Part IVC—Payment surcharges
Division 1—Preliminary
55 Object of this Part
The object of this Part is to ensure that payment surcharges:
(a) are not excessive; and
(b) reflect the cost of using the payment methods for which they are charged.
55A Definitions
In this Part:
excessive, in relation to a payment surcharge, has the meaning given by subsection 55B(2).
infringement notice compliance period has the meaning given by subsection 55M(1).
listed corporation has the meaning given by section 9 of the Corporations Act 2001.
payment surcharge means:
(a) an amount charged, in addition to the price of goods or services, for processing payment for the goods or services; or
(b) an amount (however described) charged for using one payment method rather than another.
Reserve Bank standard means a standard determined under section 18 of the Payment Systems (Regulation) Act 1998 after the commencement of this definition.
surcharge information notice has the meaning given by subsection 55C(3).
surcharge participant has the meaning given by subsection 55C(2).
Division 2—Limit on payment surcharges
55B Payment surcharges must not be excessive
(1) A corporation must not, in trade or commerce, charge a payment surcharge that is excessive.
(2) A payment surcharge is excessive if:
(a) the surcharge is for a kind of payment covered by:
(i) a Reserve Bank standard; or
(ii) regulations made for the purposes of this subparagraph; and
(b) the amount of the surcharge exceeds the permitted surcharge referred to in the Reserve Bank standard or the regulations.
(3) Subsection (1) does not apply to a corporation who is exempted from its operation by the regulations.
Division 3—Information about payment surcharges
55C Surcharge information notices
(1) The Commission may, by written notice given to a surcharge participant, require the participant to give to the Commission information or documents evidencing either or both of the following:
(a) the amount of a payment surcharge;
(b) the cost of processing a payment in relation to which a payment surcharge was paid.
(2) A corporation is a surcharge participant if, in trade or commerce, the corporation:
(a) charges a payment surcharge; or
(b) processes a payment for which a payment surcharge is charged.
(3) The notice given by the Commission to the surcharge participant is a surcharge information notice.
(4) The surcharge information notice must specify:
(a) the kinds of information or documents to be given to the Commission; and
(b) the period for giving the information or documents.
55D Extending periods for complying with notices
(1) A surcharge participant that has been given a notice under section 55C may, at any time within 21 days after the notice was given to the participant, apply in writing to the Commission for an extension of the period for complying with the notice.
(2) The Commission may, by written notice given to the surcharge participant, extend the period within which the participant must comply with the notice.
55E Participant must comply with notice
(1) A surcharge participant commits an offence if:
(a) the surcharge participant is given a surcharge information notice; and
(b) the surcharge participant fails to comply with the notice within the period for so complying.
Penalty: 30 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
Division 4—Infringement notices
55F Purpose and effect of this Division
(1) The purpose of this Division is to provide for the issue of an infringement notice to a person for an alleged contravention of section 55B as an alternative to proceedings for an order under section 76 for the payment of a pecuniary penalty.
(2) This Division does not:
(a) require an infringement notice to be issued to a person for an alleged contravention of section 55B; or
(b) affect the liability of a person to proceedings under section 76 in relation to an alleged contravention of section 55B if:
(i) an infringement notice is not issued to the person for the contravention; or
(ii) an infringement notice issued to the person for the contravention is withdrawn under section 55N; or
(c) prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice.
55G Issuing an infringement notice
(1) If the Commission has reasonable grounds to believe that a person has contravened section 55B, the Commission may issue an infringement notice to the person.
(2) The Commission must not issue more than one infringement notice to the person for the same alleged contravention of section 55B.
(3) The infringement notice does not have any effect if the notice:
(a) is issued more than 12 months after the day that the contravention of section 55B is alleged to have occurred; or
(b) relates to more than one alleged contravention of section 55B by the person.
55H Matters to be included in an infringement notice
(1) An infringement notice must:
(a) be identified by a unique number; and
(b) state the day on which it is issued; and
(c) state the name and address of the person to whom it is issued; and
(d) identify the Commission and state how it may be contacted; and
(e) give details of the alleged contravention, including the day of the alleged contravention; and
(f) state the maximum pecuniary penalty that the court could order the person to pay under section 76 for the alleged contravention; and
(g) specify the penalty that is payable in relation to the alleged contravention; and
(h) state that the penalty is payable within the infringement notice compliance period for the notice; and
(i) state that the penalty is payable to the Commission on behalf of the Commonwealth; and
(j) explain how payment of the penalty is to be made; and
(k) explain the effect of sections 55K, 55L, 55M and 55N.
55J Amount of penalty
The penalty to be specified in an infringement notice that is to be issued to a person in relation to an alleged contravention of section 55B must be:
(a) if the person is a listed corporation—600 penalty units; or
(b) if the person is a body corporate other than a listed corporation—60 penalty units; or
(c) if the person is not a body corporate—12 penalty units.
55K Effect of compliance with an infringement notice
(1) This section applies if:
(a) an infringement notice for an alleged contravention of section 55B is issued to a person; and
(b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and
(c) the infringement notice is not withdrawn under section 55N.
(2) The person is not, merely because of the payment, regarded as having contravened section 55B.
(3) No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to the alleged contravention of section 55B.
55L Effect of failure to comply with an infringement notice
If:
(a) an infringement notice for an alleged contravention of section 55B is issued to a person; and
(b) the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and
(c) the infringement notice is not withdrawn under section 55N;
the person is liable to proceedings under section 76 in relation to the alleged contravention of section 55B.
55M Infringement notice compliance period for infringement notice
(1) Subject to this section, the infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day that the infringement notice is issued by the Commission.
(2) The Commission may extend, by notice in writing, the infringement notice compliance period for the infringement notice if the Commission is satisfied that it is appropriate to do so.
(3) Only one extension may be given and the extension must not be for longer than 28 days.
(4) Notice of the extension must be given to the person who was issued the infringement notice.
(5) A failure to comply with subsection (4) does not affect the validity of the extension.
(6) If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.
55N Withdrawal of an infringement notice
Representations to the Commission
(1) A person to whom an infringement notice has been issued for an alleged contravention of section 55B may make written representations to the Commission seeking the withdrawal of the infringement notice.
(2) Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).
Withdrawal by the Commission
(3) The Commission may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so.
(4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal.
Content of withdrawal notices
(5) The withdrawal notice must state:
(a) the name and address of the person; and
(b) the day on which the infringement notice was issued to the person; and
(c) that the infringement notice is withdrawn; and
(d) that proceedings under section 76 may be started or continued against the person in relation to the alleged contravention of section 55B.
Time limit for giving withdrawal notices
(6) To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice.
Refunds
(7) If the infringement notice is withdrawn after the person has paid the penalty specified in the infringement notice, the Commission must refund to the person an amount equal to the amount paid.
Part IVD—Consumer data right
Division 1—Preliminary
Subdivision A—Object and simplified outline
56AA Object of this Part
The object of this Part is:
(a) to enable consumers in certain sectors of the Australian economy to require information relating to themselves in those sectors to be disclosed safely, efficiently and conveniently:
(i) to themselves for use as they see fit; or
(ii) to accredited persons for use subject to privacy safeguards; and
(b) to enable any person to efficiently and conveniently access information in those sectors that:
(i) is about goods (such as products) or services; and
(ii) does not relate to any identifiable, or reasonably identifiable, consumers; and
(c) as a result of paragraphs (a) and (b), to create more choice and competition, or to otherwise promote the public interest.
56AB Simplified outline
Rules made under this Part may:
(a) enable consumers in certain sectors of the Australian economy to require information relating to themselves in those sectors to be disclosed to themselves or to accredited persons; and
(b) enable any person to be disclosed information in those sectors that is about goods (such as products) or services, and does not relate to any identifiable, or reasonably identifiable, consumers; and
(c) may require these kinds of disclosures, and other things, to be done in accordance with data standards.
A register is to be kept of accredited persons.
Privacy safeguards apply. These mainly apply to accredited persons who, under those rules, are disclosed information relating to identifiable, or reasonably identifiable, consumers.
Subdivision B—Designating sectors subject to the consumer data right
56AC Designated sectors subject to the consumer data right
Designating a sector
(1) A designated sector means a sector of the Australian economy designated under subsection (2).
(2) The Minister may, by legislative instrument, designate a sector of the Australian economy by specifying:
(a) classes of information (the designated information); and
(b) persons who hold one or more specified classes of the designated information (or on whose behalf such information is held); and
(c) the earliest day (the earliest holding day) applicable to the sector for holding the designated information; and
(d) each of the classes of information within the designated information for which a person may charge a fee if:
(i) the person is required under the consumer data rules to disclose information within that class to another person in specified circumstances; or
(ii) another person uses information within that class in specified circumstances as the result of a disclosure required of the first‑mentioned person under the consumer data rules; and
(e) if the sector is to have one or more gateways:
(i) the particular persons who are gateways; and
(ii) for each of those persons, the classes of information within the designated information for which the person is a gateway.
Note 1: The persons specified under paragraph (b):
(a) may be specified by class (see subsection 13(3) of the Legislation Act 2003); and
(b) will be holders of the information, rather than the consumers to whom the information relates; and
(c) may not be the only holders of the information who can be required to disclose it under the consumer data rules (see section 56AJ (about the meaning of data holder)).
Note 2: While a class of information specified under paragraph (b), (d) or (e) needs to be of the information specified under paragraph (a), it need not be the same class as a class specified under paragraph (a).
Note 3: Subparagraph (e)(i) allows only particular persons to be specified, not classes of persons.
Note 4: For variation and repeal, see subsection 33(3) of the Acts Interpretation Act 1901.
Geographical limitation on information that can be designated
(3) Despite paragraph (2)(a), treat a class of information specified as described in that paragraph as only including so much of the information in that class as:
(a) has at any time been generated or collected wholly or partly in Australia or the external Territories, and:
(i) has been so generated or collected by (or on behalf of) one or more Australian persons; or
(ii) relates to one or more Australian persons (other than the persons who so generated or collected it); or
(iii) relates to goods or services supplied, or offered for supply, to one or more Australian persons; or
(b) has only ever been generated and collected outside of Australia and the external Territories, and:
(i) has been so generated or collected by (or on behalf of) one or more Australian persons; and
(ii) relates to one or more Australian persons (other than the persons who so generated or collected it), or relates to goods or services supplied, or offered for supply, to one or more Australian persons.
In this subsection, Australian person has the same meaning as in subsection 56AO(5).
Limitation on the earliest holding day
(4) While the earliest holding day may be before the day the instrument under subsection (2) is made, the earliest holding day must not be earlier than the first day of the calendar year that is 2 years before the calendar year in which that instrument is made.
Example: The instrument is made on 1 July 2020. The earliest holding day could be 1 January 2018, but not before.
Note: The earliest holding day helps to work out if a person is a data holder of information specified under paragraph (2)(a), and so whether that information is subject to the consumer data right.
56AD Minister’s tasks before designating a sector etc.
(1) Before making an instrument under subsection 56AC(2), the Minister must consider all of the following:
(a) the likely effect of making the instrument on:
(i) the interests of consumers; and
(ii) the efficiency of relevant markets; and
(iii) the privacy or confidentiality of consumers’ information; and
(iv) promoting competition; and
(v) promoting data‑driven innovation; and
(vi) any intellectual property in the information to be covered by the instrument; and
(vii) the public interest;
(b) the likely regulatory impact of allowing the consumer data rules to impose requirements relating to the information to be covered by the instrument;
(c) the following matters when considering whether to specify a class of information, as described in paragraph 56AC(2)(d), in the instrument:
(i) whether not specifying that class could result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution);
(ii) whether holders of information within that class currently charge a fee for disclosing such information;
(iii) whether the incentive to generate, collect, hold or maintain information within that class would be reduced if that class were not so specified;
(iv) the marginal cost of the disclosures required under the consumer data rules of information within that class;
(d) whether one or more gateways need to be specified in the instrument in order to facilitate access to the information to be covered by the instrument;
(e) any other matters the Minister considers relevant.
Note: The consumers could be individuals or other persons such as companies (see also subsection 56AI(4)).
(2) Before making an instrument under subsection 56AC(2), the Minister must:
(a) be satisfied that the Secretary of the Department has complied with section 56AE in relation to the making of the instrument; and
(b) wait at least 60 days after the day the Secretary publishes the report relating to the making of the instrument (see section 56AE).
(3) Before making an instrument under subsection 56AC(2), the Minister must consult the Information Commissioner about the likely effect of making the instrument on the privacy or confidentiality of consumers’ information.
56AE Secretary must arrange for analysis, consultation and report about an instrument proposing to designate a sector
(1) The Secretary of the Department complies with this section in relation to the making of an instrument under subsection 56AC(2) if the Secretary arranges for all of the following:
(a) an analysis of the matters in paragraphs 56AD(1)(a) to (e) in relation to the instrument;
(b) public consultation about those matters in relation to the instrument:
(i) for at least 28 days; and
(ii) in one or more ways that includes making information available on the Department’s website and inviting the public to comment;
(c) consultation with each of the following about those matters in relation to the instrument:
(i) the Commission;
(ii) the Information Commissioner;
(iii) the person or body (if any) that the Secretary believes to be the primary regulator of the sector that the instrument would designate;
(iv) any person or body prescribed by the regulations;
(d) the preparation of a report for the Minister about that analysis and consultation.
(2) The Secretary must publish the report on the Department’s website.
56AEA Commission must analyse an instrument proposing to designate a sector
When the Commission is consulted under subparagraph 56AE(1)(c)(i), the Commission must analyse the matters in paragraphs 56AD(1)(a) to (e) in relation to the instrument.
56AF Information Commissioner must analyse and report about an instrument proposing to designate a sector
(1) When the Information Commissioner is consulted under subsection 56AD(3), the Information Commissioner must:
(a) analyse the likely effect of making the instrument on the privacy or confidentiality of consumers’ information; and
(b) report to the Minister about that analysis.
(2) The Information Commissioner must publish the report on the Information Commissioner’s website, except for any excluded part of the report.
(3) In deciding whether or not to exclude a part of the report from publication, the Information Commissioner must:
(a) have regard to the need to prevent the matters in subsection 33(2) of the Privacy Act 1988; and
(b) try to achieve an appropriate balance between the need to prevent those matters and the desirability of ensuring that interested persons are sufficiently informed of the Information Commissioner’s analysis in the report.
56AH Other matters
A failure to comply with section 56AD, 56AE, 56AEA or 56AF does not invalidate an instrument made under subsection 56AC(2).
Subdivision C—Meanings of key terms
56AI Meanings of CDR data, directly or indirectly derived and CDR consumer
(1) CDR data is information that:
(a) is within a class of information specified, as described in paragraph 56AC(2)(a), in an instrument designating a sector under subsection 56AC(2); or
(b) is not covered by paragraph (a) of this subsection, but is wholly or partly derived from information covered by:
(i) paragraph (a) of this subsection; or
(ii) a previous application of this paragraph.
Note 1: Geographical limitations may cause some information within a class specified as described in paragraph 56AC(2)(a) to be disregarded (see subsection 56AC(3)), which means it will not be CDR data.
Note 2: Information covered by paragraph (b) includes information derived from information covered by paragraph (a), information derived from that derived information, and so on.
Note 3: Information covered by paragraph (b), for which there is a CDR consumer, cannot be required to be disclosed under the consumer data rules (see subsection 56BD(1)).
Note 4: Only certain kinds of CDR data for which there are no CDR consumers (also known as product data) can be required to be disclosed under the consumer data rules (see subsection 56BF(1)).
(2) CDR data is directly or indirectly derived from other CDR data if the first‑mentioned CDR data is wholly or partly derived from the other CDR data after one or more applications of paragraph (1)(b).
(3) A person is a CDR consumer for CDR data if:
(a) the CDR data relates to the person because:
(i) of the supply of a good or service to the person or to one or more of the person’s associates (within the meaning of section 318 of the Income Tax Assessment Act 1936); or
(ii) of circumstances of a kind prescribed by the regulations; and
(b) the CDR data is held by another person who:
(i) is a data holder of the CDR data; or
(ii) is an accredited data recipient of the CDR data; or
(iii) is holding the CDR data on behalf of a person mentioned in subparagraph (i) or (ii); and
(c) the person is identifiable, or reasonably identifiable, from:
(i) the CDR data; or
(ii) other information held by the other person referred to in paragraph (b); and
(d) none of the conditions (if any) prescribed by the regulations apply to the first‑mentioned person in relation to the CDR data.
(4) Section 4B (about consumers) does not apply to this Part.
56AJ Meaning of data holder
(1) A person is a data holder, of CDR data, if:
(a) the CDR data:
(i) is information within a class of information specified, as described in paragraph 56AC(2)(a), in an instrument designating a sector under subsection 56AC(2) (the designation instrument); or
(ii) is directly or indirectly derived from information covered by subparagraph (i); and
(b) the CDR data is held by (or on behalf of) the person on or after the earliest holding day specified in the designation instrument; and
(ba) in the case of the CDR data beginning to be held by (or on behalf of) the person before that earliest holding day, the CDR data:
(i) is of continuing use and relevance; and
(ii) is not about the provision before that earliest holding day of a product or service by (or on behalf of) the person; and
(c) the person is not a designated gateway for the CDR data; and
(d) subsection (2), (3) or (4) applies to the person and the CDR data.
Note 1: Geographical limitations may cause some information within a class specified as described in paragraph 56AC(2)(a) to be disregarded (see subsection 56AC(3)), which means it will not be CDR data.
Note 2: For a product or service that the person began providing before the earliest holding day and continued providing after that day:
(a) subparagraph (ba)(ii) means the person will not be the data holder of CDR data about the person’s provision of the product or service before that day; but
(b) the person will be the data holder of CDR data about the person’s provision of the product or service on or after that day.
First case—person is also specified in the designation instrument
(2) This subsection applies to a person and CDR data if:
(a) the person, or a class of persons to which the person belongs, is specified, as described in paragraph 56AC(2)(b), in the designation instrument as holding a class of information to which the CDR data belongs; and
(b) neither the CDR data, nor any other CDR data from which it was directly or indirectly derived, was disclosed to the person under the consumer data rules.
Second case—reciprocity arising from the person being disclosed other CDR data under the consumer data rules
(3) This subsection applies to a person and CDR data if:
(a) neither the CDR data, nor any other CDR data from which it was directly or indirectly derived, was disclosed to the person under the consumer data rules; and
(b) the person is an accredited data recipient of other CDR data.
Note 1: Paragraph (b) is referring to other CDR data not covered by paragraph (a).
Note 2: The other CDR data referred to in paragraph (b) could be within a class of information specified in another instrument designating a different sector under subsection 56AC(2).
Third case—conditions in the consumer data rules are met
(4) This subsection applies to a person and CDR data if:
(a) the person is an accredited person; and
(b) the CDR data, or any other CDR data from which it was directly or indirectly derived, was disclosed to the person under the consumer data rules; and
(c) the conditions specified in the consumer data rules are met.
56AK Meaning of accredited data recipient
A person is an accredited data recipient, of CDR data, if:
(a) the person is an accredited person; and
(b) the CDR data is held by (or on behalf of) the person; and
(c) the CDR data, or any other CDR data from which it was directly or indirectly derived, was disclosed to the person under the consumer data rules; and
(d) the person is neither a data holder, nor a designated gateway, for the first‑mentioned CDR data.
Note: For paragraph (d), the person will be a data holder of that CDR data if subsection 56AJ(4) applies.
56AL Meanings of CDR participant and designated gateway
(1) A CDR participant, for CDR data, is a data holder, or an accredited data recipient, of the CDR data.
(2) A person is a designated gateway, for CDR data, if:
(a) the person is specified as a gateway, as described in subparagraph 56AC(2)(e)(i), in an instrument designating a sector under subsection 56AC(2); and
(b) the CDR data is information within a class, specified in that instrument, for which the person is a gateway; and
(c) the CDR data is, or is to be, disclosed to the person under the consumer data rules because the person is:
(i) acting as described in a subparagraph of paragraph 56BG(1)(a) or (b); or
(ii) if there are no consumers for the CDR data—acting between a CDR participant for the CDR data and a person requesting a disclosure of the CDR data;
and not because the person is an accredited person or a CDR consumer for the CDR data.
56AM Meanings of chargeable CDR data, chargeable circumstances and fee‑free CDR data
(1) CDR data is chargeable CDR data if the CDR data is information within a class specified, as described in paragraph 56AC(2)(d), in an instrument designating a sector under subsection 56AC(2) (the designation instrument).
(2) The chargeable CDR data is disclosed in chargeable circumstances if it is disclosed in circumstances specified:
(a) for that class of information; and
(b) as described in subparagraph 56AC(2)(d)(i);
in the designation instrument.
(3) The chargeable CDR data is used in chargeable circumstances if it is used in circumstances specified:
(a) for that class of information; and
(b) as described in subparagraph 56AC(2)(d)(ii);
in the designation instrument.
(4) CDR data is fee‑free CDR data if:
(a) the consumer data rules require it to be disclosed; and
(b) it is not chargeable CDR data.
Subdivision D—Extension to external Territories and extraterritorial operation
56AN Extension to external Territories
Each of the following provisions (the CDR provisions) extends to every external Territory:
(a) a provision of this Part;
(b) a provision of the regulations made for the purposes of a provision of this Part;
(c) a provision of the consumer data rules;
(d) another provision of this Act to the extent that it relates to a provision covered by paragraph (a), (b) or (c);
(e) a provision of the Regulatory Powers Act to the extent that it applies in relation to a provision of this Part;
(f) a provision of the Privacy Act 1988 to the extent that it applies as described in section 56ES or 56ET of this Act.
56AO Extraterritorial operation of the CDR provisions
CDR provisions generally apply inside and outside Australia
(1) Subject to subsections (2) and (3), the CDR provisions extend to acts, omissions, matters and things outside Australia.
CDR provisions apply for CDR data held inside Australia
(2) To the extent that the CDR provisions have effect in relation to CDR data held within Australia, the CDR provisions apply in relation to all persons (including foreign persons).
CDR provisions can apply for CDR data held outside Australia
(3) To the extent that the CDR provisions have effect in relation to an act, or omission, relating to CDR data held outside Australia, the CDR provisions only apply if:
(a) the act or omission is by (or on behalf of) an Australian person; or
(b) the act or omission occurs wholly or partly in Australia, or wholly or partly on board an Australian aircraft or an Australian ship; or
(c) the act or omission occurs wholly outside Australia, and an Australian person suffers, or is likely to suffer, financial or other disadvantage as a result of the act or omission.
Interpretation
(4) For the purposes of subsection (3), if a person’s act or omission includes sending, omitting to send, causing to be sent or omitting to cause to be sent an electronic communication or other thing:
(a) from a point outside Australia to a point inside Australia; or
(b) from a point inside Australia to a point outside Australia;
that act or omission is taken to have occurred partly in Australia.
(5) In this section:
Australia, when used in a geographical sense, includes all the external Territories.
Australian person means:
(a) a body corporate established by or under a law of the Commonwealth, of a State or of a Territory; or
(b) an Australian citizen, a permanent resident (within the meaning of the Australian Citizenship Act 2007), or any other person ordinarily resident within Australia or an external Territory; or
(c) an entity covered by subsection 56AR(1), (2) or (3) (about Australian government entities).
foreign person means a person other than an Australian person.
point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, underwater, at sea or anywhere else.
56AP Geographical application of offences
Division 14 (Standard geographical jurisdiction) of the Criminal Code does not apply in relation to an offence against the CDR provisions.
Note: The extended geographical application that section 56AO gives to the CDR provisions applies to the offences against the CDR provisions.
Subdivision E—Application to government entities
56AQ CDR provisions bind the Crown
(1) The CDR provisions bind the Crown in each of its capacities.
(2) However, the CDR provisions do not make the Crown:
(a) liable to a pecuniary penalty or to be prosecuted for an offence; or
(b) subject to a remedy under section 56EY (about actions for damages for contravening the privacy safeguards); or
(c) subject to a remedy under Part VI (about enforcement) other than section 87B (about enforceable undertakings); or
(d) subject to a remedy under Part 4 (about civil penalties) or 7 (about injunctions) of the Regulatory Powers Act; or
(e) subject to Part XID of this Act (about search and seizure).
56AR Government entities may participate under this Part
Application to Commonwealth government entities
(1) The CDR provisions apply in relation to an entity that:
(a) is part of the Commonwealth; or
(b) is a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); or
(c) is a body (whether or not incorporated) established by or under a law of the Commonwealth; or
(d) is:
(i) holding or performing the duties of an office established by or under a law of the Commonwealth; or
(ii) holding an appointment made under a law of the Commonwealth; or
(e) is prescribed by the regulations.
Note: For how the CDR provisions so apply, see subsection (4).
Application to State or Territory government entities
(2) The CDR provisions apply only in relation to an entity that:
(a) is part of a State or Territory; or
(b) is a body (whether or not incorporated) established for a public purpose by or under a law of a State or Territory; or
(c) is:
(i) holding or performing the duties of an office established by or under a law of a State or Territory; or
(ii) holding an appointment made under a law of a State or Territory; or
(d) is an entity prescribed by the regulations in relation to a State or Territory;
if a declaration under subsection 56AS(1), that the entity is a participating entity for the State or Territory, is in force.
Note: For how the CDR provisions so apply, see subsection (4).
(3) However, whether or not such a declaration is in force for an entity referred to in subsection (2), the CDR provisions apply in relation to the entity to the extent that:
(a) the CDR provisions relate to a CDR consumer for CDR data; and
(b) the entity is a CDR consumer for CDR data (or would be a CDR consumer for CDR data if the entity were a person).
Note: For how the CDR provisions so apply, see subsection (4).
How the CDR provisions apply to a government entity
(4) For an entity covered by subsection (1), (2) or (3), the CDR provisions apply as described in that subsection in relation to the entity:
(a) as if the entity were a person; and
(b) with the modifications (if any) prescribed by the regulations.
This subsection does not affect how subsection 56AQ(2) applies to the entity.
(5) If the CDR provisions so apply to an entity covered by subsection (1):
(a) as a data holder of CDR data, the entity is conferred such functions as are necessary to enable the entity to operate as a data holder in accordance with the CDR provisions; or
(b) as a designated gateway for CDR data, the entity is conferred such functions as are necessary to enable the entity to operate as a designated gateway in accordance with the CDR provisions.
56AS Participating government entities of a State or Territory—declaration
(1) The Minister may, by notifiable instrument, declare that an entity is a participating entity for a State or Territory.
Note: An entity may be specified by class (see subsection 13(3) of the Legislation Act 2003).
(2) However, the Minister must not do so unless the Minister is satisfied that the State or Territory has agreed to the entity participating under this Part.
(3) If:
(a) a State or Territory has agreed to an entity of the State or Territory participating under this Part; and
(b) the entity is a body corporate;
the entity is taken to have also agreed to participate under this Part.
56AT Participating government entities of a State or Territory—revocation
(1) The Minister may, by notifiable instrument, revoke a declaration made under subsection 56AS(1) that an entity is a participating entity for a State or Territory.
(2) If a State or Territory requests in writing the Minister to revoke a declaration made under subsection 56AS(1) that an entity is a participating entity for the State or Territory, the Minister must, under subsection (1) of this section, revoke the declaration as soon as practicable.
(3) If the Minister revokes a declaration made under subsection 56AS(1) in relation to an entity, then, despite the revocation, subsection 56AR(2) continues to apply to the entity in relation to:
(a) any right, privilege, obligation or liability acquired, accrued or incurred before the revocation; and
(b) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation or liability;
as if the declaration were still in force.
Subdivision F—Application to acts done by or in relation to agents etc. of CDR entities
56AU Acts done by or in relation to agents etc. of CDR entities
Conduct of agents etc. of a CDR entity attributable to the CDR entity
(1) For the purposes of this Part and the consumer data rules, each of the following provisions applies to a CDR entity who is not a body corporate in a corresponding way to the way that provision applies to a CDR entity who is a body corporate:
(a) section 84 of this Act;
(b) section 97 of the Regulatory Powers Act (to the extent that it applies in relation to a provision of this Part).
Acts done in relation to an agent of a CDR entity taken to be done in relation to the CDR entity
(2) For the purposes of this Part and the consumer data rules, if an act is done by a person in relation to another person (the agent) who:
(a) is acting on behalf of a CDR entity; and
(b) is so acting within the agent’s actual or apparent authority;
the act is taken to have also been done in relation to the CDR entity.
Definitions
(3) In this section:
CDR entity means any of the following:
(a) a data holder of CDR data;
(b) an accredited person;
(c) a designated gateway for CDR data.
Division 2—Consumer data right
Subdivision A—Power to make consumer data rules
56BA Minister may make consumer data rules
(1) The Minister may, by legislative instrument, make rules (the consumer data rules) for designated sectors in accordance with this Division.
Note: Subdivision C deals with the process for making the consumer data rules.
(2) Without limiting subsection (1), the consumer data rules may set out:
(a) different rules for different designated sectors; or
(b) different rules for different classes of CDR data; or
(c) different rules for different classes of persons specified, as described in paragraph 56AC(2)(b), in an instrument designating a sector under subsection 56AC(2); or
(d) different rules for different classes of persons who are able to be disclosed CDR data under the consumer data rules.
56BAA Rules must include requirement to delete CDR data on request from CDR consumer
Requirement to delete CDR data in response to request from CDR consumer
(1) The consumer data rules must include a requirement on an accredited data recipient of CDR data to delete all or part of the CDR data in response to a valid request by a CDR consumer for the CDR data to be deleted.
(2) However, a rule described in subsection (1) must not require deletion of all or part of the CDR Data if:
(a) the accredited data recipient is required to retain the CDR data by or under an Australian law or a court/tribunal order; or
(b) the CDR data relates to any current or anticipated:
(i) legal proceedings; or
(ii) dispute resolution proceedings;
to which the accredited data recipient is a party; or
(c) the CDR data relates to any current or anticipated:
(i) legal proceedings; or
(ii) dispute resolution proceedings;
to which the CDR consumer is a party.
Consumer data rules may include rules in relation to the requirement
(3) The consumer data rules may include the following rules in relation to the requirement:
(a) rules about:
(i) how the CDR consumer may make a valid request; and
(ii) what must be included in a request for it to be valid and when a request ceases to be a valid request;
(b) rules specifying circumstances (in addition to those in subsection (2)) in which the accredited data recipient may refuse to delete the CDR data despite the requirement;
(c) rules about how an accredited data recipient is to delete the CDR data covered in a valid request;
(d) rules about how the requirement is to be complied with depending on the class of CDR data requested to be deleted;
(e) rules about how an accredited data recipient is to notify the CDR consumer of:
(i) the deletion of the CDR data and the extent of the deletion; or
(ii) if the CDR data is not deleted—the reasons the deletion did not occur;
(f) rules about any other matters incidental or related to the requirement (see also section 56BJ).
(4) This section applies despite any other provision of this Division.
(5) This section does not limit the consumer data rules dealing with the deletion of CDR data in circumstances other than compliance with the requirement.
56BB Matters that the consumer data rules may deal with
The consumer data rules may deal with the following matters:
(a) disclosure, collection, use, accuracy, storage, security or deletion of CDR data for which there are one or more CDR consumers (see also sections 56BC and 56BD);
(b) disclosure, collection, use, accuracy, storage, security or deletion of CDR data for which there are no CDR consumers (see also sections 56BE and 56BF);
(c) designated gateways for CDR data (see also section 56BG);
(d) accreditation of data recipients (see also section 56BH);
(e) reporting, record keeping and auditing (see also section 56BI);
(f) matters incidental or related to any of the above matters (see also section 56BJ).
56BC Rules about disclosure, collection, use, accuracy, storage, security or deletion of CDR data for which there are CDR consumers
Required disclosures in response to valid requests
(1) Without limiting paragraph 56BB(a), the consumer data rules may include the following rules:
(a) requirements on a CDR participant for CDR data to disclose all or part of the CDR data, in response to a valid request by a CDR consumer for the CDR data, to:
(i) the CDR consumer for use as the CDR consumer sees fit; or
(ii) an accredited person for use subject to the privacy safeguards;
(b) rules about:
(i) how a CDR consumer for the CDR data may make a valid request of the kind described in paragraph (a); and
(ii) what must be included in a request for it to be valid, what disclosures or other matters a valid request may cover, and when a request ceases to be a valid request;
(c) requirements on a person (other than a CDR consumer for the CDR data) to satisfy in order to be disclosed the CDR data in the way described in paragraph (a).
Note 1: The requirements described in paragraph (a) could, for example, include a requirement that the disclosure be in accordance with the relevant data standards.
Note 2: A fee may be charged for such a disclosure if the CDR data is chargeable CDR data, unless section 56BU provides otherwise.
Authorised disclosures or use in accordance with valid consents
(2) Without limiting paragraph 56BB(a), the consumer data rules may include the following rules:
(a) rules authorising a CDR participant for CDR data to disclose all or part of the CDR data to a person in accordance with a valid consent of a CDR consumer for the CDR data;
(b) rules authorising a person to use CDR data in accordance with a valid consent of a CDR consumer for the CDR data;
(c) rules about:
(i) how a CDR consumer for the CDR data may make a valid consent of the kind described in paragraph (a) or (b); and
(ii) what must be included in a consent for it to be valid, what disclosures, uses or other matters a valid consent may cover, and when a consent ceases to be a valid consent.
Note: Fees may be charged for these disclosures or uses.
Other rules
(3) Without limiting paragraph 56BB(a), the consumer data rules may include the following rules relating to CDR data for which there are one or more CDR consumers:
(a) rules relating to the privacy safeguards;
(b) other rules relating to the disclosure, collection, use, accuracy, storage or security of the CDR data that affect:
(i) an accredited person; or
(ii) a CDR participant, or CDR consumer, for the CDR data;
(c) other rules relating to the deletion of the CDR data that affect:
(i) an accredited person; or
(ii) an accredited data recipient of the CDR data; or
(iii) a CDR consumer for the CDR data.
Note 1: Subsection 56BD(3) limits how such rules can affect a data holder.
Note 2: The rules may deal with similar or additional matters to those in the privacy safeguards. When doing so, the rules will need to be consistent with those safeguards (see subsections 56EC(1) and (2)).
Note 3: The rules must include a requirement on an accredited data recipient to delete all or part of the CDR data in response to a valid request by a CDR consumer for the CDR data (see section 56BAA).
56BD Limitations for rules about CDR data for which there are CDR consumers
Only designated CDR data can be required to be disclosed
(1) The consumer data rules can only require a disclosure of CDR data for which there are one or more CDR consumers if:
(a) the CDR data is within a class of information specified, as described in paragraph 56AC(2)(a), in an instrument designating a sector under subsection 56AC(2); and
(b) the disclosure is to:
(i) one or more of those CDR consumers; or
(ii) an accredited person; or
(iii) a designated gateway for the CDR data; or
(iv) a data holder of the CDR data by a designated gateway for the CDR data; or
(v) a person acting on behalf a person referred to in subparagraph (ii), (iii) or (iv).
Note 1: This means CDR data cannot be required to be disclosed if it:
(a) is not within a class specified in such an instrument; and
(b) is directly or indirectly derived from CDR data that is within a class specified in such an instrument.
Note 2: The consumer data rules can include other rules relating to this other derived CDR data.
Note 3: Voluntary disclosures of this other derived CDR data can be authorised under the consumer data rules.
No fee when fee‑free CDR data is required to be disclosed
(2) The consumer data rules cannot allow a fee to be charged for:
(a) the disclosure of fee‑free CDR data under rules like those described in paragraph 56BC(1)(a) or 56BG(1)(a); or
(b) the use of fee‑free CDR data received as the result of such a disclosure.
Note: Fees may be charged for other kinds of disclosures or uses of fee‑free CDR data.
Rules affecting data holders that relate to the use, accuracy, storage, security or deletion of CDR data
(3) For a data holder of CDR data for which there are one or more CDR consumers, the consumer data rules:
(a) cannot include rules affecting the data holder that relate to the deletion of the CDR data; and
(b) can only include rules affecting the data holder that relate to the use, accuracy, storage or security of the CDR data if such rules also relate to the disclosure of the CDR data under the consumer data rules.
Effect of limitations
(4) Subsections (1), (2) and (3) apply despite any other provision of this Division.
56BE Rules about disclosure, collection, use, accuracy, storage, security or deletion of product data
Without limiting paragraph 56BB(b), the consumer data rules may include the following rules for CDR data for which there are no CDR consumers:
(a) requirements on a CDR participant for the CDR data to disclose all or part of the CDR data to a person in response to a valid request by the person;
(b) rules about:
(i) how a person may make a valid request of the kind described in paragraph (a); and
(ii) what must be included in a request for it to be valid, what disclosures or other matters a valid request may cover, and when a request ceases to be a valid request;
(c) requirements on a person to satisfy in order to be disclosed the CDR data in the way described in paragraph (a);
(d) other rules affecting:
(i) CDR participants for the CDR data; or
(ii) persons wishing to be disclosed the CDR data;
that relate to the disclosure, collection, use, accuracy, storage, security or deletion of the CDR data.
Note 1: A request for this CDR data could be made, for example, to assist the development of a product or service.
Note 2: The requirements described in paragraph (a) could, for example, include a requirement that the disclosure be in accordance with the relevant data standards.
Note 3: The privacy safeguards do not apply to this CDR data (see subsection 56EB(1)).
