec 2011 Sch 1: 6 Feb 2012 (s 2(1)
item 2)
Sch 2 (items 2–4): 1 Jan
2012 (s 2(1) item 3)
—
Competition and
Consumer Amendment
Act (No. 1) 2011
185, 2011 6 Dec 2011 Sch 1: 6 June 2012 (s 2(1)
item 2)
—
Telecommunications
Legislation Amendment
(Universal Service
Reform) Act 2012
44, 2012 16 Apr
2012
Sch 1 (item 4): 1 July
2012 (s 2(1) item 2)
—
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
Competition and Consumer Act 2010 367
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Consumer Credit
Legislation Amendment
(Enhancements) Act
2012
130, 2012 17 Sept
2012
Sch 7: 17 Sept 2013
(s 2(1) item 5)
—
Statute Law Revision
Act 2012
136, 2012 22 Sept
2012
Sch 1 (items 31–36):
22 Sept 2012 (s 2(1)
item 2)
—
Australian Charities and
Not-for-profits
Commission
(Consequential and
Transitional) Act 2012
169, 2012 3 Dec 2012 Sch 2 (items 160–168):
3 Dec 2012 (s 2(1)
item 7)
Sch 4 (item 14): never
commenced (s 2(1)
item 14)
Sch 2 (item 168)
Federal Circuit Court of
Australia (Consequential
Amendments) Act 2013
13, 2013 14 Mar
2013
Sch 1 (items 87–92) and
Sch 2 (item 1): 12 Apr
2013 (s 2(1) items 2, 3)
—
Statute Law Revision
Act 2013
103, 2013 29 June
2013
Sch 1 (item 32) and Sch 3
(items 69–74, 343):
29 June 2013 (s 2(1)
items 2, 16)
Sch 3 (item 343)
Competition and
Consumer Amendment
Act 2013
104, 2013 29 June
2013
30 June 2013 (s 2) —
Public Governance,
Performance and
Accountability
(Consequential and
Transitional Provisions)
Act 2014
62, 2014 30 June
2014
Sch 5 (items 111, 112),
Sch 6 (item 35) and Sch
14: 1 July 2014 (s 2(1)
items 5, 6, 14)
Sch 14
as amended by
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
368 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Public Governance
and Resources
Legislation
Amendment Act
(No. 1) 2015
36, 2015 13 Apr
2015
Sch 2 (items 7–9) and Sch
7: 14 Apr 2015 (s 2)
Sch 7
as amended by
Acts and
Instruments
(Framework
Reform)
(Consequential
Provisions) Act
2015
126, 2015 10 Sept
2015
Sch 1 (item 486): 5 Mar
2016 (s 2(1) item 2)
—
Acts and Instruments
(Framework Reform)
(Consequential
Provisions) Act 2015
126, 2015 10 Sept
2015
Sch 1 (item 495): 5 Mar
2016 (s 2(1) item 2)
—
Clean Energy
Legislation (Carbon Tax
Repeal) Act 2014
83, 2014 17 July
2014
Sch 2: 18 July 2014
(s 2(1) item 6)
—
Competition and
Consumer Amendment
(Industry Code
Penalties) Act 2014
107, 2014 24 Sept
2014
1 Jan 2015 (s 2) —
Omnibus Repeal Day
(Autumn 2014) Act 2014
109, 2014 16 Oct
2014
Sch 2 (items 2–4, 112,
113, 187): 17 Oct 2014
(s 2(1) item 2)
Sch 2 (item 4)
Acts and Instruments
(Framework Reform)
Act 2015
10, 2015 5 Mar 2015 Sch 3 (items 68–75, 348,
349): 5 Mar 2016 (s 2(1)
item 2)
Sch 3 (items 348,
349)
Telecommunications
Legislation Amendment
(Deregulation) Act 2015
38, 2015 13 Apr
2015
Sch 1 (items 7–10, 138–
163): 1 July 2015 (s 2(1)
item 3)
Sch 1 (items 138–
163)
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
Competition and Consumer Act 2010 369
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Acts and Instruments
(Framework Reform)
(Consequential
Provisions) Act 2015
126, 2015 10 Sept
2015
Sch 1 (items 128–148):
5 Mar 2016 (s 2(1)
item 2)
—
Treasury Legislation
Amendment (Small
Business and Unfair
Contract Terms) Act
2015
147, 2015 12 Nov
2015
Sch 1 (items 19–47):
12 Nov 2016 (s 2(1)
item 2)
—
Statute Law Revision
Act (No. 1) 2016
4, 2016 11 Feb
2016
Sch 4 (items 1, 66–68)
and Sch 5 (item 4):
10 Mar 2016 (s 2(1)
item 6)
—
Competition and
Consumer Amendment
(Payment Surcharges)
Act 2016
9, 2016 25 Feb
2016
25 Feb 2016 (s 2(1)
item 1)
—
Courts Administration
Legislation Amendment
Act 2016
24, 2016 18 Mar
2016
Sch 5 (item 8): 1 July
2016 (s 2(1) item 7)
Sch 6: 18 Mar 2016
(s 2(1) item 9)
Sch 6
Territories Legislation
Amendment Act 2016
33, 2016 23 Mar
2016
Sch 5 (items 25–28):
1 July 2016 (s 2(1)
item 7)
—
Statute Update Act 2016 61, 2016 23 Sept
2016
Sch 1 (items 152, 153)
and Sch 3 (items 13, 14):
21 Oct 2016 (s 2(1)
item 1)
—
Competition and
Consumer Amendment
(Country of Origin) Act
2017
5, 2017 22 Feb
2017
23 Feb 2017 (s 2(1)
item 1)
—
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 3—Legislation history
370 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Name Registration Commencement Application,
saving and
transitional
provisions
Workplace Relations
Amendment (Work
Choices) (Consequential
Amendments)
Regulations 2006
(No. 1) (SLI No. 50,
2006)
17 Mar 2006
(F2006L00820)
Sch 15: 27 Mar 2006
(r 2(b))
—
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 371
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Endnote 4—Amendment history
Provision affected How affected
Title ............................................... am. No. 103, 2010
Part I
s. 1 ................................................. am. No. 103, 2010
s. 2 ................................................. rep. No. 81, 1977
ad. No. 88, 1995
s. 2A............................................... ad. No. 81, 1977
am. No. 34, 1989; No. 88, 1995; No. 134, 2003; No. 108, 2004
s. 2B............................................... ad. No. 88, 1995
am. No. 58, 1997; No. 61, 1999; No. 111, 2009; No 83, 2014
s. 2BA............................................ ad. No. 131, 2006
s. 2C............................................... ad. No. 88, 1995
am. No. 131, 2006
s. 2D............................................... ad. No. 88, 1995
rep. No. 131, 2006
s. 4 ................................................. am. Nos. 88 and 157, 1976; No. 81, 1977; No. 206, 1978; No. 17,
1986; No. 8, 1988; No. 70, 1990; Nos. 104 and 222, 1992; No. 88,
1995; No. 60, 1996; No. 48, 1998; No. 55, 2001; Nos. 108 and 113,
2004; No. 131, 2006; Nos. 45 and 159, 2007; No. 60, 2008; Nos. 17
and 59, 2009; Nos. 44, 103 and 140, 2010; Nos. 46 and 119, 2011;
No. 169, 2012; No. 13, 2013; No 9, 2016
s. 4A............................................... ad. No. 81, 1977
am. No. 88, 1995; No. 131, 2006
s. 4B............................................... ad. No. 81, 1977
am. No. 151, 1977; No. 17, 1986; No. 88, 1995
s. 4C............................................... ad. No. 81, 1977
am. No. 88, 1995
s. 4D............................................... ad. No. 81, 1977
am. No. 206, 1978; No. 17, 1986
s. 4E............................................... ad. No. 81, 1977
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
372 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 70, 1990
s. 4F ............................................... ad. No. 81, 1977
am. No. 60, 1996
ss. 4G, 4H ...................................... ad. No. 81, 1977
ss. 4J, 4K........................................ ad. No. 81, 1977
s. 4KA............................................ ad. No. 113, 2004
rs. No. 103, 2010
ss. 4KB, 4KC ................................. ad. No. 44, 2010
rep. No. 103, 2010
s. 4L............................................... ad. No. 81, 1977
am. No. 17, 1986; Nos. 44 and 103, 2010
s. 4M.............................................. ad. No. 81, 1977
s. 4N............................................... ad. No. 101, 1998
am. Nos. 17 and 92, 2006; No. 117, 2008
s. 5 ................................................. am. No. 17, 1986; No. 70, 1990; No. 222, 1992; No. 106, 1998;
No. 61, 1999; No. 31, 2001; Nos. 59 and 111, 2009; Nos. 44 and 103,
2010
s. 6 ................................................. am. No. 88, 1976; No. 81, 1977; Nos. 206 and 207, 1978; No. 73,
1980; No. 17, 1986; No. 70, 1990; Nos. 106 and 222, 1992; No. 98,
1993; No. 88, 1995; No. 60, 1996; No. 58, 1997; No. 106, 1998;
No. 61, 1999; No. 69, 2000; No. 31, 2001 (as am. by No. 63, 2002);
No. 117, 2001; No. 134, 2003; No. 131, 2006; No. 126, 2008; Nos.
59 and 111, 2009; No. 44, 2010; No. 103, 2010 (as am. by No. 184,
2011); No. 185, 2011; No. 103, 2013; No 83, 2014; No 9, 2016
s. 6AA............................................ ad. No. 146, 2001
am. No. 59, 2009; No. 103, 2010
Part II
Heading to Part II........................... rs. No. 88, 1995
s. 6A............................................... ad. No. 81, 1977
am. No. 88, 1995; No. 148, 2010; No 62, 2014
s. 7 ................................................. rs. No. 81, 1977
am. No. 88, 1995; No. 106, 1998; No. 108, 2004
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 373
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 8 ................................................. am. No. 81, 1977; No. 88, 1995
s. 8A............................................... ad. No. 81, 1977
am. No. 88, 1995; No. 131, 2006
s. 8AB............................................ ad. No. 108, 2004
s. 9 ................................................. am. No. 81, 1977; No. 88, 1995
s. 10 ............................................... am. No. 81, 1977; No. 88, 1995; No. 159, 2007; No. 116, 2008
s. 11 ............................................... am. No. 88, 1976; No. 17, 1986; No. 88, 1995; No. 159, 2007;
No. 46, 2011
s. 12 ............................................... am. No. 88, 1976; No. 81, 1977
rs. No. 122, 1991
am. No. 146, 1999
s. 13 ............................................... am. No. 88, 1976
rs. No. 81, 1977
am. No. 206, 1978; No. 88, 1995
s. 14 ............................................... rs. No. 81, 1977
am. No. 88, 1995
s. 15 ............................................... am. No. 81, 1977; No. 88, 1995
s. 16 ............................................... am. No. 88, 1995
s. 17 ............................................... am. No. 88, 1976; No. 81, 1977
rs. No. 17, 1986
am. No. 88, 1995
s. 18 ............................................... am. No. 17, 1986; No. 88, 1995; No. 159, 2007
s. 19 ............................................... am. No. 88, 1995; No. 159, 2007
s. 20 ............................................... rep. No. 81, 1977
ad. No. 88, 1995
rep. No. 152, 1997
ss. 21–23........................................ rep. No. 81, 1977
s. 24 ............................................... am. No. 88, 1976
rep. No. 81, 1977
s. 25 ............................................... am. No. 58, 1997; No. 52, 1999; No. 134, 2003; No. 69, 2004;
No. 119, 2005; No. 131, 2006; No. 138, 2007; No. 23, 2011
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
374 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 26 ............................................... am. No. 81, 1977
rep. No. 65, 1985
ad. No. 48, 1998
am. Nos. 31 and 55, 2001; No. 103, 2010
s. 27 ............................................... am. No. 63, 1984; No. 88, 1995; No. 146, 1999
s. 27A............................................. ad. No. 88, 1995
s. 28 ............................................... am. No. 88, 1976; No. 81, 1977; No. 88, 1995
s. 29 ............................................... am. No. 88, 1976; No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 58,
1997; No. 123, 2000; No. 134, 2003; No. 103, 2010
Part IIA
Part IIA .......................................... ad. No. 88, 1995
s. 29AA.......................................... ad. No. 60, 2006
rep. No. 45, 2007
s. 29A............................................. ad. No. 88, 1995
s. 29B............................................. ad. No. 88, 1995
am. No. 101, 1998; No. 60, 2006; No. 45, 2007
ss. 29BA, 29BB ............................. ad. No. 60, 2006
am. No. 45, 2007
s. 29BC .......................................... ad. No. 60, 2006
am. No. 45, 2007
ss. 29C, 29D................................... ad. No. 88, 1995
s. 29E............................................. ad. No. 88, 1995
am. No. 46, 2011
s. 29F ............................................. ad. No. 88, 1995
s. 29G............................................. ad. No. 88, 1995
am. No. 146, 1999
ss. 29H, 29I.................................... ad. No. 88, 1995
s. 29J.............................................. ad. No. 88, 1995
am. No. 134, 2003
ss. 29K, 29L................................... ad. No. 88, 1995
s. 29LA .......................................... ad. No. 102, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 375
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 29M............................................ ad. No. 88, 1995
am. No. 146, 1999
s. 29N............................................. ad. No. 88, 1995
s. 29O............................................. ad. No. 88, 1995
am. No. 92, 2006
Part III
Heading to Part III ......................... rs. No. 88, 1995
s. 29P ............................................. ad. No. 131, 2006
s. 30 ............................................... am. No. 88, 1995
s. 31 ............................................... am. No. 81, 1977; No. 88, 1995
s. 31A............................................. ad. No. 111, 1977
am. No. 88, 1995
s. 32 ............................................... am. No. 88, 1995
s. 33 ............................................... rs. No. 88, 1976
am. No. 81, 1977
rs. No. 111, 1977
am. No. 73, 1984; No. 88, 1995; No. 43, 1996
s. 34 ............................................... am. No. 80, 1982; No. 106, 1998; No. 46, 2011
s. 35 ............................................... am. No. 81, 1977; No. 61, 1981; No. 88, 1995
s. 36 ............................................... am. No. 88, 1995
s. 39 ............................................... am. No. 131, 2006
s. 40 ............................................... rs. No. 17, 1986
am. No. 123, 2000
s. 43 ............................................... am. No. 88, 1995
ss. 43A, 43B................................... ad. No. 88, 1995
s. 44 ............................................... am. No. 81, 1977; No. 88, 1995; No. 146, 1999
s. 44A............................................. ad. No. 206, 1978
am. No. 88, 1995; No. 146, 1999; No. 46, 2011
Part IIIAA
Part IIIAA...................................... ad. No. 108, 2004
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
376 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Division 1
s. 44AB.......................................... ad. No. 108, 2004
am. No. 60, 2006; No. 45, 2007
ss. 44AC, 44AD............................. ad. No. 108, 2004
Division 2
s. 44AE .......................................... ad. No. 108, 2004
am No 62, 2014
s. 44AF .......................................... ad. No. 108, 2004
s. 44AG.......................................... ad. No. 108, 2004
Division 3
s. 44AH.......................................... ad. No. 108, 2004
am. No. 45, 2007
s. 44AI ........................................... ad. No. 108, 2004
am. No. 119, 2011
s. 44AJ ........................................... ad. No. 108, 2004
am. No. 119, 2011
s. 44AK.......................................... ad. No. 108, 2004
am. No. 119, 2011
s. 44AL .......................................... ad. No. 108, 2004
am. No. 119, 2011
Division 4
Subdivision A
ss. 44AM, 44AN ............................ ad. No. 108, 2004
s. 44AO.......................................... ad. No. 108, 2004
am. No. 46, 2011
s. 44AP .......................................... ad. No. 108, 2004
s 44AQ........................................... ad. No. 108, 2004
am. No. 46, 2011
s. 44AR.......................................... ad. No. 108, 2004
s. 44AS .......................................... ad. No. 108, 2004
am. No. 46, 2011
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 377
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
ss. 44AT–44AZ.............................. ad. No. 108, 2004
s. 44AAB ....................................... ad. No. 108, 2004
Subdivision B
s. 44AAC ....................................... ad. No. 108, 2004
Subdivision C
ss. 44AAD, 44AAE ....................... ad. No. 108, 2004
s. 44AAEA..................................... ad. No. 45, 2007
Subdivision D
s. 44AAF........................................ ad. No. 108, 2004
am. No. 17, 2009; No. 132, 2011
s. 44AAG....................................... ad. No. 108, 2004
s. 44AAGA .................................... ad. No. 60, 2006
s. 44AAH....................................... ad. No. 108, 2004
am. No. 46, 2011
ss. 44AAI–44AAK......................... ad. No. 108, 2004
Part IIIAB
Part IIIAB ...................................... ad No 62, 2014
s 44AAL ........................................ ad No 62, 2014
Part IIIA
Part IIIA......................................... ad. No. 88, 1995
Division 1
s. 44AA.......................................... ad. No. 92, 2006
s. 44B............................................. ad. No. 88, 1995
am. No. 28, 1997; No. 55, 2001; No. 134, 2003; No. 92, 2006;
No. 45, 2007; No. 60, 2008; No. 17, 2009; No. 102, 2010
s. 44C............................................. ad. No. 88, 1995
s. 44D............................................. ad. No. 88, 1995
am. No. 102, 2010
s. 44DA.......................................... ad. No. 101, 1998
am. No. 102, 2010
s. 44E............................................. ad. No. 88, 1995
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
378 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Division 2
Subdivision A
s. 44F ............................................. ad. No. 88, 1995
am. No. 92, 2006; No. 102, 2010
s. 44FA .......................................... ad. No. 102, 2010
s. 44G............................................. ad. No. 88, 1995
am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007; No. 102,
2010
s. 44GA.......................................... ad. No. 92, 2006
rs. No. 102, 2010
s. 44GB.......................................... ad. No. 92, 2006
am. No. 102, 2010
s. 44GC.......................................... ad. No. 92, 2006
Subdivision B
s. 44H............................................. ad. No. 88, 1995
am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007; No. 102,
2010
s. 44HA.......................................... ad. No. 92, 2006
s. 44I .............................................. ad. No. 88, 1995
am. No. 102, 2010
s. 44J.............................................. ad. No. 88, 1995
am. No. 92, 2006; No. 102, 2010
s. 44JA........................................... ad. No. 92, 2006
rep. No. 102, 2010
s. 44K............................................. ad. No. 88, 1995
am. No. 92, 2006; No. 102, 2010
ss. 44KA, 44KB............................. ad. No. 102, 2010
s. 44L............................................. ad. No. 88, 1995
am. No. 92, 2006; No. 102, 2010
Heading to Subdiv. C of.................
