Competition and Consumer Act 2010 Act No. 51 of 1974 as amended
This compilation was prepared on 1 January 2011 taking into account amendments up to Act No. 148 of 2010
Volume 1 includes: Table of Contents Sections 1 – 119
The text of any of those amendments not in force on that date is appended in the Notes section
The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section
Volume 2 includes: Table of Contents Sections 10.01 – 178
Volume 3 includes: Table of Contents Schedules 1 and 2 Note 1 Table of Acts Act Notes Table of Amendments Notes 2 and 3 Table A
Prepared by the Office of Legislative Drafting and Publishing, Attorney-General’s Department, Canberra
Contents Part I—Preliminary 1
1 Short title [see Note 1].......................................................................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 ..........................................................2 3 Repeal................................................................................................4 4 Interpretation .....................................................................................4 4A Subsidiary, holding and related bodies corporate ............................14 4B Consumers .......................................................................................16 4C Acquisition, supply and re-supply ...................................................18 4D Exclusionary provisions ..................................................................19 4E Market .............................................................................................20 4F References to purpose or reason ......................................................20 4G Lessening of competition to include preventing or hindering
competition......................................................................................21 4H Application of Act in relation to leases and licences of land
and buildings ...................................................................................21 4J Joint ventures...................................................................................21 4K Loss or damage to include injury.....................................................22 4KA Definitions etc. that do not apply in Part XI or Schedule 2 .............22 4L Severability......................................................................................22 4M Saving of law relating to restraint of trade and breaches of
confidence .......................................................................................23 4N Extended application of Part IIIA....................................................23 5 Extended application of this Act to conduct outside Australia ........23 6 Extended application of this Act to persons who are not
corporations [see Note 2].................................................................25 6AA Application of the Criminal Code ...................................................31
Part II—The Australian Competition and Consumer Commission 32
6A Establishment of Commission .........................................................32 7 Constitution of Commission ............................................................32 8 Terms and conditions of appointment .............................................33 8A Associate members..........................................................................33 8AB State/Territory AER members taken to be associate members ........34 9 Remuneration ..................................................................................35 10 Deputy Chairpersons .......................................................................35 11 Acting Chairperson..........................................................................36
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12 Leave of absence .............................................................................36 13 Termination of appointment of members of the Commission .........37 14 Termination of appointment of associate members of the
Commission.....................................................................................37 15 Resignation......................................................................................37 16 Arrangement of business .................................................................38 17 Disclosure of interests by members ................................................38 18 Meetings of Commission.................................................................39 19 Chairperson may direct Commission to sit in Divisions..................40 25 Delegation by Commission .............................................................41 26 Delegation by Commission of certain functions and powers...........41 27 Staff of Commission........................................................................42 27A Consultants ......................................................................................42 28 Functions of Commission in relation to dissemination of
information, law reform and research..............................................42 29 Commission to comply with directions of Minister and
requirements of the Parliament........................................................43
Part IIA—The National Competition Council 45 29A Establishment of Council.................................................................45 29B Functions and powers of Council ....................................................45 29BA Commonwealth consent to conferral of functions etc. on
Council ............................................................................................46 29BB How duty is imposed .......................................................................46 29BC When a State/Territory energy law imposes a duty .........................47 29C Membership of Council ...................................................................47 29D Terms and conditions of office ........................................................48 29E Acting Council President.................................................................48 29F Remuneration of Councillors...........................................................48 29G Leave of absence .............................................................................49 29H Termination of appointment of Councillors ....................................49 29I Resignation of Councillors ..............................................................49 29J Arrangement of Council business....................................................49 29K Disclosure of interests by Councillors .............................................50 29L Council meetings .............................................................................51 29LA Resolutions without meetings..........................................................51 29M Staff to help Council........................................................................52 29N Consultants ......................................................................................52 29O Annual report...................................................................................52
Part III—The Australian Competition Tribunal 54 29P Definition ........................................................................................54 30 Constitution of Tribunal ..................................................................54 31 Qualifications of members of Tribunal............................................54
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31A Appointment of Judge as presidential member of Tribunal not to affect tenure etc. ....................................................................55
32 Terms and conditions of appointment .............................................55 33 Remuneration and allowances of members of Tribunal...................55 34 Acting appointments........................................................................55 35 Suspension and removal of members of Tribunal............................56 36 Resignation......................................................................................57 37 Constitution of Tribunal for particular matters ................................57 38 Validity of determinations ...............................................................58 39 President may give directions..........................................................58 40 Disclosure of interests by members of Tribunal ..............................58 41 Presidential member to preside........................................................59 42 Decision of questions ......................................................................59 43 Member of Tribunal ceasing to be available....................................59 43A Counsel assisting Tribunal...............................................................60 43B Consultants ......................................................................................60 44 Staff of Tribunal ..............................................................................60 44A Acting appointments........................................................................61
Part IIIAA—The Australian Energy Regulator (AER) 62 Division 1—Preliminary 62
44AB Definitions.......................................................................................62 44AC This Part binds the Crown ...............................................................62 44AD Extra-territorial operation ................................................................62
Division 2—Establishment of the AER 64 44AE Establishment of the AER ...............................................................64 44AF AER to hold money and property on behalf of the
Commonwealth ...............................................................................64 44AG Constitution of the AER ..................................................................64
Division 3—Functions and powers of the AER 65 44AH Commonwealth functions................................................................65 44AI Commonwealth consent to conferral of functions etc. on
AER.................................................................................................65 44AJ How duty is imposed .......................................................................65 44AK When a State/Territory energy law imposes a duty .........................66 44AL Powers of the AER ..........................................................................67
Division 4—Administrative provisions relating to the AER 68 Subdivision A—Appointment etc. of members 68
44AM Appointment of Commonwealth AER member...............................68 44AN Membership of AER and Commission ............................................68 44AO Acting appointment of Commonwealth AER member ....................69 44AP Appointment of State/Territory AER members ...............................69
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44AQ Acting appointment of State/Territory AER member......................70 44AR AER Chair .......................................................................................70 44AS Acting AER Chair ...........................................................................71 44AT Remuneration of AER members......................................................71 44AU Additional remuneration of AER Chair...........................................72 44AV Leave of absence .............................................................................72 44AW Other terms and conditions..............................................................72 44AX Outside employment........................................................................72 44AY Disclosure of interests .....................................................................73 44AZ Resignation......................................................................................73 44AAB Termination of appointment ............................................................73
Subdivision B—Staff etc. to assist the AER 74 44AAC Staff etc. to assist the AER ..............................................................74
Subdivision C—Meetings of the AER etc. 74 44AAD Meetings ..........................................................................................74 44AAE Resolutions without meetings..........................................................75 44AAEAArbitration .......................................................................................75
Subdivision D—Miscellaneous 76 44AAF Confidentiality.................................................................................76 44AAG Federal Court may make certain orders ...........................................77 44AAGAFederal Court may order disconnection if an event specified
in the National Electricity Rules occurs...........................................78 44AAH Delegation by the AER....................................................................79 44AAI Fees .................................................................................................80 44AAJ Annual report...................................................................................80 44AAK Regulations may deal with transitional matters ...............................80
Part IIIA—Access to services 82 Division 1—Preliminary 82
44AA Objects of Part .................................................................................82 44B Definitions.......................................................................................82 44C How this Part applies to partnerships and joint ventures .................86 44D Meaning of designated Minister ......................................................87 44DA The principles in the Competition Principles Agreement
have status as guidelines..................................................................87 44E This Part binds the Crown ...............................................................88
Division 2—Declared services 89 Subdivision A—Recommendation by the Council 89
44F Person may request recommendation ..............................................89 44FA Council may request information ....................................................90 44G Limits on the Council recommending declaration of a service........91 44GA Time limit for Council recommendations........................................92
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44GB Council may invite public submissions on the application ..............94 44GC Council must publish its recommendation.......................................95
Subdivision B—Declaration by the designated Minister 96 44H Designated Minister may declare a service .....................................96 44HA Designated Minister must publish his or her decision .....................98 44I Duration and effect of declaration ...................................................99 44J Revocation of declaration..............................................................100 44K Review of declaration....................................................................100 44KA Tribunal may stay operation of declaration ...................................102 44KB Tribunal may order costs be awarded ............................................103 44L Review of decision not to revoke a declaration .............................104
Division 2AA—Services that are ineligible to be declared 106 Subdivision A—Scope of Division 106
44LA Constitutional limits on operation of this Division ........................106
Subdivision B—Ineligibility recommendation by Council 106 44LB Ineligibility recommendation.........................................................106 44LC Council may request information ..................................................108 44LD Time limit for Council recommendations......................................108 44LE Council may invite public submissions on the application ............110 44LF Council must publish its recommendation.....................................111
Subdivision C—Designated Minister’s decision on ineligibility 112 44LG Designated Minister’s decision on ineligibility .............................112 44LH Designated Minister must publish his or her decision ...................114
Subdivision D—Revocation of ineligibility decision 114 44LI Revocation of ineligibility decision...............................................114
Subdivision E—Review of decisions 116 44LJ Review of ineligibility decisions ...................................................116 44LK Review of decision to revoke or not revoke an ineligibility
decision..........................................................................................118
Subdivision F—Other matters 119 44LL Ineligibility decisions subject to alteration, cancellation etc..........119
Division 2A—Effective access regimes 121 Subdivision A—Recommendation by Council 121
44M Recommendation for a Ministerial decision on effectiveness of access regime ............................................................................121
44MA Council may request information ..................................................122
Subdivision B—Decision by Commonwealth Minister 122 44N Ministerial decision on effectiveness of access regime .................122
Subdivision C—Extensions of Commonwealth Minister’s decision 123 44NA Recommendation by Council ........................................................123
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44NAA Council may request information ..................................................124 44NB Decision by the Commonwealth Minister .....................................125
Subdivision D—Procedural provisions 126 44NC Time limit for Council recommendations......................................126 44NE Council may invite public submissions .........................................128 44NF Publication—Council ....................................................................130 44NG Publication—Commonwealth Minister .........................................130
Subdivision E—Review of decisions 131 44O Review of Ministerial decision on effectiveness of access
regime............................................................................................131
Subdivision F—State or Territory ceasing to be a party to Competition Principles Agreement 132
44P State or Territory ceasing to be a party to Competition Principles Agreement ....................................................................132
Division 2B—Competitive tender processes for government owned facilities 134
44PA Approval of competitive tender process ........................................134 44PAA Commission may request information...........................................135 44PB Report on conduct of tender process..............................................136 44PC Revocation of approval decision ...................................................136 44PD Time limit for Commission decisions............................................138 44PE Commission may invite public submissions..................................139 44PF Commission must publish its decisions .........................................141 44PG Review of Commission’s initial decision ......................................141 44PH Review of decision to revoke an approval .....................................143
Division 2C—Register of decisions and declarations 145 44Q Register of decisions, declarations and ineligibility decisions.......145
Division 3—Access to declared services 146 Subdivision A—Scope of Division 146
44R Constitutional limits on operation of this Division ........................146
Subdivision B—Notification of access disputes 146 44S Notification of access disputes ......................................................146 44T Withdrawal of notifications ...........................................................146
Subdivision C—Arbitration of access disputes 147 44U Parties to the arbitration.................................................................147 44V Determination by Commission ......................................................147 44W Restrictions on access determinations ...........................................148 44X Matters that the Commission must take into account ....................150 44XA Time limit for Commission’s final determination .........................151 44Y Commission may terminate arbitration in certain cases.................153
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44YA Commission must terminate arbitration if declaration varied or set aside by Tribunal .................................................................153
Subdivision D—Procedure in arbitrations 153 44Z Constitution of Commission for conduct of arbitration .................153 44ZA Member of the Commission presiding at an arbitration.................154 44ZB Reconstitution of Commission ......................................................154 44ZC Determination of questions............................................................154 44ZD Hearing to be in private .................................................................155 44ZE Right to representation ..................................................................155 44ZF Procedure of Commission .............................................................155 44ZG Particular powers of Commission..................................................156 44ZH Power to take evidence on oath or affirmation ..............................157 44ZI Failing to attend as a witness .........................................................157 44ZJ Failing to answer questions etc......................................................157 44ZK Intimidation etc..............................................................................158 44ZL Party may request Commission to treat material as
confidential....................................................................................158 44ZM Sections 18 and 19 do not apply to the Commission in an
arbitration ......................................................................................159 44ZN Parties to pay costs of an arbitration..............................................159 44ZNA Joint arbitration hearings ...............................................................159
Subdivision DA—Arbitration reports 161 44ZNB Arbitration reports .........................................................................161
Subdivision E—Effect of determinations 162 44ZO Operation of final determinations ..................................................162 44ZOA Effect and duration of interim determinations ...............................164
Subdivision F—Review of final determinations 164 44ZP Review by Tribunal .......................................................................164 44ZQ Provisions that do not apply in relation to a Tribunal review ........165 44ZR Appeals to Federal Court from determinations of the
Tribunal .........................................................................................166 44ZS Operation and implementation of a determination that is
subject to appeal ............................................................................166 44ZT Transmission of documents ...........................................................167
Subdivision G—Variation and revocation of determinations 167 44ZU Variation of final determinations...................................................167 44ZUA Variation and revocation of interim determinations ......................168
Division 4—Registered contracts for access to declared services 169 44ZV Constitutional limits on operation of this Division ........................169 44ZW Registration of contract .................................................................169 44ZX Review of decision not to register contract....................................170 44ZY Effect of registration of contract....................................................171
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Division 5—Hindering access to declared services 172 44ZZ Prohibition on hindering access to declared services.....................172
Division 6—Access undertakings and access codes for services 173 Subdivision A—Giving of access undertakings and access codes 173
44ZZA Access undertakings by providers .................................................173 44ZZAAAProposed amendments to access undertakings ............................175 44ZZAABAccess undertakings containing fixed principles.........................177 44ZZAAAccess codes prepared by industry bodies .....................................179 44ZZAB Commission may rely on industry body consultations ..................180
Subdivision B—Effect of access undertakings and access codes 181 44ZZBA When access undertakings and access codes come into
operation........................................................................................181
Subdivision C—Extensions of access undertakings and access codes 182
44ZZBB Extensions of access undertakings and access codes.....................182
Subdivision D—Procedural provisions 184 44ZZBC Time limit for Commission decisions............................................184 44ZZBCACommission may request information.........................................186 44ZZBD Commission may invite public submissions..................................186 44ZZBE Commission must publish its decisions .........................................188
Subdivision E—Review of decisions 189 44ZZBF Review of decisions.......................................................................189
Subdivision F—Register of access undertakings and access codes 191 44ZZC Register of access undertakings and access codes .........................191
Division 6A—Pricing principles for access disputes and access undertakings or codes 192
44ZZCA Pricing principles for access disputes and access undertakings or codes ....................................................................192
Division 6B—Overlap among determinations, registered contracts, access undertakings and Tribunal review 193
44ZZCB Deferring access disputes or access undertakings..........................193 44ZZCBADeferral of arbitration if review is underway...............................194 44ZZCC Overlap between determinations and access undertakings ............196 44ZZCD Overlap between registered contracts and access
undertakings ..................................................................................196
Division 7—Enforcement and remedies 197 44ZZD Enforcement of determinations......................................................197 44ZZE Enforcement of prohibition on hindering access ...........................197 44ZZF Consent injunctions .......................................................................198 44ZZG Interim injunctions.........................................................................199 44ZZH Factors relevant to granting a restraining injunction......................199
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44ZZI Factors relevant to granting a mandatory injunction......................199 44ZZJ Enforcement of access undertakings..............................................199 44ZZK Discharge or variation of injunction or other order .......................200
Division 8—Miscellaneous 201 44ZZL Register of determinations.............................................................201 44ZZM Commonwealth consent to conferral of functions etc. on the
Commission or Tribunal by State or Territory laws ......................201 44ZZMAHow duty is imposed.....................................................................201 44ZZMBWhen a law of a State or Territory imposes a duty........................202 44ZZN Compensation for acquisition of property .....................................203 44ZZNAOperation of Parts IV and VII not affected by this Part .................203 44ZZO Conduct by directors, servants or agents .......................................203 44ZZOAAAInformation to be given to Tribunal .........................................205 44ZZOAATribunal only to consider particular material ..............................207 44ZZOATime limit for Tribunal decisions ..................................................207 44ZZP Regulations about review by the Tribunal .....................................210 44ZZQ Regulations about fees for inspection etc. of registers...................211 44ZZR Procedure of the Tribunal when performing functions under
a State/Territory energy law or a designated Commonwealth energy law .....................................................................................211
Part IV—Restrictive trade practices 213 Division 1—Cartel conduct 213
Subdivision A—Introduction 213 44ZZRA Simplified outline ..........................................................................213 44ZZRB Definitions.....................................................................................213 44ZZRC Extended meaning of party............................................................215 44ZZRD Cartel provisions............................................................................215 44ZZRE Meaning of expressions in other provisions of this Act.................220
Subdivision B—Offences etc. 220 44ZZRF Making a contract etc. containing a cartel provision .....................220 44ZZRG Giving effect to a cartel provision .................................................221 44ZZRH Determining guilt...........................................................................222 44ZZRI Court may make related civil orders..............................................222
Subdivision C—Civil penalty provisions 223 44ZZRJ Making a contract etc. containing a cartel provision .....................223 44ZZRK Giving effect to a cartel provision .................................................223
Subdivision D—Exceptions 223 44ZZRL Conduct notified ............................................................................223 44ZZRMCartel provision subject to grant of authorisation..........................224 44ZZRN Contracts, arrangements or understandings between related
bodies corporate ............................................................................224
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44ZZRO Joint ventures—prosecution ..........................................................225 44ZZRP Joint ventures—civil penalty proceedings .....................................228 44ZZRQ Covenants affecting competition ...................................................230 44ZZRR Resale price maintenance ..............................................................230 44ZZRS Exclusive dealing...........................................................................230 44ZZRT Dual listed company arrangement .................................................231 44ZZRU Acquisition of shares or assets.......................................................232 44ZZRV Collective acquisition of goods or services by the parties to a
contract, arrangement or understanding.........................................232
Division 2—Other provisions 234 45 Contracts, arrangements or understandings that restrict
dealings or affect competition .......................................................234 45B Covenants affecting competition ...................................................237 45C Covenants in relation to prices ......................................................240 45D Secondary boycotts for the purpose of causing substantial
loss or damage ...............................................................................242 45DA Secondary boycotts for the purpose of causing substantial
lessening of competition................................................................243 45DB Boycotts affecting trade or commerce ...........................................244 45DC Involvement and liability of employee organisations ....................244 45DD Situations in which boycotts permitted..........................................246 45E Prohibition of contracts, arrangements or understandings
affecting the supply or acquisition of goods or services ................249 45EA Provisions contravening section 45E not to be given effect ..........253 45EB Sections 45D to 45EA do not affect operation of other
provisions of Part...........................................................................253 46 Misuse of market power ................................................................253 46A Misuse of market power—corporation with substantial
degree of power in trans-Tasman market.......................................257 46B No immunity from jurisdiction in relation to certain New
Zealand laws..................................................................................259 47 Exclusive dealing...........................................................................259 48 Resale price maintenance ..............................................................265 49 Dual listed company arrangements that affect competition ...........265 50 Prohibition of acquisitions that would result in a substantial
lessening of competition................................................................267 50A Acquisitions that occur outside Australia ......................................269 51 Exceptions .....................................................................................271 51AAA Concurrent operation of State and Territory laws..........................276
Part IVB—Industry codes 277 Division 1—Preliminary 277
51ACA Definitions.....................................................................................277
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Division 2—Contravention of industry codes 279 51AD Contravention of industry codes....................................................279
Division 3—Public warning notices 280 51ADA Commission may issue a public warning notice ............................280
Division 4—Orders to redress loss or damage suffered by non-parties etc. 281
51ADB Orders to redress loss or damage suffered by non-parties etc........281 51ADC Kinds of orders that may be made to redress loss or damage
suffered by non-parties etc. ...........................................................283
Division 5—Investigation power 285 51ADD Commission may require corporation to provide information.......285 51ADE Extending periods for complying with notices ..............................285 51ADF Compliance with notices ...............................................................285 51ADG False or misleading information etc...............................................286
Division 6—Miscellaneous 287 51AE Regulations relating to industry codes...........................................287 51AEA Concurrent operation of State and Territory laws..........................287
Part VI—Enforcement and remedies 288 75B Interpretation [see Note 2].............................................................288 76 Pecuniary penalties........................................................................288 76A Defence to proceedings under section 76 relating to a
contravention of section 95AZN ...................................................291 76B What happens if substantially the same conduct is a
contravention of Part IV or section 95AZN and an offence?.........292 76C Defence to proceedings relating to exclusionary provisions..........293 77 Civil action for recovery of pecuniary penalties ............................294 77A Indemnification of officers ............................................................294 77B Certain indemnities not authorised and certain documents
void................................................................................................295 77C Application of section 77A to a person other than a body
corporate........................................................................................295 78 Criminal proceedings not to be brought for contraventions of
Part IV or V [see Note 2]...............................................................295 79 Offences against section 44ZZRF or 44ZZRG..............................296 79A Enforcement and recovery of certain fines ....................................297 79B Preference must be given to compensation for victims..................299 80 Injunctions.....................................................................................299 80AB Stay of injunctions.........................................................................302 80AC Injunctions to prevent mergers if clearance or authorisation
granted on the basis of false or misleading information ................303 81 Divestiture where merger contravenes section 50 or 50A .............304
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81A Divestiture where merger done under clearance or authorisation granted on false etc. information..............................306
82 Actions for damages [see Note 2]..................................................308 83 Finding in proceedings to be evidence [see Note 2] ......................308 84 Conduct by directors, employees or agents ...................................309 85 Defences ........................................................................................310 86 Jurisdiction of courts [see Note 2] .................................................311 86AA Limit on jurisdiction of Federal Magistrates Court........................312 86A Transfer of matters ........................................................................312 86C Non-punitive orders.......................................................................313 86D Punitive orders—adverse publicity................................................315 86E Order disqualifying a person from managing corporations ...........316 86F Privilege against exposure to penalty—disqualification from
managing corporations ..................................................................317 87 Other orders [see Note 2]...............................................................318 87AA Special provision relating to Court’s exercise of powers
under this Part in relation to boycott conduct ................................322 87B Enforcement of undertakings.........................................................323 87C Enforcement of undertakings—Secretary to the Department ........323 87CA Intervention by Commission..........................................................324
Part VIA—Proportionate liability for misleading and deceptive conduct 325
87CB Application of Part ........................................................................325 87CC Certain concurrent wrongdoers not to have benefit of
apportionment................................................................................325 87CD Proportionate liability for apportionable claims ............................326 87CE Defendant to notify plaintiff of concurrent wrongdoer of
whom defendant aware..................................................................327 87CF Contribution not recoverable from defendant................................327 87CG Subsequent actions ........................................................................328 87CH Joining non-party concurrent wrongdoer in the action ..................328 87CI Application of Part ........................................................................328
Part VIB—Claims for damages or compensation for death or personal injury 329
Division 1—Introduction 329 87D Definitions.....................................................................................329 87E Proceedings to which this Part applies ..........................................330
Division 2—Limitation periods 332 87F Basic rule.......................................................................................332 87G Date of discoverability...................................................................333 87H Long-stop period ...........................................................................334 87J The effect of minority or incapacity ..............................................335
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87K The effect of close relationships ....................................................335
Division 3—Limits on personal injury damages for non-economic loss 336
87L Limits on damages for non-economic loss ....................................336 87M Maximum amount of damages for non-economic loss ..................336 87N Index numbers ...............................................................................337 87P Most extreme cases........................................................................337 87Q Cases of 33% or more (but not 100%) of a most extreme
case................................................................................................337 87R Cases of 15% or more (but less than 33%) of a most extreme
case................................................................................................338 87S Cases of less than 15% of a most extreme case .............................339 87T Referring to earlier decisions on non-economic loss .....................339
Division 4—Limits on personal injury damages for loss of earning capacity 340
87U Personal injury damages for loss of earning capacity ....................340 87V Average weekly earnings...............................................................340
Division 5—Limits on personal injury damages for gratuitous attendant care services 342
87W Personal injury damages for gratuitous attendant care services for plaintiff.......................................................................342
87X Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant care services .....................................343
Division 6—Other limits on personal injury damages 345 87Y Damages for future economic loss—discount rate ........................345 87Z Damages for loss of superannuation entitlements..........................345 87ZA Interest on damages .......................................................................346 87ZB Exemplary and aggravated damages..............................................347
Division 7—Structured settlements 348 87ZC Court may make orders under section 87 for structured
settlements .....................................................................................348
Part VII—Authorisations, notifications and clearances in respect of restrictive trade practices 349
Division 1—Authorisations (other than section 50 merger authorisations) 349
87ZP Definitions.....................................................................................349 88 Power of Commission to grant authorisations ...............................349 89 Procedure for applications and the keeping of a register ...............356 90 Determination of applications for authorisations...........................359 90A Commission to afford opportunity for conference before
determining application for authorisation......................................364
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90B Commission may rely on consultations undertaken by the AEMC ...........................................................................................368
91 Grant and variation of authorisations.............................................369 91A Minor variations of authorizations.................................................371 91B Revocation of an authorization......................................................373 91C Revocation of an authorization and substitution of a
replacement ...................................................................................374
Division 2—Notifications 377 Subdivision A—Exclusive dealing 377
93 Notification of exclusive dealing...................................................377
Subdivision B—Collective bargaining 382 93AA Definitions.....................................................................................382 93AB Notification of collective bargaining .............................................382 93AC Commission’s objection notice......................................................387 93AD When collective bargaining notice comes into force and
ceases to be in force.......................................................................388 93AE Withdrawal of collective bargaining notice...................................390 93AEA Only 1 collective bargaining notice under subsection
93AB(1A) may be given................................................................391 93AF Only 1 collective bargaining notice under subsection
93AB(1) may be given ..................................................................391
Subdivision C—Conferences 392 93A Commission to afford opportunity for conference before
giving notice ..................................................................................392
Subdivision D—Register of notifications 394 95 Register of notifications.................................................................394
Division 3—Merger clearances and authorisations 398 Subdivision A—Preliminary 398
95AA Simplified outline of this Division.................................................398 95AB Definitions.....................................................................................399
Subdivision B—Merger clearances 400 95AC Commission may grant clearance for a merger .............................400 95AD Application for clearance...............................................................400 95AE Requirements for valid clearance application................................400 95AF Commission to notify if clearance application is invalid...............401 95AG Application to be published on the internet ...................................401 95AH Merger clearance register ..............................................................401 95AI Confidentiality claims etc. .............................................................402 95AJ Commission may seek additional information from applicant ......403 95AK Commission may seek further information and consult others......403 95AL Applicant may withdraw application.............................................404 95AM Commission to make determination on application.......................404
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95AN When clearance must not be granted .............................................405 95AO Time limits for determining application ........................................405 95AP Clearance subject to conditions .....................................................405 95AQ When clearance is in force.............................................................406 95AR Minor variations of clearances.......................................................407 95AS Revocation of clearance or revocation of clearance and
substitution of a new clearance......................................................410
Subdivision C—Merger authorisations 414 95AT Tribunal may grant authorisation for a merger ..............................414 95AU Application for authorisation.........................................................415 95AV Requirements for valid authorisation application ..........................415 95AW Tribunal to notify if authorisation application is invalid................415 95AX Tribunal to notify Commission of authorisation application .........416 95AY Application to be published on the internet ...................................416 95AZ Merger authorisation register.........................................................416 95AZA Confidentiality claims etc. .............................................................417 95AZC Tribunal may seek additional information from applicant.............418 95AZD Tribunal may seek further information and consult others
etc. .................................................................................................418 95AZE Applicant may withdraw application.............................................419 95AZEATribunal must require Commission to give report .........................419 95AZF Commission to assist Tribunal.......................................................419 95AZFACommission may make enquiries...................................................420 95AZG Tribunal to make determination on application .............................420 95AZH When authorisation must not be granted .......................................421 95AZI Time limits for determining application ........................................421 95AZJ Authorisation subject to conditions ...............................................422 95AZK When authorisation is in force.......................................................422 95AZL Minor variations of authorisations.................................................422 95AZM Revocation of authorisation or revocation of authorisation
and substitution of a new authorisation .........................................426
Subdivision D—Miscellaneous 431 95AZN Providing false or misleading information ....................................431
Part VIIA—Prices surveillance 432 Division 1—Preliminary 432
95A Interpretation .................................................................................432 95B Exempt supplies ............................................................................435 95C Application of Part ........................................................................436 95D Crown to be bound ........................................................................437 95E Object of this Part..........................................................................437 95F Simplified overview of this Part ....................................................437
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Division 2—Commission’s functions under this Part 439 95G Commission’s functions under this Part ........................................439
Division 3—Price inquiries 441 Subdivision A—Holding of inquiries 441
95H Price inquiries................................................................................441 95J Content of inquiry notices .............................................................442 95K Period for completing inquiry........................................................443 95L Notice of holding of inquiry ..........................................................443 95M Notice of extension of period for completing inquiry....................444 95N Price restrictions ............................................................................444
Subdivision B—Reports on inquiries 447 95P Copies of report to be made available ...........................................447 95Q Notification of proposed prices after receipt of report...................447
Subdivision C—Procedure at inquiries 448 95R Public inquiries etc. .......................................................................448 95S Taking of evidence on oath or affirmation ....................................449 95T Failure of witness to attend............................................................450 95U Refusal to be sworn or to answer question ....................................450 95V Protection of witnesses ..................................................................451 95W Allowances to witnesses................................................................451
Division 4—Price notifications 452 95X Declarations by Minister or Commission ......................................452 95Y Declarations in relation to State or Territory authorities................452 95Z Price restrictions ............................................................................454 95ZA Later notices modifying a locality notice.......................................456 95ZB Applicable period in relation to a locality notice...........................457 95ZC Register of price notifications........................................................458 95ZD Delegation by Commission ...........................................................459
Division 5—Price monitoring 460 95ZE Directions to monitor prices, costs and profits of an industry........460 95ZF Directions to monitor prices, costs and profits of a business .........460 95ZG Exceptions to price monitoring......................................................461
Division 6—Other provisions 462 95ZH Ministerial directions.....................................................................462 95ZI Inquiries by an unincorporated body or a group of 2 or more
individuals .....................................................................................462 95ZJ Withdrawal of notices....................................................................463 95ZK Power to obtain information or documents....................................463 95ZL Inspection of documents etc. .........................................................466 95ZM Retention of documents .................................................................466 95ZN Confidential information ...............................................................467
xviii Competition and Consumer Act 2010
95ZO Immunity .......................................................................................468 95ZP Secrecy: members or staff members of the Commission etc. ........468 95ZQ Secrecy: persons involved in inquiries by bodies other than
the Commission.............................................................................470
Part VIII—Resale price maintenance 472 96 Acts constituting engaging in resale price maintenance ................472 96A Resale price maintenance in relation to services............................474 97 Recommended prices.....................................................................474 98 Withholding the supply of goods...................................................475 99 Statements as to the minimum price of goods ...............................476 100 Evidentiary provisions...................................................................476
Part IX—Review by Tribunal of Determinations of Commission 478
Division 1—Applications for review (other than for merger clearances) 478
101 Applications for review .................................................................478 101A Application for review of notice under subsection 93(3) or
(3A) or 93AC(1) or (2) ..................................................................479 102 Functions and powers of Tribunal .................................................479
Division 2—Procedure and Evidence 484 102A Definition ......................................................................................484 103 Procedure generally .......................................................................484 104 Regulations as to certain matters ...................................................484 105 Power to take evidence on oath .....................................................485 106 Hearings to be in public except in special circumstances ..............485 107 Evidence in form of written statement...........................................486 108 Taking of evidence by single member ...........................................486 109 Participants in proceedings before Tribunal ..................................486 110 Representation ...............................................................................486
Division 3—Review of Commission’s determinations on merger clearances 488
111 Applications for review .................................................................488 112 Tribunal to notify Commission......................................................489 113 Commission to give material to Tribunal ......................................489 114 Tribunal may consult etc. to clarify information ...........................489 115 Commission to assist Tribunal.......................................................490 116 Tribunal only to consider material before the Commission ...........490 117 Tribunal to make decision on review.............................................490 118 Time limits for making review decision ........................................490 119 Tribunal’s decision taken to be Commission’s ..............................491
Competition and Consumer Act 2010 xix
An Act relating to competition, fair trading and consumer protection, and for other purposes
Part I—Preliminary
1 Short title [see Note 1]
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.
(3A) The protection in subsection (3) does not apply to an authority of the Commonwealth.
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(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; (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.
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
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(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 (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:
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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.
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.
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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.
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.
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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 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).
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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.
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).
document includes: (a) a book, plan, paper, parchment or other material on which
there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and
(b) a disc, tape, paper or other device from which sounds or messages are capable of being reproduced.
dual listed company arrangement has the same meaning as in section 125-60 of the Income Tax Assessment Act 1997.
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
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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.
member of the Commission includes the Chairperson and a person appointed to act as a member of the Commission but does not include an associate member of the Commission.
member of the Tribunal includes the President and a person appointed to act as a member of the Tribunal.
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.
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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.
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:
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(i) the performance of work (including work of a professional nature), whether with or without the supply of goods;
(ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;
(b) a contract of insurance; (c) a contract between a banker and a customer of the banker
entered into in the course of the carrying on by the banker of the business of banking; or
(d) any contract for or in relation to the lending of moneys; but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.
share includes stock.
South Australian Electricity Legislation means: (a) the National Electricity Law set out in the Schedule to the
National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; and
(b) any regulations, as in force from time to time, made under Part 4 of that Act.
The reference in paragraph (a) to the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.
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
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to any Rules or other instruments, as in force from time to time, made or having effect under that Law.
State/Territory AER member means an AER member referred to in section 44AP.
State/Territory energy law means any of the following laws: (a) a uniform energy law that applies as a law of a State or
Territory; (b) a law of a State or Territory that applies a law mentioned in
paragraph (a) as a law of its own jurisdiction; (c) any other provisions of a law of a State or Territory that:
(i) relate to energy; and (ii) are prescribed by the regulations for the purposes of this
paragraph; being those provisions as in force from time to time.
supply, when used as a verb, includes: (a) in relation to goods—supply (including re-supply) by way of
sale, exchange, lease, hire or hire-purchase; and (b) in relation to services—provide, grant or confer;
and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.
Telstra has the same meaning as in the Telstra Corporation Act 1991.
Territory means: (a) an internal Territory; or (b) the Territory of Christmas Island; or (c) the Territory of Cocos (Keeling) Islands.
the Court or the Federal Court means the Federal Court of Australia.
the Family Court means the Family Court of Australia.
this Act includes Schedule 2 to the extent that it is applied under Subdivision A of Division 2 of Part XI.
trade or commerce means trade or commerce within Australia or between Australia and places outside Australia.
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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 (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 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
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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
(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.
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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:
(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:
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(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.
(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.
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(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 (ii) where that price exceeded the prescribed amount—the
goods were of a kind ordinarily acquired for personal, domestic or household use or consumption or the goods consisted of a commercial road vehicle;
and the person did not acquire the goods, or hold himself or herself out as acquiring the goods, for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land; and
(b) a person shall be taken to have acquired particular services as a consumer if, and only if:
(i) the price of the services did not exceed the prescribed amount; or
(ii) where that price exceeded the prescribed amount—the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.
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(2) For the purposes of subsection (1): (a) the prescribed amount is $40,000 or, if a greater amount is
prescribed for the purposes of this paragraph, that greater amount;
(b) subject to paragraph (c), the price of goods or services purchased by a person shall be taken to have been the amount paid or payable by the person for the goods or services;
(c) where a person purchased goods or services together with other property or services, or with both other property and services, and a specified price was not allocated to the goods or services in the contract under which they were purchased, the price of the goods or services shall be taken to have been:
(i) the price at which, at the time of the acquisition, the person could have purchased from the supplier the goods or services without the other property or services;
(ii) if, at the time of the acquisition, the goods or services were not available for purchase from the supplier except together with the other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier without other property or services—the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or
(iii) if, at the time of the acquisition, goods or services of the kind acquired were not available for purchase from any supplier except together with other property or services—the value of the goods or services at that time;
(d) where a person acquired goods or services otherwise than by way of purchase, the price of the goods or services shall be taken to have been:
(i) the price at which, at the time of the acquisition, the person could have purchased the goods or services from the supplier;
(ii) if, at the time of the acquisition, the goods or services were not available for purchase from the supplier or were so available only together with other property or 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
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that time, reasonably have purchased goods or services of that kind from another supplier; or
(iii) if goods or services of the kind acquired were not available, at the time of the acquisition, for purchase from any supplier or were not so available except together with other property or services—the value of the goods or services at that time; and
(e) without limiting by implication the meaning of the expression services in subsection 4(1), the obtaining of credit by a person in connection with the acquisition of goods or services by him or her shall be deemed to be the acquisition by him or her of a service and any amount by which the amount paid or payable by him or her for the goods or services is increased by reason of his or her so obtaining credit shall be deemed to be paid or payable by him or her for that service.
(3) Where it is alleged in any proceeding under this Act or in any other proceeding in respect of a matter arising under this Act that a person was a consumer in relation to particular goods or services, it shall be presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services.
(4) In this section, commercial road vehicle means a vehicle or trailer acquired for use principally in the transport of goods on public roads.
4C Acquisition, supply and re-supply
In this Act, unless the contrary intention appears: (a) a reference to the acquisition of goods includes a reference to
the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods;
(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;
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(e) a reference to the re-supply of goods acquired from a person includes a reference to:
(i) a supply of the goods to another person in an altered form or condition; and
(ii) a supply to another person of goods in which the first-mentioned goods have been incorporated;
(f) a reference to the re-supply of services (the original services) acquired from a person (the original supplier) includes a reference to:
(i) a supply of the original services to another person in an altered form or condition; and
(ii) a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.
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
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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 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:
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(i) the person engaged or engages in the conduct for purposes that included or include that purpose or for reasons that included or include that reason, as the case may be; and
(ii) that purpose or reason was or is a substantial purpose or reason.
(2) This section does not apply for the purposes of subsections 45D(1), 45DA(1), 45DB(1), 45E(2) and 45E(3).
4G Lessening of competition to include preventing or hindering competition
For the purposes of this Act, references to the lessening of competition shall be read as including references to preventing or hindering competition.
4H Application of Act in relation to leases and licences of land and buildings
In this Act: (a) a reference to a contract shall be construed as including a
reference to a lease of, or a licence in respect of, land or a building or part of a building and shall be so construed notwithstanding the express references in this Act to such leases or licences;
(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
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(ii) carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate; and
(b) a reference to a contract or arrangement made or understanding arrived at, or to a proposed contract or arrangement to be made or proposed understanding to be arrived at, for the purposes of a joint venture shall, in relation to a joint venture by way of an activity carried on by a body corporate as mentioned in subparagraph (a)(ii), be read as including a reference to the memorandum and articles of association, rules or other document that constitute or constitutes, or are or is to constitute, that body corporate.
4K Loss or damage to include injury
In this Act: (a) a reference to loss or damage, other than a reference to the
amount of any loss or damage, includes a reference to injury; and
(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: (a) Part IV; (b) Part XI; (c) the Australian Consumer Law (other than Part 5-3);
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(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 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
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(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 [see Note 2]
(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, 44ZZRK, 45,
45B, 45D to 45EB (other than section 45DB), 46 and 46A;
(ii) Part VIII; (iii) sections 31 and 43, Division 3 of Part 3-1, and
sections 50, 153, 163, 164 and 168, of the Australian Consumer Law;
were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to: (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
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(c) any reference in Division 1 of Part 3-2 of the Australian Consumer Law to a contract for the supply of goods or services and any reference in Part 3-5 or 5-4 of the Australian Consumer Law to the supply of goods or services, were, by express provision, confined to a contract made, or the supply of goods or services, as the case may be:
(i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or
(ii) in the course of, or in relation to, trade or commerce among the States; or
(iii) in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between two Territories; and
(ca) any reference in Part 2-3 of the Australian Consumer Law to a contract were, by express provision, confined to a contract made:
(i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or
(ii) in the course of, or in relation to, trade or commerce among the States; or
(iii) in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between two Territories; and
(d) in 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
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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 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
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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 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);
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(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 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;
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(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.
(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 Part IVA, of Divisions 1, 1AAA, 1AA and 1A of Part V and of Divisions 2 and 3 of Part VC have, by force of this subsection, the effect they would have if:
(a) those provisions (other than sections 33 and 155 of the Australian Consumer Law) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast; and
(b) a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation.
(3A) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by subsection (2), the provisions of Part 2-3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if:
(a) those provisions were, by express provision, confined in their operation to contracts for or relating to:
(i) the use of postal, telegraphic or telephonic services; or (ii) radio or television broadcasts; and
(b) a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation.
(4) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by another subsection of this section, the provisions of Parts 2-2, 3-1 (other than sections 30 and 33), Part 4-1 (other than sections 152, 155 and 164) and 5-3 of the Australian Consumer Law also have, by force of this subsection, the effect they would have if:
(a) those provisions were, by express provision, confined in their operation to engaging in conduct in a Territory; and
(b) a reference in those provisions to a thing done by a corporation in trade or commerce included a reference to a
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thing done in the course of the promotional activities of a professional person.
(5) In the application of sections 279, 282 and 283 of the Australian Consumer Law in relation to a supplier who is a natural person, those sections have effect as if there were substituted for paragraphs 279(3)(a), 282(2)(a) and 283(5)(a) of the Australian Consumer Law the following paragraph: “(a) the supplier has died or is an undischarged bankrupt or a
person whose affairs are being dealt with under Part X of the Bankruptcy Act 1966; or”.
(5A) Despite anything in section 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. 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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Section 6A
Part II—The Australian Competition and Consumer Commission
6A Establishment of Commission
(1) The Australian Competition and Consumer Commission is established by this section.
(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).
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,
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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.
(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
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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 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.
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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.
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.
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(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.
(1A) A person appointed under subsection (1) to act during a vacancy shall not continue so to act for more than 12 months.
(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.
(3) A person acting as Chairperson shall act in that capacity on such terms and conditions as the Governor-General determines and has all the powers and duties, and shall perform all the functions, conferred on the Chairperson by this Act.
12 Leave of absence
(1) A member of the Commission has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a member of the Commission leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.
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Section 13
13 Termination of appointment of members of the Commission
(1) The Governor-General may terminate the appointment of a member of the Commission for misbehaviour or physical or mental incapacity.
(2) If a member of the Commission: (a) becomes bankrupt, applies to take the benefit of any law for
the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(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.
(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.
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(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 (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;
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(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.
(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
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Section 25
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 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.
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.
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Section 27
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.
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;
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(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
(ii) inviting interested persons to furnish to the Commission their views on that matter and specifying the time and manner within which those views are to be furnished;
(b) the Commission shall not furnish its report to the Minister until a reasonable opportunity has been given to interested persons to furnish to the Commission their views on the matter to which the reference relates; and
(c) the Commission shall include in its report to the Minister any recommendations that it considers desirable with respect to the reform of the law relating to the matter to which the reference relates, whether those recommendations relate to the amendment of existing laws or the making of new laws.
(3) The Minister shall cause a copy of each report furnished to him or her by the Commission in relation to a matter referred to the Commission under paragraph (1)(b) to be laid before each House of the Parliament as soon as practicable after the report is received by him or her.
29 Commission to comply with directions of Minister and requirements of the Parliament
(1) The Minister may give the Commission directions connected with the performance of its functions or the exercise of its powers under this Act.
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(1A) The Minister must not give directions under subsection (1) relating to:
(a) Part IIIA, IV,VII, VIIA, X, XIB or XIC; or (b) Division 3 of Part XI in relation to individual cases.
(1B) The Commission must comply with a direction.
(2) Any direction given to the Commission under subsection (1) shall be in writing and the Minister shall cause a copy of the direction to be published in the Gazette as soon as practicable after the direction is given.
(3) If either House of the Parliament or a Committee of either House, or of both Houses, of the Parliament requires the Commission to furnish to that House or Committee any information concerning the performance of the functions of the Commission under this Act, the Commission shall comply with the requirement.
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The National Competition Council Part IIA
Section 29A
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.
(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.
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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.
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.
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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.
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.
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(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
(1) The Minister may appoint a Councillor to act as the Council President:
(a) if there is a vacancy in the office of Council President, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Council President is absent from duty or absent from Australia or is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a person purporting to act under this section is not invalid merely because:
(a) the occasion for appointment had not arisen; (b) there was a defect or irregularity in the appointment; (c) the appointment had ceased to have effect; (d) the occasion to act had not arisen or had ceased.
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.
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(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:
(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.
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Section 29K
(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:
(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.
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Section 29L
29L Council meetings
(1) The Council President must convene the meetings that the Council President thinks are necessary to perform the Council’s functions efficiently.
(2) The meetings must be held in places determined by the Council President.
(3) The Council President must preside at any meeting that he or she attends.
(4) If the Council President is absent from a meeting, a Councillor chosen by the Councillors at the meeting must preside.
(5) The Councillor presiding at a meeting may give directions on the procedure to be followed in relation to the meeting.
(6) The quorum for a meeting is 3 Councillors (including the Council President).
(7) At a meeting, a question must be decided by a majority of votes of the Councillors present and voting. The Councillor presiding has a deliberative vote, and a casting vote if the deliberative votes are equally divided.
29LA Resolutions without meetings
(1) If all Councillors (other than those that must not sign a document because of subsection (3)) sign a document containing a statement that they are in favour of a resolution in terms set out in the document, then a resolution in those terms is taken to have been passed at a duly constituted meeting of the Council held on the day the document was signed, or, if the members sign the document on different days, on the last of those days.
(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
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Section 29M
the Councillor has any pecuniary interest, being an interest that could conflict with the proper performance of the Councillor’s functions in relation to any matter.
29M Staff to help Council
(1) The staff needed to help the Council are to be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999: (a) the Council President and the APS employees assisting the
Council President together constitute a Statutory Agency; and
(b) the Council President is the Head of that Statutory Agency.
29N Consultants
(1) On behalf of the Commonwealth, the Council may engage persons to give advice to, and perform services for, the Council.
(2) The terms and conditions of engagement are as determined by the Council.
29O Annual report
(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;
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(d) any evidence of the benefits arising from determinations of the Commission under section 44V (about arbitration determinations under Part IIIA);
(e) any evidence of the costs of, or the disincentives for, investment in the infrastructure by which declared services (within the meaning of Part IIIA) are provided;
(f) any implications for the operation of Part IIIA in the future.
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Section 29P
Part III—The Australian Competition Tribunal
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: (a) the President is, or is expected to be, absent from duty; or
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Section 35
(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.
(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.
(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.
(4) Where a person has been appointed under subsection (2) or (3), the Governor-General may, by reason of pending proceedings or other special circumstances, direct, before the absent member of the Tribunal resumes duty, that the person so appointed shall continue to act under the appointment after the resumption of duty by the absent member until the Governor-General terminates the appointment, but a person shall not continue to act as a member of the Tribunal by virtue of this subsection for more than 12 months after the resumption of duty by the absent member.
(5) Where a person has been appointed under this section to act as a member of the Tribunal during the absence from duty of a member of the Tribunal, and that member ceases to hold office without having resumed duty, the period of appointment of the person so appointed shall be deemed to continue until it is terminated by the Governor-General, or until the expiration of 12 months from the date on which the absent member ceases to hold office, whichever first happens.
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.
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(2) The Minister shall cause a statement of the ground of the suspension to be laid before each House of the Parliament within 7 sitting days of the House after the suspension.
(3) Where such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member of the Tribunal should be restored to office and, if each House so passes a resolution, the Governor-General shall terminate the suspension.
(4) If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the Governor-General may remove the member of the Tribunal from office.
(5) If a member of the Tribunal becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, the Governor-General shall remove him or her from office.
(6) A member of the Tribunal shall not be removed from office except as provided by this section.
(7) A presidential member of the Tribunal ceases to hold office if he or she no longer holds office as a Judge of a Federal Court, not being the High Court or a court of an external Territory.
36 Resignation
A member of the Tribunal may resign his or her office by writing signed by him or her and delivered to the Governor-General.
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.
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Section 38
38 Validity of determinations
The validity of a determination of the Tribunal shall not be affected or called in question by reason of any defect or irregularity in the constitution of the Tribunal.
39 President may give directions
(1) The President may give directions as to the arrangement of the business of the Tribunal and the constitution of Divisions of the Tribunal.
(2) The President may give directions to the Deputy Presidents in relation to the exercise by the Deputy Presidents of powers with respect to matters of procedure in proceedings before the Tribunal. Note: Subsection 103(2) provides that any presidential member may
exercise powers with respect to matters of procedure in proceedings before the Tribunal.
40 Disclosure of interests by members of Tribunal
(1) Where a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and the member has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the proceedings:
(a) the member shall disclose the interest to the President; and (b) the member shall not take part, or continue to take part, in the
proceedings if: (i) the President gives a direction under paragraph (2)(a) in
relation to the proceedings; or (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
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(b) in any other case—the President shall cause the interest of the member to be disclosed to the persons concerned in the proceedings.
41 Presidential member to preside
The presidential member who is a member of a Division shall preside at proceedings of that Division.
42 Decision of questions
(1) A question of law arising in a matter before a Division of the Tribunal (including the question whether a particular question is one of law) shall be determined in accordance with the opinion of the presidential member presiding.
(2) Subject to subsection (1), a question arising in proceedings before a Division of the Tribunal shall be determined in accordance with the opinion of a majority of the members constituting the Division.