56BF Limitations for rules about product data
Only certain kinds of product data can be required to be disclosed
(1) The consumer data rules can only require a disclosure of CDR data for which there are no CDR consumers if:
(a) the CDR data is about the eligibility criteria, terms and conditions, price, availability or performance of:
(i) a product or other kind of good; or
(ii) a service; and
(b) in the case where the CDR data is about availability or performance—the CDR data is publicly available.
Note 1: This means other kinds of CDR data for which there are no CDR consumers cannot be required to be disclosed.
Note 2: The consumer data rules can include other rules relating to other kinds of CDR data for which there are no CDR consumers.
Note 3: Voluntary disclosures of other kinds of CDR data for which there are no CDR consumers can be authorised under the consumer data rules.
No fee when this CDR data is required to be disclosed
(2) The consumer data rules cannot allow a fee to be charged for:
(a) the disclosure of CDR data under rules like those described in paragraph 56BE(a) or 56BG(2)(a); or
(b) the use of CDR data received as the result of such a disclosure.
Note: A fee could be charged for other disclosures or uses of CDR data for which there are no CDR consumers.
Effect of limitations
(3) Subsections (1) and (2) apply despite any other provision of this Division.
56BG Rules about designated gateways
CDR data for which there are CDR consumers
(1) Without limiting paragraph 56BB(c), if there is a designated gateway for CDR data for which there are one or more CDR consumers, the consumer data rules may include the following rules:
(a) rules like those described in subsection 56BC(1) for the CDR data, but involving the designated gateway:
(i) acting between the CDR consumer and the CDR participant in the making of a valid request; or
(ii) acting between the CDR consumer and the accredited person who is the proposed recipient of the requested disclosure; or
(iii) acting between the CDR participant and the CDR consumer, or accredited person, who is the proposed recipient of the requested disclosure;
(b) rules like those described in subsection 56BC(2) for the CDR data, but involving the designated gateway:
(i) acting between the CDR consumer and a person authorised as described in that subsection; or
(ii) acting between persons authorised as described in that subsection;
(c) other rules affecting the designated gateway that relate to the disclosure, collection, use, accuracy, storage, security or deletion of the CDR data.
Product data
(2) Without limiting paragraph 56BB(c), if there is a designated gateway for CDR data for which there are no CDR consumers, the consumer data rules may include the following rules:
(a) rules like those described in paragraphs 56BE(a) to (c), but involving the designated gateway acting between the CDR participant and the person requesting the disclosure;
(b) other rules affecting the designated gateway that relate to the disclosure, collection, use, accuracy, storage, security or deletion of the CDR data.
Limitation—rules relating to the collection, use, accuracy, storage, security or deletion of CDR data
(3) For a designated gateway for CDR data for which there are one or more CDR consumers, the consumer data rules:
(a) can only include rules affecting the designated gateway requiring or authorising the disclosure of the CDR data if such rules are as described in paragraph (1)(a) or (b); and
(b) can only include rules affecting the designated gateway that relate to the collection, use, accuracy, storage, security or deletion of the CDR data if such rules also relate to a disclosure described in paragraph (a) of this subsection.
Note: Paragraph (a) does not prevent the inclusion of a rule relating to a disclosure described in that paragraph.
(4) Subsection (3) applies despite any other provision of this Division.
Transitional rules
(5) Without limiting paragraph 56BB(c), if there is a designated gateway for CDR data, the consumer data rules may include transitional rules for when a person ceases to be the designated gateway, including about the disclosure, collection, use, accuracy, storage, security or deletion of the CDR data.
Note: These rules could, for example, include a requirement that the CDR data be disclosed in accordance with the relevant data standards to another gateway. Some of these transitional rules could be similar to some of the privacy safeguards.
56BH Rules about accreditation of data recipients
(1) Without limiting paragraph 56BB(d), the consumer data rules may include the following rules:
(a) rules conferring functions or powers on the Data Recipient Accreditor;
(b) the criteria for a person to be accredited under subsection 56CA(1);
(c) rules providing that accreditations may be granted subject to conditions, and that conditions may be imposed on an accreditation after it has been granted;
(d) rules providing that accreditations may be granted at different levels corresponding to different risks, including the risks associated with:
(i) specified classes of CDR data; or
(ii) specified classes of activities; or
(iii) specified classes of applicants for accreditation;
(e) rules for the period, renewal, transfer, variation, suspension, revocation or surrender of accreditations;
(f) notification requirements on persons whose accreditations have been varied, suspended, revoked or surrendered;
(g) transitional rules for when an accreditation is varied, is suspended or ends, including about the disclosure, collection, use, accuracy, storage, security or deletion of CDR data;
(h) rules about a matter referred to in subsection 56CE(4) (about the Register of Accredited Persons).
Note: The rules described in paragraph (g) could, for example, include a requirement that the CDR data be disclosed in accordance with the relevant data standards to an accredited person. Some of these transitional rules could be similar to some of the privacy safeguards.
(2) Without limiting paragraph (1)(b):
(a) the criteria may differ for different classes of persons; and
(b) the criteria may include the payment of a fee.
Any fee must not be such as to amount to taxation.
(3) Without limiting paragraph (1)(e), each of the following may be a ground for varying, suspending or revoking an accreditation:
(a) a failure to comply with a requirement in this Part or in the consumer data rules;
(b) a failure to comply with a requirement in the privacy safeguards.
Note: An example of a variation could be the imposition of a condition, or changing the level of an accreditation.
(4) If the consumer data rules include rules enabling decisions to be made to vary, suspend or revoke accreditations, the rules must permit the making of applications to the Administrative Appeals Tribunal for review of those decisions.
Note: The consumer data rules can also provide for internal review of these decisions, and internal and AAT review of other decisions (see section 56BJ).
56BI Rules about reporting, record keeping and auditing
(1) Without limiting paragraph 56BB(e), the consumer data rules may include the following rules:
(a) a power for a CDR consumer for CDR data to direct a CDR participant for the CDR data to give the consumer, or an accredited person, reports about:
(i) the consumer’s valid requests to the CDR participant, under rules like those described in paragraph 56BC(1)(a) or 56BG(1)(a), for the CDR data; and
(ii) any disclosures made in response to such requests;
(b) a power for a CDR consumer for CDR data to direct a CDR participant for the CDR data to give the consumer, or an accredited person, reports about:
(i) the consumer’s valid consents to the CDR participant, under rules like those described in paragraph 56BC(2)(a) or (b) or 56BG(1)(b), for the CDR data; and
(ii) any disclosures made in response to such consents;
(c) a power for a person referred to in paragraph 56BG(1)(a) or (b) to direct a designated gateway referred to in that paragraph to give reports about:
(i) valid requests or consents, affecting the designated gateway, under rules like those described in that paragraph; and
(ii) any disclosures made in response to such requests or consents;
(d) requirements for CDR participants for CDR data to give reports to the Commission or the Information Commissioner;
(e) requirements for accredited persons to give reports to the Commission or the Information Commissioner;
(f) requirements for designated gateways for CDR data to give reports to the Commission or the Information Commissioner;
(g) requirements for the keeping of records relating to the operation of the consumer data rules;
(h) requirements for each of the following entities:
(i) the Data Recipient Accreditor;
(ii) the Accreditation Registrar;
(iii) the Data Standards Chair;
to give reports to the Commission or the Information Commissioner about that entity’s functions or powers.
Note: Information or documents relating to compliance with the consumer data rules may also be required to be given (see subsections 155(1) and (2)).
(2) Without limiting paragraph 56BB(e), the consumer data rules may include requirements for CDR participants or designated gateways for CDR data, or accredited persons, to give to the Commission or Information Commissioner:
(a) copies of one or more of the records required to be kept as described in paragraph (1)(g); or
(b) information from such records;
either periodically, or on request by the Commission or Information Commissioner, or both.
56BJ Rules about incidental or related matters
Without limiting paragraph 56BAA(3)(f) or 56BB(f), the consumer data rules may include the following rules:
(a) rules that refer to the data standards;
(b) the circumstances in which persons are, or may be, relieved from complying with requirements in the consumer data rules that would otherwise apply to them;
(c) a rule that depends on a person being satisfied of one or more specified matters;
(d) rules for the making of applications for internal review, or of applications to the Administrative Appeals Tribunal for review, of decisions of a person under the consumer data rules;
(e) rules about the manner or form in which persons or bodies:
(i) may exercise powers under the consumer data rules; or
(ii) must comply with requirements imposed by the consumer data rules;
which could include requiring the use of a form approved by the Commission or by the Information Commissioner;
(f) rules about the following matters:
(i) the manner in which CDR participants for CDR data may charge (or cause to be charged) a fee for a matter covered by the consumer data rules;
(ii) the time for paying such a fee;
(iii) giving notice of, or publicising, such a fee or matters about such a fee;
(g) rules requiring CDR participants, or designated gateways, for CDR data to have internal or external dispute resolution processes:
(i) that relate to the operation of the consumer data rules or this Part; and
(ii) that meet specified criteria;
(h) rules relating to an external dispute resolution scheme recognised under Division 4, including about access to such a scheme;
(i) transitional rules for the external resolution of disputes:
(i) described in subsection 56DA(1); and
(ii) not covered by a scheme recognised under that subsection;
(ia) rules requiring agents of any of the following entities (a CDR entity):
(i) a data holder of CDR data;
(ii) an accredited person;
(iii) a designated gateway for CDR data;
to do or not to do specified things when acting on behalf of the CDR entity and within the agent’s actual or apparent authority;
(j) rules about any other matters that the provisions of this Part provide may be specified, or otherwise dealt with, in the consumer data rules.
56BK Further limitations on the consumer data rules
(1) The consumer data rules cannot impose on a person a requirement that has a retrospective commencement or application.
Example: The rules cannot require a data holder to disclose CDR data on a day before the rules are registered, or on a day before the registration of a variation to the rules that includes the requirement.
Note: Other limitations on the consumer data rules are in sections 56BD, 56BF and 56BG.
(2) To avoid doubt, the consumer data rules may require a person to do something on a particular day, in relation to CDR data generated or collected on an earlier day, if the person:
(a) is a data holder of the CDR data; or
(b) is an accredited person; or
(c) is a person who has given a valid request under the consumer data rules relating to the CDR data; or
(d) is a designated gateway for the CDR data.
Example: A data holder is given a valid request to disclose CDR data that was generated before the rules are registered. The rules can require that disclosure.
(3) The regulations may provide that the consumer data rules:
(a) have no effect to the extent that the consumer data rules deal with specified matters, or impose specified requirements, in relation to:
(i) specified classes of CDR data; or
(ii) specified classes of persons; or
(b) only have effect to the extent that the consumer data rules deal with specified matters, or impose specified requirements, in relation to:
(i) specified classes of CDR data; or
(ii) specified classes of persons.
The consumer data rules have effect (or no effect) accordingly.
(4) Subsections (1) and (3) apply despite any other provision of this Division.
Subdivision B—Compliance with consumer data rules
56BL Obligation to comply with consumer data rules
The consumer data rules may provide that specified provisions of the rules are civil penalty provisions (within the meaning of the Regulatory Powers Act).
Note: Sections 76 to 77 deal with enforcing the civil penalty provisions.
56BM Infringement notices
Object
(1) The object of this section is for Division 5 of Part XI to apply to a civil penalty provision of the consumer data rules in a corresponding way to the way that Division applies to a provision of Part 2‑2 of the Australian Consumer Law.
Note: That Division is about infringement notices issued for alleged contraventions of provisions of the Australian Consumer Law.
Extended application of Division 5 of Part XI etc.
(2) Division 5 of Part XI, and any other provision of this Act that relates to that Division, also apply in relation to a civil penalty provision of the consumer data rules as if the substitutions in the following table were made.
Substitutions to be made |
Item | For a reference in Division 5 of Part XI to … | … substitute a reference to … |
1 | section 224 of the Australian Consumer Law | section 76 of this Act. |
2 | Chapter 4 or Part 5‑2 of the Australian Consumer Law | Part VI of this Act. |
3 | a provision of Part 2‑2 of the Australian Consumer Law | a civil penalty provision of the consumer data rules. |
(3) To avoid doubt, Division 2 of Part XI does not limit the application of section 56GF (about constitutional basis) to the extended application of Division 5 of Part XI as described in this section.
56BN Misleading or deceptive conduct—offence
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so knowing that the conduct:
(i) is misleading or deceptive; or
(ii) is likely to be misleading or deceptive; and
(c) the conduct misleads or deceives, or is likely to mislead or deceive, another person (the second person) into believing that:
(i) a person is a CDR consumer for CDR data; or
(ii) a person is making a valid request or consent, or has satisfied other criteria, for the disclosure of CDR data under the consumer data rules.
Note: The person mentioned in subparagraph (c)(i) or (ii) could be the first‑mentioned person, the second person or a third person.
Defence
(2) Subsection (1) does not apply if the conduct is not misleading or deceptive in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Penalty—body corporate
(3) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10% of the adjusted turnover of the body corporate during the 12‑month period ending at the end of the month in which the commission of the offence happened or began.
Penalty—other persons
(5) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by imprisonment for not more than 5 years, a fine of not more than $500,000, or both.
56BO Misleading or deceptive conduct—civil penalty
(1) A person must not engage in conduct that misleads or deceives, or is likely to mislead or deceive, another person (the second person) into believing that:
(a) a person is a CDR consumer for CDR data; or
(b) a person is making a valid request or consent, or has satisfied other criteria, for the disclosure of CDR data under the consumer data rules.
Note 1: The person mentioned in paragraph (a) or (b) could be the first‑mentioned person, the second person or a third person.
Note 2: For enforcement, see Part VI (including section 76 for an order for payment of a pecuniary penalty).
Defence
(2) Subsection (1) does not apply if the conduct is not misleading or deceptive in a material particular.
(3) A person who wishes to rely on subsection (2) bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the conduct is not misleading or deceptive in a material particular.
Subdivision C—Process for making consumer data rules etc.
56BP Minister’s tasks before making the rules
Before making consumer data rules under subsection 56BA(1), the Minister must:
(a) consider the kinds of matters referred to in paragraphs 56AD(1)(a) and (b) in relation to the making of the rules; and
(b) be satisfied that the Secretary of the Department has complied with section 56BQ in relation to the making of the rules; and
(c) wait at least 60 days after the day public consultation begins under paragraph 56BQ(b) about the making of the rules.
56BQ Secretary must arrange for consultation and report before the rules are made
The Secretary of the Department complies with this section in relation to the making of consumer data rules if the Secretary arranges for all of the following:
(a) an analysis of the kinds of matters referred to in paragraphs 56AD(1)(a) and (b) in relation to the making of the rules;
(b) public consultation about the making of the rules:
(i) for at least 28 days; and
(ii) in one or more ways that includes making information available on the Department’s website and inviting the public to comment;
(c) consultation with each of the following about the making of the rules:
(i) the Commission;
(ii) the Information Commissioner;
(iii) the person or body (if any) that the Secretary believes to be the primary regulator of the sector;
(iv) any person or body prescribed by the regulations;
(d) the preparation of a report for the Minister about that analysis and consultation.
56BR Commission and Information Commissioner must analyse the proposed rules
When consulted under paragraph 56BQ(c), the Commission and the Information Commissioner must each analyse the kinds of matters referred to in paragraphs 56AD(1)(a) and (b) in relation to the making of the rules.
56BS Emergency rules: public consultation not required etc.
(1) The Minister may make consumer data rules under subsection 56BA(1):
(a) without complying with paragraph 56BP(b) or (c); but
(b) after consulting the Commission and Information Commissioner;
if the Minister believes (whether or not that belief is reasonable) that it is necessary to do so in order to avoid a risk of serious harm to:
(c) the efficiency, integrity or stability of any aspect of the Australian economy; or
(d) the interests of consumers.
Note: The Minister still needs to comply with paragraph 56BP(a).
(2) However, a failure to comply with paragraph (1)(b) of this section does not invalidate consumer data rules made as described in subsection (1).
Note: Such rules may have a limited life (see section 56BT).
56BT Emergency rules: consequences if made
If:
(a) the Minister makes consumer data rules as described in subsection 56BS(1) (the emergency rules); and
(b) the emergency rules are made without consulting either the Commission or the Information Commissioner, or both;
the emergency rules cease to be in force 6 months after the day they are made.
Note: If the emergency rules vary other consumer data rules, this section causes only the emergency rules to cease to be in force.
56BTA Other matters
A failure to comply with section 56BP, 56BQ or 56BR does not invalidate consumer data rules made under subsection 56BA(1).
Subdivision D—Fees for disclosing CDR data
56BU Charging a fee in inappropriate circumstances when required to disclose CDR data
(1) A person contravenes this subsection if:
(a) the person is a CDR participant for CDR data; and
(b) the person is required under the consumer data rules to disclose all or part of the CDR data; and
(c) the person charges (or causes to be charged) a fee for either or both of the following matters:
(i) the disclosure (or a related disclosure by a designated gateway or other CDR participant for the CDR data);
(ii) the use of the CDR data as the result of the disclosure (or of that related disclosure); and
(d) subsection (2) or any of the following subparagraphs applies:
(i) the CDR data is fee‑free CDR data;
(ii) to the extent that the fee is charged for the disclosure of chargeable CDR data—the fee purports to cover a disclosure in circumstances that are not chargeable circumstances;
(iii) to the extent that the fee is charged for the use of chargeable CDR data—the fee purports to cover use in circumstances that are not chargeable circumstances.
Note: For enforcement, see Part VI (including section 76 for an order for payment of a pecuniary penalty).
(2) This subsection applies if:
(a) any fee (the reasonable fee):
(i) that has been determined under subsection 56BV(1) for the person; or
(ii) that can be worked out from a method determined under subsection 56BV(1) for the person;
covers either or both of the matters in paragraph (1)(c) of this section; and
(b) the portion of the fee charged as described in that paragraph for those matters exceeds the corresponding portion of the reasonable fee.
56BV Commission may intervene if fee for disclosing or using chargeable CDR data is unreasonable etc.
(1) The Commission may determine the following for a specified CDR participant for specified chargeable CDR data:
(a) the amount of a fee, or a method for working out the amount of a fee, that the CDR participant may charge (or cause to be charged) for either or both of the following matters (the chargeable matters):
(i) the disclosure of the chargeable CDR data in chargeable circumstances because of a requirement under the consumer data rules to do so;
(ii) the use of the chargeable CDR data in chargeable circumstances as the result of such a disclosure;
(b) the specified persons who are liable to pay that fee;
if the Commission is satisfied that the fee that the CDR participant would otherwise charge (or cause to be charged) is unreasonable having regard to the criteria in subsection (3).
(2) When determining an amount or method under subsection (1), the Commission must seek to ensure that the resulting fee:
(a) reflects the reasonable costs (including capital costs) necessary for the CDR participant to comply with this Part and the consumer data rules in relation to the chargeable matters; and
(b) is reasonable having regard to the criteria in subsection (3).
(3) The criteria for the purposes of subsection (1) and paragraph (2)(b) are:
(a) the matters in subparagraphs 56AD(1)(a)(i), (ii), (iv) to (vi) and (c)(ii) and (iv); and
(b) whether a lower fee could result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution); and
(c) whether a lower fee would reduce the incentive to generate, collect, hold or maintain CDR data of that kind; and
(d) any other matters the Commission considers relevant.
(4) A determination under subsection (1) specifying a class of CDR participants must be made by legislative instrument.
(5) A determination under subsection (1) specifying a particular CDR participant:
(a) must be made by written notice given to the CDR participant; and
(b) is not a legislative instrument.
(6) A fee determined under subsection (1) must not be such as to amount to taxation.
56BW Review by the Tribunal of determinations specifying particular CDR participants
(1) If the Commission makes a determination under subsection 56BV(1) in the way described in subsection 56BV(5):
(a) the CDR participant specified in the determination; or
(b) a person whose interests are affected by the determination;
may apply in writing to the Tribunal for a review of the determination.
(2) An application under this section for a review of a determination must be made within 21 days after the day the Commission made the determination.
(3) If the Tribunal receives an application under this section for a review of a determination, the Tribunal must review the determination.
56BX Functions and powers of Tribunal
(1) On a review of a determination made under subsection 56BV(1), the Tribunal:
(a) may make a decision affirming, setting aside or varying the determination; and
(b) 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 such a determination is taken for the purposes of this Act (other than sections 56BW to 56BY)) to be a determination 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 determination to which the review relates.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
56BY 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 determination made under subsection 56BV(1).
Division 3—Accreditation etc.
Subdivision A—Accreditation process
56CA Granting accreditations
(1) The Data Recipient Accreditor may, in writing, accredit a person if the Data Recipient Accreditor is satisfied that the person meets the criteria for accreditation specified in the consumer data rules.
(2) To avoid doubt, a person may be accredited even if the person:
(a) is not a body corporate established by or under a law of the Commonwealth, of a State or of a Territory; and
(b) is neither an Australian citizen, nor a permanent resident (within the meaning of the Australian Citizenship Act 2007).
(3) An accreditation is granted on the basis that no compensation is payable if the accreditation is varied, transferred, suspended, revoked or surrendered in any way.
56CB Review of decisions refusing to accredit
Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Data Recipient Accreditor under subsection 56CA(1) refusing to accredit persons.
Note: For AAT review of decisions to vary, suspend or revoke accreditations, see subsection 56BH(4).
56CC Prohibition on holding out—offence
(1) A person commits an offence if the person holds out that the person:
(a) is an accredited person; or
(b) is an accredited person holding an accreditation that has been granted at a particular level (see paragraph 56BH(1)(d)); or
(c) is an accredited data recipient of CDR data;
if that is not the case.
Penalty—body corporate
(2) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10% of the adjusted turnover of the body corporate during the 12‑month period ending at the end of the month in which the commission of the offence happened or began.
Penalty—other persons
(4) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by imprisonment for not more than 5 years, a fine of not more than $500,000, or both.
56CD Prohibition on holding out—civil penalty
A person must not hold out that the person:
(a) is an accredited person; or
(b) is an accredited person holding an accreditation that has been granted at a particular level (see paragraph 56BH(1)(d)); or
(c) is an accredited data recipient of CDR data;
if that is not the case.
Note: For enforcement, see Part VI (including section 76 for an order for payment of a pecuniary penalty).
Subdivision B—Register of Accredited Persons
56CE Register of Accredited Persons
(1) The Accreditation Registrar must establish and maintain a register for the purposes of this Part, to be known as the Register of Accredited Persons.
(2) The Accreditation Registrar must maintain the register by electronic means.
(3) The register is not a legislative instrument.
(4) The consumer data rules may make provision for or in relation to the following:
(a) the inclusion in the register of entries for accredited persons;
(b) the correction of entries in the register;
(c) the publication or availability of all or part of the register, or of specified information in the register;
(d) any other matter relating to the content, administration or operation of the register.
56CF Evidentiary value of the register
(1) The register is admissible in any proceedings as prima facie evidence of the matters in it.
(2) The Accreditation Registrar may issue a document containing the details of a matter taken from the register.
(3) The document issued under subsection (2) is admissible in any proceedings as prima facie evidence of the matter.
Subdivision C—Data Recipient Accreditor
56CG Appointment of the Data Recipient Accreditor
(1) The Minister may, by written instrument, appoint as the Data Recipient Accreditor a person who:
(a) is the accountable authority of a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); or
(b) is a Commonwealth entity (within the meaning of that Act).
Note 1: For variation, see subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: The Commission will be the Data Recipient Accreditor in the absence of an appointment under this subsection (see the definition of Data Recipient Accreditor in subsection 4(1)).
(2) The Minister may, at any time by written instrument, terminate an appointment made under subsection (1).
56CH Functions, powers and annual report
(1) The functions of the Data Recipient Accreditor are:
(a) to accredit persons under subsection 56CA(1); and
(b) such other functions as are conferred by the consumer data rules.
(2) The Data Recipient Accreditor has the power to do all other things necessary or convenient to be done for or in connection with the performance of the Data Recipient Accreditor’s functions.
(3) To avoid doubt, for a person who is the Data Recipient Accreditor, both:
(a) the person’s functions and powers in their capacity other than as the Data Recipient Accreditor (their primary capacity); and
(b) if the person is not a body corporate—the functions that may be performed, and the powers that may be exercised, by anyone appointed under a Commonwealth law to act as the person in that primary capacity;
are taken to include the functions and powers of the Data Recipient Accreditor while the person is the Data Recipient Accreditor.
(4) If:
(a) a person is the Data Recipient Accreditor at any time during a period; and
(b) an annual report for the period is prepared under section 46 of the Public Governance, Performance and Accountability Act 2013:
(i) by the person in the person’s primary capacity; or
(ii) about the person in the person’s primary capacity;
the annual report must include information about the performance of the Data Recipient Accreditor’s functions, and the exercise of the Data Recipient Accreditor’s powers, at that time.
56CI Directions by Minister
(1) The Minister may, by legislative instrument, give written directions to the Data Recipient Accreditor about the performance of its functions and the exercise of its powers.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(2) A direction under subsection (1) must be of a general nature only.
(3) The Data Recipient Accreditor must comply with a direction under subsection (1).
56CJ Delegation
(1) The Data Recipient Accreditor may delegate any or all of the Data Recipient Accreditor’s functions or powers to:
(a) an SES employee, or an acting SES employee, in the Department, in the Commission or in the Commonwealth entity appointed under paragraph 56CG(1)(b) (if any); or
(b) an APS employee who is holding or performing the duties of a specified office or position that:
(i) is in the Department, in the Commission or in the Commonwealth entity appointed under paragraph 56CG(1)(b) (if any); and
(ii) is an office or position that the Data Recipient Accreditor is satisfied is sufficiently senior for the APS employee to perform the function or exercise the power.
(2) In doing anything under a delegation under this section, the delegate must comply with any directions of the Data Recipient Accreditor.
Subdivision D—Accreditation Registrar
56CK Appointment of the Accreditation Registrar
(1) The Minister may, by written instrument, appoint as the Accreditation Registrar a person who:
(a) is the accountable authority of a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); or
(b) is a Commonwealth entity (within the meaning of that Act).
Note 1: For variation, see subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: The Commission will be the Accreditation Registrar in the absence of an appointment under this subsection (see the definition of Accreditation Registrar in subsection 4(1)).
(2) The Minister may, at any time by written instrument, terminate an appointment made under subsection (1).
56CL Functions, powers and annual report
(1) The functions of the Accreditation Registrar are:
(a) those described in Subdivision B; and
(b) such other functions as are conferred by the consumer data rules.
(2) The Accreditation Registrar has the power to do all other things necessary or convenient to be done for or in connection with the performance of the Accreditation Registrar’s functions.
(3) To avoid doubt, for a person who is the Accreditation Registrar, both:
(a) the person’s functions and powers in their capacity other than as the Accreditation Registrar (their primary capacity); and
(b) if the person is not a body corporate—the functions that may be performed, and the powers that may be exercised, by anyone appointed under a Commonwealth law to act as the person in that primary capacity;
are taken to include the functions and powers of the Accreditation Registrar while the person is the Accreditation Registrar.
(4) If:
(a) a person is the Accreditation Registrar at any time during a period; and
(b) an annual report for the period is prepared under section 46 of the Public Governance, Performance and Accountability Act 2013:
(i) by the person in the person’s primary capacity; or
(ii) about the person in the person’s primary capacity;
the annual report must include information about the performance of the Accreditation Registrar’s functions, and the exercise of the Accreditation Registrar’s powers, at that time.
56CM Directions by Minister
(1) The Minister may, by legislative instrument, give written directions to the Accreditation Registrar about the performance of its functions and the exercise of its powers.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(2) A direction under subsection (1) must be of a general nature only.
(3) The Accreditation Registrar must comply with a direction under subsection (1).
56CN Delegation
(1) The Accreditation Registrar may delegate any or all of the Accreditation Registrar’s functions or powers to:
(a) an SES employee, or an acting SES employee, in the Department, in the Commission or in the Commonwealth entity appointed under paragraph 56CK(1)(b) (if any); or
(b) an APS employee who is holding or performing the duties of a specified office or position that:
(i) is in the Department, in the Commission or in the Commonwealth entity appointed under paragraph 56CK(1)(b) (if any); and
(ii) is an office or position that the Accreditation Registrar is satisfied is sufficiently senior for the APS employee to perform the function or exercise the power.
Note: For the Registrar’s functions and powers, see section 56CE.
(2) In doing anything under a delegation under this section, the delegate must comply with any directions of the Accreditation Registrar.
Division 4—External dispute resolution
56DA Minister may recognise external dispute resolution schemes
Recognising an external dispute resolution scheme
(1) The Minister may, by notifiable instrument, recognise an external dispute resolution scheme for the resolution of disputes:
(a) relating to the operation of the consumer data rules, or this Part, in relation to one or more designated sectors; and
(b) involving one or more of the following:
(i) CDR participants for CDR data;
(ii) CDR consumers for CDR data;
(iii) designated gateways for CDR data;
(iv) other persons relating to any of those designated sectors.
Note 1: The consumer data rules may require internal dispute resolution schemes, see paragraph 56BJ(g).
Note 2: For variation and repeal, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) The Minister may, in the instrument under subsection (1):
(a) specify a period for which the recognition of the external dispute resolution scheme is in force; and
(b) make the recognition of the external dispute resolution scheme subject to specified conditions, including conditions relating to the conduct of an independent review of the operation of the scheme.
Before recognising an external dispute resolution scheme
(3) Before recognising an external dispute resolution scheme under subsection (1), the Minister must consider:
(a) the accessibility of the scheme; and
(b) the independence of the scheme; and
(c) the fairness of the scheme; and
(d) the accountability of the scheme; and
(e) the efficiency of the scheme; and
(f) the effectiveness of the scheme; and
(g) any other matters the Minister considers relevant.
(4) Before recognising an external dispute resolution scheme under subsection (1), the Minister must arrange for the Information Commissioner to be consulted about the scheme.
(5) A failure to comply with subsection (4) does not invalidate an instrument made under subsection (1).
Division 5—Privacy safeguards
Subdivision A—Preliminary
56EA Simplified outline
This Division sets out privacy safeguards that protect the privacy or confidentiality of CDR consumers’ CDR data, whether the CDR consumers are individuals or bodies corporate.
The privacy safeguards apply mainly to accredited persons, but also to data holders and designated gateways, in relation to their handling or future handling of the CDR data.
A person’s failure to comply with any of these safeguards may lead to consequences, including liability to a civil penalty (see Subdivision G) or the suspension or revocation of the person’s accreditation (see subsection 56BH(3)).
56EB Kinds of CDR data to which the privacy safeguards apply
(1) The privacy safeguards only apply to CDR data for which there are one or more CDR consumers.
Note: One requirement for CDR data to have a CDR consumer is that there needs to be at least one person who is identifiable, or reasonably identifiable, from the CDR data or from related information (see paragraph 56AI(3)(c)).
(2) The privacy safeguards apply to CDR data whether the CDR data is true or not.
56EC Relationship with other laws
Relationship with the consumer data rules
(1) If there is an inconsistency between the privacy safeguards and the consumer data rules, those safeguards prevail over those rules to the extent of the inconsistency.
(2) However, the consumer data rules are taken to be consistent with the privacy safeguards to the extent that they are capable of operating concurrently.
Note: This means that the privacy safeguards do not cover the field that they deal with.
Relationship with the Privacy Act 1988
(3) This Division does not limit Part IIIA (about credit reporting) of the Privacy Act 1988. However, the regulations may declare that in specified circumstances that Part applies in relation to CDR data as if specified provisions of that Part were omitted, modified or varied as specified in the declaration.
(4) Despite the Privacy Act 1988:
(a) the Australian Privacy Principles do not apply to an accredited data recipient of CDR data in relation to the CDR data; and
(aa) if section 56ED, 56EE, 56EF or 56EG applies to an accredited person in relation to CDR data—the corresponding Australian Privacy Principle does not apply to the accredited person in relation to the CDR data; and
(b) if subsection 56EN(1) applies to a disclosure of CDR data by a data holder of the CDR data—Australian Privacy Principle 10 does not apply to the data holder in relation to that disclosure of the CDR data; and
(c) if subsection 56EP(1) applies to CDR data and a data holder of the CDR data—Australian Privacy Principle 13 does not apply to the data holder in relation to the CDR data; and
(d) Australian Privacy Principles 6, 7 and 11 do not apply to a designated gateway for CDR data in relation to the CDR data.
Note 1: For the accredited data recipient, the privacy safeguards will apply instead.
Note 2: Section 56EN (or privacy safeguard 11) is about the quality of CDR data. Section 56EP (or privacy safeguard 13) is about correcting CDR data.
(5) Apart from paragraphs (4)(aa) to (d), this Division does not affect how the Australian Privacy Principles apply to:
(aa) an accredited person who does not become an accredited data recipient of the CDR data; or
(a) a data holder of CDR data in relation to the CDR data; or
(b) a designated gateway for CDR data in relation to the CDR data.
Note 1: Privacy safeguard 1 will apply to a data holder or designated gateway in parallel to Australian Privacy Principle 1.
Note 2: The consumer data rules (which are made under Division 2) will affect how the Australian Privacy Principles apply. Requirements and authorisations under those rules will be requirements or authorisations under an Australian law for the purposes of the Australian Privacy Principles.
Subdivision B—Consideration of CDR data privacy
56ED Privacy safeguard 1—open and transparent management of CDR data
Object
(1) The object of this section is to ensure that each person (a CDR entity) who is:
(a) a data holder of CDR data; or
(b) an accredited person who is or who may become an accredited data recipient of CDR data; or
(c) a designated gateway for CDR data;
manages the CDR data in an open and transparent way.
Compliance with this Part etc.
(2) The CDR entity must take such steps as are reasonable in the circumstances to implement practices, procedures and systems that:
(a) will ensure that the CDR entity complies with this Part and the consumer data rules; and
(b) will enable the CDR entity to deal with inquiries or complaints from a CDR consumer for the CDR data about the CDR entity’s compliance with this Part or the consumer data rules.
Policy about the management of CDR data
(3) The CDR entity must have and maintain a clearly expressed and up‑to‑date policy that:
(a) is about the CDR entity’s management of CDR data; and
(b) is in a form approved in accordance with the consumer data rules; and
(c) contains the information required by subsections (4), (5) and (6) (as applicable).
Note: This subsection is a civil penalty provision (see section 56EU).
(4) If the CDR entity is a data holder of any CDR data, the CDR entity’s policy must contain the following information:
(a) how a CDR consumer for the CDR data may access the CDR data and seek the correction of the CDR data;
(b) how a CDR consumer for the CDR data may complain about a failure of the CDR entity to comply with this Part or the consumer data rules, and how the CDR entity will deal with such a complaint.
(5) If the CDR entity is an accredited person who is or who may become an accredited data recipient of any CDR data, the CDR entity’s policy must contain the following information:
(a) the classes of CDR data that is or may become held by (or on behalf of) the CDR entity as an accredited data recipient, and how such CDR data is held or is to be held;
(b) the purposes for which the CDR entity may collect, hold, use or disclose such CDR data with the consent of a CDR consumer for the CDR data;
(c) how a CDR consumer for such CDR data may access the CDR data and seek the correction of the CDR data;
(d) how a CDR consumer for such CDR data may complain about a failure of the CDR entity to comply with this Part or the consumer data rules, and how the CDR entity will deal with such a complaint;
(e) whether the CDR entity is likely to disclose such CDR data to accredited persons who are based overseas;
(f) if the CDR entity is likely to disclose such CDR data to accredited persons who are based overseas—the countries in which such persons are likely to be based if it is practicable to specify those countries in the policy;
(g) the circumstances in which the CDR entity may disclose such CDR data to a person who is not an accredited person;
(h) the events about which the CDR entity will notify the CDR consumers of such CDR data;
(i) the circumstances in which the CDR entity must delete or de‑identify such CDR data in accordance with a request given by a CDR consumer for the CDR data under the consumer data rules.
(6) If the CDR entity is a designated gateway for any CDR data, the CDR entity’s policy must contain the following information:
(a) an explanation of how the CDR entity, as a designated gateway, will act between persons to facilitate:
(i) the disclosure of CDR data; or
(ii) the accuracy of CDR data; or
(iii) other matters;
under the consumer data rules;
(b) how a CDR consumer for such CDR data may complain about a failure of the CDR entity to comply with this Part or the consumer data rules, and how the CDR entity will deal with such a complaint.
Availability of policy etc.
(7) The CDR entity must make the CDR entity’s policy available:
(a) free of charge; and
(b) in accordance with the consumer data rules.
Note: One way the consumer data rules could require the policy to be made available is to require the policy to be made available in accordance with a data standard.
(8) If a copy of the CDR entity’s policy is requested by a CDR consumer for the CDR data, the CDR entity must give the CDR consumer a copy in accordance with the consumer data rules.
56EE Privacy safeguard 2—anonymity and pseudonymity
(1) A person who is:
(a) an accredited data recipient of CDR data; or
(b) an accredited person who may become an accredited data recipient of CDR data;
must give each CDR consumer for that CDR data the option of using a pseudonym, or not identifying themselves, when dealing with the person in relation to that CDR data.
Note: The CDR participant from whom the person acquired (or may acquire) the CDR data may be subject to a similar obligation under Australian Privacy Principle 2.
(2) That option may be given to a CDR consumer for the CDR data through a designated gateway for the CDR data.
(3) Subsection (1) does not apply in the circumstances specified in the consumer data rules.
Subdivision C—Collecting CDR data
56EF Privacy safeguard 3—soliciting CDR data from CDR participants
(1) An accredited person must not seek to collect CDR data under the consumer data rules from a CDR participant for the CDR data unless:
(a) a CDR consumer for the CDR data has requested this by giving a valid request under the consumer data rules; and
(b) the person complies with all other requirements in the consumer data rules for the collection of the CDR data from the CDR participant.