Div. 2 of Part IIIA
rep. No. 92, 2006
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 379
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Division 2AA
Div. 2AA of Part IIIA .................... ad. No. 102, 2010
Subdivision A
s. 44LA .......................................... ad. No. 102, 2010
Subdivision B
ss. 44LB–44LF .............................. ad. No. 102, 2010
Subdivision C
ss. 44LG, 44LH.............................. ad. No. 102, 2010
Subdivision D
s. 44LI............................................ ad. No. 102, 2010
Subdivision E
ss. 44LJ, 44LK............................... ad. No. 102, 2010
Subdivision F
s. 44LL........................................... ad. No. 102, 2010
Division 2A
Heading to Div. 2A of....................
Part IIIA
ad. No. 92, 2006
Subdivision A
Heading to Subdiv. A of ................
Div. 2A of Part IIIA
ad. No. 92, 2006
s. 44M............................................ ad. No. 88, 1995
am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007; No. 102,
2010
s. 44MA ......................................... ad. No. 102, 2010
Subdivision B
Heading to Subdiv. B of.................
Div. 2A of Part IIIA
ad. No. 92, 2006
s. 44N............................................. ad. No. 88, 1995
am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007; No. 102,
2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
380 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Subdivision C
Subdiv. C of Div. 2A of .................
Part IIIA
ad. No. 92, 2006
s. 44NA.......................................... ad. No. 92, 2006
am. No. 102, 2010
s. 44NAA....................................... ad. No. 102, 2010
s. 44NB.......................................... ad. No. 92, 2006
am. No. 102, 2010
Subdivision D
Subdiv. D of Div. 2A of.................
Part IIIA
ad. No. 92, 2006
s. 44NC.......................................... ad. No. 92, 2006
rs. No. 102, 2010
s. 44ND.......................................... ad. No. 92, 2006
rep. No. 102, 2010
s. 44NE .......................................... ad. No. 92, 2006
am. No. 102, 2010
ss. 44NF, 44NG ............................. ad. No. 92, 2006
Subdivision E
Heading to Subdiv. E of.................
Div. 2A of Part IIIA
ad. No. 92, 2006
s. 44O............................................. ad. No. 88, 1995
am. No. 92, 2006; No. 102, 2010
Subdivision F
Heading to Subdiv. F of .................
Div. 2A of Part IIIA
ad. No. 92, 2006
s. 44P ............................................. ad. No. 88, 1995
am. No. 101, 1998
Division 2B
Div. 2B of Part IIIA ....................... ad. No. 92, 2006
s. 44PA .......................................... ad. No. 92, 2006
am No 102, 2010; No 126, 2015
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 381
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 44PAA........................................ ad. No. 102, 2010
s 44PB............................................ ad No 92, 2006
am No 126, 2015
s 44PC............................................ ad No 92, 2006
s. 44PD .......................................... ad. No. 92, 2006
rs. No. 102, 2010
s. 44PE........................................... ad. No. 92, 2006
am. No. 102, 2010
s. 44PF ........................................... ad. No. 92, 2006
s. 44PG .......................................... ad. No. 92, 2006
am. No. 102, 2010
s. 44PH .......................................... ad. No. 92, 2006
am. No. 102, 2010
Division 2C
Heading to Div. 2C of....................
Part IIIA
ad. No. 92, 2006
s. 44Q............................................. ad. No. 88, 1995
am. No. 101, 1998; No. 92, 2006; No. 102, 2010
Division 3
Subdivision A
s. 44R............................................. ad. No. 88, 1995
Subdivision B
ss. 44S, 44T ................................... ad. No. 88, 1995
am. No. 92, 2006
Subdivision C
s. 44U............................................. ad. No. 88, 1995
s. 44V............................................. ad. No. 88, 1995
am. No. 92, 2006; No. 102, 2010; No 126, 2015
s. 44W............................................ ad. No. 88, 1995
am. No. 92, 2006; No. 102, 2010
s. 44X............................................. ad. No. 88, 1995
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
382 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 92, 2006
s. 44XA.......................................... ad. No. 92, 2006
rs. No. 102, 2010
s. 44Y............................................. ad. No. 88, 1995
am. No. 92, 2006
s. 44YA.......................................... ad. No. 102, 2010
Subdivision D
s. 44Z............................................. ad. No. 88, 1995
ss. 44ZA–44ZN.............................. ad. No. 88, 1995
s. 44ZNA ....................................... ad. No. 92, 2006
am No 126, 2015
Subdivision DA
Subdiv. DA of Div. 3 of.................
Part IIIA
ad. No. 92, 2006
s. 44ZNB........................................ ad. No. 92, 2006
am No 126, 2015
Subdivision E
s. 44ZO .......................................... ad. No. 88, 1995
am. No. 92, 2006
s. 44ZOA ....................................... ad. No. 92, 2006
Subdivision F
Heading to Subdiv. F of .................
Div. 3 of Part IIIA
rs. No. 92, 2006
s. 44ZP........................................... ad. No. 88, 1995
am. No. 92, 2006; No. 102, 2010
s. 44ZQ .......................................... ad. No. 88, 1995
am. No. 92, 2006
ss. 44ZR–44ZT .............................. ad. No. 88, 1995
Subdivision G
Heading to Subdiv. G of ................
Div. 3 of Part IIIA
rs. No. 92, 2006
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 383
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 44ZU .......................................... ad. No. 88, 1995
am. No. 92, 2006
s. 44ZUA ....................................... ad. No. 92, 2006
Division 4
s. 44ZV .......................................... ad. No. 88, 1995
s. 44ZW ......................................... ad. No. 88, 1995
am. No. 92, 2006
s. 44ZX .......................................... ad. No. 88, 1995
am. No. 92, 2006; No. 102, 2010
s. 44ZY .......................................... ad. No. 88, 1995
Division 5
s. 44ZZ........................................... ad. No. 88, 1995
Division 6
Heading to Div. 6 of ......................
Part IIIA
rs. No. 92, 2006
Subdivision A
Heading to Subdiv. A of ................
Div. 6 of Part IIIA
ad. No. 92, 2006
s. 44ZZA........................................ ad. No. 88, 1995
am. No. 28, 1997; No. 69, 2000; No. 92, 2006; No. 102, 2010
ss. 44ZZAAA, 44ZZAAB.............. ad. No. 102, 2010
s. 44ZZAA..................................... ad. No. 28, 1997
am. No. 108, 2004; No. 92, 2006; No. 102, 2010
s. 44ZZAB ..................................... ad. No. 108, 2004
am. No. 102, 2010
s. 44ZZB ........................................ ad. No. 88, 1995
rep. No. 92, 2006
Subdivision B
Subdiv. B of Div. 6 of....................
Part IIIA
ad. No. 92, 2006
s. 44ZZBA ..................................... ad. No. 92, 2006
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
384 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 102, 2010
Subdivision C
Subdiv. C of Div. 6 of....................
Part IIIA
ad. No. 92, 2006
s. 44ZZBB ..................................... ad. No. 92, 2006
am. No. 102, 2010
Subdivision D
Subdiv. D of Div. 6 of....................
Part IIIA
ad. No. 92, 2006
s. 44ZZBC ..................................... ad. No. 92, 2006
rs. No. 102, 2010
s. 44ZZBCA................................... ad. No. 102, 2010
s. 44ZZBD ..................................... ad. No. 92, 2006
am. No. 102, 2010
s. 44ZZBE...................................... ad. No. 92, 2006
Subdivision E
Subdiv. E of Div. 6 of ....................
Part IIIA
ad. No. 92, 2006
s. 44ZZBF...................................... ad. No. 92, 2006
am. No. 102, 2010
Subdivision F
Heading to Subdiv. F of .................
Div. 6 of Part IIIA
ad. No. 92, 2006
s. 44ZZC ........................................ ad. No. 88, 1995
rs. No. 28, 1997
am. No. 92, 2006; No. 102, 2010
Division 6A
Div. 6A of Part IIIA....................... ad. No. 92, 2006
s. 44ZZCA ..................................... ad. No. 92, 2006
Division 6B
Heading to Div. 6B of....................
Part IIIA
rs. No. 102, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 385
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Div. 6B of Part IIIA ....................... ad. No. 92, 2006
s. 44ZZCB ..................................... ad. No. 92, 2006
am No 126, 2015
s. 44ZZCBA................................... ad. No. 102, 2010
ss. 44ZZCC, 44ZZCD.................... ad. No. 92, 2006
Division 7
ss. 44ZZD–44ZZI .......................... ad. No. 88, 1995
s. 44ZZJ ......................................... ad. No. 88, 1995
am. No. 69, 2000; No. 92, 2006
s. 44ZZK........................................ ad. No. 88, 1995
Division 8
s. 44ZZL ........................................ ad. No. 88, 1995
s. 44ZZM ....................................... ad. No. 88, 1995
rs. No. 101, 1998; No. 134, 2003
s. 44ZZMA .................................... ad. No. 134, 2003
am. No. 119, 2011
s. 44ZZMB..................................... ad. No. 134, 2003
s. 44ZZN........................................ ad. No. 88, 1995
s. 44ZZNA..................................... ad. No. 28, 1997
s. 44ZZO........................................ ad. No. 88, 1995
s. 44ZZOAAA ............................... ad. No. 102, 2010
s. 44ZZOAA .................................. ad. No. 102, 2010
s. 44ZZOA..................................... ad. No. 101, 1998
rep. No. 134, 2003
ad. No. 92, 2006
rs. No. 102, 2010
s. 44ZZP ........................................ ad. No. 88, 1995
am. No. 45, 2007
s. 44ZZQ........................................ ad. No. 88, 1995
s. 44ZZR ........................................ ad. No. 45, 2007
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
386 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Part IV
Division 1
Div. 1 of Part IV ............................ ad. No. 59, 2009
Subdivision A
ss. 44ZZRA–44ZZRE.................... ad. No. 59, 2009
Subdivision B
ss. 44ZZRF–44ZZRI...................... ad. No. 59, 2009
Subdivision C
ss. 44ZZRJ, 44ZZRK..................... ad. No. 59, 2009
Subdivision D
ss. 44ZZRL–44ZZRV.................... ad. No. 59, 2009
Division 1A
Div. 1A of Part IV.......................... ad. No. 185, 2011
s. 44ZZS ........................................ ad. No. 185, 2011
s. 44ZZT ........................................ ad. No. 185, 2011
s. 44ZZU........................................ ad. No. 185, 2011
s. 44ZZV........................................ ad. No. 185, 2011
s. 44ZZW....................................... ad. No. 185, 2011
s. 44ZZX........................................ ad. No. 185, 2011
s. 44ZZY........................................ ad. No. 185, 2011
s. 44ZZZ ........................................ ad. No. 185, 2011
s. 44ZZZA ..................................... ad. No. 185, 2011
s. 44ZZZB...................................... ad. No. 185, 2011
Division 2
Heading to Div. 2 of Part IV .......... ad. No. 59, 2009
s. 45 ............................................... rs. No. 81, 1977
am. No. 17, 1986; No. 222, 1992; No. 88, 1995; No. 131, 2006;
No. 59, 2009
s. 45A............................................. ad. No. 81, 1977
am. No. 206, 1978; No. 88, 1995; No. 131, 2006
rep. No. 59, 2009
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 387
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 45B............................................. ad. No. 81, 1977
am. No. 88, 1995; No. 169, 2012
s. 45C............................................. ad. No. 81, 1977
am. No. 17, 1986; No. 88, 1995
s. 45D............................................. ad. No. 81, 1977
am. No. 207, 1978; No. 73, 1980; No. 176, 1981
rs. No. 98, 1993; No. 60, 1996
ss. 45DA–45DC............................. ad. No. 60, 1996
s. 45DD.......................................... ad. No. 60, 1996
am. SLI 2006 No. 50; No. 54, 2009
s. 45E............................................. ad. No. 73, 1980
rep. No. 98, 1993
ad. No. 60, 1996
ss. 45EA, 45EB.............................. ad. No. 60, 1996
s. 46 ............................................... rs. No. 81, 1977
am. No. 17, 1986; No. 222, 1992; No. 131, 2006; No. 159, 2007;
No. 116, 2008
s. 46A............................................. ad. No. 70, 1990
am. No. 222, 1992; No. 131, 2006
s. 46B............................................. ad. No. 70, 1990
s. 47 ............................................... am. No. 88, 1976
rs. No. 81, 1977
am. No. 206, 1978; No. 88, 1995; No. 131, 2006; No. 169, 2012
s. 49 ............................................... am. No. 81, 1977
rep. No. 88, 1995
ad. No. 131, 2006
s. 50 ............................................... rs. No. 81, 1977
am. Nos. 8, 17 and 168, 1986; No. 49, 1991; No. 222, 1992; No. 63,
2001; No. 131, 2006; No. 184, 2011
s. 50A............................................. ad. No. 17, 1986
am. Nos. 22 and 222, 1992
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
388 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 51 ............................................... am. No. 63, 1975; No. 88, 1976; No. 81, 1977; No. 73, 1980; No. 17,
1986; No. 28, 1989; No. 70, 1990; No. 98, 1993; No. 88, 1995;
No. 60, 1996; No. 63, 2002; No. 46, 2011
s. 51AAA....................................... ad. No. 88, 1995
Part IVA......................................... ad. No. 222, 1992
rep. No. 103, 2010
s. 51AAB ....................................... ad. No. 48, 1998
rep. No. 103, 2010
s. 51AA.......................................... ad. No. 222, 1992
am. No. 36, 1998
rep. No. 103, 2010
s. 51AB (formerly s. 52A) ............. No. 222, 1992
am. No. 116, 2008
rep. No. 103, 2010
s. 51AC.......................................... ad. No. 36, 1998
am. No. 63, 2001; No. 159, 2007; No. 116, 2008
rep. No. 103, 2010
s. 51ACAA .................................... ad. No. 63, 2001
rep. No. 103, 2010
Part IVB
Part IVB......................................... ad. No. 36, 1998
Division 1
Heading to Div. 1 of ......................