43 Member of Tribunal ceasing to be available
(1) This section applies where the hearing of any proceedings has been commenced or completed by the Tribunal but, before the matter to which the proceedings relate has been determined, one of the members constituting the Tribunal for the purposes of the proceedings has ceased to be a member of the Tribunal or has ceased to be available for the purposes of the proceedings.
(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).
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(4) Where the President has given a direction under subsection (3), he or she may, at any time before the determination of the proceedings, direct that a third member be added to the Tribunal as constituted in accordance with subsection (3).
(5) The Tribunal as constituted in accordance with any of the provisions of this section for the purposes of any proceedings may have regard to any record of the proceedings before the Tribunal as previously constituted.
43A Counsel assisting Tribunal
(1) The President may, on behalf of the Commonwealth, appoint a legal practitioner to assist the Tribunal as counsel, either generally or in relation to a particular matter or matters.
(2) In this section:
legal practitioner means a legal practitioner (however described) of the High Court or of the Supreme Court of a State or Territory.
43B Consultants
The Registrar may, on behalf of the Commonwealth, engage persons as consultants to, or to perform services for, the Tribunal.
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.
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44A Acting appointments
(1) 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.
(2) A person acting as the Registrar or as a Deputy Registrar by reason of a vacancy in the office of Registrar or of that Deputy Registrar shall not continue so to act after the expiration of 12 months after the occurrence of the vacancy.
(3) A person appointed to act as the Registrar or as a Deputy Registrar has, while acting as the Registrar or as that Deputy Registrar, as the case may be, all the duties and functions of the Registrar or of that Deputy Registrar, and references in this Act to the Registrar or to a Deputy Registrar shall:
(a) if a person is acting as the Registrar—be read as a reference to the person so acting; or
(b) if a person is acting as a Deputy Registrar—be read as including a reference to the person so acting.
(4) The Minister may at any time terminate an appointment of a person to act as the Registrar or as a Deputy Registrar.
(5) A person who holds an appointment to act as the Registrar or as a Deputy Registrar may resign his or her appointment by writing under his or her hand delivered to the Minister.
(6) The validity of an act done by a person appointed to act as the Registrar or as a Deputy Registrar shall not be questioned in any proceeding on a ground arising from the fact that the occasion for the appointment, or for him or her to act under the appointment, had not arisen or that the appointment had ceased to have effect or the occasion for him or her to act under the appointment had passed.
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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; (b) acts, transactions and matters done, entered into or occurring
in or outside Australia;
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(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.
44AF AER to hold money and property on behalf of the Commonwealth
The AER holds any money or property for and on behalf of the Commonwealth.
44AG Constitution of the AER
The AER consists of: (a) a Commonwealth AER member, appointed in accordance
with section 44AM; and (b) 2 State/Territory AER members, appointed in accordance
with section 44AP.
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Division 3—Functions and powers of the AER
44AH Commonwealth functions
The AER has any functions: (a) conferred under a law of the Commonwealth; or (b) prescribed by regulations made under this Act.
Note: The AER may have functions under the Australian Energy Market Act 2004.
44AI Commonwealth consent to conferral of functions etc. on AER
(1) A State/Territory energy law may confer functions or powers, or impose duties, on the AER for the purposes of that law. Note: Section 44AK sets out when such a law 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 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 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.
44AJ How duty is imposed
Application
(1) This section applies if a State/Territory energy law purports to impose a duty on the AER. Note: Section 44AK sets out when such a law imposes a duty on the AER.
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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 AER.
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 44AI 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 AER.
(6) Subsections (1) to (5) do not limit section 44AI.
44AK When a State/Territory energy law imposes a duty
For the purposes of sections 44AI and 44AJ, a State/Territory energy law imposes a duty on the AER if:
(a) the law confers a function or power on the AER; and
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(b) the circumstances in which the function or power is conferred give rise to an obligation on the AER to perform the function or to exercise the power.
44AL Powers of the AER
The AER has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. Note: State and Territory laws may also confer powers on the AER in
respect of its functions under those laws: 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.
(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.
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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: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.
(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.
(3) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or (b) there was a defect or irregularity in connection with the
appointment; or (c) the appointment had ceased to have effect; or (d) the occasion to act had not arisen or had ceased.
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: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.
(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.
(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.
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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: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.
(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.
(3) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or (b) there was a defect or irregularity in connection with the
appointment; or (c) the appointment had ceased to have effect; or (d) the occasion to act had not arisen or had ceased.
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.
(2) Meetings of the AER must be held at such places as the AER Chair determines.
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(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.
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
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(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.
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); (d) any staff or consultant assisting a body mentioned in
paragraph (a), (b) or (c) in performing its functions or exercising its powers;
(e) any other person or body prescribed by the regulations for the purpose of this paragraph.
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(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.
(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;
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(b) an order that the person cease, within a specified period, the act, activity or practice constituting the breach;
(c) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;
(d) an order that the person implement a specified program for compliance with the law;
(e) an order of a kind prescribed by regulations made under this Act.
(3) If a person has engaged, is engaging or is proposing to engage in any conduct in breach of:
(a) a uniform energy law that is applied as a law of the Commonwealth; or
(b) a State/Territory energy law; the Federal Court may, on application by the AER on behalf of the Commonwealth, grant an injunction:
(c) restraining the person from engaging in the conduct; and (d) if, in the court’s opinion, it is desirable to do so—requiring
the person to do something.
(4) The power of the Federal Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
(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
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Commonwealth, directing that a Registered participant’s loads be disconnected.
(2) In this section:
National Electricity Law means: (a) the National Electricity Law set out in the Schedule to the
National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; or
(b) that Law as it applies as a law of another State; or (c) that Law as it applies as a law of a Territory; or (d) that Law as it applies as a law of the Commonwealth.
National Electricity Rules means: (a) the National Electricity Rules, as in force from time to time,
made under the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia; or
(b) those Rules as they apply as a law of another State; or (c) those Rules as they apply as a law of a Territory; or (d) those Rules as they apply as a law of the Commonwealth.
Registered participant has the same meaning as in the National Electricity Law.
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 17AA of the Acts Interpretation Act 1901 contains the
definitions of SES employee and acting SES employee.
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Note 2: See also sections 34AA to 34A of the Acts Interpretation Act 1901, which contain extra rules about delegations.
44AAI Fees
(1) The AER may charge a fee specified in the regulations for services provided by it in performing any of its functions, or exercising any of its powers, under this Part or under regulations made under this Act, or under another law of the Commonwealth or a State/Territory energy law.
(2) The fee must not be such as to amount to taxation.
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.
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(3) In this section:
matters of a transitional nature also includes matters of an application or saving nature.
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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.
declared service means a service for which a declaration is in operation.
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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 (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.
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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 (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.
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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: (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.
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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;
the responsible Minister of the State or Territory is the designated Minister.
(5) In relation to revoking a decision: (a) that a service is ineligible to be a declared service; and (b) that was made by the responsible Minister of a State or
Territory; the responsible Minister of that State or Territory is the designated Minister.
44DA The principles in the Competition Principles Agreement have status as guidelines
(1) For the avoidance of doubt: (c) the requirement, under subsection 44M(4), that the Council
apply the relevant principles set out in the Competition Principles Agreement in deciding whether to recommend to the Commonwealth Minister that he or she should decide that an access regime is, or is not, an effective access regime; and
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(d) the requirement, under subsection 44N(2), that the Commonwealth Minister, in making a decision on a recommendation received from the Council, apply the relevant principles set out in the Agreement;
are obligations that the Council and the relevant Ministers must treat each individual relevant principle as having the status of a guideline rather than a binding rule.
(2) An effective access regime may contain additional matters that are not inconsistent with Competition Principles Agreement principles.
44E This Part binds the Crown
(1) This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(2) Nothing in this Part makes the Crown liable to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of the Commonwealth or an authority of a State or Territory.
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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.
(5) The applicant may withdraw the application at any time before the Council makes a recommendation relating to it.
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(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.
(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
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(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 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;
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(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).
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.
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Stopping the clock Item Column 1 Column 2 Column 3
Situation Start day End day 1 An agreement is The first day of The last day of the period specified
made in relation the period in the agreement to the specified in the application agreement under subsection (5)
2 A notice is given The day on The last day of the period specified under subsection which the notice in the notice for the giving of the 44FA(1) is given information requesting information in relation to the application
(4) Despite subsection (3): (a) do not disregard any day more than once; and (b) the total period that is disregarded under that subsection must
not exceed 60 days.
Stopping the clock by agreement
(5) The Council, the applicant and the provider of the service (if the provider is not the applicant) may agree in writing that a specified period is to be disregarded in working out the expected period.
(6) The Council must publish, by electronic or other means, the agreement.
Council may extend time for making recommendation
(7) If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.
(8) The notice must: (a) specify when the Council must now make a recommendation
on the application; and
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(b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.
(9) The Council must give a copy of the notice to: (a) the applicant; and (b) if the applicant is not the provider of the service—the
provider.
Publication
(10) If the Council extends the consideration period under subsection (7), it must publish a notice in a national newspaper:
(a) stating that it has done so; and (b) specifying the day by which it must now make a
recommendation on the application.
Failure to comply with time limit does not affect validity
(11) Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section.
44GB Council may invite public submissions on the application
Invitation
(1) The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44F if it considers that it is appropriate and practicable to do so.
(2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in deciding what recommendation to make on the application, the Council:
(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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Council may make submissions publicly available
(4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.
Confidentiality
(5) A person may, at the time of making a submission, request that the Council:
(a) not make the whole or a part of the submission available under subsection (4); and
(b) not publish or make available the whole or a part of the submission under section 44GC;
because of the confidential commercial information contained in the submission.
(6) If the Council refuses such a request: (a) for a written submission—the Council must, if the person
who made it so requires, return the whole or the part of it to the person; and
(b) for an oral submission—the person who made it may inform the Council that the person withdraws the whole or the part of it; and
(c) if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not:
(i) make the whole or the part of the submission available under subsection (4); and
(ii) publish or make available the whole or the part of the submission under section 44GC; and
(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
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(b) if the applicant is not the provider of the service—the provider.
Timing
(3) The Council must do the things under subsections (1) and (2) on the day the designated Minister publishes his or her decision on the recommendation or as soon as practicable after that day.
Consultation
(4) Before publishing under subsection (1), the Council may give any one or more of the following persons:
(a) the applicant under section 44F; (b) if the applicant is not the provider of the service—the
provider; (c) any other person the Council considers appropriate;
a notice in writing: (d) specifying what the Council is proposing to publish; and (e) inviting the person to make a written submission to the
Council within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.
(5) The Council must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant.
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.
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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 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;
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(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:
(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;
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(c) any other person the designated Minister considers appropriate;
a notice in writing: (d) specifying what the designated Minister is proposing to
publish; and (e) inviting the person to make a written submission to the
designated Minister within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.
(4) The designated Minister must have regard to any submission so made in deciding what to publish. He or she may have regard to any other matter he or she considers relevant.
44I Duration and effect of declaration
(1) Subject to this section, a declaration begins to operate at a time specified in the declaration. The time cannot be earlier than 21 days after the declaration is published.
(2) If: (a) an application for review of a declaration is made within 21
days after the day the declaration is published; and (b) the Tribunal makes an order under section 44KA staying the
operation of the declaration; the declaration does not begin to operate until the order is no longer of effect under subsection 44KA(6) or the Tribunal makes a decision on the review to affirm the declaration, whichever is the earlier.
(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.
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.
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(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
(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:
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(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).
(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
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(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 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.
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(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.
(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).
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(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: (a) affirm the designated Minister’s decision; or (b) set aside the designated Minister’s decision and revoke the
declaration.
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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 (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.
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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:
(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.
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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.
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.
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Stopping the clock Item Column 1 Column 2 Column 3
Situation Start day End day 1 An agreement is The first day of The last day of the period specified
made in relation the period in the agreement to the specified in the application agreement under subsection (5)
2 A notice is given The day on The last day of the period specified under subsection which the notice in the notice for the giving of the 44LC(1) is given information requesting information in relation to the application
(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 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
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(b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.
(9) The Council must give a copy of the notice to: (a) the applicant; and (b) if the applicant is not the 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.
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.
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Council may make submissions publicly available
(4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.
Confidentiality
(5) A person may, at the time of making a submission, request that the Council:
(a) not make the whole or a part of the submission available under subsection (4); and
(b) not publish or make available the whole or a part of the submission under section 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.
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(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.
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.
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Note: The designated Minister must publish his or her decision: see section 44LH.
(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.
(7) A decision of the designated Minister under subsection (1) is not a legislative instrument.
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44LH Designated Minister must publish his or her decision
(1) The designated Minister must publish, by electronic or other means, his or her decision on an ineligibility recommendation and his or her reasons for the decision.
(2) The designated Minister must give a copy of the publication to the person who made the application under section 44LB.
Consultation
(3) Before publishing under subsection (1), the designated Minister may give any one or more of the following persons:
(a) the person who made the application under section 44LB; (b) any other person the designated Minister considers
appropriate; a notice in writing:
(c) specifying what the designated Minister is proposing to publish; and
(d) inviting the person to make a written submission to the designated Minister within 14 days after the day the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.
(4) The designated Minister must have regard to any submission so made in deciding what to publish. He or she may have regard to any other matter he or she considers relevant.
Subdivision D—Revocation of ineligibility decision
44LI Revocation of ineligibility decision
Council may recommend revocation if facility materially different or upon request
(1) The Council may recommend to the designated Minister that the designated Minister revoke his or her decision (the ineligibility 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.
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(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.
(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
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(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.
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).
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(4) For the purposes of the review, the Tribunal has the same powers as the designated Minister.
Council to provide assistance
(5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.
(6) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.
(7) The Tribunal must: (a) give a copy of the notice to:
(i) the person who applied for review; and (ii) the person who is, or expects to be, the provider of the
service; and (iii) any other person who has been made a party to the
proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice.
Tribunal’s decision
(8) If the designated Minister decided that a service is ineligible to be a declared service, the Tribunal may affirm, vary or set aside the decision. Note: If the Tribunal sets aside a decision of the designated Minister that a
service is ineligible to be a declared service, the designated Minister’s 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).
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Effect of Tribunal’s decision
(10) The Tribunal’s decision is taken to be a decision by the designated Minister for all purposes of this Part (except this section).
44LK Review of decision to revoke or not revoke an ineligibility decision
Application for review
(1) A person whose interests are affected by a decision of the designated Minister under subsection 44LI(3) may apply in writing to the Tribunal for a review of the decision.
(2) An application for review must be made within 21 days after publication of the designated Minister’s decision.
(3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have
regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the Tribunal has the same powers as the designated Minister.
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
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(b) publish, by electronic or other means, the notice.
Tribunal’s decision
(8) If the designated Minister decided to revoke his or her decision (the ineligibility decision) that the service is ineligible to be a declared service, the Tribunal may either:
(a) affirm the designated Minister’s decision; or (b) set aside the designated Minister’s decision to revoke the
ineligibility decision.
(9) If the designated Minister decided not to revoke his or her ineligibility decision, the Tribunal may either:
(a) affirm the designated Minister’s decision; or (b) set aside the designated Minister’s decision and revoke the
ineligibility decision.
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.
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(2) Subsection (1) does not, by implication, affect the interpretation of any other provision of this Act.
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Section 44M
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.
(4A) In deciding what recommendation it should make, the Council must disregard Chapter 5 of a National Gas Law.
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(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
(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:
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(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).
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.
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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. 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:
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(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.
(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
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(ii) to have published that decision under section 44NG; and (b) if the Council recommended that the Commonwealth
Minister extend the period for which the decision under section 44N is in force—the extension period is taken to be the extension period recommended by the Council under subsection 44NA(5).
Multiple extensions
(4) The Commonwealth Minister may extend the period for which a decision is in force under section 44N more than once.
Subdivision 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.
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Stopping the clock Item Column 1 Column 2 Column 3
Situation Start day End day 1 An agreement is The first day of The last day of the period specified
made in relation the period in the agreement to the specified in the application agreement under subsection (5)
2 A notice is given The day on The last day of the period specified under subsection which the notice in the notice for the giving of the 44MA(1) is given information requesting information in relation to the application
3 A notice is given The day on The last day of the period specified under subsection which the notice in the notice for the giving of the 44NAA(1) is given information requesting information in relation to the application
(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
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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.
(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).
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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 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
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(iii) have regard to the whole or the part of the submission in making its recommendation on the application.
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.
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.
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(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
(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.
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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 Commonwealth Minister.
(5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.
(5A) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.
(5B) The Tribunal must: (a) give a copy of the notice to:
(i) the person who applied for the review; and (ii) any other person who has been made a party to the
proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice.
(6) The Tribunal may affirm, vary or reverse the Commonwealth Minister’s decision.
(7) A decision made by the Tribunal is to be taken to be a decision of the Commonwealth Minister for all purposes of this Part (except this section).
Subdivision F—State or Territory ceasing to be a party to Competition Principles Agreement
44P State or Territory ceasing to be a party to Competition Principles Agreement
If a State or Territory that has established a regime for access to a service or proposed service ceases to be a party to the Competition Principles Agreement:
(a) a decision by the Commonwealth Minister that the regime is an effective access regime ceases to be in force; and
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(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
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:
(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.
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(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.
Legislative Instruments Act
(7) A notice under subsection (3) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
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.
(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.
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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.
Legislative Instruments Act
(4) A report under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
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. 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.
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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.
(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 (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.
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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 Column 2 Column 3
Situation Start day End day An agreement is The first day of The last day of the period specified made in relation the period in the agreement to the specified in the application agreement under subsection (4) A notice is given under subsection 44PAA(1) requesting information in relation to the application A notice is published under subsection 44PE(1) inviting public submissions in relation to the application
The day on which the notice is given
The day on which the notice is published
The last day of the period specified in the notice for the giving of the information
The day specified in the notice as the day by which submissions may be made
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(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
(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:
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(a) must have regard to any submission made on or before the day specified in the notice; and
(b) may disregard any submission made after the day specified in the notice.
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 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.
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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.
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.
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(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: (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.
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(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 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.
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(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) for a review of a decision under subsection 44PC(2)— the provider of the service; and
(iv) any other person who has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
Tribunal’s decision
(6) The Tribunal must, by writing, affirm or set aside the Commission’s decision.
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Division 2C—Register of decisions and declarations
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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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.
44T Withdrawal of notifications
(1) A notification may be withdrawn as follows (and not otherwise): (a) if the provider notified the dispute:
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(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;
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
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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 for the purposes of the Legislative Instruments Act 2003.
44W Restrictions on access determinations
(1) The Commission must not make a determination that would have any of the following effects:
(a) preventing an existing user obtaining a sufficient amount of the service to be able to meet the user’s reasonably anticipated requirements, measured at the time when the dispute was notified;
(b) preventing a person from obtaining, by the exercise of a pre-notification right, a sufficient amount of the service to be able to meet the person’s actual requirements;
(c) depriving any person of a protected contractual right; (d) resulting in the third party becoming the owner (or one of the
owners) of any part of the facility, or of extensions of the facility, without the consent of the provider;
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(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.
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.
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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; (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.
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(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.
Stopping the clock Item Column 1 Column 2 Column 3
Situation Start day End day An agreement is The first day of The last day of the period specified made in relation the period in the agreement to the arbitration specified in the under agreement subsection (4) 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
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Stopping the clock Item Column 1 Column 2 Column 3
Situation Start day End day A decision is published under subsection 44ZZCB(4) deferring consideration of the dispute while the Commission considers an access undertaking
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 decision is published
The day on which the Commission gives the notice to defer arbitrating the dispute
The day on which the Commission makes its decision on the access undertaking under subsection 44ZZA(3)
The day the Tribunal makes its decision under section 44K on the review
(3) Despite subsection (2), do not disregard any day more than once.
Stopping the clock by agreement
(4) The Commission and the parties to the access dispute may agree in writing that a specified period is to be disregarded in working out the expected period.
(5) The Commission must publish, by electronic or other means, the agreement.
Deemed final determination
(6) If the Commission does not publish under section 44ZNB a written report about a final determination within the expected period, it is taken, immediately after the end of the expected period, to have:
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(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.
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.
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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 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.
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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 (b) must act as speedily as a proper consideration of the dispute
allows, having regard to the need to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute; and
(c) may inform itself of any matter relevant to the dispute in any way it thinks appropriate.
(2) The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an access dispute, and may require that the cases be presented within those periods.
(3) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.
(4) The Commission may determine that an arbitration hearing is to be conducted by:
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(a) telephone; or (b) closed circuit television; or (c) any other means of communication.
44ZG Particular powers of Commission
(1) The Commission may do any of the following things for the purpose of arbitrating an access dispute:
(a) give a direction in the course of, or for the purposes of, an arbitration hearing;
(b) hear and determine the arbitration in the absence of a person who has been summoned or served with a notice to appear;
(c) sit at any place; (d) adjourn to any time and place; (e) refer any matter to an expert and accept the expert’s report as
evidence; (f) generally give all such directions, and do all such things, as
are necessary or expedient for the speedy hearing and determination of the access dispute.
(2) A person must not do any act or thing in relation to the arbitration of an access dispute that would be a contempt of court if the Commission were a court of record.
Penalty: Imprisonment for 6 months.
(3) Subsection (1) has effect subject to any other provision of this Part and subject to the regulations.
(4) The Commission may give an oral or written order to a person not to divulge or communicate to anyone else specified information that was given to the person in the course of an arbitration unless the person has the Commission’s permission.
(5) A person who contravenes an order under subsection (4) is guilty of an offence, punishable on conviction by imprisonment for a term not exceeding 6 months.
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44ZH Power to take evidence on oath or affirmation
(1) The Commission may take evidence on oath or affirmation and for that purpose a member of the Commission may administer an oath or affirmation.
(2) The member of the Commission who is presiding may summon a person to appear before the Commission to give evidence and to produce such documents (if any) as are referred to in the summons.
(3) The powers in this section may be exercised only for the purposes of arbitrating an access dispute.
44ZI Failing to attend as a witness
A person who is served, as prescribed, with a summons to appear as a witness before the Commission must not, without reasonable excuse:
(a) fail to attend as required by the summons; or (b) fail to appear and report himself or herself from day to day
unless excused, or released from further attendance, by a member of the Commission.
Penalty: Imprisonment for 6 months.
44ZJ Failing to answer questions etc.
(1) A person appearing as a witness before the Commission must not, without reasonable excuse:
(a) refuse or fail to be sworn or to make an affirmation; or (b) refuse or fail to answer a question that the person is required
to answer by the Commission; or (c) refuse or fail to produce a document that he or she was
required to produce by a summons under this Part served on him or her as prescribed.
Penalty: Imprisonment for 6 months.
(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
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individual to a penalty. This subsection does not limit what is a reasonable excuse for the purposes of subsection (1).
44ZK Intimidation etc.
A person must not: (a) threaten, intimidate or coerce another person; or (b) cause or procure damage, loss or disadvantage to another
person; because that other person:
(c) proposes to produce, or has produced, documents to the Commission; or
(d) proposes to appear or has appeared as a witness before the Commission.
Penalty: Imprisonment for 12 months.
44ZL Party may request Commission to treat material as confidential
(1) A party to an arbitration hearing may: (a) inform the Commission that, in the party’s opinion, a
specified part of a document contains confidential commercial information; and
(b) request the Commission not to give a copy of that part to another party.
(2) On receiving a request, the Commission must: (a) inform the other party or parties that the request has been
made and of the general nature of the matters to which the relevant part of the document relates; and
(b) ask the other party or parties whether there is any objection to the Commission complying with the request.
(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
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(c) any further submissions that any party has made in relation to the request;
the Commission may decide not to give to the other party or parties a copy of so much of the document as contains confidential commercial information that the Commission thinks should not be so given.
44ZM Sections 18 and 19 do not apply to the Commission in an arbitration
Sections 18 and 19 do not apply to the Commission, as constituted for an arbitration.
44ZN Parties to pay costs of an arbitration
The regulations may provide for the Commission to: (a) charge the parties to an arbitration for its costs in conducting
the arbitration; and (b) apportion the charge between the parties.
44ZNA Joint arbitration hearings
Joint arbitration hearing
(1) If: (a) the Commission is arbitrating 2 or more access disputes at a
particular time; and (b) one or more matters are common to those disputes;
the Chairperson may, by notice in writing, decide that the Commission must hold a joint arbitration hearing in respect of such 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
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(b) inviting the party to make a written submission on the proposal to the Chairperson within 14 days after the notice is given.
(4) The Chairperson must have regard to any submission so made in deciding whether to do so. He or she may have regard to any other matter he or she considers relevant.
Directions to presiding member
(5) The Chairperson may, for the purposes of the conduct of the joint arbitration hearing, give written directions to the member of the Commission presiding at the hearing.
Constitution and procedure of Commission
(6) Sections 44Z to 44ZN apply to the joint arbitration hearing in a corresponding way to the way in which they apply to a particular arbitration. Note: For example, the Chairperson would be required to nominate in
writing 1 or more members of the Commission to constitute the Commission for the purposes of the joint arbitration hearing.
Record of proceedings etc.
(7) The Commission as constituted for the purposes of the joint arbitration hearing may have regard to any record of the proceedings of the arbitration of any nominated dispute.
(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.
Legislative Instruments Act
(9) The following are not legislative instruments for the purposes of the Legislative Instruments Act 2003:
(a) a notice made under subsection (1); (b) a direction given under subsection (5).
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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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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.
Legislative Instruments Act
(8) A report prepared under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Subdivision E—Effect of determinations
44ZO Operation of final determinations
(1) If none of the parties to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s final determination, the determination has effect 21 days after the determination is made.
(2) If a party to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s final determination, the determination is of no effect until the Tribunal makes its determination on the review.
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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; 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).
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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.
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.
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(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.
(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.
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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.
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
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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
(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.
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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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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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(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 (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
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(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
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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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;
(e) any other matters that the Commission thinks are relevant.
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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.
(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:
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(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
(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.
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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.
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.
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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.
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
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(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.
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.
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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.
(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
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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.
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.
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(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.
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
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(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.
(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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(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.
Note 3: The Commission must publish its decision: see section 44ZZBE.
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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 Column 2 Column 3
Situation Start day End day An agreement is The first day of The last day of the period specified made in relation the period in the agreement to the specified in the application agreement under subsection (4) 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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Stopping the clock Item Column 1 Column 2 Column 3
Situation Start day End day 3 A notice is The day on The day specified in the notice as
published under which the notice the day by which submissions may subsection is published be made 44ZZBD(1) inviting public submissions in relation to the application
4 A decision is The day on The day on which the final published under which the determination in relation to the subsection decision is arbitration of the access dispute is 44ZZCB(4) published made deferring consideration of whether to accept the access undertaking, in whole or in part, while the Commission arbitrates an access dispute
(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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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.
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
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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.
(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
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(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;
(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.
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(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).
(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
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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
(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; 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.
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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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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
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: (a) the Commission defers considering whether to accept the
access undertaking; and
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(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.
Legislative Instruments Act
(8) A notice made under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
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
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(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.
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;
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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: (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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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.
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
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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.
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.
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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 (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).
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(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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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.
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.
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Note: Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal.
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 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:
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(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.
(2) In assessing compensation payable in a proceeding begun under this section, the following must be taken into account if they arise out of the same event or transaction:
(a) any damages or compensation recovered, or other remedy, in a proceeding begun otherwise than under this section;
(b) compensation awarded under a determination.
(3) In this section, acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
44ZZNA Operation of Parts IV and VII not affected by this Part
This Part does not affect the operation of Parts IV and VII.
44ZZO Conduct by directors, servants or agents
(1) If, in a proceeding under this Part in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate in relation to particular conduct, it is sufficient to show:
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(a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, servant or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate: (a) by a director, servant or agent of the body corporate within
the scope of the person’s actual or apparent authority; or (b) by any other person at the direction or with the consent or
agreement (whether express or implied) of a director, servant or agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;
is taken for the purposes of this Part to have been engaged in also by the body corporate, unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
(3) If, in a proceeding under this Part in respect of conduct engaged in by an individual, it is necessary to establish the state of mind of the individual, it is sufficient to show:
(a) that the conduct was engaged in by a servant or agent of the individual within the scope of his or her actual or apparent authority; and
(b) that the servant or agent had the relevant state of mind.
(4) Conduct engaged in on behalf of an individual: (a) by a servant or agent of the individual within the scope of the
actual or apparent authority of the servant or agent; or (b) by any other person at the direction or with the consent or
agreement (whether express or implied) of a servant or agent of the individual, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent;
is taken, for the purposes of this Part, to have been engaged in also by that individual, unless that individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.
(5) If: (a) an individual is convicted of an offence; and
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(b) the individual would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
the individual is not liable to be punished by imprisonment for that offence.
(6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
44ZZOAAA Information to be given to Tribunal
Tribunal to notify decision maker
(1) If an application for review of a decision (however described) is made under this Part, the Tribunal must notify the decision maker of the application.
(2) If the application is made under section 44K, 44L, 44LJ, 44LK or 44O, the Tribunal must also notify the Council of the application.
Decision maker to give material to Tribunal
(3) The decision maker must give the following information to the Tribunal within the period specified by the Tribunal:
(a) if the decision is taken to have been made because of the operation of subsection 44H(9), 44J(7), 44LG(6), 44LI(7), 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
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Commission could not have regard because of subparagraph 44PE(6)(c)(iii) or 44ZZBD(6)(c)(iii);
(c) otherwise—all of the information that the decision maker took into account in connection with the making of the decision to which the review relates.
Tribunal may request further information
(4) The Tribunal may request such information that the Tribunal considers reasonable and appropriate for the purposes of making its decision on a review under this Part.
(5) A request under subsection (4) must be made by written notice given to a person specifying the information requested and the period within which the information must be given to the Tribunal.
(6) The Tribunal must: (a) give a copy of the notice to:
(i) the person who applied for review; and (ii) if the application is made under section 44K, 44L, 44LJ,
44LK or 44O—the Council; and (iii) if the application is made under section 44PG, 44PH,
44ZP, 44ZX or 44ZZBF—the Commission; and (iv) any other person who has been made a party to the
proceedings for review by the Tribunal; and (b) publish, by electronic or other means, the notice.
(7) Without limiting the information that may be given in accordance with the notice, information may include information that could not 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:
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decision maker, in relation to an application for review under this Part, means:
(a) if the application was made under section 44K, 44L, 44LJ or 44LK—the designated Minister; or
(b) if the application was made under section 44O—the Commonwealth Minister; or
(c) if the application was made under section 44PG, 44PH, 44ZP, 44ZX, or 44ZZBF—the Commission.
44ZZOAA Tribunal only to consider particular material
For the purposes of a review under this Part, the Tribunal: (a) subject to paragraph (b), must have regard to:
(i) information that was given to the Tribunal under subsection 44ZZOAAA(3); and
(ii) any information given to the Tribunal in accordance with a notice given under subsection 44ZZOAAA(5); and
(iii) any thing done as mentioned in subsection 44K(6), 44L(5), 44LJ(5), 44LK(5), 44O(5), 44PG(5), 44PH(5), 44ZP(5), 44ZX(5) or 44ZZBF(5); and
(iv) any information or report given to the Tribunal in relation to the review under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 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.
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(2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application for review is received, unless the consideration period is extended under subsection (7).
Stopping the clock
(3) In working out the expected period in relation to an application for review, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:
(a) starting on the day referred to in column 2 of the item; and (b) ending on the day referred to in column 3 of the item.
Stopping the clock Item Column 1 Column 2 Column 3
Situation Start day End day An agreement is The first day of The last day of the period specified made in relation the period in the agreement to the specified in the application agreement under subsection (5) 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
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Stopping the clock Item Column 1 Column 2 Column 3
Situation Start day End day 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 The last day of the period specified which the notice in the notice for the giving of the is given information or the report
(4) Despite subsection (3), do not disregard any day more than once.
Stopping the clock by agreement
(5) The following may agree in writing that a specified period is to be disregarded in working out the expected period:
(a) the Tribunal; (b) the person who applied for review; (c) if the application is made under section 44K, 44L, 44LJ,
44LK or 44O—the Council; (d) if the application is made under section 44PG, 44PH, 44ZP,
44ZX or 44ZZBF—the Commission; (e) any other person who has been made a party to the
proceedings for review by the Tribunal.
(6) The Tribunal must publish, by electronic or other means, the agreement.
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Extension of time for making decision
(7) If the Tribunal is unable to make a decision on an application for review within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.
(8) The notice must: (a) specify when the Tribunal must now make its decision on the
application for review; and (b) include a statement explaining why the Tribunal has been
unable to make a decision on the review within the consideration period.
(9) The Tribunal must give a copy of the notice to: (a) the person who applied for review; and (b) if the application for review is made under section 44K, 44L,
44LJ, 44LK or 44O—the Council; and (c) if the application for review is made under section 44PG,
44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and (d) any other person who has been made a party to the
proceedings for review by the Tribunal.
Publication
(10) If the Tribunal extends the consideration period under subsection (7), it must publish a notice in a national newspaper:
(a) stating that it has done so; and (b) specifying the day by which it must now make a decision on
the application for review.
Failure to comply with time limit does not affect validity
(11) Failure by the Tribunal to comply with a time limit set in this section does not affect the validity of a decision made by the Tribunal under this Part.
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:
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(a) the constitution of the Tribunal; (b) the arrangement of the business of the Tribunal; (c) the disclosure of interests by members of the Tribunal; (d) determining questions before the Tribunal and questions that
arise during a review; (e) procedure and evidence, including the appointment of
persons to assist the Tribunal by giving evidence (whether personally or by means of a written report).
(2) Regulations made for the purposes of subsection (1) do not apply in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law. Note: See section 44ZZR.
44ZZQ Regulations about fees for inspection etc. of registers
The regulations may make provision about the inspection of registers maintained under this Part (including provision about fees).
44ZZR Procedure of the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law
(1) Sections 103, 105, 106, 107, 108 and 110 of this Act apply to the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law.
(2) The regulations may make provision about the following matters in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law:
(a) the constitution of the Tribunal; (b) the arrangement of the business of the Tribunal; (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.
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(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 corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12-month period, other than:
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(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 (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.
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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:
(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.
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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 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
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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.
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
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(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.
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
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(b) for the purposes of subparagraph (3)(a)(i)—the production happens, or the likely production is to happen, in particular circumstances or on particular conditions; and
(c) for the purposes of subparagraph (3)(a)(ii)—the capacity exists, or the likely capacity is to exist, in particular circumstances or on particular conditions.
Considering related provisions—purpose/effect condition
(8) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose, or to have or be likely to have the effect, mentioned in subsection (2) if the provision, when considered together with any or all of the following provisions:
(a) the other provisions of the contract, arrangement or understanding;
(b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first-mentioned contract, arrangement or understanding;
has that purpose, or has or is likely to have that effect.
Considering related provisions—purpose condition
(9) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose mentioned in a paragraph of subsection (3) if the provision, when considered together with any or all of the following provisions:
(a) the other provisions of the contract, arrangement or understanding;
(b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least 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
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purpose, or not to have or to be likely to have the effect, mentioned in subsection (2) by reason only of:
(a) the form of the provision; or (b) the form of the contract, arrangement or understanding; or (c) any description given to the provision, or to the contract,
arrangement or understanding, by the parties.
Purpose of a provision
(11) For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose mentioned in a paragraph of subsection (3) by reason only of:
(a) the form of the provision; or (b) the form of the contract, arrangement or understanding; or (c) any description given to the provision, or to the contract,
arrangement or understanding, by the parties.
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.
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Penalty
(3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:
(a) $10,000,000; (b) if the court can determine the total value of the benefits that:
(i) have been obtained by one or more persons; and (ii) are reasonably attributable to the commission of the
offence; 3 times that total value;
(c) if the court cannot determine the total value of those benefits—10% of the corporation’s annual turnover during the 12-month period ending at the end of the month in which the corporation committed, or began committing, the offence.
Indictable offence
(4) An offence against subsection (1) is an indictable offence.
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.
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:
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(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.
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
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(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).
(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).
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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.
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 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
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(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.
(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:
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(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.
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.
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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. 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
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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: (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.
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(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).
(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
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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).
(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.
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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:
(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
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(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 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 corporate related to such a corporation, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the
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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 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
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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 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:
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(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 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
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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;
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.
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(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
(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).
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(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:
(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;
(b) the person who required or requires the covenant to be given was or is a religious, charitable or public benevolent institution or a trustee for such an institution and the covenant was or is required to be given for or in accordance with the purposes or objects of that institution; or
(c) the covenant was or is required to be given in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
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
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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 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,
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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 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: (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 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
(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.
(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.
(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
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(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 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
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(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 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.
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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);
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.
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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:
(i) the terms and conditions of the work are prescribed, wholly or partly, by a workplace instrument or an order of an industrial body; or
(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or
(b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by a workplace instrument or by an order of an industrial body; or
(c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work.
For this purpose, industrial body and workplace instrument have the same meanings as in the Fair Work Act 2009.
Meaning of industrial action—further clarification
(5) For the purposes of subsection (3): (a) conduct is capable of constituting industrial action even if the
conduct relates to part only of the duties that persons are required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.
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Subsections (1), (2) and (3) do not protect people not covered by them
(6) In applying subsection 45D(1), 45DA(1) or 45DB(1) to a person who is not covered by subsection (1), (2) or (3) in respect of certain conduct, disregard the fact that other persons may be covered by one of those subsections in respect of the same conduct.
Defences to contravention of subsection 45DB(1)
(7) In a proceeding under this Act in relation to a contravention of subsection 45DB(1), it is a defence if the defendant proves:
(a) that a notice in respect of the conduct concerned has been duly given to the Commission under subsection 93(1) and the Commission has not given a notice in respect of the conduct under subsection 93(3) or (3A); or
(b) that the dominant purpose for which the defendant engaged in the conduct concerned was to preserve or further a business carried on by him or her.
Each person to prove defence
(8) If: (a) a person engages in conduct in concert with another person;
and (b) the other person proves a matter specified in paragraph (7)(a)
or (b) in respect of that conduct; in applying subsection 45DB(1) to the first person, ignore the fact that the other person has proved that matter. Note: Section 415 of the Fair Work Act 2009 limits the right to bring actions
under this Act in respect of industrial action that is protected action for the purposes of that section.
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
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supply goods or services to another person (the second person); or
(b) an acquisition situation—in this situation, a person (the first person) has been accustomed, or is under an obligation, to acquire goods or services from another person (the second person).
Despite paragraphs (a) and (b), this section does not apply unless the first or second person is a corporation or both of them are corporations. Note : For the meanings of accustomed to supply and accustomed to
acquire, see subsections (5) and (7).
Prohibition in a supply situation
(2) In a supply situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:
(a) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or
(b) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person, except subject to a condition:
(i) that is not a condition to which the supply of such goods or services by the first person to the second person has 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.
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
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(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 (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).
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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:
(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.
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(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
(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
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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.
(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.
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(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
(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.
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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.
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):
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(a) the reference in paragraph (2)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and
(b) the reference in paragraphs (2)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons.
(3) If: (a) a body corporate that is related to a corporation has, or 2 or
more bodies corporate each of which is related to the one corporation together have, a substantial degree of market power in a trans-Tasman market; or
(b) a corporation and a body corporate that is, or a corporation and 2 or more bodies corporate each of which is, related to the corporation, together have a substantial degree of market power in a trans-Tasman market;
the corporation is taken, for the purposes of this section, to have a substantial degree of market power in the trans-Tasman market.
(4) In determining for the purposes of this section the degree of market power that a body corporate or bodies corporate has or have in a trans-Tasman market, the Federal Court is to have regard to the extent to which the conduct of the body corporate or of any of those bodies corporate, in the trans-Tasman market is constrained by the conduct of:
(a) competitors, or potential competitors, of the body corporate, or of any of those bodies corporate, in the trans-Tasman market; or
(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.
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(7) Without limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a corporation may be taken to have taken advantage of its market power for a purpose referred to in subsection (2) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the corporation or of any other person or from other relevant circumstances.
(8) It is the intention of the Parliament that this section, and the provisions of Parts VI and XII so far as they relate to a contravention of this section, should apply to New Zealand and New Zealand Crown corporations to the same extent, and in the same way, as they respectively apply under section 2A to the Commonwealth and authorities of the Commonwealth.
(9) Subsection (8) has effect despite section 9 of the Foreign States Immunities Act 1985.
46B No immunity from jurisdiction in relation to certain New Zealand laws
(1) It is hereby declared, for the avoidance of doubt, that the Commonwealth, the States, the Australian Capital Territory and the Northern Territory, and their authorities, are not immune, and may 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
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(c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation;
on the condition that the person to whom the corporation supplies, or offers or proposes to supply, the goods or services or, if that person is a body corporate, a body corporate related to that body corporate:
(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 corporation or from a competitor of a body corporate related to the corporation;
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(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:
(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
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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 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:
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(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:
(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:
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(i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places other than particular places or classes of places; 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:
(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 by, or by a trustee for, a religious,
charitable or public benevolent institution, being conduct engaged in for or in accordance with the purposes or objects of that institution; or
(b) conduct engaged in in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
(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.
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(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;
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
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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 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:
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(a) the other provisions of that arrangement or proposed arrangement;
(b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the corporation or a body corporate related to the corporation is or would be a party;
together have or are likely to have that effect.
50 Prohibition of acquisitions that would result in a substantial lessening of competition
(1) A corporation must not directly or indirectly: (a) acquire shares in the capital of a body corporate; or (b) acquire any assets of a person;
if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a 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 a 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;
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(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
(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 substantial 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.
(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:
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(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).
(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
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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:
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;
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(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
(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;
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(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 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
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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 standards of dimension, design, quality or performance prepared or approved by Standards Australia International Limited 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
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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 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
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(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.
(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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Section 51ACA
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.
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
(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.
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(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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Section 51AD
Division 2—Contravention of industry codes
51AD Contravention of industry codes
A corporation must not, in trade or commerce, contravene an applicable industry code.
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Section 51ADA
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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Section 51ADB
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
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the non-parties in relation to the contravening conduct.
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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 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
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(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);
(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;
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(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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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.
51ADF Compliance with notices
A corporation that is given a notice under section 51ADD must comply with it within:
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(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
51AE Regulations relating to industry codes
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).
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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75B Interpretation [see Note 2]
(1) A reference in this Part to a person involved in a contravention of a provision of Part IV, IVA, IVB, V or VC, or of section 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);
(iii) section 95AZN; 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
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(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 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
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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
(c) for each act or omission to which this section applies that relates to section 95AZN—$33,000; 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:
(a) for each act or omission to which this section applies that relates to section 95AZN—$6,600; 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
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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 (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.
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(3) In paragraphs (2)(b) and (c), another person does not include a person who was:
(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 pecuniary penalty order has been made against the person in respect of the contravention.
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(5) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of Part IV or section 95AZN (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.
However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.
(6) In this section:
offence means an offence against a law of the Commonwealth, a State or a Territory.
76C Defence to proceedings relating to exclusionary provisions
Defence
(1) In proceedings against a person in relation to a contravention of subparagraph 45(2)(a)(i) or (b)(i) in relation to an exclusionary provision, it is a defence if the person establishes that the provision:
(a) is for the purposes of a joint venture; and (b) does not have the purpose, and does not have and is not
likely to have the effect, of substantially lessening competition.
Application of subsections 45(3) and (4)
(2) Subsections 45(3) and (4) apply for the purposes of subsection (1) in the same way as they apply for the purposes of section 45.
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Definitions
(3) In this section:
contravention of subparagraph 45(2)(a)(i) or (b)(i) includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of subparagraph 45(2)(a)(i) or (b)(i).
proceedings means proceedings instituted under: (a) this Part or section 163A; or (b) section 21 or 23 of the Federal Court of Australia Act 1976;
or (c) section 39B of the Judiciary Act 1903.
77 Civil action for recovery of pecuniary penalties
(1) The Commission may institute a proceeding in the Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 76.
(2) A proceeding under subsection (1) may be commenced within 6 years after the contravention.
77A Indemnification of officers
(1) A body corporate (the first body), or a body corporate related to the first body, must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer of the first body:
(a) a civil liability; (b) legal costs incurred in defending or resisting proceedings in
which the person is found to have such a liability.
Penalty: 25 penalty units.
(2) For the purposes of subsection (1), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings.
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Definitions
(3) In this section:
civil liability means a liability to pay a pecuniary penalty under section 76 for a contravention of a provision of Part IV.
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 or V [see Note 2]
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; (c) has aided, abetted, counselled or procured a person to
contravene such a provision;
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(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.
(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.
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(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 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
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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: (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.
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(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
(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 a provision of: (i) Part IV; or
(ii) Division 2 or 5 of Part IVB; or (b) attempting to contravene such a provision; or (c) aiding, abetting, counselling or procuring a person to
contravene such a provision; or
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(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 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.
(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.
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(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;
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.
(5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;
(b) whether or not the person has previously refused or failed to do that act or thing; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.
(6) Where the Minister or the Commission makes an application to the Court for the grant of an injunction under this section, the Court shall not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.
(6A) Subsection (6) does not apply to an application by the Minister for an injunction relating to Part IV.
(7) Where: (a) in a case to which subsection (6) does not apply the Court
would, but for this subsection, require a person to give an undertaking as to damages or costs; and
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(b) the Minister gives the undertaking; the Court shall accept the undertaking by the Minister and shall not require a further undertaking from any other person.
(8) Subsection (7) does not apply in relation to an application for an injunction relating to Part IV.
(9) If the Director of Public Prosecutions makes an application to the Court for the grant of an injunction under this section in relation to:
(a) a person’s contravention, or proposed contravention, of section 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.
80AB Stay of injunctions
(1) The Court may stay the operation of an injunction granted under section 80 if:
(a) the injunction is in respect of conduct that constitutes or would constitute a contravention of subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA or an associated contravention; and
(b) there is a proceeding in respect of a dispute relating to the conduct pending before a court, tribunal or authority of a State or Territory under a prescribed provision of a law of the State or Territory; and
(c) the conduct relates to the supply of goods or services to, or the acquisition of goods or services from, a person who is or becomes a party to the proceeding referred to in paragraph (b); and
(d) any of the following has applied for the stay: (i) a Minister of the Commonwealth;
(ii) if subparagraph (b)(ii) applies—a Minister of the State or Territory concerned;
(iii) a party to the proceeding for the injunction; and (e) the Court considers that granting the stay:
(i) would be likely to facilitate the settlement of the dispute by conciliation; and
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(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.
(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
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(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: (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,
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are vested in the acquirer or, if the acquirer is a body corporate, in any body corporate that is related to the acquirer;
the Court may, on the application of the Commission, declare that the acquisition, in so far as it relates to the shares or assets referred to in paragraph (c), is void as from the day on which it took place and, where the Court makes such a declaration:
(d) the shares or the assets to which the declaration relates shall be deemed not to have been disposed of by the vendor; and
(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
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declaration by consent of all the parties to the proceedings, whether or not the Court has made the findings referred to in subsections (1) and (1A).
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:
(a) the acquirer was granted, under Division 3 of Part VII, both a clearance and an authorisation for the acquisition; and
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(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, 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.
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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 [see Note 2]
(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVA, IVB or V or section 51AC 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 [see Note 2]
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 has been found to have contravened, or to have been involved in a contravention of, a provision of Part IV, IVA, IVB, V or VC 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.
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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, 44ZZRK, 46 or 46A or Part IVB 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.
(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 or Part IVB applies;
it is necessary to establish the state of mind of the person, it is sufficient to show that:
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(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
(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:
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(a) engaged in conduct in contravention of a provision of Part IV; 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 [see Note 2]
(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 or has been instituted in relation to subsection 2(1) of the Australian Consumer Law (as applied under Division 1 of Part XI).
(1A) Jurisdiction is conferred on the Federal Magistrates Court in any matter arising under section 46 or Part IVB 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 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.
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(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 Magistrates Court under subsection (1A); and
(b) the jurisdiction of the several courts of the States and Territories under subsection (2); and
(ba) the jurisdiction of the Supreme Courts of the States under subsection (3A); and
(bb) the jurisdiction of the Supreme Courts of the Territories under subsection (3B); and
(c) the jurisdiction of the High Court under section 75 of the Constitution.
86AA Limit on jurisdiction of Federal Magistrates Court
If proceedings under section 82 are instituted in, or transferred to, the Federal Magistrates Court, the Federal Magistrates 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 Magistrates Court,
see section 32AB of the Federal Court of Australia Act 1976. For transfers from the Federal Magistrates Court to the Federal Court, see section 39 of the Federal Magistrates 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
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(b) a matter for determination in the proceeding arose under Part IVB;
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.
(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) a community service order; and (b) a probation order for a period of no longer than 3 years; and
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(c) an order requiring the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; and
(d) an order requiring the person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.
(3) This section does not limit the Court’s powers under any other provision of this Act.
(4) In this section:
community service order, in relation to a person who has engaged in contravening conduct, means an order directing the person to perform a service that:
(a) is specified in the order; and (b) relates to the conduct;
for the benefit of the community or a section of the community. Example: The following are examples of community service orders:
(a) an order requiring a person who has made false representations to make available a training video which explains advertising obligations under this Act; and
(b) an order requiring a person who has engaged in misleading or deceptive conduct in relation to a product to carry out a community awareness program to address the needs of consumers when purchasing the product.
contravening conduct means conduct that: (a) contravenes Part IV or IVB or section 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
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the contravening conduct, similar conduct or related conduct; and
(b) an order directing the person to establish an education and training program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and
(c) an order directing the person to revise the internal operations of the person’s business which lead to the person engaging in the contravening conduct.
86D Punitive orders—adverse publicity
(1) The Court may, on application by the Commission, make an adverse publicity order in relation to a person who:
(a) has been ordered to pay a pecuniary penalty under section 76; or
(b) is guilty of an offence against section 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.
(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.
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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.