Note: This subsection is a civil penalty provision (see section 56EU).
(2) Subsection (1) applies whether the collection is directly from the CDR participant or indirectly from the CDR participant through a designated gateway for the CDR data.
Note: The valid request referred to in paragraph (1)(a) could be given through a designated gateway (see section 56BG).
56EG Privacy safeguard 4—dealing with unsolicited CDR data from CDR participants
(1) If a person:
(a) while the person is an accredited person, collects CDR data from a CDR participant for the CDR data:
(i) purportedly under the consumer data rules; but
(ii) not as the result of seeking to collect that CDR data under the consumer data rules; and
(b) is not required to retain that CDR data by or under an Australian law or a court/tribunal order;
the person must destroy that CDR data as soon as practicable.
Note: This subsection is a civil penalty provision (see section 56EU).
(2) Subsection (1) applies whether the collection is directly from the CDR participant or indirectly from the CDR participant through a designated gateway for the CDR data.
56EH Privacy safeguard 5—notifying of the collection of CDR data
If an accredited data recipient of CDR data collected the CDR data in accordance with section 56EF, the accredited data recipient must:
(a) take the steps specified in the consumer data rules to notify CDR consumers for the CDR data of the collection; and
(b) ensure that this notification:
(i) is given to those of the CDR consumers (if there are more than one) that the consumer data rules require to be notified; and
(ii) covers the matters specified in those rules; and
(iii) is given at or before the time specified in those rules.
Note: This section is a civil penalty provision (see section 56EU).
Subdivision D—Dealing with CDR data
56EI Privacy safeguard 6—use or disclosure of CDR data by accredited data recipients or designated gateways
(1) An accredited data recipient of CDR data must not use or disclose it unless:
(a) in the case of a disclosure—the disclosure is required under the consumer data rules in response to a valid request from a CDR consumer for the CDR data; or
(b) the use or disclosure is otherwise required, or authorised, under the consumer data rules; or
(c) the use or disclosure is required or authorised by or under:
(i) another Australian law; or
(ii) a court/tribunal order;
and the accredited data recipient makes a written note of the use or disclosure.
Note 1: This subsection is a civil penalty provision (see section 56EU).
Note 2: The valid request referred to in paragraph (a) could be given through a designated gateway (see section 56BG).
Note 3: The Australian Privacy Principles will not apply for subparagraph (c)(i) (see paragraph 56EC(4)(a)).
(2) A designated gateway for CDR data must not use or disclose it unless:
(a) in the case of a disclosure—the disclosure is required under the consumer data rules; or
(b) the use or disclosure is authorised under the consumer data rules; or
(c) the use or disclosure is required or authorised by or under:
(i) another Australian law; or
(ii) a court/tribunal order;
and the designated gateway makes a written note of the use or disclosure in accordance with the consumer data rules.
Note 1: This subsection is a civil penalty provision (see section 56EU).
Note 2: Australian Privacy Principle 6 will not apply for subparagraph (c)(i) (see paragraph 56EC(4)(d)).
(3) Neither subsection (1) nor (2) applies to the use or disclosure of CDR data for the purposes of direct marketing.
Note: Section 56EJ deals with the use or disclosure of CDR data for the purposes of direct marketing.
56EJ Privacy safeguard 7—use or disclosure of CDR data for direct marketing by accredited data recipients or designated gateways
(1) An accredited data recipient of CDR data must not use or disclose it for direct marketing unless:
(a) in the case of a disclosure—the disclosure is required under the consumer data rules in response to a valid request from a CDR consumer for the CDR data; or
(b) the use or disclosure is authorised under the consumer data rules in accordance with a valid consent of a CDR consumer for the CDR data.
Note 1: This subsection is a civil penalty provision (see section 56EU).
Note 2: The valid request referred to in paragraph (a), or the valid consent referred to in paragraph (b), could be given through a designated gateway (see section 56BG).
(2) A designated gateway for CDR data must not use or disclose it for direct marketing unless:
(a) in the case of a disclosure—the disclosure is required under the consumer data rules; or
(b) the use or disclosure is authorised under the consumer data rules.
Note: This subsection is a civil penalty provision (see section 56EU).
56EK Privacy safeguard 8—overseas disclosure of CDR data by accredited data recipients
(1) If:
(a) an accredited data recipient of CDR data proposes to disclose the CDR data; and
(b) the recipient (the new recipient) of the proposed disclosure:
(i) is not in Australia or an external Territory; and
(ii) is not a CDR consumer for the CDR data;
the accredited data recipient must not make the disclosure unless:
(c) the new recipient is an accredited person; or
(d) the accredited data recipient takes reasonable steps to ensure that any act or omission by (or on behalf of) the new recipient will not, after taking into account subsection (3), contravene:
(i) subsection 56ED(3); or
(ii) another privacy safeguard penalty provision in relation to the CDR data; or
(e) the accredited data recipient reasonably believes:
(i) that the new recipient is subject to a law, or binding scheme, that provides substantially similar protection for the CDR data as the privacy safeguards provide in relation to accredited data recipients; and
(ii) that a CDR consumer for the CDR data will be able to enforce those protections provided by that law or binding scheme; or
(f) the conditions specified in the consumer data rules are met.
Note 1: This subsection is a civil penalty provision (see section 56EU).
Note 2: This subsection applies in addition to the disclosure restrictions in sections 56EI, 56EJ and 56EL.
Note 3: A similar disclosure by a data holder of the CDR data that is required under the consumer data rules will be covered by Australian Privacy Principle 8 if the CDR data is personal information about an individual.
(2) If:
(a) the accredited data recipient of the CDR data makes the disclosure to the new recipient; and
(b) none of paragraphs (1)(c), (e) and (f) apply in relation to the disclosure to the new recipient; and
(c) an act or omission by (or on behalf of) the new recipient, after taking into account subsection (3), contravenes:
(i) subsection 56ED(3); or
(ii) another privacy safeguard penalty provision in relation to the CDR data;
then the act or omission is taken to also be an act or omission by the accredited data recipient.
(3) For the purposes of paragraphs (1)(d) and (2)(c), assume that the privacy safeguards apply to the new recipient as if the new recipient were an accredited data recipient for the CDR data.
56EL Privacy safeguard 9—adoption or disclosure of government related identifiers by accredited data recipients
(1) If:
(a) a person is an accredited data recipient of CDR data; and
(b) the CDR data includes a government related identifier (within the meaning of the Privacy Act 1988) of a CDR consumer for the CDR data who is an individual;
the person must not adopt the government related identifier as the person’s own identifier of the CDR consumer, or otherwise use the government related identifier, unless:
(c) the adoption or use is required or authorised by or under:
(i) an Australian law other than the consumer data rules; or
(ii) a court/tribunal order; or
(d) subclause 9.3 of Australian Privacy Principle 9 applies in relation to the adoption or use.
Note: This subsection is a civil penalty provision (see section 56EU).
(2) If:
(a) a person who is an accredited data recipient of CDR data proposes to disclose the CDR data; and
(b) the CDR data includes a government related identifier (within the meaning of the Privacy Act 1988) of a CDR consumer for the CDR data who is an individual;
the person must not include the government related identifier in the disclosure unless:
(c) this is required or authorised by or under:
(i) an Australian law other than the consumer data rules; or
(ii) a court/tribunal order; or
(d) subclause 9.3 of Australian Privacy Principle 9 applies in relation to the disclosure.
Note 1: This subsection is a civil penalty provision (see section 56EU).
Note 2: This subsection applies in addition to the disclosure restrictions in sections 56EI, 56EJ and 56EK.
(3) For the purposes of paragraph (1)(d) or (2)(d), disregard paragraph 56EC(4)(a) (about the APPs not applying).
56EM Privacy safeguard 10—notifying of the disclosure of CDR data
(1) If a data holder of CDR data is required or authorised under the consumer data rules to disclose the CDR data to a person, the data holder must:
(a) take the steps specified in the consumer data rules to notify CDR consumers for the CDR data of the disclosure; and
(b) ensure that this notification:
(i) is given to those of the CDR consumers (if there are more than one) that the consumer data rules require to be notified; and
(ii) covers the matters specified in those rules; and
(iii) is given at or before the time specified in those rules.
Note: This subsection is a civil penalty provision (see section 56EU).
(2) If an accredited data recipient of CDR data discloses the CDR data, the accredited data recipient must:
(a) take the steps specified in the consumer data rules to notify CDR consumers for the CDR data of the disclosure; and
(b) ensure that this notification:
(i) is given to those of the CDR consumers (if there are more than one) that the consumer data rules require to be notified; and
(ii) covers the matters specified in those rules; and
(iii) is given at or before the time specified in those rules.
Note: This subsection is a civil penalty provision (see section 56EU).
(3) To avoid doubt, subsection (1) or (2) applies even if the disclosure of the CDR data is to a designated gateway for the CDR data as required or authorised under the consumer data rules.
Note: The designated gateway may be subject to a similar notification requirement under the consumer data rules (see paragraph 56BG(1)(c)).
Subdivision E—Integrity of CDR data
56EN Privacy safeguard 11—quality of CDR data
Disclosures by data holders
(1) If a data holder of CDR data is required or authorised under the consumer data rules to disclose the CDR data, the data holder must take reasonable steps to ensure that the CDR data is, having regard to the purpose for which it is held, accurate, up to date and complete.
Note: This subsection is a civil penalty provision (see section 56EU).
Disclosures by accredited data recipients
(2) If an accredited data recipient of CDR data is disclosing the CDR data when:
(a) required under the consumer data rules to do so in response to a valid request from a CDR consumer for the CDR data; or
(b) otherwise required, or authorised, under the consumer data rules to do so;
the accredited data recipient must take reasonable steps to ensure that the CDR data is, having regard to the purpose for which it is held, accurate, up to date and complete.
Note 1: This subsection is a civil penalty provision (see section 56EU).
Note 2: The valid request referred to in paragraph (a) could be given through a designated gateway (see section 56BG).
(3) If a CDR participant for CDR data:
(a) makes a disclosure referred to in subsection (1) or (2) for a CDR consumer; and
(b) later becomes aware that some or all of the CDR data was incorrect when it was disclosed because, having regard to the purpose for which it was held, it was inaccurate, out of date or incomplete;
the CDR participant must advise the CDR consumer accordingly in accordance with the consumer data rules.
Note: This subsection is a civil penalty provision (see section 56EU).
Disclosing corrected CDR data
(4) If:
(a) a CDR consumer for CDR data is advised under subsection (3) by a CDR participant for the CDR data that some or all of the CDR data was incorrect when the CDR participant had earlier disclosed it; and
(b) the CDR consumer requests, in accordance with the consumer data rules, the CDR participant to fix this by disclosing the corrected CDR data;
the CDR participant must comply with the request by disclosing the corrected CDR data, in accordance with the consumer data rules, to the recipient of that earlier disclosure.
Note: This subsection is a civil penalty provision (see section 56EU).
(4A) Subsection (4) does not apply in the circumstances specified in the consumer data rules.
Purpose for which the CDR data was held
(5) When working out the purpose for which the CDR data is or was held, disregard the purpose of holding the CDR data so that it can be disclosed as required under the consumer data rules.
Note: This subsection is relevant for subsections (1) and (2) and paragraph (3)(b).
56EO Privacy safeguard 12—security of CDR data, and destruction or de‑identification of redundant CDR data
(1) Each person (a CDR entity) who is:
(a) an accredited data recipient of CDR data; or
(b) a designated gateway for CDR data;
must take the steps specified in the consumer data rules to protect the CDR data from:
(c) misuse, interference and loss; and
(d) unauthorised access, modification or disclosure.
Note: This subsection is a civil penalty provision (see section 56EU).
(2) If:
(a) the CDR entity no longer needs any of that CDR data for either of the following purposes (the redundant data):
(i) a purpose permitted under the consumer data rules;
(ii) a purpose for which the person is able to use or disclose it in accordance with this Division; and
(b) the CDR entity is not required to retain the redundant data by or under an Australian law or a court/tribunal order; and
(c) the redundant data does not relate to any current or anticipated:
(i) legal proceedings; or
(ii) dispute resolution proceedings;
to which the CDR entity is a party;
the CDR entity must take the steps specified in the consumer data rules to destroy the redundant data or to ensure that the redundant data is de‑identified.
Note 1: This subsection is a civil penalty provision (see section 56EU).
Note 2: Australian Privacy Principle 11 will not apply for paragraph (b) (see paragraph 56EC(4)(a) or (d)).
Subdivision F—Correction of CDR data
56EP Privacy safeguard 13—correction of CDR data
Obligation on data holders
(1) If:
(a) a CDR consumer for CDR data gives a request to a data holder of the CDR data (including a request given through a designated gateway for the CDR data); and
(b) the request is for the data holder to correct the CDR data; and
(c) the data holder was earlier required or authorised under the consumer data rules to disclose the CDR data;
the data holder must respond to the request to correct the CDR data by taking such steps as are specified in the consumer data rules to deal with each of the matters in subsection (3).
Note: This subsection is a civil penalty provision (see section 56EU).
Obligation on accredited data recipients
(2) If:
(a) a CDR consumer for CDR data gives a request to an accredited data recipient of the CDR data (including a request given through a designated gateway for the CDR data); and
(b) the request is for the accredited data recipient to correct the CDR data;
the accredited data recipient must respond to the request by taking such steps as are specified in the consumer data rules to deal with each of the matters in subsection (3).
Note: This subsection is a civil penalty provision (see section 56EU).
Relevant matters when responding to correction requests
(3) The matters are as follows:
(a) either:
(i) to correct the CDR data; or
(ii) to include a statement with the CDR data, to ensure that, having regard to the purpose for which the CDR data is held, the CDR data is accurate, up to date, complete and not misleading;
(b) to give notice of any correction or statement, or notice of why a correction or statement is unnecessary or inappropriate.
(4) When working out the purpose for which the CDR data is held (see subparagraph (3)(a)(ii)), disregard the purpose of holding the CDR data so that it can be disclosed as required under the consumer data rules.
Subdivision G—Compliance with the privacy safeguards
56EQ Information Commissioner to promote compliance etc.
(1) The Information Commissioner has the following functions:
(a) making guidelines for the avoidance of acts or practices that may breach the privacy safeguards;
(b) promoting an understanding and acceptance of the privacy safeguards;
(c) undertaking educational programs for the purposes of promoting the protection of CDR data.
Note: The Information Commissioner also has functions that relate to this Part more broadly (see section 56GA).
Extra matters about guidelines under paragraph (1)(a)
(2) Before making guidelines under paragraph (1)(a), the Information Commissioner must consult the Minister and the Commission about the proposed guidelines.
(3) The Information Commissioner may publish guidelines made under paragraph (1)(a) in such manner as the Information Commissioner considers appropriate.
(4) If there is an inconsistency between the guidelines made under paragraph (1)(a) and the consumer data rules, those rules prevail over the guidelines to the extent of the inconsistency.
(5) Guidelines made under paragraph (1)(a) are not a legislative instrument.
Extra matters about educational programs under paragraph (1)(c)
(6) The educational programs referred to in paragraph (1)(c) may be undertaken by:
(a) the Information Commissioner; or
(b) a person or authority acting on behalf of the Information Commissioner.
56ER Information Commissioner may conduct an assessment relating to the management and handling of CDR data
(1) The Information Commissioner may assess whether a CDR participant, or designated gateway, for CDR data is maintaining and handling the CDR data in accordance with:
(a) the privacy safeguards; or
(b) the consumer data rules to the extent that those rules relate to:
(i) the privacy safeguards; or
(ii) the privacy or confidentiality of the CDR data.
(1A) The Information Commissioner may assess whether an accredited person who may become an accredited data recipient of CDR data is complying with:
(a) section 56ED (about privacy safeguard 1); or
(b) the consumer data rules to the extent that those rules relate to that section.
(2) The Information Commissioner may conduct an assessment under subsection (1) or (1A) in such manner as the Information Commissioner considers fit.
(3) The Information Commissioner may report to the Minister, the Commission or the Data Standards Chair about an assessment under subsection (1) or (1A).
56ES Notification of CDR data security breaches
Object
(1) The object of this section is for Part IIIC of the Privacy Act 1988 to apply to an accredited data recipient, or designated gateway, that holds a CDR consumer’s CDR data in a corresponding way to the way that Part applies to an entity that holds an individual’s personal information.
Note: That Part is about notification of eligible data breaches.
Extended application of Part IIIC of the Privacy Act 1988
(2) Part IIIC of the Privacy Act 1988, and any other provision of that Act that relates to that Part, also apply in relation to:
(a) an accredited data recipient of CDR data; or
(b) a designated gateway for CDR data;
as if the substitutions in the following table, and the modifications in subsection (3), were made.
Substitutions to be made |
Item | For a reference in Part IIIC to … | … substitute a reference to … |
1 | any of the following: (a) personal information; (b) information | CDR data. |
2 | any of the following: (a) entity; (b) APP entity; (c) APP entity, credit reporting body, credit provider or file number recipient, as the case may be | each of the following: (a) accredited data recipient; (b) designated gateway. |
3 | any of the following: (a) individual to whom information relates; (b) individual | CDR consumer for CDR data. |
Note: When CDR data and the other terms in the last column of the table appear in this notional version of Part IIIC, they have the same meanings as in this Act.
(3) For the purposes of subsection (2), assume that:
(a) sections 26WB to 26WD of the Privacy Act 1988 were not enacted; and
(b) subsection 26WE(1) of that Act were replaced with the following:
“Scope
(1) This section applies if:
(a) CDR data of one or more CDR consumers is held by (or on behalf of) either of the following entities (the CDR entity):
(i) an accredited data recipient of the CDR data;
(ii) a designated gateway for the CDR data; and
(b) section 56EO (about privacy safeguard 12) of the Competition and Consumer Act 2010 applies to the CDR entity in relation to the CDR data.”.
56ET Investigating breaches of the privacy safeguards etc.
Breaches to which this section applies
(1) This section applies to a breach (a privacy safeguard breach) of any of the following:
(a) one or more of the privacy safeguards;
(b) the consumer data rules to the extent that those rules relate:
(i) to one or more of the privacy safeguards; or
(ii) to the privacy or confidentiality of CDR data;
(c) section 26WH, 26WK or 26WL or subsection 26WR(10) of the Privacy Act 1988, as they apply because of section 56ES of this Act;
in relation to the CDR data of:
(d) a CDR consumer who is an individual; or
(e) a small business (within the meaning of the Privacy Act 1988) carried on by a CDR consumer for the CDR data.
(2) This section also applies to a breach of section 56ED (privacy safeguard 1).
Object
(3) The object of this section is for Part V of the Privacy Act 1988 to apply to an act or practice:
(a) of a CDR participant, designated gateway or accredited person; and
(b) that may be:
(i) a privacy safeguard breach relating to CDR data covered by subsection (1); or
(ii) a breach of section 56ED (privacy safeguard 1);
in a corresponding way to the way that Part applies to an act or practice of an organisation, person or entity that may be an interference with the privacy of an individual or a breach of Australian Privacy Principle 1.
Note: That Part is about investigations of interferences with privacy etc.
Extended application of Part V of the Privacy Act 1988
(4) Part V of the Privacy Act 1988, and any other provision of that Act that relates to that Part, also apply in relation to:
(a) a CDR participant for CDR data; or
(b) a designated gateway for CDR data; or
(c) an accredited person who may become an accredited data recipient of CDR data;
as if the substitutions in the following table, and the modifications in subsection (5), were made.
Substitutions to be made |
Item | For a reference in Part V to … | … substitute a reference to … |
1 | interference with the privacy of an individual | a privacy safeguard breach relating to the CDR data of: (a) a CDR consumer who is an individual; or (b) a small business (within the meaning of the Privacy Act 1988) carried on by a CDR consumer for the CDR data. |
2 | Australian Privacy Principle 1 | section 56ED (privacy safeguard 1) of this Act. |
3 | individual | a person who: (a) is a CDR consumer for the CDR data to which the privacy safeguard breach (or possible privacy safeguard breach) relates; and (b) is an individual, or is carrying on a small business (within the meaning of the Privacy Act 1988) to which the CDR data relates. |
4 | recognised external dispute resolution scheme | an external dispute resolution scheme for which an instrument is in force under subsection 56DA(1) of this Act. |
5 | occupied by an agency, an organisation, a file number recipient, a credit reporting body or a credit provider | occupied by (or on behalf of): (a) a CDR participant for CDR data; or (b) a designated gateway for CDR data. |
Note 1: When CDR data and the other terms in the last column of the table appear in this notional version of Part V, they have the same meanings as in this Act.
Note 2: Table item 5 relates to subsection 68(1) of that Act.
(5) For the purposes of subsection (4), assume that:
(a) subsection 5B(4) of the Privacy Act 1988 were not enacted; and
(b) section 36 of that Act also stated that:
(i) in the case of a complaint about an act or practice of a CDR participant—the CDR participant is the respondent; or
(ii) in the case of a complaint about an act or practice of a designated gateway—the designated gateway is the respondent; or
(iii) in the case of a complaint about an act or practice of an accredited person who may become an accredited data recipient of CDR data—the accredited person is the respondent; and
(c) subsections 36(6) to (8), section 37, subsections 40(1B), 43(1A), (8), (8A) and (9) and 48(2), section 50A, sub‑subparagraph 52(1)(b)(i)(A) and sections 53A and 53B of that Act were not enacted; and
(d) the paragraphs in each of subsections 55B(1) and (3) of that Act were replaced by:
(i) a paragraph that states that an act or practice of a specified CDR participant for CDR data has breached a privacy safeguard; and
(ii) a paragraph that states that an act or practice of a specified designated gateway for CDR data has breached a privacy safeguard; and
(iii) a paragraph that states that an act or practice of an accredited person who may become an accredited data recipient of CDR data has breached a privacy safeguard; and
(e) Division 4 of Part V, and subsection 63(2A), of that Act were not enacted.
56EU Civil penalty provisions
The provisions of this Division that are civil penalty provisions
(1) For the purposes of subparagraph 79(2)(a)(ii) of the Regulatory Powers Act, each of the following provisions of this Division (the privacy safeguard penalty provisions) is a civil penalty provision:
(a) subsection 56ED(3);
(b) subsection 56EF(1);
(c) subsection 56EG(1);
(d) section 56EH;
(e) subsection 56EI(1) or (2);
(f) subsection 56EJ(1) or (2);
(g) subsection 56EK(1);
(h) subsection 56EL(1) or (2);
(i) subsection 56EM(1) or (2);
(j) subsection 56EN(1), (2), (3) or (4);
(k) subsection 56EO(1) or (2);
(l) subsection 56EP(1) or (2).
Enforceable civil penalty provisions
(2) Each privacy safeguard penalty provision is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(3) For the purposes of Part 4 of the Regulatory Powers Act, the Information Commissioner is an authorised applicant in relation to each privacy safeguard penalty provision.
Relevant court
(4) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to each privacy safeguard penalty provision:
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) a court of a State or Territory that has jurisdiction in relation to the matter.
Act or omission also contravening a civil penalty provision of the consumer data rules
(5) If an act or omission constitutes:
(a) a contravention of one or more of the privacy safeguard penalty provisions; and
(b) a contravention of one or more civil penalty provisions of the consumer data rules;
proceedings may be instituted against a person in relation to the contravention of any one or more of those provisions.
Note 1: The proceedings for a contravention referred to in paragraph (a) would be instituted under Part 4 of the Regulatory Powers Act.
Note 2: The proceedings for a contravention referred to in paragraph (b) would be instituted under Part VI of this Act.
(6) However, the person is not liable to more than one pecuniary penalty under:
(a) Part 4 of the Regulatory Powers Act for a contravention referred to in paragraph (5)(a) of this section; and
(b) Part VI of this Act for a contravention referred to in paragraph (5)(b) of this section;
in relation to the same act or omission.
Note: This means the person cannot be liable for a pecuniary penalty for a contravention of the privacy safeguards, and for a pecuniary penalty for a contravention of the consumer data rules, in relation to the same act or omission.
56EV Civil penalty provisions—maximum amount of penalty
(1) Despite subsection 82(5) of the Regulatory Powers Act, the pecuniary penalty payable:
(a) by a person; and
(b) under a civil penalty order under Part 4 of that Act (as that Part applies because of section 56EU of this Act);
must not be more than the maximum penalty amount worked out under this section for a contravention by the person.
Maximum amount of civil penalty for a body corporate
(2) For the purposes of subsection (1), the maximum penalty amount for a contravention by a body corporate of a privacy safeguard penalty provision is the greater of the following:
(a) $10,000,000;
(b) if the relevant court (see subsection 56EU(4)) can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the contravention—3 times the value of that benefit;
(c) if that court cannot determine the value of that benefit—10% of the adjusted turnover of the body corporate during the 12‑month period ending at the end of the month in which the contravention happened or began.
Maximum amount of civil penalty for other persons
(4) For the purposes of subsection (1), the maximum penalty amount for a contravention by a person other than a body corporate of a privacy safeguard penalty provision is $500,000.
56EW Enforceable undertakings
Enforceable provisions
(1) Each provision of the privacy safeguards is enforceable under Part 6 of the Regulatory Powers Act.
Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
Authorised person
(2) For the purposes of Part 6 of the Regulatory Powers Act, the Information Commissioner is an authorised person in relation to each provision referred to in subsection (1).
Relevant court
(3) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to each provision referred to in subsection (1):
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) a court of a State or Territory that has jurisdiction in relation to the matter.
56EX Injunctions
Enforceable provisions
(1) Each provision of the privacy safeguards is enforceable under Part 7 of the Regulatory Powers Act.
Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person
(2) For the purposes of Part 7 of the Regulatory Powers Act, the Information Commissioner is an authorised person in relation to each provision referred to in subsection (1).
Relevant court
(3) For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to each provision referred to in subsection (1):
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) a court of a State or Territory that has jurisdiction in relation to the matter.
56EY Actions for damages
Right to bring an action for damages
(1) A person who suffers loss or damage (within the meaning of subsection 25(1) of the Privacy Act 1988) by an act or omission:
(a) of another person; and
(b) that was in contravention of:
(i) a provision of the privacy safeguards; or
(ii) the consumer data rules to the extent that those rules relate to the privacy safeguards or to the privacy or confidentiality of CDR data;
may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
Note: Subsections 84(2) and (4) (about attributing conduct engaged in on behalf of a person) apply for the purposes of this section.
(2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the contravention happened or began.
Findings in related proceedings to be prima facie evidence
(3) If a finding of any fact is made by a court in relation to a person, or an admission of any fact is made by a person, in proceedings:
(a) under the Regulatory Powers Act (as that Act applies because of this Subdivision) in which the person is found to have contravened a provision of the privacy safeguards; or
(b) under Part VI of this Act in which the person is found to:
(i) have contravened; or
(ii) have been involved in a contravention;
of the consumer data rules to the extent that those rules relate to the privacy safeguards or to the privacy or confidentiality of CDR data;
the finding or admission is prima facie evidence of that fact in any proceeding under subsection (1) against the person.
(4) The finding or admission may be proved by production of:
(a) in any case—a document under the seal of the court from which the finding or admission appears; or
(b) in the case of an admission—a document from which the admission appears that is filed in the court.
Jurisdiction etc.
(5) The following are conferred with jurisdiction to hear and determine actions under subsection (1):
(a) the Federal Circuit and Family Court of Australia (Division 2);
(b) subject to the Constitution, the several courts of the Territories.
This subsection does not enable an inferior court of a Territory to grant a remedy of a kind that the court is unable to grant under the law of that Territory.
Note: State courts and the Federal Court also have jurisdiction for these actions (see subsection 39(2) and paragraph 39B(1A)(c) of the Judiciary Act 1903).
(6) Section 86AA (about limits on jurisdiction) applies to proceedings under subsection (1) of this section in a corresponding way to the way that section applies to proceedings under section 82.
(7) Section 86A (about transfer of matters) applies in relation to a proceeding under subsection (1) of this section as if paragraph 86A(1)(b) also referred to a matter for determination arising under:
(a) a provision of the privacy safeguards; or
(b) the consumer data rules to the extent that those rules relate to the privacy safeguards or to the privacy or confidentiality of CDR data.
Involved in a contravention
(8) Subsection 75B(1) applies to a reference that:
(a) is in this section; and
(b) is to a person involved in a contravention covered by paragraph (1)(b) of this section;
in a corresponding way to the way that subsection 75B(1) applies to a reference in Part VI to a person involved in a contravention of section 56CD.
56EZ Delegation to the Commission etc.
(1) This section applies in relation to the following functions or powers (the safeguard enforcement functions or powers):
(a) the Information Commissioner’s functions or powers under section 56ER;
(b) the Information Commissioner’s functions or powers under Part IIIC or V of the Privacy Act 1988, as those Parts apply because of sections 56ES and 56ET of this Act;
(c) the Information Commissioner’s functions or powers under Part 4, 6 or 7 of the Regulatory Powers Act, that are conferred because of this Subdivision.
(2) The Information Commissioner may delegate, in writing, any of the safeguard enforcement functions or powers to:
(a) the Commission; or
(b) a member of the Commission; or
(c) a member of the staff of the Commission referred to in section 27 of this Act.
(3) However, the Information Commissioner must not delegate a safeguard enforcement function or power under subsection (2) unless:
(a) the Commission has agreed to the delegation in writing; and
(b) in the case of a delegation to a staff member referred to in paragraph (2)(c)—the Commission is satisfied that the staff member:
(i) is an SES employee or acting SES employee; or
(ii) is holding or performing the duties of a sufficiently senior office or position for the function or power.
Division 6—Data standards etc.
Subdivision A—Data standards
56FA Making data standards
(1) The Data Standards Chair may, by writing, make one or more data standards about each of the following matters:
(a) the format and description of CDR data;
(b) the disclosure of CDR data;
(c) the collection, use, accuracy, storage, security and deletion of CDR data;
(d) de‑identifying CDR data, including so that it no longer relates to:
(i) an identifiable person; or
(ii) a person who is reasonably identifiable;
(e) other matters prescribed by the regulations.
Note: For variation and repeal, see subsection 33(3) of the Acts Interpretation Act 1901.
Complying with consumer data rules when making standards etc.
(2) The Data Standards Chair must comply with the consumer data rules when:
(a) making a data standard; or
(b) varying or revoking a data standard;
including complying with any related requirements specified in those rules about approval, consultation and the formation of committees, advisory panels and consultative groups.
Note: The rules could, for example, require a proposed data standard to be approved by the Commission before it is made.
(3) Without limiting subsection (2), the Data Standards Chair must:
(a) make, under subsection (1), a data standard about a particular matter mentioned in subsection (1) if the consumer data rules so requires; and
(b) specify in that data standard that it is binding if the consumer data rules so requires.
A data standard is a binding data standard if it is made under subsection (1) in accordance with paragraph (b) of this subsection.
Data standards are not legislative instruments
(4) A data standard made under subsection (1) is not a legislative instrument.
56FB What data standards can set out etc.
(1) Without limiting subsection 56FA(1), a single data standard may set out:
(a) different provisions for different designated sectors; or
(b) different provisions for different classes of CDR data; or
(c) different provisions for different classes of persons specified, as described in paragraph 56AC(2)(b), in an instrument designating a sector under subsection 56AC(2); or
(d) different provisions for different classes of accredited persons.
(2) Without limiting subsection 56FA(1), a separate data standard could deal with:
(a) each of the different designated sectors referred to in paragraph (1)(a) of this section; or
(b) each of the different classes referred to in paragraph (1)(b), (c) or (d) of this section.
56FC Data standards must be published
The Data Standards Chair must publish on the internet a copy of each data standard made under subsection 56FA(1).
Note: Once published, the data standards will be available for free.
56FD Legal effect of data standards
(1) A contract is taken to be in force between:
(a) a data holder of CDR data to which a binding data standard applies; and
(b) each accredited person;
under which each of those persons:
(c) agrees to observe the standard to the extent that the standard applies to the person; and
(d) agrees to engage in conduct that the person is required by the standard to engage in.
Note: This means the data holder will be taken to have a separate contract with each accredited person.
(2) If there is a designated gateway for CDR data to which a binding data standard applies, a contract is taken to be in force between:
(a) a data holder of the CDR data; and
(b) the designated gateway for the CDR data; and
(c) each accredited person;
under which each of those persons:
(d) agrees to observe the standard to the extent that the standard applies to the person; and
(e) agrees to engage in conduct that the person is required by the standard to engage in.
Note: This means the data holder will be taken to have a separate 3‑party contract with the designated gateway and each accredited person.
(3) However, if there is an inconsistency between a data standard, and the consumer data rules, those rules prevail over the standard to the extent of the inconsistency.
56FE Enforcement of binding data standards
(1) If a person who is under an obligation to comply with a binding data standard fails to meet that obligation, an application to the Court may be made by:
(a) the Commission; or
(b) a person aggrieved by the failure.
(2) After giving an opportunity to be heard to the applicant and the person against whom the order is sought, the Court may make an order giving directions to:
(a) the person against whom the order is sought; or
(b) if that person is a body corporate—the directors of the body corporate;
about compliance with, or enforcement of, the binding data standard.
(3) Without limiting subsection (1), an obligation to comply with a binding data standard includes an obligation arising under a contract referred to in section 56FD.
Subdivision B—Data Standards Chair
56FF Data Standards Chair
There is to be a Data Standards Chair.
56FG Appointment of the Data Standards Chair
(1) The Data Standards Chair is to be appointed, on a full‑time basis or a part‑time basis, by the Minister by written instrument.
(2) The Data Standards Chair holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.
Note 1: The Minister will be the Data Standards Chair in the absence of an appointment under this section (see the definition of Data Standards Chair in subsection 4(1)).
Note 2: The Data Standards Chair may be reappointed (see section 33AA of the Acts Interpretation Act 1901).
56FH Functions and powers of the Data Standards Chair
(1) The functions of the Data Standards Chair are:
(a) to make standards under Subdivision A; and
(b) to review those standards regularly; and
(c) such other functions as are prescribed by the regulations.
(2) The Data Standards Chair has the following powers:
(a) the power to establish committees, advisory panels and consultative groups;
(b) the power to do all other things necessary or convenient to be done for or in connection with the performance of the Chair’s functions.
56FI Directions by Minister
(1) The Minister may, by legislative instrument, give written directions to the Data Standards Chair about the performance of the Chair’s functions and the exercise of the Chair’s powers.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(2) A direction under subsection (1) must be of a general nature only.
(3) The Data Standards Chair must comply with a direction under subsection (1).
Subdivision C—Data Standards Body
56FJ Appointment of the Data Standards Body
(1) The Minister may, by written instrument, appoint as the Data Standards Body:
(a) the Department; or
(b) another Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013).
Note: For variation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) The Minister may, at any time by written instrument, terminate an appointment made under subsection (1).
56FK Function and powers of the Data Standards Body
(1) The function of the Data Standards Body is to assist the Data Standards Chair.
(2) The Data Standards Body has the power to do all other things necessary or convenient to be done for or in connection with the performance of the Data Standards Body’s function.
(3) The Data Standards Body must comply with the consumer data rules when assisting the Data Standards Chair, including complying with any requirements specified in those rules about:
(a) the Body’s composition; or
(b) the Body’s governance or processes.
(4) To avoid doubt, for a body that is the Data Standards Body, the body’s functions and powers in its capacity other than as the Data Standards Body are taken to include the function and powers of the Data Standards Body while it is the Data Standards Body.
Subdivision D—Administrative provisions
56FL Acting appointments
The Minister may, by written instrument, appoint a person to act as the Data Standards Chair:
(a) during a vacancy in the office of Data Standards Chair (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Data Standards Chair:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
56FM Terms and conditions
(1) The Data Standards Chair holds office on the terms and conditions (if any) in relation to matters not covered by this Division that are determined by the Minister.
(2) Subsection (1) does not apply while the Data Standards Chair is the Minister.
56FN Remuneration
(1) The Data Standards Chair 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 Data Standards Chair is to be paid the remuneration that is prescribed by the regulations.
(2) The Data Standards Chair is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
(4) Subsections (1) and (2) do not apply while the Data Standards Chair is the Minister.
56FO Leave
(1) If the Data Standards Chair is appointed on a full‑time basis, the Data Standards Chair has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) If the Data Standards Chair is appointed on a full‑time basis, the Minister may grant the Data Standards Chair leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
(3) If the Data Standards Chair is appointed on a part‑time basis, the Secretary of the Department may grant leave of absence to the Data Standards Chair on the terms and conditions that the Secretary determines.
56FP Application of the finance law etc.
(1) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013), the Data Standards Chair is taken to be an official of the Department.
Note: A consequence of this subsection is that the Secretary of the Department will be the accountable authority (within the meaning of that Act) applicable to the Data Standards Chair.
(2) The Secretary of the Department, when preparing the Department’s annual report under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period, must include information in that report about:
(a) the performance of the Data Standards Chair’s functions; and
(b) the exercise of the Data Standards Chair’s powers;
during the period.
(3) If at any time the Data Standards Chair is the Minister then:
(a) subsections (1) and (2) do not apply; and
(b) the Department’s annual report under section 46 of that Act for the period that includes that time must include information about the performance of the Data Standards Chair’s functions, and the exercise of the Data Standards Chair’s powers, at that time.