Part IVB
ad. No. 103, 2010
s. 51ACA ....................................... ad. No. 36, 1998
am. No. 103, 2010; No 107, 2014
Division 2
Heading to Div. 2 of ......................
Part IVB
ad. No. 103, 2010
s. 51AD.......................................... ad. No. 36, 1998
renum No 107, 2014
s 51ACB (prev s 51AD)
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 389
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Division 2A
Division 2A.................................... ad No 107, 2014
s 51ACC ........................................ ad No 107, 2014
s 51ACD ........................................ ad No 107, 2014
s 51ACE......................................... ad No 107, 2014
s 51ACF......................................... ad No 107, 2014
s 51ACG ........................................ ad No 107, 2014
s 51ACH ........................................ ad No 107, 2014
s 51ACI.......................................... ad No 107, 2014
s 51ACJ ......................................... ad No 107, 2014
Division 3
Div. 3 of Part IVB.......................... ad. No. 103, 2010
s. 51ADA....................................... ad. No. 103, 2010
Division 4
Div. 4 of Part IVB.......................... ad. No. 103, 2010
ss. 51ADB, 51ADC ....................... ad. No. 103, 2010
Division 5
Div. 5 of Part IVB.......................... ad. No. 103, 2010
ss. 51ADD–51ADG....................... ad. No. 103, 2010
Division 6
Heading to Div. 6 of ......................
Part IVB
ad. No. 103, 2010
s. 51AE .......................................... ad. No. 36, 1998
am No 107, 2014
s. 51AEA ....................................... ad. No. 63, 2001
s. 51AF .......................................... ad. No. 48, 1998
am. Nos. 55 and 123, 2001
rep. No. 103, 2010
s. 51A............................................. ad. No. 17, 1986
rep. No. 103, 2010
s. 52 ............................................... am. No. 81, 1977; No. 106, 1998
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
390 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
rep. No. 103, 2010
s. 52A............................................. ad. No. 17, 1986
am. No. 222, 1992
Renumbered s. 51AB..................... No. 222, 1992
s. 53 ............................................... am. No. 81, 1977; No. 17, 1986; No. 20, 1988; No. 106, 1998
rep. No. 103, 2010
s. 53A............................................. ad. No. 81, 1977
am. No. 206, 1978; No. 17, 1986
rep. No. 103, 2010
s. 53B............................................. ad. No. 206, 1978
rs. No. 17, 1986
rep. No. 103, 2010
s. 53C............................................. ad. No. 17, 1986
rs. No. 126, 2008
rep. No. 103, 2010
s. 54 ............................................... am. No. 81, 1977
rep. No. 103, 2010
Part IVC
Part IVC......................................... ad No 9, 2016
Division 1
s. 55 ............................................... rep. No. 103, 2010
ad No 9, 2016
s. 55A............................................. ad. No. 81, 1977
rep. No. 103, 2010
ad No 9, 2016
Division 2
s 55B.............................................. ad No 9, 2016
Division 3
s 55C.............................................. ad No 9, 2016
s 55D.............................................. ad No 9, 2016
s 55E.............................................. ad No 9, 2016
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 391
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Division 4
s 55F .............................................. ad No 9, 2016
s 55G.............................................. ad No 9, 2016
s 55H.............................................. ad No 9, 2016
s 55J............................................... ad No 9, 2016
s 55K.............................................. ad No 9, 2016
s 55L.............................................. ad No 9, 2016
s 55M............................................. ad No 9, 2016
s 55N.............................................. ad No 9, 2016
s. 56 ............................................... am. No. 81, 1977; No. 17, 1986; No. 31, 2001
rep. No. 103, 2010
s. 57 ............................................... rep. No. 103, 2010
s. 58 ............................................... rs. No. 17, 1986
rep. No. 103, 2010
s. 59 ............................................... am. No. 81, 1977; No. 17, 1986
rep. No. 103, 2010
Part V
Part V............................................. rep. No. 103, 2010
ad No 83, 2014
Division 1
s. 60 ............................................... rs. No. 17, 1986
rep. No. 103, 2010
ad No 83, 2014
s 60AA........................................... ad No 83, 2014
s 60A.............................................. ad No 83, 2014
s 60B.............................................. ad No 83, 2014
Division 2
s 60C.............................................. ad No 83, 2014
s 60CA........................................... ad No 83, 2014
s 60D.............................................. ad No 83, 2014
s 60E.............................................. ad No 83, 2014
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
392 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s 60F .............................................. ad No 83, 2014
Division 2A
s 60FA ........................................... ad No 83, 2014
s 60FB............................................ ad No 83, 2014
s 60FC............................................ ad No 83, 2014
Division 2B
s 60FD ........................................... ad No 83, 2014
Division 2C
s 60FE............................................ ad No 83, 2014
Division 3
s 60G.............................................. ad No 83, 2014
s 60H.............................................. ad No 83, 2014
s 60J............................................... ad No 83, 2014
Division 4
s 60K.............................................. ad No 83, 2014
Division 5
s 60L.............................................. ad No 83, 2014
s 60M............................................. ad No 83, 2014
s 60N.............................................. ad No 83, 2014
s 60P .............................................. ad No 83, 2014
s 60Q.............................................. ad No 83, 2014
s 60R.............................................. ad No 83, 2014
s. 61 ............................................... am. No. 17, 1986; No. 88, 1995
rep. No. 128, 2002
s. 62 ............................................... am. No. 63, 1975; No. 81, 1977; No. 206, 1978
rep. No. 17, 1986
s. 63 ............................................... am. No. 63, 1975; No. 81, 1977
rep. No. 17, 1986
s. 63AA.......................................... ad. No. 151, 1977
rep. No. 17, 1986
s. 63A............................................. ad. No. 63, 1975
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 393
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 81, 1977; Nos. 17 and 168, 1986; No. 123, 2001
rep. No. 103, 2010
s. 64 ............................................... am. No. 56, 1975; No. 81, 1977; No. 17, 1986; No. 88, 1995
rep. No. 103, 2010
s. 65 ............................................... am. No. 17, 1986; No. 88, 1995
rep. No. 103, 2010
s. 65A............................................. ad. No. 165, 1984
am. No. 180, 1991; No. 105, 1992
rep. No. 103, 2010
Div. 1AAA of Part V ..................... ad. No. 128, 2002
rep. No. 103, 2010
ss. 65AAA–65AAE ....................... ad. No. 128, 2002
rep. No. 103, 2010
Div. 1AA of Part V........................ ad. No. 106, 1998
rep. No. 103, 2010
ss. 65AA–65AD............................. ad. No. 106, 1998
am. No. 31, 2001; No. 21, 2003
rep. No. 103, 2010
ss. 65AE–65AH ............................. ad. No. 106, 1998
rep. No. 103, 2010
ss. 65AJ–65AM ............................. ad. No. 106, 1998
rep. No. 103, 2010
s. 65AN.......................................... ad. No. 106, 1998
am. No. 31, 2001; No. 21, 2003
rep. No. 103, 2010
Div. 1A of Part V........................... ad. No. 17, 1986
rep. No. 103, 2010
ss. 65B–65D................................... ad. No. 17, 1986
rep. No. 103, 2010
s. 65E............................................. ad. No. 17, 1986
am. No. 63, 2002; No. 126, 2008
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
394 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
rep. No. 103, 2010
s. 65F ............................................. ad. No. 17, 1986
am. No. 141, 1994; Nos. 31 and 63, 2001; No. 63, 2002
rep. No. 103, 2010
ss. 65G, 65H .................................. ad. No. 17, 1986
rep. No. 103, 2010
s. 65J.............................................. ad. No. 17, 1986
am. No. 88, 1995
rep. No. 103, 2010
ss. 65K–65N .................................. ad. No. 17, 1986
rep. No. 103, 2010
s. 65P ............................................. ad. No. 17, 1986
rep. No. 103, 2010
s. 65Q............................................. ad. No. 17, 1986
am. No. 168, 1986; No. 141, 1994; No. 31, 2001
rep. No. 103, 2010
s. 65R............................................. ad. No. 17, 1986
am. No. 141, 1994; Nos. 31 and 63, 2001; No. 63, 2002
rep. No. 103, 2010
s. 65S ............................................. ad. No. 17, 1986
rep. No. 103, 2010
s. 65T............................................. ad. No. 17, 1986
am. No. 146, 1999
rep. No. 103, 2010
s. 65U............................................. ad. No. 17, 1986
rep. No. 20, 1988
s. 66 ............................................... rep. No. 103, 2010
s. 66A............................................. ad. No. 141, 1987
rep. No. 103, 2010
s. 67 ............................................... rep. No. 103, 2010
s. 68 ............................................... am. No. 206, 1978; No. 17, 1986
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 395
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
rep. No. 103, 2010
s. 68A............................................. ad. No. 151, 1977
rep. No. 103, 2010
s. 68B............................................. ad. No. 146, 2002
rep. No. 103, 2010
s. 69 ............................................... am. No. 88, 1995
rep. No. 103, 2010
s. 70 ............................................... am. No. 81, 1977
rep. No. 103, 2010
s. 71 ............................................... am. No. 81, 1977; No. 88, 1995
rep. No. 103, 2010
s. 72 ............................................... am. No. 81, 1977
rep. No. 103, 2010
s. 73 ............................................... rs. No. 17, 1986
am. No. 48, 1998; No. 55, 2001
rep. No. 103, 2010
ss. 73A, 73B................................... ad. No. 17, 1986
rep. No. 103, 2010
s. 74 ............................................... am. No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 118, 2004
rep. No. 103, 2010
Div. 2A of Part V........................... ad. No. 206, 1978
rep. No. 103, 2010
ss. 74A–74C................................... ad. No. 206, 1978
am. No. 17, 1986
rep. No. 103, 2010
s. 74D............................................. ad. No. 206, 1978
am. Nos. 17 and 168, 1986
rep. No. 103, 2010
s. 74E............................................. ad. No. 206, 1978
am. No. 17, 1986
rep. No. 103, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
396 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 74F ............................................. ad. No. 206, 1978
am. No. 17, 1986; No. 88, 1995
rep. No. 103, 2010
s. 74G............................................. ad. No. 206, 1978
am. No. 17, 1986
rep. No. 103, 2010
s. 74H............................................. ad. No. 206, 1978
rep. No. 103, 2010
s. 74J.............................................. ad. No. 206, 1978
am. No. 17, 1986; No. 11, 1990; No. 113, 2004
rep. No. 103, 2010
ss. 74K, 74L................................... ad. No. 206, 1978
rep. No. 103, 2010
s. 74M............................................ ad. No. 113, 2004
rep. No. 103, 2010
s. 75 ............................................... am. No. 88, 1995
rep. No. 103, 2010
s. 75A............................................. ad. No. 81, 1977
am. No. 88, 1995
rep. No. 103, 2010
Part VA.......................................... ad. No. 106, 1992
rep. No. 103, 2010
ss. 75AA–75AN............................. ad. No. 106, 1992
rep. No. 103, 2010
s. 75AO.......................................... ad. No. 106, 1992
am. No. 113, 2004
rep. No. 103, 2010
s. 75AP .......................................... ad. No. 106, 1992
rep. No. 103, 2010
ss. 75AQ, 75AR............................. ad. No. 106, 1992
am. No. 88, 1995
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 397
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
rep. No. 103, 2010
s. 75AS .......................................... ad. No. 106, 1992
am. No. 106, 1998; No. 194, 1999
rep. No. 103, 2010
Part VB.......................................... ad. No. 61, 1999
rep. No. 111, 2009
s. 75AT .......................................... ad. No. 61, 1999
am. No. 176, 1999; No. 101, 2006
rep. No. 111, 2009
s. 75AU.......................................... ad. No. 61, 1999
am. No. 176, 1999
rep. No. 111, 2009
ss. 75AV–75AX............................. ad. No. 61, 1999
rep. No. 111, 2009
s. 75AY.......................................... ad. No. 61, 1999
am. No. 146, 2001
rep. No. 111, 2009
s. 75AYA....................................... ad. No. 69, 2000
rep. No. 111, 2009
s. 75AZ .......................................... ad. No. 61, 1999
rep. No. 111, 2009
Part VC.......................................... ad. No. 31, 2001
rep. No. 103, 2010
s. 75AZA ....................................... ad. No. 31, 2001
am. Nos. 55 and 123, 2001
rep. No. 103, 2010