(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 (b) to produce a document or any other thing; or (c) to do any other act;
on the ground that the answer or information, production of the document or other thing, or doing that other act, as the case may be, might tend to expose the person to a penalty by way of an order under section 86E.
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Definition
(4) In this section:
penalty includes forfeiture.
87 Other orders [see Note 2]
(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, IVA, IVB, V or VC, or of the Australian Consumer Law, 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
(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) or Division 2 of Part IVB; 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;
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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) or Division 2 of Part IVB; and
(b) have, before the application is made, consented in writing to the making of the application.
(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, IVA, IVB, V or VC, or of a provision of the Australian Consumer Law, 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
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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;
(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.
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(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 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
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(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.
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.
87C Enforcement of undertakings—Secretary to the Department
(1) The Secretary to 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.
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(2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Secretary to the Department.
(3) If the Secretary to the Department considers that the person who gave the undertaking has breached any of its terms, the Secretary may apply to the Court for an order under subsection (4).
(4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:
(a) an order directing the person to comply with that term of the undertaking;
(b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d) any other order that the Court considers appropriate.
87CA Intervention by Commission
(1) The Commission may, with the leave of the Court and subject to any conditions imposed by the Court, intervene in any proceeding instituted under this Act.
(2) If the Commission intervenes in a proceeding, the Commission is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.
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Section 87CB
Part VIA—Proportionate liability for misleading and deceptive conduct
87CB Application of Part
(1) This Part applies to a claim (an apportionable claim) if the claim is a claim for damages made under section 236 of the Australian Consumer Law for:
(a) economic loss; or (b) damage to property;
caused by conduct that was done in a contravention of section 18 of the Australian Consumer Law.
(2) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind).
(3) In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.
(4) For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1).
(5) For the purposes of this Part, it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died.
87CC Certain concurrent wrongdoers not to have benefit of apportionment
(1) Nothing in this Part operates to exclude the liability of a concurrent wrongdoer (an excluded concurrent wrongdoer) in proceedings involving an apportionable claim if:
(a) the concurrent wrongdoer intended to cause the economic loss or damage to property that is the subject of the claim; or
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(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
(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.
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(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.
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.
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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: (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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Section 87D
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.
maximum amount of damages for non-economic loss has the meaning given by section 87M.
minor means a person under 18.
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Section 87E
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.
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
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(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
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.
Have 3 years elapsed since the date of discoverability?
No Yes
Did the death or personal injury result from smoking or other use of tobacco
products?
Yes No
Has the long-stop period expired?
No Yes
Personal injury damages may be awarded
Personal injury damages cannot be awarded
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Section 87G
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.
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.
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Section 87H
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 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.
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Section 87J
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:
(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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Section 87L
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:
Current September CPI numberPrevious maximum amount × Previous September CPI number
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.
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Section 87N
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 reference base 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 reference base.
(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.
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
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Section 87R
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% 12 26% 8% 13 27% 10% 14 28% 14% 15 29% 18% 16 30% 23% 17 31% 26% 18 32% 30%
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Section 87S
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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Section 87U
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
(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.
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Section 87V
(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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Section 87W
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: (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;
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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 (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
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weekly earnings was ascertainable, the court must not award as personal injury damages for the services:
(a) if the services would have been provided for at least 40 hours per week—an amount per week that exceeds average weekly earnings for that quarter; and
(b) if the services would have been provided for less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.
(4) If the plaintiff: (a) would have provided the services during a quarter for which,
at the time the award was made, the amount of average weekly earnings was not ascertainable; or
(b) would have provided the services after the time the award was made;
the court must not award as personal injury damages for the services:
(c) if the services were provided for at least 40 hours per week— an amount per week that exceeds average weekly earnings for the quarter that, at the time the award was made, was the most recent quarter for which the amount of average weekly earnings was ascertainable; or
(d) if the services were provided for less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.
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Division 6—Other limits on personal injury damages
87Y Damages for future economic loss—discount rate
(1) If an award of personal injury damages in a proceeding to which this Part applies is to include any component, assessed as a lump sum, for future economic loss of any kind, the present value of that future economic loss is to be determined by applying:
(a) a discount rate of the percentage prescribed by the regulations; or
(b) if no percentage is prescribed—a discount rate of 5%.
(2) A regulation made for the purposes of paragraph (1)(a) does not take effect before the end of the period of 6 months starting:
(a) if the regulation is laid before each House of the Parliament under paragraph 48(1)(c) of the Acts Interpretation Act 1901 on the same day—starting on that day; or
(b) if it is laid before each House of the Parliament under that paragraph on different days—starting 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:
Superannuation percentage × Damages for earnings loss
where:
damages for earnings loss are the personal injury damages payable (in accordance with this Part) for:
(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
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(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:
(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.
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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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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)
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, arrangement or understanding would be, or might be, a cartel provision; or
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(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 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:
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(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.
(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
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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.
(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, 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
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(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.
(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 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.
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(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
(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.
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(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.
(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
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(d) applications for, or the Commission’s proposals for, the revocation of authorizations and the substitution of other authorizations;
including applications that have been withdrawn or proposals that have been abandoned.
(4) Subject to this section, the register kept under subsection (3) shall include:
(a) any document furnished to the Commission in relation to an application or proposal referred to in subsection (3);
(aa) any draft determination, and any summary of reasons, by the Commission that is furnished to a person under section 90A, or under that section as applied by section 91C;
(ab) any record of a conference made in accordance with subsection 90A(8), or with that subsection as applied by section 91C, and any certificate in relation to a conference given under subsection 90A(9), or under that subsection as so applied;
(b) particulars of any oral submission made to the Commission in relation to such an application or proposal; and
(c) the determination of the Commission on such an application or proposal and the statement of the reasons given by the Commission for that determination.
(5) Where a person furnishes a document to the Commission in relation to an application or proposal referred to in subsection (3) or makes an oral submission to the Commission in relation to such an application or proposal, he or she may, at the time when the document is furnished or the submission is made, request that the document or a part of the document, or that particulars of the submission or of part of the submission, be excluded from the register kept under subsection (3) by reason of the confidential nature of any of the matters contained in the document or submission.
(5A) Where such a request is made: (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;
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(ii) the cash consideration offered for the acquisition of shares in the capital of a body corporate or assets of a person; or
(iii) the current costs of manufacturing, producing or marketing goods or services;
the Commission shall exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from the register kept under subsection (3); and
(b) in any other case—the Commission may, if it is satisfied that it is desirable to do so by reason of the confidential nature of the matters contained in the document or the part of the document, or in the submission or the part of the submission, exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from that register.
(5B) If the Commission refuses a request to exclude a document or a part of a document from the register kept under subsection (3), the Commission shall, if the person who furnished the document to the Commission so requires, return the document or part of the document to him or her and, in that case, paragraph (4)(a) does not apply in relation to the document or part of the document.
(5C) If the Commission refuses a request to exclude particulars of an oral submission or of part of an oral submission from the register kept under subsection (3), the person who made the submission may inform the Commission that he or she withdraws the submission or that part of the submission and, in that case, paragraph (4)(b) does not apply in relation to the submission or that part of the submission, as the case may be.
(5D) Where the Commission is satisfied that it is desirable to do so for any reason other than the confidential nature of matters contained 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
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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.
(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:
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(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.
(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.
(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
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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 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
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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 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
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(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.
(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.
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(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.
(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
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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; 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):
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(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 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.
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(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;
(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 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.
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(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.
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).
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(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 Schedule to the National Electricity (South Australia) Act 1996 of South Australia; or
(b) those Rules as they apply as a law of another State; or (c) those Rules as they apply as a law of a Territory; or (d) those Rules as they apply as a law of the Commonwealth.
91 Grant and variation of authorisations
(1) An authorization may be expressed to be in force for a period specified in the authorization and, if so expressed, remains in force for that period only.
(1A) An authorisation, other than an authorisation deemed to have been granted under subsection 90(10) or (11), comes into force on the day specified for the purpose in the authorisation, not being a day earlier than, and an authorisation deemed to have been granted under subsection 90(10) or (11) comes into force on:
(a) where paragraph (b) or (c) does not apply—the end of the period in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the authorisation;
(b) if such an application is made to the Tribunal and the application is not withdrawn—the day on which the Tribunal makes a determination on the review;
(c) if such an application is made to the Tribunal and the application is withdrawn—the day on which the application is withdrawn.
(1B) A minor variation of an authorization comes into force on a day specified by the Commission in the determination making the variation, not being a day earlier than:
(a) if neither paragraph (b) nor (c) applies—the end of the period in which an application may be made to the Tribunal for a review of the determination of the Commission in respect of the application for the minor variation; or
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(b) if such an application is made to the Tribunal and the application is not withdrawn—the day on which the Tribunal makes a determination on the review; or
(c) if such an application is made to the Tribunal and the application is withdrawn—the day on which the application is withdrawn.
(1C) If an authorization (the prior authorization) is revoked and another authorization is made in substitution for it, that other authorization comes into force on the day specified for the purpose in that other authorization, not being a day earlier than:
(a) if neither paragraph (b) nor (c) applies—the end of the period in which an application may be made to the Tribunal for a review of an application, or the Commission’s proposal, for the revocation of the prior authorization and the substitution of that other authorization; or
(b) if such an application is made to the Tribunal and the application is not withdrawn—the day on which the Tribunal makes a determination on the review; or
(c) if such an application is made to the Tribunal and the application is withdrawn—the day on which the application is withdrawn.
(2) If the Commission considers that it is appropriate to do so: (a) for the purpose of enabling due consideration to be given to:
(i) an application for an authorization; or (ii) an application for a minor variation of an authorization;
or (iii) an application for the revocation of an authorization and
the substitution of a new one; or (b) pending the expiration of the time allowed for the making of
an application to the Tribunal for review of a determination by the Commission of an application referred to in paragraph (a) and, if such an application for a review is made, pending the making of a determination by the Tribunal on the review; or
(c) for any other reason; the Commission may at any time:
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(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.
(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
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(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), (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(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 (ii) in such close succession that the variations could
conveniently be dealt with by the Commission at the same time; and
(b) the Commission is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the authorization;
the Commission may deal with all of those variations together as if they were a single minor variation.
(8) An application for a minor variation may be withdrawn by notice in writing to the Commission at any time.
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91B Revocation of an authorization
(1) A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a revocation of the authorization.
(2) On receipt of such an application, the Commission must, by notice in writing given to any persons who appear to the Commission to be interested:
(a) indicate that the revocation of the authorization has been applied for; and
(b) indicate the basis on which the revocation has been applied for; and
(c) invite submissions in respect of the revocation within a period specified by the Commission.
Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.
(3) If, at any time after granting an authorization, it appears to the Commission that:
(a) the authorization was granted on the basis of evidence or information that was false or misleading in a material particular; or
(b) a condition to which the authorization was expressed to be subject has not been complied with; or
(c) there has been a material change of circumstances since the authorization was granted;
the Commission may, by notice in writing given to any persons who appear to the Commission to be interested:
(d) inform those persons that it is considering the revocation of the authorization; and
(e) indicate the basis on which the revocation is being proposed; and
(f) invite submissions in respect of the revocation within a period specified by the Commission.
(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
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(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), (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.
91C Revocation of an authorization and substitution of a replacement
(1) A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a revocation of the authorization and the substitution of a new authorization for the one revoked.
(2) On receipt of such an application, the Commission must, by notice in writing given to any persons who appear to the Commission to be interested:
(a) indicate that the revocation of the authorization, and the substitution of another authorization for it, has been applied for; and
(b) indicate the basis upon which the revocation and substitution has been applied for and the nature of the substituted authorization so applied for; and
(c) invite submissions in respect of the revocation and substitution within a period specified by the Commission.
Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.
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(3) If, at any time after granting an authorization, it appears to the Commission that:
(a) the authorization was granted on the basis of evidence or information that was false or misleading in a material particular; or
(b) a condition to which the authorization was expressed to be subject has not been complied with; or
(c) there has been a material change of circumstances since the authorization was granted;
the Commission may, by notice in writing given to any persons who appear to be interested:
(d) inform those persons that it is considering the revocation of the authorization and the substitution of a new authorization; and
(e) indicate the basis on which the revocation and substitution is being proposed and the nature of the substituted authorization proposed; and
(f) invite submissions in respect of the proposed action within a period specified by the Commission.
(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:
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(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
(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), (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
Subdivision A—Exclusive dealing
93 Notification of exclusive dealing
(1) Subject to subsection (2), a corporation that engages, or proposes to engage, in conduct of a kind referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9) 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.
(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.
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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 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.
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(3A) If: (a) a corporation has notified the Commission under
subsection (1) of conduct or proposed conduct described in 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 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
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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 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
(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 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).
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(7C) A notice under subsection (1) describing conduct referred to in 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 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
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(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.
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
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(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 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.
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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;
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.
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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 (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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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;
(b) an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory;
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(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 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
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(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.
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
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(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.
(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 the day the Commission gave the notice. Tribunal for a review of the Commission’s decision to give the objection notice
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Relevant day In this situation: the relevant day is:
2 If an application is made to the Tribunal for a review of the Commission’s decision to give the
(a) if the review application is withdrawn—the day of the withdrawal; or
objection notice (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.
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
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(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.
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.
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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 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
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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
(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
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was received by the Commission and the day on which the conference terminated;
and any such certificate shall be received in all courts as 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.
(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
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(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
(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:
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(i) a secret formula or process; (ii) the cash consideration offered for the acquisition of
shares in the capital of a body corporate or of assets of a person; or
(iii) the current costs of manufacturing, producing or marketing goods or services;
the Commission shall exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from the register kept under subsection (1); and
(b) in any other case—the Commission may, if it is satisfied that it is desirable to do so by reason of the confidential nature of matters contained in the document or the part of the document, or in the submission or the part of the submission, exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from that register.
(4) If the Commission refuses a request to exclude a document or a part of a document from the register kept under subsection (1), the Commission shall, if the person who furnished the document to the Commission so requires, return the document or part of the document to him or her and, in that case, paragraph (1)(d) does not apply in relation to the document or part of the document.
(5) Subsection (4) does not apply in relation to a document that was produced to the Minister or the Commission in pursuance of a notice under section 65Q or 155.
(6) If the Commission refuses a request to exclude particulars of an oral submission or of part of an oral submission from the register kept under subsection (1), the person who made the submission may inform the Commission that he or she withdraws the submission or that part of the submission and, in that case, paragraph (1)(e) does not apply in relation to the submission or that part of the submission, as the case may be.
(7) Where the Commission is satisfied that it is desirable to do so for any reason other than the confidential nature of matters contained in a document or submission, the Commission may exclude a document or part of a document referred to in paragraph (1)(d) or particulars referred to in paragraph (1)(e) from the register kept under subsection (1).
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(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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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;
• 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;
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• 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.
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.
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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).
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
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(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
(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.
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(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.
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
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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 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.
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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.
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.
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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).
(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.
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Note 1: Under subsection 95AS(5), the Commission may revoke a clearance if a condition of the clearance has not been complied with.
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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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
(b) by notice on its website, invite submissions in respect of the application within a period specified by it.
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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 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
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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 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
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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 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).
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.
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(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: (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
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(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.
(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).
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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;
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
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substituted for the period referred to in subsection (10) (or any other period that is taken to be substituted 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.
Note 2: Division 2 of Part IX contains provisions about procedure and evidence that relate to proceedings before the Tribunal.
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(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.
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
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(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.
(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.
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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.
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.
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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.
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.
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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: (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.
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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 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.
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(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):
(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
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(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. 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.
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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, 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.
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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.
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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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: (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 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 whom the authorisation was granted applies to the Tribunal for this to occur.
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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 (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.
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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.
(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
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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:
(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
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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.
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);
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(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. 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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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.
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) 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.
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.
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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
(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
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(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: (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
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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
(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
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(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 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.
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(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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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;
(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;
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Section 95G
(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
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.
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
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Section 95J
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.
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.
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Section 95K
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.
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.
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Notice to particular person or persons
(3) If the inquiry is to be held in relation to the supply of goods or services by a particular person or persons, the inquiry body must, as soon as practicable, give the person, or each of the persons, a notice in writing.
Content of notice
(4) A notice under this section must: (a) state that the inquiry body is to hold the inquiry; and (b) specify the matter or matters in relation to which the inquiry
is to be held; and (c) specify the time and place at which the inquiry is to start; and (d) in the case of a notice under subsection (3)—set out the
effect of section 95N; and (e) specify any other matter prescribed by the regulations.
95M Notice of extension of period for completing inquiry
If: (a) an inquiry is being held in relation to the supply of goods or
services of a particular description by a particular person or persons; and
(b) the Minister extends, or further extends, the period within which the inquiry is required to be completed and a report on the inquiry given to the Minister;
the inquiry body must, as soon as possible, give the person, or each of the persons, a notice in writing giving details of the extension or further extension.
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 is guilty of an offence if: (a) before the applicable day in relation to the business notice,
the person supplies (the current supply) goods or services of
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Section 95N
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 is guilty of an offence if: (a) before the applicable day in relation to the business notice,
the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions; and
(b) the person has not supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the period of 12 months before the current supply, but has supplied goods or services 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.
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Section 95N
Offence: no previous supply in Australia
(4) The person is guilty of an offence if: (a) before the applicable day in relation to the business notice,
the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions; and
(b) the person has not supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in the period of 12 months before the current supply; and
(c) in a case where a notice has been given to the person under subsection (5)—the current supply is not in accordance with the notice.
Penalty: 100 penalty units.
Approval to increase prices
(5) The Commission may give the person a notice in writing stating that the person is permitted, during the period:
(a) beginning on a specified day; and (b) ending at the beginning of the applicable day in relation to
the business notice; 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:
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Section 95P
(a) the day on which the person given the notice receives a copy of the report by the inquiry body on the inquiry to which the notice relates;
(b) the last day of the period within which the inquiry body is required to complete the inquiry to which the notice relates and to give the Minister a report on the inquiry.
Subdivision B—Reports on inquiries
95P Copies of report to be made available
Inquiry into supply of goods or services by particular persons
(1) For an inquiry held in relation to the supply of goods or services by a particular person or persons, the inquiry body must send the person, or each of the persons, a copy of the report on the inquiry on the day on which it gives the Minister the report.
(2) A copy of a report sent to a person must be accompanied by a notice in writing setting out the effect of section 95Q.
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.
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Section 95R
Offence
(3) A person is guilty of an offence if the person contravenes subsection (2).
Penalty: 10 penalty units.
Public notification
(4) The Commission must, within 14 days after it receives the notice under subsection (2), make publicly available details of the price or prices specified in the notice.
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
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.
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.
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Section 95T
(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 is guilty of an offence if: (a) the person is given a summons to appear as a witness at an
inquiry; and (b) the person fails to attend as required by the summons or fails
to appear and report himself or herself from day to day; and (c) the person has not been excused, or released from further
attendance, by: (i) in an inquiry by the Commission—a member of the
Commission; or (ii) in an external inquiry—the person presiding at the
inquiry.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
95U Refusal to be sworn or to answer question
(1) A person appearing as a witness at an inquiry must not: (a) refuse or fail to swear an oath or to make an affirmation if
required to do so by: (i) in an inquiry by the Commission—a member of the
Commission; or (ii) in an external inquiry—the person presiding at the
inquiry; or (b) refuse or fail to answer a question that he or she is required to
answer by the inquiry Chair; or (c) refuse or fail to produce a document that he or she was
required to produce by a summons under this Part given to him or her.
Penalty: 10 penalty units.
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Section 95V
(2) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) It is a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to answer a question on the ground that the answer might tend to incriminate the person or to expose the person to a penalty.
(4) It is a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to produce a document on the ground that the production of the document might tend to incriminate the person or to expose the person to a penalty.
(5) Subsections (3) and (4) do not limit what is a reasonable excuse for the purposes of subsection (2).
95V Protection of witnesses
Subject to this Part, a person summoned to attend or appearing as a witness at an inquiry has the same protection, and is, in addition to the penalties provided by this Part, subject to the same liabilities, in any civil or criminal proceedings as a witness in proceedings in the High Court.
95W Allowances to witnesses
(1) A witness summoned under this Part to appear at an inquiry is entitled to be paid such allowances for his or her travelling, and such other expenses, as are prescribed by the regulations.
(2) The witness is entitled to be paid by: (a) if the witness was summoned by the inquiry Chair—the
Commonwealth; or (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
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
(b) the Council has, on the request (the current request) of an Australian government, recommended the declaration and the
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Section 95Y
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:
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.
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Section 95Z
95Z Price restrictions
Offence: previous local supply
(1) A person is guilty of 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 is guilty of 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 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
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Section 95Z
(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 is guilty of 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.
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).
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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 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
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Section 95ZB
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.
(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.
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Section 95ZC
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
(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.
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Section 95ZD
(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.
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
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
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
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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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;
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
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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
(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.
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Offence: refusal or failure to comply with notice
(4) A person is guilty of 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: (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).
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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.
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.
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(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;
(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
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(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.
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 is guilty of 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.
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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:
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.
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95ZQ Secrecy: persons involved in inquiries by bodies other than the Commission
Offence
(1) An external person is guilty of an offence if: (a) the person:
(i) makes a copy or other record of any protected information or of all or part of any protected document; or
(ii) discloses any protected information to another person or to a court; or
(iii) produces all or part of a protected document to another person or to a court; and
(b) in doing so, the person is not acting in the course of performing or exercising functions, powers or duties under or in relation to this Act.
Penalty: Imprisonment for 2 years.
Courts
(2) An external person cannot be required to: (a) disclose any protected information to a court; or (b) produce all or part of a protected document to a court;
unless that disclosure or production is necessary for the purpose of carrying into effect the provisions of this Act.
Definitions
(3) In this section:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
external person means a person who is or was: (a) the person presiding at an external inquiry; or (b) a person providing assistance in such an inquiry to the body
holding the inquiry.
produce includes permit access to.
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protected document means a document that: (a) is given to or otherwise acquired by the body holding the
external inquiry concerned for the purposes of that inquiry; and
(b) has not been made available to the public by that body under this Part.
protected information means information that: (a) is disclosed to, or obtained by, an external person for the
purposes of the inquiry concerned; and (b) has not been made available to the public under this Part by
the body holding that inquiry and is not contained in oral evidence given in public at the hearing of that inquiry.
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Part VIII—Resale price maintenance
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 third person who, directly or indirectly, has obtained the goods from the supplier, at a price less than a price
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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 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.
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(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:
(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:
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(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 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
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(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.
(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
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(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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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 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
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referred to in subsection 90(5A), (5B), (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), (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.
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
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(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:
(a) an application for an authorization; or (b) an application for a minor variation of an authorization; or (c) an application for, or the Commission’s proposal for, the
revocation of an authorization; or (d) an application for, or the Commission’s proposal for, the
revocation of an authorization and the substitution of another authorization;
is, for the purposes of this Act other than this Part, to be taken to be a determination of the Commission.
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(4) Upon a review of the giving of a notice by the Commission under subsection 93(3):
(a) if the person who applied for the review satisfies the Tribunal that:
(i) the conduct or proposed conduct does not and would not have the purpose, and does not and is not likely to have or would not have and would not be likely to have the effect, of substantially lessening competition (within the meaning of section 47); or
(ii) in all the circumstances: (A) the conduct or proposed conduct has resulted or
is likely to result, or would result or be likely to result, in a benefit to the public; and
(B) that benefit outweighs or would outweigh the detriment to the public 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 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
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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.
(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
(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.
482 Competition and Consumer Act 2010
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Section 102
(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.
(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.
Competition and Consumer Act 2010 483
Part IX Review by Tribunal of Determinations of Commission Division 2 Procedure and Evidence
Section 102A
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: (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
484 Competition and Consumer Act 2010
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Section 105
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.
(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.
Competition and Consumer Act 2010 485
Part IX Review by Tribunal of Determinations of Commission Division 2 Procedure and Evidence
Section 107
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.
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;
486 Competition and Consumer Act 2010
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Section 110
(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.
Competition and Consumer Act 2010 487
Part IX Review by Tribunal of Determinations of Commission Division 3 Review of Commission’s determinations on merger clearances
Section 111
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.
(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
488 Competition and Consumer Act 2010
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Section 112
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 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.
Competition and Consumer Act 2010 489
Part IX Review by Tribunal of Determinations of Commission Division 3 Review of Commission’s determinations on merger clearances
Section 115
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.
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.
490 Competition and Consumer Act 2010
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Section 119
(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.
Competition and Consumer Act 2010 491
Competition and Consumer Act 2010
Act No. 51 of 1974 as amended
This compilation was prepared on 1 January 2011
taking into account amendments up to Act No. 148 of 2010
Volume 2 includes: Table of Contents
Sections 10.01 – 178
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
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................................................................................. 10
10.03..... Designated shipper bodies................................................................ 11
Division 2—Additional restrictive trade practice provisions applying to ocean carriers 13
10.04..... Application of section 46 in relation to conference agreements......... 13
Division 3—Minimum standards for conference agreements 14
10.06..... Application of Australian law to outwards conference agreements and withdrawal from agreements 14
10.07..... Minimum levels of shipping services to be specified in conference agreements 14
10.08..... Conference agreements may include only certain restrictive trade practice provisions 14
10.09..... Where may consequences of conference agreements not complying with minimum standards be found? 16
Division 4—Registers and files and public inspection of them 17
10.10..... Registers and conference agreement files open to public inspection.. 17
10.11..... What registers are to be kept by the Registrar?.................................. 17
10.12..... What conference agreement files are to be kept by the Registrar?..... 17
10.13..... What register is to be kept by the Commission?................................ 18
Division 5—Exemptions from certain restrictive trade practice prohibitions 19
Subdivision A—Exemptions relating to conference agreements 19
10.14..... Exemptions apply only to certain activities........................................ 19
10.15..... When do exemptions commence to apply in relation to registered conference agreements? 19
10.16..... Exemptions do not apply to variations of conference agreement unless varying agreement registered 20
10.17..... Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 20
10.17A.. Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements 21
10.18..... Exemption from section 47............................................................... 22
10.18A.. Exemptions from section 47 for freight rate agreements................... 22
Subdivision B—Exemptions relating to loyalty agreements 23
10.19..... Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 23
10.20..... Exemption from section 47............................................................... 23
10.21..... Exemptions cease to apply in relation to a shipper at the shipper’s option 24
Subdivision D—Other exemptions 24
10.24..... Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations 24
10.24A.. Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to stevedoring contracts 25
Division 6—Registration of conference agreements 26
Subdivision A—Provisional registration 26
10.25..... Application for provisional registration of conference agreement..... 26
10.26..... How application is to be made and verified....................................... 26
10.27..... Copy of agreement to be filed with application etc............................ 26
10.27A.. Copy of conference agreement to be given to designated peak shipper body 27
10.28..... Decision on application for provisional registration.......................... 28
10.29..... Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement.......................................................................................... 29
Subdivision B—Final registration 31
10.30..... Application for final registration of conference agreement................ 31
10.31..... How application is to be made and verified....................................... 31
10.32..... Copy of agreement to be filed with application etc............................ 32
10.33..... Decision on application for final registration..................................... 32
Subdivision C—Confidentiality requests 34
10.34..... Request for confidentiality................................................................ 34
10.35..... Abstract to accompany request for confidentiality............................. 34
10.36..... Examination of abstract..................................................................... 34
10.37..... Decision on request for confidentiality.............................................. 35
10.38..... Application for registration to be returned where request for confidentiality refused etc. 36
Subdivision D—Miscellaneous 36
10.39..... Application also to be made for registration of varying conference agreements 36
10.40..... Notification of happening of affecting events prior to final registration etc. 37
Division 7—Obligations of ocean carriers in relation to registered conference agreements 39
10.41..... Parties to registered conference agreement to negotiate with certain designated shipper bodies etc. 39
10.42..... Application to be made for registration of varying conference agreements 41
10.43..... Parties to registered conference agreement to notify happening of affecting events etc. 41
Division 8—Powers of Minister in relation to registered conference agreements 43
10.44..... Powers exercisable by Minister in relation to registered conference agreements etc. 43
10.45..... Circumstances in which Minister may exercise powers in relation to registered conference agreements 44
10.46..... Action to be taken where powers exercised by Minister without first obtaining Commission report 47
10.47..... Investigation and report by Commission on reference by Minister... 48
10.48..... Investigation and report by Commission on own initiative or on application by affected person 49
10.49..... Undertakings by parties to registered conference agreement............. 50
10.49A.. Enforcement of undertakings............................................................ 51
Division 9—Obligations of non‑conference ocean carriers with substantial market power 52
10.50..... Investigations by Commission into market power of ocean carriers. 52
10.51..... Determination by Minister of market power of ocean carriers.......... 52
10.52..... Non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc........................................................................................................... 53
10.53..... Non‑conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc. 55
Division 10—Powers of Minister in relation to non‑conference ocean carriers with substantial market power 56
10.54..... Powers exercisable by Minister in relation to obligations of non‑conference ocean carriers with substantial market power.......................................................................................................... 56
10.55..... Circumstances in which Minister may exercise powers.................... 56
10.56..... Action to be taken where powers exercised by Minister without first obtaining Commission report 57
10.57..... Investigation and report by Commission on reference by Minister... 58
10.58..... Investigation and report by Commission on application by affected person 58
10.59..... Undertakings by ocean carrier........................................................... 59
10.60..... Enforcement of orders and undertakings........................................... 59
Division 11—Unfair pricing practices 61
10.61..... Powers exercisable by Minister in relation to pricing practices etc.... 61
10.62..... Circumstances in which Minister may exercise powers.................... 61
10.63..... Investigation and report by Commission........................................... 62
10.64..... Undertakings not to engage in pricing practices................................ 62
10.65..... Enforcement of orders and undertakings........................................... 63
10.66..... Determination of normal freight rates for shipping services.............. 63
10.67..... Determination of whether practice contrary to national interest......... 64
Division 12—Registration of ocean carrier agents 65
10.68..... Ocean carrier who provides international liner cargo shipping services to have registered agent 65
10.69..... Representation of ocean carrier by registered agent........................... 65
10.70..... Application by ocean carrier for registration of agent........................ 66
10.71..... Registration of agent......................................................................... 66
10.72..... Change of agent etc........................................................................... 66
Division 12A—Exemption orders for inwards conference agreements etc. 68
10.72A.. Exemption orders for inwards conference agreements etc................. 68
10.72B.. Criteria for making exemption order................................................. 68
10.72C.. Duration of exemption order may be limited..................................... 69
10.72D.. Conditions of exemption order.......................................................... 69
Division 13—General provisions relating to registers and conference agreement files 70
10.73..... Form of registers and conference agreement files............................. 70
10.74..... Deletion of entries wrongly existing in certain registers.................... 70
10.75..... Deletion of obsolete entries in certain registers................................. 70
10.76..... Correction of clerical errors and other mistakes in certain registers etc. 70
Division 14—Administration 71
10.77..... Registrar of Liner Shipping............................................................... 71
10.78..... Appointment of Registrar etc............................................................ 71
10.79..... Acting Registrar................................................................................ 71
10.80..... Registrar and staff to be public servants............................................ 71
10.81..... Delegation by Minister...................................................................... 71
10.82..... Delegation by Registrar..................................................................... 71
Division 14A—Review of decisions of Commission 72
10.82A.. Review by Tribunal........................................................................... 72
10.82B.. Functions and powers of Tribunal.................................................... 72
10.82C.. Provisions that do not apply in relation to a Tribunal review............ 73
Division 14B—Review of decisions of Minister 74
10.82D.. Review by Tribunal........................................................................... 74
10.82E... Functions and powers of Tribunal.................................................... 75
10.82F... Modifying register after Tribunal review.......................................... 75
10.82G.. Provisions that do not apply in relation to a Tribunal review............ 76
Division 15—Miscellaneous 77
10.83..... Act not to affect rights under Freedom of Information Act............... 77
10.84..... Review of decisions of Registrar...................................................... 77
10.85..... Statement to accompany notices of Registrar.................................... 77
10.86..... Evidence............................................................................................ 78
10.87..... Notification by Commission of references etc................................... 78
10.88..... Exclusion of documents etc. from register of Commission investigations 78
10.89..... Disclosure of confidential information.............................................. 80
10.90..... Fees................................................................................................... 81
10.91..... Application of Part XID and section 155 to investigations under Part 82
Part XI—Application of the Australian Consumer Law as a law of the Commonwealth 83
Division 1—Preliminary 83
130........ Definitions........................................................................................ 83
130A..... Expressions defined in Schedule 2.................................................... 85
Division 2—Application of the Australian Consumer Law as a law of the Commonwealth 86
Subdivision A—Application of the Australian Consumer Law 86
131........ Application of the Australian Consumer Law in relation to corporations etc. 86
131A..... Division does not apply to financial services.................................... 86
131B..... Division does not apply to interim bans imposed by State or Territory Ministers 87
131C..... Saving of other laws and remedies.................................................... 87
Subdivision B—Effect of other Commonwealth laws on the Australian Consumer Law 88
131D..... Effect of Part VIB on Chapter 5 of the Australian Consumer Law... 88
131E...... Application of the Legislative Instruments Act 2003......................... 88
131F...... Section 4AB of the Crimes Act does not apply................................. 89
131G..... Application of the Criminal Code..................................................... 89
Division 3—Conferences for proposed bans and recall notices 91
Subdivision A—Conference requirements before a ban or compulsory recall 91
132........ Commonwealth Minister must issue a proposed ban notice.............. 91
132A..... Commonwealth Minister must issue a proposed recall notice........... 92
132B..... Commonwealth Minister to be notified if no person wishes a conference to be held 92
132C..... Notification of conference................................................................. 93
132D..... Recommendation after conclusion of conference.............................. 93
Subdivision B—Conference requirements after an interim ban is imposed 94
132E...... Opportunity for a conference after an interim ban has been imposed by the Commonwealth Minister 94
132F...... Notification of conference................................................................. 95
132G..... Recommendation after conclusion of conference.............................. 95
Subdivision C—Conduct of conferences 96
132H..... Conduct of conferences..................................................................... 96
Subdivision D—Miscellaneous 97
132J...... Interim ban and recall notice without delay in case of danger to the public 97
132K..... Copy of notices under this Division to be given to suppliers............ 97
Division 4—Enforcement 99
Subdivision A—Inspectors 99
133........ Appointment of inspectors................................................................ 99
133A..... Identity cards..................................................................................... 99
Subdivision B—Premises to which the public is given access 100
133B..... Power to enter premises to which the public has access—consumer goods 100
133C..... Power to enter premises to which the public has access—product related services 101
Subdivision C—Disclosure notices relating to the safety of goods or services 101
133D..... Power to obtain information etc...................................................... 101
133E...... Self‑incrimination............................................................................ 103
133F...... Compliance with disclosure notices................................................ 103
133G..... False or misleading information etc................................................. 104
Subdivision D—Court orders relating to the destruction etc. of goods 104
133H..... Court orders relating to consumer goods that do not comply with a safety standard etc. 104
133J...... Recovery of reasonable costs of seizing, and destroying or disposing of, consumer goods 105
Division 5—Infringement notices 106
134........ Purpose and effect of this Division................................................. 106
134A..... Issuing an infringement notice........................................................ 106
134B..... Matters to be included in an infringement notice............................. 107
134C..... Amount of penalty.......................................................................... 108
134D..... Effect of compliance with an infringement notice............................ 111
134E...... Effect of failure to comply with an infringement notice................... 112
134F...... Infringement notice compliance period for infringement notice....... 112
134G..... Withdrawal of an infringement notice............................................. 113
Division 6—Search, seizure and entry 115
Subdivision A—Powers of inspectors 115
135........ Inspector may enter premises.......................................................... 115
135A..... Search‑related powers of inspectors................................................ 116
135B..... Inspector may ask questions and seek production of documents.... 117
135C..... Failure to answer questions or produce documents......................... 118
135D..... Persons assisting inspectors............................................................ 119
135E...... Use of force in executing a search warrant...................................... 119
135F...... Announcement before entry under warrant..................................... 119
135G..... Inspector must be in possession of search warrant......................... 120
Subdivision B—Obligations of inspectors 120
135H..... Consent........................................................................................... 120
135J...... Details of search warrant etc. must be given to the occupier of the premises 121
Subdivision C—Occupier’s etc. rights and responsibilities 121
135K..... Occupier etc. entitled to observe execution of search warrant......... 121
135L...... Occupier etc. to provide inspector etc. with facilities and assistance 122
135M.... Receipts for seized consumer goods and equipment....................... 122
135N..... Return of seized consumer goods and equipment........................... 122
135P...... Judge may permit consumer goods or equipment to be retained..... 123
Subdivision D—Provisions relating to seizure 124
135Q..... Recovery of reasonable costs of seizing consumer goods or equipment 124
135R..... Destruction or disposal of seized consumer goods or equipment.... 124
Subdivision E—Embargo notices 125
135S...... Embargo notices.............................................................................. 125
135T...... Embargo period for embargo notices.............................................. 127
135U..... Multiple embargo notices for the same consumer goods or product related services 127
135V..... Power of inspectors to secure consumer goods.............................. 128
135W.... Power of inspectors to secure equipment used to supply product related services 128
135X..... Consent to supply etc. embargoed consumer goods etc.................. 128
135Y..... Compliance with embargo notices................................................... 129
Subdivision F—Issue of search warrants 130
135Z...... Issue of search warrants.................................................................. 130
136........ Search warrants by telephone, fax etc............................................. 131
136A..... Offence relating to warrants by telephone, fax etc........................... 133
Subdivision G—Miscellaneous 133
136B..... Powers of judges............................................................................ 133
Division 7—Remedies 135
137........ Limit on occupational liability......................................................... 135
137A..... Contributory acts or omissions to reduce compensation in defective goods actions 136
137B..... Reduction of the amount of loss or damage if the claimant fails to take reasonable care 137
137C..... Limits on recovery of amounts for death or personal injury............ 137
137D..... Compensation orders etc. arising out of unfair contract terms......... 138
137E...... Limits on compensation orders etc. for death or personal injury..... 138
137F...... Court may make orders for the purpose of preserving money or other property held by a person 140
137G..... Compliance with orders made under section 137F.......................... 142
137H..... Finding in proceedings to be evidence............................................ 142
Division 8—Jurisdictional matters 144
138........ Conferring jurisdiction on the Federal Court................................... 144
138A..... Conferring jurisdiction on the Federal Magistrates Court............... 144
138B..... Conferring jurisdiction on State and Territory Courts..................... 144
138C..... Transfer of matters by the Federal Court......................................... 145
138D..... Transfer of matters by a State or Territory court............................. 146
138E...... Transfer of proceedings to Family Court........................................ 147
Division 9—Miscellaneous 149
139........ Intervention by the Commission..................................................... 149
139A..... Terms excluding consumer guarantees from supplies of recreational services 149
139B..... Conduct of directors, employees or agents of bodies corporate...... 150
139C..... Conduct of employees or agents of persons other than bodies corporate 151
139D..... Enforcement and recovery of certain fines...................................... 152
139DA.. Application of section 229 of the Australian Consumer Law to a person other than a body corporate 153
139E...... Cessation of enforcement orders etc................................................ 153
139F...... Compensation for acquisition of property....................................... 154
139G..... Regulations..................................................................................... 155
Part XIAA—Application of the Australian Consumer Law as a law of a State or Territory 157
140........ Definitions...................................................................................... 157
140A..... Object of this Part........................................................................... 158
140B..... The applied Australian Consumer Law........................................... 158
140C..... Federal Court may exercise jurisdiction under application laws of Territories 159
140D..... Exercise of jurisdiction under cross‑vesting provisions.................. 159
140E...... Commonwealth consent to conferral of functions etc. on Commonwealth entities 159
140F...... How duty is imposed...................................................................... 160
140G..... When an application law imposes a duty......................................... 161
140H..... Application laws may operate concurrently with this Act............... 161
140J...... No doubling‑up of liabilities........................................................... 161
140K..... References in instruments to the Australian Consumer Law........... 161
Part XIA—The Competition Code 163
150A..... Definitions...................................................................................... 163
150B..... Objects of this Part.......................................................................... 164
150C..... The Competition Code.................................................................... 164
150D..... Federal Court may exercise jurisdiction under application laws of Territories 165
150E...... Exercise of jurisdiction under cross‑vesting provisions.................. 165
150F...... Commonwealth consent to conferral of functions etc. on Commonwealth entities 165
150FA... How duty is imposed...................................................................... 166
150FB... When an application law imposes a duty......................................... 167
150G..... Application laws may operate concurrently with this Act............... 167
150H..... No doubling‑up of liabilities........................................................... 167
150I....... References in instruments to the Competition Code........................ 167
150J...... Authorisations etc. under this Act may relate also to Competition Code 168
150K..... Gazettal of jurisdictions that excessively modify the Code.............. 168
Part XIB—The Telecommunications Industry: Anti‑competitive conduct and record‑keeping rules 169
Division 1—Introduction 169
151AA.. Simplified outline............................................................................ 169
151AB.. Definitions...................................................................................... 170
151AC.. Extension to external Territories...................................................... 172
151AD.. Continuity of partnerships............................................................... 172
151AE... Additional operation of Part............................................................ 172
151AF... Telecommunications market............................................................ 173
151AG.. When a body corporate is related to a partnership........................... 173
151AH.. Degree of power in a telecommunications market........................... 173
151AI.... Interpretation of Part IV or VII not affected by this Part................. 175
Division 2—Anti‑competitive conduct 176
151AJ... Anti‑competitive conduct................................................................ 176
151AK.. The competition rule........................................................................ 179
Division 3—Competition notices and exemption orders 180
Subdivision A—Competition notices 180
151AKAPart A competition notices............................................................... 180
151AL... Part B competition notices............................................................... 181
151AM. Competition notice to be given to carrier or carriage service provider 182
151AN.. Evidentiary effect of competition notice.......................................... 182
151AO.. Duration of Part A competition notice............................................. 182
151AOAVariation of competition notice....................................................... 183
151AOBRevocation of competition notice..................................................... 183
151AP... Guidelines....................................................................................... 183
151AQ.. Commission to act expeditiously..................................................... 184
151AQAStay of proceedings relating to competition notices......................... 184
151AQBAdvisory notices............................................................................. 185
151AR.. Register of competition notices....................................................... 186
Subdivision B—Exemption orders 186
151AS... Exemption orders............................................................................ 186
151AT... Form of application......................................................................... 187
151AU.. Further information......................................................................... 187
151AV.. Withdrawal of application............................................................... 187
151AW. Commission must publicise receipt of applications......................... 187
151AX.. Commission may refuse to consider application if it relates to the same conduct as an authorisation application 187
151AY.. Commission may refuse to consider application if it relates to the same conduct as a Part VII notification 188
151AZ... Commission may convene conference to discuss application.......... 189
151BA.. Commission must grant or reject application................................... 189
151BB... Commission to give opportunity for submissions........................... 189
151BC... Criteria for making exemption order............................................... 190
151BD.. Notification of decision................................................................... 191
151BE... Duration of exemption order may be limited................................... 191
151BF... Conditions of exemption order........................................................ 191
151BG.. Revocation of exemption order....................................................... 191
151BH.. Register of exemption orders.......................................................... 192
Subdivision C—Miscellaneous 193
151BJ.... Conduct includes proposed conduct................................................ 193
Division 4—Tariff filing 194
151BK... Tariff filing directions..................................................................... 194
151BL... Specification of goods and services................................................ 196
151BM.. Notification of reasons.................................................................... 196
151BN.. Duration of direction may be limited............................................... 196
151BO.. Revocation of direction................................................................... 196
151BP... Variation of direction...................................................................... 197
151BQ.. Public access to tariff information................................................... 197
151BR... Register of tariff filing directions.................................................... 198
151BT... Meaning of terms and conditions................................................... 199
Division 5—Tariff filing by Telstra 200
151BTA Tariff filing by Telstra..................................................................... 200
Division 6—Record‑keeping rules and disclosure directions 202
151BU.. Commission may make record‑keeping rules.................................. 202
151BUAAMinister may give directions to Commission............................... 203
151BUABRequest for disclosure.................................................................. 204
151BUACommission gives access to reports................................................ 205
151BUB Carrier or carriage service provider gives access to reports............. 207
151BUC Carrier or carriage service provider gives access to periodic reports 210
151BUDExemption of reports from access requirements.............................. 213
151BUDACommission gives access to Ministerially‑directed reports.......... 214
151BUDBCarrier or carriage service provider gives access to
Ministerially‑directed reports.......................................................... 216
151BUDCCarrier or carriage service provider gives access to
Ministerially‑directed periodic reports............................................. 218
151BUE Access via the internet..................................................................... 220
151BUF Self‑incrimination............................................................................ 221
151BV.. Incorrect records............................................................................. 221
Division 7—Enforcement of the competition rule, tariff filing directions, record‑keeping rules and disclosure directions 222
151BW.. Person involved in a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction.......................................................................................... 222
151BX.. Pecuniary penalties for breach of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction.......................................................................................... 222
151BY.. Civil action for recovery of pecuniary penalties.............................. 224
151BZ... Criminal proceedings not to be brought for contraventions of the competition rule, tariff filing directions, record‑keeping rules or disclosure directions........................................................... 225
151CA.. Injunctions...................................................................................... 225
151CB... Orders to disclose information or publish an advertisement—breach of the competition rule 227
151CC... Actions for damages—breach of the competition rule..................... 228
151CD.. Finding of fact in proceedings to be evidence................................. 228
151CE... Other orders—compensation for breach of the competition rule..... 229
151CF... Conduct by directors, employees or agents..................................... 230
Division 8—Disclosure of documents by Commission 231
151CG.. Disclosure of documents by Commission....................................... 231
Division 9—Treatment of partnerships 233
151CH.. Treatment of partnerships................................................................ 233
Division 10—Review of decisions 234
151CI.... Review by Tribunal......................................................................... 234
151CJ.... Functions and powers of Tribunal.................................................. 235
151CK... Provisions that do not apply in relation to a Tribunal review.......... 236
Division 11—Reviews of competitive safeguards within the telecommunications industry 237
151CL... Reviews of competitive safeguards within the telecommunications industry 237
Division 12—Monitoring of telecommunications charges paid by consumers 238
151CM.. Monitoring of telecommunications charges paid by consumers...... 238
Division 12A—Reports about competition in the telecommunications industry 240
151CMAPublic reports about competition in the telecommunications
industry........................................................................................... 240
151CMBConfidential reports about competition in the
telecommunications industry........................................................... 241
151CMCExamples of matters that may be specified in a determination
under section 151CMA or 151CMB.............................................. 241
Division 13—Review of operation of this Part 243
151CN.. Review of operation of this Part...................................................... 243
Division 14—Operational separation for Telstra 244
151CP... Operational separation for Telstra................................................... 244
Division 15—Voluntary undertakings given by Telstra 245
151CQ.. Voluntary undertakings given by Telstra........................................ 245
Part XIC—Telecommunications access regime 246
Division 1—Introduction 246
152AA.. Simplified outline............................................................................ 246
152AB.. Object of this Part........................................................................... 247
152AC.. Definitions...................................................................................... 249
152AD.. This Part binds the Crown.............................................................. 252
152AE... Extension to external Territories...................................................... 252
152AF... Access............................................................................................. 252
152AG.. Access seeker.................................................................................. 252
152AH.. Reasonableness—terms and conditions.......................................... 253
152AI.... When public inquiry commences.................................................... 254
152AJ... Interpretation of Part IIIA not affected by this Part......................... 254
152AK.. Operation of Parts IV and VII not affected by this Part.................. 254
Division 2—Declared services 255
152AL... Declared services............................................................................ 255
152ALA Duration of declaration.................................................................... 257
152AM. Inquiries about proposals to declare services.................................. 260
152AN.. Combined inquiries about proposals to declare services................. 260
152AO.. Variation or revocation of declaration............................................. 261
152AQ.. Register of declared services........................................................... 261
152AQCCompensation for acquisition of property....................................... 262
Division 3—Standard access obligations 263
152AR.. Standard access obligations............................................................. 263
152ASA Anticipatory class exemptions from standard access obligations.... 267
152ATA Anticipatory individual exemptions from standard access obligations 269
152AU.. Individual exemptions—request for further information................. 273
152AXAStatement of reasons for decision—specification of
documents....................................................................................... 273
152AY.. Compliance with standard access obligations.................................. 273
152AYAAncillary obligations—confidential information............................. 275
152AZ... Carrier licence condition.................................................................. 275
152BA.. Service provider rule....................................................................... 276
152BB... Judicial enforcement of standard access obligations........................ 276
152BBAAJudicial enforcement of conditions and limitations of
exemption determinations and orders.............................................. 277
152BBA Commission may give directions in relation to negotiations............ 277
152BBB Enforcement of directions............................................................... 279
152BBC Commission’s role in negotiations.................................................. 280
152BBD Reaching agreement on terms and conditions of access.................. 280
Division 4—Access determinations 281
Subdivision A—Commission may make access determinations 281
152BC... Access determinations..................................................................... 281
152BCA Matters that the Commission must take into account....................... 282
152BCB Restrictions on access determinations............................................. 283
152BCC Access agreements prevail over inconsistent access determinations 285
152BCCAFinal migration plan prevails over inconsistent access
determinations................................................................................. 286
152BCD Fixed principles provisions............................................................. 286
152BCE Access determinations may be set out in the same document.......... 288
152BCF Duration of access determination.................................................... 288
152BCG Interim access determinations.......................................................... 291
152BCGAStay of access determinations....................................................... 292
Subdivision B—Public inquiries about proposals to make access determinations 293
152BCH Access determination to be made after public inquiry..................... 293
152BCI. When public inquiry must be held................................................... 293
152BCJ. Combined inquiries about proposals to make access determinations 296
152BCK Time limit for making an access determination................................ 296
Subdivision C—Variation or revocation of access determinations 297
152BCN Variation or revocation of access determinations............................ 297
Subdivision D—Compliance with access determinations 298
152BCO Carrier licence condition.................................................................. 298
152BCP Service provider rule....................................................................... 298
Subdivision E—Private enforcement of access determinations 299
152BCQ Private enforcement of access determinations................................. 299
152BCR Consent injunctions......................................................................... 300
152BCS Interim injunctions.......................................................................... 300
152BCT Factors relevant to granting a restraining injunction........................ 300
152BCU Factors relevant to granting a mandatory injunction........................ 300
152BCV Discharge or variation of injunction or other order......................... 301
Subdivision F—Register of Access Determinations 301
152BCWRegister of Access Determinations................................................. 301
Division 4A—Binding rules of conduct 302
Subdivision A—Commission may make binding rules of conduct 302
152BD.. Binding rules of conduct................................................................. 302
152BDAAMatters that the Commission must take into account.................... 303
152BDARestrictions on binding rules of conduct......................................... 304
152BDB Access agreements prevail over inconsistent binding rules of conduct 306
152BDC Duration of binding rules of conduct.............................................. 306
152BDCAFinal migration plan prevails over inconsistent binding
rules of conduct............................................................................... 307
152BDDCommission must give copy of binding rules of conduct
to carrier etc..................................................................................... 307
152BDE Access determinations that are inconsistent with binding rules of conduct 307
152BDEAStay of binding rules of conduct................................................... 307
Subdivision B—Compliance with binding rules of conduct 308
152BDF Carrier licence condition.................................................................. 308
152BDGService provider rule....................................................................... 308
Subdivision C—Private enforcement of binding rules of conduct 308
152BDHPrivate enforcement of binding rules of conduct............................. 308
152BDI. Consent injunctions......................................................................... 309
152BDJ. Interim injunctions.......................................................................... 309
152BDK Factors relevant to granting a restraining injunction........................ 309
152BDL Factors relevant to granting a mandatory injunction........................ 310
152BDMDischarge or variation of injunction or other order......................... 310
Subdivision D—Register of Binding Rules of Conduct 310
152BDNRegister of Binding Rules of Conduct............................................. 310
Division 4B—Access agreements 311
152BE... Access agreements.......................................................................... 311
152BEA Lodgment of access agreements with the Commission................... 313
152BEB Notification of termination of access agreement.............................. 314
152BEC Carrier licence condition.................................................................. 315
152BED Service provider rule....................................................................... 315
Division 5—Access undertakings 316
Subdivision B—Special access undertakings 316
152CBA What is a special access undertaking?............................................ 316
152CBAAFixed principles terms and conditions........................................... 318
152CBB Further information about undertaking............................................ 321
152CBC Commission to accept or reject access undertaking......................... 322
152CBCASerial undertakings........................................................................ 324
152CBD Criteria for accepting access undertaking........................................ 325
152CBDAVariation of special access undertaking........................................ 326
152CBE Extension of access undertaking..................................................... 327
152CBF Duration of access undertaking....................................................... 328
152CBG Variation of access undertakings..................................................... 328
152CBH Further information about variation of access undertaking.............. 330
152CBI. Voluntary withdrawal of undertaking............................................. 331
152CBIASpecial access undertakings prevail over inconsistent access
determinations................................................................................. 331
152CBIBSpecial access undertakings prevail over inconsistent binding
rules of conduct............................................................................... 331
152CBICAccess agreements prevail over special access undertakings.......... 332
152CBJ. Proposed service............................................................................. 332
Subdivision C—General provisions 332
152CC... Register of access undertakings...................................................... 332
152CD.. Enforcement of access undertakings............................................... 332
152CDADeferral of consideration of an access undertaking etc.................... 333
Division 6—Ministerial pricing determinations 334
152CH.. Ministerial pricing determinations................................................... 334
152CI.... Undertakings, access determinations and binding rules of conduct that are inconsistent with Ministerial pricing determinations................................................................................. 334
152CJ.... Register of Ministerial pricing determinations................................. 335
Division 7—Relationship between this Part and Part IIIA 336
152CK... Relationship between this Part and Part IIIA.................................. 336
Division 10—Hindering the fulfilment of a standard access obligation etc. 337
152EF... Prohibition on hindering the fulfilment of a standard access obligation etc. 337
152EG... Enforcement of prohibition on hindering the fulfilment of a standard access obligation etc. 337
152EH... Consent injunctions......................................................................... 338
152EI.... Interim injunctions.......................................................................... 338
152EJ.... Factors relevant to granting a restraining injunction........................ 338
152EK... Factors relevant to granting a mandatory injunction........................ 339
152EL... Discharge or variation of injunction or other order......................... 339
Division 10A—Procedural Rules 340
152ELA Procedural Rules............................................................................. 340
152ELB. Public consultation.......................................................................... 341
152ELC. Plan for the development of Procedural Rules................................ 341
Division 11—Miscellaneous 342
152ELD Compensation for acquisition of property....................................... 342
152EM.. Continuity of partnerships............................................................... 342
152EN... Treatment of partnerships................................................................ 342
152EO... Conduct by directors, servants or agents......................................... 343
152EOA Review of operation of this Part...................................................... 344
152EP... Regulations about fees for inspection etc. of registers..................... 344
152EQ... Operational separation for Telstra................................................... 344
152ER... Voluntary undertakings given by Telstra........................................ 344
Part XID—Search and seizure 346
Division 1—Preliminary 346
154........ Simplified outline............................................................................ 346
154A..... Definitions...................................................................................... 346
Division 2—Appointment of inspectors and identity cards 349
154B..... Appointment of inspectors.............................................................. 349
154C..... Identity cards................................................................................... 349
Division 3—Entry to premises with consent 351
154D..... Entry with consent.......................................................................... 351
154E...... Powers in relation to premises........................................................ 351
154F...... Operation of electronic equipment at premises................................ 352
Division 4—Entry to premises under a search warrant 353
Subdivision A—Powers available under a search warrant 353
154G..... The things that are authorised by a search warrant.......................... 353
154GA.. Removing things for examination or processing............................. 354
154H..... Operation of electronic equipment at premises................................ 355
154J...... Securing electronic equipment for use by experts........................... 356
Subdivision B—Availability of assistance and use of force in executing a search warrant 357
154K..... Authorisation of officers assisting.................................................. 357
154L...... Availability of assistance and use of force in executing a search warrant 358
Subdivision C—Obligations of executing officer and officers assisting 358
154M.... Announcement before entry............................................................ 358
154N..... Details of warrant to be given to occupier....................................... 358
Subdivision D—Occupier’s rights and responsibilities 359
154P...... Occupier entitled to observe search being conducted...................... 359
154Q..... Occupier to provide reasonable facilities and assistance.................. 359
154R..... Answering of questions or producing evidential material............... 359
154RA.. Person with computer knowledge to assist access etc..................... 360
Subdivision E—General provisions relating to seizure 361
154S...... Copies of seized things to be provided............................................ 361
154T...... Receipts for things seized or moved under warrant......................... 361
154U..... Return of seized things.................................................................... 361
154V..... Magistrate may permit a thing to be retained................................... 362
154W.... Disposal of things if there is no owner or owner cannot be located 363
Subdivision F—Search warrants 363
154X..... Issue of search warrants.................................................................. 363
154Y..... Search warrants by telephone, fax etc............................................. 364
154Z...... Offences relating to warrants.......................................................... 366
Subdivision G—Powers of magistrates 367
154ZA... Powers conferred on magistrates.................................................... 367
Division 5—General provisions relating to electronic equipment 368
154ZB... Operation of electronic equipment at premises................................ 368
154ZC... Compensation for damage to electronic equipment......................... 368
Part XII—Miscellaneous 370
155........ Power to obtain information, documents and evidence................... 370
155AAAProtection of certain information..................................................... 373
155AA.. Protection of Part VB information.................................................. 379
155A..... Power to obtain information and documents in New Zealand relating to trans‑Tasman markets 379
155B..... Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission.................................................................. 380
156........ Inspection of documents by Commission....................................... 381
157........ Disclosure of documents by Commission....................................... 382
157AA.. Disclosure of documents by Tribunal in relation to merger authorisations 385
157A..... Disclosure of information by Commission..................................... 386
157B..... Disclosure of protected cartel information to a court or tribunal...... 386
157C..... Disclosure of protected cartel information to a party to court proceedings etc. 389
157D..... General powers of a court............................................................... 391
158........ Protection of members of Tribunal, counsel and witnesses............. 392
159........ Incriminating answers..................................................................... 392
160........ Failure of witness to attend............................................................. 393
161........ Refusal to be sworn or to answer questions.................................... 393
162........ Contempt......................................................................................... 394
162A..... Intimidation etc................................................................................ 395
163........ Prosecutions.................................................................................... 395
163A..... Declarations and orders................................................................... 396
165........ Inspection of, furnishing of copies of, and evidence of, documents 399
166........ Certificates as to furnishing of particulars to Commission.............. 401
167........ Judicial notice.................................................................................. 401
170........ Legal and financial assistance.......................................................... 402
171........ Annual report by Commission........................................................ 403
171A..... Charges by the Commission........................................................... 404
171B..... Division 3 of Part IIIA does not confer judicial power on the Commission 405
172........ Regulations..................................................................................... 405
173........ Authorisation for the purposes of subsection 51(1)........................ 407
Part XIII—Application and transitional provisions relating to the competition provisions 408
Division 1—Cartel conduct 408
174........ Definitions...................................................................................... 408
175........ Giving effect after the commencement time to a cartel provision in existence before that time 408
176........ Proceedings relating to price‑fixing contraventions taking place before the commencement time 408
177........ Authorisations in force before the commencement time.................. 408
178........ Notifications in force before the commencement time..................... 409
Part X—International liner cargo shipping
(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;
(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.