56FQ Resignation
(1) The Data Standards Chair may resign the Data Standards Chair’s appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
56FR Termination of appointment
(1) The Minister may terminate the appointment of the Data Standards Chair:
(a) for misbehaviour; or
(b) if the Data Standards Chair is unable to perform the duties of the Data Standards Chair’s office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of the Data Standards Chair if:
(a) the Data Standards Chair:
(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 the Data Standards Chair’s creditors; or
(iv) makes an assignment of the Data Standards Chair’s remuneration for the benefit of the Data Standards Chair’s creditors; or
(b) if the Data Standards Chair is appointed on a full‑time basis—the Data Standards Chair is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12‑month period; or
(c) the Data Standards Chair fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.
56FS Delegation
(1) The Data Standards Chair may delegate, in writing, any or all of the Chair’s functions or powers to:
(a) an SES employee, or an acting SES employee, in the Data Standards Body, in the Department or in the Commission; or
(b) an APS employee who is holding or performing the duties of a specified office or position that:
(i) is in the Data Standards Body, in the Department or in the Commission; and
(ii) is an office or position that the Chair is satisfied is sufficiently senior for the APS employee to perform the function or exercise the power; or
(c) if there are no APS employees (including SES employees) in the Data Standards Body—a person:
(i) who holds an office or position in the Data Standards Body that the Chair considers is sufficiently senior for the person to perform the function; and
(ii) who the Chair considers has appropriate qualifications or expertise to perform the function.
(2) Subsection (1) does not apply to the function referred to in paragraph 56FH(1)(a) (about making standards).
Note: This subsection does not prevent a person who is acting as the Data Standards Chair from making a standard.
(3) In performing a delegated function or exercising a delegated power, the delegate under subsection (1) must comply with any directions of the Data Standards Chair.
Division 7—Other matters
56GA CDR functions of the Information Commissioner
(1) The Information Commissioner has the following functions:
(a) the functions conferred on the Information Commissioner by another provision of this Part, or by an instrument made under this Part;
(b) to consult with or advise any of the following about any matter relevant to the operation of this Part (or the operation of instruments made under this Part):
(i) the Minister;
(ii) the Secretary of the Department;
(iii) the Commission;
(iv) the Data Standards Chair.
Note: The Commission may also delegate to the Information Commissioner any of the Commission’s functions relating to this Part (see subsection 26(3)).
(2) The functions referred to in subsection (1) may be performed by the Information Commissioner on request or on the Information Commissioner’s own initiative.
56GAA Delegation by Secretary
(1) The Secretary of the Department may, in writing, delegate all or any of the Secretary’s functions or powers under this Part to an SES employee, or an acting SES employee, in the Department.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(2) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Secretary.
56GAB Concurrent operation of State and Territory laws
The CDR provisions are not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with the CDR provisions.
56GB Referring to instruments as in force from time to time
(1) This section applies to the following instruments:
(a) designations under section 56AC (about designated sectors);
(b) regulations made for the purposes of a provision of this Part;
(c) the consumer data rules;
(d) data standards.
(2) An instrument to which this section applies may make provision in relation to a matter by applying, adopting or incorporating (with or without modification) any matter contained in any other instrument or writing:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time.
(3) Subsection (2) has effect despite subsection 14(2) of the Legislation Act 2003.
56GC Complying with requirements to provide CDR data: protection from liability
(1) If:
(a) a CDR participant, or designated gateway, for CDR data (the CDR entity):
(i) provides the CDR data to another person; or
(ii) otherwise allows another person access to the CDR data; and
(b) the CDR entity does so, in good faith, in compliance with:
(i) this Part; and
(ii) regulations made for the purposes of this Part; and
(iii) the consumer data rules;
the CDR entity is not liable to an action or other proceeding, whether civil or criminal, for or in relation to the matter in paragraph (a).
Note: A defendant bears an evidential burden in relation to the matter in subsection (1) for a criminal action or criminal proceeding (see subsection 13.3(3) of the Criminal Code).
(2) A person who wishes to rely on subsection (1) in relation to a civil action or civil proceeding bears an evidential burden in relation to that matter.
(3) In this section:
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.
56GD Exemptions by the Commission
(1) The provisions covered by this section are:
(a) the following provisions:
(i) the provisions of this Part;
(ii) the provisions of regulations made for the purposes of the provisions of this Part;
(iii) the provisions of the consumer data rules; and
(b) definitions in this Act, or in the regulations or consumer data rules, as they apply to references in provisions referred to in paragraph (a).
(2) The Commission may, by written notice given to a person, exempt the person, in relation to particular CDR data or one or more classes of CDR data, from all or specified provisions covered by this section.
(3) An exemption under subsection (2):
(a) may or may not be limited to a specified period; and
(b) may apply unconditionally or subject to specified conditions.
(4) The Commission must publish on its website the details of each exemption under subsection (2).
(5) Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Commission exempting, or refusing to exempt, a person under subsection (2).
56GE Exemptions and modifications by regulations
(1) The provisions covered by this section are:
(a) the following provisions:
(i) the provisions of this Part;
(ii) the provisions of regulations made for the purposes of the provisions of this Part;
(iii) the provisions of the consumer data rules; and
(b) definitions in this Act, or in the regulations or consumer data rules, as they apply to references in provisions referred to in paragraph (a).
(2) The regulations may:
(a) exempt a particular person, in relation to particular CDR data or one or more classes of CDR data, from all or specified provisions covered by this section; or
(b) exempt a class of persons, in relation to particular CDR data or one or more classes of CDR data, from all or specified provisions covered by this section; or
(c) declare that provisions covered by this section apply in relation to:
(i) a particular person in relation to particular CDR data or one or more classes of CDR data; or
(ii) a class of persons in relation to particular CDR data or one or more classes of CDR data;
as if specified provisions were omitted, modified or varied as specified in the declaration.
(3) An exemption under paragraph (2)(a) or (b), or a declaration under paragraph (2)(c):
(a) may or may not be limited to a specified period; and
(b) may apply unconditionally or subject to specified conditions.
56GF Constitutional basis
Main constitutional basis
(1) The CDR provisions have the effect they would have if their operation were expressly confined to CDR entities that are corporations.
Note: For the meaning of corporation, see subsection 4(1).
Other constitutional bases
(2) Independently of subsection (1), the CDR provisions also have effect as provided by subsections (3), (4), (5) and (6).
(3) The CDR provisions also have the effect they would have if their operation were expressly confined to CDR entities acting in the course of, or in relation to, the carrying on of:
(a) a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or
(b) the business of banking, other than State banking (within the meaning of paragraph 51(xiii) of the Constitution) not extending beyond the limits of the State concerned; or
(c) the business of insurance, other than State insurance (within the meaning of paragraph 51(xiv) of the Constitution) not extending beyond the limits of the State concerned.
(4) The CDR provisions also have the effect they would have if their operation were expressly confined to CDR entities:
(a) making a supply or communication; or
(b) conducting an activity or otherwise doing something;
using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).
(5) The CDR provisions also have the effect they would have if their operation were expressly confined to CDR entities acting in the course of, or in relation to, any of the following:
(a) trade or commerce between Australia and places outside Australia;
(b) trade or commerce among the States;
(c) trade or commerce within a Territory, between a State or Territory or between 2 Territories.
(6) The CDR provisions also have the effect they would have if their operation were expressly confined to:
(a) protecting CDR entities against interference, or attacks, of the kind described in paragraph 1 of Article 17 of the ICCPR; or
(b) protecting against interference, or attacks, of the kind described in paragraph 1 of Article 17 of the ICCPR by CDR entities.
Related matters
(7) Section 6 (about the application of this Act to persons who are not corporations) does not apply in relation to the CDR provisions.
(8) In this section:
CDR entity means any of the following:
(a) a data holder of CDR data;
(b) an accredited person;
(c) a designated gateway for CDR data.
ICCPR means the International Covenant on Civil and Political Rights, done at New York on 16 December 1966, as amended and in force for Australia from time to time.
Note: The text of the International Covenant is set out in Australian Treaty Series 1980 No. 23 ([1980] ATS 23). In 2019, the text of a Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
56GG Compensation for acquisition of property
(1) This section applies if the operation of the CDR provisions 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).
(2) The person who acquires the property is liable to pay a reasonable amount of compensation to the first‑mentioned person.
(3) If the 2 persons do not agree on the amount of the compensation, the person to whom compensation is payable may institute proceedings in:
(a) the Federal Court; or
(b) the Supreme Court of a State or Territory;
for the recovery from the other person of such reasonable amount of compensation as the Court determines.
56GH Review of the operation of this Part
(1) The Minister must cause an independent review to be conducted of the operation of this Part.
(2) The persons who conduct the review must complete it, and give the Minister a written report of the review, before 1 July 2022.
(3) 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 report is given to the Minister.
Part IVE—Motor vehicle service and repair information sharing scheme
Division 1—Objects of Part and simplified outline
57AA Objects of Part
The objects of this Part are to:
(a) promote competition between Australian repairers of passenger and light goods motor vehicles and establish a fair playing field by mandating access, on fair and reasonable commercial terms, to information used to diagnose, repair, service, modify or dismantle scheme vehicles; and
Note: These vehicles are defined as scheme vehicles (see section 57BA).
(b) enable consumers to have scheme vehicles diagnosed, repaired, serviced, modified or dismantled safely and effectively by an Australian repairer of their choice; and
(c) encourage the provision of accessible and affordable information about scheme vehicles to Australian repairers, and to registered training organisations (for training purposes); and
(d) protect safety and security information about scheme vehicles to ensure the safety and security of consumers, information users and the general public; and
(e) provide for the resolution of disputes about the application of this Part.
57AB Simplified outline
This Part sets up a scheme to improve access by Australian motor vehicle repairers and registered training organisations (called “scheme RTOs”) to information used to diagnose faults with, service, repair, modify or dismantle motor vehicles covered by the scheme.
Such information (called “scheme information”) is required to be offered for supply to Australian repairers and scheme RTOs at a price that does not exceed fair market value.
Those who supply scheme information (called “data providers”) to Australian repairers and scheme RTOs are protected from certain civil claims in doing so.
To protect the safety and security of vehicle owners, individuals working for an Australian repairer or scheme RTO who access scheme information relating to vehicle safety and security must satisfy certain criteria relating to whether they are fit and proper persons to have access to such information.
Sensitive information about such individuals may be obtained by data providers for this purpose. The handling of such information is also restricted under this Part. The information cannot be made available to anyone outside Australia (including to any data provider).
Provision is made for resolving disputes about the application of the Part.
Provision is made for a scheme adviser. The scheme adviser’s functions include facilitating mediation of disputes between data providers and Australian repairers or scheme RTOs, and providing information about the operation of the scheme.
Division 2—Key concepts
57BA Meaning of scheme vehicle
A scheme vehicle is:
(a) a light goods vehicle, within the meaning of a national road vehicle standard made under the Road Vehicle Standards Act 2018 that specifies definitions and vehicle categories for the purposes of that Act, that was manufactured on or after:
(i) 1 January 2002; or
(ii) a later date prescribed by the scheme rules; or
(b) a passenger vehicle (other than an omnibus), within the meaning of a national road vehicle standard made under the Road Vehicle Standards Act 2018 that specifies definitions and vehicle categories for the purposes of that Act, that was manufactured on or after:
(i) 1 January 2002; or
(ii) a later date prescribed by the scheme rules; or
(c) another kind of vehicle prescribed by the scheme rules.
57BB Meaning of Australian repairer
A person is an Australian repairer to the extent that the person carries on or actively seeks to carry on, in Australia, a business that involves diagnosing faults with, servicing, repairing, modifying or dismantling scheme vehicles.
Note: In some State and Territory jurisdictions, a person may need to hold a licence or particular qualifications to lawfully carry on such a business.
57BC Meaning of scheme RTO and RTO course
A scheme RTO is a registered training organisation that provides, or seeks to provide, a course (an RTO course) in Australia providing training in diagnosing faults with, servicing, repairing, modifying or dismantling scheme vehicles.
Note: RTO is short for registered training organisation.
57BD Meaning of scheme information
Main definition
(1) Scheme information is information in relation to scheme vehicles prepared by or for manufacturers of scheme vehicles (or their related bodies corporate) for use in diagnosing faults with, servicing or repairing those vehicles, as supplied to the market.
Exceptions
(2) However, scheme information does not include any of the following:
(a) a trade secret;
(b) the intellectual property of a person, other than intellectual property protected under the Copyright Act 1968;
(c) a source code version of a program;
(d) data automatically generated and transmitted by a scheme vehicle, while it is being driven, regarding driver or vehicle performance;
(e) global positioning system data;
(f) information supplied, or to be supplied, only to a restricted number of Australian repairers for the purposes of developing solutions to emerging or unexpected faults with a scheme vehicle;
(g) information that is commercially sensitive about an agreement between a data provider and another person;
(h) information relating to an automated driving system of a scheme vehicle;
(i) any other information prescribed by the scheme rules.
Note: Scheme information may include safety and security information (see the definition of safety and security information in section 57BF). However, for restrictions on the supply of safety and security information to Australian repairers and scheme RTOs: see section 57DB.
(3) An automated driving system is a system which has a SAE level of 3 or greater under the Surface Vehicle Information Report J3016 published by SAE International, as amended from time to time.
Note: The Report, as amended to 2021, could in 2021 be viewed on SAE International’s website (https://www.sae.org).
57BE Meaning of data provider
A data provider is:
(a) a corporation carrying on a business that includes supplying, to any extent and whether directly or indirectly, scheme information to one or more Australian repairers or scheme RTOs; or
(b) any person who carries on such a business in the course of, or in relation to, trade or commerce.
57BF Meaning of safety and security information
(1) Safety and security information, for a scheme vehicle, is either or both of the following:
(a) safety information;
(b) security information.
Note: Restrictions apply in relation to the supply of scheme information that is safety and security information: see section 57DB.
(2) Safety information, for a scheme vehicle, is information relating to any of the following systems installed in the vehicle, of a kind prescribed by the scheme rules:
(a) the hydrogen system;
(b) the high voltage system;
(c) the hybrid system;
(d) the electric propulsion system;
(e) another system prescribed by the scheme rules for the purposes of this paragraph.
(3) Security information, for a scheme vehicle, is information relating to any of the following systems installed in the vehicle, of a kind prescribed by the scheme rules:
(a) the vehicle’s mechanical and electrical security system;
(b) another system prescribed by the scheme rules for the purposes of this paragraph.
57BG Supply of scheme information between related bodies corporate
To avoid doubt, this Part applies in relation to a supply of scheme information about a scheme vehicle from a data provider to an Australian repairer even if the data provider and the Australian repairer are related bodies corporate.
Division 3—Supply of scheme information
57CA Scheme information—offer to supply to Australian repairers and scheme RTOs
Scope
(1) This section applies if a data provider supplies, or offers to supply, scheme information of one or more kinds in relation to one or more kinds of scheme vehicles to one or more Australian repairers or scheme RTOs.
Main obligation
(2) The data provider must make an offer (a scheme offer) to supply, on terms and conditions that comply with section 57CC, the same scheme information in relation to that kind, or those kinds, of vehicle to all Australian repairers and scheme RTOs:
(a) in the same form in which it is supplied or offered for supply under subsection (1); or
(b) if supply in that form is not practicable or accessible—in an electronic form that is reasonably accessible to all Australian repairers and scheme RTOs.
Note 1: A pecuniary penalty of up to $10,000,000 may be imposed for a contravention of this subsection: see section 76.
Note 2: Restrictions apply in relation to the packaging and supply of scheme information that is safety and security information: see section 57DB.
Choice of supply period in scheme offer
(3) If the form in which scheme information is supplied allows for variability in the period for which the information is supplied, the data provider must make the scheme offer on terms and conditions that include provision for the supply of the scheme information:
(a) for any period nominated by an Australian repairer or scheme RTO; or
(b) by day, by month and by year.
Civil penalty:
(a) for a body corporate—600 penalty units; and
(b) for a person other than a body corporate—120 penalty units.
Scheme offer not to exceed fair market price
(4) The data provider must make a scheme offer for the supply of the scheme information in relation to a particular make, model or year of scheme vehicle at a price (the scheme price) that does not exceed the fair market value of the information, as determined by reference to matters including those covered by subsection (5).
Note: A pecuniary penalty of up to $10,000,000 may be imposed for a contravention of this subsection: see section 76.
(5) For the purposes of subsection (4), this subsection covers the following matters:
(a) the price charged to other Australian repairers and scheme RTOs for supplying scheme information (whether under this Part or otherwise) in relation to a scheme vehicle:
(i) of that particular make, model and year; or
(ii) if pricing is not available for information in relation to a scheme vehicle of that particular make, model and year—pricing for information in relation to a scheme vehicle of a similar make, model and year;
(b) the terms and conditions on which such scheme information is offered for supply to Australian repairers and scheme RTOs (whether under this Part or otherwise), including as to the permitted use of the information, the means of access to the information, the number of permitted users, and the frequency or duration of use of the information;
(c) the anticipated demand by Australian repairers and scheme RTOs for supply of the scheme information on the basis of the scheme offer;
(d) the reasonable recovery of costs incurred in creating, producing and providing the scheme information for supply on the basis of the scheme offer;
(e) the price charged for the supply of information similar to scheme information in overseas markets;
(f) the amount (if any) payable by the data provider to any person who has a proprietary interest in the scheme information.
Note: A data provider must pay compensation to a person whose copyright is infringed by a supply of scheme information: see subsection 57CD(3).
Publication of scheme offer
(6) The data provider must publish the scheme offer:
(a) in English; and
(b) on the internet; and
(c) in a form that is accessible free of charge.
Civil penalty:
(a) for a body corporate—600 penalty units; and
(b) for a person other than a body corporate—120 penalty units.
(7) The data provider must:
(a) as soon as reasonably practicable after it publishes a scheme offer under subsection (6)—provide a copy of the scheme offer, in writing, to the scheme adviser; and
(b) notify the scheme adviser, in writing, as soon as reasonably practicable after any change to the scheme offer.
Civil penalty:
(a) for a body corporate—600 penalty units; and
(b) for a person other than a body corporate—120 penalty units.
57CB Scheme information—supply on request by Australian repairers or scheme RTOs
Scope
(1) This section applies if:
(a) a data provider makes, or is required to make, a scheme offer to supply scheme information in relation to a particular make, model and year of scheme vehicle; and
(b) either:
(i) an Australian repairer has a need to access the scheme information for that particular make, model and year of scheme vehicle in carrying on the Australian repairer’s business; or
(ii) a scheme RTO has a need to access the scheme information to provide an RTO course; and
(c) the Australian repairer or scheme RTO requests, in writing, the data provider to supply the scheme information about that particular make, model and year of scheme vehicle; and
(d) the Australian repairer or scheme RTO pays, or offers to pay, the scheme price, or another agreed price, for the scheme information.
Note: Restrictions apply in relation to the supply of scheme information that is safety and security information: see section 57DB.
Supply of scheme information
(2) The data provider must supply the scheme information to the Australian repairer or scheme RTO:
(a) in accordance with terms and conditions that comply with section 57CC; and
(b) within the period covered by subsection (3).
Note: A pecuniary penalty of up to $10,000,000 may be imposed for a contravention of this subsection: see section 76.
(3) For the purposes of subsection (2), the period covered by this subsection:
(a) starts when (at the payment or offer time) the Australian repairer or scheme RTO pays, or offers to pay, the scheme price, or another agreed price, for the scheme information; and
(b) in the circumstances described in column 1 of an item of the following table, ends at the time described in column 2 of that item.
Period for supply of scheme information |
Item | Column 1 | Column 2 |
| If … | the period ends … |
1 | (a) either: (i) the data provider has previously supplied the scheme information in the form requested to the Australian repairer or scheme RTO, or to any other person; or (ii) the scheme information is readily accessible by the data provider and can be provided in the form requested; and (b) item 2 of this table does not apply | immediately after the payment or offer time. |
2 | paragraph (a) of item 1 of this table applies to the scheme information, but: (a) the scheme information is, or includes, safety and security information; and (b) the data provider has not been given the information required to determine whether or not the scheme information may be supplied under section 57DB; and (c) as a result, the scheme information cannot be provided immediately after the payment or offer time | at the end of 2 business days after the day on which the Australian repairer or scheme RTO provides the required information to the data provider. |
3 | items 1 and 2 of this table do not apply | at the later of the following times: (a) at a time agreed by the data provider and the Australian repairer or scheme RTO; (b) at the end of 5 business days after the payment or offer time. |
Data provider to notify scheme adviser of terms and conditions of supply
(4) If the data provider supplies scheme information to an Australian repairer or scheme RTO under this Part, the data provider must, within 2 business days after the supply, notify the scheme adviser, in writing, of the terms and conditions of the supply, including the price for which the information is supplied.
Civil penalty:
(a) for a body corporate—600 penalty units; and
(b) for a person other than a body corporate—120 penalty units.
57CC Scheme information—terms and conditions of supply and use
Terms and conditions of supply generally
(1) Subject to this section, nothing in this Part prevents a data provider from supplying scheme information under this Part subject to reasonable terms and conditions that do not prevent, restrict or limit the access to, or use of, the information for the purposes of diagnosing faults with, servicing, repairing, modifying or dismantling scheme vehicles.
Prohibited terms or conditions
(2) However, a data provider must not enter into a contract for the supply of scheme information under this Part that contains any of the following terms or conditions:
(a) a term or condition requiring an Australian repairer or scheme RTO to acquire one or more services or products from the data provider or any other person;
(b) a term or condition allowing an increase, after the contract is made, in the price for the supply of the scheme information under the contract;
(c) a term or condition prohibited by the scheme rules.
Civil penalty:
(a) for a body corporate—600 penalty units; and
(b) for a person other than a body corporate—120 penalty units.
(3) A term or condition of a contract for the supply of scheme information under this Part that contravenes subsection (2) is of no effect.
57CD Scheme information—interaction of supply obligations and other rights and obligations
Data provider must comply with supply obligations despite existence of other rights and obligations
(1) A data provider must comply with an obligation under this Part in relation to scheme information even if such compliance would constitute or result in one or more of the following:
(a) an infringement of copyright by the data provider or any other person;
(b) a breach of contract in relation to the supply of the scheme information;
(c) a breach of an equitable obligation of confidence to which the data provider is subject in relation to the supply of the scheme information.
Note 1: Division 4 of Part IVA of the Copyright Act 1968 (which provides that certain uses of material by educational institutions do not infringe copyright) does not apply in relation to scheme information supplied under this Part (see paragraph 113P(1)(b) of that Act).
Note 2: A data provider is not criminally responsible for conduct that is justified or excused by or under this Part: see section 10.5 of the Criminal Code (lawful authority).
Compensation for third party copyright holders
(2) Subsection (3) applies if:
(a) a data provider supplies scheme information to an Australian repairer or scheme RTO under this Part; and
(b) a person (the third party claimant) holds copyright in relation to some or all of the scheme information that is the subject of the supply; and
(c) the supply constitutes or results in an infringement of the copyright of the third party claimant; and
(d) apart from this section, the infringement would constitute an acquisition of property otherwise than on just terms (within the meaning of paragraph 51(xxxi) of the Constitution).
(3) The data provider must pay to the third party claimant an amount that represents compensation on just terms (within the meaning of paragraph (xxxi) of the Constitution) for the supply of the scheme information to the Australian repairer or scheme RTO.
(4) An amount payable by the data provider under subsection (3):
(a) is a debt due by the data provider to the third party claimant; and
(b) may be recovered by action in a court of competent jurisdiction.
(5) In a civil action by a third party claimant against a data provider for infringement of copyright in relation to scheme information supplied, or offered for supply, under this Part, it is a defence if the data provider proves that:
(a) the data provider was required to supply the scheme information, or offer to supply the scheme information, under this Part; and
(b) the data provider has paid to the third party claimant the compensation required to be paid under subsection (3).
Division 4—Information management
57DA Safety and security information—packaging
A data provider must, in a scheme offer, separate safety and security information from other scheme information to the extent it is reasonably practicable to do so.
Civil penalty:
(a) for a body corporate—600 penalty units; and
(b) for a person other than a body corporate—120 penalty units.
57DB Safety and security information—supply to Australian repairers and scheme RTOs
Supply of safety and security information—restrictions on supply
(1) A data provider must not supply scheme information under this Part that is, or includes, safety and security information for a scheme vehicle of a particular make, model and year unless:
(a) there are reasonable grounds, based on information provided by the Australian repairer or scheme RTO, to believe that the requirements covered by subsection (2) are satisfied in relation to the scheme information for that vehicle; and
(b) the Australian repairer or scheme RTO has provided the required declaration, or declarations, covered by subsection (3) in relation to that vehicle.
Civil penalty:
(a) for a body corporate—600 penalty units; and
(b) for a person other than a body corporate—120 penalty units.
(2) The requirements covered by this subsection are that:
(a) the safety and security information is solely for use by an individual or individuals:
(i) in the case of an Australian repairer—for the purposes of the Australian repairer’s business; or
(ii) in the case of a scheme RTO—for the purposes of providing an RTO course; and
(b) based only on personal information about the individual covered by subsection (6), the individual is a fit and proper person to access and use the safety and security information.
(3) The required declarations covered by this subsection are that:
(a) if security information is to be supplied—a declaration:
(i) confirming that the Australian repairer or scheme RTO is authorised by the owner of the scheme vehicle to access and use the security information for that vehicle; and
(ii) specifying the vehicle identification number of the vehicle; and
(b) in any case, if the scheme rules prescribe a standard in relation to premises at which work is to be carried out on scheme vehicles of that particular make, model and year—a declaration that the premises used by the Australian repairer or scheme RTO comply with that standard.
Fit and proper persons
(4) An individual is a fit and proper person to access and use safety and security information if the individual meets the criteria (the prescribed safety and security criteria) prescribed by the scheme rules.
(5) For the purposes of subsection (4), different criteria may be prescribed in relation to each of the following:
(a) safety information;
(b) security information.
Personal information
(6) For the purposes of paragraph (2)(b), the following personal information about an individual is covered by this subsection:
(a) the individual’s name and residential address;
(b) information about the individual’s relationship to the Australian repairer or scheme RTO (as the case may be);
(c) the individual’s qualifications for using the safety and security information for the applicable purpose mentioned in paragraph (2)(a);
(d) a criminal records check about the individual;
(e) any other information (except sensitive information) prescribed by the scheme rules relevant to working out whether the individual is a fit and proper person to access and use the safety and security information.
Note: This section applies despite section 57CB (which deals with the supply of scheme information on request by an Australian repairer or scheme RTO).
(7) The scheme rules may prescribe matters in relation to the circumstances in which personal information covered by subsection (6) may be sought or given.
57DC Safety and security information—use or disclosure of sensitive information
Scope
(1) This section applies in relation to sensitive information if:
(a) the information is about an individual mentioned in paragraph 57DB(2)(a); and
(b) the information is obtained by a data provider for the purpose of determining whether the individual is a fit and proper person to access and use safety and security information; and
(c) the data provider is a small business operator within the meaning of the Privacy Act 1988; and
(d) that Act would not, apart from this section, apply to the data provider in relation to the information about the individual.
Note: The Privacy Act 1988 generally does not apply in relation to small business operators, except in relation to certain activities (see sections 6C to 6E of that Act).
Application of Privacy Act 1988
(2) Subject to this Division, the Privacy Act 1988 applies in relation to the sensitive information as if the data provider were an organisation within the meaning of that Act.
(3) The administration of this section is a privacy function for the purposes of the Australian Information Commissioner Act 2010.
Note: See the definition of privacy function in section 9 of the Australian Information Commissioner Act 2010.
57DD Safety and security information—storage of, and access to, sensitive information
Scope
(1) This section applies in relation to sensitive information if:
(a) the information is about an individual mentioned in paragraph 57DB(2)(a); and
(b) the information is obtained by a data provider for the purposes of determining whether the individual is a fit and proper person to access and use safety and security information.
Sensitive information must be stored in Australia
(2) If a data provider holds the sensitive information, the data provider must store the information in Australia or an external Territory.
Civil penalty:
(a) for a body corporate—1,500 penalty units; and
(b) for a person other than a body corporate—300 penalty units.
Preventing access to sensitive information outside Australia
(3) A person must not do anything that might reasonably enable the sensitive information to be accessed outside Australia by the data provider, or any other person.
Civil penalty:
(a) for a body corporate—1,500 penalty units; and
(b) for a person other than a body corporate—300 penalty units.
57DE Security information—records of access
Scope
(1) This section applies if a data provider supplies security information about a scheme vehicle to an Australian repairer or a scheme RTO under this Part.
Note: For restrictions on the supply of such information, see section 57DB.
Record‑keeping requirement
(2) The data provider must keep a record of the supply of the security information for a period of 5 years after the day it is supplied, including the following:
(a) the time and date of supply;
(b) the name and contact details of the Australian repairer or scheme RTO;
(c) any personal information used by the data provider to determine whether an individual is a fit and proper person to access and use the security information;
(d) the vehicle identification number of each vehicle for which the security information is supplied;
(e) details of the security information supplied.
Note: For restrictions on the use and disclosure of the information mentioned in paragraph (c), see sections 57DB and 57DC.
Civil penalty:
(a) for a body corporate—600 penalty units; and
(b) for a person other than a body corporate—120 penalty units.
Division 5—Dispute resolution
57EA Scope of Division
This Division applies to a dispute about the operation of this Part.
57EB Resolving disputes
A party to the dispute (the initiating party) may initiate action to resolve the dispute against another party (the responding party) in accordance with the procedure set out in this Division.
57EC Right to bring proceedings unaffected
This Division does not affect the right of the initiating party or the responding party to bring legal proceedings, under this Act or otherwise.
57ED Attempt to resolve dispute before mediation
(1) If the initiating party wishes to initiate action to resolve the dispute in accordance with this Division, the initiating party must give written notice to the responding party of the following:
(a) the nature of the dispute;
(b) the matter that is the subject of the dispute;
(c) the way in which that matter relates to the application of this Part;
(d) what outcome the initiating party wants;
(e) what action the initiating party thinks will resolve the dispute.
(2) The parties must then try to resolve the dispute.
Note: For when a party is taken to have tried to resolve a dispute, see section 57EE.
(3) If the parties cannot agree how to resolve the dispute within 2 business days, either party may refer the matter to a mediator for mediation under this Division.
(4) If the parties cannot agree on who should be the mediator, either party may request the scheme adviser to nominate a mediator.
(5) Within 2 business days after a request is made under subsection (4), the scheme adviser must nominate a mediator for the dispute.
57EE When is a party taken to have tried to resolve a dispute?
For the purposes of this Division, a party is taken to have tried to resolve a dispute if the party approaches the resolution of the dispute in a reconciliatory manner, including by doing any of the following:
(a) attending and participating in meetings at reasonable times;
(b) responding to communications to the party within a reasonable time;
(c) if the party has agreed to use a technical expert in resolving the dispute—considering the opinions of the technical expert;
(d) if a mediation process is being used to try to resolve the dispute—both:
(i) making the party’s intention clear, at the beginning of the process, as to what the party is trying to achieve through the process; and
(ii) observing any obligations relating to confidentiality that apply during or after the process.
57EF Mediation
(1) Subject to this section, a mediator appointed by the parties to a dispute may decide the time and place for mediation.
(2) The mediator may, with the agreement of the parties to the dispute, appoint a technical expert to assist in the resolution of the dispute.
(3) Unless the mediation is conducted using the technology referred to in subsection (4), the mediation must be conducted in Australia.
(4) The mediation may be conducted using any technology that allows a person to participate in the mediation without being physically present at the mediation.
(5) The parties must attend the mediation.
Civil penalty:
(a) for a body corporate—600 penalty units; and
(b) for a person other than a body corporate—120 penalty units.
(6) For the purposes of subsection (5), a party is taken to attend mediation in the following circumstances:
(a) the party is represented at the mediation by a person who has the authority to enter into an agreement to settle the dispute on behalf of the party;
(b) the party, or the party’s authorised representative mentioned in paragraph (a), participates in the mediation using the technology referred to in subsection (4).
(7) The parties must then try to resolve the dispute.
Note: For when a party is taken to have tried to resolve a dispute, see section 57EE.
(8) Within 5 business days after the start of the mediation, the mediator must advise the scheme adviser that the mediation has started.
57EG Termination of mediation
(1) This section applies to the mediation of a dispute if the dispute has not been resolved within 30 days after the day the mediation starts.
(2) The mediator may terminate the mediation at any time unless satisfied that a resolution of the dispute is imminent.
(3) However, if either party asks the mediator to terminate the mediation, the mediator must do so.
(4) If the mediator terminates the mediation of a dispute under this section, the mediator must issue a certificate stating the following:
(a) the names of the parties;
(b) the nature of the dispute;
(c) whether the parties attended the mediation;
(d) that the mediation has finished;
(e) that the dispute has not been resolved.
(5) The mediator must give a copy of the certificate to:
(a) the scheme adviser; and
(b) each of the parties to the dispute.
57EH Costs of mediation
(1) The parties are equally liable for the costs of mediation under this Division unless they agree otherwise.
(2) The parties must pay their own costs of attending the mediation.
(3) The costs of mediation under this Division under subsection (1) include the following:
(a) the cost of the mediator;
(b) the cost of any additional input (including from technical experts) agreed by both parties to be necessary to conduct the mediation.
Division 6—Motor vehicle service and repair information scheme adviser
57FA Scheme adviser—establishment and appointment
(1) There is to be a motor vehicle service and repair information scheme adviser for the purposes of this Part.
(2) The Minister may, by instrument, appoint a person to be the scheme adviser.
(3) The scheme adviser is not entitled to be paid any remuneration or allowances.
57FB Scheme adviser—functions
(1) The scheme adviser has the following functions:
(a) to nominate mediators or technical experts for the purposes of Division 5 (dispute resolution);
(b) to report to the Minister at any time or by a time specified by the Minister:
(i) on scheme prices, the terms and conditions of scheme offers or the availability of scheme information; and
(ii) about whether or not, in the scheme adviser’s opinion, particular information is, or should be, scheme information; and
(iii) about any other matter relevant to the operation of this Part;
(c) to report to the Commission about any systemic regulatory or enforcement issues relating to the operation of this Part;
(d) to provide general advice in relation to the application of this Part, but excluding any information obtained in confidence;
(e) to publish on the scheme adviser’s website annual reports about:
(i) the number and type of inquiries and disputes relating to the operation of this Part over the period of a financial year;
(ii) the number and type of disputes for which a mediator has been appointed over that period;
(iii) resolution rates for disputes for which a mediator has been appointed over that period;
(iv) other relevant matters affecting the operation of this Part over the period, including any such matter directed by the Minister in writing;
(f) to provide information online to data providers, Australian repairers and scheme RTOs about the availability of scheme information and dispute resolution under this Part, but excluding any information obtained in confidence.
(2) Information about the terms and conditions of a contract on which scheme information is supplied under this Part that is notified to the scheme adviser under subsection 57CB(4) is taken not to be information obtained in confidence, except to the extent that it identifies, or enables identification of, the parties to the contract.
(3) The scheme adviser has all the powers necessary or convenient for the performance of the functions of that office.
(4) Section 34C of the Acts Interpretation Act 1901 does not apply in relation to a report mentioned in this section.
Note: Section 34C of the Acts Interpretation Act 1901 would otherwise require any periodic reports to be given to the Minister and tabled in Parliament.
Division 7—Miscellaneous
57GA Civil penalty provisions
A provision of this Part that is of one of the following kinds and sets out at its foot a pecuniary penalty indicated by the words “civil penalty” is a civil penalty provision for the purposes of this Part and item 11 of the table in subsection 76(1A):
(a) a subsection;
(b) a section that is not divided into subsections.
57GB Infringement notices
(1) Division 2A of Part IVB applies in relation to an alleged contravention of a civil penalty provision mentioned in an item in the table in subsection (2) in the same way in which it applies in relation to an alleged contravention of a civil penalty provision of an industry code (within the meaning of that Part).
(2) For the purposes of the application of Division 2A of Part IVB under subsection (1), the penalty to be specified in an infringement notice in relation to an alleged contravention of a provision mentioned in columns 1 and 2 of an item of the following table must be a penalty equal to the applicable penalty for the contravention mentioned in column 3 or 4 of that item.
Penalties to be specified in infringement notices issued under this Part |
Item | Column 1 | Column 2 | Column 3 | Column 4 |
| For an alleged contravention of the following provision: | that relates to: | if the alleged contravention is by a body corporate—the number of penalty units must be: | if the alleged contravention is by a person other than a body corporate—the number of penalty units must be: |
1 | subsection 57CA(3) | the choice of supply period in scheme offer | 60 | 12 |
2 | subsection 57CA(6) | publishing a scheme offer | 60 | 12 |
3 | subsection 57CA(7) | notifying the scheme adviser about scheme information offered | 60 | 12 |
4 | subsection 57CB(2) | failing to supply scheme information within the period covered by paragraph 57CB(2)(b) | 600 | 120 |
5 | subsection 57CB(4) | notifying the scheme adviser of terms and conditions of supply | 60 | 12 |
6 | subsection 57CC(2) | prohibited terms or conditions in contracts of supply | 60 | 12 |
7 | Section 57DA | packaging of scheme information | 60 | 12 |
8 | subsection 57DB(1) | restrictions on supplying safety and security information | 60 | 12 |
9 | subsection 57DE(2) | requiring a data provider to keep records | 60 | 12 |
10 | subsection 57EF(5) | failing to attend mediation | 60 | 12 |
57GC 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.