s. 75AZAA..................................... ad. No. 126, 2008
rep. No. 103, 2010
s. 75AZB........................................ ad. No. 31, 2001
rep. No. 103, 2010
ss. 75AZC, 75AZD ........................ ad. No. 31, 2001
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
398 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 117, 2001
rep. No. 103, 2010
s. 75AZE........................................ ad. No. 31, 2001
am. No. 117, 2001
rep. No. 103, 2010
s. 75AZF........................................ ad. No. 31, 2001
am. No. 117, 2001; No. 126, 2008
rep. No. 103, 2010
s. 75AZG ....................................... ad. No. 31, 2001
am. No. 117, 2001
rep. No. 103, 2010
ss. 75AZH–75AZL ........................ ad. No. 31, 2001
am. No. 117, 2001
rep. No. 103, 2010
ss. 75AZM, 75AZN ....................... ad. No. 31, 2001
am. No. 117, 2001
rep. No. 103, 2010
s. 75AZO ....................................... ad. No. 31, 2001
am. No. 117, 2001
rs. No. 128, 2002
rep. No. 103, 2010
ss. 75AZP, 75AZQ......................... ad. No. 31, 2001
am. No. 117, 2001
rep. No. 103, 2010
s. 75AZR........................................ ad. No. 31, 2001
rep. No. 103, 2010
s. 75AZS ........................................ ad. No. 31, 2001
am. No. 117, 2001; No. 126, 2008
rep. No. 103, 2010
s. 75AZT........................................ ad. No. 31, 2001
am. No. 117, 2001; No. 126, 2008
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 399
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
rep. No. 103, 2010
s. 75AZU ....................................... ad. No. 31, 2001
am. No. 117, 2001
rep. No. 103, 2010
Part VI
s. 75B............................................. ad. No. 81, 1977
am. No. 23, 1987; No. 222, 1992; No. 36, 1998; No. 61, 1999;
No. 69, 2000; No. 31, 2001; No. 131, 2006; No. 111, 2009; No. 103,
2010 (as am. by No. 184, 2011); No 83, 2014; No 9, 2016
s. 76 ............................................... am. No. 88, 1976; No. 81, 1977; No. 207, 1978; No. 73, 1980;
No. 222, 1992; No. 98, 1993; No. 60, 1996; No. 58, 1997; No. 61,
1999; No. 69, 2000; No. 131, 2006; No. 59, 2009; No. 111, 2009;
Nos. 44 and 103, 2010; No 83, 2014; No 107, 2014; No 9, 2016
s. 76A............................................. ad. No. 69, 2000
am. No. 131, 2006; No. 111, 2009
s. 76B............................................. ad. No. 69, 2000
am. No. 131, 2006; Nos. 59 and 111, 2009
s. 76C............................................. ad. No. 131, 2006
s. 76D............................................. ad. No. 131, 2006
rep. No. 59, 2009
ss. 76E, 76F ................................... ad. No. 44, 2010
rep. No. 103, 2010
s. 77 ............................................... am. No. 88, 1976; No. 88, 1995; Nos. 44 and 103, 2010
s. 77A............................................. ad. No. 131, 2006
am. Nos. 44 and 103, 2010; No 83, 2014
ss. 77B, 77C................................... ad. No. 131, 2006
s. 78 ............................................... am. No. 61, 1999; No. 69, 2000; No. 31, 2001; Nos. 59 and 111,
2009; No. 103, 2010 (as am. by No. 184, 2011)
s. 79 ............................................... am. No. 81, 1977; No. 17, 1986; No. 222, 1992; Nos. 31 and 63,
2001; No. 59, 2009; Nos. 4 and 103, 2010
s. 79A............................................. ad. No. 17, 1986
am. No. 31, 2001; No. 131, 2006; No. 59, 2009; No. 103, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
400 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 79B............................................. ad. No. 63, 2001
am. No. 63, 2001 (as am. by No. 63, 2002); No. 59, 2009; Nos. 44
and 103, 2010
s. 80 ............................................... am. No. 88, 1976; No. 81, 1977; No. 39, 1983; No. 17, 1986;
No. 222, 1992; No. 88, 1995; No. 60, 1996; No. 36, 1998; No. 61,
1999; No. 69, 2000; No. 31, 2001; Nos. 59 and 111, 2009; Nos. 44
and 103, 2010; No 83, 2014; No 9, 2016
s. 80A............................................. ad. No. 81, 1977
am. No. 39, 1983; No. 17, 1986; No. 222, 1992; No. 88, 1995;
No. 36, 1998
rep. No. 63, 2001
ad No 83, 2014
s. 80AA.......................................... ad. No. 73, 1980
am. No. 39, 1983; No. 87, 1988 (as am. by No. 108, 1990)
rep. No. 98, 1993
ad. No. 60, 1996
rep. SLI 2006 No. 50
s. 80AB.......................................... ad. No. 60, 1996
am. SLI 2006 No. 50
s. 80AC.......................................... ad. No. 131, 2006
s. 80B............................................. ad. No. 61, 1999
rep. No. 111, 2009
s. 81 ............................................... am. No. 88, 1976
rs. No. 81, 1977
am. No. 17, 1986; No. 222, 1992; No. 88, 1995; No. 131, 2006
s. 81A............................................. ad. No. 131, 2006
s. 82 ............................................... rs. No. 81, 1977
am. No. 17, 1986; No. 222, 1992; No. 36, 1998; No. 63, 2001; No
103, 2004: No 113, 2004; No 118, 2004; No. 11, 2006; No. 103,
2010 (as am. by No. 184, 2011); No 83, 2014; No 9, 2016
s. 83 ............................................... rs. No. 81, 1977
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 401
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 222, 1992; No. 36, 1998; Nos. 31 and 63, 2001; No. 59,
2009; No. 44, 2010; No. 103, 2010 (as am. by No. 184, 2011); No
83, 2014; No 9, 2016
ed C105
s. 84 ............................................... rs. No. 17, 1986
am. No. 70, 1990; No. 222, 1992; No. 36, 1998; No. 61, 1999; Nos.
31 and 146, 2001; Nos. 59 and 111, 2009; Nos. 44 and 103, 2010;
No. 185, 2011; No 83, 2014; No 9, 2016
s. 85 ............................................... am. No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 31, 2001;
No. 128, 2002; No. 44, 2010
rs. No. 103, 2010
am No 83, 2014
s. 86 ............................................... rs. No. 23, 1987
am. No. 222, 1992; Nos. 36 and 106, 1998; No. 194, 1999; No. 57,
2000; No. 23, 2006; No. 116, 2008; No. 59, 2009; No. 44, 2010;
No. 103, 2010 (as am. by No. 184, 2011); No. 13, 2013; No 9, 2016
s. 86AA.......................................... ad. No. 194, 1999
am. No. 161, 2000; No. 23, 2006; No. 103, 2010; No. 13, 2013
s. 86A............................................. ad. No. 23, 1987
am. No. 222, 1992; Nos. 36 and 106, 1998; Nos. 44 and 103, 2010;
No 9, 2016
s. 86B............................................. ad. No. 8, 1988
am. No. 222, 1992; No. 106, 1998; No. 44, 2010
rep. No. 103, 2010
s. 86C............................................. ad. No. 63, 2001
am. No. 63, 2001; No. 131, 2006; Nos. 59 and 111, 2009; No. 103,
2010; No 83, 2014; No 9, 2016
s. 86D............................................. ad. No. 63, 2001
am. No. 63, 2001; No. 59, 2009; Nos. 44 and 103, 2010
s. 86DA.......................................... ad. No. 44, 2010
rep. No. 103, 2010
s. 86E............................................. ad. No. 131, 2006
am. No. 59, 2009; Nos. 44 and 103, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
402 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 86F ............................................. ad. No. 59, 2009
s. 87 ............................................... am. No. 81, 1977; No. 39, 1983; Nos. 17 and 168, 1986; No. 222,
1992; No. 49, 1994; No. 88, 1995; No. 36, 1998; Nos. 31 and 63,
2001; No 113, 2004; No. 118, 2004; No. 11, 2006; No. 59, 2009;
No. 44, 2010; No. 103, 2010 (as am. by No. 184, 2011; No. 136,
2012); No 83, 2014; No 9, 2016
s. 87AAA....................................... ad. No. 44, 2010
am. No. 44, 2010
rep. No. 103, 2010
s. 87AAB ....................................... ad. No. 44, 2010
rep. No. 103, 2010
s. 87A............................................. ad. No. 17, 1986
am. No. 222, 1992; Nos. 31 and 146, 2001; No. 44, 2010
rep. No. 103, 2010
s. 87AA.......................................... ad. No. 60, 1996
am. SLI 2006 No. 50; No. 54, 2009
s. 87AB.......................................... ad. No. 118, 2004
rep. No. 103, 2010
s. 87AC.......................................... ad. No. 44, 2010
rep. No. 103, 2010
s. 87B............................................. ad. No. 222, 1992
am. No. 131, 2006
s. 87C............................................. ad. No. 141, 1994
am. No. 5, 2011
s. 87CA.......................................... ad. No. 63, 2001
s. 87CAA ....................................... ad. No. 113, 2004
rep. No. 103, 2010
Part VIA
Part VIA......................................... ad. No. 103, 2004
s. 87CB .......................................... ad. No. 103, 2004
am. No. 103, 2010
ss. 87CC–87CI............................... ad. No. 103, 2004
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 403
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Part VIB
Part VIB......................................... ad. No. 113, 2004
Division 1
s. 87D............................................. ad. No. 113, 2004
am. No. 59, 2009; No. 103, 2010
s. 87E............................................. ad. No. 113, 2004
am. No. 103, 2010
Division 2
ss. 87F–87H................................... ad. No. 113, 2004
ss. 87J, 87K.................................... ad. No. 113, 2004
Division 3
s 87L.............................................. ad No 113, 2004
s 87M............................................. ad No 113, 2004
s 87N.............................................. ad No 113, 2004
am No 4, 2016
ss. 87P–87T ................................... ad. No. 113, 2004
Division 4
ss. 87U, 87V .................................. ad. No. 113, 2004
Division 5
ss. 87W, 87X ................................. ad. No. 113, 2004
Division 6
s. 87Y............................................. ad. No. 113, 2004
am. No. 103, 2013; No 126, 2015
s. 87Z............................................. ad. No. 113, 2004
ss. 87ZA, 87ZB.............................. ad. No. 113, 2004
Division 7
s. 87ZC .......................................... ad. No. 113, 2004
Part VIC......................................... ad. No. 44, 2010
rep. No. 103, 2010
ss. 87ZD–87ZK.............................. ad. No. 44, 2010
rep. No. 103, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
404 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Part VID......................................... ad. No. 44, 2010
rep. No. 103, 2010
ss. 87ZL–87ZO.............................. ad. No. 44, 2010
rep. No. 103, 2010
Part VII
Heading to Part VII........................ am. No. 81, 1977; No. 206, 1978
rs. No. 131, 2006
Division 1
Heading to Div. 1 of ......................
Part VII
rs. No. 131, 2006
s. 87D.............................................
Renumbered s. 87ZD .....................
ad. No. 101, 1998
No. 113, 2004
s. 87ZD ..........................................
Renumbered s. 87ZP......................
am. No. 131, 2006
No. 44, 2010
s. 88 ............................................... rs. No. 81, 1977
am. Nos. 206 and 207, 1978; No. 73, 1980; No. 17, 1986; No. 222,
1992; No. 98, 1993; No. 88, 1995; No. 60, 1996; No. 101, 1998;
No. 131, 2006; No. 59, 2009; No. 185, 2011
s. 89 ............................................... am. No. 88, 1976; No. 81, 1977; No. 17, 1986; No. 222, 1992;
No. 88, 1995; No. 101, 1998; No. 131, 2006; No. 103, 2010
s. 90 ............................................... am. No. 88, 1976; No. 81, 1977; No. 206, 1978; No. 73, 1980;
No. 17, 1986; No. 11, 1990; No. 222, 1992; No. 98, 1993; No. 88,
1995; No. 60, 1996; No. 108, 2004; No. 131, 2006; No. 59, 2009;
No. 185, 2011
s. 90A............................................. ad. No. 81, 1977
am. No. 17, 1986; No. 88, 1995; No 61, 2016
s. 90B............................................. ad. No. 108, 2004
am. No. 60, 2006
s. 91 ............................................... am. No. 81, 1977; No. 17, 1986; No. 101, 1998
s. 91A............................................. ad. No. 101, 1998
am. No. 108, 2004; No. 131, 2006; No. 59, 2009; No. 185, 2011
s. 91B............................................. ad. No. 101, 1998
am. No. 108, 2004; No. 131, 2006; No. 59, 2009; No. 185, 2011
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 405
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 91C............................................. ad. No. 101, 1998
am. No. 108, 2004; No. 131, 2006; No. 59, 2009; No. 185, 2011
Division 2
Heading to Div. 2 of ......................
Part VII
rs. No. 81, 1977
am. No. 206, 1978
s. 92 ............................................... rep. No. 81, 1977
Subdivision A
Heading to Subdiv. A of ................
Div. 2 of Part VII
ad. No. 131, 2006
rs. No. 185, 2011
s. 93 ............................................... rs. No. 81, 1977
am. No. 206, 1978; No. 17, 1986; No. 88, 1995; No. 131, 2006;
No. 185, 2011
Subdivision B
Subdiv. B of Div. 2 of....................
Part VII
ad. No. 131, 2006
s. 93AA.......................................... ad. No. 131, 2006
am. No. 59, 2009
s. 93AB.......................................... ad. No. 131, 2006
am. Nos. 54 and 59, 2009
s. 93AC.......................................... ad. No. 131, 2006
am. No. 59, 2009
ss. 93AD, 93AE ............................. ad. No. 131, 2006
s. 93AEA ....................................... ad. No. 59, 2009
s. 93AF .......................................... ad. No. 131, 2006
am. No. 59, 2009
Subdivision C
Heading to Subdiv. C of.................
Div. 2 of Part VII
ad. No. 131, 2006
s. 93A............................................. ad. No. 81, 1977
am. No. 88, 1995; No. 131, 2006; No. 59, 2009; No 61, 2016
s. 94 ............................................... rep. No. 81, 1977
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
406 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Subdivision D
Heading to Subdiv. D of ................