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.
• 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.
(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:
(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).
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
(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 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 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.
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, 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
(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.
(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:
(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.
(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 section 10.29, 10.41 or 10.52 in the register of designated shipper bodies.
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.
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:
(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:
(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).
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).
(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.
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 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.
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.
(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 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).
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).
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.
Subdivision D—Other exemptions
(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).
(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.
(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.
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:
(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:
(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
(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).
(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 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.
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).
(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;
(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
(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.
(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.
(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
(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.
10.39 Application also to be made for registration of varying conference agreements
(1) Subject to subsection (2), if:
(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:
(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.
Division 7—Obligations of ocean carriers in relation to registered conference agreements
(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.
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
(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
(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.
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.
(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.
(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);
(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 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;
(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;
(v) in the case of an outwards conference agreement—producers of goods of a kind exported, or proposed to be exported, from Australia.
(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.
(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 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.
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.
(2) Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV.
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.
(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.
(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:
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 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.
(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.
(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 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.
(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 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.
(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;
(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.
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 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 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 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
(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.
Division 12—Registration of ocean carrier agents
(1) Every ocean carrier who provides international liner cargo shipping services shall, at all times, be represented for the purposes of this Act by a person who:
(a) is an individual resident in Australia;
(b) has been appointed by the ocean carrier as the ocean carrier’s agent for the purposes of this Act; and
(c) is specified in the register of ocean carrier agents as the ocean carrier’s agent.
(2) An ocean carrier who, without reasonable excuse, contravenes subsection (1) is guilty of an offence punishable, on conviction, by a fine not exceeding:
(a) in the case of a natural person—$2,000; and
(b) in the case of a body corporate—$10,000.
10.69 Representation of ocean carrier by registered agent
(1) Everything done by or in relation to an ocean carrier’s registered agent in that capacity shall, for the purposes of this Act, be taken to be done by or in relation to the ocean carrier.
(2) Without limiting subsection (1), a document required or permitted to be served on, or given to, an ocean carrier under or for the purposes of this Act (including the process of any court) may be served on, or given to, the ocean carrier by serving it on, or giving it to, the ocean carrier’s registered agent.
(3) A document that is, under subsection (2), permitted to be served on, or given to, an ocean carrier’s registered agent may be served on, or given to, the agent by:
(a) delivering it to the agent personally; or
(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.
(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.
(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.
Division 12A—Exemption orders for inwards conference agreements etc.
10.72A Exemption orders for inwards conference agreements etc.
(1) The Minister may, by legislative instrument, make an order exempting:
(a) a specified inwards conference agreement; or
(b) specified inwards liner cargo shipping services; or
(c) specified conduct in relation to the provision, or proposed provision, of inwards liner cargo shipping services;
from the scope of any or all of the eligible regulatory provisions.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
(2) The Registrar must enter particulars of any order under subsection (1) in the register of exemption orders.
(4) For the purposes of this section, each of the following provisions is an eligible regulatory provision:
(a) subsection 10.07(2);
(b) section 10.08;
(c) paragraph 10.28(1)(ba);
(d) subsection 10.29(1A);
(e) section 10.40;
(f) section 10.41;
(g) section 10.43;
(h) subparagraph 10.45(1)(a)(iv);
(i) subsection 10.45(3);
(j) subsection 10.45(4);
(k) section 10.52;
(l) subparagraph 10.62(a)(i).
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.
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.
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.
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.
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).
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.
Division 14A—Review of decisions of Commission
(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.
(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.
Division 14B—Review of decisions of Minister
(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.
(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;
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.
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.
(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.
(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.
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
(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;
(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
(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.
(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.
Part XI—Application of the Australian Consumer Law as a law of the Commonwealth
In this Part:
associate: a person (the first person) is an associate of another person if:
(a) the first person holds money or other property on behalf of the other person; or
(b) if the other person is a body corporate—the first person is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of the other person.
Australian Consumer Law means Schedule 2 as applied under Subdivision A of Division 2 of this Part.
Chairperson has the same meaning as in subsection 4(1).
corporation has the same meaning as in subsection 4(1).
disclosure notice: see subsection 133D(3).
embargo notice: see subsection 135S(1).
embargo period for an embargo notice means the period specified in the embargo notice under paragraph 135S(3)(c) or (d).
enforcement order: see paragraph 139D(1)(b).
Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).
Federal Court means the Federal Court of Australia.
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.
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.
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 22 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.
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.
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.
131E Application of the Legislative Instruments Act 2003
(1) The following instruments made under the Australian Consumer Law by the Commonwealth Minister are to be made by legislative instrument:
(a) a determination under subsection 66(1) (display notices);
(b) a notice under subsection 104(1) or 105(1) (safety standards);
(c) a notice under subsection 109(1) or (2) (interim bans);
(d) a notice under section 111 (extensions of interim bans);
(e) a notice under section 113 (revocation of interim bans);
(f) a notice under subsection 114(1) or (2) (permanent bans);
(g) a notice under section 117 (revocation of permanent bans);
(h) a notice under subsection 122(1) (recall notices);
(i) a notice under subsection 134(1) or 135(1) (information standards).
(2) The following instruments made under the Australian Consumer Law are not legislative instruments:
(a) an approval given under paragraph 106(5)(b) (approval to export);
(b) an approval given under paragraph 118(5)(b) (approval to export);
(c) a notice under subsection 128(3) (voluntary recalls);
(d) a notice under subsection 129(1) or (2) (safety warning notices);
(e) a notice under subsection 130(1) (announcement of results of an investigation);
(f) a notice under subsection 223(1) or (2) (public warning notices).
(3) To avoid doubt, an instrument made under the Australian Consumer Law by a responsible Minister who is not the Commonwealth Minister, or a regulator that is not the Commission, is not a legislative instrument.
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.
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):
(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.
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:
(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.
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:
(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
(1) At a conference held under Subdivision A or B of this Division:
(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.
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
(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.
(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.
(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
(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:
(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.
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.
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).
(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:
(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.
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:
(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.
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);
(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
(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.
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. |
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. |
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. |
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. |
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.
(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.
(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
(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.
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
(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:
(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).
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;
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.
(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.
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
(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);
(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
(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
(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;
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
(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.
(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
(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
(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.
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).
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:
(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
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
(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.
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.
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 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.
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.
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 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;
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
(c) the death or personal injury does not result from smoking or other use of tobacco products.
(2) Divisions 2 and 7 of Part VIB of this Act apply to an action under subsection 236(1) of the Australian Consumer Law for loss or damage a person suffers to the extent to which:
(a) the action is based on the conduct contravening a provision of Part 2‑1 or 3‑1 of the Australian Consumer Law; and
(b) the loss or damage is, or results from, death or personal injury; and
(c) the death or personal injury results from smoking or other use of tobacco products;
as if the action were a proceeding to which Part VIB of this Act applied.
Note 1: Division 2 of Part VIB of this Act deals with the limitation periods that apply for claims for damages or compensation for death or personal injury and, to the extent to which that Division is applied to the action by this subsection, it overrides subsection 236(2) of the Australian Consumer Law.
Note 2: Division 7 of Part VIB of this Act deals with structured settlements for claims for damages or compensation for death or personal injury.
137D Compensation orders etc. arising out of unfair contract terms
In determining whether to make an order under subsection 237(1) or 238(1) of the Australian Consumer Law in relation to:
(a) a contravention of a provision of Part 2‑2 of the Australian Consumer Law; or
(b) a term of a consumer contract that has been declared under section 250 of the Australian Consumer Law to be an unfair term;
the court may have regard to the conduct of the parties to the proceeding referred to in that subsection since the contravention occurred or the declaration was made.
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 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.
Kinds of proceedings taken against the person
(2) For the purposes of paragraph (1)(a), the kinds of proceedings taken against the person are:
(a) proceedings against the person for an offence against a provision of Chapter 4 of the Australian Consumer Law; or
(b) an application under section 232 of the Australian Consumer Law for an injunction against the person in relation to:
(i) a contravention of a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or
(ii) a term of a consumer contract in relation to which a declaration under section 250 of the Australian Consumer Law has been made; or
(c) an action under subsection 236(1) of the Australian Consumer Law against the person in relation to a contravention of a provision of Part 2‑1 or Chapter 3 of the Australian Consumer Law; or
(d) an application for an order under subsection 237(1) or 239(1) of the Australian Consumer Law against a person in relation to:
(i) a contravention of a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or
(ii) a term of a consumer contract in relation to which a declaration under section 250 of the Australian Consumer Law has been made.
Kinds of orders that may be made
(3) The court may make the following orders under subsection (1) of this section in a relation to money or other property held by, or on behalf of, a person (the respondent):
(a) an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the respondent, or to an associate of the respondent, from making a payment, in total or partial discharge of the debt:
(i) to the respondent; or
(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.
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 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.
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 Magistrates 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 Magistrates Court
(1) Subject to this section, jurisdiction is conferred on the Federal Magistrates 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 Magistrates Court, the Federal Magistrates 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 Magistrates Court: see section 32AB of the Federal Court of Australia Act 1976.
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.
(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
(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.
(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
(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.
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
(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.
(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 or 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
(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.
(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.
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;
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).
(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.
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by Schedule 2 to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to that Schedule.
(2) Before the Governor‑General makes a regulation for the purposes of paragraph 25(n) of Schedule 2 prescribing a kind of term of a consumer contract, or a kind of effect that such a term has, the Commonwealth Minister must take into consideration:
(a) the detriment that a term of that kind would cause to consumers; and
(b) the impact on business generally of prescribing that kind of term or effect; and
(c) the public interest.
(3) Before the Governor‑General makes a regulation under subsection (1) for the purposes of paragraph 65(1)(a) of Schedule 2 in relation to supplies of a particular kind, the Commonwealth Minister must be satisfied that:
(a) the laws of the Commonwealth; and/or
(b) the laws of the States and Territories;
adequately provide for consumer rights in relation to supplies of that kind.
(4) The regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of Schedule 2 or of specified provisions of Schedule 2:
(a) conduct engaged in by a specified organisation or body that performs functions in relation to the marketing of primary products; or
(b) any of the following:
(i) a specified contract or proposed contract made;
(ii) contracts included in a specified class of contracts made;
(iii) specified conduct entered into;
pursuant to or for the purposes of a specified agreement, arrangement or understanding between the Government of Australia and the Government of a foreign country; or
(c) prescribed conduct engaged in in the course of a business carried on by the Commonwealth or by a prescribed authority of the Commonwealth.
(5) Strict compliance with a form of application or notice prescribed for the purposes of Schedule 2 is not, and is taken never to have been, required and substantial compliance is, and is taken always to have been, sufficient.
Part XIAA—Application of the Australian Consumer Law as a law of a State or Territory
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.
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.
The object of this Part is to facilitate the application of the Australian Consumer Law by participating States and participating Territories.
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.
(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.
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.
(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.
(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.
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;
(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.
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.
(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;
(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
(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.
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), 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
(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).
Part XIB—The Telecommunications Industry: Anti‑competitive conduct and record‑keeping rules
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.
• 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.
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.
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.
Part A competition notice means a notice issued under subsection 151AKA(1) or (2).
Part B competition notice means a notice issued under subsection 151AL(1).
person includes a partnership.
Note: Section 151CH sets out additional rules about partnerships.
record‑keeping rule means a rule under section 151BU.
service provider rule has the same meaning as in the Telecommunications Act 1997.
tariff filing direction means a direction under section 151BK.
telecommunications market has the meaning given by section 151AF.
151AC Extension to external Territories
This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).
151AD Continuity of partnerships
For the purposes of this Part, a change in the composition of a partnership does not affect the continuity of the partnership.
151AE Additional operation of Part
(1) Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.
(2) This Part has, by force of this subsection, the effect it would have if:
(a) any references in this Part to a carrier were, by express provision, confined to a carrier that is a corporation; and
(b) any references in this Part to a carriage service provider were, by express provision, confined to a carriage service provider that is a corporation.
(3) In addition to the effect that this Part has as provided by subsection (2), this Part has, by force of this subsection, the effect it would have if subsections 151AJ(2) and (3) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:
(a) trade or commerce between Australia and places outside Australia; or
(b) trade or commerce among the States; or
(c) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or
(d) the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth.
151AF Telecommunications market
For the purposes of this Part, a telecommunications market is a market in which any of the following goods or services are supplied or acquired:
(a) carriage services;
(b) goods or services for use in connection with a carriage service;
(c) access to facilities;
(d) content services.
Note: Market has a meaning affected by section 4E.
151AG When a body corporate is related to a partnership
For the purposes of this Part, if:
(a) a carrier or a carriage service provider is a partnership; and
(b) a body corporate is related to a partner in the partnership;
the body corporate is taken to be related to the carrier or carriage service provider, as the case requires.
151AH Degree of power in a telecommunications market
(1) For the purposes of this Part, if:
(a) a body corporate is related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) the body corporate has a substantial degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(2) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to the one:
(i) carrier; or
(ii) carriage service provider; and
(b) those bodies corporate together have a substantial degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(3) For the purposes of this Part, if:
(a) a body corporate is related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) the body corporate and the carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(4) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) those bodies corporate and that carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(5) In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard must be had to the extent to which the conduct of the person or any of those persons in that market is constrained by the conduct of:
(a) competitors, or potential competitors, of the person or of any of those persons in that market; or
(b) persons to whom or from whom the person or any of those persons supplies or acquires goods or services in that market.
(5A) In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard may be had to the power that the person has, or that the persons have, in that market that results from:
(a) any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the person has or may have, or that the persons have or may have, with another party or parties; and
(b) any covenants, or proposed covenants, that the person is or would be, or that the persons are or would be, bound by or entitled to the benefit of.
(6) Subsections (5) and (5A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market.
(6A) For the purposes of this Part, without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial degree of power in a telecommunications 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.
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.
(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;
(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 subsection (2) or (3), 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
(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 subsection (2) or (3) of 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.
(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.
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 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.
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:
(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.
(1) In deciding whether to issue a competition notice, the Commission must have regard to:
(a) any guidelines in force under subsection (2); and
(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:
(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 Magistrates 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 Magistrates Court or a Federal Magistrate may, by order, on such conditions as the Court or the Federal Magistrate thinks fit, stay those proceedings.
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
(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).
(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
(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).
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.
(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.
(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:
(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.
(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.
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:
(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 non‑profit community organisation or a non‑profit charitable organisation; 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.
(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.
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.
(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.
151BJ Conduct includes proposed conduct
A reference in this Division to conduct includes a reference to proposed conduct.
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;
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 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.
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.
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.
(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.
(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.
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:
(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
(e) the making of payments for such other goods or services.
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;
(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.
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).
(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
(e) the operation of Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(f) the operation of Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges).
(5) Record‑keeping rules made before 1 July 1997 come into force on 1 July 1997.
(6) This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).
151BUAA Minister may give directions to Commission
(1) The Minister may give written directions to the Commission in relation to the exercise of its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC.
(1A) The Minister may only give a direction under subsection (1) that:
(a) requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC; or
(b) requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC in a particular way.
(1B) The Minister may give a written direction to the Commission requiring it, in the event that it receives a specified Ministerially‑directed report, to:
(a) prepare a specified kind of analysis of the report; and
(b) publish the analysis within a specified period after receiving the report.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(1C) The Minister may give a written direction to the Commission requiring it, in the event that it receives a report in a specified series of Ministerially‑directed periodic reports, to:
(a) prepare a specified kind of analysis of the report; and
(b) publish the analysis within a specified period after receiving the report.
(2) The Commission must comply with a direction under this section.
(3) If:
(a) a record‑keeping rule is made as a result of a direction under subsection (1); and
(b) the rule requires the preparation of a report;
then:
(c) the rule must contain a statement to the effect that the rule was made as a result of a Ministerial direction; and
(d) a report prepared under the rule is to be known as a Ministerially‑directed report.
(4) A direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
151BUAB Request for disclosure
(1) A person may request the Commission to exercise its powers under:
(a) section 151BUA or 151BUB in relation to a particular report; or
(b) section 151BUC in relation to a particular series of periodic reports.
(2) The request must be in writing.
(3) The Commission must consider the request.
(4) However, the Commission need not consider the request if it considers that the request is frivolous, vexatious or was not made in good faith.
151BUA Commission gives access to reports
(1) This section applies to a particular report given to the Commission by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.
Criteria for disclosure
(2) If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to:
(a) promote competition in markets for listed carriage services; or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(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 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 46(2) 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:
(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 46(2) 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 as soon as practicable after the end of the period specified in the notice; and
(b) take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the notice.
(9) If, in accordance with subsection (8), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the notice concerned.
Offences
(10) A person who contravenes subsection (7) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.
(11) A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
151BUB Carrier or carriage service provider gives access to reports
(1) This section applies to a report prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.
Disclosure direction
(2) If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to:
(a) promote competition in markets for listed carriage services; or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider concerned:
(c) a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the direction; or
(d) a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase:
(i) by such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in the direction;
as soon as practicable after the end of the period specified in the direction.
Note: For specification by class, see subsection 46(2) 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:
(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).
Reasonable charge
(10) The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase.
Compliance with terms and conditions
(11) If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
(12) A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.
(13) A person who contravenes subsection (11) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
Section 151BUC does not limit this section
(14) Section 151BUC does not limit this section.
151BUC Carrier or carriage service provider gives access to periodic reports
(1) This section applies to a particular series of periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.
Disclosure direction
(2) If the Commission is satisfied that the disclosure of each of the reports in that series, or the disclosure of particular extracts from each of the reports in that series, would be likely to:
(a) promote competition in markets for listed carriage services; or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(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 46(2) of the Acts Interpretation Act 1901.
(3) In the case of the first report in the series (or extracts from that report), the applicable time ascertained in accordance with a direction under subsection (2) must be later than the 28th day after the day on which the direction was given.
(4) A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.
Criteria for giving direction
(5) In deciding whether to give a direction under subsection (2), the Commission must have regard to:
(a) the legitimate commercial interests of the carrier or carriage service provider concerned; and
(b) such other matters as the Commission considers relevant.
Consultation before giving direction
(6) The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:
(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the direction; and
(ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and
(b) considered any submission that was received within that time limit.
The time limit specified in the notice must be at least 28 days after the notice was given.
Direction to give information about availability of reports
(7) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that each of those reports is, or extracts are, available for inspection and purchase.
(8) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that each of those reports is, or the extracts are, available for inspection and purchase.
(9) A person must comply with a direction under subsection (7) or (8).
Reasonable charge
(10) The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase.
Compliance with terms and conditions
(11) If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
(12) A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.
(13) A person who contravenes subsection (11) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
151BUD Exemption of reports from access requirements
Full exemption
(1) The Commission may make a written 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 46(2) of the Acts Interpretation Act 1901.
(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 make a written 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 46(2) of the Acts Interpretation Act 1901.
(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.
(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.
Disallowable instrument
(6) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
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 46(2) 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
(d) on such terms and conditions (if any) as the Commission determines.
(4) If subsection (3) applies, the Commission must take reasonable steps to inform the persons who access copies of the report or extracts of the terms and conditions (if any) on which the copies are available.
(5) If, in accordance with subsection (3), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) on which the copy is available.
Offences
(6) A person is guilty of an offence if:
(a) the person is subject to a direction under paragraph (2)(b); and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(7) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (5); and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(8) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.
Application of section 151BUA
(9) This section does not limit section 151BUA.
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 46(2) 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 the report is, or extracts are, available; and
(b) of the way in which the report or extracts may be accessed.
(5) If the Commission gives the carrier or provider a direction under paragraph (2)(b), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(b) direction that:
(a) the report is, or the extracts are, available; and
(b) of the way in which the report or extracts may be accessed.
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
(7) A person is guilty of an offence if:
(a) the person is subject to a direction under subsection (4) or (5); and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(8) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (6); and
(b) the person does an act or omits to do an act; and
(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 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 46(2) 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.
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
(7) A person is guilty of an offence if:
(a) the person is subject to a direction under subsection (4) or (5); and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(8) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (6); and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(9) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.
Application of section 151BUC
(10) This section does not limit section 151BUC.
Application of section 151BUDB
(11) Section 151BUDB does not limit this section.
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.
(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.
(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.
(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
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.
(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;
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
(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
(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.
(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).
(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.
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.
(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:
(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;
(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).
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 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.
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).
Division 10—Review of decisions
(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.
(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 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.
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.
Division 12—Monitoring of telecommunications charges paid by consumers
151CM Monitoring of telecommunications charges paid by consumers
(1) The Commission must monitor, and report each financial year to the Minister on:
(a) charges paid by consumers for the following goods and services:
(i) listed carriage services;
(ii) goods for use in connection with a listed carriage service;
(iii) services for use in connection with a listed carriage service; and
(b) the adequacy of Telstra’s compliance with Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with price control arrangements for Telstra); and
(c) the adequacy of each universal service provider’s compliance with Division 11 of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of universal service charges).
(2) The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the financial year concerned.
(3) The Minister must cause a copy of a report under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.
(4) This section applies to a financial year ending on or after 30 June 1998.
(5) In this section:
listed carriage service has the same meaning as in the Telecommunications Act 1997.
universal service provider has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.
Division 12A—Reports about competition in the telecommunications industry
151CMA Public reports about competition in the telecommunications industry
(1) The Commission must monitor, and report to the Minister on, such matters relating to competition in the telecommunications industry as are specified in a written determination made by the Minister for the purposes of this subsection.
Note: For examples of matters that may be specified in a determination under subsection (1), see section 151CMC.
(2) Reports under subsection (1) are to be given to the Minister in respect of such regular intervals as are specified in a written determination made by the Minister for the purposes of this subsection.
(3) Reports under subsection (1) must comply with such requirements in relation to the protection of confidential information as are specified in a written determination made by the Minister for the purposes of this subsection. For this purpose, information is confidential information if, and only if, the publication of the information could reasonably be expected to prejudice substantially the commercial interests of a person.
(4) The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the regular interval to which the report relates.
(5) The Minister must cause a copy of a report under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.
(6) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(7) In this section:
telecommunications industry has the same meaning as in the Telecommunications Act 1997.
151CMB Confidential reports about competition in the telecommunications industry
(1) The Commission must monitor, and report to the Minister on, such matters relating to competition in the telecommunications industry as are specified in a written determination made by the Minister for the purposes of this subsection.
Note: For examples of matters that may be specified in a determination under subsection (1), see section 151CMC.
(2) Reports under subsection (1) are to be given to the Minister in respect of such regular intervals as are specified in a written determination made by the Minister for the purposes of this subsection.
(3) The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the regular interval to which the report relates.
(4) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(5) In this section:
telecommunications industry has the same meaning as in the Telecommunications Act 1997.
151CMC Examples of matters that may be specified in a determination under section 151CMA or 151CMB
The following are examples of matters that may be specified in a determination under subsection 151CMA(1) or 151CMB(1):
(a) charges for:
(i) carriage services; or
(ii) goods for use in connection with a carriage service; or
(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.
Division 13—Review of operation of this Part
151CN Review of operation of this Part
(1) Before 1 July 2000, the Minister must cause to be conducted a review of the operation of this Part.
(2) In conducting the review, consideration must be given to the question whether any or all of the provisions of this Part should be repealed or amended.
(3) The Minister must cause to be prepared a report of the review.
(4) The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.
Division 14—Operational separation for Telstra
151CP Operational separation for Telstra
(1) This section applies if Telstra has engaged in conduct in order to comply with a final operational separation plan in force under Part 8 of Schedule 1 to the Telecommunications Act 1997.
(2) 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.
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.
Part XIC—Telecommunications access regime
The following is a simplified outline of this Part:
• This Part sets out a telecommunications access regime.
• The Commission may declare carriage services and related services to be declared services.
• 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Ministerial pricing determination means a determination under section 152CH.
modifications includes additions, omissions and substitutions.
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.
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 has the meaning given by section 152AR.
telecommunications network has the same meaning as in the Telecommunications Act 1997.
variation agreement has the meaning given by subsection 152BE(3).
152AD This Part binds the Crown
(1) The following provisions of this Act bind the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory:
(a) this Part;
(b) the other provisions of this Act so far as they relate to this Part.
(2) This Part does not make the Crown liable to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of the Commonwealth or an authority of a State or Territory.
152AE Extension to external Territories
This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).
(1) A reference in this Part to access, in relation to a declared service, is a reference to access by a service provider in order that the service provider can provide carriage services and/or content services.
(2) For the purposes of this Part, anything done by a carrier or carriage service provider in fulfilment of a standard access obligation is taken to be an aspect of access to a declared service.
(3) For the purposes of this Part, if an access determination imposes a requirement on a carrier or carriage service provider as mentioned in paragraph 152BC(3)(e), anything done by the carrier or provider in fulfilment of the requirement is taken to be an aspect of access to a declared service.
(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 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.
152AH Reasonableness—terms and conditions
(1) For the purposes of this Part, in determining whether particular terms and conditions are reasonable, regard must be had to the following matters:
(a) whether the terms and conditions promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services;
(b) the legitimate business interests of the carrier or carriage service provider concerned, and the carrier’s or provider’s investment in facilities used to supply the declared service concerned;
(c) the interests of persons who have rights to use the declared service concerned;
(d) the direct costs of providing access to the declared service concerned;
(e) the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility;
(f) the economically efficient operation of a carriage service, a telecommunications network or a facility.
(2) Subsection (1) does not, by implication, limit the matters to which regard may be had.
152AI When public inquiry commences
For the purposes of this Part, a public inquiry held by the Commission under Part 25 of the Telecommunications Act 1997 commences when the Commission publishes the notice under section 498 of that Act about the inquiry.
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.
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
(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.
Declaration has effect
(4) A declaration under this section has effect accordingly.
Gazettal of declaration
(5) A copy of a declaration under this section 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
(7) If:
(a) a person 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).
Declaration is not a legislative instrument
(9) A declaration under this section is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(10) A variation of a declaration made under this section is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(11) A revocation of a declaration made under this section is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(12) If:
(a) a declaration was made under this section before the commencement of this subsection; and
(b) the declaration ceased to be in force before the commencement of this subsection;
then:
(c) the declaration is taken never to have been a legislative instrument for the purposes of the Legislative Instruments Act 2003; and
(d) if the declaration was varied or revoked before the commencement of this subsection—the variation or revocation is taken never to have been a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(13) For the purposes of paragraph (12)(b), assume that the Legislative Instruments Act 2003 had never been enacted.
(14) Subsections (9) to (12) are enacted for the avoidance of doubt.
152ALA Duration of declaration
Expiry date
(1) A declaration under section 152AL must specify an expiry date for the declaration.
(2) In specifying an expiry date, the Commission must have regard to:
(a) the principle that the expiry date for a declaration should occur in the period:
(i) beginning 3 years after the declaration was made; and
(ii) ending 5 years after the declaration was made;
unless, in the Commission’s opinion, there are circumstances that warrant the expiry date occurring in a shorter or longer period; and
(b) such other matters (if any) as the Commission considers relevant.
(3) Subsection (2) has effect subject to subsection (4).
Extension of expiry date
(4) The Commission may, by notice published in the Gazette, extend or further extend the expiry date of a specified declaration under section 152AL, so long as the extension or further extension is for a period of not more than 5 years.
Duration of declaration
(5) Unless sooner revoked, a declaration under section 152AL ceases to be in force on the expiry date of the declaration.
Fresh declaration
(6) If a declaration under section 152AL expires, this Part does not prevent the Commission from making a fresh declaration under section 152AL in the same terms as the expired declaration.
(6A) If the fresh declaration comes into force immediately after the expiry of the expired declaration, the fresh declaration is taken to be a declaration that replaces the expired declaration.
Public inquiry during 18‑month period ending on the expiry date of a declaration
(7) The Commission must:
(a) during the 18‑month period ending on the expiry date of a declaration, hold a public inquiry under Part 25 of the Telecommunications Act 1997 about:
(i) whether to extend or further extend the expiry date of the declaration; and
(ii) whether to revoke the declaration; and
(iii) whether to vary the declaration; and
(iv) whether to allow the declaration to expire without making a new declaration under section 152AL; and
(v) whether to allow the declaration to expire and then to make a new declaration under section 152AL; and
(vi) whether to extend or further extend the expiry date of a declaration by a period of not more than 12 months and then to allow the declaration to expire without making a new declaration under section 152AL; and
(b) prepare a report about the inquiry under section 505 of the Telecommunications Act 1997; and
(c) publish the report during the 180‑day period ending on the expiry date of the first‑mentioned declaration.
(8) If:
(a) after holding a public inquiry under subsection (7) in relation to a declaration, the Commission allows the declaration to 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) in relation to the new declaration.
(9) If:
(a) after holding a public inquiry under subsection (7) in relation to a declaration, the Commission revokes or varies the declaration; and
(b) the report mentioned in paragraph (7)(b) was published during the 180‑day period ending at the time of the revocation or variation;
the Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c) in relation to the revocation or variation (as those paragraphs apply to the power of revocation and variation because of subsection 152AO(1)).
Extension notice is not a legislative instrument
(10) A notice under subsection (4) is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(11) If:
(a) a declaration was made under section 152AL before the commencement of this subsection; and
(b) a notice relating to the declaration was published under subsection (4) of this section before the commencement of this subsection; and
(c) the declaration ceased to be in force before the commencement of this subsection;
the notice is taken never to have been a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(12) For the purposes of paragraph (11)(c), assume that the Legislative Instruments Act 2003 had never been enacted.
(13) Subsections (10) and (11) are enacted for the avoidance of doubt.
152AM Inquiries about proposals to declare services
(1) This section applies to a public inquiry of a kind mentioned in paragraph 152AL(3)(a) or 152ALA(7)(a).
(2) The Commission may hold the inquiry:
(a) on its own initiative; or
(b) if requested in writing to do so by a person.
(3) The Commission does not have a duty to consider whether to hold a public inquiry of a kind mentioned in paragraph 152AL(3)(a) 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 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.
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) 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.
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 152ALA(7)(a) of this Act.
(3) The Register is to be maintained by electronic means.
(4) The Register is to be made available for inspection on the Commission’s website.
(5) The Register is not a legislative instrument.
152AQC Compensation for acquisition of property
(1) If the operation of any or all of the following provisions:
(a) subsection 152AL(9), (10), (11), (12), (13) or (14);
(b) subsection 152ALA(10), (11), (12) or (13);
would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
Division 3—Standard access obligations
152AR Standard access obligations
(1) This section sets out the standard access obligations.
Access provider and active declared services
(2) For the purposes of this section, if a carrier or a carriage service provider 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.
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 46(2) of the Acts Interpretation Act 1901.
(4C) The regulations may provide that, for the purposes of subsection (4A), a specified act or thing is taken to be provisioning.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
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.
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.
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.
152ASA Anticipatory class exemptions from 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.
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.
(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 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 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 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:
(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.
(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;
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.
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:
(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
(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
(b) any obligations under section 152AYA that are applicable to the carrier.
(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
(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.
(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.
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 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
(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.
(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
(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
The Commission must, in exercising its powers under sections 152BBA and 152BBC, 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.
Division 4—Access determinations
Subdivision A—Commission may make 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:
(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).
(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.
(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
(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;
(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;
(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;
(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.
(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.
(5) An access determination is of no effect to the extent to which it contravenes subsection (1), (3) or (3A).
(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
(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 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.
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.
(4) 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 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.
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
(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.
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.
(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:
(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:
(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:
(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
(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.
(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.
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).
(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.
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.
(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.
(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.
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.
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:
(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.
(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.
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.
(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;
(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.
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;
(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;
(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
(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.
(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.
(5) Binding rules of conduct are of no effect to the extent to which they contravene subsection (1), (3) or (3A).
(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.
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 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.
(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 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.
(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.
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.
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.
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;
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.
(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;
(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).
(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;
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 Lodgment of access agreements with the Commission
(1) If:
(a) an access agreement is covered by subsection 152BE(1); and
(b) the agreement was entered into after the commencement of this section;
the carrier or carriage service provider who supplies, or proposes to supply, the service to which the agreement relates must, within 28 days after the day on which the agreement was entered into, give the Commission:
(c) a copy of the agreement; and
(d) a written statement setting out such information (if any) about the agreement as is specified in an instrument in force under subsection (4).
(2) If:
(a) under subsection 152BE(2), an agreement becomes an access agreement after the commencement of this section; and
(b) the agreement was entered into after the commencement of this section;
the carrier or carriage service provider who supplies, or proposes to supply, the service to which the agreement relates must, within 28 days after the day on which the agreement became an access agreement, give the Commission:
(c) a copy of the agreement; and
(d) a written statement setting out such information (if any) about the agreement as is specified in an instrument in force under subsection (5).
(3) If a variation agreement is entered into after the commencement of this section, the carrier or carriage service provider who supplies, or proposes to supply, the service to which the relevant access agreement relates must, within 28 days after the day on which the variation agreement was entered into, give the Commission:
(a) a copy of the variation agreement; and
(b) a written statement setting out such information (if any) about the variation agreement as is specified in an instrument in force under subsection (6).
(4) The Commission may, by writing, specify information for the purposes of paragraph (1)(d).
(5) The Commission may, by writing, specify information for the purposes of paragraph (2)(d).
(6) The Commission may, by writing, specify information for the purposes of paragraph (3)(b).
(7) The Commission may, by writing, require information in a statement given to the Commission under subsection (1), (2) or (3) to be verified by statutory declaration.
(8) The Commission must publish an instrument under subsection (4), (5), (6) or (7) on the Commission’s website.
(9) The Commission may, before the end of the 28‑day period referred to in subsection (1), (2) or (3), extend that period.
(10) An instrument under subsection (4), (5), (6) or (7) is not a legislative instrument.
(11) This section does not limit section 155.
152BEB Notification of termination of access agreement
(1) This section applies if:
(a) a copy of an access agreement has been given to the Commission under section 152BEA; and
(b) the agreement is terminated, rescinded or cancelled before the expiry of the agreement.
(2) The carrier or carriage service provider who supplied, or proposed to supply, the service to which the agreement relates must, within 28 days after the termination, rescission or cancellation, as the case may be, notify the Commission, in writing, of the termination, rescission or cancellation.
152BEC Carrier licence condition
A carrier licence held by a carrier is subject to a condition that the carrier must comply with sections 152BEA and 152BEB.
(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 and 152BEB.
Division 5—Access undertakings
Subdivision B—Special access undertakings
152CBA What is a special access undertaking?
Scope
(1) This section applies to a person who is, or expects to be, a carrier or a carriage service provider supplying:
(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);
whether to itself or to other persons, so long as the service is not a declared 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.
(3) 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).
(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.
(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).
(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 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.
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 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
(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
(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
(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.
(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:
(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
(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.
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) the Commission is satisfied that 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
(b) the Commission is satisfied that those terms and conditions are reasonable; and
(c) the Commission is satisfied that the undertaking is consistent with any Ministerial pricing determination; and
(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
(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 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).
(6) If a special access undertaking is given to the Commission in response to a notice under section 152CBDA, the Commission is 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
(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.
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 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
(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 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.
(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 subsection 152AL(7).
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.
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.
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.
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.
Division 6—Ministerial pricing determinations
152CH Ministerial pricing determinations
(1) The Minister may make a written 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.
(2) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(3) In this section:
price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
(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.
(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.
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 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.
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 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.
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.
(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.
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.
(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 for the purposes of the Legislative Instruments Act 2003.
Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.
(1) Before making any Procedural Rules, the Commission must:
(a) publish a draft of the Procedural Rules on the Commission’s website and invite people to make submissions to the Commission on the draft Procedural Rules; and
(b) consider any submissions that are received within the time limit specified by the Commission when it published the draft Procedural Rules.
(2) The time limit specified by the Commission must be at least 30 days after the day of publication of the draft Procedural Rules.
152ELC Plan for the development of Procedural Rules
(1) Within 6 months after the commencement of this section, the Commission must:
(a) prepare a written plan setting out:
(i) an outline of the Commission’s proposals for making Procedural Rules; and
(ii) an indicative timetable for making those Procedural Rules; and
(b) make a copy of the plan available on the Commission’s website.
(2) A failure to comply with the plan does not affect the validity of an instrument under subsection 152ELA(1).
(3) The plan is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
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:
(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.
(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
(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.
(2) A review under subsection (1) must make provision for public consultation.
(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 Operational separation for Telstra
(1) This section applies if Telstra has engaged in conduct in order to comply with a final operational separation plan in force under Part 8 of Schedule 1 to the Telecommunications Act 1997.
(2) 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.
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.
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).
In this Part:
consultant means a person engaged under section 27A.
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.
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.
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.
(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.
(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.
Division 3—Entry to premises 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;
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.
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.
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
(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.
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 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:
(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.
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
(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.
(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.
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.
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.
(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.
(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
(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.
Application for warrant
(1) An inspector may apply to a magistrate for a warrant under this section in relation to premises.
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.
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:
(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
(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.
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.
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.
(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.
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 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.
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.
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
(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
(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;
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;
(j) the Australian Competition Tribunal;
(k) the Director of Public Prosecutions;
(l) the Reserve Bank of Australia;
(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.
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, 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
(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
(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
(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.
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.
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.
(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).
(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
(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 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.
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;
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
(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:
(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:
(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:
(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:
(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;
(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
(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.
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.
(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
(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.
(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.
(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.
A person who:
(a) threatens, intimidates or coerces another person; or
(b) causes or procures damage, loss or disadvantage to another person;
for or on account of that other person proposing to furnish or having furnished information, or proposing to produce or having produced documents, to the Commission, the Tribunal or the AER, or for or on account of the other person proposing to appear or having appeared as a witness before the Tribunal is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
(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:
(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 to 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.
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:
(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
(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:
(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.
(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
(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 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.
(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.
(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.
(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
(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
(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:
(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.
(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
(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 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.
Part XIII—Application and transitional provisions relating to the competition provisions
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:
(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
(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.