57GD Acquisition of property
Scope
(1) This section applies to any of the following provisions:
(a) a provision of Division 3;
(b) any other provision of this Act, to the extent to which the provision relates to Division 3.
Effect of provision
(2) The provision has no effect to the extent (if any) to which its operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).
57GE Scheme rules
(1) The Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Part to be prescribed by the rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.
(2) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act;
(f) subject to section 57DB, authorise or require the disclosure of sensitive information.
Part V—Carbon tax price reduction obligation
Division 1—Preliminary
60 Simplified outline of this Part
• An entity must not engage in price exploitation in relation to the carbon tax repeal.
• The Commission may monitor prices in relation to the carbon tax repeal and the carbon tax scheme.
• An entity must not make false or misleading representations about the effect of the carbon tax repeal, or the carbon tax scheme, on the price for the supply of goods or services.
• An entity that sells electricity or natural gas, or an entity that is a bulk SGG importer and sells synthetic greenhouse gas, will be required to explain and substantiate:
(a) how the carbon tax repeal has affected, or is affecting, the entity’s regulated supply input costs; and
(b) how reductions in the entity’s regulated supply input costs that are directly or indirectly attributable to the carbon tax repeal are reflected in the prices charged by the entity for regulated supplies of electricity, natural gas or synthetic greenhouse gas.
• An entity that sells electricity or natural gas to customers, or an entity that is a bulk SGG importer and sells synthetic greenhouse gas to customers, must:
(a) give a carbon tax removal substantiation statement to the Commission; and
(b) include in the statement the entity’s estimate, on an average annual percentage price basis, or an average annual dollar price basis, of the entity’s cost savings that have been, are, or will be, attributable to the carbon tax repeal and that have been, are being, or will be, passed on to customers during the financial year that began on 1 July 2014; and
(c) provide information with the statement that substantiates such an estimate; and
(d) in a case where the entity sells electricity or natural gas to customers—communicate to customers a statement that identifies, on an average annual percentage price basis, or an average annual dollar price basis, the estimated cost savings to customers that are for the financial year that began on 1 July 2014.
• Infringement notices may be issued for certain contraventions of this Part.
60AA Objects etc.
(1) The main objects of this Part are:
(a) to deter price exploitation in relation to the carbon tax repeal at each point in the supply chain for regulated goods; and
(b) to ensure that all cost savings attributable to the carbon tax repeal are passed through the supply chain for regulated goods.
(2) The intention of the Parliament in enacting this Part is to ensure that all cost savings attributable to the carbon tax repeal are passed on to consumers of regulated goods through lower prices.
60A Definitions
In this Part:
applicable compliance period, for a carbon tax removal substantiation notice, has the meaning given by subsection 60FC(2).
bulk SGG importer means an entity that:
(a) holds a controlled substances licence under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 that allows the entity to import synthetic greenhouse gases; and
(b) supplies synthetic greenhouse gas to SGG customers.
carbon charge component of levy means so much of the amount of the levy as is calculated by multiplying the number of tonnes of carbon dioxide equivalence by a per unit charge applicable under subsection 100(1) of the Clean Energy Act 2011 for the issue of a carbon unit.
carbon tax removal substantiation notice has the meaning given by subsection 60FA(3).
carbon tax removal substantiation statement has the meaning given by subsection 60FD(3).
carbon tax repeal means:
(a) the repeal of the following Acts by the Clean Energy Legislation (Carbon Tax Repeal) Act 2014:
(i) the Clean Energy Act 2011;
(ii) the Clean Energy (Charges—Customs) Act 2011;
(iii) the Clean Energy (Charges—Excise) Act 2011;
(iv) the Clean Energy (Unit Issue Charge—Auctions) Act 2011;
(v) the Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011;
(vi) the Clean Energy (Unit Shortfall Charge—General) Act 2011; and
(b) the amendments of the following Acts made by the Clean Energy Legislation (Carbon Tax Repeal) Act 2014:
(i) the Fuel Tax Act 2006;
(ii) the Fuel Tax (Consequential and Transitional Provisions) Act 2006; and
(c) the amendments made by the following Acts:
(i) the Customs Tariff Amendment (Carbon Tax Repeal) Act 2014;
(ii) the Excise Tariff Amendment (Carbon Tax Repeal) Act 2014;
(iii) the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Amendment (Carbon Tax Repeal) Act 2014;
(iv) the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Amendment (Carbon Tax Repeal) Act 2014.
carbon tax repeal transition period means the period:
(a) beginning at the start of 1 July 2014; and
(b) ending at the end of 30 June 2015.
carbon tax scheme means the scheme embodied in the following:
(a) the Clean Energy Act 2011, as in force at the start of 1 January 2014;
(b) the associated provisions (within the meaning of that Act as in force at that time);
(c) the following provisions of the Fuel Tax Act 2006, as in force at the start of 1 January 2014:
(i) Division 42A;
(ii) section 43‑5, so far as that section relates to a carbon reduction;
(iii) section 43‑8;
(iv) section 43‑11;
(d) section 3A of the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995, as in force at the start of 1 January 2014, so far as that section relates to carbon charge component;
(e) section 4A of the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995, as in force at the start of 1 January 2014, so far as that section relates to carbon charge component;
(f) section 3A of the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995, as in force at the start of 1 January 2014, so far as that section relates to carbon charge component;
(g) sections 6FA, 6FB and 6FC of the Excise Tariff Act 1921, as in force at the start of 1 January 2014;
(h) section 19A of the Customs Tariff Act 1995, as in force at the start of 1 January 2014.
electricity customer means an entity that purchases electricity.
electricity retailer means:
(a) an entity who:
(i) is a retailer within the meaning of the National Energy Retail Law as it applies in a State or a Territory; and
(ii) sells electricity to electricity customers; or
(b) an entity who is a retailer within the meaning of the Electricity Industry Act 2000 (Vic.); or
(c) an entity who is a retail entity within the meaning of the Electricity Act 1994 (Qld); or
(d) an entity who:
(i) holds a retail licence within the meaning of the Electricity Industry Act 2004 (WA); or
(ii) holds an integrated regional licence within the meaning of the Electricity Industry Act 2004 (WA) that authorises the entity to sell electricity; or
(e) an entity who is an electricity entity within the meaning of the Electricity Reform Act (NT) and whose licence under that Act authorises the entity to sell electricity; or
(f) any other entity who produces electricity in Australia.
engages in price exploitation in relation to the carbon tax repeal: see section 60C.
entity means any of the following:
(a) a corporation (as defined by section 4);
(b) an individual;
(c) a body corporate;
(d) a corporation sole;
(e) a body politic;
(f) a partnership;
(g) any other unincorporated association or body of entities;
(h) a trust;
(i) any party or entity which can or does buy or sell electricity, natural gas or synthetic greenhouse gas.
infringement notice means an infringement notice issued under subsection 60L(1).
infringement notice compliance period: see section 60P.
infringement notice provision means section 60C or 60K.
listed corporation has the meaning given by section 9 of the Corporations Act 2001.
National Energy Retail Law means the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 (SA).
natural gas has the same meaning as in the National Gas (Commonwealth) Law (as defined by the Australian Energy Market Act 2004).
natural gas customer means an entity that purchases natural gas.
natural gas retailer means:
(a) an entity who:
(i) is a retailer within the meaning of the National Energy Retail Law as it applies in a State or a Territory; and
(ii) sells natural gas to natural gas customers; or
(b) an entity who is a gas retailer within the meaning of the Gas Industry Act 2001 (Vic.); or
(c) an entity who is a retailer within the meaning of the Gas Supply Act 2003 (Qld); or
(d) an entity who holds a trading licence under the Energy Coordination Act 1994 (WA); or
(e) an entity who holds a licence under the Gas Act 2000 (Tas.) to sell gas by retail.
price, in relation to a supply, includes:
(a) a charge of any description for the supply; and
(b) any pecuniary or other benefit, whether direct or indirect, received or to be received by a person for or in connection with the supply.
regulated goods: see section 60B.
regulated supply means a supply that:
(a) occurs during the carbon tax repeal transition period; and
(b) is of regulated goods.
regulated supply input costs of an entity means the entity’s input costs in relation to the making by the entity of regulated supplies of electricity, natural gas or synthetic greenhouse gas.
Royal Assent day means the day on which the Act that inserted this Part receives the Royal Assent.
SGG customer means an entity that purchases synthetic greenhouse gas.
SGG equipment has the same meaning as in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989.
synthetic greenhouse gas has the same meaning as in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989.
60B Regulated goods
(1) For the purposes of this Part, regulated goods means:
(a) natural gas; or
(b) electricity; or
(c) synthetic greenhouse gas; or
(d) SGG equipment; or
(e) other goods of a kind specified in a legislative instrument under subsection (2).
(2) The Minister may, by legislative instrument, specify one or more kinds of goods for the purposes of paragraph (1)(e).
Division 2—Carbon tax price reduction obligation
60C Price exploitation in relation to the carbon tax repeal
(1) An entity must not engage in price exploitation in relation to the carbon tax repeal.
(2) For the purposes of this Part, an entity engages in price exploitation in relation to the carbon tax repeal if, and only if:
(a) it makes a regulated supply; and
(b) the price for the supply does not pass through all of the entity’s cost savings relating to the supply that are directly or indirectly attributable to the carbon tax repeal.
(3) For the purposes of this Part, in determining whether the price for a supply made by an entity does not pass through all of the entity’s cost savings relating to the supply that are directly or indirectly attributable to the carbon tax repeal, have regard to the following matters:
(a) the entity’s cost savings that are directly or indirectly attributable to the carbon tax repeal;
(b) how the cost savings mentioned in paragraph (a) can reasonably be attributed to the different supplies that the entity makes;
(c) the entity’s costs;
(d) any other relevant matter that may reasonably influence the price.
60CA Failure to pass on cost savings—250% penalty
(1) If:
(a) either:
(i) an entity contravenes subsection 60C(1) in relation to a particular supply of electricity or natural gas; or
(ii) an entity that is a bulk SGG importer contravenes subsection 60C(1) in relation to a particular supply of synthetic greenhouse gas; and
(b) the contravention involved a failure to pass through all of the entity’s cost savings relating to the supply that are directly or indirectly attributable to the carbon tax repeal;
there is payable by the entity to the Commonwealth, and the entity shall pay to the Commonwealth, by way of penalty, an amount equal to 250% of those cost savings that were not passed through.
When penalty becomes due and payable
(2) An amount payable by an entity under subsection (1) is due and payable on 1 July 2015.
Late payment penalty
(3) If an amount payable by an entity under subsection (1) remains unpaid after the time when it became due for payment, there is payable by the entity to the Commonwealth, and the entity shall pay to the Commonwealth, by way of penalty, an amount calculated at the rate of 6% per annum on the amount unpaid, computed from that time.
Recovery of penalties
(4) An amount payable by an entity under subsection (1) or (3):
(a) is a debt due to the Commonwealth; and
(b) shall be recovered by the Commission, on behalf of the Commonwealth, by action in a court of competent jurisdiction, unless the cost of doing so exceeds the amount.
Report to Parliament
(5) Within 13 months after the Royal Assent day, the Commission must report to Parliament in respect of penalties payable by entities.
60D Notice to entity that is considered to have engaged in price exploitation in relation to the carbon tax repeal
(1) The Commission may give an entity a written notice under this section if the Commission considers that the entity has engaged in price exploitation in relation to the carbon tax repeal.
(2) The notice must:
(a) be expressed to be given under this section; and
(b) identify:
(i) the entity that made the supply; and
(ii) the kind of supply made; and
(iii) the circumstances in which the supply was made; and
(c) state that, in the Commission’s opinion, the price for the supply did not pass through all of the entity’s cost savings relating to the supply that were directly or indirectly attributable to the carbon tax repeal.
(3) In any proceedings:
(aa) under section 60CA; or
(a) under section 76 for a pecuniary penalty order relating to section 60C; or
(b) under section 80 for an injunction relating to section 60C; or
(c) under section 80A, 82, 86C, 86D or 87 for an order relating to section 60C;
the notice is prima facie evidence that the price for the supply did not pass through all of the entity’s cost savings relating to the supply that were directly or indirectly attributable to the carbon tax repeal.
(4) The Commission may vary or revoke the notice on its own initiative or on application made by the entity. The Commission must give the entity written notice of the variation or revocation.
(5) A notice under this section is not a legislative instrument.
60E Commission may issue notice to aid prevention of price exploitation in relation to the carbon tax repeal
(1) The Commission may give an entity a written notice under this section if the Commission considers that doing so will aid the prevention of the entity engaging in price exploitation in relation to the carbon tax repeal.
(2) The notice must:
(a) be expressed to be given under this section; and
(b) be expressed to relate to any supply that the entity makes that is:
(i) of a kind specified in the notice; and
(ii) made in circumstances specified in the notice; and
(iii) made during the period specified in the notice (which must not be a period ending after the end of the carbon tax repeal transition period); and
(c) specify the maximum price that, in the Commission’s opinion, may be charged for a supply to which the notice is expressed to relate.
(3) The Commission may, on its own initiative or on application made by the entity:
(a) vary the notice to:
(i) change the period specified as required by subparagraph (2)(b)(iii); or
(ii) change the price specified in the notice as required by paragraph (2)(c); or
(b) revoke the notice.
The Commission must give the entity written notice of the variation or revocation.
(4) The Commission may publish the notice, or particulars of any variation or revocation of the notice, in such manner as the Commission considers appropriate.
(5) A notice under this section is not a legislative instrument.
60F Acquisition of property
Scope
(1) This section applies to the following provisions of this Act:
(a) section 60C;
(b) any other provision to the extent to which it relates to section 60C.
Effect of provision
(2) The provision has no effect to the extent (if any) to which its operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).
Division 2A—Carbon tax removal substantiation notices
60FA Carbon tax removal substantiation notices
Scope
(1) This section applies to an entity if the entity:
(a) is an electricity retailer that sells electricity to electricity customers; or
(b) is a natural gas retailer that sells natural gas to natural gas customers; or
(c) is a bulk SGG importer that sells synthetic greenhouse gas to SGG customers.
Carbon tax removal substantiation notice
(2) The Commission must, within 30 days after the Royal Assent day, by written notice given to the entity, require the entity:
(a) to give to the Commission, within the period specified in the notice, a written statement that explains:
(i) how the carbon tax repeal has affected, or is affecting, the entity’s regulated supply input costs; and
(ii) how reductions in the entity’s regulated supply input costs that are directly or indirectly attributable to the carbon tax repeal are reflected in the prices charged by the entity for regulated supplies of electricity, natural gas or synthetic greenhouse gas; and
(b) to do either or both of the following:
(i) give to the Commission, within the period and in the manner and form specified in the notice, information that substantiates the explanation set out in the statement;
(ii) produce to the Commission, within the period and in the manner specified in the notice, documents that substantiate the explanation set out in the statement.
(3) A notice under subsection (2) is to be known as a carbon tax removal substantiation notice.
(4) A period specified in a carbon tax removal substantiation notice must be 21 days after the notice is given.
(5) A carbon tax removal substantiation notice must explain the effect of:
(a) section 60FB; and
(b) section 60FC; and
(c) sections 137.1 and 137.2 of the Criminal Code.
Section does not limit section 60H
(6) This section does not limit section 60H (which is about the price‑related information‑gathering powers of the Commission).
Section does not limit section 155
(7) This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).
60FB Extending periods for complying with carbon tax removal substantiation notices
(1) An entity that has been given a carbon tax removal substantiation notice may, at any time within 14 days after the notice was given to the entity by the Commission, apply in writing to the Commission for an extension of the period for complying with the notice.
(2) The Commission may, by written notice given to the entity, extend the period within which the entity must comply with the notice, so long as the extension is for a period of not more than 28 days.
60FC Compliance with carbon tax removal substantiation notices
(1) An entity that is given a carbon tax removal substantiation notice must comply with it within the applicable compliance period for the notice.
(2) The applicable compliance period for a carbon tax removal substantiation notice is:
(a) the period of 21 days specified in the notice; or
(b) if the period for complying with the notice has been extended under section 60FB—the period as so extended;
and includes (if an application has been made under section 60FB for an extension of the period for complying with the notice) the period up until the time when the applicant is given notice of the Commission’s decision on the application.
(3) An entity commits an offence if:
(a) the entity is subject to a requirement under subsection (1); and
(b) the entity is capable of complying with the requirement; and
(c) the entity omits to do an act; and
(d) the omission breaches the requirement.
Penalty: 200 penalty units.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) If subsection (3) of this section applies to an individual (whether or not because of subsection 6(2)), subsection (3) of this section has effect, in relation to the individual, as if the reference to 200 penalty units were a reference to 40 penalty units.
(6) If subsection (1) of this section applies to an individual (whether or not because of subsection 6(2)), the individual is excused from giving information or producing a document in accordance with a carbon tax removal substantiation notice on the ground that the information or the production of the document might tend to incriminate the individual or expose the individual to a penalty.
Division 2B—Carbon tax removal substantiation statements
60FD Carbon tax removal substantiation statements
Scope
(1) This section applies to an entity if the entity:
(a) is an electricity retailer that sells electricity to electricity customers; or
(b) is a natural gas retailer that sells natural gas to natural gas customers; or
(c) is a bulk SGG importer that sells synthetic greenhouse gas to SGG customers.
Carbon tax removal substantiation statement
(2) Within 30 days after the Royal Assent day, the entity must give to the Commission:
(a) a written statement that sets out:
(i) if the entity has electricity customers—the entity’s estimate, on an average annual percentage price basis, or an average annual dollar price basis, of the entity’s cost savings that have been, are, or will be, directly or indirectly attributable to the carbon tax repeal and that have been, are being, or will be, passed on to each class of electricity customers during the financial year that began on 1 July 2014; and
(ii) if the entity has natural gas customers—the entity’s estimate, on an average annual percentage price basis, or an average annual dollar price basis, of the entity’s cost savings that have been, are, or will be, directly or indirectly attributable to the carbon tax repeal and that have been, are being, or will be, passed on to each class of natural gas customers during the financial year that began on 1 July 2014; and
(iii) if the entity has SGG customers—the entity’s estimate, on an average annual percentage price basis, or an average annual dollar price basis, of the entity’s cost savings that have been, are, or will be, directly or indirectly attributable to the carbon tax repeal and that have been, are being, or will be, passed on to each class of SGG customers during the financial year that began on 1 July 2014; and
(b) information that substantiates the estimate or estimates set out in the statement.
Note: Section 137.1 of the Criminal Code creates an offence of providing false or misleading information.
(3) A statement under paragraph (2)(a) is to be known as a carbon tax removal substantiation statement.
(4) If the entity has given a carbon tax removal substantiation statement to the Commission, the entity must ensure that a copy of the statement is available on the entity’s website, in a way that is readily accessible by the public, until the end of 30 June 2015.
Compliance
(5) An entity commits an offence if:
(a) the entity is subject to a requirement under subsection (2) or (4); and
(b) the entity is capable of complying with the requirement; and
(c) the entity omits to do an act; and
(d) the omission breaches the requirement.
Penalty: 500 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(7) If subsection (5) of this section applies to an individual (whether or not because of subsection 6(2)), subsection (5) of this section has effect, in relation to the individual, as if the reference to 500 penalty units were a reference to 40 penalty units.
(8) If subsection (2) of this section applies to an individual (whether or not because of subsection 6(2)), the individual is excused from giving an estimate or information under subsection (2) of this section on the ground that the estimate or information might tend to incriminate the individual or expose the individual to a penalty.
Section does not limit section 60H
(9) This section does not limit section 60H (which is about the price‑related information‑gathering powers of the Commission).
Section does not limit section 155
(10) This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).
Report to Parliament
(11) Within 13 months after the Royal Assent day, the Commission must report to Parliament in respect of compliance by all entities.
Division 2C—Statements for customers
60FE Statements for customers
Scope
(1) This section applies to an entity if the entity:
(a) is an electricity retailer that sells electricity to electricity customers; or
(b) is a natural gas retailer that sells natural gas to natural gas customers.
Preparation of statement
(2) Within 30 days after the Royal Assent day, the entity must prepare a statement that:
(a) if the entity has electricity customers—identifies, on an average annual percentage price basis, or an average annual dollar price basis, the estimated cost savings, to each class of electricity customers, that:
(i) have been, are, or will be, directly or indirectly attributable to the carbon tax repeal; and
(ii) are for the financial year that began on 1 July 2014; and
(b) if the entity has natural gas customers—identifies, on an average annual percentage price basis, or an average annual dollar price basis, the estimated cost savings, to each class of natural gas customers, that:
(i) have been, are, or will be, directly or indirectly attributable to the carbon tax repeal; and
(ii) are for the financial year that began on 1 July 2014.
Communication of contents of statement to customers
(3) During the period:
(a) beginning 30 days after the Royal Assent day; and
(b) ending 60 days after the Royal Assent day;
the entity must ensure that the contents of the statement prepared by it under subsection (2) that relates to a class of electricity customers or natural gas customers is communicated to each customer of that class.
Note: Section 137.1 of the Criminal Code creates an offence of providing false or misleading information.
Compliance
(4) An entity commits an offence if:
(a) the entity is subject to a requirement under subsection (2) or (3); and
(b) the entity is capable of complying with the requirement; and
(c) the entity omits to do an act; and
(d) the omission breaches the requirement.
Penalty: 400 penalty units.
(5) Subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) If subsection (4) of this section applies to an individual (whether or not because of subsection 6(2)), subsection (4) of this section has effect, in relation to the individual, as if the reference to 400 penalty units were a reference to 40 penalty units.
(7) If subsection (2) or (3) of this section applies to an individual (whether or not because of subsection 6(2)), the individual is excused from:
(a) preparing a statement under subsection (2) of this section; or
(b) communicating the contents of a statement under subsection (3) of this section;
on the ground that the information in the statement might tend to incriminate the individual or expose the individual to a penalty.
Division 3—Price monitoring in relation to the carbon tax repeal etc.
60G Commission may monitor prices in relation to the carbon tax repeal etc.
Price monitoring—carbon tax repeal transition period
(1) The Commission may monitor prices to assess the general effect of the carbon tax repeal on prices charged by entities for supplies, in the carbon tax repeal transition period, of relevant goods.
Note: For relevant goods, see subsection (11).
(2) The Commission may monitor prices to assess the general effect of the carbon tax repeal on prices:
(a) advertised; or
(b) displayed; or
(c) offered;
for supplies, in the carbon tax repeal transition period, of relevant goods by entities.
Note: For relevant goods, see subsection (11).
(3) The Commission may monitor prices to assess the general effect of the carbon tax repeal on prices charged for supplies, in the carbon tax repeal transition period, of goods by an entity for which there is an entry in the Information Database (within the meaning of the Clean Energy Act 2011).
(4) The Commission may monitor prices to assess the general effect of the carbon tax repeal on prices:
(a) advertised; or
(b) displayed; or
(c) offered;
for supplies, in the carbon tax repeal transition period, of goods by an entity for which there is an entry in the Information Database (within the meaning of the Clean Energy Act 2011).
Price monitoring—price exploitation
(5) The Commission may monitor prices to assist the Commission’s consideration of whether an entity has engaged, is engaging, or may in the future engage, in price exploitation in relation to the carbon tax repeal.
Price monitoring—pre‑repeal transition period
(6) The Commission may monitor prices to assess the general effect of the carbon tax scheme on prices charged by entities for supplies, in the pre‑repeal transition period, of relevant goods.
Note 1: For pre‑repeal transition period, see subsection (13).
Note 2: For relevant goods, see subsection (11).
(7) The Commission may monitor prices to assess the general effect of the carbon tax scheme on prices:
(a) advertised; or
(b) displayed; or
(c) offered;
for supplies, in the pre‑repeal transition period, of relevant goods by entities.
Note 1: For pre‑repeal transition period, see subsection (13).
Note 2: For relevant goods, see subsection (11).
(8) The Commission may monitor prices to assess the general effect of the carbon tax scheme on prices charged for supplies, in the pre‑repeal transition period, of goods by an entity for which there is an entry in the Information Database (within the meaning of the Clean Energy Act 2011).
Note: For pre‑repeal transition period, see subsection (13).
(9) The Commission may monitor prices to assess the general effect of the carbon tax scheme on prices:
(a) advertised; or
(b) displayed; or
(c) offered;
for supplies, in the pre‑repeal transition period, of goods by an entity for which there is an entry in the Information Database (within the meaning of the Clean Energy Act 2011).
Note: For pre‑repeal transition period, see subsection (13).
Section does not limit Part VIIA
(10) This section does not limit Part VIIA (which is about prices surveillance).
Relevant goods
(11) For the purposes of this section, the following are relevant goods:
(a) regulated goods;
(b) other goods of a kind specified in a legislative instrument under subsection (12).
(12) The Minister may, by legislative instrument, specify one or more kinds of goods for the purposes of paragraph (11)(b).
Pre‑repeal transition period
(13) For the purposes of this section, pre‑repeal transition period means the period:
(a) beginning at the commencement of this section; and
(b) ending at the end of 30 June 2014.
60H Information‑gathering powers
(1) A member of the Commission may, by written notice given to a person, require the person:
(a) to give the Commission specified information in writing signed by:
(i) the person; or
(ii) if the person is a body corporate—a competent officer of the body corporate; or
(b) to produce to the Commission specified documents;
if:
(c) the information, or information contained in the documents, relates to prices or the setting of prices; and
(d) the member reasonably believes that the information, or information contained in the documents, will or may be useful to the Commission in monitoring prices as mentioned in any of subsections 60G(1) to (9).
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
(2) Information or documents that may be required under subsection (1) may relate to prices, or the setting of prices:
(a) before or after the carbon tax repeal; and
(b) before or after the start of the carbon tax repeal transition period; and
(c) in a situation, or during a period, specified in the notice.
(3) Subsection (2) does not limit subsection (1).
(4) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1); and
(b) the person is capable of complying with the requirement; and
(c) the person omits to do an act; and
(d) the omission breaches the requirement.
Penalty: 20 penalty units.
(5) An individual is excused from giving information or producing a document in accordance with a requirement under subsection (1) on the ground that the information or the production of the document might tend to incriminate the individual or expose the individual to a penalty.
Section does not limit section 60FA
(5A) This section does not limit section 60FA (which is about carbon tax removal substantiation notices).
Section does not limit section 155
(6) This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).
60J Reporting
(1) The Commission must, within 28 days after the end of each quarter, give the Minister a written report about the operations of the Commission under this Part during the quarter.
(2) A report under subsection (1) must include particulars of:
(a) all notices given under section 60E during the quarter; and
(b) all variations or revocations during the quarter of notices given under section 60E.
(3) Subsection (2) does not limit subsection (1).
(4) For the purposes of this section, a quarter is a period of 3 months:
(a) that occurs wholly or partly during the carbon tax repeal transition period; and
(b) that starts on any of the following days in a year:
(i) 1 January;
(ii) 1 April;
(iii) 1 July;
(iv) 1 October.
(5) As soon as practicable after the Minister receives a report under subsection (1), the Minister must make the report public by such means as the Minister considers appropriate.
(6) If this section commences during a quarter (but not on the first day of a quarter):
(a) no report is to be made at the end of the quarter; but
(b) the report made at the end of the next quarter is also to include the information required by subsections (1) and (2) in relation to the previous quarter.
Division 4—False or misleading representations about the effect of the carbon tax repeal etc. on prices
60K False or misleading representations about the effect of the carbon tax repeal etc. on prices
An entity must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services; or
(b) the promotion by any means of the supply or use of goods or services;
make a false or misleading representation, during the carbon tax repeal transition period, concerning the effect of:
(c) the carbon tax repeal or a part of the carbon tax repeal; or
(d) the carbon tax scheme or a part of the carbon tax scheme;
on the price for the supply of the goods or services.
Division 5—Infringement notices
60L Issuing an infringement notice
Issuing an infringement notice
(1) If the Commission has reasonable grounds to believe that a person has contravened an infringement notice provision, the Commission may issue an infringement notice to the person.
(2) The Commission must not issue more than one infringement notice to the person for the same alleged contravention of the infringement notice provision.
(3) The infringement notice does not have any effect if the notice:
(a) is issued more than 12 months after the day on which the contravention of the infringement notice provision is alleged to have occurred; or
(b) relates to more than one alleged contravention of an infringement notice provision by the person.
Matters to be included in an infringement notice
(4) An infringement notice must:
(a) be identified by a unique number; and
(b) state the day on which it is issued; and
(c) state the name and address of the person to whom it is issued; and
(d) identify the Commission; and
(e) state how the Commission may be contacted; and
(f) give details of the alleged contravention by the person, including:
(i) the date of the alleged contravention; and
(ii) the particular infringement notice provision that was allegedly contravened; and
(g) state the maximum pecuniary penalty that the court could order the person to pay under section 76 for the alleged contravention; and
(h) specify the penalty that is payable in relation to the alleged contravention; and
(i) state that the penalty is payable within the infringement notice compliance period for the notice; and
(j) state that the penalty is payable to the Commission on behalf of the Commonwealth; and
(k) explain how payment of the penalty is to be made; and
(l) explain the effect of sections 60M, 60N, 60P and 60Q.
Amount of penalty
(5) The penalty to be specified in an infringement notice that is to be issued to a person in relation to an alleged contravention of an infringement notice provision must be:
(a) if the person is a listed corporation—600 penalty units; or
(b) if the person is a body corporate other than a listed corporation—60 penalty units; or
(c) if the person is not a body corporate—12 penalty units.
60M Effect of compliance with an infringement notice
Scope
(1) This section applies if:
(a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and
(b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and
(c) the infringement notice is not withdrawn under section 60Q.
Effect
(2) The person is not, merely because of the payment, regarded as:
(a) having contravened the infringement notice provision; or
(b) having been convicted of an offence constituted by the same conduct that constituted the alleged contravention of the infringement notice provision.
(3) No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to:
(a) the alleged contravention of the infringement notice provision; or
(b) an offence constituted by the same conduct that constituted the alleged contravention.
60N Effect of failure to comply with an infringement notice
If:
(a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and
(b) the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and
(c) the infringement notice is not withdrawn under section 60Q;
the person is liable to proceedings under Part VI in relation to the alleged contravention of the infringement notice provision.
60P Infringement notice compliance period for infringement notice
(1) The infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day on which the infringement notice is issued by the Commission.
(2) Subsection (1) has effect subject to subsection (7).
(3) The Commission may extend, by notice in writing, the infringement notice compliance period for the notice if the Commission is satisfied that it is appropriate to do so.
(4) Only one extension may be given, and the extension must not be for longer than 28 days.
(5) Notice of the extension must be given to the person who was issued the infringement notice.
(6) A failure to comply with subsection (5) does not affect the validity of the extension.
(7) If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.
60Q Withdrawal of an infringement notice
Representations to the Commission
(1) A person to whom an infringement notice has been issued for an alleged contravention of an infringement notice provision may make written representations to the Commission seeking the withdrawal of the infringement notice.
(2) Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).
Withdrawal by the Commission
(3) The Commission may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so.
(4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal.
Content of withdrawal notices
(5) The withdrawal notice must state:
(a) the name and address of the person; and
(b) the day on which the infringement notice was issued to the person; and
(c) that the infringement notice is withdrawn; and
(d) that proceedings under Part VI may be started or continued against the person in relation to:
(i) the alleged contravention the infringement notice provision; or
(ii) an offence constituted by the same conduct that constituted the alleged contravention.
Time limit for giving withdrawal notices
(6) To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice.
Refunds
(7) If the infringement notice is withdrawn after the person has paid the penalty specified in the infringement notice, the Commission must, on behalf of the Commonwealth, refund to the person an amount equal to the amount paid.
Note: For the appropriation for the refund, see section 77 of the Public Governance, Performance and Accountability Act 2013.
60R Effect of this Division
This Division does not:
(a) require an infringement notice to be issued to a person for an alleged contravention of an infringement notice provision; or
(b) affect the liability of a person to proceedings under Part VI in relation to an alleged contravention of an infringement notice provision if:
(i) an infringement notice is not issued to the person for the alleged contravention; or
(ii) an infringement notice issued to a person for the alleged contravention is withdrawn under section 60Q; or
(c) prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice.
Part VI—Enforcement and remedies
75B Interpretation
(1) A reference in this Part to a person involved in a contravention of a provision of Part IV, IVB, IVBA, IVBB or IVE, or of section 55B, subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1), section 56CD, 60C, 60K or 92, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules, shall be read as a reference to a person who:
(a) has aided, abetted, counselled or procured the contravention;
(b) has induced, whether by threats or promises or otherwise, the contravention;
(c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
(2) In this Part, unless the contrary intention appears:
(a) a reference to the Court in relation to a matter is a reference to any court having jurisdiction in the matter;
(b) a reference to the Federal Court is a reference to the Federal Court of Australia; and
(c) a reference to a judgment is a reference to a judgment, decree or order, whether final or interlocutory.
76 Pecuniary penalties
(1) If the Court is satisfied that a person:
(a) has contravened any of the following provisions:
(i) a provision of Part IV (other than section 45AF or 45AG);
(iaa) a provision of Part IVBA specified in subsection (4A);
(iab) subsection 53ZQ(1), (2) or (3), section 53ZV, subsection 53ZW(1) or a civil penalty provision of a gas market instrument; or
(ia) section 55B;
(ib) subsection 56BO(1) or 56BU(1), section 56CD or a civil penalty provision of the consumer data rules;
(ic) a provision of Part IVE;
(ii) section 60C;
(iia) section 60K;
(iii) section 92;
(iiia) a provision of Division 2 of Part XICA;
(iv) a civil penalty provision of an industry code; 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 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 by a person 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 … | if the person is a body corporate—the pecuniary penalty is not to exceed … | if the person is not a body corporate—the pecuniary penalty is not to exceed … |
1 | section 45AJ or 45AK | the greater of the amounts mentioned in subsection (1B) | $2,500,000 |
2 | section 45D, 45DB, 45E or 45EA | $750,000 | (see subsection (2)) |
3 | any provision of Part IV not covered by items 1 and 2 of this table (see note 1) | the greater of the amounts mentioned in subsection (1B) | $2,500,000 (for acts or omissions relating to section 45DA, see subsection (2)) |
4 | a civil penalty provision of an industry code | the amount set out in the civil penalty provision of the industry code | the amount set out in the civil penalty provision of the industry code |
5 | a provision of Division 4 of Part IVBA | 6,000 penalty units | $500,000 |
6 | section 52ZC, 52ZH, 52ZS or 52ZZE | the greater of the amounts mentioned in subsection (1B) | $2,500,000 |
7 | any provision of Part IVBA not covered by items 5 and 6 of this table | 600 penalty units | $500,000 |
7A | subsection 53ZQ(1), (2) or (3) | the greater of the amounts mentioned in subsection (1B) | $2,500,000 |
7B | section 53ZV or subsection 53ZW(1) | 3,000 penalty units | 600 penalty units |
7C | a civil penalty provision of a gas market instrument not covered by item 7D of this table | the greater of the amounts mentioned in subsection (1B) | $2,500,000 |
7D | a civil penalty provision of a gas market instrument that sets out at its foot a pecuniary penalty indicated by the words “Civil penalty” | the lesser of: (a) the amount of the pecuniary penalty for a body corporate set out at the foot of the provision; and (b) the greater of the amounts mentioned in subsection (1B) | the lesser of: (a) the amount of the pecuniary penalty for a person other than a body corporate set out at the foot of the provision; and (b) $2,500,000 |
8 | section 55B, 60C or 60K | 6,471 penalty units | 1,295 penalty units |
9 | subsection 56BO(1) or 56BU(1), section 56CD or a civil penalty provision of the consumer data rules not covered by item 10 of this table | the greater of the amounts mentioned in subsection (1C) | $500,000 |
10 | a civil penalty provision of the consumer data rules that sets out at its foot a pecuniary penalty indicated by the words “Civil penalty” | the amount of the pecuniary penalty for a body corporate set out at the foot of the provision | the amount of the pecuniary penalty for a person other than a body corporate set out at the foot of the provision |
11 | a civil penalty provision of Part IVE described by section 57GA | the number of penalty units for a body corporate set out at the foot of the provision | the number of penalty units for a person other than a body corporate set out at the foot of the provision |
12 | section 92 | $33,000 | $6,600 |
13 | a provision of Division 2 of Part XICA | the greater of the amounts mentioned in subsection (1B) | $2,500,000 (see note 2) |
14 | any other provision to which this section applies | $10,000,000 | $500,000 |
Note 1: Item 3 also applies to pecuniary penalties ordered under subsection (1) in respect of an act or omission that relates to subsection 10.49A(1), 10.60(1) or 10.65(1): see subsection 10.49A(2), 10.60(2) or 10.65(2).
Note 2: Pecuniary penalties may not be ordered under subsection (1) against certain individuals in relation to contraventions of section 153E, 153F, 153G or 153H in certain circumstances: see section 153ZD.
(1B) For the purposes of items 1, 3, 6, 7A, 7C, 7D and 13 of the table in subsection (1A), the amounts are as follows:
(a) $50,000,000;
(b) if item 1 or 13 of the table applies, and 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;
(c) if item 3, 6, 7A, 7C or 7D of the table applies, and the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;
(d) if the Court cannot determine the value of those benefits or that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the act or omission.
(1C) For the purposes of item 9 of the table in subsection (1A), the amounts are as follows:
(a) $10,000,000;
(b) if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;
(c) if the Court cannot determine the value of that benefit—10% of the body corporate’s adjusted turnover during the 12‑month period ending at the end of the month in which the act or omission occurred or started to occur.