Div. 2 of Part VII
ad. No. 131, 2006
s. 95 ............................................... rs. No. 81, 1977
am. No. 17, 1986; No. 222, 1992; No. 88, 1995; No. 36, 1998;
No. 131, 2006; No. 103, 2010
Division 3
Div. 3 of Part VII ........................... ad. No. 131, 2006
Subdivision A
ss. 95AA, 95AB............................. ad. No. 131, 2006
Subdivision B
ss. 95AC–95AF.............................. ad. No. 131, 2006
s. 95AG.......................................... ad. No. 131, 2006
am. No. 8, 2010
ss. 95AH–95AQ............................. ad. No. 131, 2006
s. 95AR.......................................... ad. No. 131, 2006
am. No. 8, 2010
s. 95AS .......................................... ad. No. 131, 2006
am. No. 8, 2010
Subdivision C
ss. 95AT–95AX ............................. ad. No. 131, 2006
s 95AY........................................... ad. No. 131, 2006
am. No. 8, 2010
s 95AZ ........................................... ad. No. 131, 2006
s. 95AZA ....................................... ad. No. 131, 2006
ss. 95AZC–95AZE......................... ad. No. 131, 2006
s. 95AZEA..................................... ad. No. 131, 2006
s. 95AZF........................................ ad. No. 131, 2006
s. 95AZFA ..................................... ad. No. 131, 2006
ss. 95AZG–95AZK........................ ad. No. 131, 2006
s. 95AZL........................................ ad. No. 131, 2006
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 407
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 8, 2010
s. 95AZM....................................... ad. No. 131, 2006
am. No. 8, 2010
Subdivision D
s. 95AZN ....................................... ad. No. 131, 2006
Part VIIA
Part VIIA ....................................... ad. No. 134, 2003
Division 1
ss. 95A–95F................................... ad. No. 134, 2003
Division 2
s. 95G............................................. ad. No. 134, 2003
Division 3
Subdivision A
s 95H.............................................. ad No 134, 2003
s 95J............................................... ad No 134, 2003
s 95K.............................................. ad No 134, 2003
s 95L.............................................. ad No 134, 2003
s 95M............................................. ad No 134, 2003
s 95N.............................................. ad No 134, 2003
am No 4, 2016
Subdivision B
s 95P .............................................. ad No 134, 2003
s 95Q.............................................. ad No 134, 2003
am No 4, 2016
Subdivision C
s 95R.............................................. ad No 134, 2003
s 95S .............................................. ad No 134, 2003
s 95T.............................................. ad No 134, 2003
am No 4, 2016
s 95U.............................................. ad No 134, 2003
s 95V.............................................. ad No 134, 2003
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
408 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s 95W............................................. ad No 134, 2003
Division 4
s 95X.............................................. ad No 134, 2003
s 95Y.............................................. ad No 134, 2003
s 95Z.............................................. ad No 134, 2003
am No 4, 2016
ss. 95ZA–95ZD.............................. ad. No. 134, 2003
Division 5
ss. 95ZE–95ZG.............................. ad. No. 134, 2003
Division 6
s 95ZH ........................................... ad No 134, 2003
s 95ZI............................................. ad No 134, 2003
s 95ZJ ............................................ ad No 134, 2003
s 95ZK ........................................... ad No 134, 2003
am No 4, 2016
s 95ZL............................................ ad No 134, 2003
s 95ZM........................................... ad No 134, 2003
s 95ZN ........................................... ad No 134, 2003
s 95ZO ........................................... ad No 134, 2003
s 95ZP............................................ ad No 134, 2003
am No 4, 2016
s 95ZQ ........................................... ad No 134, 2003
am No 4, 2016
Part VIII
s. 96 ............................................... am. No. 88, 1995
s. 96A............................................. ad. No. 88, 1995
s. 97 ............................................... am. No. 88, 1995
s. 100 ............................................. am. No. 88, 1976; No. 88, 1995
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 409
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Part IX
Division 1
Heading to Div. 1 of ......................
Part IX
rs. No. 131, 2006
s. 101 ............................................. am. No. 88, 1976; No. 81, 1977; No. 17, 1986; No. 88, 1995;
No. 101, 1998; No. 131, 2006; No. 59, 2009; No. 185, 2011
s. 101A........................................... ad. No. 81, 1977
am. No. 88, 1995; No. 131, 2006
s. 102 ............................................. rs. No. 81, 1977
am. No. 222, 1992; No. 88, 1995; No. 101, 1998; No. 131, 2006
Division 2
s. 102A........................................... ad. No. 131, 2006
s. 103 ............................................. am. No. 131, 2006
s. 104 ............................................. am. No. 88, 1995
s. 109 ............................................. am. No. 81, 1977; No. 88, 1995; No. 131, 2006
s. 110 ............................................. am. No. 88, 1976
Division 3
Div. 3 of Part IX ............................ ad. No. 131, 2006
s. 111 ............................................. am. No. 88, 1976
rep. No. 34, 1989
ad. No. 131, 2006
ss. 112–119 .................................... rep. No. 34, 1989
ad. No. 131, 2006
Part X
Part X............................................. rs. No. 34, 1989
Division 1
s. 10.01........................................... ad. No. 34, 1989
am. No. 123, 2000
s. 10.01A........................................ ad. No. 123, 2000
am. No. 59, 2009
s. 10.02........................................... ad. No. 34, 1989
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
410 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 173, 1991; No. 123, 2000
s. 10.02A........................................ ad. No. 123, 2000
am. No. 109, 2006
s. 10.03........................................... ad. No. 34, 1989
am. No. 123, 2000; No. 109, 2006
Division 2
s. 10.04........................................... ad. No. 34, 1989
s. 10.05........................................... ad. No. 34, 1989
rep. No. 123, 2000
Division 3
ss. 10.06, 10.07 .............................. ad. No. 34, 1989
am. No. 123, 2000
s. 10.08........................................... ad. No. 34, 1989
am. No. 123, 2000; No. 59, 2009
s. 10.09........................................... ad. No. 34, 1989
Division 4
s. 10.10........................................... ad. No. 34, 1989
s. 10.11........................................... ad. No. 34, 1989
am. No. 123, 2000
s. 10.12........................................... ad. No. 34, 1989
s. 10.13........................................... ad. No. 34, 1989
am. No. 123, 2000
Division 5
Subdivision A
s. 10.14........................................... ad. No. 34, 1989
rs. No. 123, 2000
s. 10.15........................................... ad. No. 34, 1989
am. No. 123, 2000
s. 10.15A........................................ ad. No. 123, 2000
rep. No. 123, 2000
s. 10.16........................................... ad. No. 34, 1989
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 411
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 123, 2000
s. 10.17........................................... ad. No. 34, 1989
am. No. 123, 2000; No. 59, 2009
s. 10.17A........................................ ad. No. 173, 1991
rs. No. 123, 2000
am. No. 59, 2009
s. 10.18........................................... ad. No. 34, 1989
am. No. 123, 2000
s. 10.18A........................................ ad. No. 173, 1991
rs. No. 123, 2000
Subdivision B
s. 10.19........................................... ad. No. 34, 1989
am. No. 123, 2000; No. 59, 2009
s. 10.20........................................... ad. No. 34, 1989
am. No. 123, 2000
s. 10.21........................................... ad. No. 34, 1989
s. 10.21A........................................ ad. No. 123, 2000
rep. No. 123, 2000
Subdiv. C of Div. 5 of....................
Part X
rep. No. 123, 2000
ss. 10.22, 10.23 .............................. ad. No. 34, 1989
rep. No. 123, 2000
Subdivision D
s. 10.24........................................... ad. No. 34, 1989
am. No. 123, 2000; No. 59, 2009
s. 10.24A........................................ ad. No. 123, 2000
am. No. 7, 2003; No. 59, 2009
Division 6
Subdivision A
ss. 10.25, 10.26 .............................. ad. No. 34, 1989
s. 10.27........................................... ad. No. 34, 1989
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
412 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 173, 1991; No. 123, 2000
s. 10.27A........................................ ad. No. 123, 2000
ss. 10.28, 10.29 .............................. ad. No. 34, 1989
am. No. 123, 2000
Subdivision B
ss. 10.30, 10.31 .............................. ad. No. 34, 1989
s. 10.32........................................... ad. No. 34, 1989
am. No. 173, 1991
s. 10.33........................................... ad. No. 34, 1989
am. No. 123, 2000
Subdivision C
ss. 10.34–10.36 .............................. ad. No. 34, 1989
s. 10.37........................................... ad. No. 34, 1989
am. No. 123, 2000
s. 10.38........................................... ad. No. 34, 1989
Subdivision D
s. 10.39........................................... ad. No. 34, 1989
am. No. 173, 1991
s. 10.40........................................... ad. No. 34, 1989
am. No. 123, 2000
Division 7
s. 10.41........................................... ad. No. 34, 1989
am. No. 123, 2000
s. 10.42........................................... ad. No. 34, 1989
am. No. 173, 1991
s. 10.43........................................... ad. No. 34, 1989
am. No. 123, 2000
Division 8
s. 10.44........................................... ad. No. 34, 1989
am. No. 123, 2000
s. 10.45........................................... ad. No. 34, 1989
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 413
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 123, 2000; No. 59, 2009
ss. 10.46, 10.47 .............................. ad. No. 34, 1989
am. No. 123, 2000
s. 10.48........................................... ad. No. 34, 1989
am. No. 123, 2000
s. 10.49........................................... ad. No. 34, 1989
s. 10.49A........................................ ad. No. 123, 2000
Division 9
s. 10.50–10.53................................ ad. No. 34, 1989
am. No. 123, 2000
Division 10
s. 10.54........................................... ad. No. 34, 1989
ss. 10.55, 10.56 .............................. ad. No. 34, 1989
am. No. 123, 2000
s. 10.57........................................... ad. No. 34, 1989
s. 10.58........................................... ad. No. 34, 1989
am. No. 123, 2000
ss. 10.59, 10.60 .............................. ad. No. 34, 1989
Division 11
s. 10.61........................................... ad. No. 34, 1989
s. 10.62........................................... ad. No. 34, 1989
am. No. 123, 2000
ss. 10.63, 10.64 .............................. ad. No. 34, 1989
am. No. 123, 2000
s. 10.65........................................... ad. No. 34, 1989
ss. 10.66, 10.67 .............................. ad. No. 34, 1989
am. No. 123, 2000
Division 12
s 10.68 ........................................... ad No 34, 1989
am No 4, 2016; No 61, 2016
s 10.69 ........................................... ad No 34, 1989
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
414 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s 10.70 ........................................... ad No 34, 1989
s 10.71 ........................................... ad No 34, 1989
s 10.72 ........................................... ad No 34, 1989
Division 12A
Div. 12A of Part X......................... ad. No. 123, 2000
s. 10.72A........................................ ad. No. 123, 2000
am. No. 123, 2000; No. 109, 2006; No 126, 2015
ss. 10.72B–10.72D......................... ad. No. 123, 2000
Division 13
ss. 10.73–10.76 .............................. ad. No. 34, 1989
Division 14
ss. 10.77–10.79 .............................. ad. No. 34, 1989
s. 10.80........................................... ad. No. 34, 1989
am. No. 146, 1999
s. 10.81........................................... ad. No. 34, 1989
am. No. 123, 2000
s. 10.82........................................... ad. No. 34, 1989
Division 14A
Div. 14A of Part X......................... ad. No. 123, 2000
ss. 10.82A–10.82C......................... ad. No. 123, 2000
Division 14B
Div. 14B of Part X ......................... ad. No. 123, 2000
ss. 10.82D–10.82G......................... ad. No. 123, 2000
Division 15
s 10.83 ........................................... ad No 34, 1989
s 10.84 ........................................... ad No 34, 1989
s 10.85 ........................................... ad No 34, 1989
s 10.86 ........................................... ad No 34, 1989
ed C105
ss. 10.87, 10.88 .............................. ad. No. 34, 1989
am. No. 123, 2000
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 415
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 10.89........................................... ad. No. 34, 1989
s. 10.90........................................... ad. No. 34, 1989
am. No. 173, 1991; No. 123, 2000
s. 10.91........................................... ad. No. 34, 1989
am. No. 131, 2006
ss. 10.92, 10.93 .............................. ad. No. 34, 1989
rep. No. 123, 2000
ss. 120–129 .................................... rep. No. 34, 1989
Part XI
Part XI ........................................... rep. No. 88, 1995
ad. No. 44, 2010
rs. No. 103, 2010
Division 1
s. 130 ............................................. rep. No. 34, 1989
ad. No. 44, 2010
rs. No. 103, 2010
am No 24, 2016
s. 130A........................................... ad. No. 103, 2010
Division 2
Subdivision A
s. 131 ............................................. rep. No. 34, 1989
ad. No. 44, 2010
rs. No. 103, 2010
am. No. 184, 2011
ss. 131A–131C............................... ad. No. 103, 2010
Subdivision B
s 131D............................................ ad No 103, 2010
s 131E ............................................ ad No 103, 2010
am No 126, 2015
s 131F ............................................ ad No 103, 2010
s 131G............................................ ad No 103, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
416 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Division 3
Subdivision A
s. 132 ............................................. rep. No. 34, 1989
ad. No. 44, 2010
rs. No. 103, 2010
ss. 132A–132D .............................. ad. No. 103, 2010
Subdivision B
ss. 132E–132G............................... ad. No. 103, 2010
Subdivision C
s. 132H........................................... ad. No. 103, 2010
Subdivision D
ss. 132J, 132K................................ ad. No. 103, 2010
Division 4
Subdivision A
s. 133 ............................................. rep. No. 34, 1989
ad. No. 44, 2010
rs. No. 103, 2010
s. 133A........................................... ad. No. 103, 2010
Subdivision B
ss. 133B, 133C............................... ad. No. 103, 2010
Subdivision C
ss. 133D–133G .............................. ad. No. 103, 2010
Subdivision D
s. 133H........................................... ad. No. 103, 2010
s. 133J............................................ ad. No. 103, 2010
Division 5
s. 134 ............................................. rep. No. 34, 1989
ad. No. 44, 2010
rs. No. 103, 2010
ss. 134A–134G .............................. ad. No. 103, 2010
Division 6
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 417
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Subdivision A
s. 135 ............................................. rep. No. 34, 1989
ad. No. 44, 2010
rs. No. 103, 2010
ss. 135A–135G .............................. ad. No. 103, 2010
Subdivision B
s. 135H........................................... ad. No. 103, 2010
s. 135J............................................ ad. No. 103, 2010
Subdivision C
ss. 135K–135N .............................. ad. No. 103, 2010
s. 135P ........................................... ad. No. 103, 2010
Subdivision D
ss. 135Q, 135R............................... ad. No. 103, 2010
Subdivision E
ss. 135S–135Y............................... ad. No. 103, 2010
Subdivision F
s. 135Z ........................................... ad. No. 103, 2010
s. 136 ............................................. rep. No. 34, 1989
ad. No. 44, 2010
rs. No. 103, 2010
s. 136A........................................... ad. No. 103, 2010
Subdivision G
s. 136B........................................... ad. No. 103, 2010
Division 7
s. 137 ............................................. am. No. 88, 1976
rep. No. 34, 1989
ad. No. 44, 2010
rs. No. 103, 2010
s 137A............................................ ad No 103, 2010
s 137B............................................ ad No 103, 2010
s 137C............................................ ad No 103, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
418 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s 137D............................................ ad No 103, 2010