Competition and Consumer Act 2010
Act No. 51 of 1974 as amended
This compilation was prepared on 1 January 2011
taking into account amendments up to Act No. 148 of 2010
Volume 3 includes: Table of Contents
Schedules 1 and 2
Note 1
Table of Acts
Act Notes
Table of Amendments
Notes 2 and 3
Table A
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
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...................... 8
Subdivision B—Offences etc. 8
44ZZRF Making a contract etc. containing a cartel provision............................ 8
44ZZRG Giving effect to a cartel provision....................................................... 9
44ZZRH Determining guilt.............................................................................. 10
44ZZRI. Court may make related civil orders.................................................. 11
Subdivision C—Civil penalty provisions 11
44ZZRJ. Making a contract etc. containing a cartel provision.......................... 11
44ZZRK Giving effect to a cartel provision..................................................... 11
Subdivision D—Exceptions 12
44ZZRL Conduct notified................................................................................ 12
44ZZRMCartel provision subject to grant of authorisation.............................. 12
44ZZRN Contracts, arrangements or understandings between related bodies corporate 12
44ZZRO Joint ventures—prosecution.............................................................. 13
44ZZRP Joint ventures—civil penalty proceedings......................................... 16
44ZZRQ Covenants affecting competition....................................................... 18
44ZZRR Resale price maintenance................................................................... 18
44ZZRS Exclusive dealing.............................................................................. 18
44ZZRT Dual listed company arrangement..................................................... 19
44ZZRU Acquisition of shares or assets.......................................................... 20
44ZZRV Collective acquisition of goods or services by the parties to a contract, arrangement or understanding 20
Division 2—Other provisions 21
45.......... Contracts, arrangements or understandings that restrict dealings or affect competition 21
45B....... Covenants affecting competition....................................................... 24
45C....... Covenants in relation to prices.......................................................... 27
45D....... Secondary boycotts for the purpose of causing substantial loss or damage 29
45DA.... Secondary boycotts for the purpose of causing substantial lessening of competition 30
45DC.... Involvement and liability of employee organisations......................... 31
45DD.... Situations in which boycotts permitted.............................................. 32
45E........ Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services 35
45EA..... Provisions contravening section 45E not to be given effect.............. 38
45EB..... Sections 45D to 45EA do not affect operation of other provisions of Part 39
46.......... Misuse of market power................................................................... 39
47.......... Exclusive dealing.............................................................................. 42
48.......... Resale price maintenance................................................................... 49
49.......... Dual listed company arrangements that affect competition................ 49
50.......... Prohibition of acquisitions that would result in a substantial lessening of competition 50
51.......... Exceptions......................................................................................... 52
Schedule 2—The Australian Consumer Law 57
Chapter 1—Introduction 69
1............ Application of this Schedule............................................................. 69
2............ Definitions........................................................................................ 69
3............ Meaning of consumer....................................................................... 82
4............ Misleading representations with respect to future matters................. 85
5............ When donations are treated as supplies or acquisitions..................... 86
6............ Related bodies corporate................................................................... 87
7............ Meaning of manufacturer................................................................. 87
8............ Goods affixed to land or premises.................................................... 88
9............ Meaning of safety defect in relation to goods.................................... 88
10.......... Asserting a right to payment............................................................. 89
11.......... References to acquisition, supply and re‑supply............................... 90
12.......... Application of Schedule in relation to leases and licences of land and buildings 91
13.......... Loss or damage to include injury...................................................... 91
14.......... Meaning of continuing credit contract.............................................. 91
15.......... Contraventions of this Schedule........................................................ 92
16.......... Severability....................................................................................... 92
17.......... References to provisions in this Schedule......................................... 93
Chapter 2—General protections 94
Part 2‑1—Misleading or deceptive conduct 94
18.......... Misleading or deceptive conduct....................................................... 94
19.......... Application of this Part to information providers.............................. 94
Part 2‑2—Unconscionable conduct 96
20.......... Unconscionable conduct within the meaning of the unwritten law.... 96
21.......... Unconscionable conduct................................................................... 96
22.......... Unconscionable conduct in business transactions............................. 97
Part 2‑3—Unfair contract terms 102
23.......... Unfair terms of consumer contracts................................................ 102
24.......... Meaning of unfair........................................................................... 102
25.......... Examples of unfair terms................................................................ 103
26.......... Terms that define main subject matter of consumer contracts etc. are unaffected 104
27.......... Standard form contracts.................................................................. 104
28.......... Contracts to which this Part does not apply.................................... 105
Chapter 3—Specific protections 106
Part 3‑1—Unfair practices 106
Division 1—False or misleading representations etc. 106
29.......... False or misleading representations about goods or services.......... 106
30.......... False or misleading representations about sale etc. of land.............. 107
31.......... Misleading conduct relating to employment.................................... 108
32.......... Offering rebates, gifts, prizes etc..................................................... 108
33.......... Misleading conduct as to the nature etc. of goods........................... 110
34.......... Misleading conduct as to the nature etc. of services........................ 110
35.......... Bait advertising............................................................................... 110
36.......... Wrongly accepting payment............................................................ 111
37.......... Misleading representations about certain business activities........... 112
38.......... Application of provisions of this Division to information providers 113
Division 2—Unsolicited supplies 115
39.......... Unsolicited cards etc....................................................................... 115
40.......... Assertion of right to payment for unsolicited goods or services..... 116
41.......... Liability etc. of recipient for unsolicited goods................................ 117
42.......... Liability of recipient for unsolicited services................................... 118
43.......... Assertion of right to payment for unauthorised entries or advertisements 118
Division 3—Pyramid schemes 121
44.......... Participation in pyramid schemes.................................................... 121
45.......... Meaning of pyramid scheme........................................................... 121
46.......... Marketing schemes as pyramid schemes......................................... 122
Division 4—Pricing 124
47.......... Multiple pricing............................................................................... 124
48.......... Single price to be specified in certain circumstances....................... 125
Division 5—Other unfair practices 128
49.......... Referral selling................................................................................ 128
50.......... Harassment and coercion................................................................ 128
Part 3‑2—Consumer transactions 129
Division 1—Consumer guarantees 129
Subdivision A—Guarantees relating to the supply of goods 129
51.......... Guarantee as to title......................................................................... 129
52.......... Guarantee as to undisturbed possession.......................................... 129
53.......... Guarantee as to undisclosed securities etc....................................... 130
54.......... Guarantee as to acceptable quality................................................... 131
55.......... Guarantee as to fitness for any disclosed purpose etc..................... 132
56.......... Guarantee relating to the supply of goods by description................ 133
57.......... Guarantees relating to the supply of goods by sample or demonstration model 133
58.......... Guarantee as to repairs and spare parts........................................... 134
59.......... Guarantee as to express warranties................................................. 134
Subdivision B—Guarantees relating to the supply of services 135
60.......... Guarantee as to due care and skill................................................... 135
61.......... Guarantees as to fitness for a particular purpose etc........................ 135
62.......... Guarantee as to reasonable time for supply..................................... 136
63.......... Services to which this Subdivision does not apply......................... 136
Subdivision C—Guarantees not to be excluded etc. by contract 136
64.......... Guarantees not to be excluded etc. by contract................................ 136
64A....... Limitation of liability for failures to comply with guarantees.......... 137
Subdivision D—Miscellaneous 138
65.......... Application of this Division to supplies of gas, electricity and telecommunications 138
66.......... Display notices................................................................................ 138
67.......... Conflict of laws............................................................................... 139
68.......... Convention on Contracts for the International Sale of Goods......... 140
Division 2—Unsolicited consumer agreements 141
Subdivision A—Introduction 141
69.......... Meaning of unsolicited consumer agreement................................. 141
70.......... Presumption that agreements are unsolicited consumer agreements 142
71.......... Meaning of dealer........................................................................... 142
72.......... Meaning of negotiation................................................................... 143
Subdivision B—Negotiating unsolicited consumer agreements 143
73.......... Permitted hours for negotiating an unsolicited consumer agreement 143
74.......... Disclosing purpose and identity...................................................... 143
75.......... Ceasing to negotiate on request....................................................... 144
76.......... Informing person of termination period etc..................................... 145
77.......... Liability of suppliers for contraventions by dealers......................... 145
Subdivision C—Requirements for unsolicited consumer agreements etc. 145
78.......... Requirement to give document to the consumer.............................. 145
79.......... Requirements for all unsolicited consumer agreements etc.............. 146
80.......... Additional requirements for unsolicited consumer agreements not negotiated by telephone 147
81.......... Requirements for amendments of unsolicited consumer agreements 148
Subdivision D—Terminating unsolicited consumer agreements 148
82.......... Terminating an unsolicited consumer agreement during the termination period 148
83.......... Effect of termination........................................................................ 150
84.......... Obligations of suppliers on termination.......................................... 150
85.......... Obligations and rights of consumers on termination....................... 151
86.......... Prohibition on supplies etc. for 10 business days........................... 152
87.......... Repayment of payments received after termination......................... 153
88.......... Prohibition on recovering amounts after termination....................... 153
Subdivision E—Miscellaneous 154
89.......... Certain provisions of unsolicited consumer agreements void.......... 154
90.......... Waiver of rights.............................................................................. 155
91.......... Application of this Division to persons to whom rights of consumers and suppliers are assigned etc. 155
92.......... Application of this Division to supplies to third parties.................. 155
93.......... Effect of contravening this Division................................................ 155
94.......... Regulations may limit the application of this Division.................... 156
95.......... Application of this Division to certain conduct covered by the Corporations Act 156
Division 3—Lay‑by agreements 157
96.......... Lay‑by agreements must be in writing etc....................................... 157
97.......... Termination of lay‑by agreements by consumers............................ 157
98.......... Termination of lay‑by agreements by suppliers............................... 158
99.......... Effect of termination........................................................................ 158
Division 4—Miscellaneous 159
100........ Supplier must provide proof of transaction etc................................ 159
101........ Consumer may request an itemised bill........................................... 160
102........ Prescribed requirements for warranties against defects................... 161
103........ Repairers must comply with prescribed requirements..................... 161
Part 3‑3—Safety of consumer goods and product related services 162
Division 1—Safety standards 162
104........ Making safety standards for consumer goods and product related services 162
105........ Declaring safety standards for consumer goods and product related services 163
106........ Supplying etc. consumer goods that do not comply with safety standards 163
107........ Supplying etc. product related services that do not comply with safety standards 165
108........ Requirement to nominate a safety standard..................................... 165
Division 2—Bans on consumer goods and product related services 167
Subdivision A—Interim bans 167
109........ Interim bans on consumer goods or product related services that will or may cause injury to any person etc. 167
110........ Places in which interim bans apply................................................. 168
111........ Ban period for interim bans............................................................. 168
112........ Interaction of multiple interim bans................................................. 169
113........ Revocation of interim bans.............................................................. 170
Subdivision B—Permanent bans 170
114........ Permanent bans on consumer goods or product related services..... 170
115........ Places in which permanent bans apply............................................ 171
116........ When permanent bans come into force............................................ 171
117........ Revocation of permanent bans........................................................ 171
Subdivision C—Compliance with interim bans and permanent bans 171
118........ Supplying etc. consumer goods covered by a ban........................... 171
119........ Supplying etc. product related services covered by a ban................ 172
Subdivision D—Temporary exemption from mutual recognition principles 173
120........ Temporary exemption under the Trans‑Tasman Mutual Recognition Act 1997 173
121........ Temporary exemption under the Mutual Recognition Act 1992....... 174
Division 3—Recall of consumer goods 175
Subdivision A—Compulsory recall of consumer goods 175
122........ Compulsory recall of consumer goods............................................ 175
123........ Contents of a recall notice............................................................... 175
124........ Obligations of a supplier in relation to a recall notice...................... 177
125........ Notification by persons who supply consumer goods outside Australia if there is compulsory recall 177
126........ Interaction of multiple recall notices................................................ 178
127........ Compliance with recall notices........................................................ 178
Subdivision B—Voluntary recall of consumer goods 179
128........ Notification requirements for a voluntary recall of consumer goods 179
Division 4—Safety warning notices 182
129........ Safety warning notices about consumer goods and product related services 182
130........ Announcement of the results of an investigation etc....................... 182
Division 5—Consumer goods, or product related services, associated with death or serious injury or illness 184
131........ Suppliers to report consumer goods associated with the death or serious injury or illness of any person 184
132........ Suppliers to report product related services associated with the death or serious injury or illness of any person 185
132A..... Confidentiality of notices given under this Division....................... 187
Division 6—Miscellaneous 189
133........ Liability under a contract of insurance............................................. 189
Part 3‑4—Information standards 190
134........ Making information standards for goods and services.................... 190
135........ Declaring information standards for goods and services................. 190
136........ Supplying etc. goods that do not comply with information standards 191
137........ Supplying etc. services that do not comply with information standards 192
Part 3‑5—Liability of manufacturers for goods with safety defects 194
Division 1—Actions against manufacturers for goods with safety defects 194
138........ Liability for loss or damage suffered by an injured individual........ 194
139........ Liability for loss or damage suffered by a person other than an injured individual 194
140........ Liability for loss or damage suffered by a person if other goods are destroyed or damaged 195
141........ Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged 195
142........ Defences to defective goods actions................................................ 196
Division 2—Defective goods actions 197
143........ Time for commencing defective goods actions................................ 197
144........ Liability joint and several................................................................ 197
145........ Survival of actions.......................................................................... 197
146........ No defective goods action where workers’ compensation law etc. applies 197
147........ Unidentified manufacturer............................................................... 197
148........ Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard........................................................................................... 198
149........ Representative actions by the regulator........................................... 199
Division 3—Miscellaneous 200
150........ Application of all or any provisions of this Part etc. not to be excluded or modified 200
Chapter 4—Offences 201
Part 4‑1—Offences relating to unfair practices 201
Division 1—False or misleading representations etc. 201
151........ False or misleading representations about goods or services.......... 201
152........ False or misleading representations about sale etc. of land.............. 202
153........ Misleading conduct relating to employment.................................... 203
154........ Offering rebates, gifts, prizes etc..................................................... 204
155........ Misleading conduct as to the nature etc. of goods........................... 205
156........ Misleading conduct as to the nature etc. of services........................ 205
157........ Bait advertising............................................................................... 206
158........ Wrongly accepting payment............................................................ 207
159........ Misleading representations about certain business activities........... 209
160........ Application of provisions of this Division to information providers 210
Division 2—Unsolicited supplies 212
161........ Unsolicited cards etc....................................................................... 212
162........ Assertion of right to payment for unsolicited goods or services..... 213
163........ Assertion of right to payment for unauthorised entries or advertisements 214
Division 3—Pyramid schemes 216
164........ Participation in pyramid schemes.................................................... 216
Division 4—Pricing 217
165........ Multiple pricing............................................................................... 217
166........ Single price to be specified in certain circumstances....................... 217
Division 5—Other unfair practices 219
167........ Referral selling................................................................................ 219
168........ Harassment and coercion................................................................ 219
Part 4‑2—Offences relating to consumer transactions 221
Division 1—Consumer guarantees 221
169........ Display notices................................................................................ 221
Division 2—Unsolicited consumer agreements 222
Subdivision A—Negotiating unsolicited consumer agreements 222
170........ Permitted hours for negotiating an unsolicited consumer agreement 222
171........ Disclosing purpose and identity...................................................... 222
172........ Ceasing to negotiate on request....................................................... 223
173........ Informing person of termination period etc..................................... 224
Subdivision B—Requirements for unsolicited consumer agreements etc. 225
174........ Requirement to give document to the consumer.............................. 225
175........ Requirements for all unsolicited consumer agreements etc.............. 226
176........ Additional requirements for unsolicited consumer agreements not negotiated by telephone 227
177........ Requirements for amendments of unsolicited consumer agreements 228
Subdivision C—Terminating unsolicited consumer agreements 228
178........ Obligations of suppliers on termination.......................................... 228
179........ Prohibition on supplies for 10 business days.................................. 228
180........ Repayment of payments received after termination......................... 229
181........ Prohibition on recovering amounts after termination....................... 229
Subdivision D—Miscellaneous 230
182........ Certain provisions of unsolicited consumer agreements void.......... 230
183........ Waiver of rights.............................................................................. 231
184........ Application of this Division to persons to whom rights of consumers and suppliers are assigned etc. 231
185........ Application of this Division to supplies to third parties.................. 232
186........ Regulations may limit the application of this Division.................... 232
187........ Application of this Division to certain conduct covered by the Corporations Act 232
Division 3—Lay‑by agreements 233
188........ Lay‑by agreements must be in writing etc....................................... 233
189........ Termination charges........................................................................ 233
190........ Termination of lay‑by agreements by suppliers............................... 234
191........ Refund of amounts.......................................................................... 234
Division 4—Miscellaneous 235
192........ Prescribed requirements for warranties against defects................... 235
193........ Repairers must comply with prescribed requirements..................... 235
Part 4‑3—Offences relating to safety of consumer goods and product related services 236
Division 1—Safety standards 236
194........ Supplying etc. consumer goods that do not comply with safety standards 236
195........ Supplying etc. product related services that do not comply with safety standards 237
196........ Requirement to nominate a safety standard..................................... 238
Division 2—Bans on consumer goods and product related services 239
197........ Supplying etc. consumer goods covered by a ban........................... 239
198........ Supplying etc. product related services covered by a ban................ 240
Division 3—Recall of consumer goods 241
199........ Compliance with recall orders......................................................... 241
200........ Notification by persons who supply consumer goods outside Australia if there is compulsory recall 241
201........ Notification requirements for a voluntary recall of consumer goods 242
Division 4—Consumer goods, or product related services, associated with death or serious injury or illness 243
202........ Suppliers to report consumer goods etc. associated with the death or serious injury or illness of any person 243
Part 4‑4—Offences relating to information standards 244
203........ Supplying etc. goods that do not comply with information standards 244
204........ Supplying etc. services that do not comply with information standards 245
Part 4‑5—Offences relating to substantiation notices 247
205........ Compliance with substantiation notices........................................... 247
206........ False or misleading information etc................................................. 247
Part 4‑6—Defences 249
207........ Reasonable mistake of fact.............................................................. 249
208........ Act or default of another person etc................................................ 249
209........ Publication of advertisements in the ordinary course of business... 250
210........ Supplying goods acquired for the purpose of re‑supply................. 250
211........ Supplying services acquired for the purpose of re‑supply.............. 251
Part 4‑7—Miscellaneous 253
212........ Prosecutions to be commenced within 3 years................................ 253
213........ Preference must be given to compensation for victims.................... 253
214........ Penalties for contraventions of the same nature etc......................... 253
215........ Penalties for previous contraventions of the same nature etc........... 254
216........ Granting of injunctions etc.............................................................. 255
217........ Criminal proceedings not to be brought for contraventions of Chapter 2 or 3 255
Chapter 5—Enforcement and remedies 256
Part 5‑1—Enforcement 256
Division 1—Undertakings 256
218........ Regulator may accept undertakings................................................. 256
Division 2—Substantiation notices 257
219........ Regulator may require claims to be substantiated etc....................... 257
220........ Extending periods for complying with substantiation notices......... 258
221........ Compliance with substantiation notices........................................... 258
222........ False or misleading information etc................................................. 259
Division 3—Public warning notices 260
223........ Regulator may issue a public warning notice.................................. 260
Part 5‑2—Remedies 261
Division 1—Pecuniary penalties 261
224........ Pecuniary penalties.......................................................................... 261
225........ Pecuniary penalties and offences..................................................... 265
226........ Defence........................................................................................... 266
227........ Preference must be given to compensation for victims.................... 266
228........ Civil action for recovery of pecuniary penalties.............................. 266
229........ Indemnification of officers.............................................................. 267
230........ Certain indemnities not authorised and certain documents void...... 267
Division 2—Injunctions 268
232........ Injunctions...................................................................................... 268
233........ Consent injunctions......................................................................... 269
234........ Interim injunctions.......................................................................... 269
235........ Variation and discharge of injunctions............................................ 270
Division 3—Damages 271
236........ Actions for damages....................................................................... 271
Division 4—Compensation orders etc. for injured persons and orders for non‑party consumers 272
Subdivision A—Compensation orders etc. for injured persons 272
237........ Compensation orders etc. on application by an injured person or the regulator 272
238........ Compensation orders etc. arising out of other proceedings............. 273
Subdivision B—Orders for non‑party consumers 273
239........ Orders to redress etc. loss or damage suffered by non‑party consumers 273
240........ Determining whether to make a redress order etc. for non‑party consumers 274
241........ When a non‑party consumer is bound by a redress order etc.......... 275
Subdivision C—Miscellaneous 275
242........ Applications for orders................................................................... 275
243........ Kinds of orders that may be made................................................... 276
244........ Power of a court to make orders..................................................... 277
245........ Interaction with other provisions..................................................... 277
Division 5—Other remedies 278
246........ Non‑punitive orders........................................................................ 278
247........ Adverse publicity orders................................................................. 279
248........ Order disqualifying a person from managing corporations............. 279
249........ Privilege against exposure to penalty or forfeiture—disqualification from managing corporations 281
250........ Declarations relating to consumer contracts.................................... 281
Division 6—Defences 282
251........ Publication of advertisement in the ordinary course of business..... 282
252........ Supplying consumer goods for the purpose of re‑supply............... 282
253........ Supplying product related services for the purpose of re‑supply.... 283
Part 5‑3—Country of origin representations 285
254........ Overview........................................................................................ 285
255........ Country of origin representations do not contravene certain provisions 285
256........ Cost of producing or manufacturing goods..................................... 288
257........ Rules for determining the percentage of costs of production or manufacture attributable to a country 289
258........ Proceedings relating to false, misleading or deceptive conduct or representations 290
Part 5‑4—Remedies relating to guarantees 291
Division 1—Action against suppliers 291
Subdivision A—Action against suppliers of goods 291
259........ Action against suppliers of goods................................................... 291
260........ When a failure to comply with a guarantee is a major failure.......... 292
261........ How suppliers may remedy a failure to comply with a guarantee... 293
262........ When consumers are not entitled to reject goods............................. 293
263........ Consequences of rejecting goods.................................................... 294
264........ Replaced goods............................................................................... 295
265........ Termination of contracts for the supply of services that are connected with rejected goods 295
266........ Rights of gift recipients................................................................... 296
Subdivision B—Action against suppliers of services 296
267........ Action against suppliers of services................................................ 296
268........ When a failure to comply with a guarantee is a major failure.......... 297
269........ Termination of contracts for the supply of services......................... 298
270........ Termination of contracts for the supply of goods that are connected with terminated services 298
Division 2—Action for damages against manufacturers of goods 300
271........ Action for damages against manufacturers of goods....................... 300
272........ Damages that may be recovered by action against manufacturers of goods 301
273........ Time limit for actions against manufacturers of goods.................... 302
Division 3—Miscellaneous 303
274........ Indemnification of suppliers by manufacturers............................... 303
275........ Limitation of liability etc.................................................................. 304
276........ This Part not to be excluded etc. by contract................................... 304
276A..... Limitation in certain circumstances of liability of manufacturer to seller.. 305
277........ Representative actions by the regulator........................................... 305
Part 5‑5—Liability of suppliers and credit providers 306
Division 1—Linked credit contracts 306
278........ Liability of suppliers and linked credit providers relating to linked credit contracts 306
279........ Action by consumer to recover amount of loss or damage.............. 307
280........ Cases where a linked credit provider is not liable............................ 307
281........ Amount of liability of linked credit providers................................. 309
282........ Counter‑claims and offsets.............................................................. 309
283........ Enforcement of judgments etc......................................................... 310
284........ Award of interest to consumers...................................................... 311
285........ Liability of suppliers to linked credit providers, and of linked credit providers to suppliers 312
286........ Joint liability proceedings and recovery under section 135 of the National Credit Code 313
Division 2—Non‑linked credit contracts 314
287........ Liability of suppliers and credit providers relating to non‑linked credit contracts 314
Notes 317
Schedule 1—The Schedule version of Part IV
Part 1—Schedule version of Part IV
Note: See section 150A.
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.
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 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.
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.
(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:
(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 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.
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.
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:
(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.
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.
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;
(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:
(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.
(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.
(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.
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.
(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.
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
(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
(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 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.
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:
(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.
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.
(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 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.
(2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.
(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.
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 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 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 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, 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
(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 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.
(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;
(b) the person who required or requires the covenant to be given was or is a religious, charitable or public benevolent institution or a trustee for such an institution and the covenant was or is required to be given for or in accordance with the purposes or objects of that institution; or
(c) the covenant was or is required to be given in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
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.
(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, 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:
(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).
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.
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;
(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
(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:
(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, 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.
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:
(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.
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
(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).
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.
(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
(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
(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:
(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;
(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.
(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 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 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.
(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:
(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;
(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 by, or by a trustee for, a religious, charitable or public benevolent institution, being conduct engaged in for or in accordance with the purposes or objects of that institution; or
(b) conduct engaged in in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
(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.
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 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 a 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).
(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
(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 substantial market for goods or services in:
(a) Australia; or
(b) a State; or
(c) a Territory; or
(d) a region of Australia.
(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;
(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;
(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 International Limited 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 or 48 shall not be taken to have been committed by reason of:
(a) the imposing of, or giving effect to, a condition of:
(i) a licence granted by the proprietor, licensee or owner of a patent, of a registered design, of a copyright or of EL rights within the meaning of the Circuit Layouts Act 1989, or by a person who has applied for a patent or for the registration of a design; or
(ii) an assignment of a patent, of a registered design, of a copyright or of such EL rights, or of the right to apply for a patent or for the registration of a design;
to the extent that the condition relates to:
(iii) the invention to which the patent or application for a patent relates or articles made by the use of that invention;
(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.
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
22 Unconscionable conduct in business transactions
Part 2‑3—Unfair contract terms
23 Unfair terms of consumer contracts
24 Meaning of unfair
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
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
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
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
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
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
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
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
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
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
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
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
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.
(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).
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
(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:
(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 includes:
(a) a book, plan, paper, parchment or other material on which there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and
(b) a disc, tape, paper or other device from which sounds or messages are capable of being reproduced.
enforcement proceeding means:
(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
(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
(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.
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 (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 consumer 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.
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).
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, 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).
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;
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).
substantially transformed, in relation to goods: see section 255(3).
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 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—see section 24(3).
unfair, in relation to a term of a consumer 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).
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.
Acquiring goods as a consumer
(1) A person is taken to have acquired particular goods as a consumer if, and only if:
(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.
(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;
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.
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
(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.
(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.
(1) A manufacturer includes the following:
(a) a person who grows, extracts, produces, processes or assembles goods;
(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.
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.
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
(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.
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;
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.
(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.
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
(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;
(c) the holder of a licence continued in force by section 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992;
(d) the Australian Broadcasting Corporation;
(e) the Special Broadcasting Service Corporation.
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 or 22.
(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to another person, engage in conduct that is, in all the circumstances, unconscionable.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (the consumer), the court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the consumer; and
(b) whether, as a result of conduct engaged in by the person, the consumer 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 consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer 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 consumer could have acquired identical or equivalent goods or services from a person other than the supplier.
(3) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of goods or services to a person by reason only that the person institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration.
(4) For the purpose of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person:
(a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.
(5) A reference in this section to goods or services is a reference to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.
(6) A reference in this section to the supply or possible supply of goods does not include a reference to the supply or possible supply of goods for the purpose of re‑supply or for the purpose of using them up or transforming them in trade or commerce.
(7) Section 4 applies for the purposes of this section in the same way as it applies for the purposes of Division 1 of Part 3‑1.
22 Unconscionable conduct in business transactions
(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to another person (other than a listed public company); or
(b) the acquisition or possible acquisition of goods or services from another person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (the business consumer), the court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the business consumer; and
(b) whether, as a result of conduct engaged in by the supplier, the business consumer 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 business consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business consumer or a person acting on behalf of the business consumer 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 business consumer 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 business consumer was consistent with the supplier’s conduct in similar transactions between the supplier and other like business consumers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the business consumer 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 business consumer:
(i) any intended conduct of the supplier that might affect the interests of the business consumer; and
(ii) any risks to the business consumer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the business consumer); and
(j) if there is a contract between the supplier and the business consumer 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 business consumer; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the supplier and the business consumer in complying with the terms and conditions of the contract; and
(iv) any conduct that the supplier or the business consumer engaged in, in connection with their commercial relationship, after they entered into the contract; and
(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 business consumer for the supply of the goods or services; and
(l) the extent to which the supplier and the business consumer acted in good faith.
(3) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the acquirer) has contravened subsection (1) in connection with the acquisition or possible acquisition of goods or services from another person (the small business supplier), the court may have regard to:
(a) the relative strengths of the bargaining positions of the acquirer and the small business supplier; and
(b) whether, as a result of conduct engaged in by the acquirer, the small business 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 small business 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 small business supplier or a person acting on behalf of the small business 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 small business 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 small business supplier was consistent with the acquirer’s conduct in similar transactions between the acquirer and other like small business suppliers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the small business supplier acted on the reasonable belief that the acquirer would comply with that code; and
(i) the extent to which the acquirer unreasonably failed to disclose to the small business supplier:
(i) any intended conduct of the acquirer that might affect the interests of the small business supplier; and
(ii) any risks to the small business supplier arising from the acquirer’s intended conduct (being risks that the acquirer should have foreseen would not be apparent to the small business supplier); and
(j) if there is a contract between the acquirer and the small business 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 small business supplier; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the acquirer and the small business supplier in complying with the terms and conditions of the contract; and
(iv) any conduct that the acquirer or the small business 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 small business supplier for the acquisition of the goods or services; and
(l) the extent to which the acquirer and the small business supplier acted in good faith.
(4) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with:
(a) the supply or possible supply of goods or services to another person; or
(b) the acquisition or possible acquisition of goods or services from another person;
by reason only that the first‑mentioned person institutes legal proceedings in relation to that supply, possible supply, acquisition or possible acquisition or refers to arbitration a dispute or claim in relation to that supply, possible supply, acquisition or possible acquisition.
(5) 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
(b) the court may have regard to circumstances existing before the commencement of this section but not to conduct engaged in before that commencement.
(6) A reference in this section to the supply or possible supply of goods or services is a reference to the supply or possible supply of goods or services to a person whose acquisition or possible acquisition of the goods or services is or would be for the purpose of trade or commerce.
(7) A reference in this section to the acquisition or possible acquisition of goods or services is a reference to the acquisition or possible acquisition of goods or services by a person whose acquisition or possible acquisition of the goods or services is or would be for the purpose of trade or commerce.
(8) Section 4 applies for the purposes of this section in the same way as it applies for the purposes of Division 1 of Part 3‑1.
Part 2‑3—Unfair contract terms
23 Unfair terms of consumer contracts
(1) A term of a consumer 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.
(1) A term of a consumer 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 consumer 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 consumer 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.
(1) Without limiting section 24, the following are examples of the kinds of terms of a consumer 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;
(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.
(2) Before the Governor‑General makes a regulation for the purposes of subsection (1)(n) prescribing a kind of term, or a kind of effect that a term has, the Minister must take into consideration:
(a) the detriment that a term of that kind would cause to consumers; and
(b) the impact on business generally of prescribing that kind of term or effect; and
(c) the public interest.
26 Terms that define main subject matter of consumer contracts etc. are unaffected
(1) Section 23 does not apply to a term of a consumer contract to the extent, but only to the extent, that the term:
(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 consumer 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.
(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.
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.
Chapter 3—Specific protections
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
(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 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.
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.
(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.
(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
(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.
(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
(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.
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 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 grants interests of the same kind as the publicised interests in land.
Division 2—Unsolicited supplies
(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:
(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;
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.
(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.
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.
(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.
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).
(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):
(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:
(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.
(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.
(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:
(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.
(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
(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.
Division 5—Other unfair practices
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.
(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.
Part 3‑2—Consumer transactions
Division 1—Consumer guarantees
Subdivision A—Guarantees relating to the supply of goods
(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
(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:
(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
(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
(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.
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:
(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;
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.
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:
(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);
(d) in the case of the supply of goods, whether the goods were manufactured, processed or adapted to the special order of the buyer.
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.
(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:
(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.
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).
Division 2—Unsolicited consumer agreements
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
(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.
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.
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
(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 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.
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).
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
(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.
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);
(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).
(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 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
(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:
(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.
(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;
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.
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).
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.
(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.
(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 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.
96 Lay‑by agreements must be in writing etc.
(1) A supplier of consumer 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 consumer 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 consumer goods and a consumer for the supply, in trade or commerce, of the consumer 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 consumer 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 consumer goods to which the agreement relates are delivered to the consumer under the agreement.
(2) A supplier of consumer 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:
(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 consumer 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 consumer 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 consumer goods to which the agreement relates are no longer available.
Note: A pecuniary penalty may be imposed for a contravention of this section.
(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, in relation to that termination except as provided for by this section.
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:
(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.
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 consumer goods.
(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).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
Part 3‑3—Safety of consumer goods and product related services
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;
(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 International Limited 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).
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
(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.
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.
Division 2—Bans on consumer goods and product related services
(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:
(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 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:
(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.
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.
(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.
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.
(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:
(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 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.
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 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
(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.
(1) If consumer goods of a particular kind are recalled as required by a recall notice, a person who has supplied or supplies those 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
(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;
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.
(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.
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:
(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.
(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
(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.
(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:
(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.
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.
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.
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 International Limited 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 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.
(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.
(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.
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
(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.
(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
(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.
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.
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.
(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.
(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 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.
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.
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
(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.
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:
(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
(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.
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.
(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
(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.
(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:
(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
(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
(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
(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
(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.
Division 2—Unsolicited supplies
(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
(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).
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.
(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.
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.
(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.
(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.
Division 5—Other unfair practices
(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.
(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:
(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.
Part 4‑2—Offences relating to consumer transactions
Division 1—Consumer guarantees
(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.
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:
(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.
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).
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
(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);
(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
(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
(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:
(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
(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).
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.
(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:
(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.
(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.
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.
188 Lay‑by agreements must be in writing etc.
(1) A supplier of consumer 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.
(1) A supplier of consumer 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 consumer 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:
(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 consumer 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 consumer goods to which the agreement relates are no longer available.
(3) Subsection (1) is an offence of strict liability.
(1) A supplier of consumer 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.
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.
Part 4‑3—Offences relating to safety of consumer goods and product related services
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.
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:
(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.
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.
(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
(b) if the person is not a body corporate—$220,000.
(3) Subsections (1) and (2) are offences of strict liability.
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.
(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
(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.
(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.
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
(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
(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.
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.
(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.
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
(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:
(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.
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.
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:
(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).
(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.
Chapter 5—Enforcement and remedies
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.
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:
(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.
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 accompanied by a statement of the person that the information is false or misleading.
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.
Division 1—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
(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. |
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. |
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
(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
(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.
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;
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.
(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 consumer 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
(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.
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).
(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.
(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.
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 consumer 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:
(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 consumer 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
(ii) is a party to a consumer 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.
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
(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.
(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 consumer 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 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.
(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 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.
(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.
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.
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
(1) A court may, on the application of a party to a consumer contract or on the application of the regulator, declare that a term of such a contract is an unfair term.
(2) Subsection (1) does not apply unless the consumer contract is a standard form contract.
(3) Subsection (1) does not limit any other power of the court to make declarations.
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 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 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.
Part 5‑3—Country of origin representations
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 as to the country of origin of goods |
(a) the goods have been substantially transformed in that country; and (b) 50% or more of the total cost of producing or manufacturing the goods as worked out under section 256 is attributable to production or manufacturing processes that occurred in that country; and (c) the representation is not a representation to which item 2 or 3 of this table applies. |
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 happened in that country. |
3 |
A representation as to the country of origin of goods by means of a logo specified in the regulations |
(a) the goods have been substantially transformed in the country represented by the logo as the country of origin of the goods; and (b) the prescribed percentage of the cost of producing or manufacturing the goods as worked out under section 256 is attributable to production or manufacturing processes that happened in that country. |
4 |
A representation that goods were grown in a particular country |
(a) the country is the country that could, but for subsection (2), be represented, in accordance with this Part, as the country of origin of the goods, or the country of which the goods are the produce; and (b) each significant ingredient or significant component of the goods was grown in that country; and (c) all, or virtually all, processes involved in the production or manufacture happened in that country. |
5 |
A representation that ingredients or components of goods were grown in a particular country |
(a) the country is the country that could, but for subsection (2), be represented, in accordance with this Part, as the country of origin of the goods, or the country of which the goods are the produce; and (b) each ingredient or component that is claimed to be grown in that country was grown only in that country; and (c) each ingredient or component that is claimed to be grown in that country was processed only in that country; and (d) 50% or more of the total weight of the goods is comprised of ingredients or components that were grown and processed only in that country. |
Note: The regulations may prescribe rules for determining the percentage of the total costs of production or manufacture of goods attributable to production or manufacturing processes that occurred in a particular country, see section 257.
(2) Despite subsection (1), this section does not apply to a representation of a kind referred to in item 4 or 5 in the first column of the table in that subsection if the representation is made together with another representation of a kind referred to in item 1 or 2 in that first column.
(3) Goods are substantially transformed in a country if they undergo a fundamental change in that country in form, appearance or nature such that the goods existing after the change are new and different goods from those existing before the change.
(4) Without limiting subsection (3), the regulations:
(a) may prescribe changes (whether in relation to particular classes of goods or otherwise) that are not fundamental changes for the purposes of that subsection; and
(b) may include examples (in relation to particular classes of goods or otherwise) of changes which are fundamental changes for the purposes of that subsection.
(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”.
(6) The regulations made for the purposes of item 3 of the table in subsection (1) may, in relation to a specified logo, prescribe a percentage in the range of 51% to 100% as the percentage applicable to goods for the purposes of paragraph (b) in the second column of that item.
(7) Goods, or ingredients or components of goods, are grown in a country if they:
(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 items 4 and 5 in the table in subsection (1) in relation to particular goods:
(a) packaging materials are not treated as ingredients or components of the goods; and
(b) disregard the weight of packaging materials in working out the weight of the goods.
(9) For the purposes of items 4 and 5 in the table in subsection (1) in relation to an ingredient or component that has been dried or concentrated by the evaporation of water, and to which water has been added to return the water content of the ingredient or component to no more than its natural level:
(a) the weight of the water so added is included in the weight of the ingredient or component; and
(b) the water so added is treated as having the same origin as the ingredient or component, regardless of its actual origin.
256 Cost of producing or manufacturing goods
(1) The cost of producing or manufacturing goods is worked out, for the purposes of section 255, by adding up the following amounts:
(a) the amount of expenditure on materials in respect of the goods;
(b) the amount of expenditure on labour in respect of the goods;
(c) the amount of expenditure on overheads in respect of the goods;
each worked out in accordance with this table:
Cost of producing or manufacturing goods |
||
Item |
This amount of expenditure: |
is worked out as follows: |
1 |
Expenditure on materials in respect of the goods |
The cost of materials used in the production or manufacture of the goods: (a) that is incurred by the manufacturer of the goods; and (b) that has not been prescribed by regulations made for the purposes of subsection (2)(a). |
2 |
Expenditure on labour in respect of the goods |
The sum of each labour cost: (a) that is incurred by the manufacturer of the goods; and (b) that relates to the production or manufacture of the goods; and (c) that can reasonably be allocated to the production or manufacture of the goods; and (d) that has not been prescribed by regulations made for the purposes of subsection (2)(b). |
3 |
Expenditure on overheads in respect of the goods |
The sum of each overhead cost: (a) that is incurred by the manufacturer of the goods; and (b) that relates to the production or manufacture of the goods; and (c) that can reasonably be allocated to the production or manufacture of the goods; and (d) that has not been prescribed by regulations made for the purposes of subsection (2)(c). |
(2) The regulations may, for the purposes of subsection (1), prescribe that:
(a) the cost of a particular material, or a part of such a cost; or
(b) a particular labour cost, or a part of a labour cost; or
(c) a particular overhead cost, or a part of an overhead cost;
is not allowable in respect of goods, or classes of goods.
(3) The regulations may, for the purposes of subsection (1), prescribe the manner of working out:
(a) the cost of a material, or part of the cost; or
(b) a labour cost, or part of the cost; or
(c) an overhead cost, or part of the cost.
(1) Subject to subsection (2), the regulations may prescribe rules for determining, for the purposes of section 255, the percentage of the total cost of production or manufacture of goods attributable to production or manufacturing processes that occurred in a particular country.
(2) Rules prescribed under subsection (1) must not discriminate (whether favourably or unfavourably) between countries or classes of countries.
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.
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
(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:
(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.
(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
(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.
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, 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.
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
(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:
(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, 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.
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:
(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;
(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.
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.
(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 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).
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.
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.
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 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
(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.
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.
(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.
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 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:
(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.
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
(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.
Notes to the Competition and Consumer Act 2010
Note 1
The Competition and Consumer Act 2010 as shown in this compilation comprises Act No. 51, 1974 amended as indicated in the Tables below.
The Competition and Consumer Act 2010 was amended by the Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations 2006 (No. 1) (SLI 2006 No. 50). The amendments are incorporated in this compilation.
For application, saving or transitional provisions made by the Corporations (Repeals, Consequentials and Transitionals) Act 2001, see Act No. 55, 2001.
For application, saving or transitional provisions made by the Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005, see Act No. 45, 2005.
All relevant information pertaining to application, saving or transitional provisions prior to 25 November 1996 is not included in this compilation. For subsequent information see Table A.