(2) Nothing in subsection (1) authorises the making of an order against an individual because the individual has contravened or attempted to contravene, or been involved in a contravention of, section 45D, 45DA, 45DB, 45E or 45EA.
(3) If conduct constitutes a contravention of two or more provisions of Part IV (other than section 45AF or 45AG), or two or more provisions of section 53ZQ, 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 items 1, 2 and 3 of the table in subsection (1A) apply is an amount up to the highest of those limits.
Specified provisions of Part IVBA
(4A) For the purposes of subparagraph 76(1)(a)(iaa), the following provisions of Part IVBA are specified:
(a) section 52J;
(b) section 52ZI;
(c) a provision of Division 4 of Part IVBA;
(d) section 52ZC;
(e) section 52ZH;
(f) section 52ZS;
(g) subsection 52ZT(5);
(h) subsection 52ZV(3);
(i) section 52ZZE;
(j) subsection 52ZZF(1).
76A Defence to proceedings under section 76 relating to a contravention of section 92
(1) In this section:
contravention, in relation to a section, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section.
(2) In proceedings against a person (the respondent) under section 76 in relation to an alleged contravention of section 92, it is a defence if the respondent establishes:
(a) that the contravention in respect of which the proceedings were instituted was due to reasonable mistake; or
(b) that the contravention in respect of which the proceedings were instituted was due to reasonable reliance on information supplied by another person; or
(c) that:
(i) the contravention in respect of which the proceedings were instituted was due to the act or default of another person, to an accident or to some other cause beyond the respondent’s control; and
(ii) the respondent took reasonable precautions and exercised due diligence to avoid the contravention.
(3) In paragraphs (2)(b) and (c), another person does not include a person who was:
(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 Consequences in some cases if substantially the same conduct contravenes a provision of this Act and is 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, subsection 56BO(1) or section 56CD or 92 if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
(3) Proceedings for a pecuniary penalty order against a person in relation to a contravention of Part IV, subsection 56BO(1) or section 56CD or 92 are stayed if:
(a) criminal proceedings are started or have already been started against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.
The proceedings for the pecuniary penalty order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.
(4) Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of Part IV, subsection 56BO(1) or section 56CD or 92 regardless of whether a pecuniary penalty order has been made against the person in respect of the contravention.
(5) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of Part IV, subsection 56BO(1) or section 56CD or 92 (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.
However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.
(6) In this section:
offence means an offence against a law of the Commonwealth, a State or a Territory.
77 Civil action for recovery of pecuniary penalties
(1) The Commission may institute a proceeding in the Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 76.
(2) A proceeding under subsection (1) may be commenced within 6 years after the contravention.
77A Indemnification of officers
(1) A body corporate (the first body), or a body corporate related to the first body, must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer of the first body:
(a) a civil liability;
(b) legal costs incurred in defending or resisting proceedings in which the person is found to have such a liability.
Penalty: 25 penalty units.
(2) For the purposes of subsection (1), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings.
Definitions
(3) In this section:
civil liability means a liability to pay a pecuniary penalty under section 76 for a contravention of a provision of Part IV or Part V.
officer has the same meaning as in the Corporations Act 2001.
77B Certain indemnities not authorised and certain documents void
(1) Section 77A does not authorise anything that would otherwise be unlawful.
(2) Anything that purports to indemnify a person against a liability is void to the extent that it contravenes section 77A.
77C Application of section 77A to a person other than a body corporate
If, as a result of the operation of Part 2.4 of the Criminal Code, a person other than a body corporate is:
(a) convicted of an offence (the relevant offence) against subsection 77A(1) of this Act; or
(b) convicted of an offence (the relevant offence) against section 11.4 of the Criminal Code in relation to an offence referred to in subsection 77A(1) of this Act;
the relevant offence is taken to be punishable on conviction by a fine not exceeding 5 penalty units.
78 Criminal proceedings not to be brought for contraventions of Part IV
Criminal proceedings do not lie against a person by reason only that the person:
(a) has contravened a provision of Part IV (other than section 45AF or 45AG); or
(b) has attempted to contravene such a provision;
(c) has aided, abetted, counselled or procured a person to contravene such a provision;
(d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision;
(e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f) has conspired with others to contravene such a provision.
79 Offences against section 45AF or 45AG
(1) A person who:
(aa) attempts to contravene; or
(a) aids, abets, counsels or procures a person to contravene; or
(b) induces, or attempts to induce, a person (whether by threats or promises or otherwise) to contravene; or
(c) is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of; or
(d) conspires with others to contravene;
a cartel offence provision is taken to have contravened that provision and is punishable:
(e) in a case where:
(i) the provision is a cartel offence provision; and
(ii) the person is not a body corporate;
by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both; or
(f) in any other case—accordingly.
(1AA) For the purposes of the application of subsection (1) to a case where:
(a) the provision is a cartel offence provision; and
(b) the person is a body corporate other than a corporation;
assume that each reference in paragraph 45AF(3)(c) or 45AG(3)(c) to a corporation were read as a reference to a body corporate.
(1AB) Subsections 11.1(2) to (6) (inclusive) of the Criminal Code apply in relation to paragraph (1)(aa) in the same way that they apply in relation to the offence of attempt under subsection 11.1(1) of the Criminal Code.
(1A) Subsections 11.2(2) to (5) (inclusive) of the Criminal Code apply in relation to paragraph (1)(a) in the same way that they apply in relation to subsection 11.2(1) of the Criminal Code.
(1B) Subsections 11.5(2) to (5) (inclusive) of the Criminal Code apply in relation to paragraph (1)(d) in the same way that they apply in relation to the offence of conspiracy under subsection 11.5(1) of the Criminal Code.
(5) Subsections 11.1(1), 11.2(1), 11.2A(1), 11.4(1) and 11.5(1) of the Criminal Code do not apply in relation to an offence against a cartel offence provision.
(7) In this section:
cartel offence provision means section 45AF or 45AG.
79A Enforcement and recovery of certain fines
(1) If:
(a) a fine has been imposed on a person for:
(i) an offence against section 44AAFB, 45AF or 45AG, subsection 56BN(1) or 56CC(1) or section 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, the Commission or (in the case of an offence against section 44AAFB) the AER declaring that the fine is to have effect, and may be enforced, as if it were a judgment debt under a judgment of the Court.
(2) Where a person in relation to whom an order is made under subsection (1) in respect of a fine gives security for the payment of the fine, the Court shall cancel the order in respect of the fine.
(3) Where the Court makes an order in relation to a person in respect of a fine, the Court may, at any time before the order is executed in respect of the fine, allow the person a specified time in which to pay the fine or allow the person to pay the fine by specified instalments, and, in that case:
(a) the order shall not be executed unless the person fails to pay the fine within that time or fails to pay an instalment at or before the time when it becomes payable, as the case may be; and
(b) if the person pays the fine within that time or pays all the instalments, as the case may be, the order shall be deemed to have been discharged in respect of the fine.
(4) Subject to subsection (7), an order under subsection (1) in respect of a fine ceases to have effect:
(a) on payment of the fine; or
(b) if the fine is not paid—on full compliance with the order.
(5) The term of a sentence of imprisonment imposed by an order under a law of a State or Territory applied by section 15A of the Crimes Act 1914 (including an order described in subsection 15A(1AA) of that Act) in respect of a fine shall be calculated at the rate of one day’s imprisonment for each $25 of the amount of the fine that is from time to time unpaid.
(6) Subject to subsection (7), where a person is required to serve periods of imprisonment by virtue of an order or orders under subsection (1) in respect of 2 or more fines, those periods of imprisonment shall be served consecutively.
(7) Subject to subsection (8), where:
(a) a person would, but for this subsection, be required by virtue of an order or orders under subsection (1) in respect of 3 or more fines to serve periods of imprisonment in respect of those fines exceeding in the aggregate 3 years; and
(b) those fines were imposed (whether or not in the same proceedings) for offences constituted by contraventions that occurred within a period of 2 years, being contraventions that appear to the Court to have been of the same nature or a substantially similar nature;
the Court shall, by order, declare that the order or orders shall cease to have effect in respect of those fines after the person has served an aggregate of 3 years’ imprisonment in respect of those fines.
(8) Where subsection (7) would, but for this subsection, apply to a person with respect to offences committed by the person within 2 or more overlapping periods of 2 years, the Court shall make an order under that subsection with respect to one only of those periods, being whichever period would give the person the maximum benefit from the application of that subsection.
(9) For the purposes of subsection (8), the Court may vary or revoke an order made under subsection (7).
(11) This section applies only in relation to fines imposed for offences committed after the commencement of this section.
79B Preference must be given to compensation for victims
If the Court considers that:
(a) it is appropriate to order a person (the defendant):
(i) to pay a pecuniary penalty under section 76; or
(ii) to impose a fine under section 45AF or 45AG or subsection 56BN(1) or 56CC(1);
in respect of a contravention, or an involvement in a contravention, of this Act, a gas market instrument or the consumer data rules; and
(b) it is appropriate to order the defendant to pay compensation to a person who has suffered loss or damage in respect of the contravention or the involvement; and
(c) the defendant does not have sufficient financial resources to pay both the pecuniary penalty or fine and the compensation;
the Court must give preference to making an order for compensation.
80 Injunctions
(1) Subject to subsections (1A), (1AAA) and (1B), where, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
(a) a contravention of any of the following provisions:
(i) a provision of Part IV;
(ii) a provision of Division 2 or 5 of Part IVB;
(iiaa) a provision of Part IVBA;
(iiab) subsection 53ZQ(1), (2) or (3), section 53ZV, subsection 53ZW(1) or a civil penalty provision of a gas market instrument;
(iia) section 55B;
(iib) subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1), section 56CD or a civil penalty provision of the consumer data rules;
(iic) a provision of Division 3 of Part IVE;
(iii) section 60C;
(iv) section 60K;
(v) a provision of Division 2 of Part XICA; or
(b) attempting to contravene such a provision; or
(c) aiding, abetting, counselling or procuring a person to contravene such a provision; or
(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f) conspiring with others to contravene such a provision;
the Court may grant an injunction in such terms as the Court determines to be appropriate.
Note: Section 87AA provides that, if boycott conduct is involved in proceedings, the Court must have regard to certain matters in exercising its powers under this Part. (Boycott conduct is defined in subsection 87AA(2).)
(1AA) Where an application for an injunction under subsection (1) has been made, whether before or after the commencement of this subsection, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1).
(1A) A person other than the Commission is not entitled to make an application under subsection (1) for an injunction by reason that a person has contravened or attempted to contravene or is proposing to contravene, or has been or is proposing to be involved in a contravention of, section 50, 60C or 60K.
(1AAA) Subject to subsection (1B), a person other than the Minister or the Commission may not apply for an injunction on the ground of:
(a) a person’s actual, attempted or proposed contravention of section 50A; or
(b) a person’s actual or proposed involvement in a contravention of section 50A.
(1B) Where the Tribunal has, on the application of a person (in this subsection referred to as the applicant) other than the Minister or the Commission, made a declaration under subsection 50A(1) in relation to the acquisition by a person of a controlling interest in a corporation, the applicant is entitled to make an application under subsection (1) for an injunction by reason that the corporation has contravened or attempted to contravene or is proposing to contravene subsection 50A(6) in relation to that declaration.
(2) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).
(3) The Court may rescind or vary an injunction granted under subsection (1) or (2).
(4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.
(5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;
(b) whether or not the person has previously refused or failed to do that act or thing; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that act or thing.
(6) Where the Minister or the Commission makes an application to the Court for the grant of an injunction under this section, the Court shall not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.
(6A) Subsection (6) does not apply to an application by the Minister for an injunction relating to Part IV.
(7) Where:
(a) in a case to which subsection (6) does not apply the Court would, but for this subsection, require a person to give an undertaking as to damages or costs; and
(b) the Minister gives the undertaking;
the Court shall accept the undertaking by the Minister and shall not require a further undertaking from any other person.
(8) Subsection (7) does not apply in relation to an application for an injunction relating to Part IV.
(9) If the Director of Public Prosecutions makes an application to the Court for the grant of an injunction under this section in relation to:
(a) a person’s contravention, or proposed contravention, of section 45AF or 45AG or subsection 56BN(1) or 56CC(1); or
(b) a person’s involvement, or proposed involvement, in a contravention of section 45AF or 45AG or subsection 56BN(1) or 56CC(1);
the Court must not require the Director of Public Prosecutions or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.
80A Price exploitation in relation to the carbon tax repeal—orders limiting prices or requiring refunds of money
(1) If, on the application of the Commission, the Court is satisfied that a person has engaged in conduct constituting a contravention of section 60C, the Court may make either or both of the following orders:
(a) an order requiring that person, or a person involved in the contravention, not to make a regulated supply of a kind specified in the order for a price in excess of the price specified in the order while the order remains in force;
(b) an order requiring that person, or a person involved in the contravention, to refund money to a person specified in the order.
Note: Section 60C is about price exploitation in relation to the carbon tax repeal.
(2) This section does not limit section 80.
(3) In this section:
price has the same meaning as in Part V.
regulated supply has the same meaning as in Part V.
80AB Stay of injunctions
(1) The Court may stay the operation of an injunction granted under section 80 if:
(a) the injunction is in respect of conduct that constitutes or would constitute a contravention of subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA or an associated contravention; and
(b) there is a proceeding in respect of a dispute relating to the conduct pending before a court, tribunal or authority of a State or Territory under a prescribed provision of a law of the State or Territory; and
(c) the conduct relates to the supply of goods or services to, or the acquisition of goods or services from, a person who is or becomes a party to the proceeding referred to in paragraph (b); and
(d) any of the following has applied for the stay:
(i) a Minister of the Commonwealth;
(ii) if subparagraph (b)(ii) applies—a Minister of the State or Territory concerned;
(iii) a party to the proceeding for the injunction; and
(e) the Court considers that granting the stay:
(i) would be likely to facilitate the settlement of the dispute by conciliation; and
(ii) would, in all the circumstances, be just.
(2) An order staying the operation of the injunction may be expressed to have effect for a specified period and may be varied or rescinded by the Court at any time.
(3) If the proceeding referred to in paragraph (1)(b) is terminated because the State or Territory court, tribunal or authority has settled the dispute to which the conduct relates by conciliation, the Court must not make any order in relation to the costs of the proceedings in respect of the granting of the injunction or in relation to the costs of any proceedings for the rescission of the injunction.
(4) Nothing in this section affects other powers of the Court.
(5) In this section:
associated contravention means:
(a) attempting to contravene subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA; or
(b) aiding, abetting, counselling or procuring a person to contravene any of those provisions; or
(c) inducing, or attempting to induce, a person (whether by threats, promises or otherwise) to contravene any of those provisions; or
(d) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of any of those provisions; or
(e) conspiring with others to contravene any of those provisions.
injunction includes an interim injunction.
80AC Injunctions to prevent mergers if authorisation granted on the basis of false or misleading information
If, on the application of the Commission, the Court is satisfied that:
(a) a person is proposing to acquire shares in the capital of a body corporate or assets of a person; and
(b) the person was granted a merger authorisation for the proposed acquisition on the basis of information that was false or misleading in a material particular; and
(c) that information was given by the person or a body corporate that was related to the person; and
(d) if that information had not been given, the authorisation would not have been granted; and
(e) apart from the authorisation, the acquisition would contravene section 50 if it occurred;
then the Court may grant an injunction in such terms as the Court determines to be appropriate.
81 Divestiture where merger contravenes section 50 or 50A
(1) The Court may, on the application of the Commission or any other person, if it finds, or has in another proceeding instituted under this Part found, that a person has contravened section 50, by order, give directions for the purpose of securing the disposal by the person of all or any of the shares or assets acquired in contravention of that section.
(1A) Where:
(a) the Court finds, in a proceeding instituted under this Part, that a person (in this subsection referred to as the acquirer) has acquired shares in the capital of a body corporate or any assets of a person in contravention of section 50;
(b) the Court finds, whether in that proceeding or any other proceeding instituted under this Part, that the person (in this section referred to as the vendor) from whom the acquirer acquired those shares or those assets, as the case may be, was involved in the contravention; and
(c) at the time when the finding referred to in paragraph (b) is made, any of those shares or those assets, as the case may be, are vested in the acquirer or, if the acquirer is a body corporate, in any body corporate that is related to the acquirer;
the Court may, on the application of the Commission, declare that the acquisition, in so far as it relates to the shares or assets referred to in paragraph (c), is void as from the day on which it took place and, where the Court makes such a declaration:
(d) the shares or the assets to which the declaration relates shall be deemed not to have been disposed of by the vendor; and
(e) the vendor shall refund to the acquirer any amount paid to the vendor in respect of the acquisition of the shares or assets to which the declaration relates.
(1B) Where a declaration has been made under subsection 50A(1) in relation to the obtaining of a controlling interest in a corporation, or in each of 2 or more corporations, the Court may, on the application of the Minister or the Commission, if it finds, or has in a proceeding instituted under section 80 found, that that corporation, or any of those corporations, as the case may be (in this subsection referred to as the relevant corporation), has contravened subsection 50A(6), by order, for the purpose of ensuring that the obtaining of that controlling interest ceases to have the result referred to in paragraph 50A(1)(a), direct the relevant corporation to dispose of such of its assets as are specified in the order within such period as is so specified.
(1C) Where an application is made to the Court for an order under subsection (1) or a declaration under subsection (1A), the Court may, instead of making an order under subsection (1) for the purpose of securing the disposal by a person of shares or assets or an order under subsection (1A) that the acquisition by a person of shares or assets is void, accept, upon such conditions (if any) as the Court thinks fit, an undertaking by the person to dispose of other shares or assets owned by the person.
(2) An application under subsection (1), (1A) or (1B) may be made at any time within 3 years after the date on which the contravention occurred.
(3) Where an application for directions under subsection (1) or for a declaration under subsection (1A) has been made, whether before or after the commencement of this subsection, the Court may, if the Court determines it to be appropriate, give directions or make a declaration by consent of all the parties to the proceedings, whether or not the Court has made the findings referred to in subsections (1) and (1A).
81A Divestiture where merger done under authorisation granted on false etc. information
Circumstances when this section applies
(1) This section applies if the Court is satisfied that:
(a) a person (the acquirer) has acquired shares in the capital of a body corporate or assets of another person; and
(b) before the acquisition, the acquirer was granted a merger authorisation for the acquisition on the basis of information that was false or misleading in a material particular; and
(c) that information was provided by the acquirer or a body corporate that was related to the acquirer; and
(d) the Court or another court has found that the acquirer or related body corporate has contravened section 92 or Part 7.4 of the Criminal Code by giving that information; and
(e) if that information had not been given, the authorisation would not have been granted; and
(f) apart from the authorisation, the acquisition would have contravened section 50; and
(g) any or all of those shares or assets are vested in the acquirer, the related body corporate or any other body corporate that is related to the acquirer.
Divestiture by the acquirer and related bodies corporate
(2) The Court may, on the application of the Commission, by order, give directions for the purpose of securing the disposal of all or any of those shares or assets by the acquirer, the related body corporate or any other body corporate that is related to the acquirer.
Declaration that acquisition void—when vendor involved
(4) In addition to being satisfied of the matters in subsection (1), if the Court, or another court, has found that the person (the vendor) from whom the acquirer acquired the shares or assets was involved in the contravention referred to in paragraph (1)(d), then the Court may, on the application of the Commission, by order, declare that the acquisition, in so far as it relates to those shares or assets, is void as from the day on which it occurred.
(5) If the Court makes an order under subsection (4), then:
(a) the shares or assets to which the declaration relates are taken not to have been disposed of by the vendor; and
(b) the vendor must refund to the acquirer any amount paid to the vendor for acquiring the shares or assets.
Alternative to orders under subsections (2) and (4)
(7) If an application is made to the Court for an order under subsection (2) or (4) against a person, the Court may, instead of making an order of the kind mentioned in that subsection, accept, upon such conditions (if any) as the Court thinks fit, an undertaking by the person to dispose of other shares or assets owned by the person.
When application for orders under this section must be made
(8) An application under subsection (2) or (4) may be made at any time within 3 years after the day on which the acquisition occurred.
Court may make orders even if not satisfied of all matters
(9) If an application for an order under subsection (2) or (4) is made, the Court may, if the Court determines it to be appropriate, make an order by consent of all the parties to the proceedings, whether or not the Court is satisfied of:
(a) for an order under subsection (2)—the matters in subsection (1); and
(b) for an order under subsection (4)—the matters in subsections (1) and (4).
82 Actions for damages
(1) A person who suffers loss or damage by conduct of another person that was done in contravention of:
(a) a provision of Part IV, IVB, IVBA, IVBB or IVE; or
(b) section 55B, 60C or 60K; or
(c) subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1) or section 56CD; or
(ca) a civil penalty provision of a gas market instrument; or
(d) a civil penalty provision of the consumer data rules;
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.
No adverse costs orders
(3) A person who brings an action under subsection (1) in relation to a contravention of a provision of Part IV may at any time during proceedings on the matter seek an order under subsection (4) from the court hearing, or that will hear, the matter.
(4) The court may order that the applicant is not liable for the costs of any respondent to the proceedings, regardless of the outcome or likely outcome of the proceedings.
(5) The court may only make an order under subsection (4) if the court is satisfied that:
(a) the action raises a reasonable issue for trial; and
(b) the action raises an issue that is not only significant for the applicant, but may also be significant for other persons or groups of persons; and
(c) the disparity between the financial position of the applicant and the financial position of the respondent or respondents is such that the possibility of a costs order that does not favour the applicant might deter the applicant from pursuing the action.
(6) The court may satisfy itself of the matters in subsection (5) by having regard only to the documents filed with the court in the proceedings.
(7) A person who appeals a decision of the court under subsection (4) is liable for any costs in relation to the appeal.
83 Findings and admissions of fact in proceedings to be evidence
(1) In a proceeding against a person under section 82 or in an application under subsection 51ADB(1), 53ZO(1) or 87(1A) for an order against a person, a finding of any fact made by a court, or an admission of any fact made by the person, is prima facie evidence of that fact if the finding or admission is made in proceedings:
(a) that are proceedings:
(i) under section 77, 80, 81, 86C, 86D or 86E; or
(ii) for an offence against section 45AF or 45AG or subsection 56BN(1) or 56CC(1); and
(b) in which that person has been found to have contravened, or to have been involved in a contravention of:
(i) a provision of Part IV, IVB, IVBA, IVBB or IVE; or
(ii) section 55B, 60C or 60K; or
(iia) a civil penalty provision of a gas market instrument; or
(iii) subsection 56BO(1) or 56BU(1), section 56CD or a civil penalty provision of the consumer data rules.
(2) The finding or admission may be proved by production of:
(a) in any case—a document under the seal of the court from which the finding or admission appears; or
(b) in the case of an admission—a document from which the admission appears that is filed in the court.
84 Conduct by directors, employees or agents
(1) If, in:
(a) a prosecution for an offence against section 45AF or 45AG or subsection 56BN(1) or 56CC(1) in respect of conduct engaged in by a body corporate; or
(b) a proceeding under this Part in respect of conduct engaged in by a body corporate, being conduct in relation to which section 45AJ, 45AK, 46 or 46A, Part IVB, IVBA, IVBB or IVE, section 55B, Part V, subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1), section 56CD, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules applies; or
(ba) a proceeding in respect of conduct engaged in by a body corporate, being conduct in relation to which section 153E, 153F, 153G or 153H 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, a gas market instrument and the consumer data rules, to have been engaged in also by the body corporate.
(3) If, in:
(a) a prosecution for an offence against section 45AF or 45AG or subsection 56BN(1) or 56CC(1) in respect of conduct engaged in by a person other than a body corporate; or
(b) a proceeding under this Part in respect of conduct engaged in by a person other than a body corporate, being conduct in relation to which section 45AJ or 45AK, Part IVB, IVBA, IVBB or IVE, section 55B, Part V, subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1), section 56CD, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules applies;
it is necessary to establish the state of mind of the person, it is sufficient to show that:
(c) an employee or agent of the person engaged in that conduct; and
(d) the employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and
(e) the employee or agent had that state of mind.
(4) Conduct engaged in on behalf of a person other than a body corporate:
(a) by an employee or agent of the person within the scope of the actual or apparent authority of the employee or agent; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first‑mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;
shall be deemed, for the purposes of this Act, a gas market instrument and the consumer data rules, to have been engaged in also by the first‑mentioned person.
(4A) If:
(a) a person other than a body corporate is convicted of an offence; and
(b) subsection (3) or (4) applied in relation to the conviction on the basis that the person was the person first mentioned in that subsection; and
(c) the person would not have been convicted of the offence if that subsection had not been enacted;
the person is not liable to be punished by imprisonment for that offence.
(5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the person’s intention, opinion, belief or purpose.
85 Defences
If, in any proceedings under this Part against a person other than a body corporate, it appears to the Court that the person has or may have:
(a) engaged in conduct in contravention of a provision of Part IV; or
(aa) engaged in conduct in contravention of section 60C or 60K; or
(b) engaged in conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f);
but that the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused, the Court may relieve the person either wholly or partly from liability to any penalty or damages on such terms as the Court thinks fit.
86 Jurisdiction of courts
(1AA) A reference in this section to this Act, or to a Part, Division or section of this Act, is a reference to this Act, or to that Part, Division or section, as it has effect as a law of the Commonwealth.
(1) Jurisdiction is conferred on the Federal Court in any matter arising under this Act, a gas market instrument or the consumer data rules in respect of which a civil proceeding has, whether before or after the commencement of this section, been instituted under this Part.
(1A) Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in any matter arising under section 46, Part IVB or IVBB, section 55B, subsection 56BO(1) or 56BU(1), section 56CD, Part IVE, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules in respect of which a civil proceeding is instituted by a person other than the Minister.
(2) The several courts of the States are invested with federal jurisdiction within the limits of their several jurisdictions, whether those limits are as to locality, subject‑matter or otherwise, and, subject to the Constitution, jurisdiction is conferred on the several courts of the Territories, with respect to any matter arising under Part IVB or IVBB, section 55B, subsection 56BO(1) or 56BU(1), section 56CD, Part IVE, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules in respect of which a civil proceeding is instituted by a person other than the Minister or the Commission.
(3) Nothing in subsection (2) shall be taken to enable an inferior court of a State or Territory to grant a remedy other than a remedy of a kind that the court is able to grant under the law of that State or Territory.
(3A) The Supreme Court of a State is invested with federal jurisdiction with respect to any matter in respect of which a civil proceeding covered by section 45AI is instituted in that Court.
(3B) Subject to the Constitution, the Supreme Court of a Territory is conferred with jurisdiction with respect to any matter in respect of which a civil proceeding covered by section 45AI is instituted in that Court.
(4) The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than:
(a) the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) under subsection (1A); and
(b) the jurisdiction of the several courts of the States and Territories under subsection (2); and
(ba) the jurisdiction of the Supreme Courts of the States under subsection (3A); and
(bb) the jurisdiction of the Supreme Courts of the Territories under subsection (3B); and
(c) the jurisdiction of the High Court under section 75 of the Constitution.
86AA Limit on jurisdiction of Federal Circuit and Family Court of Australia (Division 2)
If proceedings under section 82 are instituted in, or transferred to, the Federal Circuit and Family Court of Australia (Division 2), the 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 1: For transfers of proceedings from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Court, see section 153 of the Federal Circuit and Family Court of Australia Act 2021 and section 32AC of the Federal Court of Australia Act 1976.
Note 2: For transfers of proceedings from the Federal Court to the Federal Circuit and Family Court of Australia (Division 2), see section 32AB of the Federal Court of Australia Act 1976.
86A Transfer of matters
(1) Where:
(a) a civil proceeding instituted (whether before or after the commencement of this section) by a person other than the Minister or the Commission is pending in the Federal Court; and
(b) a matter for determination in the proceeding arose under Part IVB or IVBB, section 55B, subsection 56BO(1) or 56BU(1), section 56CD, Part IVE, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules;
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 45AF or 45AG; or
(b) an involvement in a contravention of section 45AF or 45AG.
(2) The orders that the Court may make in relation to the person are:
(a) except in the case of contravening conduct that relates to section 60C or 60K or Part IVE—a community service order; and
(b) except in the case of contravening conduct that relates to section 60C or 60K or Part IVE—a probation order for a period of no longer than 3 years; and
(c) an order requiring the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; and
(d) an order requiring the person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.
(3) This section does not limit the Court’s powers under any other provision of this Act.
(4) In this section:
community service order, in relation to a person who has engaged in contravening conduct, means an order directing the person to perform a service that:
(a) is specified in the order; and
(b) relates to the conduct;
for the benefit of the community or a section of the community.
Example: The following are examples of community service orders:
(a) an order requiring a person who has made false representations to make available a training video which explains advertising obligations under this Act; and
(b) an order requiring a person who has engaged in misleading or deceptive conduct in relation to a product to carry out a community awareness program to address the needs of consumers when purchasing the product.
contravening conduct means conduct that:
(a) contravenes Part IV, IVB, IVBA, IVBB or IVE, section 55B, subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1), section 56CD, section 60C, 60K or 92, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules; or
(b) constitutes an involvement in a contravention of any of those provisions.
probation order, in relation to a person who has engaged in contravening conduct, means an order that is made by the Court for the purpose of ensuring that the person does not engage in the contravening conduct, similar conduct or related conduct during the period of the order, and includes:
(a) an order directing the person to establish a compliance program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and
(b) an order directing the person to establish an education and training program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and
(c) an order directing the person to revise the internal operations of the person’s business which lead to the person engaging in the contravening conduct.
86D Punitive orders—adverse publicity
(1) The Court may, on application by the Commission, make an adverse publicity order in relation to a person who:
(a) has been ordered to pay a pecuniary penalty under section 76; or
(b) is guilty of an offence against section 45AF or 45AG or subsection 56BN(1) or 56CC(1).
(1A) The Court may, on application by the Director of Public Prosecutions, make an adverse publicity order in relation to a person who is guilty of an offence against section 45AF or 45AG or subsection 56BN(1) or 56CC(1).
(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.
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 or IVE, subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1), section 56CD, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules; and
(b) the Court is satisfied that the disqualification is justified.
Note: Section 206EA of the Corporations Act 2001 provides that a person is disqualified from managing corporations if a court order is in force under this section. That Act contains various consequences for persons so disqualified.
(1A) On application by the Director of Public Prosecutions, the Court may make an order disqualifying a person from managing corporations for a period that the Court considers appropriate if:
(a) the Court is satisfied that the person has contravened or has been involved in a contravention of section 45AF or 45AG or subsection 56BN(1) or 56CC(1); 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.
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 gas market instrument or the consumer data rules, 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 gas market instrument or the consumer data rules:
(a) to answer a question or give information; or
(b) to produce a document or any other thing; or
(c) to do any other act;
on the ground that the answer or information, production of the document or other thing, or doing that other act, as the case may be, might tend to expose the person to a penalty by way of an order under section 86E.
Definition
(4) In this section:
penalty includes forfeiture.
87 Other orders
(1) Without limiting the generality of section 80, where, in a proceeding instituted under this Part, or for an offence against section 45AF or 45AG or subsection 56BN(1) or 56CC(1), 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, Division 2 of Part IVB, or Part IVBA or IVE, or of section 55B, subsection 56BO(1) or 56BU(1), section 56CD, 60C or 60K, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules, 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, 53ZO 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, Part IVBA or IVE, subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1), section 56CD, 60C or 60K, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules; or
(b) on the application of the Commission in accordance with subsection (1B) on behalf of one or more persons who have suffered, or who are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of Part IV (other than section 45D or 45E), Division 2 of Part IVB, Part IVBA or IVE, subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1), section 56CD, 60C or 60K, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules; or
(baa) on the application of the Commission in accordance with subsection (1BAA) on behalf of a class of persons who have suffered, or who are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of section 55B, subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1), section 56CD, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules; or
(ba) on the application of the Director of Public Prosecutions in accordance with subsection (1BA) on behalf of one or more persons who have suffered, or who are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of section 45AF or 45AG or subsection 56BN(1) or 56CC(1);
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 a provision referred to in that paragraph; and
(b) have, before the application is made, consented in writing to the making of the application.
(1BAA) The Commission may make an application under paragraph (1A)(baa) on behalf of a class of persons identified in the application who have suffered, or are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of a provision referred to in that paragraph.
(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 a provision referred to in that paragraph; and
(b) have, before the application is made, consented in writing to the making of the application.
(1C) An application may be made under subsection (1A) in relation to a contravention of Part IV, Division 2 of Part IVB, Part IVBA or IVE, subsection 56BN(1), 56BO(1), 56BU(1) or 56CC(1), section 56CD, 60C or 60K, a civil penalty provision of a gas market instrument or a civil penalty provision of the consumer data rules even if a proceeding has not been instituted under another provision in relation to that contravention.
(1CA) An application under subsection (1A) may be made at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
(2) The orders referred to in subsection (1) and (1A) are:
(a) an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void ab initio or at all times on and after such date before the date on which the order is made as is specified in the order;
(b) an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified;
(ba) an order refusing to enforce any or all of the provisions of such a contract;
(c) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage;
(d) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage;
(e) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to repair, or provide parts for, goods that had been supplied by the person who engaged in the conduct to the person who suffered, or is likely to suffer, the loss or damage;
(f) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage; and
(g) an order, in relation to an instrument creating or transferring an interest in land, directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to execute an instrument that:
(i) varies, or has the effect of varying, the first‑mentioned instrument; or
(ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first‑mentioned instrument.
(3) Where:
(a) a provision of a contract made, whether before or after the commencement of the Trade Practices Amendment Act 1977, is unenforceable because of section 45 in so far as it confers rights or benefits or imposes duties or obligations on a corporation; or
(b) the engaging in conduct by a corporation in pursuance of or in accordance with a contract made before the commencement of the Trade Practices Amendment Act 1977 would constitute a contravention of section 47;
the Court may, on the application of a party to the contract, make an order:
(c) varying the contract, or a collateral arrangement relating to the contract, in such manner as the Court considers just and equitable; or
(d) directing another party to the contract to do any act in relation to the first‑mentioned party that the Court considers just and equitable.
(4) The orders that may be made under subsection (3) include an order directing the termination of a lease or the increase or reduction of any rent or premium payable under a lease.
(5) The powers conferred on the Court under this section in relation to a contract do not affect any powers that any other court may have in relation to the contract in proceedings instituted in that other court in respect of the contract.
(6) In subsection (2), interest, in relation to land, means:
(a) a legal or equitable estate or interest in the land; or
(b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or
(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
(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), a gas market instrument or the consumer data rules.
(1A) The Commission may accept a written undertaking given by a person for the purposes of this section in connection with a merger authorisation.
(2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Commission.
(3) If the Commission considers that the person who gave the undertaking has breached any of its terms, the Commission may apply to the Court for an order under subsection (4).
(4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:
(a) an order directing the person to comply with that term of the undertaking;
(b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d) any other order that the Court considers appropriate.
87C Enforcement of undertakings—Secretary of the Department
(1) The Secretary of the Department may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the Secretary has a power or function under this Act.
(2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Secretary of the Department.
(3) If the Secretary of the Department considers that the person who gave the undertaking has breached any of its terms, the Secretary may apply to the Court for an order under subsection (4).
(4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:
(a) an order directing the person to comply with that term of the undertaking;
(b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d) any other order that the Court considers appropriate.
87CA Intervention by Commission
(1) The Commission may, with the leave of the Court and subject to any conditions imposed by the Court, intervene in any proceeding instituted under this Act.
(2) If the Commission intervenes in a proceeding, the Commission is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.
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
(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.
(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.
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.
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.
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
(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.
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.
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.
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.
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.
Division 3—Limits on personal injury damages for non‑economic loss
87L Limits on damages for non‑economic loss
A court must not, in a proceeding to which this Part applies, award as personal injury damages for non‑economic loss an amount that exceeds the amount (if any) permitted under this Division.
87M Maximum amount of damages for non‑economic loss
(1) The maximum amount of damages for non‑economic loss is:
(a) during the year in which this Part commences—$250,000; or
(b) during a later year—the amount worked out (to the nearest multiple of $10) as follows:
where:
current September CPI number is the index number for the quarter ending on 30 September in the year immediately preceding that later year.
previous maximum amount is the maximum amount of damages for non‑economic loss during the year immediately preceding that later year.
previous September CPI number is the index number for the quarter ending on the 30 September immediately preceding the 30 September referred to in the definition of current September CPI number.
(2) If an amount worked out under paragraph (1)(b) is a multiple of $5 (but not a multiple of $10), round the amount up to the nearest multiple of $10.
(3) This section does not affect the operation of section 86AA.
87N Index numbers
(1) The index number for a quarter is the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter.
(2) Subject to subsection (3), if, at any time before or after the commencement of this Act:
(a) the Australian Statistician has published or publishes an index number in respect of a quarter; and
(b) that index number is in substitution for an index number previously published by the Australian Statistician in respect of that quarter;
disregard the publication of the later index number for the purposes of this section.
(3) If, at any time, the Australian Statistician has changed or changes the index reference period for the Consumer Price Index, then, in applying this section after the change took place or takes place, have regard only to index numbers published in terms of the new index reference period.
(4) In this section:
Australian Statistician means the Australian Statistician referred to in subsection 5(2) of the Australian Bureau of Statistics Act 1975.
87P Most extreme cases
(1) The court must not award as personal injury damages for non‑economic loss the maximum amount of damages for non‑economic loss except in a most extreme case.