am No 147, 2015
s 137E ............................................ ad No 103, 2010
s 137F ............................................ ad No 103, 2010
am No 147, 2015
s 137G............................................ ad No 103, 2010
s 137H............................................ ad No 103, 2010
Division 8
s. 138 ............................................. rep. No. 34, 1989
ad. No. 44, 2010
rs. No. 103, 2010
am. No. 13, 2013
s. 138A........................................... ad. No. 103, 2010
am. No. 13, 2013
s. 138B........................................... ad. No. 103, 2010
s. 138C........................................... ad. No. 103, 2010
s. 138D........................................... ad. No. 103, 2010
s. 138E ........................................... ad. No. 103, 2010
Division 9
s. 139 ............................................. rep. No. 34, 1989
ad. No. 44, 2010
rs. No. 103, 2010
s. 139A........................................... ad. No. 103, 2010
s. 139B........................................... ad. No. 103, 2010
s. 139C........................................... ad. No. 103, 2010
am. No. 136, 2012
s. 139D........................................... ad. No. 103, 2010
s. 139DA........................................ ad. No. 103, 2010
s 139E ............................................ ad No 103, 2010
s 139F ............................................ ad No 103, 2010
s 139G............................................ ad No 103, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 419
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am No 147, 2015
Part XIAA
Part XIAA...................................... ad. No. 61, 1999
rep. No. 111, 2009
ad. No. 103, 2010
s. 140 ............................................. am. No. 88, 1976
rep. No. 34, 1989
ad. No. 44, 2010
rs. No. 103, 2010
ss. 140A–140H .............................. ad. No. 103, 2010
ss. 140J, 140K................................ ad. No. 103, 2010
ss. 141–143 .................................... rep. No. 34, 1989
ad. No. 44, 2010
rep. No. 103, 2010
ss. 144–146 .................................... rep. No. 34, 1989
ss. 147, 148 .................................... rep. No. 88, 1995
s. 149 ............................................. am. No. 88, 1976; No. 81, 1977
rep. No. 88, 1995
s. 150 ............................................. rep. No. 173, 1991
Part XIA
Part XIA......................................... ad. No. 88, 1995
s. 150A........................................... ad. No. 88, 1995
am. No. 61, 1999; No. 131, 2006; No. 44, 2010
ss. 150B, 150C............................... ad. No. 88, 1995
s. 150D........................................... ad. No. 88, 1995
am. No. 57, 2000
s. 150E ........................................... ad. No. 88, 1995
s. 150F ........................................... ad. No. 88, 1995
rs. No. 131, 2006
ss. 150FA, 150FB .......................... ad. No. 131, 2006
ss. 150G–150I................................ ad. No. 88, 1995
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
420 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 150J............................................ ad. No. 88, 1995
am. No. 131, 2006
s. 150K........................................... ad. No. 88, 1995
ss. 150L–150N............................... ad. No. 61, 1999
rep. No. 111, 2009
s. 150O........................................... ad. No. 61, 1999
am. No. 57, 2000
rep. No. 111, 2009
ss. 150P–150T................................ ad. No. 61, 1999
rep. No. 111, 2009
s. 151 ............................................. rep. No. 173, 1991
Part XIB
Part XIB......................................... ad. No. 58, 1997
Division 1
s. 151AA........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 140, 2002
s. 151AB ........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 140, 2002; No. 45, 2005; No. 23, 2011
s. 151AC ........................................ ad. No. 58, 1997
am No 33, 2016
s. 151AD........................................ ad. No. 58, 1997
s. 151AE ........................................ ad. No. 58, 1997
s. 151AF ........................................ ad. No. 58, 1997
am. No. 140, 2010
s. 151AG........................................ ad. No. 58, 1997
s. 151AH........................................ ad. No. 58, 1997
am. No. 159, 2007
s. 151AI ......................................... ad. No. 58, 1997
Division 2
s. 151AJ ......................................... ad. No. 58, 1997
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 421
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 200, 1997; No. 52, 1999; No. 131, 2006; No. 159, 2007;
No. 59, 2009; No. 140, 2010; No. 23, 2011
s. 151AK........................................ ad. No. 58, 1997
Division 3
Subdivision A
s. 151AKA..................................... ad. No. 52, 1999
am. No. 140, 2002; No. 140, 2010
s. 151AL ........................................ ad. No. 58, 1997
am. No. 200, 1997; No. 52, 1999
s. 151AM ....................................... ad. No. 58, 1997
am. No. 200, 1997
s. 151AN........................................ ad. No. 58, 1997
am. No. 200, 1997; No. 52, 1999
s. 151AO........................................ ad. No. 58, 1997
am. No. 52, 1999
ss. 151AOA, 151AOB ................... ad. No. 52, 1999
s. 151AP ........................................ ad. No. 58, 1997
am. No. 140, 2002
s. 151AQ........................................ ad. No. 58, 1997
s. 151AQA..................................... ad. No. 52, 1999
am. No. 194, 1999; No. 13, 2013
s. 151AQB ..................................... ad. No. 52, 1999
am. No. 46, 2001; No. 140, 2002
s. 151AR ........................................ ad. No. 58, 1997
Subdivision B
ss. 151AS, 151AT.......................... ad. No. 58, 1997
s. 151AU........................................ am. No. 140, 2002
ss. 151AV–151AX......................... ad. No. 58, 1997
s. 151AY........................................ ad. No. 58, 1997
am. No. 131, 2006; No. 59, 2009
s. 151AZ ........................................ ad. No. 58, 1997
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
422 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 151BA........................................ ad. No. 58, 1997
s. 151BB ........................................ ad. No. 58, 1997
s. 151BC ........................................ ad. No. 58, 1997
am. No. 169, 2012
s. 151BD........................................ ad. No. 58, 1997
s. 151BE ........................................ ad. No. 58, 1997
s. 151BF......................................... ad. No. 58, 1997
s. 151BG........................................ ad. No. 58, 1997
s. 151BH........................................ ad. No. 58, 1997
s. 151BI.......................................... ad. No. 58, 1997
rep. No. 146, 2001
Subdivision C
s. 151BJ ......................................... ad. No. 58, 1997
Division 4
ss. 151BK–151BR ......................... ad. No. 58, 1997
s. 151BS......................................... ad. No. 58, 1997
rep. No. 146, 2001
s. 151BT ........................................ ad. No. 58, 1997
Division 5
s. 151BTA...................................... ad. No. 58, 1997
am. No. 146, 2001; No. 140, 2010
Division 6
Heading to Div. 6 of ......................
Part XIB
rs. No. 52, 1999
s. 151BU........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 23, 2011
s 151BUAA ................................... ad. No. 140, 2002
am. No. 46, 2011; No 10, 2015; No 126, 2015
s. 151BUAAA................................ ad. No. 140, 2002
rep. No. 140, 2010
s. 151BUAB................................... ad. No. 140, 2002
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 423
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 151BUA ..................................... ad. No. 52, 1999
am No 52, 1999; No 146, 2001; No 23, 2011; No 46, 2011; No 4,
2016
s. 151BUB ..................................... ad. No. 52, 1999
am No 52, 1999; No 146, 2001; No 23, 2011; No 46, 2011; No 4,
2016
s. 151BUC ..................................... ad. No. 52, 1999
am. No. 52, 1999; No. 146, 2001; No 23, 2011; No 46, 2011; No 4,
2016
s. 151BUD ..................................... ad. No. 52, 1999
am No 46, 2011; No 103, 2013; No 126, 2015
s. 151BUDA .................................. ad. No. 140, 2002
am. No. 46, 2011; No 4, 2016
s. 151BUDB................................... ad. No. 140, 2002
am. No. 46, 2011; No 4, 2016
s. 151BUDC................................... ad. No. 140, 2002
am. No. 46, 2011; No 4, 2016
s. 151BUE...................................... ad. No. 52, 1999
am. No. 8, 2010
s. 151BUF...................................... ad. No. 52, 1999
s. 151BV........................................ ad. No. 58, 1997
am. No. 146, 2001; No 4, 2016
Division 7
Heading to Div. 7 of ......................
Part XIB
rs. No. 52, 1999
s. 151BW ....................................... ad. No. 58, 1997
am. No. 52, 1999
s. 151BX........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 119, 2005
s. 151BY........................................ ad. No. 58, 1997
am. No. 52, 1999
s. 151BZ ........................................ ad. No. 58, 1997
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
424 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 52, 1999; No. 146, 2001; No. 59, 2009
ss. 151CA–151CC ......................... ad. No. 58, 1997
am. No. 52, 1999
s. 151CD........................................ ad. No. 58, 1997
s. 151CE ........................................ ad. No. 58, 1997
am. No. 52, 1999
s. 151CF......................................... ad. No. 58, 1997
Division 8
s. 151CG........................................ ad. No. 58, 1997
Division 9
s. 151CH........................................ ad. No. 58, 1997
Division 10
s. 151CI.......................................... ad. No. 58, 1997
am. No. 52, 1999
s. 151CJ ......................................... ad. No. 58, 1997
am. No. 140, 2002
s. 151CK........................................ ad. No. 58, 1997
Division 11
s. 151CL ........................................ ad. No. 58, 1997
Division 12
s. 151CM ....................................... ad. No. 58, 1997
am. No. 52, 1999; No. 46, 2001; No. 111, 2009; No 38, 2015
Division 12A
Div. 12A of Part XIB ..................... ad. No. 52, 1999
s 151CMA ..................................... ad. No. 52, 1999
am No 10, 2015
s 151CMB...................................... ad. No. 52, 1999
am No 10, 2015
s 151CMC...................................... ad. No. 52, 1999
am No 10, 2015
Division 13 .................................... rep No 109, 2014
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 425
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 151CN........................................ ad. No. 58, 1997
rep No 109, 2014
Division 14 .................................... ad No 119, 2005
rep No 140, 2010
rs No 140, 2010
s. 151CP......................................... ad No 119, 2005
rep No 140, 2010
rs No 140, 2010
Division 15
Div. 15 of Part XIB........................ ad. No. 140, 2010
s. 151CQ........................................ ad. No. 140, 2010
Division 16
Div. 16 of Part XIB........................ ad. No. 23, 2011
s. 151DA........................................ ad. No. 23, 2011
s. 151DB........................................ ad. No. 23, 2011
s. 151DC........................................ ad. No. 23, 2011
rep No 109, 2014
s. 151DD........................................ ad. No. 23, 2011
rep No 109, 2014
s. 152 ............................................. rep. No. 173, 1991
Part XIC
Part XIC......................................... ad. No. 58, 1997
Division 1
s. 152AA........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 140, 2010; No. 23, 2011
s. 152AB ........................................ ad. No. 58, 1997
am. No. 119, 2005
s. 152AC ........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 140, 2002; Nos. 45 and 119, 2005; No. 140,
2010; No. 23, 2011; No 109, 2014
s. 152AD........................................ ad. No. 58, 1997
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
426 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 152AE ........................................ ad. No. 58, 1997
am No 33, 2016
s. 152AF ........................................ ad. No. 58, 1997
am. No. 140, 2010
s. 152AG........................................ ad. No. 58, 1997
am. No. 23, 2011
s. 152AGA..................................... ad. No. 23, 2011
am. No. 136, 2012
s. 152AH........................................ ad. No. 58, 1997
s. 152AI ......................................... ad. No. 58, 1997
rep. No. 140, 2002
ad. No. 140, 2010
ss. 152AJ, 152AK .......................... ad. No. 58, 1997
Division 2
s. 152AL ........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 7, 2008; No. 23, 2011; No 126, 2015
s. 152ALA ..................................... ad. No. 140, 2002
am. No. 7, 2008; No. 140, 2010; No. 23, 2011; No 126, 2015
s. 152AM ....................................... ad. No. 58, 1997
am. No. 140, 2002; No. 45, 2005; No. 140, 2010; No. 23, 2011
s. 152AN........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 140, 2002; No. 23, 2011
s. 152AO........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 119, 2005; No. 23, 2011
s. 152AP ........................................ ad. No. 58, 1997
rep. No. 140, 2002
s. 152AQ........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 140, 2010; No. 23, 2011
s. 152AQA..................................... ad. No. 124, 2001
am. No. 140, 2002
rep. No. 140, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 427
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 152AQB ..................................... ad. No. 140, 2002
am. No. 45, 2005
rep. No. 140, 2010
s. 152AQC ..................................... ad. No. 7, 2008
Division 3
Subdivision A
Heading to Subdiv. A of ................
Div. 3 of Part XIC
ad. No. 23, 2011
s. 152AR ........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 140, 2010; No 23, 2011; No 46, 2011; No
126, 2015
ss. 152ARA, 152ARB.................... ad. No. 23, 2011
s. 152AS ........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 119, 2005
rep. No. 140, 2010
s. 152ASA...................................... ad. No. 140, 2002
am. No. 119, 2005; No. 140, 2010; No. 23, 2011
s. 152AT ........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 119, 2005; No. 8, 2010
rep. No. 140, 2010
s. 152ATA ..................................... ad. No. 140, 2002
am. No. 119, 2005; Nos. 8 and 140, 2010; No. 23, 2011
s. 152AU........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 119, 2005; No. 140, 2010
s. 152AV........................................ ad. No. 58, 1997
am. No. 140, 2002
rep. No. 140, 2010
s. 152AW....................................... ad. No. 58, 1997
rs. No. 140, 2002
am. No. 8, 2010
rep. No. 140, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
428 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 152AX........................................ ad. No. 58, 1997
am. No. 140, 2002
rep. No. 140, 2010
s. 152AXA..................................... ad. No. 140, 2002
am. No. 140, 2010
Subdivision B
Subdiv. B of Div. 3 of....................
Part XIC
ad. No. 23, 2011
ss. 152AXB–152AXD ................... ad. No. 23, 2011
Subdivision C
Heading to Subdiv. C of.................
Div. 3 of Part XIC
ad. No. 23, 2011
s. 152AY........................................ ad. No. 58, 1997
rs. No. 140, 2010
s. 152AYA..................................... ad. No. 52, 1999
s. 152AZ ........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 23, 2011
s. 152BA........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 23, 2011
s. 152BB ........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 119, 2005; No. 23, 2011
s. 152BBAA................................... ad. No. 119, 2005
am. No. 140, 2010
ss. 152BBA, 152BBB .................... ad. No. 52, 1999
s. 152BBC...................................... ad. No. 52, 1999
am. No. 140, 2010
s. 152BBD ..................................... ad. No. 124, 2001
am. No. 23, 2011
Division 4
Div. 4 of Part XIC.......................... rs. No. 140, 2010
Subdivision A
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 429
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Subdiv. A of Div. 4 of....................
Part XIC
rep. No. 140, 2002
ad. No. 140, 2010
s. 152BC ........................................ ad. No. 58, 1997
rep. No. 140, 2002
ad. No. 140, 2010
am. No. 23, 2011; No. 136, 2012
s. 152BCA ..................................... ad. No. 140, 2010
s. 152BCB...................................... ad. No. 140, 2010
am. No. 23, 2011
s. 152BCC...................................... ad. No. 140, 2010
s. 152BCCA................................... ad. No. 140, 2010
ss. 152BCD, 152BCE .................... ad. No. 140, 2010
s. 152BCF...................................... ad. No. 140, 2010
am. No. 23, 2011
s. 152BCG ..................................... ad. No. 140, 2010
s. 152BCGA................................... ad. No. 140, 2010
Subdivision B
Heading to Subdiv. B of.................
Div. 4 of Part XIC
rep. No. 140, 2002
ad. No. 140, 2010
ss. 152BCH–152BCJ ..................... ad. No. 140, 2010
s. 152BCK ..................................... ad. No. 140, 2010
am. No. 23, 2011
Subdivision C
Subdiv. C of Div. 4 of....................
Part XIC
rep. No. 140, 2002
ad. No. 140, 2010
s. 152BCN ..................................... ad. No. 140, 2010
Subdivision D
Heading to Subdiv. D of ................