Table of Acts
Act |
Number |
Date |
Date of commencement |
Application, saving or transitional provisions |
Trade Practices Act 1974 |
51, 1974 |
24 Aug 1974 |
Ss. 1 and 2: Royal Assent |
|
Postal and Telecommunications Commissions (Transitional Provisions) Act 1975 |
56, 1975 |
12 June 1975 |
Ss. 4 and 38: |
— |
Trade Practices Act 1975 |
63, 1975 |
19 June 1975 |
19 June 1975 |
— |
Trade Practices Amendment Act 1976 |
88, 1976 |
31 Aug 1976 |
31 Aug 1976 |
Ss. 2 and 6(2) |
Federal Court of Australia (Consequential Provisions) Act 1976 |
157, 1976 |
9 Dec 1976 |
1 Feb 1977 (see s. 2 and Gazette 1977, No. S3) |
— |
Trade Practices Amendment Act 1977 |
81, 1977 |
16 June 1977 |
1 July 1977 |
Ss. |
Remuneration and Allowances Amendment Act 1977 |
111, 1977 |
28 Oct 1977 |
Ss. 1, 2, 5, 9(2), 13, 16, 18 and 19(2): Royal Assent |
S. 19(2) |
Trade Practices Amendment Act (No. 2) 1977 |
151, 1977 |
10 Nov 1977 |
10 Nov 1977 |
S. 6 |
Trade Practices Amendment Act 1978 |
206, 1978 |
6 Dec 1978 |
6 Dec 1978 |
Ss. 8(2) and 20 |
Trade Practices Amendment Act (No. 2) 1978 |
207, 1978 |
6 Dec 1978 |
6 Dec 1978 |
— |
Trade Practices (Boycotts) Amendment Act 1980 |
73, 1980 |
29 May 1980 |
29 May 1980 |
— |
Statute Law Revision Act 1981 |
61, 1981 |
12 June 1981 |
S. 115: Royal Assent (a) |
— |
Statute Law (Miscellaneous Amendments) Act 1981 |
176, 1981 |
2 Dec 1981 |
Part XIX (s. 68): 30 Dec 1981 (b) |
— |
Statute Law (Miscellaneous Amendments) Act |
80, 1982 |
22 Sept 1982 |
Part LXXVI |
S. 280(2) and (3) |
Statute Law (Miscellaneous Provisions) Act (No. 1) 1983 |
39, 1983 |
20 June 1983 |
S. 3: 18 July 1983 (d) |
S. 7(1), (3) and (4) |
Public Service Reform Act 1984 |
63, 1984 |
25 June 1984 |
S. 151(1): 1 July 1984 (see Gazette 1984, No. S245) (e) |
S. 151(9) |
Remuneration and Allowances Amendment Act 1984 |
73, 1984 |
25 June 1984 |
25 June 1984 |
— |
Statute Law (Miscellaneous Provisions) Act (No. 2) 1984 |
165, 1984 |
25 Oct 1984 |
S. 3: (f) |
S. 2(32) |
as amended by |
|
|
|
|
Trade Practices Revision Act 1986 |
17, 1986 |
13 May 1986 |
(see 17, 1986 below) |
— |
Statute Law (Miscellaneous Provisions) Act (No. 1) 1985 |
65, 1985 |
5 June 1985 |
S. 3: 3 July 1985 (g) |
— |
Trade Practices (Transfer of Market Dominance) Amendment Act 1986 |
8, 1986 |
1 May 1986 |
1 June 1986 (see Gazette 1986, |
— |
Trade Practices Revision Act 1986 |
17, 1986 |
13 May 1986 |
Ss. 1, 2, 49(1), 51(1) and 64(1): Royal Assent |
Ss. 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. 3: Royal Assent (h) |
S. 5(1) |
Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 |
23, 1987 |
26 May 1987 |
S. 3: (j) |
S. 4 |
Statute Law (Miscellaneous Provisions) Act 1987 |
141, 1987 |
18 Dec 1987 |
S. 3: 1 Apr 1989 (see Gazette |
S. 5(1) |
Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 |
8, 1988 |
5 Apr 1988 |
Ss. 1–11, 12(b), (c), (e), (f), 13–21, 27, 29 and 30: Royal Assent |
— |
as amended by |
|
|
|
|
Law and Justice Legislation Amendment Act 1988 |
120, 1988 |
14 Dec 1988 |
Part XI (ss. 34, 35): 5 Apr 1988 (l) |
— |
Trade Practices Amendment Act 1988 |
20, 1988 |
11 May 1988 |
S. 4: 1 July 1988 |
— |
Industrial Relations (Consequential Provisions) Act 1988 |
87, 1988 |
8 Nov 1988 |
Ss. 1 and 2: Royal Assent |
— |
as amended by |
|
|
|
|
Industrial Relations Legislation Amendment Act (No. 2) 1990 |
108, 1990 |
18 Dec 1990 |
Ss. 8, 13 and 21: |
— |
Circuit Layouts Act 1989 |
28, 1989 |
22 May 1989 |
Ss. 1 and 2: Royal Assent |
— |
Trade Practices (International Liner Cargo Shipping) Amendment Act 1989 |
34, 1989 |
30 May 1989 |
1 Aug 1989 (see Gazette 1989, |
S. 6 |
Law and Justice Legislation Amendment Act 1989 |
11, 1990 |
17 Jan 1990 |
Part 1 (ss. 1, 2) and Part 3 (ss. 6, 7): Royal Assent |
— |
Trade Practices (Misuse of Trans‑Tasman Market Power) Act 1990 |
70, 1990 |
16 June 1990 |
1 July 1990 (see Gazette 1990, |
— |
Trade Practices Amendment Act 1991 |
49, 1991 |
24 Apr 1991 |
21 Dec 1990 |
— |
Industrial Relations Legislation Amendment Act 1991 |
122, 1991 |
27 June 1991 |
Ss. 4(1), 10(b) and 15–20: 1 Dec 1988 |
S. 31(2) |
Law and Justice Legislation Amendment Act 1991 |
136, 1991 |
12 Sept 1991 |
Ss. 22–25: 10 Oct 1991 (m) |
S. 25 |
Transport and Communications Legislation Amendment Act 1991 |
173, 1991 |
25 Nov 1991 |
Ss. 48–56: Royal Assent (n) |
— |
Special Broadcasting Service Act 1991 |
180, 1991 |
25 Nov 1991 |
S. 116: 23 Dec 1991 (o) |
— |
Law and Justice Legislation Amendment Act 1992 |
22, 1992 |
13 Apr 1992 |
13 Apr 1992 |
— |
Territories Law Reform Act 1992 |
104, 1992 |
30 June 1992 |
S. 24: 1 July 1992 (p) |
— |
Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 |
105, 1992 |
9 July 1992 |
5 Oct 1992 (see s. 2 and Gazette 1992, No. GN38) |
— |
Trade Practices Amendment Act 1992 |
106, 1992 |
9 July 1992 |
9 July 1992 |
S. 3 |
Trade Practices Legislation Amendment Act 1992 |
222, 1992 |
24 Dec 1992 |
21 Jan 1993 |
Ss. 10(2), 16(2), 18(2) and 21 |
Industrial Relations Reform Act 1993 |
98, 1993 |
22 Dec 1993 |
Ss. 42–48 and 54: 30 Mar 1994 (see Gazette 1994, |
S. 54 |
Insurance Laws Amendment Act (No. 2) 1994 |
49, 1994 |
7 Apr 1994 |
Schedule (item 19): Royal Assent (r) |
— |
Law and Justice Legislation Amendment Act (No. 2) 1994 |
141, 1994 |
28 Nov 1994 |
S. 3 (items 21–26): Royal Assent (s) |
— |
Competition Policy Reform Act 1995 |
88, 1995 |
20 July 1995 |
Parts 1, 2 |
Ss. 33, 34, 78, 88–90 and 92 |
Statute Law Revision Act 1996 |
43, 1996 |
25 Oct 1996 |
Schedule 4 (item 147): Royal Assent (u) |
— |
Workplace Relations and Other Legislation Amendment Act 1996 |
60, 1996 |
25 Nov 1996 |
Schedule 17 (items 1–11, 14–24): 17 Jan 1997 (see Gazette 1997, No. S18) (v) |
Sch. 17 (items |
as amended by |
|
|
|
|
Workplace Relations and Other Legislation Amendment Act (No. 2) 1996 |
77, 1996 |
19 Dec 1996 |
Schedule 3 (items 1, 2): (w) |
— |
Trade Practices Amendment (Industry Access Codes) Act 1997 |
28, 1997 |
10 Apr 1997 |
10 Apr 1997 |
— |
Trade Practices Amendment (Telecommunications) Act 1997 |
58, 1997 |
30 Apr 1997 |
30 Apr 1997 |
Sch. 1 (item 15) [see Table A] |
Audit (Transitional and Miscellaneous) Amendment Act 1997 |
152, 1997 |
24 Oct 1997 |
Schedule 2 (item 1260): 1 Jan 1998 (see Gazette 1997, No. GN49) (x) |
— |
Telecommunications Legislation Amendment Act 1997 |
200, 1997 |
16 Dec 1997 |
Schedule 2 (items 30–34): (y) |
— |
Trade Practices Amendment (Fair Trading) Act 1998 |
36, 1998 |
22 Apr 1998 |
Schedule 2: 1 July 1998 (see Gazette 1998, No. S301) |
— |
Financial Sector Reform (Consequential Amendments) Act 1998 |
48, 1998 |
29 June 1998 |
Schedule 1 (item 194) and Schedule 2 (items 24–29): 1 July 1998 (see Gazette 1998, No. S316) (z) |
— |
Gas Pipelines Access (Commonwealth) Act 1998 |
101, 1998 |
30 July 1998 |
Schedule 1 (items 11–26): 30 July 1998 (za) |
Sch. 1 (items 36, 47, 50) [see Table A] |
Trade Practices Amendment (Country of Origin Representations) Act 1998 |
106, 1998 |
30 July 1998 |
Schedule 1: 13 Aug 1998 (see Gazette 1998, No. S398) |
— |
Telecommunications Legislation Amendment Act 1999 |
52, 1999 |
5 July 1999 |
Schedule 1 (items 6–77): Royal Assent (zb) |
Sch. 1 (items |
A New Tax System (Trade Practices Amendment) Act 1999 |
61, 1999 |
8 July 1999 |
9 July 1999 (see s. 2) |
— |
Public Employment (Consequential and Transitional) Amendment Act 1999 |
146, 1999 |
11 Nov 1999 |
Schedule 1 (items 944–955): 5 Dec 1999 (see Gazette 1999, No. S584) (zc) |
— |
A New Tax System (Indirect Tax and Consequential Amendments) Act 1999 |
176, 1999 |
22 Dec 1999 |
Schedule 4: Royal Assent (zd) |
— |
Federal Magistrates (Consequential Amendments) Act 1999 |
194, 1999 |
23 Dec 1999 |
Schedule 25: 23 Dec 1999 (ze) |
— |
Jurisdiction of Courts Legislation Amendment Act 2000 |
57, 2000 |
30 May 2000 |
Schedule 1 (items 77–90): Royal Assent (zf) |
— |
A New Tax System (Trade Practices Amendment) Act 2000 |
69, 2000 |
22 June 2000 |
Schedule 2 (item 1): 6 Nov 1995 (see s. 2(2) and Gazette 1995, No. S423) |
— |
Trade Practices Amendment (International Liner Cargo Shipping) Act 2000 |
123, 2000 |
5 Oct 2000 |
Schedule 1 (items 154–170, 180): 2 Mar 2001 |
Sch. 1 (items |
Jurisdiction of Courts (Miscellaneous Amendments) Act 2000 |
161, 2000 |
21 Dec 2000 |
21 Dec 2000 |
— |
Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001 |
31, 2001 |
28 Apr 2001 |
Schedule 1 (items 240–290): 15 Dec 2001 (zg) |
— |
as amended by |
|
|
|
|
Statute Law Revision Act 2002 |
63, 2002 |
3 July 2002 |
Schedule 2 (item 35): (zga) |
— |
Communications and the Arts Legislation Amendment Act 2001 |
46, 2001 |
5 June 2001 |
5 June 2001 |
S. 6 [see Table A] |
Corporations (Repeals, Consequentials and Transitionals) Act 2001 |
55, 2001 |
28 June 2001 |
Ss. 4–14 and Schedule 3 (items 550–557): 15 July 2001 (see Gazette 2001, No. S285) (zh) |
Ss. 4–14 [see Note 1] |
Trade Practices Amendment Act (No. 1) 2001 |
63, 2001 |
28 June 2001 |
Schedule 2 (items 1–3, 6–8): (zi) |
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) [see Table A] |
as amended by |
|
|
|
|
Statute Law Revision Act 2002 |
63, 2002 |
3 July 2002 |
Schedule 2 (item 32): (zia) |
— |
Treasury Legislation Amendment (Application of Criminal Code) Act (No. 3) 2001 |
117, 2001 |
18 Sept 2001 |
S. 4: 15 Dec 2001 (zj) |
S. 4 [see Table A] |
Financial Services Reform (Consequential Provisions) Act 2001 |
123, 2001 |
27 Sept 2001 |
Schedule 1 (items 364–364D, |
— |
Trade Practices Amendment (Telecommunications) Act 2001 |
124, 2001 |
27 Sept 2001 |
27 Sept 2001 |
Sch. 1 (items 23, 24) [see Table A] |
Treasury Legislation Amendment (Application of Criminal Code) Act (No. 2) 2001 |
146, 2001 |
1 Oct 2001 |
S. 4 and Schedule 2 (items 1, 2, 4–39): 15 Dec 2001 (zn( �/i> |
S. 4 [see Table A] |
Statute Law Revision Act 2002 |
63, 2002 |
3 July 2002 |
Schedule 1 (items 34, 35, 38): 1 July 1999 |
— |
Trade Practices Amendment Act (No. 1) 2002 |
128, 2002 |
11 Dec 2002 |
11 Dec 2002 |
Sch. 1 (items 4, 7, 9) [see Table A] |
Telecommunications Competition Act 2002 |
140, 2002 |
19 Dec 2002 |
19 Dec 2002 |
Sch. 2 (items 9, 15, 19, 21, 69, 110, 111, 113, 115) [see Table A] |
Trade Practices Amendment (Liability for Recreational Services) Act 2002 |
146, 2002 |
19 Dec 2002 |
19 Dec 2002 |
— |
Maritime Legislation Amendment Act 2003 |
7, 2003 |
19 Mar 2003 |
Schedule 1 (items 1–6): 1 Nov 2003 |
— |
Industry, Tourism and Resources Legislation Amendment Act 2003 |
21, 2003 |
11 Apr 2003 |
Schedule 1 (items 25–29): 12 Apr 2003 |
Sch. 1 (item 29) [see Table A] |
Trade Practices Legislation Amendment Act 2003 |
134, 2003 |
17 Dec 2003 |
Schedules 1 and 2: 1 Mar 2004 (see Gazette 2004, No. GN8) |
Sch. 2 (items |
Postal Services Legislation Amendment Act 2004 |
69, 2004 |
22 June 2004 |
22 June 2004 |
— |
Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 |
103, 2004 |
30 June 2004 |
Schedule 3 (items 5, 6): 26 July 2004 (see Gazette 2004, No. GN28) |
— |
Trade Practices Amendment (Australian Energy Market) Act 2004 |
108, 2004 |
30 June 2004 |
Schedules 1 and 2: 23 May 2005 (see F2005L01121) |
— |
Trade Practices Amendment (Personal Injuries and Death) Act (No. 2) 2004 |
113, 2004 |
13 July 2004 |
13 July 2004 |
Sch. 1 (item 11) [see Table A] |
Treasury Legislation Amendment (Professional Standards) Act 2004 |
118, 2004 |
13 July 2004 |
13 July 2004 |
— |
Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005 |
45, 2005 |
1 Apr 2005 |
Schedule 1 (items 168–171) and Schedule 4: 1 July 2005 (zm) |
Sch. 4 [see Note 1] |
Telecommunications Legislation Amendment (Competition and Consumer Issues) Act 2005 |
119, 2005 |
23 Sept 2005 |
Schedules 4–6, Schedule 7 (items 1–3, 5–12, 14–19, 21–28), Schedule 9 and Schedule 12: 24 Sept 2005 |
Sch. 4 (item 2) [see Table A] |
Trade Practices Amendment (Personal Injuries and Death) Act 2006 |
11, 2006 |
23 Mar 2006 |
Schedule 1: 20 April 2006 |
Sch. 1 (item 8) [see Table A] |
Offshore Petroleum (Repeals and Consequential Amendments) Act 2006 |
17, 2006 |
29 Mar 2006 |
Schedule 2 (items 113–116): 1 July 2008 (see s. 2(1) and F2008L02273) |
— |
Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006 |
23, 2006 |
6 Apr 2006 |
Schedule 1: 4 May 2006 |
Sch. 1 (items 2, 5) [see Table A] |
Energy Legislation Amendment Act 2006 |
60, 2006 |
22 June 2006 |
Schedule 1 (items 2–13) and Schedule 2 (item 14): Royal Assent |
— |
Trade Practices Amendment (National Access Regime) Act 2006 |
92, 2006 |
18 Aug 2006 |
Schedule 1: 1 Oct 2006 (see F2006L02999) |
Sch. 1 (items 114–136) [see Table A] |
Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006 |
101, 2006 |
14 Sept 2006 |
Schedule 5 (items 164, 165): Royal Assent |
— |
Maritime Transport and Offshore Facilities Security Amendment (Security Plans and Other Measures) Act 2006 |
109, 2006 |
27 Sept 2006 |
Schedule 2 (items 97–103): Royal Assent |
— |
Trade Practices Legislation Amendment Act (No. 1) 2006 |
131, 2006 |
6 Nov 2006 |
Schedule 1: 1 Jan 2007 (see F2006L04026) |
Sch. 1 (items 52, 53), Sch. 2 (items 13, 14), Sch. 3 (items 28, 29), Sch. 4 (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) [see Table A] |
Australian Energy Market Amendment (Gas Legislation) Act 2007 |
45, 2007 |
10 Apr 2007 |
Schedule 1 (items 58–81): 1 July 2008 (see F2008L02164) |
— |
Broadcasting Legislation Amendment (Digital Radio) Act 2007 |
68, 2007 |
28 May 2007 |
Schedule 1: 29 May 2007 |
— |
Corporations (NZ Closer Economic Relations) and Other Legislation Amendment Act 2007 |
85, 2007 |
21 June 2007 |
Schedule 3 (items 3–9): 19 July 2007 |
— |
Water (Consequential Amendments) Act 2007 |
138, 2007 |
3 Sept 2007 |
Schedule 1: 3 Mar 2008 (see s. 2(1)) |
— |
Trade Practices Legislation Amendment Act (No. 1) 2007 |
159, 2007 |
24 Sept 2007 |
25 Sept 2007 |
Sch. 1 (item 4), Sch. 2 (item 12) and Sch. 3 (item 9) [see Table A] |
Trade Practices Amendment (Access Declarations) Act 2008 |
7, 2008 |
20 Mar 2008 |
20 Mar 2008 |
— |
Australian Energy Market Amendment (Minor Amendments) Act 2008 |
60, 2008 |
30 June 2008 |
Schedule 4: (zp) |
— |
Trade Practices Legislation Amendment Act 2008 |
116, 2008 |
21 Nov 2008 |
22 Nov 2008 |
Sch. 3 (items 13, 15) [see Table A] |
Offshore Petroleum Amendment (Greenhouse Gas Storage) Act 2008 |
117, 2008 |
21 Nov 2008 |
Schedule 3 (item 60): 22 Nov 2008 |
— |
Trade Practices Amendment (Clarity in Pricing) Act 2008 |
126, 2008 |
25 Nov 2008 |
Schedule 1: 25 May 2009 |
Sch. 1 (item 5) [see Table A] |
Water Amendment Act 2008 |
139, 2008 |
8 Dec 2008 |
Schedule 2 (items 3–5): 15 Dec 2008 (see |
— |
Australian Energy Market Amendment (AEMO and Other Measures) Act 2009 |
17, 2009 |
26 Mar 2009 |
Schedule 1 (items 12, 14): 27 Mar 2009 |
— |
Fair Work (State Referral and Consequential and Other Amendments) Act 2009 |
54, 2009 |
25 June 2009 |
Schedule 18 (items 24–31): (zq) |
— |
Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 |
59, 2009 |
26 June 2009 |
Schedule 1 (items 3–128) and Schedule 2 (items 1–49, 52, 53): 24 July 2009 |
Sch. 1 (item 118) and Sch. 2 (items 52, 53) [see Table A] |
Statute Stocktake (Regulatory and Other Laws) Act 2009 |
111, 2009 |
16 Nov 2009 |
Schedule 1 (items 26–50, 107–109): 17 Nov 2009 |
Sch. 1 (items 49, 50) [see Table A] |
Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 |
4, 2010 |
19 Feb 2010 |
Schedule 11 (item 23): 20 Feb 2010 |
— |
Statute Law Revision Act 2010 |
8, 2010 |
1 Mar 2010 |
Schedule 5 (items 125, 126): Royal Assent |
— |
Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 |
44, 2010 |
14 Apr 2010 |
Schedule 1, Schedule 2 (items 27, 29, 31, 32, |
Sch. 1 (item 2) [see Table A] |
Trade Practices Amendment (Infrastructure Access) Act 2010 |
102, 2010 |
13 July 2010 |
Schedules 1–4 and Schedule 5 (items 1–11, |
Sch. 1 (item 72), Sch. 3 (item 11), Sch. 4 (item 5) and Sch. 5 (items |
Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 |
103, 2010 |
13 July 2010 |
Schedule 1, Schedule 2, Schedule 4, Schedule 5 and Schedule 7: 1 Jan 2011 |
Sch. 4 (item 5) and Sch. 7 [see Table A] |
Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 |
140, 2010 |
15 Dec 2010 |
Schedule 1 (items 32–40, 114–195, 195A, 196–198, 202–213): (zu) |
Sch. 1 (items 40, 198, |
Financial Framework Legislation Amendment Act 2010 |
148, 2010 |
17 Dec 2010 |
Schedule 6: 18 Dec 2010 |
Sch. 6 (items 2, 3) [see Table A] |
(a) The Competition and Consumer Act 2010 was amended by section 115 only of the Statute Law Revision Act 1981, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.
(b) The Competition and Consumer Act 2010 was amended by Part XIX (section 68) only of the Statute Law (Miscellaneous Amendments) Act 1981, subsection 2(12) of which provides as follows:
(12) The remaining provisions of this Act shall come into operation on the twenty‑eighth day after the day on which this Act receives the Royal Assent.
(c) The Competition and Consumer Act 2010 was amended by Part LXXVI (sections 278 and 279) only of the Statute Law (Miscellaneous Amendments) Act (No. 2) 1982, subsection 2(16) of which provides as follows:
(16) The remaining provisions of this Act shall come into operation on the twenty‑eighth day after the day on which this Act receives the Royal Assent.
(d) The Competition and Consumer Act 2010 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1983, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act shall come into operation on the twenty‑eighth day after the day on which it receives the Royal Assent.
(e) The Competition and Consumer Act 2010 was amended by subsection 151(1) only of the Public Service Reform Act 1984, subsection 2(4) of which provides as follows:
(4) The remaining provisions of this Act shall come into operation on such day as is, or on such respective days as are, fixed by Proclamation.
(f) The Competition and Consumer Act 2010 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1984, subsection 2(28) of which provides as follows:
(28) The amendment of the Trade Practices Act 1974 made by this Act shall come into operation on the day on which this Act receives the Royal Assent.
(g) The Competition and Consumer Act 2010 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1985, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act shall come into operation on the twenty‑eighth day after the day on which it receives the Royal Assent.
(h) The Competition and Consumer Act 2010 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1986, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.
(j) The Competition and Consumer Act 2010 was amended by section 3 only of the Jurisdiction of Courts (Miscellaneous Amendments) Act 1987, subsection 2(2) of which provides as follows:
(2) The amendments made by this Act to an Act specified in the Schedule shall come into operation on such day as is fixed by Proclamation in relation to those amendments.
The date fixed in pursuance of subsection 2(2) was 1 September 1987 (see Gazette 1987, No. S217).
(k) The Competition and Consumer Act 2010 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act 1987, subsection 2(32) of which provides as follows:
(32) The amendment of the Trade Practices Act 1974 made by this Act shall come into operation on a day to be fixed by Proclamation for the purposes of this subsection, being a day not earlier than the day on which the United Nations Convention on Contracts for the International Sale of Goods, adopted at Vienna, Austria, on 10 April 1980, enters into force in respect of Australia.
(n( �/span> The Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 was amended by Part XI (sections 34 and 35) only of the Law and Justice Legislation Amendment Act 1988, subsection 2(6) of which provides as follows:
(6) Part XI shall be taken to have commenced on 5 April 1988.
(m) The Competition and Consumer Act 2010 was amended by sections 22–24 only of the Law and Justice Legislation Amendment Act 1991, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the 28th day after the day on which it receives the Royal Assent.
(n) The Competition and Consumer Act 2010 was amended by sections 48–56 only of the Transport and Communications Legislation Amendment Act 1991, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(o) The Competition and Consumer Act 2010 was amended by section 116 only of the Special Broadcasting Service Act 1991, subsection 2(1) of which provides as follows:
(1) Subject to subsection (2), this Act commences 28 days after the day on which it receives the Royal Assent.
(p) The Competition and Consumer Act 2010 was amended by section 24 only of the Territories Law Reform Act 1992, subsection 2(3) of which provides as follows:
(3) The remaining provisions of this Act commence on 1 July 1992.
(q) The Competition and Consumer Act 2010 was amended by sections 42–48 only of the Industrial Relations Reform Act 1993, subsection 2(6) of which provides as follows:
(6) Subject to subsection (7), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.
(r) The Competition and Consumer Act 2010 was amended by the Schedule (item 19) only of the Insurance Laws Amendment Act (No. 2) 1994, subsection 2(1) of which provides as follows:
(1) Sections 1, 2 and 3 and the amendments contained in items 1, 2, 4, 5, 7, 17, 18 and 19 of the Schedule commence on the day on which this Act receives the Royal Assent.
(s) The Competition and Consumer Act 2010 was amended by section 3 (items 21–26) only of the Law and Justice Legislation Amendment Act (No. 2) 1994, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(t) The Competition and Consumer Act 2010 was amended by sections 1–32, 35–76, 80–87 and 91 only of the Competition Policy Reform Act 1995, subsections 2(1), (2), (4) and (5) of which provide as follows:
(1) The following provisions commence on the 28th day after the day on which this Act receives the Royal Assent:
(a) Parts 1, 2 and 7;
(b) Division 2 of Part 5.
(2) Part 3 commences on a day to be fixed by Proclamation. However, if Part 3 does not commence by Proclamation within the period of 6 months beginning on the day on which this Act receives the Royal Assent, then it commences on the first day after the end of that period.
(4) Division 1 of Part 5 commences on the first day after the end of the period of 12 months after the day on which this Act receives the Royal Assent.
(5) Part 6 commences immediately after the commencement of Division 1 of Part 5.
(u) The Competition and Consumer Act 2010 was amended by Schedule 4 (item 147) only of the Statute Law Revision Act 1996, subsection 2(1) of which provides as follows:
(1) Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.
(v) The Competition and Consumer Act 2010 was amended by Schedule 17 (items 1–11 and 14–24) only of the Workplace Relations and Other Legislation Amendment Act 1996, subsection 2(2) of which provides as follows:
(2) Subject to subsection (3), the items of the Schedules, other than Schedule 5, item 1 of Schedule 9, items 2 and 3 of Schedule 12, item 90 of Schedule 16 and the items of Schedule 19, commence on a day or days to be fixed by Proclamation.
(w) The Workplace Relations and Other Legislation Amendment Act 1996 was amended by Schedule 3 (items 1 and 2) only of the Workplace Relations and Other Legislation Amendment Act (No. 2) 1996, subsection 2(4) of which provides as follows:
(4) The items of Schedule 3 are taken to have commenced immediately after the Workplace Relations and Other Legislation Amendment Act 1996 received the Royal Assent.
The Workplace Relations and Other Legislation Amendment Act 1996 received the Royal Assent on 25 November 1996.
(x) The Competition and Consumer Act 2010 was amended by Schedule 2 (item 1260) only of the Audit (Transitional and Miscellaneous) Amendment Act 1997, subsection 2(2) of which provides as follows:
(2) Schedules 1, 2 and 4 commence on the same day as the Financial Management and Accountability Act 1997.
(y) The Competition and Consumer Act 2010 was amended by Schedule 2 (items 30–34) only of the Telecommunications Legislation Amendment Act 1997, subsection 2(4) of which provides as follows:
(4) Items 30, 31, 32, 33 and 34 of Schedule 2 are taken to have commenced on 30 April 1997, immediately after the commencement of Schedule 1 to the Trade Practices Amendment (Telecommunications) Act 1997.
(z) The Competition and Consumer Act 2010 was amended by Schedule 1 (item 194) and Schedule 2 (items 24–29) only of the Financial Sector Reform (Consequential Amendments) Act 1998, subsection 2(2) of which provides as follows:
(2) Subject to subsections (3) to (14), Schedules 1, 2 and 3 commence on the commencement of the Australian Prudential Regulation Authority Act 1998.
(za) The Competition and Consumer Act 2010 was amended by Schedule 1 (items 11–35, 37–46, 48, 49,
51–56) only of the Gas Pipelines Access (Commonwealth) Act 1998, subsections 2(1) and (3) of which provide as follows:
(1) Subject to subsections (2) and (3), this Act commences at the commencement of sections 13 and 14 of the Gas Pipelines Access (South Australia) Act 1997 of South Australia.
(3) Items 27 to 56 of Schedule 1 commence on the day on which this Act receives the Royal Assent.
The Gas Pipelines Access (South Australia) Act 1997 of South Australia came into operation on 30 July 1998 (see South Australian Government Gazette 2 April 1998, p. 1606).
(zb) The Competition and Consumer Act 2010 was amended by Schedule 1 (items 6–71), Schedule 3 (items 69–76) and Schedule 4 (items 17–20) only of the Telecommunications Legislation Amendment Act 1999, subsections 2(1), (4) and (6) of which provide as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(4) Subject to subsection (5), Schedule 3 commences on the commencement of section 1 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.
(6) Schedule 4 commences on 1 July 1999.
(zc) The Competition and Consumer Act 2010 was amended by Schedule 1 (items 944–955) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:
(1) In this Act, commencing time means the time when the Public Service Act 1999 commences.
(2) Subject to this section, this Act commences at the commencing time.
(zd) The Competition and Consumer Act 2010 was amended by Schedule 4 only of the A New Tax System (Indirect Tax and Consequential Amendments) Act 1999, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(ze) The Competition and Consumer Act 2010 was amended by Schedule 25 only of the Federal Magistrates (Consequential Amendments) Act 1999, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the commencement of the Federal Magistrates Act 1999.
(zf) The Competition and Consumer Act 2010 was amended by Schedule 1 (items 77–90) only of the Jurisdiction of Courts Legislation Amendment Act 2000, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(zg) The Competition and Consumer Act 2010 was amended by Schedule 1 (items 240–290) only of the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001, subsection 2(4) of which provides as follows:
(4) The remaining items of Schedule 1 to this Act commence on the day specified in subsection 2.2(2) of the Criminal Code.
(zga) Subsection 2(1) (item 64) of the Statute Law Revision Act 2002 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
Commencement information |
||
Column 1 |
Column 2 |
Column 3 |
Provision(s) |
Commencement |
Date/Details |
64. Schedule 2, item 35 |
Immediately after the time specified in the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001 for the commencement of item 242 of Schedule 1 to that Act |
15 December 2001 |
(zh) The Competition and Consumer Act 2010 was amended by Schedule 3 (items 550–557) only of the Corporations (Repeals, Consequentials and Transitionals) Act 2001, subsection 2(3) of which provides as follows:
(3) Subject to subsections (4) to (10), Schedule 3 commences, or is taken to have commenced, at the same time as the Corporations Act 2001.
(zi) Subsections 2(2)(a) and (3) of the Trade Practices Amendment Act (No. 1) 2001 provide as follows:
(2) Items 4 and 5 of Schedule 2 commence immediately after the later of:
(a) the commencement of section 1;
(3) The items of Schedule 2 (other than items 4 and 5) commence immediately after the commencement of item 260 of Schedule 1 to the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001.
Schedule 1 (item 260) commenced on 15 December 2001.
(zia) Subsection 2(1) (item 61) of the Statute Law Revision Act 2002 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
Provision(s) |
Commencement |
Date/Details |
61. Schedule 2, item 32 |
Immediately after the time specified in the Trade Practices Amendment Act (No. 1) 2001 for the commencement of item 1 of Schedule 2 to that Act |
15 December 2001 |
(zj) The Competition and Consumer Act 2010 was amended by Schedule 3 (items 16–56) only of the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 3) 2001, subsections 2(1) and (4) of which provide as follows:
(1) Subject to this section, this Act commences on the day mentioned in subsection 2.2(2) of the Criminal Code.
(4) Schedule 2 and Part 4 of Schedule 3 are taken to have commenced immediately after the commencement of item 14 of Schedule 1 to the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001.
Schedule 1 (item 14) commenced on 15 December 2001.
(zk) The Competition and Consumer Act 2010 was amended by Schedule 1 (items 364–365B) only of the Financial Services Reform (Consequential Provisions) Act 2001, subsections 2(1), (6) and (15)(a) of which provide as follows:
(1) In this section:
FSR commencement means the commencement of item 1 of Schedule 1 to the Financial Services Reform Act 2001.
(6) Subject to subsections (7) to (17), the other items of Schedule 1 commence on the FSR commencement.
(15) Subject to subsection (17), item 365 of Schedule 1 commences on the later of:
(a) the FSR commencement; and.
(zl) The Competition and Consumer Act 2010 was amended by Schedule 2 only of the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 2) 2001, subsections 2(1) and (2)(b) of which provide as follows:
(1) Subject to this section, this Act commences on the day mentioned in subsection 2.2(2) of the Criminal Code.
(2) Item 3 of Schedule 2 commences immediately after the later of:
(b) the commencement of item 274 of Schedule 1 to the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001.
Schedule 1 (item 274) commenced on 15 December 2001.
(zm) Subsection 2(1) (items 2, 3 and 10) of the Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005 provide as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Provision(s) |
Commencement |
Date/Details |
2. Schedule 1 |
At the same time as section 6 of the Australian Communications and Media Authority Act 2005 commences. |
1 July 2005 |
3. Schedule 2 |
Immediately after the commencement of the provision(s) covered by table item 2. |
1 July 2005 |
10. Schedule 4 |
At the same time as section 6 of the Australian Communications and Media Authority Act 2005 commences. |
1 July 2005 |
(zn) Subsection 2(1) (items 5 and 7) of the Energy Legislation Amendment Act 2006 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Provision(s) |
Commencement |
Date/Details |
5. Schedule 2, items 12 and 13 |
Immediately after the commencement of Schedules 1 and 2 to the Trade Practices Amendment (Australian Energy Market) Act 2004. |
23 May 2005 |
7. Schedule 2, items 15 and 16 |
Immediately after the commencement of Schedules 1 and 2 to the Trade Practices Amendment (Australian Energy Market) Act 2004. |
23 May 2005 |
(zo) Subsection 2(1) (item 3) of the Broadcasting Legislation Amendment (Digital Radio) Act 2007 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Provision(s) |
Commencement |
Date/Details |
3. Schedule 2 |
The later of: (a) immediately after the commencement of Schedule 1 to this Act; and (b) immediately after the commencement of section 155AAA of the Trade Practices Act 1974. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. |
19 July 2007 (paragraph (b) applies) |
(zp) Subsection 2(1) (item 4) of the Australian Energy Market Amendment (Minor Amendments) Act 2008 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Provision(s) |
Commencement |
Date/Details |
4. Schedule 4 |
Immediately after the commencement of Schedule 1 to the Australian Energy Market Amendment (Gas Legislation) Act 2007. |
1 July 2008 (see F2008L02164) |
(zq) Subsection 2(1) (item 41) of the Fair Work (State Referral and Consequential and Other Amendments) Act 2009 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Provision(s) |
Commencement |
Date/Details |
41. Schedule 18 |
Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. |
1 July 2009 (see F2009L02563) |
(zr) Subsection 2(1) (items 31 and 38) of the Statute Law Revision Act 2010 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Provision(s) |
Commencement |
Date/Details |
31. Schedule 5, items 1 to 51 |
The day this Act receives the Royal Assent. |
1 March 2010 |
38. Schedule 5, Parts 2 and 3 |
Immediately after the provision(s) covered by table item 31. |
1 March 2010 |
(zs) Subsection 2(1) (item 5) of the Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Provision(s) |
Commencement |
Date/Details |
5. Schedule 2, item 40 |
At the same time as the provision(s) covered by table item 2. However, if Schedule 1 to the Statute Stocktake (Regulatory and Other Laws) Act 2009 commences before that time, the provision(s) do not commence at all. |
Does not commence at all |
(zt) Subsection 2(1) (items 3 and 4) of the Trade Practices Amendment (Infrastructure Access) Act 2010 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Provision(s) |
Commencement |
Date/Details |
3. Schedule 5, items 1 to 11 |
The day after this Act receives the Royal Assent. |
14 July 2010 |
4. Schedule 5, item 12 |
Immediately after the commencement of the provision(s) covered by table item 3. |
14 July 2010 |
(zu) Subsection 2(1) (items 2–5) of the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Provision(s) |
Commencement |
Date/Details |
2. Schedule 1, Part 1, Division 1 |
The later of: (a) the start of the day after this Act receives the Royal Assent; and (b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010. |
1 January 2011 (paragraph (b) applies) |
3. Schedule 1, Part 1, Division 2 |
Immediately after a final functional separation undertaking comes into force under Part 9 of Schedule 1 to the Telecommunications Act 1997. The Minister must announce by notice in the Gazette the time when a final functional separation undertaking comes into force under Part 9 of Schedule 1 to the Telecommunications Act 1997. |
[see Note 3] |
4. Schedule 1, Part 1, Division 3 |
Immediately after an undertaking comes into force under section 577A of the Telecommunications Act 1997. The Minister must announce by notice in the Gazette the time when an undertaking comes into force under section 577A of the Telecommunications Act 1997. |
[see Note 3] |
5. Schedule 1, Parts 2 and 3 |
The later of: (a) the start of the day after this Act receives the Royal Assent; and (b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010. |
1 January 2011 (paragraph (b) applies) |
Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted |
|||
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 |
||
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 |
||
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 |
||
|
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 |
||
Heading to s. 5 .................. |
am. No. 61, 1999; No. 31, 2001; Nos. 59 and 111, 2009 |
||
|
rs. No. 44, 2010 |
||
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 |
||
Heading to s. 6 .................. |
am. No. 61, 1999; No. 31, 2001; No. 111, 2009 |
||
|
rs. No. 44, 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; Nos. 44 and 103, 2010 |
||
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 |
||
S. 7 ..................................... |
rs. No. 81, 1977 |
||
|
am. No. 88, 1995; No. 106, 1998 |
||
Note to s. 7(2) .................... |
ad. No. 108, 2004 |
||
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 |
||
Heading to s. 10 ................ |
rs. No. 159, 2007 |
||
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 |
||
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 |
||
Note to s. 25(1) .................. |
ad. No. 134, 2003 |
||
Heading to s. 26 ................ |
am. No. 103, 2010 |
||
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 |
||
Note to s. 29B(2B) ............. |
am. No. 45, 2007 |
||
Ss. 29BA, 29BB .................. |
ad. No. 60, 2006 |
||
|
am. No. 45, 2007 |
||
Heading to s. 29BC ........... |
am. No. 45, 2007 |
||
S. 29BC .............................. |
ad. No. 60, 2006 |
||
|
am. No. 45, 2007 |
||
Ss. 29C–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 |
||
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 |
||
Heading to s. 31A ............. |
am. No. 88, 1995 |
||
S. 31A ................................. |
ad. No. 111, 1977 |
||
|
am. No. 88, 1995 |
||
S. 32 ................................... |
am. No. 88, 1995 |
||
Heading to s. 33 ................ |
am. No. 88, 1995 |
||
S. 33 ................................... |
rs. No. 88, 1976 |
||
|
am. No. 81, 1977 |
||
|
rs. No. 111, 1977 |
||
|
am. No. 73, 1984; No. 43, 1996 |
||
S. 34 ................................... |
am. No. 80, 1982; No. 106, 1998 |
||
S. 35 ................................... |
am. No. 81, 1977; No. 61, 1981; No. 88, 1995 |
||
S. 36 ................................... |
am. No. 88, 1995 |
||
Heading to s. 39 ................ |
rs. No. 131, 2006 |
||
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 |
||
Part IIIAA |
|
||
Part IIIAA ............................ |
ad. No. 108, 2004 |
||
Division 1 |
|
||
S. 44AB ............................... |
ad. No. 108, 2004 |
||
|
am. No. 60, 2006; No. 45, 2007 |
||
Ss. 44AC, 44AD ................. |
ad. No. 108, 2004 |
||
Division 2 |
|
||
Ss. 44AE–44AG ................. |
ad. No. 108, 2004 |
||
Division 3 |
|
||
S. 44AH .............................. |
ad. No. 108, 2004 |
||
Note to s. 44AH ................. |
am. No. 45, 2007 |
||
Ss. 44AI–44AL .................... |
ad. No. 108, 2004 |
||
Division 4 |
|
||
Subdivision A |
|
||
Ss. 44AM–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 |
||
S. 44AAG ............................ |
ad. No. 108, 2004 |
||
S. 44AAGA ......................... |
ad. No. 60, 2006 |
||
Ss. 44AAH–44AAK ............. |
ad. No. 108, 2004 |
||
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 |
||
Division 2 |
|
||
Subdivision A |
|
||
S. 44F.................................. |
ad. No. 88, 1995 |
||
|
am. No. 92, 2006; No. 102, 2010 |
||
Note 1 to s. 44F(2)............. |
ad. No. 92, 2006 |
||
|
am. No. 102, 2010 |
||
Note 2 to s. 44F(2)............. |
ad. No. 92, 2006 |
||
|
rs. No. 102, 2010 |
||
Note 3 to s. 44F(2)............. |
ad. No. 92, 2006 |
||
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 |
||
Note to s. 44H(1)................ |
ad. No. 92, 2006 |
||
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 |
||
Note to s. 44J(3)................. |
ad. No. 92, 2006 |
||
|
rep. No. 102, 2010 |
||
S. 44JA................................ |
ad. No. 92, 2006 |
||
|
rep. No. 102, 2010 |
||
S. 44K.................................. |
ad. No. 88, 1995 |
||
|
am. No. 102, 2010 |
||
Note to s. 44K(4)................ |
ad. No. 92, 2006 |
||
|
rs. No. 102, 2010 |
||
Ss. 44KA, 44KB................... |
ad. No. 102, 2010 |
||
S. 44L.................................. |
ad. No. 88, 1995 |
||
|
am. No. 102, 2010 |
||
Note to s. 44L(3)................. |
ad. No. 92, 2006 |
||
|
rs. No. 102, 2010 |
||
Heading to Subdiv. C of ... |
rep. No. 92, 2006 |
||
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 ....... |
ad. No. 92, 2006 |
||
Subdivision A |
|
||
Heading to Subdiv. A of ... |
ad. No. 92, 2006 |
||
S. 44M................................. |
ad. No. 88, 1995 |
||
|
am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007 |
||
Note 1 to s. 44M(3)............. |
ad. No. 92, 2006 |
||
|
am. No. 102, 2010 |
||
Note 2 to s. 44M(3)............. |
ad. No. 92, 2006 |
||
|
rs. No. 102, 2010 |
||
Note 3 to s. 44M(3)............. |
ad. No. 92, 2006 |
||
S. 44MA............................... |
ad. No. 102, 2010 |
||
Subdivision B |
|
||
Heading to Subdiv. B of ... |
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 |
||
Note 1 to s. 44N(1)............. |
ad. No. 92, 2006 |
||
|
rep. No. 102, 2010 |
||
Note 2 to s. 44N(1)............. |
ad. No. 92, 2006 |
||
Note to s. 44N(3)................ |
ad. No. 92, 2006 |
||
Subdivision C |
|
||
Subdiv. C of Div. 2A of ...... |
ad. No. 92, 2006 |
||
S. 44NA............................... |
ad. No. 92, 2006 |
||
|
am. No. 102, 2010 |
||
Note 1 to s. 44NA(6)........... |
am. No. 102, 2010 |
||
Note 2 to s. 44NA(6)........... |
rs. No. 102, 2010 |
||
S. 44NAA............................. |
ad. No. 102, 2010 |
||
S. 44NB............................... |
ad. No. 92, 2006 |
||
|
am. No. 102, 2010 |
||
Note 1 to s. 44NB(1)........... |
rep. No. 102, 2010 |
||
Note 2 to s. 44NB(1) |
|
||
Subdivision D |
|
||
Subdiv. D of Div. 2A of ...... |
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 ... |
ad. No. 92, 2006 |
||
S. 44O................................. |
ad. No. 88, 1995 |
||
|
am. No. 92, 2006; No. 102, 2010 |
||
Note to s. 44O(3)................ |
ad. No. 92, 2006 |
||
|
rs. No. 102, 2010 |
||
Subdivision F |
|
||
Heading to Subdiv. F of ... |
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 |
||
Note 2 to s. 44PA(3)........... |
am. No. 102, 2010 |
||
Note 3 to s. 44PA(3)........... |
rs. No. 102, 2010 |
||
S. 44PAA............................. |
ad. No. 102, 2010 |
||
Ss. 44PB, 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 |
||
Note to s. 44PG(3)............. |
rs. No. 102, 2010 |
||
S. 44PH............................... |
ad. No. 92, 2006 |
||
|
am. No. 102, 2010 |
||
Note to s. 44PH(3).............. |
rs. No. 102, 2010 |
||
Division 2C |
|
||
Heading to Div. 2C of........ |
ad. No. 92, 2006 |
||
Heading to s. 44Q.............. |
am. No. 102, 2010 |
||
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 |
||
Note 1 to s. 44V(1)............. |
am. No. 102, 2010 |
|
|
S. 44W................................. |
ad. No. 88, 1995 |
|
|
|
am. No. 92, 2006; No. 102, 2010 |
||
Subhead. to s. 44X(1)........ |
ad. No. 92, 2006 |
|
|
S. 44X.................................. |
ad. No. 88, 1995 |
||
|
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 |
||
Subdivision DA |
|
||
Subdiv. DA of Div. 3 of ...... |
ad. No. 92, 2006 |
||
S. 44ZNB............................. |
ad. No. 92, 2006 |
||
Subdivision E |
|
||
Heading to s. 44ZO........... |
am. No 92, 2006 |
||
S. 44ZO............................... |
ad. No. 88, 1995 |
||
|
am. No. 92, 2006 |
||
S. 44ZOA............................. |
ad. No. 92, 2006 |
||
Subdivision F |
|
||
Heading to Subdiv. F of ... |
rs. No. 92, 2006 |
||
S. 44ZP................................ |
ad. No. 88, 1995 |
||
|
am. No. 92, 2006; No. 102, 2010 |
||
Note to s. 44ZP(3).............. |
ad. No. 92, 2006 |
||
|
am. 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 ... |
rs. No. 92, 2006 |
||
Heading to s. 44ZU............ |
am. No. 92, 2006 |
||
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. 102, 2010 |
||
Note to s. 44ZX(3).............. |
ad. No. 92, 2006 |
||
|
rs. No. 102, 2010 |
||
S. 44ZY................................ |
ad. No. 88, 1995 |
||
Division 5 |
|
||
S. 44ZZ................................ |
ad. No. 88, 1995 |
||
Division 6 |
|
||
Heading to Div. 6 of .......... |
rs. No. 92, 2006 |
||
Heading to Subdiv. A of ... |
ad. No. 92, 2006 |
||
S. 44ZZA............................. |
ad. No. 88, 1995 |
||
|
am. No. 28, 1997; No. 69, 2000; No. 92, 2006; No. 102, 2010 |
||
Note to s. 44ZZA(3)............ |
ad. No. 92, 2006 |
||
|
rep. No. 102, 2010 |
||
Notes 1, 2 to s. 44ZZA(3)... |
ad. No. 102, 2010 |
||
Note 1 to s. 44ZZA(7)......... |
ad. No. 92, 2006 |
||
|
am. No. 102, 2010 |
||
Note 2 to s. 44ZZA(7)......... |
ad. No. 92, 2006 |
||
|
rs. No. 102, 2010 |
||
Note 3 to s. 44ZZA(7)......... |
ad. No. 92, 2006 |
||
Ss. 44ZZAAA, 44ZZAAB..... |
ad. No. 102, 2010 |
||
S. 44ZZAA........................... |
ad. No. 28, 1997 |
||
|
am. No. 108, 2004; No. 92, 2006; No. 102, 2010 |
||
Note to s. 44ZZAA(4)......... |
ad. No. 108, 2004 |
||
|
rep. No. 92, 2006 |
||
Note to s. 44ZZAA(6)......... |
ad. No. 108, 2004 |
||
Note 1 to s. 44ZZAA(8)...... |
ad. No. 92, 2006 |
||
|
am. No. 102, 2010 |
||
Note 2 to s. 44ZZAA(8)...... |
ad. No. 92, 2006 |
||
|
rs. No. 102, 2010 |
||
Note 3 to s. 44ZZAA(8)...... |
ad. No. 92, 2006 |
||
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 ........ |
ad. No. 92, 2006 |
||
S. 44ZZBA........................... |
ad. No. 92, 2006 |
||
|
am. No. 102, 2010 |
||
Subdivision C |
|
||
Subdiv. C of Div. 6 of ........ |
ad. No. 92, 2006 |
||
S. 44ZZBB........................... |
ad. No. 92, 2006 |
||
Note 1 to s. 44ZZBB(8)...... |
am. No. 102, 2010 |
||
Note 2 to s. 44ZZBB(8)...... |
rs. No. 102, 2010 |
||
Subdivision D |
|
||
Subdiv. D of Div. 6 of ........ |
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 ........ |
ad. No. 92, 2006 |
||
S. 44ZZBF........................... |
ad. No. 92, 2006 |
||
|
am. No. 102, 2010 |
||
Note to s. 44ZZBF(3)......... |
rs. No. 102, 2010 |
||
Subdivision F |
|
||
Heading to Subdiv. F of.... |
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........ |
rs. No. 102, 2010 |
||
Div. 6B of Part IIIA ............. |
ad. No. 92, 2006 |
||
S. 44ZZCB........................... |
ad. No. 92, 2006 |
||
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 |
||
Ss. 44ZZMA, 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 |
||
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 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 |
||
S. 45B ................................. |
ad. No. 81, 1977 |
||
|
am. No. 88, 1995 |
||
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 |
||
Note to s. 45DD(8) ............ |
am. 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 |
||
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 |
||
Notes to s. 50(1), 50(2) ..... |
ad. No. 131, 2006 |
||
S. 50A ................................. |
ad. No. 17, 1986 |
||
|
am. Nos. 22 and 222, 1992 |
||
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 |
||
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 .......... |
ad. No. 103, 2010 |
||
S. 51ACA ............................ |
ad. No. 36, 1998 |
||
|
am. No. 103, 2010 |
||
Division 2 |
|
||
Heading to Div. 2 of .......... |
ad. No. 103, 2010 |
||
S. 51AD............................... |
ad. No. 36, 1998 |
||
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 .......... |
ad. No. 103, 2010 |
||
S. 51AE................................ |
ad. No. 36, 1998 |
||
S. 51AEA ............................ |
ad. No. 63, 2001 |
||
Part V................................... |
rep. No. 103, 2010 |
||
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 |
||
|
rep. No. 103, 2010 |
||
Note to s. 52 ...................... |
ad. No. 106, 1998 |
||
|
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 |
||
|
rep. No. 103, 2010 |
||
Note to s. 53 ...................... |
ad. 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 |
||
S. 55 ................................... |
rep. No. 103, 2010 |
||
S. 55A ................................. |
ad. No. 81, 1977 |
||
|
rep. No. 103, 2010 |
||
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 |
||
S. 60 ................................... |
rs. No. 17, 1986 |
||
|
rep. No. 103, 2010 |
||
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 |
||
|
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 |
||
Heading to s. 65AN ........... |
am. No. 31, 2001 |
||
|
rs. No. 21, 2003 |
||
|
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 |
||
|
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 |
||
|
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 |
||
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 |
||
|
rep. No. 103, 2010 |
||
Note to s. 74J(3) ................ |
ad. 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 |
||
|
rep. No. 103, 2010 |
||
Note to s. 75AO(2) ............ |
ad. No. 113, 2004 |
||
|
rep. No. 103, 2010 |
||
S. 75AP ............................... |
ad. No. 106, 1992 |
||
|
rep. No. 103, 2010 |
||
Heading to s. 75AQ .......... |
am. No. 88, 1995 |
||
|
rep. No. 103, 2010 |
||
Ss. 75AQ, 75AR ................. |
ad. No. 106, 1992 |
||
|
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 |
||
Notes 1, 2 to s. 75AY ......... |
ad. 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 |
||
|
am. No. 117, 2001 |
||
|
rep. No. 103, 2010 |
||
Notes 1, 2 to s. 75AZD(2), |
ad. No. 117, 2001 |
||
S. 75AZE ............................ |
ad. No. 31, 2001 |
||
|
am. No. 117, 2001 |
||
|
rep. No. 103, 2010 |
||
Heading to s. 75AZF ......... |
am. No. 126, 2008 |
||
|
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 |
||
Notes 1, 2 to s. 75AZG(1) . |
ad. No. 117, 2001 |
||
|
rep. No. 103, 2010 |
||
Ss. 75AZH–75AZL.............. |
ad. No. 31, 2001 |
||
|
am. No. 117, 2001 |
||
|
rep. No. 103, 2010 |
||
Notes 1, 2 to s. 75AZL(1) .. |
ad. No. 117, 2001 |
||
|
rep. No. 103, 2010 |
||
Notes 1, 2 to s. 75AZL(3) .. |
ad. No. 117, 2001 |
||
|
rep. No. 103, 2010 |
||
Ss. 75AZM, 75AZN............. |
ad. No. 31, 2001 |
||
|
am. No. 117, 2001 |
||
|
rep. No. 103, 2010 |
||
Notes 1, 2 to s. 75AZN ...... |
ad. 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 |
||
Notes 1, 2 to s. 75AZO(1), |
ad. No. 117, 2001 |
||
Notes 1, 2 to s. 75AZO(3) . |
ad. 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 |
||
|
rep. No. 103, 2010 |
||
Notes 1, 2 to s. 75AZS(1) .. |
ad. No. 117, 2001 |
||
|
rep. No. 103, 2010 |
||
Note 3 to s. 75AZS(1) ........ |
ad. No. 126, 2008 |
||
|
rep. No. 103, 2010 |
||
S. 75AZT ............................ |
ad. No. 31, 2001 |
||
|
am. No. 117, 2001 |
||
|
rep. No. 103, 2010 |
||
Notes 1, 2 to s. 75AZT(1) .. |
ad. No. 117, 2001 |
||
|
rep. No. 103, 2010 |
||
Note 3 to s. 75AZT(1) ........ |
ad. No. 126, 2008 |
||
|
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 |
||
Heading to s. 76................. |
am. Nos. 44 and 103, 2010 |
||
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; Nos. 59 and 111, 2009 |
||
Heading to s. 76A ............. |
am. No. 131, 2006; No. 111, 2009 |
||
S. 76A ................................. |
ad. No. 69, 2000 |
||
|
am. No. 131, 2006; No. 111, 2009 |
||
Heading to s. 76B ............. |
am. No. 131, 2006; Nos. 59 and 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 |
||
Ss. 77B, 77C....................... |
ad. No. 131, 2006 |
||
Heading to s. 78 ................ |
am. No. 61, 1999; No. 69, 2000; No. 31, 2001; No. 111, 2009 |
||
S. 78 ................................... |
am. No. 61, 1999; No. 69, 2000; No. 31, 2001; Nos. 59 and 111, 2009; No. 103, 2010 |
||
Heading to s. 79 ................ |
am. No. 31, 2001; No. 59, 2009; No. 103, 2010 |
||
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 |
||
Notes 1, 2 to s. 79(1) ......... |
ad. No. 63, 2001 |
||
S. 79A ................................. |
ad. No. 17, 1986 |
||
|
am. No. 31, 2001; No. 131, 2006; No. 59, 2009; No. 103, 2010 |
||
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 |
||
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. 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 |
||
S. 80B ................................. |
ad. No. 61, 1999 |
||
|
rep. No. 111, 2009 |
||
Heading to s. 81 ................ |
am. No. 131, 2006 |
||
S. 81 ................................... |
am. No. 88, 1976 |
||
|
rs. No. 81, 1977 |
||
|
am. No. 17, 1986; No. 222, 1992; No. 88, 1995 |
||
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; Nos. 103 and 118, 2004; No. 11, 2006; No. 103, 2010 |
||
Note to s. 82(2) .................. |
ad. No. 113, 2004 |
||
|
rep. No. 103, 2010 |
||
S. 83 ................................... |
rs. No. 81, 1977 |
||
|
am. No. 222, 1992; No. 36, 1998; Nos. 31 and 63, 2001; No. 59, 2009; Nos. 44 and 103, 2010 |
||
Heading to s. 84 ................ |
am. No. 59, 2009 |
||
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 |
||
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 |
||
Note to s. 85(1) .................. |
ad. No. 31, 2001 |
||
|
rep. No. 103, 2010 |
||
Notes to s. 85(3), 85(4) ..... |
ad. No. 31, 2001 |
||
|
rep. No. 103, 2010 |
||
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; Nos. 44 and 103, 2010 |
||
Heading to s. 86AA ........... |
am. No. 23, 2006 |
||
S. 86AA ............................... |
ad. No. 194, 1999 |
||
|
am. No. 161, 2000; No. 23, 2006; No. 103, 2010 |
||
Note to s. 86AA .................. |
am. No. 161, 2000 |
||
S. 86A ................................. |
ad. No. 23, 1987 |
||
|
am. No. 222, 1992; Nos. 36 and 106, 1998; Nos. 44 and 103, 2010 |
||
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 |
||
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 |
||
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. 118, 2004; No. 11, 2006; No. 59, 2009; Nos. 44 and 103, 2010 |
||
Note to s. 87(6) .................. |
ad. No. 113, 2004 |
||
|
rep. No. 103, 2010 |
||
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 |
||
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 |
||
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 |
|
||
Ss. 87L–87N ....................... |
ad. No. 113, 2004 |
||
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 |
|
||
Ss. 87Y, 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 |
||
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 .......... |
rs. No. 131, 2006 |
||
S. 87D ................................. |
ad. No. 101, 1998 |
||
S. 87ZD............................... |
am. No. 131, 2006 |
||
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 |
||
Heading to s. 89 ................ |
am. No. 101, 1998 |
||
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. 131, 2006; No. 59, 2009 |
||
Note to s. 90(2) .................. |
ad. No. 108, 2004 |
||
Note to s. 90(5) .................. |
ad. No. 108, 2004 |
||
S. 90A ................................. |
ad. No. 81, 1977 |
||
|
am. No. 17, 1986; No. 88, 1995 |
||
S. 90B ................................. |
ad. No. 108, 2004 |
||
|
am. No. 60, 2006 |
||
Heading to s. 91 ................ |
am. No. 101, 1998 |
||
S. 91 ................................... |
am. No. 81, 1977; No. 17, 1986; No. 101, 1998 |
||
S. 91A ................................. |
ad. No. 101, 1998 |
||
|
am. No. 131, 2006; No. 59, 2009 |
||
Note to s. 91A(2) ............... |
ad. No. 108, 2004 |
||
S. 91B ................................. |
ad. No. 101, 1998 |
||
|
am. No. 131, 2006; No. 59, 2009 |
||
Note to s. 91B(2) ............... |
ad. No. 108, 2004 |
||
S. 91C ................................. |
ad. No. 101, 1998 |
||
|
am. No. 131, 2006; No. 59, 2009 |
||
Note to s. 91C(2) ............... |
ad. No. 108, 2004 |
||
Note to s. 91C(5) ............... |
ad. No. 108, 2004 |
||
Division 2 |
|
||
Heading to Div. 2 of .......... |
rs. No. 81, 1977 |
||
S. 92 ................................... |
rep. No. 81, 1977 |
||
Subdivision A |
|
||
Heading to Subdiv. A of ... |
ad. No. 131, 2006 |
||
S. 93 ................................... |
rs. No. 81, 1977 |
||
|
am. No. 206, 1978; No. 17, 1986; No. 88, 1995; No. 131, 2006 |
||
Subdivision B |
|
||
Subdiv. B of Div. 2 of ........ |
ad. No. 131, 2006 |
||
S. 93AA ............................... |
ad. No. 131, 2006 |
||
|
am. No. 59, 2009 |
||
Subhead. to s. 93AB(1) ..... |
am. No. 59, 2009 |
||
S. 93AB ............................... |
ad. No. 131, 2006 |
||
|
am. Nos. 54 and 59, 2009 |
||
Subhead. to s. 93AC(1) ..... |
am. No. 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 |
||
Heading to s. 93AF ........... |
am. No. 59, 2009 |
||
S. 93AF ............................... |
ad. No. 131, 2006 |
||
|
am. No. 59, 2009 |
||
Subdivision C |
|
||
Heading to Subdiv. C of ... |