(2) A most extreme case is a case in which the plaintiff suffers non‑economic loss of the gravest conceivable kind.
87Q Cases of 33% or more (but not 100%) of a most extreme case
(1) If the non‑economic loss the plaintiff suffers is at least 33%, but less than 100%, of a most extreme case, the court must not award as personal injury damages for non‑economic loss an amount that exceeds the applicable percentage of the maximum amount of damages for non‑economic loss.
(2) The applicable percentage is the extent of the non‑economic loss the plaintiff suffers, expressed as a percentage of a most extreme case.
87R Cases of 15% or more (but less than 33%) of a most extreme case
If the non‑economic loss the plaintiff suffers is at least 15%, but less than 33%, of a most extreme case, the court must not award as personal injury damages for non‑economic loss an amount that exceeds the amount set out in the following table:
Cases of 15% or more (but less than 33%) of a most extreme case |
Item | Severity of the non‑economic loss (as a proportion of a most extreme case) | Damages for non‑economic loss (as a proportion of the maximum amount of damages for non‑economic loss) |
1 | 15% | 1% |
2 | 16% | 1.5% |
3 | 17% | 2% |
4 | 18% | 2.5% |
5 | 19% | 3% |
6 | 20% | 3.5% |
7 | 21% | 4% |
8 | 22% | 4.5% |
9 | 23% | 5% |
10 | 24% | 5.5% |
11 | 25% | 6.5% |
12 | 26% | 8% |
13 | 27% | 10% |
14 | 28% | 14% |
15 | 29% | 18% |
16 | 30% | 23% |
17 | 31% | 26% |
18 | 32% | 30% |
87S Cases of less than 15% of a most extreme case
If the non‑economic loss the plaintiff suffers is less than 15% of a most extreme case, the court must not award personal injury damages for non‑economic loss.
87T Referring to earlier decisions on non‑economic loss
(1) In determining personal injury damages for non‑economic loss, the court may refer to earlier decisions of the court or of other courts for the purpose of establishing the appropriate award in the proceeding.
(2) For that purpose, the parties to the proceeding or their counsel may bring the court’s attention to awards of personal injury damages for non‑economic loss in those earlier decisions.
(3) This section does not affect the rules for determination of other damages or compensation.
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.
(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.
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;
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 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.
Division 6—Other limits on personal injury damages
87Y Damages for future economic loss—discount rate
(1) If an award of personal injury damages in a proceeding to which this Part applies is to include any component, assessed as a lump sum, for future economic loss of any kind, the present value of that future economic loss is to be determined by applying:
(a) a discount rate of the percentage prescribed by the regulations; or
(b) if no percentage is prescribed—a discount rate of 5%.
(2) A regulation made for the purposes of paragraph (1)(a) does not commence before the end of the period of 6 months starting:
(a) if the regulation is laid before each House of the Parliament under section 38 of the Legislation Act 2003 on the same day—on that day; or
(b) if it is laid before each House of the Parliament under that section on different days—on the later of those days.
(3) Except as provided by this section, this section does not affect any other law relating to the discounting of sums awarded as damages or compensation.
87Z Damages for loss of superannuation entitlements
A court must not, in a proceeding to which this Part applies, award personal injury damages for economic loss due to the loss of employer superannuation contributions an amount that exceeds the following amount:
where:
damages for earnings loss are the personal injury damages payable (in accordance with this Part) for:
(a) any past economic loss due to loss of earnings, or the deprivation or impairment of earning capacity, on which the entitlement to those contributions is based; and
(b) any future economic loss due to the deprivation or impairment of earning capacity on which the entitlement to those contributions would be based.
superannuation percentage is the highest employer’s charge percentage for a quarter under section 19 of the Superannuation Guarantee (Administration) Act 1992.
87ZA Interest on damages
(1) A court must not, in a proceeding to which this Part applies, order the payment of interest on personal injury damages for:
(a) non‑economic loss; or
(b) gratuitous attendant care services for the plaintiff; or
(c) loss of the plaintiff’s capacity to provide gratuitous attendant care services to other persons.
(2) If, in a proceeding to which this Part applies, a court is satisfied that interest is payable on personal injury damages of another kind, the rate of interest to be used in working out the interest is:
(a) the rate of interest prescribed by the regulations; or
(b) if no rate is prescribed—the 10‑year benchmark bond rate on the day on which the court determines the personal injury damages.
(3) This section does not affect the payment of interest on a debt under a judgment or order of a court.
(4) In this section:
10‑year benchmark bond rate, on a day, means:
(a) if the day occurs on or after 1 March in a particular year and before 1 September in that year—the Commonwealth Government 10‑year benchmark bond rate:
(i) as published by the Reserve Bank of Australia in the Reserve Bank of Australia Bulletin (however described); and
(ii) applying on the first business day of January in that year; or
(b) otherwise—the Commonwealth Government 10‑year benchmark bond rate, as so published, applying on the first business day of July in the preceding year.
business day means a day other than a Saturday, a Sunday or a public or bank holiday in any State, the Australian Capital Territory or the Northern Territory.
87ZB Exemplary and aggravated damages
(1) A court must not, in a proceeding to which this Part applies, award exemplary damages or aggravated damages in respect of death or personal injury.
(2) This section does not affect whether a court has power to award exemplary damages or aggravated damages:
(a) otherwise than in respect of death or personal injury; or
(b) in a proceeding other than a proceeding to which this Part applies.
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.
Part VII—Authorisations and notifications
Division 1—Authorisations
87ZP Definitions
(1) In this Division:
industry code of practice means a code regulating the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry.
minor variation, in relation to an authorization, is a single variation that does not involve a material change in the effect of the authorization.
(2) A reference in this Division to a proposal of the Commission is a reference to a notice of the Commission:
(a) so far as the revocation of an authorization is concerned—under subsection 91B(3); and
(b) so far as the revocation of an authorization and the substitution of another—under subsection 91C(3).
88 Commission may grant authorisations
Granting an authorisation
(1) Subject to this Part, the Commission may, on an application by a person, grant an authorisation to a person to engage in conduct, specified in the authorisation, to which one or more provisions of Part IV specified in the authorisation would or might apply.
Note: For an extended meaning of engaging in conduct, see subsection 4(2).
Effect of an authorisation
(2) While the authorisation remains in force, the provisions of Part IV specified in the authorisation do not apply in relation to the conduct to the extent that it is engaged in by:
(a) the applicant; and
(b) any other person named or referred to in the application as a person who is engaged in, or who is proposed to be engaged in, the conduct; and
(c) any particular persons or classes of persons, as specified in the authorisation, who become engaged in the conduct.
Conditions
(3) The Commission may specify conditions in the authorisation. Subsection (2) does not apply if any of the conditions are not complied with.
(4) Without limiting subsection (3), the Commission may grant a merger authorisation on the condition that a person must give, and comply with, an undertaking to the Commission under section 87B.
Single authorisation may deal with several types of conduct
(5) The Commission may grant a single authorisation for all the conduct specified in an application for authorisation, or may grant separate authorisations for any of the conduct.
Past conduct
(6) The Commission does not have power to grant an authorisation for conduct engaged in before the Commission decides the application for the authorisation.
Withdrawing an application
(7) An applicant for an authorisation may at any time, by writing to the Commission, withdraw the application.
89 Procedure for applications and the keeping of a register
(1) To be valid, an application for an authorisation, a minor variation of an authorisation, a revocation of an authorisation, or a revocation of an authorisation and the substitution of another authorisation, must:
(a) be in a form approved by the Commission in writing and contain the information required by the form; and
(b) be accompanied by any other information or documents prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the regulations.
(1AA) Without limiting paragraph (1)(a), the form may require an application for a merger authorisation to contain an undertaking under section 87B that the applicant will not make the acquisition to which the authorisation relates while the Commission is considering the application.
(1A) If the Commission receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not comply with this Division.
(1B) For the purposes of subsection (1A), business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.
(2) If the Commission receives an application referred to in subsection (1), the Commission must cause notice of the receipt of that application to be made public in such manner as it thinks fit.
(3) The Commission must keep a register of:
(a) applications for authorizations; and
(b) applications for minor variations of authorizations; and
(c) applications for, or the Commission’s proposals for, the revocation of authorizations; and
(d) applications for, or the Commission’s proposals for, the revocation of authorizations and the substitution of other authorizations;
including applications that have been withdrawn or proposals that have been abandoned.
(4) Subject to this section, the register kept under subsection (3) shall include:
(a) any document furnished to the Commission in relation to an application or proposal referred to in subsection (3);
(aa) any draft determination, and any summary of reasons, by the Commission that is furnished to a person under section 90A, or under that section as applied by section 91C;
(ab) any record of a conference made in accordance with subsection 90A(8), or with that subsection as applied by section 91C, and any certificate in relation to a conference given under subsection 90A(9), or under that subsection as so applied;
(b) particulars of any oral submission made to the Commission in relation to such an application or proposal; and
(c) the determination of the Commission on such an application or proposal and the statement of the reasons given by the Commission for that determination.
(5) Where a person furnishes a document to the Commission in relation to an application or proposal referred to in subsection (3) or makes an oral submission to the Commission in relation to such an application or proposal, he or she may, at the time when the document is furnished or the submission is made, request that the document or a part of the document, or that particulars of the submission or of part of the submission, be excluded from the register kept under subsection (3) by reason of the confidential nature of any of the matters contained in the document or submission.
(5A) Where such a request is made:
(a) if the document or the part of the document, or the submission or the part of the submission, to which the request relates contains particulars of:
(i) a secret formula or process;
(ii) the cash consideration offered for the acquisition of shares in the capital of a body corporate or assets of a person; or
(iii) the current costs of manufacturing, producing or marketing goods or services;
the Commission shall exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from the register kept under subsection (3); and
(b) in any other case—the Commission may, if it is satisfied that it is desirable to do so by reason of the confidential nature of the matters contained in the document or the part of the document, or in the submission or the part of the submission, exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from that register.
(5B) If the Commission refuses a request to exclude a document or a part of a document from the register kept under subsection (3), the Commission shall, if the person who furnished the document to the Commission so requires, return the document or part of the document to him or her and, in that case, paragraph (4)(a) does not apply in relation to the document or part of the document.
(5C) If the Commission refuses a request to exclude particulars of an oral submission or of part of an oral submission from the register kept under subsection (3), the person who made the submission may inform the Commission that he or she withdraws the submission or that part of the submission and, in that case, paragraph (4)(b) does not apply in relation to the submission or that part of the submission, as the case may be.
(5D) Where the Commission is satisfied that it is desirable to do so for any reason other than the confidential nature of matters contained in a document or submission, the Commission may exclude a document or part of a document referred to in paragraph (4)(a) or particulars referred to in paragraph (4)(b) from the register kept under subsection (3).
(5E) If a person requests, in accordance with subsection (5) that a document or a part of a document, or that particulars of a submission or of part of a submission, be excluded from the register kept under subsection (3), the document or part of the document, or particulars of the submission or of the part of the submission, shall not be included in that register until the Commission has made a determination in relation to the request.
(6) A document shall not be included in the register kept under subsection (3) if a direction in relation to that document was in force under paragraph 22(1)(b) of this Act immediately before the commencement of the Trade Practices Amendment Act 1977.
(7) The Commission may disclose information excluded under this section from the register kept under subsection (3) to such persons and on such terms as it considers reasonable and appropriate for the purposes of making its determination on the application concerned.
90 Determination of applications for authorisations
(1) The Commission shall, in respect of an application for an authorization:
(a) make a determination in writing granting such authorization as it considers appropriate; or
(b) make a determination in writing dismissing the application.
(4) The Commission shall state in writing its reasons for a determination made by it.
(5) Before making a determination in respect of an application for an authorisation other than a merger authorisation the Commission shall comply with the requirements of section 90A.
Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.
(6) Before making a determination in respect of an application for an authorisation, the Commission may do any one or more of the following:
(a) give any persons who appear to the Commission to be interested a written notice inviting submissions in respect of the application within a specified period;
(b) give the applicant a written notice requesting the applicant to give the Commission, within a specified period, additional information relevant to making its determination in respect of the application;
(c) give a person a written notice requesting the person to give the Commission, within a specified period, particular information relevant to making its determination in respect of the application;
(d) consult with such persons as it considers reasonable and appropriate for the purposes of making its determination in respect of the application.
(6A) In making a determination in respect of an application for an authorisation, the Commission must take into account:
(a) any submissions or information received under paragraph (6)(a), (b) or (c) within the period specified in the notice mentioned in that paragraph; and
(b) any information obtained from consultations under paragraph (6)(d)).
The Commission may, but need not, take into account any submissions or information received after the end of those periods.
Note: Unless the application is for a merger authorisation, the Commission may instead rely on consultations undertaken by the AEMC: see section 90B.
(7) The Commission must not make a determination granting an authorisation under section 88 in relation to conduct unless:
(a) the Commission is satisfied in all the circumstances that the conduct would not have the effect, or would not be likely to have the effect, of substantially lessening competition; or
(b) the Commission is satisfied in all the circumstances that:
(i) the conduct would result, or be likely to result, in a benefit to the public; and
(ii) the benefit would outweigh the detriment to the public that would result, or be likely to result, from the conduct; or
(c) all of the following apply:
(i) a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) is in force;
(ii) the Commission is satisfied in all the circumstances that the conduct would assist, or would be likely to assist, in the response to or recovery from the emergency to which the national emergency declaration relates; and
(iii) the Commission is satisfied in all the circumstances that the benefit to the public resulting from the assistance, or likely assistance, together with any other public benefit resulting from the conduct, would outweigh the detriment to the public that would result, or be likely to result, from the conduct.
(8) Paragraph (7)(a) does not apply if any of the following provisions would (apart from an authorisation under section 88) apply to the conduct:
(a) one or more provisions of Division 1 of Part IV (cartel conduct);
(b) one or more of sections 45D to 45DB (secondary boycotts);
(ba) one or more provisions of section 45E or 45EA (contracts etc. affecting the supply or acquisition of goods or services);
(c) section 48 (resale price maintenance).
(9A) In relation to the Commission’s consideration of an application for an authorisation to engage in conduct to which section 49 would or might apply or for a merger authorisation, in determining what amounts to a benefit to the public for the purposes of paragraph (7)(b) and subparagraph (7)(c)(iii):
(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 a merger authorisation) within the relevant period, then it is taken to have granted the application at the end of that period.
(10A) For the purposes of subsection (10), the relevant period is the period of 6 months beginning on the day the Commission received the application. However, if, before the end of that 6 month period:
(a) the Commission has prepared a draft determination under subsection 90A(1) in relation to the application; and
(b) the Commission determines in writing that that period is extended by a specified period of not more than 6 months; and
(c) the applicant agrees to that period being so extended;
the relevant period is that period as so extended.
(10B) Subject to subsections (12) and (13), if:
(a) the Commission does not determine an application for a merger authorisation within the 90‑day period beginning on the day the Commission received the application; and
(b) the application is not an application for an overseas merger authorisation;
the Commission is taken to have refused, at the end of that period, to grant the authorisation applied for.
(11) Subject to subsections (12) and (13), if the Commission does not determine an application for an overseas merger authorisation within:
(a) 30 days from the day on which the application is received by the Commission; or
(b) if the Commission, before the end of that period of 30 days, gives to the applicant a notice in writing requesting the applicant to give to the Commission additional information relevant to the determination of the application—the period consisting of 30 days from the day on which the application is received by the Commission increased by the number of days in the period commencing on the day on which the notice is given to the applicant and ending on the day on which the applicant gives to the Commission such of the additional information as the applicant is able to provide;
the Commission shall be deemed to have granted, at the end of that period, the authorisation applied for.
(11A) The Commission may, within the 30 day period mentioned in subsection (11), notify the applicant in writing that the Commission considers that the period should be extended to 45 days due to the complexity of the issues involved. If the Commission so notifies the applicant, the references in subsection (11) to 30 days are to be treated as references to 45 days.
(12) If the applicant for an authorization informs the Commission in writing before the expiration of the period referred to in subsection (10B) or (11) (the base period) that the applicant agrees to the Commission taking a specified longer period for the determination of the application, a reference to that longer period shall be deemed for the purposes of that application to be substituted in that subsection for the reference in that subsection to the base period.
(13) For the purposes of any application of subsection (12), a reference in that subsection to the base period shall, if a reference to another period is deemed by any other application or applications of that subsection to have been substituted in subsection (10B) or (11) for the reference in subsection (10B) or (11) to the base period, be construed as a reference to that other period.
(14) If a person to whom a notice has been sent under subsection 90A(2) in relation to a draft determination in respect of an application for an authorization notifies the Commission in accordance with subsection 90A(6) that he or she wishes the Commission to hold a conference in relation to the draft determination, the relevant period (worked out under subsection (10A) of this section) shall be deemed to be increased by a period equal to the period commencing on the day on which the first notification in relation to the draft determination was received by the Commission and ending on the seventh day after the day specified in the certificate given by a member of the Commission in pursuance of subsection 90A(9) as the day on which the conference terminated.
(15) Where a party to a joint venture makes at the one time two or more applications for authorizations (other than an application for a merger authorisation), being applications each of which deals with a matter relating to the joint venture:
(a) the Commission shall not make a determination in respect of any one of those applications unless it also makes a determination or determinations at the same time in respect of the other application or other applications; and
(b) if the Commission does not make a determination in respect of any one of the applications within the relevant period (worked out under subsection (10A)) in relation to that application, the Commission shall be deemed to have granted, at the expiration of that period, all the authorizations applied for.
90A Commission to afford opportunity for conference before determining application for authorisation
(1) Before determining an application for an authorization (other than an application for a merger authorisation), the Commission shall prepare a draft determination in relation to the application.
(2) The Commission shall, by notice in writing sent to the applicant and to each other interested person, invite the applicant or other person to notify the Commission, within 14 days after a date fixed by the Commission being not earlier than the day on which the notice is sent, whether the applicant or other person wishes the Commission to hold a conference in relation to the draft determination.
(3) If:
(a) the draft determination provides for the granting of the application unconditionally; and
(b) no person has made a written submission to the Commission opposing the application;
each notice by the Commission under subsection (2) shall inform the person to whom the notice is sent that the draft determination so provides.
(4) If:
(a) the draft determination does not provide for the granting of the application or provides for the granting of the application subject to conditions; or
(b) the draft determination provides for the granting of the application unconditionally but a written submission has, or written submissions have, been made to the Commission opposing the application;
the Commission shall send with each notice under subsection (2) a copy of the draft determination and:
(c) in a case to which paragraph (a) applies—a summary of the reasons why the Commission is not satisfied that the application should be granted or why it is not satisfied that the application should be granted unconditionally; or
(d) in a case to which paragraph (b) applies—a summary of the reasons why it is satisfied that the application should be granted unconditionally.
(5) If each of the persons to whom a notice was sent under subsection (2):
(a) notifies the Commission within the period of 14 days mentioned in that subsection that he or she does not wish the Commission to hold a conference in relation to the draft determination; or
(b) does not notify the Commission within that period that he or she wishes the Commission to hold such a conference;
the Commission may make the determination at any time after the expiration of that period.
(6) If any of the persons to whom a notice was sent under subsection (2) notifies the Commission in writing within the period of 14 days mentioned in that subsection that he or she wishes the Commission to hold a conference in relation to the draft determination, the Commission shall appoint a date (being not later than 30 days after the expiration of that period), time and place for the holding of the conference and give notice of the date, time and place so appointed to each of the persons to whom a notice was sent under subsection (2).
(7) At the conference:
(a) the Commission shall be represented by a member or members of the Commission (being a member or members who participated in the preparation of the draft determination) nominated by the Chairperson; and
(b) each person to whom a notice was sent under subsection (2) and any other interested person whose presence at the conference is considered by the Commission to be appropriate is entitled to attend and participate personally or, in the case of a body corporate, may be represented by a person who, or by persons each of whom, is a director, officer or employee of the body corporate; and
(c) a person participating in the conference in accordance with paragraph (a) or (b) is entitled to have another person or other persons present to assist him or her but a person who so assists another person at the conference is not entitled to participate in the discussion; and
(e) no other person is entitled to be present.
(8) A member of the Commission participating in the conference shall make such record of the discussions as is sufficient to set out the matters raised by the persons participating in the conference.
(9) The member of the Commission who represents the Commission at the conference, or, if the Commission is represented by more than one member of the Commission, one of those members appointed by the Chairperson:
(a) may exclude from the conference any person who uses insulting language at the conference, creates, or takes part in creating or continuing, a disturbance at the conference or repeatedly interrupts the conference;
(b) may terminate the conference when he or she is of the opinion that a reasonable opportunity has been given for the expression of the views of persons participating in the conference (other than persons excluded from the conference under paragraph (a)); and
(c) shall give a certificate certifying the day on which the first notification under subsection (6) in relation to the draft determination was received by the Commission and the day on which the conference terminated;
and any such certificate shall be received in all courts as prima facie evidence of the matters certified.
(10) A document purporting to be a certificate referred to in subsection (9) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.
(11) The Commission shall take account of all matters raised at the conference and may at any time after the termination of the conference make a determination in respect of the application.
(12) For the purposes of this section, interested person means a person who has notified the Commission in writing that he or she, or a specified unincorporated association of which he or she is a member, claims to have an interest in the application, being an interest that, in the opinion of the Commission, is real and substantial.
(13) Where the Commission is of the opinion that two or more applications for authorizations that are made by the same person, or by persons being bodies corporate that are related to each other, involve the same or substantially similar issues, the Commission may treat the applications as if they constitute a single application and may prepare one draft determination in relation to the applications and hold one conference in relation to that draft determination.
90B Commission may rely on consultations undertaken by the AEMC
(1) This section applies if:
(a) an application under section 88, 91A, 91B or 91C is made in relation to the National Electricity Rules or a provision of the Rules; and
(b) the AEMC has done the following:
(i) published the Rules or the provision and invited people to make submissions to it on the Rules or the provision;
(ii) specified the effect of subsection (2) when it published the Rules or the provision;
(iii) considered any submissions that were received within the time limit specified by it when it published the Rules or the provision.
(2) In making a determination under section 90, 91A, 91B or 91C:
(a) the Commission may rely on the process mentioned in paragraph (1)(b), instead of undertaking the process mentioned in section 90A, subsection 91A(2), 91B(2) or 91C(2) or (5); and
(b) the Commission may take into account:
(i) any submissions mentioned in subparagraph (1)(b)(iii); and
(ii) any submissions, in respect of the application, made by the AEMC; and
(c) despite subsection 90(6A), the Commission may disregard any submissions, in relation to the application, made by the Commonwealth, by a State or Territory, or by any other person (other than the AEMC).
(3) In this section:
National Electricity Rules means:
(a) the National Electricity Rules, as in force from time to time, made under the National Electricity Law set out in the 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
(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:
(d) in the case of an application for an authorization—grant an authorization that is expressed to be an interim authorization; and
(e) in the case of an application for a minor variation of an authorization—grant an authorization that is expressed to be an interim authorization dealing only with the matter the subject of the application for a variation; and
(f) in the case of an application for the revocation of an authorization and the substitution of another—suspend the operation of the authorization sought to be revoked and grant an authorization that is expressed to be an interim authorization in substitution for the authorization suspended.
(2AA) An authorization granted under paragraph 91(2)(d), (e) or (f) and expressed to be an interim authorization comes into force on such a date, not being a date before the grant of the interim authorization, as is specified by the Commission in the interim authorization.
(2AB) The Commission may, at any time, revoke an authorization that is expressed to be an interim authorization and, where that interim authorization is in substitution for an authorization the operation of which has been suspended, the revocation of the interim authorization has the effect of reviving the operation of the suspended authorization.
(2A) Subsections 90(4) to (7), inclusive, do not apply in relation to an authorization that is expressed to be an interim authorization.
91A Minor variations of authorizations
(1) A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a minor variation of the authorization.
(2) On receipt of an application, the Commission must, if it is satisfied that the variation sought in the application is a minor variation, by notice in writing given to any persons who appear to the Commission to be interested:
(a) indicate the nature of the variation applied for; and
(b) invite submissions in respect of the variation within a period specified by the Commission.
Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.
(2A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation to an application for a minor variation of an authorisation in a corresponding way to the way in which it applies in relation to an application for an authorisation.
(3) The Commission may make a determination in writing varying the authorisation or dismissing the application after taking into account the following:
(a) the application;
(b) any submissions that are received within the period specified under paragraph (2)(b);
(c) any information received under paragraph 90(6)(b) or (c) (as that paragraph applies because of subsection (2A) of this section) within the period specified in the notice mentioned in that paragraph;
(d) any information obtained from consultations under paragraph 90(6)(d) (as that paragraph applies because of subsection (2A) of this section).
The Commission may, but need not, take into account any submissions or information received after the end of those periods.
(4) The Commission must not make a determination varying an authorisation in relation to conduct unless the Commission is satisfied in all the circumstances that:
(a) if, in making the determination to grant the authorisation in relation to conduct, the Commission was satisfied that the conduct would not have the effect, or would not be likely to have the effect, of substantially lessening competition—the variation would not have the effect, or would not be likely to have the effect, of increasing the extent to which the conduct lessens competition; or
(b) if paragraph (a) does not apply—the variation would not result, or would not be likely to result, in a reduction in the extent to which the benefit to the public of the authorisation outweighs any detriment to the public caused by the authorisation.
(4A) For the purposes of subsection (4), the Commission need not have regard to conduct that is unaffected by the variation.
(5) Subsections 90(10B), (12) and (13) apply in relation to an application for a minor variation of a merger authorisation that is not an overseas merger authorisation in a corresponding way to the way those subsections apply in relation to an application for a merger authorisation that is not an overseas merger authorisation.
Note: Those subsections deem the Commissioner to have refused to grant the application if the Commission does not determine the application within 90 days (or an extended period in some cases).
(6) Nothing in this section prevents a person from applying for 2 or more variations in the same application.
(7) If:
(a) a person applies for 2 or more variations:
(i) at the same time; or
(ii) in such close succession that the variations could conveniently be dealt with by the Commission at the same time; and
(b) the Commission is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the authorization;
the Commission may deal with all of those variations together as if they were a single minor variation.
(8) An application for a minor variation may be withdrawn by notice in writing to the Commission at any time.
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.
(3A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation to an application for a revocation of an authorisation in a corresponding way to the way in which it applies in relation to an application for an authorisation.
(3B) Subsection 90(6) (other than paragraphs 90(6)(a) and (b)) applies in relation to a proposal for a revocation of an authorisation in a corresponding way to the way in which it applies in relation to an application for an authorisation.
(4) The Commission may make a determination in writing revoking the authorisation, or deciding not to revoke the authorisation, after taking into account the following:
(a) if subsection (2) applies—the application;
(b) any submissions that are received within the period specified under paragraph (2)(c) or (3)(f);
(c) any information received under paragraph 90(6)(b) (as it applies because of subsection (3A) of this section) within the period specified in the notice mentioned in that paragraph;
(d) any information received under paragraph 90(6)(c) (as it applies because of subsection (3A) or (3B) of this section) within the period specified in the notice mentioned in that paragraph;
(e) any information obtained from consultations under paragraph 90(6)(d) (as it applies because of subsection (3A) or (3B) of this section).
The Commission may, but need not, take into account any submissions or information received after the end of those periods.
(5) If an objection to revoking the authorisation is included in any submission or information:
(a) referred to in subsection (4); and
(b) received by the Commission within the period (if any) referred to in that subsection;
the Commission must not make a determination revoking the authorisation unless the Commission is satisfied that it would, if the authorisation had not already been granted, be prevented under subsection 90(7) from granting the authorisation.
(5A) Subsections 90(10B), (12) and (13) apply in relation to an application for a revocation of a merger authorisation that is not an overseas merger authorisation in a corresponding way to the way those subsections apply in relation to an application for a merger authorisation that is not an overseas merger authorisation.
Note: Those subsections deem the Commissioner to have refused to grant the application if the Commission does not determine the application within 90 days (or an extended period in some cases).
(6) An application for revocation may be withdrawn by notice in writing to the Commission at any time.
(7) The Commission may disregard any objection that, in its opinion, is either vexatious or frivolous.
91C Revocation of an authorization and substitution of a replacement
(1) A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a revocation of the authorization and the substitution of a new authorization for the one revoked.
(2) On receipt of such an application, the Commission must, by notice in writing given to any persons who appear to the Commission to be interested:
(a) indicate that the revocation of the authorization, and the substitution of another authorization for it, has been applied for; and
(b) indicate the basis upon which the revocation and substitution has been applied for and the nature of the substituted authorization so applied for; and
(c) invite submissions in respect of the revocation and substitution within a period specified by the Commission.
Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.
(3) If, at any time after granting an authorization, it appears to the Commission that:
(a) the authorization was granted on the basis of evidence or information that was false or misleading in a material particular; or
(b) a condition to which the authorization was expressed to be subject has not been complied with; or
(c) there has been a material change of circumstances since the authorization was granted;
the Commission may, by notice in writing given to any persons who appear to be interested:
(d) inform those persons that it is considering the revocation of the authorization and the substitution of a new authorization; and
(e) indicate the basis on which the revocation and substitution is being proposed and the nature of the substituted authorization proposed; and
(f) invite submissions in respect of the proposed action within a period specified by the Commission.
(3A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation to an application for a revocation and substitution of an authorisation in a corresponding way to the way in which it applies in relation to an application for an authorisation.
(3B) Subsection 90(6) (other than paragraphs 90(6)(a) and (b)) applies in relation to a proposal for a revocation and substitution of an authorisation in a corresponding way to the way in which it applies in relation to an application for an authorisation.
(4) The Commission may make a determination in writing revoking the authorisation and granting a substitute authorisation that it considers appropriate, or deciding not to revoke the authorisation, after taking into account the following:
(a) if subsection (2) applies—the application;
(b) any submissions that are received within the period specified under paragraph (2)(c) or (3)(f);
(c) any information received under paragraph 90(6)(b) (as it applies because of subsection (3A) of this section) within the period specified in the notice mentioned in that paragraph;
(d) any information received under paragraph 90(6)(c) (as it applies because of subsection (3A) or (3B) of this section) within the period specified in the notice mentioned in that paragraph;
(e) any information obtained from consultations under paragraph 90(6)(d) (as it applies because of subsection (3A) or (3B) of this section).
The Commission may, but need not, take into account any submissions or information received after the end of those periods.
(5) Before making a determination under subsection (4) in relation to an application, or a proposal, for the revocation of an authorisation other than a merger authorisation and the substitution of another, the Commission must comply with the requirements of section 90A.
Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.
(6) For the purposes of complying with section 90A in accordance with subsection (5), section 90A has effect:
(a) as if the reference in subsection (1) to an application for an authorization (other than an application for a merger authorisation) were a reference to an application, or to a proposal, for the revocation of an authorization (other than a merger authorisation) and the substitution of another authorization; and
(b) as if references in other provisions of that section to an application, or to an application for an authorization, were references either to an application, or to a proposal, for the revocation of an authorization and the substitution of another; and
(c) as if subsection 90A(2) had provided, in its operation in relation to a proposal for the revocation of an authorization and the substitution of another, that:
(i) the reference to the applicant and to each other interested person were a reference only to each interested person; and
(ii) each reference to the applicant or other person were a reference only to the other person.
(7) The Commission must not make a determination revoking an authorization and substituting another authorization unless the Commission is satisfied that it would not be prevented under subsection 90(7) from making a determination granting the substituted authorization, if it were a new authorization sought under section 88.
(7A) Subsections 90(10B), (12) and (13) apply in relation to an application for a revocation and substitution of a merger authorisation that is not an overseas merger authorisation in a corresponding way to the way those subsections apply in relation to an application for a merger authorisation that is not an overseas merger authorisation.
Note: Those subsections deem the Commissioner to have refused to grant the application if the Commission does not determine the application within 90 days (or an extended period in some cases).
(8) An application for the revocation of an authorization and the substitution of another authorization may be withdrawn by notice in writing to the Commission at any time.
92 Providing false or misleading information
(1) A person must not give information to the Commission or Tribunal under this Division or Part IX in connection with any of the following if the person is negligent as to whether the information is false or misleading in a material particular:
(a) an application for a merger authorisation;
(b) an application for a minor variation of a merger authorisation;
(c) an application for, or the Commission’s proposal for, the revocation of a merger authorisation;
(d) an application for, or the Commission’s proposal for, the revocation of a merger authorisation and the substitution of another merger authorisation;
(e) a review of a determination in relation to an application or proposal referred to in paragraph (a), (b), (c) or (d).
Note: Under section 76, the Court may order a person who contravenes this section to pay a pecuniary penalty. See also sections 80AC, 81A and 86C for other related remedies.
(2) For the purposes of subsection (1), proof that the person knew, or was reckless as to whether, the information was false or misleading in a material particular is taken to be proof that the person was negligent as to whether the information was false or misleading in a material particular.
Division 2—Notifications
Subdivision A—Exclusive dealing and resale price maintenance
93 Notification of exclusive dealing or resale price maintenance
(1) Subject to subsection (2):
(a) a corporation that engages, or proposes to engage, in conduct of a kind referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9); or
(b) a corporation or other person who engages, or proposes to engage, in conduct of a kind referred to in section 48;
may give to the Commission a notice setting out particulars of the conduct or proposed conduct.
(1A) To be valid, a notice under subsection (1) must:
(a) be in a form approved by the Commission in writing and contain the information required by the form; and
(b) be accompanied by any other information or documents prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the regulations.
(2) A corporation or other person may not give a notice under subsection (1) for conduct or proposed conduct if:
(a) the corporation or other person applied for an authorisation for the conduct or proposed conduct; and
(b) the Commission or the Trade Practices Commission made a determination dismissing the application; and
(c) either:
(i) the Tribunal or the Trade Practices Tribunal made a determination on an application for a review of a determination described in paragraph (b); or
(ii) the time for making such an application for review has ended without the making of an application.
(2A) In subsection (2):
Trade Practices Commission means the Trade Practices Commission established by section 6A of this Act as in force immediately before this subsection commenced.
Trade Practices Tribunal means the Trade Practices Tribunal continued in existence by section 30 of this Act as in force immediately before this subsection commenced.
(2B) If the Commission receives a purported notice under subsection (1) that it considers is not a valid notice, it must, within 5 business days of receiving the purported notice, give the person who made the purported notice a written notice:
(a) stating that the person has not given a valid notice; and
(b) giving reasons why the purported notice does not comply with this Division.
Definition
(2C) In subsection (2B):
business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.
(3) If the Commission is satisfied that the engaging by a corporation in conduct or proposed conduct of a kind described in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9) and referred to in a notice given by the corporation under subsection (1):
(a) has or would have the purpose or has or is likely to have, or would have or be likely to have, the effect of substantially lessening competition within the meaning of section 47; and
(b) in all the circumstances:
(i) has not resulted or is not likely to result, or would not result or be likely to result, in a benefit to the public; or
(ii) has resulted or is likely to result, or would result or be likely to result, in a benefit to the public that has not or would not outweigh the detriment to the public that has resulted or is likely to result from the conduct or would result or be likely to result from the proposed conduct;
the Commission may at any time give notice in writing to the corporation stating that the Commission is so satisfied and accompanied by a statement setting out its reasons for being so satisfied.
(3A) If:
(a) a corporation or other person has notified the Commission under subsection (1) of conduct or proposed conduct described in section 48; and
(b) the Commission is satisfied that the likely benefit to the public from the conduct or proposed conduct will not outweigh the likely detriment to the public from the conduct or proposed conduct;
the Commission may give the corporation or other person a written notice stating that the Commission is so satisfied and accompanied by a statement setting out its reasons for being so satisfied.
(3B) If:
(a) a corporation or other person has notified the Commission under subsection (1) of conduct or proposed conduct; and
(b) the Commission has given the corporation or other person a notice under subsection 93AAA(1) imposing conditions relating to the conduct or proposed conduct; and
(c) the Commission is satisfied that the corporation or other person has failed to comply with those conditions;
the Commission may at any time give notice in writing to the corporation or other person stating that the Commission is so satisfied and accompanied by a statement setting out its reasons for being so satisfied.
(4) Before giving a notice under subsection (3), (3A) or (3B) the Commission shall comply with the requirements of section 93A.
(5) In satisfying itself for the purposes of subsection (3), (3A) or (3B) in relation to any conduct or proposed conduct referred to in a notice given to the Commission by a corporation or other person under subsection (1), the Commission shall seek such relevant information as it considers reasonable and appropriate and may make a decision on the basis of any information so obtained and any other information furnished to it by the corporation or other person or any other person or otherwise in its possession.
(6) A corporation or other person that has given a notice to the Commission under this section in relation to any conduct or proposed conduct may, at any time before the Commission has given to the corporation or other person a notice under subsection (3), (3A) or (3B) in relation to the conduct or proposed conduct, by notice in writing to the Commission, withdraw the first‑mentioned notice.
(7) Where a corporation has given notice to the Commission under subsection (1) describing conduct or proposed conduct referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9):
(a) in the case of a notice given before the expiration of the period of 3 months commencing on the date of commencement of the Trade Practices Amendment Act 1977, the engaging by the corporation in the conduct referred to in the notice on or after that date and before the giving of the notice shall not be taken, for the purposes of section 47, to have had the effect of substantially lessening competition within the meaning of that section; and
(b) in any case, the engaging by the corporation in the conduct referred to in the notice after the giving of the notice shall not be taken, for the purposes of section 47, to have the purpose, or to have or be likely to have the effect, of substantially lessening competition within the meaning of that section unless:
(i) the Commission has given notice to the corporation under subsection (3) of this section in relation to the conduct and the conduct takes place more than 30 days (or such longer period as the Commission by writing permits) after the day on which the Commission gave the notice; or
(ii) the notice has been, or is deemed to have been, withdrawn and the conduct takes place after the day on which the notice was, or is deemed to have been, withdrawn.