Div. 4 of Part XIC
rep. No. 140, 2002
ad. No. 140, 2010
ss. 152BCO, 152BCP..................... ad. No. 140, 2010
Subdivision E
ss. 152BCQ–152BCV.................... ad. No. 140, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
430 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Subdivision F
s. 152BCW..................................... ad. No. 140, 2010
Division 4A
Div. 4A of Part XIC....................... ad. No. 140, 2010
Subdivision A
s. 152BD........................................ ad. No. 58, 1997
rep. No. 140, 2002
ad. No. 140, 2010
am. No. 23, 2011
s. 152BDAA .................................. ad. No. 140, 2010
s. 152BDA ..................................... ad. No. 140, 2010
am. No. 23, 2011
ss. 152BDB, 152BDC.................... ad. No. 140, 2010
s. 152BDCA................................... ad. No. 140, 2010
ss. 152BDD, 152BDE.................... ad. No. 140, 2010
s. 152BDEA................................... ad. No. 140, 2010
Subdivision B
ss. 152BDF, 152BDG .................... ad. No. 140, 2010
Subdivision C
ss. 152BDH–152BDM................... ad. No. 140, 2010
Subdivision D
s. 152BDN ..................................... ad. No. 140, 2010
Division 4B
Div. 4B of Part XIC ....................... ad. No. 140, 2010
s. 152BE ........................................ ad. No. 58, 1997
rep. No. 140, 2002
ad. No. 140, 2010
am. No. 23, 2011
s 152BEA....................................... ad. No. 140, 2010
rs No 109, 2014
s 152BEB....................................... ad. No. 140, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 431
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
rs No 109, 2014
ss. 152BEBA–152BEBG ............... ad. No. 23, 2011
ss. 152BEC, 152BED..................... ad. No. 140, 2010
am. No. 23, 2011
ss. 152BF–152BI ........................... ad. No. 58, 1997
rep. No. 140, 2002
s. 152BJ ......................................... ad. No. 58, 1997
rs. No. 140, 2002
rep. No. 140, 2010
s. 152BK........................................ ad. No. 58, 1997
am. No. 140, 2002
rep. No. 140, 2010
s. 152BL ........................................ ad. No. 58, 1997
am. No. 140, 2002
rep. No. 140, 2010
s. 152BM ....................................... ad. No. 58, 1997
am. No. 140, 2002; No. 45, 2005
rep. No. 140, 2010
s. 152BN........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 45, 2005
rep. No. 140, 2010
s. 152BO........................................ ad. No. 58, 1997
rep. No. 140, 2002
ss. 152BP, 152BQ.......................... ad. No. 58, 1997
rep. No. 140, 2002
s. 152BR ........................................ ad. No. 58, 1997
am. No. 140, 2002
rep. No. 140, 2010
Division 5
Heading to Subdiv. A of ................
Div. 5 of Part XIC
ad. No. 140, 2002
rep. No. 140, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
432 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Subdiv. A of Div. 5 of....................
Part XIC
rep. No. 140, 2010
s. 152BS......................................... ad. No. 58, 1997
am. No. 140, 2002
rep. No. 140, 2010
s. 152BT ........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 119, 2005
rep. No. 140, 2010
s. 152BU........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 119, 2005; No. 8, 2010
rep. No. 140, 2010
ss. 152BV–152BX ......................... ad. No. 58, 1997
am. No. 140, 2002
rep. No. 140, 2010
s. 152BY........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 119, 2005; No. 8, 2010
rep. No. 140, 2010
s. 152BZ ........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 119, 2005
rep. No. 140, 2010
ss. 152CA, 152CB ......................... ad. No. 58, 1997
am. No. 140, 2002
rep. No. 140, 2010
Subdivision B
Subdiv. B of Div. 5 of....................
Part XIC
ad. No. 140, 2002
s. 152CBA ..................................... ad. No. 140, 2002
am. No. 140, 2010; No. 23, 2011
s. 152CBAA................................... ad. No. 140, 2010
s. 152CBB...................................... ad. No. 140, 2002
am. No. 119, 2005
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 433
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 152CBC...................................... ad. No. 140, 2002
am. No. 119, 2005; Nos. 8 and 140, 2010
s. 152CBCA................................... ad. No. 140, 2010
s. 152CBD ..................................... ad. No. 140, 2002
am. No. 140, 2010; No. 23, 2011
s. 152CBDA................................... ad. No. 140, 2010
s. 152CBE...................................... ad. No. 140, 2002
s. 152CBF...................................... ad. No. 140, 2002
am. No. 23, 2011
s. 152CBG ..................................... ad. No. 140, 2002
am. No. 119, 2005; Nos. 8 and 140, 2010
s. 152CBH ..................................... ad. No. 140, 2002
am. No. 119, 2005
s. 152CBI....................................... ad. No. 140, 2002
am. No. 23, 2011
ss. 152CBIA–152CBIC.................. ad. No. 140, 2010
s. 152CBJ....................................... ad. No. 140, 2002
Subdivision C
Heading to Subdiv. C of.................
Div. 5 of Part XIC
ad. No. 140, 2002
s. 152CC ........................................ ad. No. 58, 1997
am. No. 140, 2010
s. 152CD........................................ ad. No. 58, 1997
am. No. 140, 2002
s. 152CDA ..................................... ad. No. 119, 2005
s. 152CE ........................................ ad. No. 58, 1997
am. No. 140, 2002
rep. No. 140, 2010
s. 152CF......................................... ad. No. 58, 1997
rs. No. 140, 2002
am. No. 8, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
434 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
rep. No. 140, 2010
s. 152CG........................................ ad. No. 58, 1997
am. No. 140, 2002
rep. No. 140, 2010
ss. 152CGA, 152CGB.................... ad. No. 140, 2002
rep. No. 140, 2010
Division 6
s. 152CH........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 140, 2010; No. 103, 2013
s. 152CI.......................................... ad. No. 58, 1997
am. No. 140, 2002; No. 140, 2010
s. 152CJ ......................................... ad. No. 58, 1997
am. No. 140, 2010
Division 6A
Div. 6A of Part XIC....................... ad. No. 23, 2011
ss. 152CJA–152CJG ...................... ad. No. 23, 2011
Division 6B
Div. 6B of Part XIC ....................... ad. No. 23, 2011
s. 152CJH ...................................... ad. No. 23, 2011
am. No. 23, 2011
Division 7
s. 152CK........................................ ad. No. 58, 1997
am. No. 140, 2002; No. 23, 2011
Div. 8 of Part XIC.......................... rep. No. 140, 2010
s. 152CL ........................................ ad. No. 58, 1997
am. No. 52, 1999
rep. No. 140, 2010
s. 152CLA...................................... ad. No. 124, 2001
am. No. 140, 2002; No. 119, 2005; No. 8, 2010
rep. No. 140, 2010
s. 152CM ....................................... ad. No. 58, 1997
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 435
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
rep. No. 140, 2010
s. 152CN........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 124, 2001
rep. No. 140, 2010
ss. 152CO, 152CP.......................... ad. No. 58, 1997
rep. No. 140, 2010
s. 152CPA...................................... ad. No. 52, 1999
am. No. 124, 2001; No. 119, 2005
rep. No. 140, 2010
s. 152CQ........................................ ad. No. 58, 1997
am. No. 140, 2002
rep. No. 140, 2010
s. 152CR ........................................ ad. No. 58, 1997
am. No. 52, 1999
rep. No. 140, 2010
s. 152CRA ..................................... ad. No. 124, 2001
rep. No. 140, 2010
s. 152CS......................................... ad. No. 58, 1997
rep. No. 140, 2010
s. 152CT ........................................ ad. No. 58, 1997
am. No. 200, 1997; No. 52, 1999
rep. No. 140, 2010
s. 152CU........................................ ad. No. 58, 1997
rep. No. 140, 2010
s. 152CV........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 124, 2001
rep. No. 140, 2010
s. 152CW ....................................... ad. No. 58, 1997
rs. No. 124, 2001
rep. No. 140, 2010
s. 152CWA .................................... ad. No. 46, 2001
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
436 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
rs. No. 124, 2001
rep. No. 140, 2010
s. 152CX........................................ ad. No. 58, 1997
am. No. 124, 2001
rep. No. 140, 2010
s 152CY......................................... ad. No. 58, 1997
rep. No. 140, 2010
s 152CZ ......................................... ad. No. 58, 1997
am. No. 124, 2001
rep. No. 140, 2010
s. 152DA........................................ ad. No. 58, 1997
rep. No. 140, 2010
s. 152DB........................................ ad. No. 58, 1997
am. No. 124, 2001; No. 119, 2005
rep. No. 140, 2010
s. 152DBA ..................................... ad. No. 124, 2001
rep. No. 140, 2010
ss. 152DC, 152DD......................... ad. No. 58, 1997
rep. No. 140, 2010
ss. 152DE–152DG ......................... ad. No. 58, 1997
am. No. 146, 2001
rep. No. 140, 2010
ss. 152DH–152DJ .......................... ad. No. 58, 1997
rep. No. 140, 2010
s. 152DK........................................ ad. No. 58, 1997
am. No. 119, 2005
rep. No. 140, 2010
ss. 152DL, 152DM......................... ad. No. 58, 1997
rep. No. 140, 2010
s. 152DMA .................................... ad. No. 124, 2001
am. No. 119, 2005
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 437
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
rep. No. 140, 2010
s. 152DN........................................ ad. No. 58, 1997
rs. No. 52, 1999
am. No. 140, 2002
rep. No. 140, 2010
s. 152DNA..................................... ad. No. 52, 1999
am. No. 124, 2001; No. 140, 2002; No. 8, 2010
rep. No. 140, 2010
s. 152DNB ..................................... ad. No. 52, 1999
am. No. 194, 1999
rep. No. 140, 2010
s. 152DNC ..................................... ad. No. 140, 2002
rep. No. 140, 2010
Subdiv. F of Div. 8 of ....................
Part XIC
rep. No. 140, 2002
s. 152DO........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 124, 2001
rep. No. 140, 2002
s. 152DOA..................................... ad. No. 124, 2001
rep. No. 140, 2002
s. 152DP ........................................ ad. No. 58, 1997
rep. No. 140, 2002
s. 152DPA...................................... ad. No. 124, 2001
rep. No. 140, 2002
s. 152DQ........................................ ad. No. 58, 1997
rep. No. 140, 2002
s. 152DR........................................ ad. No. 58, 1997
rs. No. 124, 2001
rep. No. 140, 2002
s. 152DS ........................................ ad. No. 58, 1997
rep. No. 140, 2002
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
438 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 152DT ........................................ ad. No. 58, 1997
am. No. 52, 1999
rep. No. 140, 2010
s. 152DU........................................ ad. No. 58, 1997
am. No. 52, 1999
rep. No. 140, 2010
ss. 152DV–152DZ ......................... ad. No. 58, 1997
rep. No. 140, 2010
s. 152EA ........................................ ad. No. 58, 1997
rep. No. 140, 2010
s. 152EAA ..................................... ad. No. 124, 2001
rep. No. 140, 2010
s. 152EB ........................................ ad. No. 58, 1997
rep. No. 140, 2010
Div. 9 of Part XIC.......................... rep. No. 140, 2010
ss. 152EC–152EE .......................... ad. No. 58, 1997
rep. No. 140, 2010
Division 10
Heading to Div. 10 of.....................
Part XIC
rs. No. 140, 2002
s. 152EF......................................... ad. No. 58, 1997
am. No. 140, 2002; No. 140, 2010
s 152EG ......................................... ad. No. 58, 1997
am. No. 140, 2002
ss. 152EH–152EL .......................... ad. No. 58, 1997
Division 10A
Div. 10A of Part XIC ..................... ad. No. 119, 2005
s. 152ELA...................................... ad. No. 119, 2005
am. No. 140, 2010; No 126, 2015
s 152ELB ....................................... ad. No. 119, 2005
am. No. 8, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 439
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s 152ELC ....................................... ad No 119, 2005
am. No. 8, 2010; No 126, 2015
Division 11
s. 152ELD...................................... ad. No. 140, 2010
ss. 152EM–152EO......................... ad. No. 58, 1997
s. 152EOA ..................................... ad. No. 140, 2010
am. No. 23, 2011
s. 152EP......................................... ad. No. 58, 1997
s 152EPA....................................... ad No 140, 2010
s. 152EQ ........................................ ad. No. 119, 2005
rs. No. 140, 2010 (Sch 1 item 59)
s. 152ER ........................................ ad. No. 140, 2010
s. 153 ............................................. rep. No. 173, 1991
Part XID
Part XID......................................... ad. No. 131, 2006
Division 1
s. 154 ............................................. rep. No. 34, 1989
ad. No. 131, 2006
s. 154A........................................... ad. No. 131, 2006
am. No. 59, 2009
Division 2
ss. 154B, 154C............................... ad. No. 131, 2006
Division 3
s. 154D........................................... ad. No. 131, 2006
am. No. 159, 2007
ss. 154E, 154F................................ ad. No. 131, 2006
s. 154F ........................................... ad. No. 131, 2006
am. No. 59, 2009
Division 4
Subdivision A
s. 154G........................................... ad. No. 131, 2006
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
440 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am. No. 59, 2009
s. 154GA........................................ ad. No. 59, 2009
s. 154H........................................... ad. No. 131, 2006
am. No. 59, 2009
s. 154J............................................ ad. No. 131, 2006
Subdivision B
ss. 154K, 154L............................... ad. No. 131, 2006
am. No. 59, 2009
Subdivision C
ss. 154M, 154N.............................. ad. No. 131, 2006
Subdivision D
ss. 154P, 154Q............................... ad. No. 131, 2006
s. 154R........................................... ad. No. 131, 2006
am. No. 59, 2009
s. 154RA........................................ ad. No. 59, 2009
Subdivision E
s. 154S ........................................... ad. No. 131, 2006
s. 154T ........................................... ad. No. 131, 2006
am. No. 59, 2009
ss. 154U, 154V .............................. ad. No. 131, 2006
am. No. 59, 2009
s. 154W.......................................... ad. No. 131, 2006
Subdivision F
s. 154X........................................... ad. No. 131, 2006
am. No. 59, 2009
ss. 154Y, 154Z............................... ad. No. 131, 2006
Subdivision G
s. 154ZA ........................................ ad. No. 131, 2006
Division 5
ss. 154ZB, 154ZC .......................... ad. No. 131, 2006
Part XII
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 441
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 155 ............................................. am. No. 81, 1977; No. 17, 1986; No. 70, 1990; No. 88, 1995; No. 58,
1997; No. 52, 1999; No. 146, 2001; No. 128, 2002; No. 134, 2003;
No. 131, 2006; Nos. 68, 138 and 159, 2007; Nos. 116 and 139, 2008;
No. 59, 2009; No. 23, 2011
s. 155AAA..................................... ad. No. 85, 2007
am. No. 68, 2007; No. 139, 2008; Nos. 103 and 140, 2010; Nos. 102
and 132, 2011; No. 44, 2012; No 83, 2014; No 38, 2015
s. 155AA........................................ ad. No. 88, 1995
am. No. 61, 1999; No. 131, 2006; No. 85, 2007; No. 111, 2009
s. 155AB ........................................ ad. No. 58, 1997
am. No. 52, 1999; No. 140, 2002; No. 131, 2006
rep. No. 85, 2007
s. 155A........................................... ad. No. 70, 1990
am. No. 88, 1995; No. 159, 2007
s. 155B........................................... ad. No. 70, 1990
am. No. 88, 1995; No. 146, 2001
s. 156 ............................................. am. No. 70, 1990; No. 88, 1995
s. 157 ............................................. am. No. 81, 1977; No. 17, 1986; No. 101, 1998; No. 63, 2001;
No. 131, 2006; No. 59, 2009; Nos. 44 and 103, 2010
s. 157AA........................................ ad. No. 131, 2006
s. 157A........................................... ad. No. 108, 2004
ss. 157B–157D............................... ad. No. 59, 2009
s. 158 ............................................. am. No. 81, 1977; No. 88, 1995
s. 159 ............................................. am. No. 81, 1977; No. 88, 1995; No. 59, 2009
s. 160 ............................................. am. No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 146, 2001
s 161 .............................................. am. No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 146, 2001
s. 162 ............................................. rs. No. 81, 1977
am. No. 17, 1986; No. 88, 1995; No. 58, 1997; No. 146, 2001;
No. 108, 2004; No. 103, 2010
s. 162A........................................... ad. No. 17, 1986
am. No. 146, 2001; No. 108, 2004
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
442 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
s. 163 ............................................. am. No. 88, 1976; No. 17, 1986; No. 20, 1988; No. 70, 1990;
No. 106, 1998; No. 57, 2000; No. 131, 2006; No. 59, 2009; No. 5,
2011
s. 163A........................................... ad. No. 88, 1976
am. No. 81, 1977; No. 39, 1983; No. 88, 1995; No. 58, 1997; No. 61,
1999; No. 57, 2000; No. 63, 2001; No. 108, 2004; Nos. 59 and 111,
2009; No. 103, 2010; No. 136, 2012; No 83, 2014
s. 164 ............................................. rep. No. 81, 1977
s. 165 ............................................. am. No. 17, 1986; No. 59, 2009
s. 166 ............................................. am. No. 88, 1976; No. 81, 1977
s. 167 ............................................. am. No. 70, 1990; No. 88, 1995; No. 108, 2004
s. 168 ............................................. rep. No. 81, 1977
s. 169 ............................................. rs. No. 88, 1976
rep. No. 81, 1977
s. 170 ............................................. am. No. 88, 1976; No. 81, 1977; No. 61, 1981; No. 17, 1986;
No. 106, 1992; No. 88, 1995; No. 36, 1998; No. 146, 1999; No. 131,
2006; No. 103, 2010
s. 171 ............................................. am. No. 88, 1976; No. 88, 1995; No. 63, 2001; Nos. 92 and 131,
2006; No. 103, 2010
s. 171A........................................... ad. No. 136, 1991
s. 171B........................................... ad. No. 58, 1997
am. No. 140, 2010
s. 172 ............................................. am. No. 81, 1977; No. 136, 1991; No. 141, 1994; No. 88, 1995;
No. 108, 2004; No. 131, 2006; No. 45, 2007; No. 103, 2010
s. 173 ............................................. ad. No. 106, 1998
Part XIII
Part XIII......................................... ad. No. 59, 2009
Division 1
ss. 174–178 .................................... ad. No. 59, 2009
Division 2
Div. 2 of Part XIII.......................... ad. No. 184, 2011
s. 179 ............................................. ad. No. 184, 2011
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 443
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Schedule 1
Heading to Schedule ...................... rs. No. 61, 1999
am. No. 111, 2009
Renumbered Schedule 1 ................ No. 44, 2010
Schedule ........................................ ad. No. 88, 1995
Part 1
Heading to Part 1 ........................... ad. No. 61, 1999
Division 1
Div. 1 of Part 1............................... ad. No. 59, 2009
Subdivision A
ss. 44ZZRA–44ZZRE.................... ad. No. 59, 2009
Subdivision B
ss. 44ZZRF–44ZZRI...................... ad. No. 59, 2009
Subdivision C
ss. 44ZZRJ, 44ZZRK..................... ad. No. 59, 2009
Subdivision D
ss. 44ZZRL–44ZZRV.................... ad. No. 59, 2009
Division 1A
Div. 1A of Part 1............................ ad. No. 185, 2011
s. 44ZZS ........................................ ad. No. 185, 2011
s. 44ZZT ........................................ ad. No. 185, 2011
s. 44ZZU........................................ ad. No. 185, 2011
s. 44ZZV........................................ ad. No. 185, 2011
s. 44ZZW....................................... ad. No. 185, 2011
s. 44ZZX........................................ ad. No. 185, 2011
s. 44ZZY........................................ ad. No. 185, 2011
s. 44ZZZ ........................................ ad. No. 185, 2011
s. 44ZZZA ..................................... ad. No. 185, 2011
s. 44ZZZB...................................... ad. No. 185, 2011
Division 2
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
444 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Heading to Div. 2 of ......................