ad. No. 131, 2006 |
||
Heading to s. 93A ............. |
am. No. 131, 2006 |
||
S. 93A ................................. |
ad. No. 81, 1977 |
||
|
am. No. 88, 1995; No. 131, 2006; No. 59, 2009 |
||
S. 94 ................................... |
rep. No. 81, 1977 |
||
Subdivision D |
|
||
Heading to Subdiv. D of ... |
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 |
||
Heading to s. 95AG........... |
am. No. 8, 2010 |
||
Ss. 95AG–95AQ.................. |
ad. No. 131, 2006 |
||
Subhead. to s. 95AR(4)...... |
am. No. 8, 2010 |
||
S. 95AR............................... |
ad. No. 131, 2006 |
||
Subhead. to s. 95AS(4)...... |
am. No. 8, 2010 |
||
S. 95AS................................ |
ad. No. 131, 2006 |
||
Subdivision C |
|
||
Ss. 95AT–95AX................... |
ad. No. 131, 2006 |
||
Heading to s. 95AY............ |
am. No. 8, 2010 |
||
Ss. 95AY, 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 |
||
Subhead. to s. 95AZL(5).... |
am. No. 8, 2010 |
||
S. 95AZL.............................. |
ad. No. 131, 2006 |
||
Subhead. to s. 95AZM(5)... |
am. No. 8, 2010 |
||
S. 95AZM............................. |
ad. No. 131, 2006 |
||
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 |
||
Ss. 95J–95N ....................... |
ad. No. 134, 2003 |
||
Subdivision B |
|
||
Ss. 95P, 95Q ...................... |
ad. No. 134, 2003 |
||
Subdivision C |
|
||
Ss. 95R–95W ..................... |
ad. No. 134, 2003 |
||
Division 4 |
|
||
Ss. 95X–95Z ....................... |
ad. No. 134, 2003 |
||
Ss. 95ZA–95ZD .................. |
ad. No. 134, 2003 |
||
Division 5 |
|
||
Ss. 95ZE–95ZG ................. |
ad. No. 134, 2003 |
||
Division 6 |
|
||
Ss. 95ZH–95ZQ ................. |
ad. No. 134, 2003 |
||
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 |
||
Part IX |
|
||
Division 1 |
|
||
Heading to Div. 1 of .......... |
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 |
||
Heading to s. 101A ........... |
am. No. 131, 2006 |
||
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 |
||
|
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 |
|
||
Heading to s. 10.06 ........... |
am. No. 123, 2000 |
||
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 |
||
|
am. No. 123, 2000 |
||
Heading to s. 10.17 ........... |
am. No. 59, 2009 |
||
S. 10.17 .............................. |
ad. No. 34, 1989 |
||
|
am. No. 123, 2000; No. 59, 2009 |
||
Heading to s. 10.17A ........ |
am. 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 |
|
||
Heading to s. 10.19 ........... |
am. No. 59, 2009 |
||
S. 10.19 .............................. |
ad. No. 34, 1989 |
||
|
am. No. 123, 2000; No. 59, 2009 |
||
Heading to s. 10.20 ........... |
am. No. 123, 2000 |
||
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 ........ |
rep. No. 123, 2000 |
||
Ss. 10.22, 10.23 ................. |
ad. No. 34, 1989 |
||
|
rep. No. 123, 2000 |
||
Subdivision D |
|
||
Heading to s. 10.24 ........... |
am. No. 59, 2009 |
||
S. 10.24 .............................. |
ad. No. 34, 1989 |
||
|
am. No. 123, 2000; No. 59, 2009 |
||
Heading to s. 10.24A ........ |
am. 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 |
||
|
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 |
||
|
am. No. 123, 2000; No. 59, 2009 |
||
Ss. 10.46, 10.47 ................. |
ad. No. 34, 1989 |
||
|
am. No. 123, 2000 |
||
Heading to s. 10.48 ........... |
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 |
|
||
Heading to s. 10.50 ........... |
am. No. 123, 2000 |
||
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 |
||
Heading to s. 10.63 ........... |
rs. 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 |
|
||
Ss. 10.68–10.72 ................. |
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 |
||
Note to s. 10.72A(1) .......... |
am. No. 109, 2006 |
||
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 |
|
||
Ss. 10.83–10.86 ................. |
ad. No. 34, 1989 |
||
Ss. 10.87, 10.88 ................. |
ad. No. 34, 1989 |
||
|
am. No. 123, 2000 |
||
S. 10.89 .............................. |
ad. No. 34, 1989 |
||
S. 10.90 .............................. |
ad. No. 34, 1989 |
||
|
am. No. 173, 1991; No. 123, 2000 |
||
Heading to s. 10.91 ........... |
am. No. 131, 2006 |
||
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 |
||
S. 130A................................ |
ad. No. 103, 2010 |
||
Division 2 |
|
||
Subdivision A |
|
||
S. 131.................................. |
rep. No. 34, 1989 |
||
|
ad. No. 44, 2010 |
||
|
rs. No. 103, 2010 |
||
Ss. 131A–131C................... |
ad. No. 103, 2010 |
||
Subdivision B |
|
||
Ss. 131D–131G................... |
ad. No. 103, 2010 |
||
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 |
|
||
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 |
||
Ss. 137A–137H................... |
ad. No. 103, 2010 |
||
Division 8 |
|
||
S. 138.................................. |
rep. No. 34, 1989 |
||
|
ad. No. 44, 2010 |
||
|
rs. No. 103, 2010 |
||
Ss. 138A–138E.................... |
ad. No. 103, 2010 |
||
Division 9 |
|
||
S. 139.................................. |
rep. No. 34, 1989 |
||
|
ad. No. 44, 2010 |
||
|
rs. No. 103, 2010 |
||
Ss. 139A–139D................... |
ad. No. 103, 2010 |
||
S. 139DA............................. |
ad. No. 103, 2010 |
||
Ss. 139E–139G................... |
ad. No. 103, 2010 |
||
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 |
||
Heading to s. 150D ........... |
am. No. 57, 2000 |
||
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 |
||
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 |
||
Heading to s. 150O ........... |
am. No. 57, 2000 |
||
|
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 |
||
Ss. 151AC–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 |
||
|
am. No. 200, 1997; No. 52, 1999; No. 131, 2006; No. 159, 2007; No. 59, 2009; No. 140, 2010 |
||
S. 151AK ............................. |
ad. No. 58, 1997 |
||
Division 3 |
|
||
Subdivision A |
|
||
S. 151AKA .......................... |
ad. No. 52, 1999 |
||
|
am. No. 140, 2002; No. 140, 2010 |
||
Heading to s. 151AL ......... |
am. No. 52, 1999 |
||
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 |
||
Heading to s. 151AO ........ |
am. 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 |
||
Subhead. to s. 151AQB(3) |
ad. No. 140, 2002 |
||
Subhead. to s. 151AQB(5) |
ad. No. 140, 2002 |
||
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 |
||
Heading to s. 151AY ......... |
am. No. 131, 2006 |
||
S. 151AY ............................. |
ad. No. 58, 1997 |
||
|
am. No. 131, 2006; No. 59, 2009 |
||
S. 151AZ ............................. |
ad. No. 58, 1997 |
||
Ss. 151BA–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 .......... |
rs. No. 52, 1999 |
||
S. 151BU ............................... |
ad. No. 58, 1997 |
||
|
am. No. 52, 1999 |
||
Note to s. 151BU(4) ........... |
rep. No. 52, 1999 |
||
S. 151BUAA ........................ |
ad. No. 140, 2002 |
||
S. 151BUAAA ..................... |
ad. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
||
S. 151BUAB ........................ |
ad. No. 140, 2002 |
||
Ss. 151BUA–151BUC ........ |
ad. No. 52, 1999 |
||
|
am. No. 52, 1999; No. 146, 2001 |
||
S. 151BUD .......................... |
ad. No. 52, 1999 |
||
Ss. 151BUDA–151BUDC ... |
ad. No. 140, 2002 |
||
Heading to s. 151BUE....... |
am. No. 8, 2010 |
||
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 |
||
Division 7 |
|
||
Heading to Div. 7 of .......... |
rs. No. 52, 1999 |
||
Heading to s. 151BW ........ |
am. No. 52, 1999 |
||
S. 151BW .............................. |
ad. No. 58, 1997 |
||
|
am. No. 52, 1999 |
||
Heading to s. 151BX ......... |
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 |
||
Heading to s. 151BZ ......... |
am. No. 52, 1999 |
||
S. 151BZ ............................... |
ad. No. 58, 1997 |
||
|
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 |
||
Subhead. to s. 151CJ(3) ... |
ad. No. 140, 2002 |
||
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 |
||
Division 12A |
|
||
Div. 12A of Part XIB ........... |
ad. No. 52, 1999 |
||
Ss. 151CMA–151CMC ....... |
ad. No. 52, 1999 |
||
Division 13 |
|
||
S. 151CN ............................... ............................................... |
ad. No. 58, 1997 |
||
Division 14 |
|
||
Div. 14 of Part XIB ............. |
ad. No. 119, 2005 |
||
S. 151CP ............................... ............................................... |
ad. No. 119, 2005 |
||
Division 15 |
|
||
Div. 15 of Part XIB ............. |
ad. No. 140, 2010 |
||
S. 151CQ............................. |
ad. No. 140, 2010 |
||
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 |
||
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 |
||
Ss. 152AD, 152AE ................ |
ad. No. 58, 1997 |
||
S. 152AF................................ |
ad. No. 58, 1997 |
||
|
am. No. 140, 2010 |
||
Ss. 152AG, 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 |
||
Subhead. to s. 152ALA(7) . |
am. No. 140, 2010 |
||
S. 152ALA ............................. |
ad. No. 140, 2002 |
||
|
am. No. 7, 2008; No. 140, 2010 |
||
S. 152AM ............................... |
ad. No. 58, 1997 |
||
|
am. No. 140, 2002; No. 45, 2005; No. 140, 2010 |
||
S. 152AN ............................... |
ad. No. 58, 1997 |
||
|
am. No. 52, 1999; No. 140, 2002 |
||
S. 152AO ............................... |
ad. No. 58, 1997 |
||
|
am. No. 140, 2002; No.119, 2005 |
||
S. 152AP ............................... |
ad. No. 58, 1997 |
||
|
rep. No. 140, 2002 |
||
S. 152AQ ............................... |
ad. No. 58, 1997 |
||
|
am. No. 140, 2002; No. 140, 2010 |
||
S. 152AQA .......................... |
ad. No. 124, 2001 |
||
|
am. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
||
Subhead. to s. 152AQB(6) |
am. No. 45, 2005 |
||
|
rep. No. 140, 2010 |
||
S. 152AQB .......................... |
ad. No. 140, 2002 |
||
|
am. No. 45, 2005 |
||
|
rep. No. 140, 2010 |
||
S. 152AQC ......................... |
ad. No. 7, 2008 |
||
Division 3 |
|
||
S. 152AR ............................... |
ad. No. 58, 1997 |
|
|
|
am. No. 140, 2002; No. 140, 2010 |
|
|
Heading to s. 152AS ............ |
am. No. 140, 2002 |
|
|
|
rep. No. 140, 2010 |
||
S. 152AS ............................... |
ad. No. 58, 1997 |
|
|
|
rep. No. 140, 2010 |
||
Note to s. 152AS(2) ........... |
ad. No. 119, 2005 |
|
|
|
rep. No. 140, 2010 |
||
Note to s. 152AS ................ |
ad. No. 119, 2005 |
|
|
|
rep. No. 140, 2010 |
||
S. 152ASA .......................... |
ad. No. 140, 2002 |
|
|
|
am. No. 140, 2010 |
||
Note to s. 152ASA(2) ......... |
ad. No. 119, 2005 |
|
|
Note to s. 152ASA(13) ....... |
ad. No. 119, 2005 |
|
|
|
rep. No. 140, 2010 |
|
|
Heading to s. 152AT ......... |
am. No. 140, 2002 |
|
|
|
rep. No. 140, 2010 |
||
Subhead. to s. 152AT(1) ... |
ad. No. 140, 2002 |
|
|
|
rep. No. 140, 2010 |
||
Subheads. to...................... |
ad. No. 140, 2002 |
|
|
Subheads. to s. 152AT(8), |
ad. No. 140, 2002 |
|
|
S. 152AT.............................. |
ad. No. 58, 1997 |
|
|
|
am. No. 140, 2002; No. 119, 2005; No. 8, 2010 |
|
|
|
rep. No. 140, 2010 |
||
Note to s. 152AT(5) ........... |
ad. No. 119, 2005 |
|
|
|
rep. No. 140, 2010 |
||
S. 152ATA .......................... |
ad. No. 140, 2002 |
|
|
|
am. No. 119, 2005; Nos. 8 and 140, 2010 |
|
|
Note to s. 152ATA(4) ......... |
ad. No. 119, 2005 |
|
|
Note to s. 152ATA(18) ....... |
rep. No. 140, 2010 |
|
|
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 |
||
S. 152AX ............................. |
ad. No. 58, 1997 |
|
|
|
am. No. 140, 2002 |
|
|
|
rep. No. 140, 2010 |
||
Heading to s. 152AXA ....... |
am. No. 140, 2010 |
|
|
S. 152AXA .......................... |
ad. No. 140, 2002 |
|
|
|
am. No. 140, 2010 |
||
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 |
|
|
S. 152BA ............................. |
ad. No. 58, 1997 |
|
|
|
am. No. 52, 1999 |
|
|
S. 152BB ............................. |
ad. No. 58, 1997 |
|
|
|
am. No. 52, 1999; No. 119, 2005 |
|
|
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 |
|
|
Division 4 |
|
|
|
Div. 4 of Part XIC................ |
rs. No. 140, 2010 |
|
|
Subdivision A |
|
|
|
Subdiv. A of Div. 4 of ........ |
rep. No. 140, 2002 |
|
|
S. 152BC................................ |
ad. No. 58, 1997 |
|
|
|
rep. No. 140, 2002 |
|
|
|
ad. No. 140, 2010 |
|
|
Ss. 152BCA–152BCC............ |
ad. No. 140, 2010 |
|
|
S. 152BCCA........................... |
ad. No. 140, 2010 |
|
|
Ss. 152BCD–152BCG........... |
ad. No. 140, 2010 |
|
|
S. 152BCGA........................... |
ad. No. 140, 2010 |
|
|
Subdivision B |
|
|
|
Heading to Subdiv. B of ... |
rep. No. 140, 2002 |
|
|
Ss. 152BCH–152BCK............ |
ad. No. 140, 2010 |
|
|
Subdivision C |
|
|
|
Subdiv. C of Div. 4 of ........ |
rep. No. 140, 2002 |
||
S. 152BCN............................. |
ad. No. 140, 2010 |
|
|
Subdivision D |
|
|
|
Heading to Subdiv. D of ... |
rep. No. 140, 2002 |
||
Ss. 152BCO, 152BCP............ |
ad. No. 140, 2010 |
|
|
Subdivision E |
|
|
|
Ss. 152BCQ–152BCV............ |
ad. No. 140, 2010 |
|
|
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 |
|
|
S. 152BDAA........................... |
ad. No. 140, 2010 |
|
|
Ss. 152BDA–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 |
|
|
Ss. 152BEA–152BED............. |
ad. No. 140, 2010 |
|
|
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 |
|
|
Heading to s. 152BK ............ |
am. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
|
|
S. 152BK ............................. |
ad. No. 58, 1997 |
||
|
am. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
|
|
Heading to s. 152BL ......... |
am. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
|
|
S. 152BL ............................. |
ad. No. 58, 1997 |
||
|
am. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
|
|
Heading to s. 152BM ........ |
am. No. 45, 2005 |
||
|
rep. No. 140, 2010 |
|
|
S. 152BM ............................ |
ad. No. 58, 1997 |
||
|
am. No. 140, 2002; No. 45, 2005 |
||
|
rep. No. 140, 2010 |
|
|
Heading to s. 152BN ......... |
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 ... |
ad. No. 140, 2002 |
||
Subdiv. A of Div. 5 of......... |
rep. No. 140, 2010 |
||
Heading to s. 152BS ......... |
am. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
|
|
S. 152BS ............................. |
ad. No. 58, 1997 |
||
|
am. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
|
|
Note to s. 152BS(1) ........... |
ad. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
|
|
S. 152BT ............................. |
ad. No. 58, 1997 |
||
|
am. No. 140, 2002; No. 119, 2005 |
||
|
rep. No. 140, 2010 |
|
|
Subheads. to s. 152BU(2), |
ad. No. 140, 2002 |
||
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 |
|
|
Subhead. to s. 152BY(3) ... |
ad. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
|
|
Subhead. to s. 152BY(5) ... |
ad. 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 ........ |
ad. No. 140, 2002 |
||
S. 152CBA .......................... |
ad. No. 140, 2002 |
||
|
am. No. 140, 2010 |
|
|
S. 152CBAA ........................ |
ad. No. 140, 2010 |
||
S. 152CBB........................... |
ad. No. 140, 2002 |
||
|
am. No. 119, 2005 |
||
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 |
|
|
S. 152CBDA........................ |
ad. No. 140, 2010 |
||
Ss. 152CBE, 152CBF ......... |
ad. No. 140, 2002 |
||
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 |
||
Ss. 152CBIA–152CBIC ...... |
ad. No. 140, 2010 |
||
S. 152CBJ .......................... |
ad. No. 140, 2002 |
||
Subdivision C |
|
||
Heading to Subdiv. C of ... |
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 |
||
|
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 |
||
Note 1 to s. 152CH(1) ....... |
rep. No. 140, 2002 |
||
Notes 1A, 1B to s. 152CH(1) ............................................... |
ad. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
|
|
Notes 2, 3 to s. 152CH(1) .... |
am. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
|
|
Note 3A to s. 152CH(1) ........ |
ad. No. 140, 2002 |
||
Note 5 to s. 152CH(1) .......... |
am. No. 140, 2002 |
||
|
rs. No. 140, 2010 |
|
|
Note 5A to s. 152CH(1) ........ |
ad. No. 140, 2010 |
||
Note 6 to s. 152CH(1) .......... |
rep. No. 140, 2010 |
||
Heading to s. 152CI.............. |
am. No. 140, 2010 |
||
S. 152CI ................................ |
ad. No. 58, 1997 |
||
|
am. No. 140, 2002; No. 140, 2010 |
||
S. 152CJ ............................... |
ad. No. 58, 1997 |
||
|
am. No. 140, 2010 |
||
Division 7 |
|
||
S. 152CK ............................... ............................................... |
ad. No. 58, 1997 |
||
|
am. No. 140, 2002 |
||
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 |
|
|
Note to s. 152CLA ............. |
am. No. 140, 2002 |
||
|
rep. No. 140, 2010 |
|
|
S. 152CM .............................. |
ad. No. 58, 1997 |
||
|
rep. No. 140, 2010 |
|
|
Subhead. to s. 152CN(3) .. |
ad. No. 124, 2001 |
||
|
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 |
|
|
Heading to s. 152CT ......... |
am. No. 52, 1999 |
||
|
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 |
||
|
rs. No. 124, 2001 |
||
|
rep. No. 140, 2010 |
|
|
Subhead. to s. 152CX(3) ... |
ad. No. 124, 2001 |
||
|
rep. No. 140, 2010 |
|
|
S. 152CX ............................ |
ad. No. 58, 1997 |
||
|
am. No. 124, 2001 |
||
|
rep. No. 140, 2010 |
|
|
Ss. 152CY, 152CZ ............. |
ad. No. 58, 1997 |
||
|
rep. No. 140, 2010 |
|
|
Notes 1, 2 to s. 152CZ(1) .. |
ad. 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. 119, 2005 |
||
|
rep. No. 140, 2010 |
|
|
Note to s. 152DB(1) ........... |
ad. No. 124, 2001 |
||
|
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 |
||
|
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 ........ |
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 |
||
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 ........ |
rs. No. 140, 2002 |
||
Heading to s. 152EF ......... |
am. No. 140, 2002 |
||
S. 152EF ............................. |
ad. No. 58, 1997 |
||
|
am. No. 140, 2002; No. 140, 2010 |
||
Heading to s. 152EG ........ |
am. No. 140, 2002 |
||
Ss. 152EG–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 |
|
|
Ss. 152ELB, 152ELC........... |
ad. No. 119, 2005 |
||
|
am. No. 8, 2010 |
||
Division 11 |
|
||
S. 152ELD .......................... |
ad. No. 140, 2010 |
||
Ss. 152EM–152EO ............. |
ad. No. 58, 1997 |
||
S. 152EOA .......................... |
ad. No. 140, 2010 |
||
S. 152EP ............................. |
ad. No. 58, 1997 |
||
S. 152EQ ............................ |
ad. No. 119, 2005 |
||
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 |
||
|
am. No. 59, 2009 |
||
S. 154GA ............................ |
ad. No. 59, 2009 |
||
S. 154H ............................... |
ad. No. 131, 2006 |
||
|
am. No. 59, 2009 |
||
Notes to s. 154H(3), .......... |
ad. 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 |
||
Heading to s. 154T ........... |
am. No. 59, 2009 |
||
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 |
||
Note to s. 154X(2) ............. |
ad. 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 |
|
||
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 |
||
Note to s. 155(7A) ............. |
ad. No. 146, 2001 |
||
S. 155AAA .......................... |
ad. No. 85, 2007 |
||
|
am. No. 68, 2007; No. 139, 2008; Nos. 103 and 140, 2010 |
||
Heading to s. 155AA ......... |
am. No. 61, 1999; No. 85, 2007 |
||
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 |
||
Subhead. to s. 157(2) ........ |
ad. No. 59, 2009 |
||
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 |
||
Ss. 160, 161 ....................... |
am. No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 146, 2001 |
||
Note to s. 161(2) ................ |
ad. 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 |
||
Notes 1, 2 to s. 162A ......... |
ad. No. 146, 2001 |
||
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 |
||
Heading to s. 163A ........... |
rs. No. 57, 2000 |
||
Subhead. to s. 163A(1) ..... |
ad. No. 59, 2009 |
||
Subhead. to s. 163A(2) ..... |
ad. No. 59, 2009 |
||
Subhead. to s. 163A(3) ..... |
ad. No. 59, 2009 |
||
Subhead. to s. 163A(3A) ... |
ad. No. 59, 2009 |
||
Subhead. to s. 163A(5) ..... |
ad. No. 59, 2009 |
||
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 |
||
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 |
||
Heading to s. 171B ........... |
am. No. 140, 2010 |
||
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 |
||
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 2 |
|
||
Heading to Div. 2 of .......... |
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 |
||
Ss. 45B, 45C ...................... |
ad. No. 88, 1995 |
||
S. 45D ................................. |
ad. No. 88, 1995 |
||
|
rs. No. 60, 1996 |
||
S. 45DA .............................. |
ad. No. 60, 1996 |
||
Note to s. 45DA(2) ............. |
am. No. 103, 2010 |
||
S. 45DC .............................. |
ad. No. 60, 1996 |
||
S. 45DD .............................. |
ad. No. 60, 1996 |
||
|
am. No. 54, 2009 |
||
Note to s. 45DD(6) ............ |
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 |
||
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 |
||
Note to s. 50(1) .................. |
ad. No. 131, 2006 |
||
S. 51 ................................... |
ad. No. 88, 1995 |
||
|
am. No. 88, 1995; No. 60, 1996; No. 63, 2002; No. 103, 2010 |
||
Part 2 .................................. |
ad. No. 61, 1999 |
||
|
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 |
|
||
Ss. 1–5................................ |
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 |
|
||
Ss. 18, 19............................ |
ad. No. 103, 2010 |
||
Part 2-2 |
|
||
Ss. 20–22............................ |
ad. No. 103, 2010 |
||
Part 2-3 |
|
||
Ss. 23–28............................ |
ad. No. 103, 2010 |
||
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 |
|
||
Ss. 47, 48............................ |
ad. No. 103, 2010 |
||
Division 5 |
|
||
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 |
|
||
Ss. 96–99............................ |
ad. No. 103, 2010 |
||
Division 4 |
|
||
Ss. 100–103........................ |
ad. No. 103, 2010 |
||
Part 3-3 |
|
||
Division 1 |
|
||
Ss. 104–108........................ |
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 |
||
Division 6 |
|
||
S. 133.................................. |
ad. No. 103, 2010 |
||
Part 3-4 |
|
||
Ss. 134–137........................ |
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 |
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Division 2 |
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Subdivision A |
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Subdivision B |
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Ss. 174–177........................ |
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Subdivision C |
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Ss. 178–181........................ |
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Subdivision D |
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Ss. 182–187........................ |
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Division 3 |
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Ss. 188–191........................ |
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Division 4 |
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Ss. 192, 193........................ |
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Part 4-3 |
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Division 1 |
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Ss. 194–196........................ |
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Division 2 |
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Ss. 197, 198........................ |
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Division 3 |
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Ss. 199–201........................ |
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Division 4 |
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S. 202.................................. |
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Part 4-4 |
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Ss. 203, 204........................ |
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Part 4-5 |
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Ss. 205, 206........................ |
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Part 4-6 |
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Ss. 207–211........................ |
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Part 4-7 |
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Ss. 212–217........................ |
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Chapter 5 |
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Part 5-1 |
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Division 1 |
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S. 218.................................. |
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Division 2 |
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Ss. 219–222........................ |
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Division 3 |
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S. 223.................................. |
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Part 5-2 |
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Division 1 |
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Division 2 |
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Ss. 232–235........................ |
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Division 3 |
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S. 236.................................. |
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Division 4 |
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Subdivision A |
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Ss. 237, 238........................ |
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Subdivision B |
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Ss. 239–241........................ |
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Subdivision C |
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Ss. 242–245........................ |
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Division 5 |
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Ss. 246–250........................ |
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Division 6 |
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Ss. 251–253........................ |
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Part 5-3 |
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Ss. 254–258........................ |
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Part 5-4 |
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Division 1 |
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Subdivision A |
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Ss. 259–266........................ |
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Subdivision B |
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Ss. 267–270........................ |
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Division 2 |
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Ss. 271–273........................ |
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Division 3 |
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S. 276A................................ |
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S. 277.................................. |
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Part 5-5 |
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Division 1 |
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Ss. 278–286........................ |
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Division 2 |
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S. 287.................................. |
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Note 2
Subsection 6(3), subsection 75B(1), heading to section 78, subsection 82(1), section 83, subsection 86(1) and subsections 87(1) and (1C)—Schedule 5 (items 36, 50, 54 (Note), 65, 71, 74, 90 and 96) of the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (No. 103, 2010) provide as follows:
Schedule 5
36 Subsection 6(3)
Omit “Part IVA, of Divisions 1, 1A and 1AA of Part V and of Divisions 2 and 3 of Part VC”, substitute “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”.
50 Subsection 75B(1)
Omit “Part IV, IVA, IVB, V or VC, or of section 95AZN or of the Australian Consumer Law”, substitute “Part IV or IVB, or of section 95AZN”.
54
Note: The heading to section 78 is altered by omitting “or V or Australian Consumer Law”.
65 Subsection 82(1)
Omit “Part IV, IVA, IVB or V or section 51AC, or a provision of the Australian Consumer Law,”, substitute “Part IV or IVB”.
71 Section 83
Omit “Part IV, IVA, IVB, V or VC, or of the Australian Consumer Law,”, substitute “Part IV or IVB”.
74 Subsection 86(1)
Omit “or has been instituted in relation to subsection 2(1) or 6(1) of the Australian Consumer Law (as applied under Division 1 of Part XI)”.
90 Subsection 87(1)
Omit “Part IV, IVA, IVB, V or VC or of the Australian Consumer Law”, substitute “Division 2 of Part IVB”.
96 Subsection 87(1C)
Omit “Part IV, IVA, IVB, V or VC, or a provision of the Australian Consumer Law,”, substitute “Part IV or Division 2 of Part IVB”.
The proposed amendments were misdescribed and are not incorporated in this compilation.
Note 3
Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 (No. 140, 2010)
The following amendments commence immediately after a final functional separation undertaking comes into force under Part 9 of Schedule 1 to the Telecommunications Act 1997:
Schedule 1
57 Division 14 of Part XIB
Repeal the Division, substitute:
Division 14—Functional separation for Telstra
151CP Functional separation for Telstra
Scope
(1) This section applies if a final functional separation undertaking given by Telstra is in force under Part 9 of Schedule 1 to the Telecommunications Act 1997.
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.
58 After section 152EP
Insert:
152EPA 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 a final functional separation undertaking in force under Part 9 of Schedule 1 to 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).
59 Section 152EQ
Repeal the section, substitute:
152EQ Functional separation for Telstra
Scope
(1) This section applies if a final functional separation undertaking given by Telstra is in force under Part 9 of Schedule 1 to the Telecommunications Act 1997.
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.
The following amendments commence immediately after an undertaking comes into force under section 577A of the Telecommunications Act 1997:
Schedule 1
66 Division 14 of Part XIB
Repeal the Division.
67 Section 152EQ
Repeal the section, substitute:
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).
As at 1 January 2011 the amendments are not incorporated in this compilation.
Table A
Application, saving or transitional provisions
Workplace Relations and Other Legislation Amendment Act 1996
(No. 60, 1996)
Schedule 17
29 Definitions
In this Part:
amended TP Act means the Trade Practices Act 1974 as in force after the commencement.
amended WR Act means the Workplace Relations Act as in force after the commencement.
commencement means the commencement of this Schedule.
Commission has the same meaning as in the amended WR Act.
conduct includes threatened, impending or probable conduct.
jurisdiction transfer day means the transfer day as defined in Part 3 of Schedule 16.
old TP Act means the Trade Practices Act 1974 as in force immediately before the commencement.
old WR Act means the Workplace Relations Act as in force immediately before the commencement.
30 Conciliation proceedings in progress under Division 7 of Part VI of old WR Act
If:
(a) before the commencement, the Commission was exercising conciliation powers under Division 7 of Part VI of the old WR Act in relation to a dispute about conduct; and
(b) that conduct continues after the commencement; and
(c) paragraphs 156(a) and (b) of the amended WR Act are satisfied in relation to the dispute;
the Commission may exercise conciliation powers under the amended WR Act in relation to the dispute as if the Commission had been notified of the dispute under section 157 of the amended WR Act.
31 If certificate under section 163D of old WR Act granted in relation to conduct that ended before commencement
If, before the commencement, the Commission granted a certificate under section 163D of the old WR Act in relation to a dispute about conduct and the conduct ended before the commencement:
(a) the old WR Act continues to apply to that conduct as though the amendments made by this Schedule had not been made; and
(b) subject to paragraph (c), a reference in Division 7 of Part VI of the old WR Act as so applying to the “Court” is to be taken, on and after the jurisdiction transfer day, to be a reference to the Federal Court of Australia; and
(c) if, under Part 3 of Schedule 16, the Industrial Relations Court continues to have jurisdiction in relation to proceedings begun before the jurisdiction transfer day in relation to that conduct, that Court may, in accordance with that Part of that Schedule, continue to exercise jurisdiction in the proceedings.
Note: If no certificate was granted under section 163D of the old WR Act in relation to conduct that ended before the commencement, then (subject to item 30) no relief is available under the old WR Act or the amended TP Act in relation to that conduct.
32 If certificate under section 163D of old WR Act granted in relation to conduct that continues after commencement
(1) This item applies if, before the commencement, the Commission granted a certificate under section 163D of the old WR Act in relation to a dispute about conduct and the conduct continues after the commencement.
(2) In relation to so much of the conduct as occurred before the commencement:
(a) the old WR Act continues to apply to that conduct as though the amendments made by this Schedule had not been made; and
(b) subject to paragraph (c), a reference in Division 7 of Part VI of the old WR Act as so applying to the “Court” is to be taken, on and after the jurisdiction transfer day, to be a reference to the Federal Court of Australia; and
(c) if, under Part 3 of Schedule 16, the Industrial Relations Court continues to have jurisdiction in relation to proceedings begun before the jurisdiction transfer day in relation to that conduct, that Court may, in accordance with that Part of that Schedule, continue to exercise jurisdiction in the proceedings.
(3) In relation to so much of the conduct as occurs after the commencement, the amended TP Act applies as if that conduct had started on the commencement.
33 If no certificate under section 163D of old WR Act granted in relation to conduct that continues after commencement
If:
(a) before the commencement, there was a dispute about conduct to which Division 7 of Part VI of the old WR Act applied; and
(b) no certificate under section 163D of the old WR Act was granted in relation to the dispute before the commencement; and
(c) the conduct continues after the commencement;
then, in relation to so much of the conduct as occurs after the commencement, the amended TP Act applies as if that conduct had started on the commencement.
Note: If no certificate was granted under section 163D of the old WR Act in relation to conduct that continues after the commencement, then (subject to item 30) no relief is available under the old WR Act or the amended TP Act in relation to so much of the conduct as occurred before the commencement.
34 If conduct to which section 45D of old TP Act applied ended before commencement
If conduct to which section 45D of the old TP Act applied ended before the commencement, the old TP Act continues to apply to that conduct as though the amendments made by this Schedule had not been made.
35 If conduct to which section 45D of old TP Act applied continues after commencement
(1) This item applies if conduct to which section 45D of the old TP Act applied started before the commencement and continues after the commencement.
(2) In relation to so much of the conduct as occurred before the commencement, the old TP Act continues to apply to that conduct as though the amendments made by this Schedule had not been made.
(3) In relation to so much of the conduct as occurs after the commencement, the amended TP Act applies as if that conduct started on the commencement.
36 Power to vary or rescind orders and injunctions made under repealed provisions
(1) An order or injunction:
(a) made by a court before the commencement under or in relation to a repealed provision; or
(b) made by a court after the commencement under or in relation to a repealed provision as the provision continues to apply because of this Part;
may, subject to subsection (2), be varied or rescinded by the court after the commencement, despite the repeal of the provision, as if the amendments made by this Schedule had not been made.
(2) If the court that made the order or injunction is or was the Industrial Relations Court of Australia, the power to vary or rescind the order or injunction given by subsection (1) is, on or after the jurisdiction transfer day, to be exercised by the Federal Court of Australia, unless Part 3 of Schedule 16 provides for the Industrial Relations Court of Australia to continue to exercise jurisdiction in proceedings for the variation or rescission of the order or injunction.
(3) In this section:
repealed provision means:
(a) a provision of Division 7 of Part VI of the old WR Act; or
(b) section 45D of the old TP Act.
37 Power to vary or revoke decisions of Commission made under repealed provisions
(1) A decision of the Commission:
(a) made before the commencement under or in relation to a repealed provision; or
(b) made after the commencement under or in relation to a repealed provision as the provision continues to apply because of this Part;
may be varied or revoked by the Commission after the commencement, despite the repeal of the provision, as if the amendments made by this Schedule had not been made.
(2) In this section:
decision includes an order, direction or determination.
repealed provision means a provision of Division 7 of Part VI of the old WR Act.
Trade Practices Amendment (Telecommunications) Act 1997
(No. 58, 1997)
Schedule 1
15 Application—amendments of section 163A of the Trade Practices Act
The amendments of section 163A of the Trade Practices Act 1974 made by this Schedule do not apply to a proceeding instituted before the commencement of this item.
Gas Pipelines Access (Commonwealth) Act 1998 (No. 101, 1998)
Schedule 1
36 Saving provision
Despite the repeal of subsection 89(3), the register of applications in place under that subsection immediately before the day item 35 commences continues to have effect on and after that date as if it had been created for the purposes of subsection 89(3) of the Trade Practices Act 1974 as amended by this Act.
47 Saving provision
If, before the commencement of item 46:
(a) the Commission had given notice under paragraph 91(4)(a) of the Trade Practices Act 1974 in relation to the authorization; but
(b) the Commission had not made a determination under paragraph 91(4)(b) of that Act;
subsection 91(4) of that Act continues in force as if the amendments of that Act made by items 27 to 56 had not been made.
50 Saving provision
Any application made by a person for review of a determination under subsection 101(1) of the Trade Practices Act 1974 as in force before the commencement of item 49 has effect, on and after the commencement of that item, as if it were an application for that determination made under subsection 101(1) of the Trade Practices Act 1974 as amended by that item.
Telecommunications Legislation Amendment Act 1999 (No. 52, 1999)
Schedule 1
72 Transitional—section 151CM of the Trade Practices Act 1974
(1) This item applies to a report under subsection 151CM(1) of the Trade Practices Act 1974 for the financial year in which this item commenced.
(2) To avoid doubt, that report must deal with matters covered by paragraphs 151CM(1)(b) and (c) of that Act in relation to the whole of that financial year.
73 Transitional—interim determinations
An interim determination may be made in relation to an arbitration under Division 8 of Part XIC of the Trade Practices Act 1974, whether the access dispute was notified before, at or after the commencement of this item.
74 Transitional—backdating of final determinations
A final determination made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 has no effect to the extent (if any) to which any provision of the determination is expressed to have taken effect on a date earlier than the date of commencement of this item.
75 Transitional—pre‑commencement competition notices
(1) Despite the amendments made by items 6, 8, 11, 12, 14, 15, 16, 17, 18, 19, 21, 37, 41, 42 and 43 of this Schedule, Part XIB of the Trade Practices Act 1974 continues to apply, after the commencement of this item, in relation to a competition notice in force immediately before the commencement of this item, as if those amendments had not been made.
(2) Subsection 151AOA(2) of the Trade Practices Act 1974 applies to a competition notice in force immediately before the commencement of this item in a corresponding way to the way in which it applies to a Part A competition notice.
76 Transitional—section 152CT of the Trade Practices Act 1974
The amendments of section 152CT of the Trade Practices Act 1974 made by this Schedule do not affect the continuity of a direction in force under that section immediately before the commencement of this item.
77 Transitional—interpretation of pre‑commencement provisions of the Trade Practices Act 1974
In determining the meaning that a provision of the Trade Practices Act 1974 had before the commencement of this item, the amendments made by this Schedule are to be disregarded.
Schedule 3
81 Transitional—section 151CM of the Trade Practices Act 1974
Section 151CM of the Trade Practices Act 1974 has effect, after the commencement of this item, as if the reference in that section to Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 included a reference to repealed Part 6 of the Telstra Corporation Act 1991.
Schedule 4
28 Transitional—section 151CM of the Trade Practices Act 1974
Section 151CM of the Trade Practices Act 1974 has effect, after the commencement of this item, as if the reference in that section to Division 5 of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 included a reference to repealed Division 5 of Part 7 of the Telecommunications Act 1997.
Trade Practices Amendment (International Liner Cargo Shipping) Act 2000
(No. 123, 2000)
Schedule 1
171 Transitional—declarations under subsection 10.03(1) of the Trade Practices Act 1974
(1) This item applies to a declaration if:
(a) the declaration was made under subsection 10.03(1) of the Trade Practices Act 1974; and
(b) the declaration was in force immediately before the commencement of this item.
(2) The declaration has effect, after the commencement of this item, as if:
(a) the declaration had been made under subsection 10.03(1) of the Trade Practices Act 1974 as amended by this Schedule; and
(b) a reference in the declaration to a designated peak shipper body were a reference to a designated outwards peak shipper body.
(3) The Registrar must take such action, by way of modifying the register of designated shipper bodies, as is necessary to ensure that the register is consistent with subitem (2).
172 Transitional—declarations under subsection 10.03(2) of the Trade Practices Act 1974
(1) This item applies to a declaration if:
(a) the declaration was made under subsection 10.03(2) of the Trade Practices Act 1974; and
(b) the declaration was in force immediately before the commencement of this item.
(2) The declaration has effect, after the commencement of this item, as if:
(a) the declaration had been made under subsection 10.03(2) of the Trade Practices Act 1974 as amended by this Schedule; and
(b) a reference in the declaration to a designated secondary shipper body were a reference to a designated outwards secondary shipper body.
(3) The Registrar must take such action, by way of modifying the register of designated shipper bodies, as is necessary to ensure that the register is consistent with subitem (2).
173 Transitional—notices under section 10.29 of the Trade Practices Act 1974
(1) This item applies to a notice if:
(a) the notice was given under subsection 10.29(3) of the Trade Practices Act 1974; and
(b) the notice was in force immediately before the commencement of this item.
(2) The notice has effect, after the commencement of this item, as if:
(a) the notice had been given under subsection 10.29(3) of the Trade Practices Act 1974 as amended by this Schedule; and
(b) a reference in the notice to a designated secondary shipper body were a reference to a designated outwards secondary shipper body.
(3) The Registrar must take such action, by way of modifying the register of designated shipper bodies, as is necessary to ensure that the register is consistent with subitem (2).
174 Transitional—notices under section 10.41 of the Trade Practices Act 1974
(1) This item applies to a notice if:
(a) the notice was given under paragraph (b) of the definition of relevant designated shipper body in subsection 10.41(3) of the Trade Practices Act 1974; and
(b) the notice was in force immediately before the commencement of this item.
(2) The notice has effect, after the commencement of this item, as if:
(a) the notice had been given under subparagraph (a)(ii) of the definition of relevant designated shipper body in subsection 10.41(3) of the Trade Practices Act 1974 as amended by this Schedule; and
(b) a reference in the notice to a designated secondary shipper body were a reference to a designated outwards secondary shipper body.
(3) The Registrar must take such action, by way of modifying the register of designated shipper bodies, as is necessary to ensure that the register is consistent with subitem (2).
175 Transitional—pre‑commencement directions under section 10.44 of the Trade Practices Act 1974
(1) This item applies to a direction under section 10.44 of the Trade Practices Act 1974 that was given before the commencement of this item.
(2) Despite the amendments of section 10.45 and subsections 10.46(1) and (3), 10.47(1) and 10.48(1) of the Trade Practices Act 1974 made by this Schedule, those provisions continue to apply after the commencement of this item, in relation to that direction, as if those amendments had not been made.
176 Transitional—notices under section 10.52 of the Trade Practices Act 1974
(1) This item applies to a notice if:
(a) the notice was given under paragraph (b) of the definition of relevant designated shipper body in subsection 10.52(3) of the Trade Practices Act 1974; and
(b) the notice was in force immediately before the commencement of this item.
(2) The notice has effect, after the commencement of this item, as if:
(a) the notice had been given under subparagraph (a)(ii) of the definition of relevant designated shipper body in subsection 10.52(3) of the Trade Practices Act 1974 as amended by this Schedule; and
(b) a reference in the notice to a designated secondary shipper body were a reference to a designated outwards secondary shipper body.
(3) The Registrar must take such action, by way of modifying the register of designated shipper bodies, as is necessary to ensure that the register is consistent with subitem (2).
177 Transitional—pre‑commencement inquiries
(1) This item applies if, before the commencement of this item, a question was referred to the Tribunal under section 10.50 or 10.63 of the Trade Practices Act 1974 for inquiry and report.
(2) Despite the amendments and repeals made by items 2, 65, 120, 121, 123, 124, 125, 137, 138, 139, 140, 145, 147, 152 and 153 of this Schedule, subsection 40(3) and Part X of the Trade Practices Act 1974 continue to apply after the commencement of this item, in relation to that inquiry and report, as if those amendments and repeals had not been made.
178 Application—review of decisions of Commission
Division 14A of Part X of the Trade Practices Act 1974 applies to decisions of the Commission made after the commencement of this item.
179 Application—review of decisions of the Minister
Division 14B of Part X of the Trade Practices Act 1974 applies to decisions of the Minister made after the commencement of this item.
180 Transitional—pre‑commencement inwards liner cargo shipping services
Despite the repeals made by items 155 to 164 (inclusive) of this Schedule, the provisions of the Trade Practices Act 1974 repealed by those items continue to apply after the commencement of this item, in relation to an inwards liner cargo shipping service provided wholly or partly before the commencement of this item, as if those repeals had not been made.
Communications and the Arts Legislation Amendment Act 2001
(No. 46, 2001)
A notice in force under subsection 151AQB(2) of the Trade Practices Act 1974 immediately before the commencement of this section is taken, after the commencement of this section, to be an advisory notice in force under subsection 151AQB(1) of that Act.
Trade Practices Amendment Act (No. 1) 2001 (No. 63, 2001)
Schedule 1
5 Application of items 3 and 4
The amendments made by items 3 and 4 apply in relation to a law of a State or Territory made before, on or after the commencement of those items.
8 Application of items 6 and 7
The amendments made by items 6 and 7 apply in relation to goods supplied on or after the commencement of those items.
10 Application of item 9
The amendment made by item 9 only applies in relation to conduct engaged in on or after the commencement of that item.
13 Application of item 12
The amendment made by item 12 only applies in relation to conduct engaged in on or after the commencement of that item.
15 Application of item 14
The amendment made by item 14 does not apply in relation to a proceeding instituted under this Act in relation to a person if, before the commencement of that item, the Court:
(a) ordered the person to pay a pecuniary penalty; or
(b) imposed a fine on the person.
17 Saving
Despite the repeal of section 80A of the Trade Practices Act 1974 made by item 16, an order made under that section that is in force immediately before the commencement of that item continues in force as if the repeal had not been made.
19 Application of item 18
The amendment made by item 18 only applies in relation to conduct engaged in on or after the commencement of that item.
21 Application of item 20
(1) The amendment made by item 20 applies in relation to conduct engaged in on or after the commencement of that item.
(2) The amendment made by item 20 also applies in relation to conduct engaged in before the commencement of that item, but only if the period that:
(a) relates to the conduct; and
(b) applied under subsection 82(2) of the Trade Practices Act 1974 before the commencement of that item;
had not ended when that item commenced.
23 Application of item 22
The amendment made by item 22 only applies in relation to conduct engaged in on or after the commencement of that item.
25 Application of item 24
The amendment made by item 24 only applies in relation to conduct engaged in on or after the commencement of that item.
27 Application of item 26
The amendment made by item 26 only applies in relation to conduct engaged in on or after the commencement of that item.
29 Application of item 28
The amendment made by item 28 only applies to conduct engaged in on or after the commencement of that item.
32 Application of item 31
(1) The amendment made by item 31 applies in relation to conduct engaged in on or after the commencement of that item.
(2) The amendment made by item 31 also applies in relation to conduct engaged in before the commencement of that item, but only if the period that:
(a) relates to the conduct; and
(b) applied under subsection 87(1CA) of the Trade Practices Act 1974 before the commencement of that item;
had not ended when that item commenced.
34 Application of item 33
The amendment made by item 33 only applies in relation to proceedings instituted on or after the commencement of that item.
36 Application of item 35
The amendment made by item 35 only applies in relation to conduct engaged in on or after the commencement of that item.
38 Application of item 37
The amendment made by item 37 only applies in relation to matters arising on or after the commencement of that item.
Schedule 2
3 Application of items 1 and 2
The amendments made by items 1 and 2 only apply in relation to conduct engaged in on or after the commencement of those items.
5 Application of item 4
The amendment made by item 4 only applies in relation to conduct engaged in on or after the commencement of that item.
8 Application of items 6 and 7
The amendments made by items 6 and 7 only apply in relation to conduct engaged in on or after the commencement of those items.
Treasury Legislation Amendment (Application of Criminal Code) Act (No. 3) 2001 (No. 117, 2001)
(1) Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.
(2) For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.
Trade Practices Amendment (Telecommunications) Act 2001 (No. 124, 2001)
Schedule 1
23 Application of amendments
(1) The amendment made by item 1 applies in relation to:
(a) services that are declared to be declared services after the commencement of this Act; and
(b) declared services that are varied after the commencement of this Act.
(2) The amendments made by items 4, 5, 6 and 16 apply in relation to access disputes that are notified after the commencement of this Act.
(3) The amendment made by item 7 applies in relation to determinations that are made after the commencement of this Act.
(4) The amendments made by items 14 and 15 apply in relation to access disputes that are notified either before or after the commencement of this Act.
(5) The amendments made by items 17, 18 and 19 apply in relation to applications for review that are made after the commencement of this Act.
(6) The amendment made by item 20 applies in relation to applications for review, or applications for a writ or injunction, that are made after the commencement of this Act.
(7) The amendment made by item 21 applies in relation to appeals that are made after the commencement of this Act.
24 Transitional—backdating final determinations
(1) This item applies to a final determination made after the commencement of this Act in respect of an access dispute notified after the commencement of this Act.
(2) Despite the amendment made by item 16, the final determination has no effect to the extent (if any) to which any provision of the determination is expressed to have taken effect on a date earlier than the date of commencement of this Act.
(3) In this item:
final determination means a final determination made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974.
Treasury Legislation Amendment (Application of Criminal Code) Act (No. 2) 2001 (No. 146, 2001)
(1) Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.
(2) For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.
Trade Practices Amendment Act (No. 1) 2002 (No. 128, 2002)
Schedule 1
4 Application
The amendments made by items 1 to 3 apply only to conduct engaged in after the commencement of this Schedule.