Part 1
ad. No. 59, 2009
s. 45 ............................................... ad. No. 88, 1995
am. No. 131, 2006; No. 59, 2009
s. 45A............................................. ad. No. 88, 1995
am. No. 131, 2006
rep. No. 59, 2009
s. 45B............................................. ad. No. 88, 1995
am. No. 169, 2012
s. 45C............................................. ad. No. 88, 1995
s. 45D............................................. ad. No. 88, 1995
rs. No. 60, 1996
s. 45DA.......................................... ad. No. 60, 1996
am. No. 103, 2010
s. 45DC.......................................... ad. No. 60, 1996
s. 45DD.......................................... ad. No. 60, 1996
am. No. 54, 2009
s. 45E............................................. ad. No. 60, 1996
ss. 45EA, 45EB.............................. ad. No. 60, 1996
s. 46 ............................................... ad. No. 88, 1995
am. No. 131, 2006; No. 159, 2007; No. 116, 2008
s. 47 ............................................... ad. No. 88, 1995
am. No. 131, 2006; No. 169, 2012
s. 48 ............................................... ad. No. 88, 1995
s. 49 ............................................... ad. No. 131, 2006
s. 50 ............................................... ad. No. 88, 1995
am. No. 63, 2001; No. 131, 2006; No. 184, 2011
s. 51 ............................................... ad. No. 88, 1995
am. No. 88, 1995; No. 60, 1996; No. 63, 2002; No. 103, 2010;
No. 46, 2011
Part 2.............................................. ad. No. 61, 1999
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 445
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
rep. No. 111, 2009
ss. 75AT, 75AU ............................. ad. No. 61, 1999
am. No. 176, 1999
rep. No. 111, 2009
ss. 75AV–75AY............................. ad. No. 61, 1999
rep. No. 111, 2009
s. 75AYA....................................... ad. No. 69,2000
rep. No. 111, 2009
s. 75AZ .......................................... ad. No. 61, 1999
rep. No. 111, 2009
Schedule 2
Schedule 2...................................... ad. No. 44, 2010
rs. No. 103, 2010
Chapter 1
s. 1 ................................................. ad. No. 44, 2010
rs. No. 103, 2010
s. 2 ................................................. ad. No. 44, 2010
rs. No. 103, 2010
am. No. 46, 2011; No 147, 2015; No 5, 2017
ss. 3–5............................................ ad. No. 44, 2010
rs. No. 103, 2010
s. 6 ................................................. ad. No. 103, 2010
ss. 7, 8............................................ ad. No. 44, 2010
rs. No. 103, 2010
ss. 9–17.......................................... ad. No. 103, 2010
Chapter 2
Part 2-1
s. 18 ............................................... ad. No. 103, 2010
s. 19 ............................................... ad. No. 103, 2010
am No 109, 2014
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
446 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Part 2-2
s. 20 ............................................... ad. No. 103, 2010
am. No. 184, 2011
ss. 21, 22 ........................................ ad. No. 103, 2010
rs. No. 184, 2011
s. 22A............................................. ad. No. 184, 2011
Part 2-3
s 23 ................................................ ad No. 103, 2010
am No 147, 2015
s 24 ................................................ ad No. 103, 2010
am No 147, 2015
s 25 ................................................ ad No. 103, 2010
am No 147, 2015
s 26 ................................................ ad No. 103, 2010
am No 147, 2015
s 27 ................................................ ad No. 103, 2010
s 28 ................................................ ad No. 103, 2010
am No 147, 2015
Chapter 3
Part 3-1
Division 1
ss. 29–38........................................ ad. No. 103, 2010
Division 2
ss. 39–43........................................ ad. No. 103, 2010
Division 3
ss. 44–46........................................ ad. No. 103, 2010
Division 4
s. 47 ............................................... ad. No. 103, 2010
s. 48 ............................................... ad. No. 103, 2010
am. No. 104, 2013
Division 5
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 447
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
ss. 49, 50 ........................................ ad. No. 103, 2010
Part 3-2
Division 1
Subdivision A
ss. 51–59........................................ ad. No. 103, 2010
Subdivision B
ss. 60–63........................................ ad. No. 103, 2010
Subdivision C
s. 64 ............................................... ad. No. 103, 2010
s. 64A............................................. ad. No. 103, 2010
Subdivision D
ss. 65–68........................................ ad. No. 103, 2010
Division 2
Subdivision A
ss. 69–72........................................ ad. No. 103, 2010
Subdivision B
ss. 73–77........................................ ad. No. 103, 2010
Subdivision C
ss. 78–81........................................ ad. No. 103, 2010
Subdivision D
ss. 82–88........................................ ad. No. 103, 2010
Subdivision E
ss. 89–95........................................ ad. No. 103, 2010
Division 3
s 96 ................................................ ad No 103, 2010
am No 130, 2012
s 97 ................................................ ad No 103, 2010
am No 130, 2012
s 98 ................................................ ad No 103, 2010
am No 130, 2012
s 99 ................................................ ad No 103, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
448 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Division 4
s 100 .............................................. ad No 103, 2010
s 101 .............................................. ad No 103, 2010
s 102 .............................................. ad No 103, 2010
s 103 .............................................. ad No 103, 2010
am No 130, 2012
Part 3-3
Division 1
s. 104 ............................................. ad. No. 103, 2010
s. 105 ............................................. ad. No. 103, 2010
am. No. 46, 2011
ss. 106–108 .................................... ad. No. 103, 2010
Division 2
Subdivision A
ss. 109–113 .................................... ad. No. 103, 2010
Subdivision B
ss. 114–117 .................................... ad. No. 103, 2010
Subdivision C
ss. 118, 119 .................................... ad. No. 103, 2010
Subdivision D
ss. 120, 121 .................................... ad. No. 103, 2010
Division 3
Subdivision A
ss. 122–127 .................................... ad. No. 103, 2010
Subdivision B
s. 128 ............................................. ad. No. 103, 2010
Division 4
ss. 129, 130 .................................... ad. No. 103, 2010
Division 5
ss. 131, 132 .................................... ad. No. 103, 2010
s. 132A........................................... ad. No. 103, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 449
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Division 6
s. 133 ............................................. ad. No. 103, 2010
Part 3-4
s. 134 ............................................. ad. No. 103, 2010
s. 135 ............................................. ad. No. 103, 2010
am. No. 46, 2011
ss. 136, 137 .................................... ad. No. 103, 2010
Part 3-5
Division 1
ss. 138–142 .................................... ad. No. 103, 2010
Division 2
ss. 143–149 .................................... ad. No. 103, 2010
Division 3
s. 150 ............................................. ad. No. 103, 2010
Chapter 4
Part 4-1
Division 1
ss. 151–160 .................................... ad. No. 103, 2010
Division 2
ss. 161–163 .................................... ad. No. 103, 2010
Division 3
s. 164 ............................................. ad. No. 103, 2010
Division 4
ss. 165, 166 .................................... ad. No. 103, 2010
Division 5
ss. 167, 168 .................................... ad. No. 103, 2010
Part 4-2
Division 1
s. 169 ............................................. ad. No. 103, 2010
Division 2
Subdivision A
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
450 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
ss. 170–173 .................................... ad. No. 103, 2010
Subdivision B
ss. 174–177 .................................... ad. No. 103, 2010
Subdivision C
ss. 178–181 .................................... ad. No. 103, 2010
Subdivision D
ss. 182–187 .................................... ad. No. 103, 2010
Division 3
s 188 .............................................. ad No 103, 2010
am No 130, 2012
s 189 .............................................. ad No 103, 2010
am No 130, 2012
s 190 .............................................. ad No 103, 2010
am No 130, 2012
s 191 .............................................. ad No 103, 2010
am No 130, 2012
Division 4
ss. 192, 193 .................................... ad. No. 103, 2010
Part 4-3
Division 1
ss. 194–196 .................................... ad. No. 103, 2010
Division 2
ss. 197, 198 .................................... ad. No. 103, 2010
Division 3
ss. 199–201 .................................... ad. No. 103, 2010
Division 4
s. 202 ............................................. ad. No. 103, 2010
Part 4-4
ss. 203, 204 .................................... ad. No. 103, 2010
Part 4-5
ss. 205, 206 .................................... ad. No. 103, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 451
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Part 4-6
ss. 207–211 .................................... ad. No. 103, 2010
Part 4-7
ss. 212–217 .................................... ad. No. 103, 2010
Chapter 5
Part 5-1
Division 1
s. 218 ............................................. ad. No. 103, 2010
Division 2
ss. 219–222 .................................... ad. No. 103, 2010
Division 3
s. 223 ............................................. ad. No. 103, 2010
Part 5-2
Division 1
ss. 224–230 .................................... ad. No. 103, 2010
Division 2
s 232 .............................................. ad No 103, 2010
am No 147, 2015
s 233 .............................................. ad No 103, 2010
s 234 .............................................. ad No 103, 2010
s 235 .............................................. ad No 103, 2010
Division 3
s. 236 ............................................. ad. No. 103, 2010
Division 4
Subdivision A
s 237 .............................................. ad No 103, 2010
am No 147, 2015
s 238 .............................................. ad No 103, 2010
am No 147, 2015
Subdivision B
s 239 .............................................. ad No 103, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
452 Competition and Consumer Act 2010
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
am No 147, 2015
s 240 .............................................. ad No 103, 2010
s 241 .............................................. ad No 103, 2010
Subdivision C
s 242 .............................................. ad No 103, 2010
am No 147, 2015
s 243 .............................................. ad No 103, 2010
s 244 .............................................. ad No 103, 2010
s 245 .............................................. ad No 103, 2010
Division 5
s 246 .............................................. ad No 103, 2010
s 247 .............................................. ad No 103, 2010
s 248 .............................................. ad No 103, 2010
s 249 .............................................. ad No 103, 2010
s 250 .............................................. ad No 103, 2010
rs No 147, 2015
Division 6
ss. 251–253 .................................... ad. No. 103, 2010
Part 5-3
s 254 .............................................. ad No 103, 2010
s 255 .............................................. ad No 103, 2010
am No 5, 2017
s 256 .............................................. ad No 103, 2010
rep No 5, 2017
s 257 .............................................. ad No 103, 2010
rep No 5, 2017
s 258 .............................................. ad No 103, 2010
Part 5-4
Division 1
Subdivision A
ss. 259–266 .................................... ad. No. 103, 2010
Authorised Version C2017C00062 registered 03/03/2017
Endnotes
Endnote 4—Amendment history
Competition and Consumer Act 2010 453
Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17
Provision affected How affected
Subdivision B
ss. 267–270 .................................... ad. No. 103, 2010
Division 2
ss. 271–273 .................................... ad. No. 103, 2010
Division 3
ss. 274–276 .................................... ad. No. 103, 2010
s. 276A........................................... ad. No. 103, 2010
s. 277 ............................................. ad. No. 103, 2010
Part 5-5
Division 1
ss. 278–286 .................................... ad. No. 103, 2010
Division 2
s. 287 ............................................. ad. No. 103, 2010
Chapter 6
Chapter 6 ....................................... ad No 130, 2012
Part 1
s 288 .............................................. ad No 130, 2012
s 289 .............................................. ad No 130, 2012
s 290 .............................................. ad No 130, 2012
Part 1A
Part 1A........................................... ad No 147, 2015
s 290A............................................ ad No 147, 2015
Authorised Version C2017C00062 registered 03/03/2017