7 Application
The amendments made by items 5 and 6 apply only to a contravention of a provision of Part VC of the Trade Practices Act 1974 that occurs after the commencement of this Schedule.
9 Application
The amendment made by item 8 applies only to a contravention of subsection 155(5) or (6) of the Trade Practices Act 1974 that occurs after the commencement of this Schedule.
Telecommunications Competition Act 2002 (No. 140, 2002)
Schedule 2
9 Transitional—review of determinations
(1) This item applies if:
(a) a final determination was made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 before the commencement of this item; or
(b) both:
(i) a final determination is made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 after the commencement of this item; and
(ii) the final determination relates to an access dispute that was notified under section 152CM of the Trade Practices Act 1974 before 26 September 2002.
(2) Despite the amendments made by this Part, the Trade Practices Act 1974 continues to apply, in relation to a review of the final determination, as if those amendments had not been made.
15 Transitional—section 152ALA of the Trade Practices Act 1974
(1) This item applies to a declaration if:
(a) the declaration was made under section 152AL of the Trade Practices Act 1974; and
(b) the declaration was in force immediately before the commencement of this item.
(2) Section 152ALA of the Trade Practices Act 1974 does not apply to the declaration unless and until the Commission makes a determination in relation to the declaration under subitem (3).
(3) The Commission may, by notice published in the Gazette, determine that section 152ALA of the Trade Practices Act 1974 has effect, in relation to a declaration specified in the determination, as if a date specified in the determination had been specified in the declaration as the expiry date of the declaration.
(4) The specified date must occur within the 5‑year period beginning on the commencement of this item.
(5) The Commission must take all reasonable steps to ensure that each declaration is covered by a determination under subitem (3) within 6 months after the commencement of this item.
19 Transitional—section 152CQ of the Trade Practices Act 1974
To avoid doubt, the amendments of section 152CQ of the Trade Practices Act 1974 made by this Part do not affect the validity of a determination made before the commencement of this item.
21 Transitional—section 152CQ of the Trade Practices Act 1974
To avoid doubt, the amendment of section 152CQ of the Trade Practices Act 1974 made by this Part does not affect the validity of a determination made before the commencement of this item.
69 Application—section 152AW of the Trade Practices Act 1974
(1) Subsections 152AW(1), (2) and (3) of the Trade Practices Act 1974 as amended by this Part apply in relation to:
(a) an application under section 152AV of the Trade Practices Act 1974 that was made after the commencement of this item; or
(b) an application under section 152AV of the Trade Practices Act 1974 that was made before the commencement of this item, so long as the Tribunal did not make a decision on the review under subsection 152AW(1) of that Act before the commencement of this item.
(2) Subsections 152AW(4) to (7) of the Trade Practices Act 1974 as amended by this Part apply in relation to an application under section 152AV of the Trade Practices Act 1974 that was made after the commencement of this item.
(3) Despite the repeal of subsection 152AW(4) of the Trade Practices Act 1974 by this Part, that subsection continues to apply, in relation to an application under section 152AV of the Trade Practices Act 1974 that was made before the commencement of this item, as if that repeal had not happened.
110 Transitional—subsection 152BS(6A) of the Trade Practices Act 1974
To avoid doubt, an access undertaking given before the commencement of subsection 152BS(6A) of the Trade Practices Act 1974 is as valid as it would have been if that subsection had been in force when the undertaking was given.
111 Application—section 152CF of the Trade Practices Act 1974
(1) Subsections 152CF(1), (2) and (3) of the Trade Practices Act 1974 as amended by this Part apply in relation to:
(a) an application under section 152CE of the Trade Practices Act 1974 that was made after the commencement of this item; or
(b) an application under section 152CE of the Trade Practices Act 1974 that was made before the commencement of this item, so long as the Tribunal did not make a decision on the review under subsection 152CF(1) of that Act before the commencement of this item.
(2) Subsections 152CF(4) to (8) of the Trade Practices Act 1974 as amended by this Part apply in relation to an application under section 152CE of the Trade Practices Act 1974 that was made after the commencement of this item.
(3) Despite the repeal of subsection 152CF(4) of the Trade Practices Act 1974 by this Part, that subsection continues to apply, in relation to an application under section 152CE of the Trade Practices Act 1974 that was made before the commencement of this item, as if that repeal had not happened.
113 Transitional—paragraph 152AR(3)(b) of the Trade Practices Act 1974
The amendment made by this Part is to be disregarded in determining the meaning that paragraph 152AR(3)(b) of the Trade Practices Act 1974 had before the commencement of this item.
115 Transitional—section 151CJ of the Trade Practices Act 1974
Subsections 151CJ(1) and (2) of the Trade Practices Act 1974 as amended by this Part apply in relation to:
(a) an application under section 151CI of the Trade Practices Act 1974 that was made after the commencement of this item; or
(b) an application under section 151CI of the Trade Practices Act 1974 that was made before the commencement of this item, so long as the Tribunal did not make a decision on the review under subsection 151CJ(1) of that Act before the commencement of this item.
Industry, Tourism and Resources Legislation Amendment Act 2003
(No. 21, 2003)
Schedule 1
29 Application of amendments
The amendments made by items 25 to 28 apply in respect of conduct engaged in, or representations made, after those items commence.
Trade Practices Legislation Amendment Act 2003 (No. 134, 2003)
Schedule 2
44 Definitions
In this Part:
ACCC means the Australian Competition and Consumer Commission.
commencement time means the time when this Part commences.
PSA means the Prices Surveillance Act 1983, as in force before the commencement time.
TPA means the Trade Practices Act 1974.
45 General
(1) This item applies to a thing mentioned in column 2 of the following table that:
(a) occurred before the commencement time under the provision of the PSA mentioned in that column; and
(b) is in force immediately before that time.
(2) For the purposes of Part VIIA of the TPA, the thing has effect after that time as if it were a thing mentioned in column 3 of the table that occurred:
(a) under the provision of that Part mentioned in that column; and
(b) at the time it occurred under the PSA.
Operation of Part VIIA of the TPA |
||
Column 1 |
Column 2 |
Column 3 |
1 |
A direction given under section 20 |
A direction given under subsection 95ZH(1) |
2 |
A declaration made under paragraph 21(1)(a) |
A declaration made under subsection 95X(1) |
3 |
A declaration made under paragraph 21(1)(b) |
A declaration made under subsection 95X(2) |
4 |
A declaration made under paragraph 21(1)(c) |
A declaration made under section 95B |
5 |
A notice given under subsection 25(1) |
A notice given under subsection 95N(5) |
6 |
A summons given under subsection 34(2) |
A summons given under subsection 95S(3) |
46 Price inquiries
(1) This item applies if:
(a) before the commencement time, the Minister had made an instrument under subsection 18(1) of the PSA; and
(b) the ACCC had not submitted a report on the inquiry concerned before that time.
(2) Part VIIA of the TPA has effect after that time as if the instrument were a notice given:
(a) under subsection 95H(1) or (2) of the TPA (as the case requires); and
(b) at the time the instrument was made under the PSA.
Note: One of the effects of this subitem is that the ACCC is able to begin an inquiry, complete an inquiry or give a report on an inquiry under Part VIIA of the TPA.
(3) Subitem (4) applies to a thing mentioned in column 2 of the following table that occurred before the commencement time (in relation to the inquiry) under the provision of the PSA mentioned in that column.
(4) For the purposes of Part VIIA of the TPA, the thing has effect after that time as if it were a thing mentioned in column 3 of the table that occurred:
(a) under the provision of that Part mentioned in that column; and
(b) at the time it occurred under the PSA.
Operation of Part VIIA of the TPA |
||
Column 1 |
Column 2 |
Column 3 |
1 |
An instrument made under subsection 18(6) |
A notice given under subsection 95K(3) |
2 |
A notice served under paragraph 19(1)(a) |
A notice given under subsection 95L(1) |
3 |
A notice served under paragraph 19(1)(b) |
A notice given under subsection 95L(3) |
4 |
A notice served under subsection 19(2) |
A notice given under section 95M |
47 Price inquiry obligations
(1) This item applies if:
(a) before the commencement time, a person received a copy of a report on an inquiry held under the PSA in relation to the supply by the person of goods or services; and
(b) the period applicable under subsection 24(2) or paragraph 27(1)(a) of the PSA had not ended before that time.
(2) Subsection 95N(8) or 95Q(2) of the TPA, as the case requires, has effect after that time as if the person had received the copy of the report:
(a) under the TPA; and
(b) at the time the person received the copy under the PSA.
48 Price notifications
(1) This item applies if:
(a) before the commencement time, a person had given the ACCC a notice (the locality notice) under paragraph 22(2)(a) of the PSA; and
(b) the prescribed period in relation to the notice (worked out under section 22 of the PSA) had not ended before that time.
(2) Part VIIA of the TPA has effect after that time as if the notice were a notice given:
(a) under subsection 95Z(5) of the TPA; and
(b) at the time it was given under the PSA.
(3) Subitem (4) applies to a thing mentioned in column 2 of the following table that occurred before the commencement time (as a result of the locality notice being given) under the provision of the PSA mentioned in that column.
(4) For the purposes of Part VIIA of the TPA, the thing has effect after that time as if it were a thing mentioned in column 3 of the table that occurred:
(a) under the provision of that Part mentioned in that column; and
(b) at the time it occurred under the PSA.
Operation of Part VIIA of the TPA |
||
Column 1 |
Column 2 |
Column 3 |
1 |
A notice served under subparagraph 22(2)(b)(ii) |
A notice given under paragraph 95Z(6)(b) |
2 |
A notice served under subparagraph 22(2)(b)(iii) |
A notice given under subparagraph 95Z(6)(c)(i) |
3 |
A notice given under subparagraph 22(2)(b)(iii) |
A notice given under subparagraph 95Z(6)(c)(ii) |
4 |
A notice given under paragraph 22(4)(a) |
A notice given under subsection 95ZA(1) |
5 |
A determination made under subsection 22(6) |
A determination made under subsection 95ZB(2) |
49 Register of price notifications
The register in place under subsection 23(1) of the PSA immediately before the commencement time is taken, immediately after that time, to be the register in place under subsection 95ZC(1) of the TPA.
50 Delegations in relation to price notifications
Giving of notices
(1) A delegation in force under paragraph 29(b) of the PSA immediately before the commencement time has effect after that time as if it were a delegation (made under paragraph 95ZD(1)(a) of the TPA) of the ACCC’s price notification powers in relation to the notices concerned.
Withdrawal of notices
(2) A delegation in force under paragraph 29(c) of the PSA immediately before the commencement time has effect after that time as if it were a delegation (made under paragraph 95ZD(1)(b) of the TPA) of the power under section 95ZJ of the TPA relating to a notice given in the exercise of the ACCC’s price notification powers.
Definition
(3) In this item:
price notification powers means the ACCC’s powers under paragraph 95Z(6)(b) or (c) of the TPA.
51 Price monitoring
(1) This item applies if:
(a) before the commencement time, the Minister had given a direction under section 27A of the PSA; and
(b) the direction required the ACCC to report to the Minister on the monitoring concerned at a specified time, or at specified intervals, occurring after the commencement time.
(2) Part VIIA of the TPA has effect after the commencement time as if the direction were a direction given:
(a) under section 95ZE or 95ZF of the TPA (as the case requires); and
(b) at the time it was given under the PSA.
52 Information gathering under Part VIIA of the TPA
(1) This item applies if:
(a) before the commencement time, a notice was served on a person under subsection 32(1) of the PSA; and
(b) the period for complying with the notice had not ended before that time.
(2) The notice has effect after that time as if it were a notice given:
(a) under subsection 95ZK(1) of the TPA; and
(b) at the time it was served under the PSA.
(3) If the notice was in relation to the matter mentioned in the provision of the PSA referred to in column 2 of the following table, it has effect after that time as if it were a notice in relation to the matter mentioned in the provision of the TPA referred to in column 3 of the table.
Information gathering under Part VIIA of the TPA |
||
Column 1 |
Column 2 |
Column 3 |
1 |
Paragraph 32(1)(c) |
Paragraph 95ZK(1)(a) |
2 |
Paragraph 32(1)(d) |
Paragraph 95ZK(1)(b) |
3 |
Paragraph 32(1)(e) |
Paragraph 95ZK(1)(c) or (d) (as the case requires) |
53 Inspection of documents etc.
(1) This item applies to documents furnished or produced before the commencement time in circumstances mentioned in section 38 of the PSA.
(2) Section 95ZL of the TPA has effect after that time as if the documents were given or produced after that time in circumstances mentioned in that section.
56 Information gathering under Part XII of the TPA
Refusal or failure to comply with notices
(1) Paragraph 155(2A)(a) of the TPA has effect after the commencement time as if a reference to a notice under subsection 95ZK(1) or (2) of the TPA included a reference to a notice under subsection 32(1) of the PSA.
Refusal or failure to answer questions
(2) Paragraph 155(2A)(b) of the TPA has effect after the commencement time as if a reference to an inquiry under Part VIIA of the TPA included a reference to an inquiry under the PSA.
Refusal or failure to produce documents
(3) Paragraph 155(2A)(c) of the TPA has effect after the commencement time as if a reference to a summons under subsection 95S(3) of the TPA included a reference to a summons under subsection 34(2) of the PSA.
Trade Practices Amendment (Personal Injuries and Death) Act (No. 2) 2004
(No. 113, 2004)
Schedule 1
11 Application
The amendments made by this Schedule (other than item 10) apply to contraventions of Part IVA, of Division 1A or 2A of Part V or of Part VA of the Trade Practices Act 1974 that occur after this Schedule commences.
Telecommunications Legislation Amendment (Competition and Consumer Issues) Act 2005 (No. 119, 2005)
Schedule 4
2 Application of amendment
The amendment of section 151BX of the Trade Practices Act 1974 made by this Schedule applies to a contravention of the competition rule if:
(a) in the case of a contravention that continued during a period—the period began after the commencement of this item; or
(b) otherwise—the contravention occurred after the commencement of this item.
Trade Practices Amendment (Personal Injuries and Death) Act 2006
(No. 11, 2006)
Schedule 1
8 Application
The amendments made by this Schedule apply in relation to contraventions of Division 1 of Part V of the Trade Practices Act 1974 that occur after this Schedule commences.
Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006
(No. 23, 2006)
Schedule 1
2 Application of amendment of subsection 86(1A)
The amendment of subsection 86(1A) of the Trade Practices Act 1974 made by this Schedule applies in relation to matters arising before, on or after the commencement of this Schedule.
5 Application of amendments of section 86AA
The amendments of section 86AA of the Trade Practices Act 1974 made by this Schedule apply to:
(a) proceedings instituted in the Federal Magistrates Court after the commencement of this Schedule; and
(b) proceedings instituted in another court before, on or after the commencement of this Schedule and transferred to the Federal Magistrates Court after the commencement of this Schedule.
Trade Practices Amendment (National Access Regime) Act 2006
(No. 92, 2006)
Schedule 1
114 Application—Council annual report
The amendment made by item 3 applies in relation to financial years ending after the commencement of that item.
115 Application—objects of Part IIIA
The amendments made by the items mentioned in column 2 of the table apply in relation to the matter mentioned in column 3 of the table:
Objects of Part IIIA |
||
Column 1 |
Column 2 |
Column 3 |
1 |
Items 12 and 17 |
Applications made to the Council after the commencement of those items. |
2 |
Items 20 and 24 |
Declaration recommendations made to the designated Minister after the commencement of those items (where the applications for the recommendations were also made after that commencement). |
3 |
Items 28 and 30 |
Revocation recommendations made to the designated Minister after the commencement of those items. |
4 |
Item 37 |
Applications made to the Council after the commencement of that item. |
5 |
Item 41 |
Recommendations made to the Commonwealth Minister after the commencement of that item (where the applications for the recommendations were also made after that commencement). |
6 |
Item 65 |
Access disputes notified after the commencement of that item. |
7 |
Item 88 |
Applications made to the Commission after the commencement of that item. |
8 |
Item 92, in so far as it inserts paragraph 44ZZA(3)(aa) of the Trade Practices Act 1974 |
Access undertakings given to the Commission after the commencement of that item. |
9 |
Item 100, in so far as it inserts paragraph 44ZZAA(3)(aa) of the Trade Practices Act 1974 |
Access codes given to the Commission after the commencement of that item. |
116 Application—target time limits
The amendments made by the items mentioned in column 2 of the table apply in relation to the matter mentioned in column 3 of the table:
Target time limits |
||
Column 1 |
Column 2 |
Column 3 |
1 |
Item 18, in so far as it inserts section 44GA of the Trade Practices Act 1974 |
Applications made to the Council after the commencement of that item. |
2 |
Item 31 |
Revocation recommendations made to the designated Minister after the commencement of that item. |
3 |
Item 44, in so far as it inserts section 44NC of the Trade Practices Act 1974 |
Applications made to the Council after the commencement of that item. |
4 |
Item 44, in so far as it inserts section 44ND of the Trade Practices Act 1974 |
Recommendations made to the Commonwealth Minister after the commencement of that item. |
5 |
Item 69 |
Access disputes notified after the commencement of that item. |
6 |
Item 108, in so far as it inserts section 44ZZBC of the Trade Practices Act 1974 |
Access undertaking applications and access code applications made to the Commission after the commencement of that item. |
7 |
Item 112 |
Applications for review made to the Tribunal after the commencement of that item. |
117 Application—competition test
(1) The amendment made by item 16 applies in relation to applications made to the Council after the commencement of that item.
(2) The amendment made by item 23 applies in relation to declaration recommendations made to the designated Minister after the commencement of that item (where the applications for the recommendations were also made after that commencement).
118 Application—public consultation
(1) The amendments made by items 18 (in so far as it inserts section 44GB of the Trade Practices Act 1974) and 44 (in so far as it inserts section 44NE of that Act) apply in relation to applications made to the Council after the commencement of those items.
(2) The amendments made by items 96, 103 and 108 (in so far as it inserts section 44ZZBD of the Trade Practices Act 1974) apply in relation to access undertaking applications and access code applications made to the Commission after the commencement of those items.
119 Application—publication of decisions
(1) The amendments made by items 18 (in so far as it inserts section 44GC of the Trade Practices Act 1974) and 44 (in so far as it inserts section 44NF of that Act) apply in relation to recommendations made by the Council after the commencement of those items.
(2) The amendments made by items 25, 27, 43, 44 (in so far as it inserts section 44NG of the Trade Practices Act 1974) and 108 (in so far as it inserts section 44ZZBE of that Act) apply in relation to decisions made after the commencement of those items.
120 Application—deemed decision not to declare a service
The amendment made by item 26 applies in relation to declaration recommendations made to the designated Minister after the commencement of that item.
121 Application—extensions of access regimes, access undertakings and access codes
(1) The amendment made by item 44 (in so far as it inserts section 44NA of the Trade Practices Act 1974) applies in relation to decisions made by the Commonwealth Minister before or after the commencement of that item that an access regime is an effective access regime.
(2) The amendment made by item 108 (in so far as it inserts section 44ZZBB of the Trade Practices Act 1974) applies in relation to decisions made by the Commission before or after the commencement of that item to accept an access undertaking or an access code.
122 Transitional—review applications on effective access regime decisions
An application made to the Tribunal under subsection 44O(1) of the Trade Practices Act 1974 before the commencement of this item has effect, after that commencement, as if it had been made under that subsection after that commencement.
123 Application—interim determinations
The amendment made by item 58 applies in relation to access disputes notified to the Commission before or after the commencement of that item.
124 Transitional—existing determinations continue in operation
A determination:
(a) made by the Commission under subsection 44V(1) of the Trade Practices Act 1974 before the commencement of this item; and
(b) that is in operation under that Act immediately before that commencement;
has effect, after that commencement, as if it were a final determination made by the Commission under subsection 44V(1) of that Act.
125 Application—interconnections to facilities
The amendments made by items 60, 63 and 66 apply:
(a) in relation to access disputes notified after the commencement of those items; and
(b) in relation to access disputes notified before that commencement in respect of which no determination has been made under subsection 44V(1) of the Trade Practices Act 1974 before that commencement.
126 Application—pricing principles
The amendments made by items 67, 92 (in so far as it inserts paragraph 44ZZA(3)(ab) of the Trade Practices Act 1974) and 100 (in so far as it inserts paragraph 44ZZAA(3)(ab) of that Act) apply in relation to access disputes notified, and access undertakings and access codes given, to the Commission after the commencement of those items.
127 Application—joint arbitration hearings
The amendment made by item 71 applies in relation to access disputes notified to the Commission either before or after the commencement of that item.
128 Application—arbitration reports
The amendment made by item 72 applies in relation to access disputes notified to the Commission after the commencement of that item.
129 Application—backdating of final determinations
The amendment made by item 75 applies in relation to access disputes notified to the Commission after the commencement of that item. However, a day specified under subsection 44ZO(3) of the Trade Practices Act 1974 after that commencement cannot be a day occurring before that commencement.
130 Application—assessment of access undertakings and access codes
The amendments made by items 93, 95, 101, 102 and 107 apply in relation to access undertakings and access codes given to the Commission after the commencement of those items.
131 Application—when access undertakings and access codes come into operation
The amendments made by items 97, 104 and 108 (in so far as it inserts section 44ZZBA of the Trade Practices Act 1974) apply in relation to decisions made by the Commission after the commencement of those items.
132 Transitional—old access undertakings and access codes continue in operation
An access undertaking or access code, that is in operation under section 44ZZA or 44ZZAA of the Trade Practices Act 1974 immediately before the commencement of this item, continues in operation after that commencement under section 44ZZBA of that Act.
Note: The effect of this item is to allow extensions of the undertaking or code after the commencement of this item under section 44ZZBB of that Act.
133 Application—variation of access undertakings and access codes
The amendments made by items 98 and 105 apply in relation to variations sought after the commencement of those items.
134 Application—review of access undertaking decisions and access code decisions
The amendment made by item 108 (in so far as it inserts section 44ZZBF of the Trade Practices Act 1974) applies in relation to decisions of the Commission made after the commencement of that item.
135 Application—deferral of access disputes or access undertakings
The amendment made by item 110 (in so far as it inserts section 44ZZCB of the Trade Practices Act 1974) applies in relation to access disputes notified, and access undertakings given, to the Commission after the commencement of that item.
136 Application—Commission annual report
The amendment made by item 113 applies in relation to financial years ending after the commencement of that item.
Trade Practices Legislation Amendment Act (No. 1) 2006 (No. 131, 2006)
Schedule 1
52 Application of amendments
The amendments made by this Schedule apply in relation to applications for clearances or authorisations made after the commencement of this item.
53 Transitional
(1) A person cannot make an application (the new application), after the commencement of this item, for an authorisation under Division 3 of Part VII of the Trade Practices Act 1974 in relation to an acquisition of shares or assets if, before the commencement of this item, the person made an application (the old application) under subsection 88(9) of that Act for an authorisation in relation to the acquisition.
(2) However, the person can make the new application if:
(a) the Commission has not made a determination on the old application; and
(b) the person withdraws the old application.
Schedule 2
13 Application
The amendments made by this Schedule apply in relation to applications made after the commencement of this Schedule.
14 Saving
(1) Regulations in force for the purposes of subsection 89(1) of the Trade Practices Act 1974 immediately before the commencement of this Schedule have effect, after that commencement, as if they had been made for the purposes of that subsection after that commencement.
(2) An application made in accordance with subsection 89(1) of the Trade Practices Act 1974 before the commencement of this Schedule has effect, after that commencement, as if it had been made in accordance with that subsection after that commencement.
Schedule 3
28 Application
The amendments made by this Schedule apply in relation to contracts or arrangements made, or understandings arrived at, after the commencement of this Schedule.
29 Saving
(1) Regulations in force for the purposes of subsection 93(1) of the Trade Practices Act 1974 immediately before the commencement of this Schedule have effect, after that commencement, as if they had been made for the purposes of subsection 93(1A) of that Act after that commencement.
(2) A notice given in accordance with subsection 93(1) of the Trade Practices Act 1974 before the commencement of this Schedule has effect, after that commencement, as if it had been given in accordance with subsection 93(1A) of that Act after that commencement.
Schedule 4
2 Application
The amendment made by this Schedule applies in relation to proceedings instituted after the commencement of this Schedule (whether the contract or arrangement was made, or the understanding was arrived at, before or after that commencement).
Schedule 5
4 Application
(1) The amendments made by items 1 and 3 apply in relation to contracts or arrangements made, or understandings arrived at, before or after the commencement of this Schedule.
(2) The amendment made by item 2 applies in relation to proceedings instituted after the commencement of this Schedule (whether the contract or arrangement was made, or the understanding was arrived at, before or after that commencement).
Schedule 6
20 Application
(1) The amendments made by items 1, 4, 7, 8, 9 and 19 apply in relation to arrangements made after the commencement of those items.
(2) The amendment made by item 2 applies in relation to conduct engaged in after the commencement of that item.
Schedule 7
18 Application
The amendment made by item 17 applies in relation to notifications made after the commencement of that item.
33 Application
The amendments made by this Part apply in relation to conduct engaged in after the commencement of this Part.
35 Application
The amendment made by this Part applies in relation to notices given after the commencement of this Part (whether or not the application for authorisation was dismissed before or after that commencement).
Schedule 8
28 Application
The amendment made by item 4 applies in relation to contraventions occurring either before or after the commencement of that item.
29 Transitional—old authorisations
Subsection 155(2) of the Trade Practices Act 1974, as in force immediately before the commencement of this item, continues to apply after that commencement in relation to an authorisation given under that subsection before that commencement, but only in relation to any entry to premises under that authorisation that occurs before the 14th day after that commencement.
Schedule 9
15 Application
The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.
21 Application
The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.
24 Application
The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.
Trade Practices Legislation Amendment Act (No. 1) 2007 (No. 159, 2007)
Schedule 1
4 No effect on existing appointment
The amendments made by items 2 and 3 of this Schedule do not affect the validity of an appointment under subsection 10(1) of the Trade Practices Act 1974 that is in force immediately before the commencement of this item.
Schedule 2
12 Application of amendments
(1) The amendments made by items 1, 2 and 3 of this Schedule apply in relation to contraventions of section 46 of the Trade Practices Act 1974 (as amended by this Act) that occur after the commencement of those items.
(2) The amendments made by items 4 to 8 of this Schedule apply in relation to contraventions of section 151AK of the Trade Practices Act 1974 (as amended by this Act) that occur after the commencement of those items.
(3) The amendments made by items 9, 10 and 11 of this Schedule apply in relation to contraventions of section 46 of the Schedule to the Trade Practices Act 1974 (as amended by this Act) that occur after the commencement of those items.
Schedule 3
9 Application of amendments
The amendments made by this Schedule apply in relation to conduct engaged in after the commencement of the amendments in relation to contracts for the supply or acquisition of goods or services made before or after commencement.
Trade Practices Legislation Amendment Act 2008 (No. 116, 2008)
Schedule 3
13 Application of item 12
The amendments made by item 12 of this Schedule apply in relation to conduct engaged in after the commencement of that item, including conduct in relation to contracts for the supply or acquisition of goods or services whether made before or after that commencement.
15 Application of item 14
(1) Item 14 applies in relation to a matter referred to in subsection 155(1) of the Trade Practices Act 1974 whether the matter arose before or after the commencement of that item.
(2) Without limiting subitem (1), item 14 of this Schedule applies even if an interim injunction has been granted in relation to the matter.
Trade Practices Amendment (Clarity in Pricing) Act 2008 (No. 126, 2008)
Schedule 1
5 Application
The amendments made by this Schedule apply in relation to conduct engaged in after the commencement of this Schedule.
Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009
(No. 59, 2009)
Schedule 1
118 Application—subsection 163(2) of the Trade Practices Act 1974
Despite the repeal of subsection 163(2) of the Trade Practices Act 1974 by this Schedule, that subsection continues to apply, in relation to prosecutions instituted before the commencement of this item, as if that repeal had not happened.
Schedule 2
52 Application—search warrants
The amendments of the following provisions made by this Schedule:
(a) section 154A of the Trade Practices Act 1974 (to the extent to which that section relates to Division 4 of Part XID of that Act);
(b) Division 4 of Part XID of the Trade Practices Act 1974;
apply in relation to search warrants issued after the commencement of this item.
53 Application—giving answers and producing documents etc.
(1) The amendments of subsection 155(7) of the Trade Practices Act 1974 made by this Schedule apply in relation to notices under section 155 of that Act served after the commencement of this item.
(2) The amendments of section 159 of the Trade Practices Act 1974 made by this Schedule apply in relation to:
(a) requirements to give evidence; and
(b) requirements to produce documents;
imposed after the commencement of this item.
Statute Stocktake (Regulatory and Other Laws) Act 2009 (No. 111, 2009)
Schedule 1
49 Application of items 47 and 48
If, at the time when this item commences, item 5 of Schedule 4 to the Trade Practices Amendment (Australian Consumer Law) Act 2009 has commenced, then a reference to the Schedule in the heading of item 47 or 48 of this Part is taken to be a reference to Schedule 1.
50 Transitional—Repeal of subparagraph 163A(1)(a)(ia) of the Trade Practices Act 1974
(1) Despite the repeal of subparagraph 163A(1)(a)(ia) of the Trade Practices Act 1974 made by item 46 of this Part, that subparagraph continues to apply, so that a declaration about the operation or effect of Part VB of the old law cannot be sought, as if that repeal had not happened.
(2) In this item:
old law means the Trade Practices Act 1974 as in force immediately before the commencement of this item.
Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010
(No. 44, 2010)
Schedule 1
2 Application and transitional provisions
(1) Part 2 of Schedule 2 to the Trade Practices Act 1974 applies to a contract entered into on or after the commencement of this Schedule.
(2) That Part does not apply to a contract entered into before the commencement of this Schedule. However:
(a) if the contract is renewed on or after that commencement—that Part applies 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—that Part applies 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 or after the variation day.
(2A) If paragraph (2)(b) applies to a term of a contract, subsection 2(2) and section 7 of Schedule 2 to the Trade Practices Act 1974 applies to the contract.
(3) Despite paragraphs (2)(a) and (b) and subitem (2A), that Part does not apply to a contract, or a term of a contract, to the extent that the operation of that Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution).
Trade Practices Amendment (Infrastructure Access) Act 2010
(No. 102, 2010)
Schedule 1
72 Application of amendments
(1) The amendments made by items 1, 2, 3, 4, 5, 6, 17, 18, 19, 23, 24, 25, 26, 27, 31 and 33 of this Schedule apply in relation to applications made to the Council after the commencement of those items.
(3) The amendments made by items 8, 9 and 10 of this Schedule apply in relation to revocation recommendations made to the designated Minister after the commencement of those items.
(4) The amendments made by items 11, 12, 13, 14, 15, 16, 34, 35, 36, 42, 43, 45, 46, 47, 48, 51, 52, 54, 55, 56, 57, 66, 67, 68, 69, 70 and 71 of this Schedule apply in relation to applications for review made to the Tribunal after the commencement of those items.
(5) The amendments made by items 20, 21, 22, 28, 29, 30 and 32 of this Schedule apply in relation to recommendations received by the Commonwealth Minister after the commencement of those items.
(6) The amendments made by items 37, 38, 39, 40 and 41 of this Schedule apply in relation to applications made to the Commission after the commencement of those items.
(7) The amendments made by items 49 and 50 of this Schedule apply in relation to access disputes notified after the commencement of those items.
(8) The amendments made by items 58, 59, 60, 61, 62, 63, 64 and 65 of this Schedule apply in relation to access undertaking applications and access code applications made to the Commission after the commencement of those items.
Schedule 3
11 Application provision
The amendments made by Part 1 of this Schedule apply to access undertakings given to the Commission after the commencement of that Part.
Schedule 4
5 Application provisions
(1) The amendments made by Part 1 of this Schedule, other than items 2 and 4, apply in relation to access undertakings given to the Commission after the commencement of that Part.
(2) The amendment made by item 2 in Part 1 of this Schedule applies in relation to access undertakings, whether given to the Commission before or after the commencement of that Part.
(3) The amendment made by item 4 in Part 1 of this Schedule applies in relation to access codes, whether given to the Commission before or after the commencement of that Part.
Schedule 5
20 Application—resolutions without meetings
The amendment made by item 1 of this Schedule applies in relation to documents signed by all Councillors (other than those that must not sign a document because of subsection 29LA(3) of the Trade Practices Act 1974 as inserted by item 1 of this Schedule) after the commencement of that item.
21 Application of effective access regime criterion amendments
(1) The amendments made by items 2 (to the extent that it repeals paragraph 44DA(1)(a) of the Trade Practices Act 1974), 6 and 7 of this Schedule apply in relation to applications received after the commencement of those items.
(2) The amendments made by items 2 (to the extent that it repeals paragraph 44DA(1)(b) of the Trade Practices Act 1974), 9 and 10 of this Schedule apply in relation to declaration recommendations received after the commencement of those items (where the applications for declaration recommendations were also made after commencement).
22 Application of health and safety criterion amendments
(1) The amendment made by item 5 of this Schedule applies in relation to applications made after the commencement of that item.
(2) The amendment made by item 8 of this Schedule applies in relation to declaration recommendations received after the commencement of that item (where the applications for declaration recommendations were also made after commencement).
23 Application—variations to declaration applications
The amendment made by item 4 of this Schedule applies in relation to applications made to the Council after the commencement of that item.
24 Application—stay of declarations and costs
The amendments made by items 11, 12, 13 and 15 of this Schedule apply in relation to applications for review made to the Tribunal after the commencement of those items.
25 Application—arbitration while review underway
The amendments made by items 14, 16, 18 and 19 of this Schedule apply in relation to access disputes notified after the commencement of those items (where applications for review were also made after commencement).
Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010
(No. 103, 2010)
Schedule 4
5 Application provision
Division 4 of Part IVB of the Competition and Consumer Act 2010, inserted by this Schedule, does not apply in relation to contravening conduct that occurred before the commencement of this item.
Schedule 7
1 Definitions
In this Schedule:
Australian Consumer Law has the same meaning as in Part XI of the Competition and Consumer Act 2010 as substituted by Schedule 2 to this Act.
Commonwealth Minister has the same meaning as in the Australian Consumer Law.
2 Declarations of goods to be unsafe goods
A notice under subsection 65C(5) of the Trade Practices Act 1974 that was in force immediately before the commencement of this item continues in force after that commencement as if:
(a) it were an interim ban imposed under section 109 of the Australian Consumer Law by the Commonwealth Minister; and
(b) it starts on the day of that commencement.
3 Permanent bans
A notice under subsection 65C(7) of the Trade Practices Act 1974 that was in force immediately before the commencement of this item continues in force after that commencement as if it were a permanent ban imposed under section 114 of the Australian Consumer Law.
4 Prescribed consumer product safety standards
A prescribed consumer product safety standard under section 65C of the Trade Practices Act 1974 that was in force immediately before the commencement of this item continues in force after that commencement as if it were a safety standard made under section 104 of the Australian Consumer Law.
5 Prescribed consumer product information standards
A prescribed consumer product information standard under section 65D of the Trade Practices Act 1974 that was in force immediately before the commencement of this item continues in force after that commencement as if it were an information standard made under section 134 of the Australian Consumer Law.
6 Acts or omissions that occurred before commencement
(1) The Trade Practices Act 1974 as in force immediately before the commencement of this item continues to apply, after that commencement, in relation to acts or omissions that occurred before that commencement.
(2) Without limiting subitem (1), action may be taken, under or in relation to Part VC or VI of that Act as so in force, in relation to those acts or omissions.
7 Proceedings already commenced
(1) The Trade Practices Act 1974 as in force immediately before the commencement of this item continues to apply to or in relation to any proceedings, under or in relation to that Act, that were commenced, but not concluded, before that commencement.
(2) However, to the extent that any such proceeding are proceedings for an injunction under section 80 of that Act as so in force, the proceedings are taken, after that commencement, to be proceedings for an injunction under section 232 of the Australian Consumer Law.
8 Unfair contract terms
(1) Part 2‑3 of the Australian Consumer Law applies to a contract entered into on or after the commencement of this item.
(2) That Part does not apply to a contract entered into before that commencement. However:
(a) if the contract is renewed on or after that commencement—that Part applies 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—that Part applies 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 or after the variation day.
(3) If paragraph (2)(b) applies to a term of a contract, subsection 23(2) and section 27 of the Australian Consumer Law apply to the contract.
(4) Despite paragraphs (2)(a) and (b) and subitem (3), that Part does not apply to a contract, or a term of a contract, to the extent that the operation of that Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution).
9 Requests for itemised bills
Section 101 of the Australian Consumer Law does not apply in relation to a supply of services to the extent that the services were supplied before the commencement of this item.
10 Pecuniary penalties—having regard to previous findings
The reference in paragraph 224(2)(c) of the Australian Consumer Law to proceedings under Chapter 4 or Part 5‑2 of Schedule 2 includes a reference to proceedings, commenced before the commencement of this item, under or in relation to:
(a) Part VC or VI of the Trade Practices Act 1974; or
(b) equivalent provisions of a law of a State or a Territory.
11 Regulations relating to professional standards laws
Regulations made for the purposes of section 87AB of the Trade Practices Act 1974 that were in force immediately before the commencement of this item have effect, after the commencement of this item, as if they had been made for the purposes of section 137 of that Act as amended by this Act.
12 General power for regulations to deal with transitional matters
The Governor‑General may make regulations prescribing matters of a transitional, application or saving nature in relation to the amendments and repeals made by the Schedules to this Act.
Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 (No. 140, 2010)
Schedule 1
40 Transitional—continuity of special Telstra directions
The repeal of section 151BUAAA of the Competition and Consumer Act 2010 effected by this Part does not affect the continuity of a special Telstra direction (within the meaning of that section) that was in force immediately before the commencement of this item.
198 Definitions
In this Division:
access agreement has the same meaning as in Part XIC of the Competition and Consumer Act 2010 as amended by this Part.
access determination has the same meaning as in Part XIC of the Competition and Consumer Act 2010 as amended by this Part.
binding rules of conduct has the same meaning as in Part XIC of the Competition and Consumer Act 2010 as amended by this Part.
202 Transitional—ordinary class exemptions from standard access obligations
(1) This item applies to a determination that:
(a) was made under section 152AS of the Competition and Consumer Act 2010; and
(b) was in force immediately before the commencement of this item.
(2) Despite:
(a) the repeal of section 152AS of the Competition and Consumer Act 2010 effected by this Part; and
(b) the amendment of paragraph 152BBAA(1)(a) of that Act made by this Part;
that section and that paragraph continue to apply, in relation to the determination, as if that repeal had not happened and that amendment had not been made. This subitem has effect subject to the following subitem.
(3) The determination ceases to have effect, to the extent to which it relates to a particular declared service, when the first access determination relating to access to the declared service comes into force.
203 Transitional—ordinary individual exemptions from standard access obligations
(1) This item applies to a determination that:
(a) was made under section 152AT of the Competition and Consumer Act 2010; and
(b) was in force immediately before the commencement of this item.
(2) Despite:
(a) the repeal of section 152AT of the Competition and Consumer Act 2010 effected by this Part; and
(b) the amendment of paragraph 152BBAA(1)(b) of that Act made by this Part;
that section and that paragraph continue to apply, in relation to the determination, as if that repeal had not happened and that amendment had not been made. This subitem has effect subject to the following subitem.
(3) The determination ceases to have effect, to the extent to which it relates to a particular declared service, when the first access determination relating to access to the declared service comes into force.
204 Transitional—ordinary access undertakings given to the Commission before 15 September 2009
(1) This item applies to an ordinary access undertaking that:
(a) was given by a carrier or carriage service provider to the Commission under section 152BS of the Competition and Consumer Act 2010 before 15 September 2009; and
(b) was accepted by the Commission under section 152BU of that Act before the commencement of this item; and
(c) was in operation immediately before the commencement of this item.
(2) Despite the following repeals effected, and amendments made, by this Part:
(a) the repeal of Subdivision A of Division 5 of Part XIC of the Competition and Consumer Act 2010;
(b) the amendment of the definition of access undertaking in section 152AC of that Act;
(c) the repeal of the definition of ordinary access undertaking in section 152AC of that Act;
(d) the amendment of subparagraph (c)(i) of the definition of protected information in subsection 155AAA(21) of that Act;
that Subdivision and those definitions continue to apply, in relation to the undertaking, as if those repeals had not happened and those amendments had not been made. This subitem has effect subject to the following subitems.
(3) The undertaking cannot be varied so as to extend its duration.
(4) If the undertaking adopts a set of model terms and conditions set out in the telecommunications access code, then, despite the repeal of sections 152BJ and 152BK of the Competition and Consumer Act 2010, those sections continue to apply, in relation to the undertaking, as if those repeals had not happened.
(5) If the undertaking is inconsistent with an access agreement, the undertaking has no effect to the extent of the inconsistency.
205 Transitional—ordinary access undertakings given to the Commission on or after 15 September 2009
(1) This item applies to an ordinary access undertaking that:
(a) was given to the Commission under section 152BS of the Competition and Consumer Act 2010 on or after 15 September 2009; and
(b) was accepted by the Commission under section 152BU of that Act before the commencement of this item; and
(c) was in operation immediately before the commencement of this item.
(2) Despite the following repeals effected, and amendments made, by this Part:
(a) the repeal of Subdivision A of Division 5 of Part XIC of the Competition and Consumer Act 2010;
(b) the amendment of the definition of access undertaking in section 152AC of that Act;
(c) the repeal of the definition of ordinary access undertaking in section 152AC of that Act;
(d) the amendment of subparagraph (c)(i) of the definition of protected information in subsection 155AAA(21) of that Act;
that Subdivision and those definitions continue to apply, in relation to the undertaking, as if those repeals had not happened and those amendments had not been made. This subitem has effect subject to the following subitems.
(3) The undertaking cannot be varied so as to extend its duration.
(4) The undertaking ceases to have effect, to the extent to which it relates to a particular declared service, when the first access determination relating to access to the declared service comes into force.
(5) If the undertaking adopts a set of model terms and conditions set out in the telecommunications access code, then, despite the repeal of sections 152BJ and 152BK of the Competition and Consumer Act 2010, those sections continue to apply, in relation to the undertaking, as if those repeals had not happened.
(6) If the undertaking is inconsistent with an access agreement, the undertaking has no effect to the extent of the inconsistency.
206 Transitional—continuity of special access undertakings
The amendment of subsection 152CBA(1) of the Competition and Consumer Act 2010 made by this Part does not affect the continuity of a special access undertaking that was in operation immediately before the commencement of this item.
207 Transitional—arbitration of access disputes
(1) Despite the following repeals effected, and amendments made, by this Part:
(a) the repeal of Division 8 of Part XIC of the Competition and Consumer Act 2010;
(b) the amendment of the definition of pre‑request right in subsection 152AR(12) of that Act;
(c) the repeal of subsection 152BBC(5) of that Act;
(d) the repeal of section 152CGB of that Act;
(e) the amendments of section 152ELA of that Act;
(f) the amendment of subsection 171B(1) of that Act;
that Division, that definition, and those sections and subsections continue to apply as if those repeals had not happened and those amendments had not been made. This subitem has effect subject to the following subitems.
(2) If:
(a) a declared service is supplied, or proposed to be supplied, by a carrier or a carriage service provider; and
(b) one or more standard access obligations apply, or will apply, to the carrier or provider in relation to the declared service; and
(c) an access seeker is unable to agree with the carrier or provider about one or more aspects of access to the declared service;
then:
(d) if the declared service was a declared service immediately before the commencement of this item—a person is not entitled to notify an access dispute to the Commission under section 152CM of the Competition and Consumer Act 2010 at any time after the first final access determination relating to access to the declared service has come into force; or
(e) otherwise—a person is not entitled to notify an access dispute to the Commission under section 152CM of the Competition and Consumer Act 2010.
(3) If:
(a) a declared service is supplied, or proposed to be supplied, by a carrier or a carriage service provider; and
(b) one or more standard access obligations apply, or will apply, to the carrier or provider in relation to the declared service; and
(c) an access seeker is unable to agree with the carrier or provider about the terms and conditions on which the carrier or provider is to comply with those obligations;
then:
(d) if the declared service was a declared service immediately before the commencement of this item—a person is not entitled to notify an access dispute to the Commission under section 152CM of the Competition and Consumer Act 2010 at any time after the first final access determination relating to access to the declared service has come into force; or
(e) otherwise—a person is not entitled to notify an access dispute to the Commission under section 152CM of the Competition and Consumer Act 2010.
(3A) If:
(a) a declared service is supplied, or proposed to be supplied, by Telstra; and
(b) one or more standard access obligations apply, or will apply, to Telstra in relation to the declared service; and
(c) an access agreement relating to access to the declared service:
(i) is in force between an NBN corporation (within the meaning of section 577BA of the Telecommunications Act 1997) and Telstra; and
(ii) is specified in an undertaking in force under section 577A of the Telecommunications Act 1997; and
(d) the access agreement was entered into before the first final access determination relating to access to the declared service has come into force;
neither Telstra nor the NBN corporation is entitled to notify an access dispute to the Commission under section 152CM of the Competition and Consumer Act 2010 in relation to the declared service.
(4) A final determination made by the Commission under Division 8 of Part XIC of the Competition and Consumer Act 2010 after the commencement of this item must specify an expiry date for the determination. Unless sooner revoked, the determination ceases to be in force on the expiry date for the determination.
(5) If:
(a) an access agreement relating to access to a declared service is entered into before the first final access determination relating to access to the declared service has come into force; and
(b) the access agreement is inconsistent with a determination under Division 8 of Part XIC of the Competition and Consumer Act 2010;
the access agreement has no effect to the extent of the inconsistency.
(6) If a determination under Division 8 of Part XIC of the Competition and Consumer Act 2010:
(a) does not have an expiry date; and
(b) is inconsistent with a final access determination;
the first‑mentioned determination has no effect to the extent of the inconsistency.
(7) If:
(a) a final access determination is inconsistent with a determination under Division 8 of Part XIC of the Competition and Consumer Act 2010; and
(b) the determination under Division 8 of Part XIC of the Competition and Consumer Act 2010 has an expiry date;
the final access determination has no effect to the extent of the inconsistency.
(8) If an interim access determination is inconsistent with a determination under Division 8 of Part XIC of the Competition and Consumer Act 2010, the interim access determination has no effect to the extent of the inconsistency.
(9) If a determination under Division 8 of Part XIC of the Competition and Consumer Act 2010:
(a) does not have an expiry date; and
(b) is inconsistent with binding rules of conduct;
the determination has no effect to the extent of the inconsistency.
(10) If:
(a) binding rules of conduct are inconsistent with a determination under Division 8 of Part XIC of the Competition and Consumer Act 2010; and
(b) the determination under Division 8 of Part XIC of the Competition and Consumer Act 2010 has an expiry date;
the binding rules of conduct have no effect to the extent of the inconsistency.
(11) If a determination under Division 8 of Part XIC of the Competition and Consumer Act 2010 relating to access to a declared service is inconsistent with an access agreement that was entered into after the first final access determination relating to access to the declared service has come into force, the first‑mentioned determination has no effect to the extent of the inconsistency.
(12) The Commission may, at any time, terminate an arbitration under Division 8 of Part XIC of the Competition and Consumer Act 2010 (without making a determination under that Division) 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 relating to access to the declared service concerned.
208 Transitional—compliance with standard access obligations
(1) This item applies if:
(a) a carrier or carriage service provider is required to comply with any or all of the standard access obligations; and
(b) either:
(i) an ordinary access undertaking given by the carrier or carriage service provider is in operation, and the undertaking specifies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any of the standard obligations; or
(ii) a determination made by the Commission under Division 8 of Part XIC of the Competition and Consumer Act 2010 is in force, and the determination specifies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any of the standard obligations.
(2) The carrier or carriage service provider must comply with the obligations mentioned in paragraph (1)(a):
(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:
(i) paragraph (a) does not apply in relation to terms and conditions about a particular matter; and
(ii) an 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) a determination made by the Commission under Division 8 of Part XIC of the Competition and Consumer Act 2010 specifies terms and conditions about that matter;
on such terms and conditions relating to that matter as are set out in the determination; or
(e) 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: Subitems 204(5), 205(6) and 207(5) to (11) of this Schedule, and sections 152BCC, 152BDB, 152BDE, 152CBIA, 152CBIB, 152CBIC and 152CGB of the Competition and Consumer Act 2010, which deal with inconsistency, should be read and applied before this item is read and applied.
Note 2: Even though subitem (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.
(3) Section 152AY of the Competition and Consumer Act 2010 as amended by this Part does not apply in relation to compliance by the carrier or carriage service provider with the standard access obligations.
209 Transitional—hindering the fulfilment of an obligation imposed by an arbitration determination
In addition to its effect apart from this item, section 152EF of the Competition and Consumer Act 2010 as amended by this Part also has the effect it would have if the reference in paragraph (1)(a) of that section to a standard access obligation included a reference to an obligation imposed by a determination made by the Commission under Division 8 of Part XIC of the Competition and Consumer Act 2010.
210 Transitional—regulations
The Governor‑General may make regulations in relation to transitional matters arising out of the amendments made by this Part.
213 Application—competition notices
The amendment of section 151AKA of the Competition and Consumer Act 2010 made by this Part applies in relation to Part A competition notices issued after the commencement of this item.
Financial Framework Legislation Amendment Act 2010 (No. 148, 2010)
Schedule 6
2 Property held by Commission
Any real or personal property that was held by the Commission immediately before this Schedule commences is taken, after this Schedule commences, to be real or personal property held by the Commission for and on behalf of the Commonwealth.
3 Right to sue
To avoid doubt, the Commission’s right to sue is not affected by the amendment of the Competition and Consumer Act 2010 in accordance with this Schedule.