(7A) A notice under subsection (1) describing conduct or proposed conduct referred to in section 48 comes into force:
(a) at the end of the period of 60 days, or such other period as is prescribed by the regulations, starting on the day when the corporation or other person gave the Commission the notice; or
(b) if the Commission gives notice to the corporation or other person under subsection 93A(2) during that period—when the Commission decides not to give the corporation or other person a notice under subsection (3A) or (3B) of this section.
(7B) A notice under subsection (1) describing conduct or proposed conduct referred to in section 48 does not come into force:
(a) if the notice is withdrawn, or deemed to be withdrawn, before it would come into force under subsection (7A); or
(b) if the Commission:
(i) gives notice to the corporation or other person under subsection 93A(2) during the period described in paragraph (7A)(a); and
(ii) gives notice to the corporation or other person under subsection (3A) or (3B).
(7C) A notice under subsection (1) describing conduct referred to in section 48 ceases to be in force:
(a) when the notice is withdrawn or deemed to be withdrawn; or
(b) if the Commission gives the corporation or other person a notice under subsection (3A)—on the 31st day after the Commission gave the notice under subsection (3A) or on a later day specified in writing by the Commission; or
(c) if the Commission gives the corporation or other person a notice under subsection (3B)—on the 31st day after the Commission gave the notice under subsection (3B) or on a later day specified in writing by the Commission.
(8) Where:
(a) a corporation or other person gives a notice to the Commission under subsection (1) in relation to any conduct or proposed conduct;
(b) before or after the notice is given the corporation or other person makes an application to the Commission for an authorization to engage in that conduct;
(c) the Commission:
(i) makes a determination dismissing the application; or
(ii) makes a determination granting an authorization in respect of the application; and
(d) the Tribunal makes a determination on an application for a review of the determination of the Commission or the time for making such an application for review expires without an application for review having been made;
the notice shall thereupon be deemed to be withdrawn.
(9) If an application is made to the Tribunal for a review of the giving of a notice by the Commission under subsection (3), (3A) or (3B), a reference in subsection (7) or paragraph (7C)(b) or (7C)(c) to the day on which the Commission gave the notice shall be read as a reference to:
(a) if the application is withdrawn—the day on which the application is withdrawn;
(b) if the Tribunal, on the application of the Commission or of any other person who the Tribunal is satisfied has an interest in the subject matter of the review, declares that the application for the review is not being proceeded with by the applicant with due diligence—the day on which the Tribunal makes the declaration; or
(c) in any other case—the day on which the Tribunal makes a determination on the review.
(10) Where:
(a) a corporation or other person has given a notice to the Commission under subsection (1) in relation to conduct or proposed conduct and the Commission has given notice to the corporation or other person in writing under subsection (3), (3A) or (3B) in relation to the conduct or the proposed conduct; or
(b) a notice given by a corporation or other person to the Commission under subsection (1) in relation to conduct or proposed conduct is withdrawn or deemed to be withdrawn;
the corporation or other person is not entitled to give a further notice under subsection (1) to the Commission in relation to the same conduct or proposed conduct or in relation to conduct or proposed conduct to the like effect.
93AAA Imposing conditions relating to notifications
(1) If:
(a) a corporation or other person gives the Commission a notice under subsection 93(1) relating to particular conduct, or proposed conduct, of a kind referred to in section 48; and
(b) the Commission reasonably believes that:
(i) apart from this section, the Commission would have grounds to give the corporation or other person a notice under subsection 93(3A) relating to that notice; and
(ii) those grounds would not exist if particular conditions relating to the conduct or proposed conduct were complied with;
the Commission may give the corporation or other person a written notice imposing those conditions.
(2) The Commission must, at the time it gives the corporation or other person the notice under subsection (1), give the corporation or other person a written statement of its reasons for giving the notice.
Subdivision B—Collective bargaining
93AA Definitions
In this Subdivision:
collective bargaining notice means a notice under subsection 93AB(1A) or (1).
conference notice means a notice under subsection 93A(2).
contract means a contract, arrangement or understanding.
objection notice means a notice under subsection 93AC(1), (2) or (2A).
93AB Notification of collective bargaining
Notice to Commission—cartel provisions
(1A) A corporation that:
(a) has made, or proposes to make, a contract (the initial contract) that contains a cartel provision that:
(i) has the purpose; or
(ii) has or is likely to have the effect;
mentioned in subsection 45AD(2); or
(b) has made, or proposes to make, a contract (the initial contract) that contains a cartel provision that has the purpose mentioned in a paragraph of subsection 45AD(3) other than paragraph (c); or
(c) proposes to give effect to a provision of a contract (the initial contract) where the provision is a cartel provision that:
(i) has the purpose; or
(ii) has or is likely to have the effect;
mentioned in subsection 45AD(2); or
(d) proposes to give effect to a provision of a contract (the initial contract) where the provision is a cartel provision that has the purpose mentioned in a paragraph of subsection 45AD(3) other than paragraph (c);
may give the Commission a notice (the collective bargaining notice) setting out particulars of the contract or proposed contract, but only if the 3 requirements set out in subsections (2), (3) and (4) are satisfied.
Note 1: Subsection (6) deals with the form etc. of a collective bargaining notice.
Note 2: Section 93AD sets out when a collective bargaining notice comes into force.
Notice to Commission—competition provisions
(1) A corporation that:
(a) has made, or proposes to make, a contract (the initial contract) containing a provision of the kind referred to in paragraph 45(1)(a); or
(b) proposes to give effect to a provision of a contract (the initial contract) where the provision is of the kind referred to in paragraph 45(1)(b);
may give the Commission a notice (the collective bargaining notice) setting out particulars of the contract or proposed contract, but only if the 3 requirements set out in subsections (2), (3) and (4) are satisfied.
Note 1: Subsection (6) deals with the form etc. of a collective bargaining notice.
Note 2: Section 93AD sets out when a collective bargaining notice comes into force.
First—making of initial contract
(2) First, the corporation must have made, or propose to make, the initial contract with 1 or more persons (the contracting parties) about:
(a) the supply of particular goods or services to; or
(b) the acquisition of particular goods or services from;
one or more other persons (the target or targets) by the corporation and the contracting parties.
Second—making of contracts
(3) Second, the corporation must reasonably expect that it will make 1 or more contracts with the target, or with one or more of those targets, about:
(a) the supply of 1 or more of those goods or services to; or
(b) the acquisition of 1 or more of those goods or services from;
that target or those targets by the corporation.
Third—price of contracts
(4) Third, the corporation must reasonably expect that:
(a) in the case where the corporation reasonably expects to make only 1 contract with the target or targets—the price for the supply or acquisition of those goods or services under that contract; or
(b) in the case where the corporation reasonably expects to make 2 or more contracts with the target or targets—the sum of the prices for the supply or acquisition of those goods or services under those contracts;
will not exceed $3,000,000, or such other amount as is prescribed by the regulations, in any 12 month period. The regulations may prescribe different amounts in relation to different industries.
Timing of reasonable expectation
(5) The corporation must have the reasonable expectation referred to in subsections (3) and (4):
(a) at the time of giving the collective bargaining notice; and
(b) if the initial contract has been made—at the time it was made.
Form of notice etc.
(6) To be valid, a collective bargaining notice must:
(a) be in a form approved by the Commission in writing and contain the information required by the form; and
(b) be accompanied by any other information or documents prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the regulations.
Notice given by, or on behalf of, contracting persons
(7) A collective bargaining notice may be expressed to be given on behalf of one or more of the contracting parties, but only if those parties could have given the notice on their own behalf. If the notice is so expressed, then it is also taken to have been given by those parties.
(7A) A collective bargaining notice for a group of contracting parties may be expressed to be given on behalf of persons who become members of the group after the notice is given, but only if those persons could have given the notice on their own behalf at the time they became members of the group. If the notice is so expressed, then it is also taken to have been given by those persons.
When a notice may not be given
(8) A corporation may not give a collective bargaining notice in relation to a contract or proposed contract if:
(a) it has applied for an authorisation in relation to the contract or proposed contract; and
(b) the Commission has made a determination dismissing the application; and
(c) either:
(i) the Tribunal has made a determination on an application for a review of the Commission’s determination; or
(ii) the time for making such an application for review has ended without the making of an application.
Notice is invalid if given by union etc. on behalf of the corporation
(9) A notice given by a corporation under subsection (1A) or (1) is not a valid collective bargaining notice if it is given, on behalf of the corporation, by:
(a) a trade union; or
(b) an officer of a trade union; or
(c) a person acting on the direction of a trade union.
Invalid collective bargaining notice
(10) If the Commission receives a purported collective bargaining notice that it considers is not a valid collective bargaining notice, it must, within 5 business days of receiving the purported notice, give the person who made the purported notice a written notice:
(a) stating that the person has not given a valid collective bargaining notice; and
(b) giving reasons why the purported collective bargaining notice does not comply with this Division.
(10A) The Commission must, as soon as practicable after receiving a valid collective bargaining notice, give a copy of the notice to the target.
Purpose/effect of a provision
(10B) Subsections 45AD(6), (7), (8) and (10) apply for the purposes of paragraphs (1A)(a) and (c) in a corresponding way to the way in which they apply for the purposes of Division 1 of Part IV.
Purpose of a provision
(10C) Subsections 45AD(7), (9) and (11) apply for the purposes of paragraphs (1A)(b) and (d) in a corresponding way to the way in which they apply for the purposes of Division 1 of Part IV.
Definition
(11) In this section:
business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.
trade union means the following:
(a) an association of employees that is registered as an organisation, or recognised, under the Fair Work (Registered Organisations) Act 2009;
(b) an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory;
(c) an association of employees a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment.
93AC Commission’s objection notice
Commission’s objection notice—cartel provisions
(1) If:
(a) a corporation gives the Commission a collective bargaining notice under subsection 93AB(1A) in relation to a contract, or proposed contract, containing a cartel provision of the kind referred to in that subsection; and
(b) the Commission is satisfied that any benefit to the public that has resulted or is likely to result or would result or be likely to result from the provision does not or would not outweigh the detriment to the public that has resulted or is likely to result or would result or be likely to result from the provision;
the Commission may give the corporation a written notice (the objection notice) stating that it is so satisfied.
Commission’s objection notice—competition provisions
(2) If a corporation gives the Commission a collective bargaining notice under subsection 93AB(1) in relation to a contract, or proposed contract, containing a provision of the kind referred to in paragraph 45(1)(a) or (b), then the Commission may, if it is satisfied that:
(a) the provision has or would have the purpose, or has or is likely to have or would have or be likely to have the effect, of substantially lessening competition (within the meaning of section 45); and
(b) in all the circumstances, either:
(i) the provision has not resulted or is not likely to result, or would not result or be likely to result, in a benefit to the public; or
(ii) any benefit to the public that has resulted or is likely to result, or would result or be likely to result, from the provision does not or would not outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result, or would result or be likely to result, from the provision;
give the corporation a written notice (the objection notice) stating that it is so satisfied.
Commission’s objection notice—non‑compliance with conditions
(2A) If:
(a) a corporation gives the Commission a collective bargaining notice that relates (wholly or partly) to collective boycott conduct or proposed collective boycott conduct; and
(b) the Commission has given the corporation a notice under subsection 93ACA(1) imposing conditions relating to the conduct or proposed conduct; and
(c) the Commission is satisfied that the corporation has failed to comply with those conditions;
the Commission may give the corporation a written notice (the objection notice) stating that the Commission is so satisfied.
Reasons for objection notice
(3) The Commission must, at the time it gives a corporation an objection notice, give the corporation a written statement of its reasons for giving the notice.
Conference before objection notice
(4) The Commission must comply with section 93A (conferences about draft objection notices) before giving an objection notice.
Commission to seek additional information
(5) For the purposes of deciding whether or not to give an objection notice:
(a) the Commission must seek such relevant information as it considers reasonable and appropriate; and
(b) the Commission may make a decision on the basis of:
(i) any information so obtained; or
(ii) any other information given to it by the corporation or any other person; or
(iii) any other information in its possession.
93ACA Imposing conditions relating to collective boycott conduct
(1) If:
(a) a corporation gives the Commission a collective bargaining notice that relates (wholly or partly) to collective boycott conduct or proposed collective boycott conduct; and
(b) the Commission reasonably believes that:
(i) apart from this section, the Commission would have grounds to give the corporation an objection notice relating to the collective bargaining notice; and
(ii) those grounds would not exist if particular conditions relating to the conduct or proposed conduct were complied with;
the Commission may give the corporation a written notice imposing those conditions.
(2) The Commission must, in or with the notice under subsection (1), give the corporation a written statement of its reasons for giving the notice.
93AD When collective bargaining notice comes into force and ceases to be in force
When collective bargaining notice comes into force
(1) A collective bargaining notice comes into force:
(a) at the end of the period which is:
(i) if the notice relates (wholly or partly) to collective boycott conduct or proposed collective boycott conduct—60 days or such other period as is prescribed by the regulations; or
(ii) otherwise—14 days or such other period as is prescribed by the regulations;
starting on the day the corporation gave the Commission the notice; or
(b) if the Commission gives the corporation a conference notice during the period referred to in paragraph (a) and then decides not to give the corporation an objection notice—when the Commission makes that decision.
(2) However, a collective bargaining notice does not come into force if:
(a) it is withdrawn, or taken to be withdrawn, before it would come into force under subsection (1); or
(b) the Commission gives the corporation a conference notice during the period referred to in paragraph (1)(a) and then gives the corporation an objection notice.
Note: Section 93AE deals with the withdrawal of a collective bargaining notice.
When collective bargaining notice ceases to be in force
(3) A collective bargaining notice ceases to be in force at the earliest of the following times:
(a) when it is withdrawn or taken to be withdrawn;
(b) if the Commission gives the corporation an objection notice—on the 31st day after the relevant day or on a later day specified in writing by the Commission;
(c) at the end of:
(i) if subparagraph (ii) does not apply—the period of 3 years beginning on the day the corporation gave the collective bargaining notice; or
(ii) the period determined under subsection (5).
Note 1: A collective bargaining notice is not in force, to the extent that it relates to collective boycott conduct, while a stop notice is in force in relation to the collective bargaining notice: see section 93AG.
Note 2: Section 93AE deals with the withdrawal of a collective bargaining notice.
(4) For the purposes of subsection (3), the relevant day is worked out in accordance with this table:
Relevant day |
| In this situation: | the relevant day is: |
1 | If an application is not made to the Tribunal for a review of the Commission’s decision to give the objection notice | the day the Commission gave the notice. |
2 | If an application is made to the Tribunal for a review of the Commission’s decision to give the objection notice | (a) if the review application is withdrawn—the day of the withdrawal; or (b) if, on the application of the Commission or any other person who the Tribunal is satisfied has an interest in the subject matter of the review, the Tribunal declares that the applicant is not proceeding with the review application with due diligence—the day of the declaration; or (c) in any other case—the day on which the Tribunal makes a determination on the review. |
Commission may determine expiry of collective bargaining notice
(5) If the Commission is satisfied that:
(a) the period provided for in subparagraph (3)(c)(i) is not appropriate in all the circumstances; and
(b) another period, ending no later than the end of the period of 10 years beginning on the day the corporation gave the collective bargaining notice, is appropriate in all the circumstances;
the Commission may give to the corporation a written notice determining that other period for the purposes of subparagraph (3)(c)(ii).
(6) The Commission must, in or with the notice under subsection (5), give the corporation a written statement of its reasons for giving the notice.
93AE Withdrawal of collective bargaining notice
Withdrawal by corporation
(1) A corporation may, by written notice given to the Commission, withdraw a collective bargaining notice it has given the Commission.
(2) The corporation may do so at any time before the Commission gives it an objection notice in relation to the collective bargaining notice.
Deemed withdrawal
(3) If:
(a) a corporation gives the Commission a collective bargaining notice in relation to a contract or proposed contract; and
(b) before or after the corporation gave the notice, it applies to the Commission for an authorisation for that contract or proposed contract; and
(c) the Commission makes a determination either dismissing the application or granting an authorisation in respect of the application; and
(d) either:
(i) the Tribunal makes a determination on an application for a review of the Commission’s determination; or
(ii) the time for making such an application for review ends without the making of an application;
then the collective bargaining notice is taken to be withdrawn.
93AEA Only 1 collective bargaining notice under subsection 93AB(1A) may be given
If:
(a) a corporation gives the Commission a collective bargaining notice under subsection 93AB(1A) in relation to a contract or proposed contract; and
(b) either:
(i) the Commission gives the corporation an objection notice in relation to the contract or proposed contract; or
(ii) the collective bargaining notice is taken to be withdrawn under subsection 93AE(3);
then a further collective bargaining notice under subsection 93AB(1A) cannot be given by any person in relation to the same contract or proposed contract or in relation to a contract or proposed contract to the like effect.
93AF Only 1 collective bargaining notice under subsection 93AB(1) may be given
If:
(a) a corporation gives the Commission a collective bargaining notice under subsection 93AB(1) in relation to a contract or proposed contract; and
(b) either:
(i) the Commission gives the corporation an objection notice in relation to the contract or proposed contract; or
(ii) the collective bargaining notice is taken to be withdrawn under subsection 93AE(3);
then the corporation may not give the Commission a further collective bargaining notice under subsection 93AB(1) in relation to the same contract or proposed contract or in relation to a contract or proposed contract to the like effect.
93AG Stop notice for collective boycott conduct
(1) The Commission may give a corporation a written notice (a stop notice) if:
(a) the corporation has given the Commission a collective bargaining notice that relates (wholly or partly) to collective boycott conduct; and
(b) the collective bargaining notice is in force under section 93AD; and
(c) there has been a material change of circumstances since:
(i) if the Commission has previously given the corporation notice under this subsection in relation to the collective boycott conduct—that notice was given; or
(ii) in any other case—the collective bargaining notice came into force; and
(d) the Commission reasonably believes that:
(i) the collective boycott conduct has resulted in serious detriment to the public; or
(ii) serious detriment to the public is imminent as a result of the collective boycott conduct.
(2) The Commission must, in or with the stop notice, give the corporation a written statement of its reasons for giving the stop notice.
(3) While the stop notice is in force, the collective bargaining notice is taken, for the purposes of this Act, not to be in force under section 93AD to the extent that the collective bargaining notice relates to collective boycott conduct.
(4) The stop notice comes into force at the time the Commission gives the corporation the stop notice.
(5) The stop notice ceases to be in force at the earliest of the following times:
(a) at the end of the period provided under subsection (6);
(b) if, before the end of that period, the Commission gives the corporation an objection notice under subsection 93AC(1) or (2) that relates to the collective bargaining notice—when that objection notice is given;
(c) if, before the end of that period, the Commission gives the corporation a notice under subsection 93ACA(1) imposing conditions relating to conduct or proposed conduct that relates to the collective bargaining notice—when that notice under subsection 93ACA(1) is given;
(d) if the Commission withdraws the stop notice—when it is withdrawn.
(6) For the purposes of paragraph (5)(a), the period is:
(a) the period of 90 days beginning on the day the Commission gives the corporation the stop notice; or
(b) if the Commission extends it under subsection (7)—that period as so extended.
(7) Before the end of the period referred to in paragraph (6)(a), the Commission may extend the period by up to a further 90 days:
(a) if satisfied that in all the circumstances it is reasonable to do so; and
(b) by giving written notice of the extended period to the corporation.
(8) The Commission must, in or with the notice under subsection (7), give the corporation a written statement of its reasons for giving the notice.
Subdivision C—Conferences
93A Commission to afford opportunity for conference before giving notice
(1) Before giving a notice under subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A) in relation to any conduct or proposed conduct, the Commission shall prepare a draft notice in relation to that conduct or proposed conduct.
(2) The Commission shall, by notice in writing sent to the corporation or other person to whose conduct or proposed conduct the draft notice relates and to each other interested person, invite the corporation or other person to notify the Commission, within 14 days after a date fixed by the Commission being not earlier than the day on which the notice is sent, whether the corporation or other person wishes the Commission to hold a conference in relation to the draft notice.
(3) The Commission shall send with each notice under subsection (2) a copy of the draft notice and a summary of the reasons why it proposes to give the notice under subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A).
(4) If each of the persons to whom a notice was sent under subsection (2):
(a) notifies the Commission in writing within the period of 14 days mentioned in that subsection that the person does not wish the Commission to hold a conference in relation to the draft notice; or
(b) does not notify the Commission within that period that he or she wishes the Commission to hold such a conference;
the Commission must decide after the end of that period whether or not to give the notice under subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A).
(5) If any of the persons to whom a notice was sent under subsection (2) notifies the Commission in writing within the period of 14 days mentioned in that subsection that he or she wishes the Commission to hold a conference in relation to the draft notice, the Commission shall appoint a date (being not later than 30 days after the expiration of that period), time and place for the holding of the conference and give notice of the date, time and place so appointed to each of the persons to whom a notice was sent under subsection (2).
(6) At the conference:
(a) the Commission shall be represented by a member or members of the Commission (being a member or members who participated in the preparation of the draft notice) nominated by the Chairperson; and
(b) each person to whom a notice was sent under subsection (2) and any other interested person whose presence at the conference is considered by the Commission to be appropriate is entitled to attend and participate personally or, in the case of a body corporate, may be represented by a person who, or by persons each of whom, is a director, officer or employee of the body corporate; and
(c) a person participating in the conference in accordance with paragraph (a) or (b) is entitled to have another person or other persons present to assist him or her but a person who so assists another person at the conference is not entitled to participate in the discussion; and
(e) no other person is entitled to be present.
(7) A member of the Commission participating in the conference shall make such record of the discussions as is sufficient to set out the matters raised by the persons participating in the conference.
(8) The member of the Commission who represents the Commission at the conference, or, if the Commission is represented by more than one member of the Commission, one of those members appointed by the Chairperson:
(a) may exclude from the conference any person who uses insulting language at the conference, creates, or takes part in creating or continuing, a disturbance at the conference or repeatedly interrupts the conference;
(b) may terminate the conference when he or she is of the opinion that a reasonable opportunity has been given for the expression of the views of persons participating in the conference (other than persons excluded from the conference under paragraph (a)); and
(c) shall give a certificate certifying the day on which the first notification under subsection (5) in relation to the draft notice was received by the Commission and the day on which the conference terminated;
and any such certificate shall be received in all courts as prima facie evidence of the matters certified.
(9) A document purporting to be a certificate referred to in subsection (8) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.
(10) The Commission must take account of all matters raised at the conference.
(10A) After the conference, the Commission must decide whether or not to give a notice under subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A).
(11) For the purposes of this section, interested person means a person who has notified the Commission in writing that he or she, or a specified unincorporated association of which he or she is a member, claims to have an interest in the matter, being an interest that, in the opinion of the Commission, is real and substantial.
(12) Where the Commission is of the opinion that two or more notices given to the Commission under subsection 93(1) or 93AB(1A) or (1) by the same person, or by persons being bodies corporate that are related to each other, deal with substantially similar conduct or proposed conduct, the Commission may treat the notices as if they constituted a single notice and may prepare one draft notice in relation to the notices so given to the Commission and hold one conference in relation to that draft notice.
Subdivision D—Register of notifications
95 Register of notifications
(1) The Commission shall keep a register containing:
(aa) notices relating to voluntary industry codes given to the Commission pursuant to regulations made under section 51AE (including notices that have been withdrawn pursuant to those regulations); and
(a) draft notices, and summaries of reasons, by the Commission furnished to any person under section 93A; and
(b) records of conferences made in accordance with subsection 93A(7) and certificates in relation to conferences given under subsection 93A(8); and
(c) notices (including notices that have been withdrawn) given to the Commission under section 93 or 93AB; and
(d) documents furnished to the Commission in relation to such notices; and
(e) particulars of any oral submissions made to the Commission in relation to such notices; and
(f) particulars of notices given by the Commission to corporations in relation to notices given by corporations under section 93 or 93AB; and
(g) particulars of any permits given by the Commission under subparagraph 93(7)(b)(i); and
(ga) details of the specification of any day by the Commission under paragraph 93(7C)(b) or (c); and
(gb) details of the specification of any day by the Commission under paragraph 93AD(3)(b).
(2) Where a person furnishes a document to the Commission:
(a) in relation to a notice given to the Commission under section 93 or 93AB; or
(b) in relation to a conference held under Division 3 of Part XI;
or makes an oral submission to the Commission in relation to the notice or the conference, he or she may, at the time when the document is furnished or the submission is made, request that the document or a part of the document, or that particulars of the submission or of part of the submission, be excluded from the register kept under subsection (1) by reason of the confidential nature of any of the matters contained in the document or submission.
(3) Where such a request is made:
(a) if the document or part of the document, or the submission or part of the submission, to which the request relates contains particulars of:
(i) a secret formula or process;
(ii) the cash consideration offered for the acquisition of shares in the capital of a body corporate or of assets of a person; or
(iii) the current costs of manufacturing, producing or marketing goods or services;
the Commission shall exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from the register kept under subsection (1); and
(b) in any other case—the Commission may, if it is satisfied that it is desirable to do so by reason of the confidential nature of matters contained in the document or the part of the document, or in the submission or the part of the submission, exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from that register.
(4) If the Commission refuses a request to exclude a document or a part of a document from the register kept under subsection (1), the Commission shall, if the person who furnished the document to the Commission so requires, return the document or part of the document to him or her and, in that case, paragraph (1)(d) does not apply in relation to the document or part of the document.
(5) Subsection (4) does not apply in relation to a document that was produced to the Minister or the Commission in pursuance of a notice under section 65Q or 155.
(6) If the Commission refuses a request to exclude particulars of an oral submission or of part of an oral submission from the register kept under subsection (1), the person who made the submission may inform the Commission that he or she withdraws the submission or that part of the submission and, in that case, paragraph (1)(e) does not apply in relation to the submission or that part of the submission, as the case may be.
(7) Where the Commission is satisfied that it is desirable to do so for any reason other than the confidential nature of matters contained in a document or submission, the Commission may exclude a document or part of a document referred to in paragraph (1)(d) or particulars referred to in paragraph (1)(e) from the register kept under subsection (1).
(8) If a person requests in accordance with subsection (2) that a document or part of a document, or that particulars of a submission or of part of a submission, be excluded from the register kept under subsection (1), the document or the part of the document, or particulars of the submission or of the part of the submission, shall not be included in that register until the Commission has made a determination in relation to the request.
Division 3—Class exemptions
95AA Commission may determine class exemptions
(1) The Commission may, by legislative instrument, determine that one or more specified provisions of Part IV do not apply to a kind of conduct specified in the determination, if the Commission is satisfied in all the circumstances:
(a) that conduct of that kind would not have the effect, or would not be likely to have the effect, of substantially lessening competition; or
(b) that conduct of that kind would result, or would be likely to result, in a benefit to the public that would outweigh the detriment to the public that would result, or would be likely to result, from conduct of that kind.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) The Commission may specify in the determination any one or more of the following limitations:
(a) a limitation to persons of a specified kind;
(b) a limitation to circumstances of a specified kind;
(c) a limitation to conduct that complies with specified conditions.
(3) The determination must specify the period, ending no later than the end of the period of 10 years beginning on the day it is made, for which it is to be in force.
(4) The determination:
(a) enters into force on the day it is made or on such later day (if any) as is specified in the determination; and
(b) ceases to be in force at the earlier of the following times:
(i) if the determination is revoked—at the time the revocation takes effect;
(ii) at the end of the period specified under subsection (3) of this section.
(5) While the determination remains in force, but subject to section 95AB and any limitations specified under subsection (2), the provisions of Part IV specified in the determination do not apply in relation to conduct of the kind specified in the determination.
(6) Despite subsection 44(1) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a legislative instrument made under subsection (1) of this section.
95AB Commission may withdraw the benefit of class exemption in particular case
(1) The Commission may give a person a written notice if:
(a) a determination in force under section 95AA specifies a kind of conduct; and
(b) the Commission is satisfied that particular conduct of that kind engaged in by the person:
(i) would have the effect, or would be likely to have the effect, of substantially lessening competition; and
(ii) would not result or be likely to result in a benefit to the public that would outweigh the detriment to the public that would result, or would be likely to result, from the conduct.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) The Commission must, in or with the notice under subsection (1), give the person a written statement of its reasons for giving the notice.
(3) While a notice under subsection (1) is in force, the determination does not apply to the conduct specified in the notice engaged in by the person.
(4) The notice under subsection (1):
(a) comes into force at the time the Commission gives the person the notice; and
(b) ceases to be in force at the earliest of the following times:
(i) if the Tribunal sets it aside under subsection 102(5G)—at the end of the day on which the Tribunal sets it aside;
(ii) if the Commission revokes the notice—when it is revoked;
(iii) the time the determination under section 95AA ceases to be in force.
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:
(i) a law of the Commonwealth, other than the Northern Territory (Self‑Government) Act 1978 (or a law made under, or continued in force by, that Act); or
(ii) another law as in force in Norfolk Island, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; 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
(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.
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.
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
(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 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
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
(f) in a Territory (other than the Northern Territory); or
(g) in the course of, or in connection with, trade or commerce:
(i) among the States; or
(ii) between a State and a Territory; or
(iii) between 2 Territories;
and not otherwise.
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.
(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.
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;
(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.
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 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.
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, by notifiable instrument, give notice of an inquiry it is to hold.
Notice to particular person or persons
(3) If the inquiry is to be held in relation to the supply of goods or services by a particular person or persons, the inquiry body must, as soon as practicable, give the person, or each of the persons, a notice in writing.
Content of notice
(4) A notice under this section must:
(a) state that the inquiry body is to hold the inquiry; and
(b) specify the matter or matters in relation to which the inquiry is to be held; and
(c) specify the time and place at which the inquiry is to start; and
(d) in the case of a notice under subsection (3)—set out the effect of section 95N; and
(e) specify any other matter prescribed by the regulations.
95M Notice of extension of period for completing inquiry
If:
(a) an inquiry is being held in relation to the supply of goods or services of a particular description by a particular person or persons; and
(b) the Minister extends, or further extends, the period within which the inquiry is required to be completed and a report on the inquiry given to the Minister;
the inquiry body must, as soon as possible, give the person, or each of the persons, a notice in writing giving details of the extension or further extension.
95N Price restrictions
(1) This section applies if an inquiry body gives a person a business notice stating that it is to hold an inquiry in relation to the supply by the person of goods or services of a particular description.
Offence: previous local supply
(2) The person commits an offence if:
(a) before the applicable day in relation to the business notice, the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions; and
(b) the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the period of 12 months before the current supply; and
(c) the current supply is at a price that exceeds the highest price at which the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in that period; and
(d) in a case where a notice has been given to the person under subsection (5)—the current supply is not in accordance with the notice.
Penalty: 100 penalty units.
Offence: no previous local supply
(3) The person commits an offence if:
(a) before the applicable day in relation to the business notice, the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions; and
(b) the person has not supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the period of 12 months before the current supply, but has supplied goods or services of that description elsewhere in Australia on the same or substantially similar terms and conditions in that period; and
(c) the current supply is at a price that exceeds the highest price at which the person has supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in that period; and
(d) in a case where a notice has been given to the person under subsection (5)—the current supply is not in accordance with the notice.
Penalty: 100 penalty units.
Offence: no previous supply in Australia
(4) The person commits an offence if:
(a) before the applicable day in relation to the business notice, the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions; and
(b) the person has not supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in the period of 12 months before the current supply; and
(c) in a case where a notice has been given to the person under subsection (5)—the current supply is not in accordance with the notice.
Penalty: 100 penalty units.
Approval to increase prices
(5) The Commission may give the person a notice in writing stating that the person is permitted, during the period:
(a) beginning on a specified day; and
(b) ending at the beginning of the applicable day in relation to the business notice;
to supply goods or services of a specified description in a specified locality on specified terms and conditions at a price not exceeding a specified price.
(6) The Commission may give a notice under subsection (5) on its own initiative or on the application of the person.
Consultation
(7) In an external inquiry, the Commission must consult the body holding the inquiry before giving a notice under subsection (5).
Definition
(8) In this section:
applicable day, in relation to a business notice, means the 14th day after whichever is the earlier of the following days:
(a) the day on which the person given the notice receives a copy of the report by the inquiry body on the inquiry to which the notice relates;
(b) the last day of the period within which the inquiry body is required to complete the inquiry to which the notice relates and to give the Minister a report on the inquiry.
Subdivision B—Reports on inquiries
95P Copies of report to be made available
Inquiry into supply of goods or services by particular persons
(1) For an inquiry held in relation to the supply of goods or services by a particular person or persons, the inquiry body must send the person, or each of the persons, a copy of the report on the inquiry on the day on which it gives the Minister the report.
(2) A copy of a report sent to a person must be accompanied by a notice in writing setting out the effect of section 95Q.
All inquiries
(3) For any inquiry, the inquiry body must, unless the Minister directs otherwise, make copies of the report on the inquiry available for public inspection as soon as practicable after the period of 28 days beginning on the day on which it gives the Minister the report.
95Q Notification of proposed prices after receipt of report
(1) This section applies if a person receives a copy of a report on an inquiry held in relation to the supply by the person of goods or services of a particular description.
Price notification
(2) The person must, within 14 days after receiving the copy, give the Commission a notice in writing specifying the price or prices at which the person is supplying, or proposing to supply, goods or services of that description.
Offence
(3) A person commits an offence if the person contravenes subsection (2).
Penalty: 10 penalty units.
Public notification
(4) The Commission must, within 14 days after it receives the notice under subsection (2), make publicly available details of the price or prices specified in the notice.
Subdivision C—Procedure at inquiries
95R Public inquiries etc.
Public inquiries
(1) An inquiry body must hold an inquiry in public, unless the Minister directs otherwise.
Taking of evidence
(2) The inquiry body may take evidence in private at an inquiry held in public if:
(a) a witness objects to giving, in public, evidence that the inquiry body is satisfied is of a confidential nature; and
(b) the inquiry body considers that it is desirable to do so.
(3) The inquiry body may permit a person appearing as a witness at the inquiry to give evidence by giving, and verifying by oath or affirmation, a written statement.
(4) If a statement is so given in an inquiry held in public, the inquiry body must make available to the public in such manner as it thinks fit the contents of the statement other than any matter:
(a) that the person who gave the evidence objects to being made public; and
(b) the evidence of which the body is satisfied would have been taken in private if that evidence had been given orally and the person had objected to giving it in public.
Written submissions
(5) The inquiry body may require or permit a person desiring to make a submission to the body to make the submission in writing.
(6) If a submission is so made in an inquiry held in public, the inquiry body must make available to the public in such manner as it thinks fit the contents of the submission.
Procedure
(7) The procedure to be followed at an inquiry is within the discretion of the inquiry Chair. The inquiry body is not bound by the rules of evidence.
(8) Subsection (7) operates:
(a) subject to this Part; and
(b) in any case—subject to any direction given to the inquiry body by the Minister; and
(c) in an inquiry held by the Commission and at which the inquiry Chair is not the Chairperson—subject to any direction given to the inquiry Chair by the Chairperson.
Note: See also section 95ZN (about confidentiality of information).
95S Taking of evidence on oath or affirmation
Evidence on oath or affirmation
(1) An inquiry body may take evidence at an inquiry on oath or affirmation.
(2) An oath or affirmation may be administered by:
(a) in an inquiry by the Commission—a member of the Commission; or
(b) in an external inquiry—the person presiding at the inquiry.
Summons
(3) The inquiry Chair may, by writing signed by him or her, summon a person to appear at an inquiry to give evidence and to produce such documents (if any) as are specified in the summons.
(4) In an inquiry by the Commission, the power conferred on the inquiry Chair by subsection (3) may, at his or her discretion, be exercised on the application of another person.
95T Failure of witness to attend
(1) A person commits an offence if:
(a) the person is given a summons to appear as a witness at an inquiry; and
(b) the person fails to attend as required by the summons or fails to appear and report himself or herself from day to day; and
(c) the person has not been excused, or released from further attendance, by:
(i) in an inquiry by the Commission—a member of the Commission; or
(ii) in an external inquiry—the person presiding at the inquiry.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
95U Refusal to be sworn or to answer question
(1) A person appearing as a witness at an inquiry must not:
(a) refuse or fail to swear an oath or to make an affirmation if required to do so by:
(i) in an inquiry by the Commission—a member of the Commission; or
(ii) in an external inquiry—the person presiding at the inquiry; or
(b) refuse or fail to answer a question that he or she is required to answer by the inquiry Chair; or
(c) refuse or fail to produce a document that he or she was required to produce by a summons under this Part given to him or her.
Penalty: 10 penalty units.
(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.
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 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.
95Z Price restrictions
Offence: previous local supply
(1) A person commits an offence if:
(a) the person is a declared person in relation to notified goods or services; and
(b) the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions (the actual terms) at a particular price (the actual price); and
(c) the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the period of 12 months before the current supply; and
(d) the actual price exceeds the highest price at which the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in that period; and
(e) the current supply is not an exempt supply.
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this offence.
Offence: no previous local supply
(2) A person commits an offence if:
(a) the person is a declared person in relation to notified goods or services; and
(b) the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions (the actual terms) at a particular price (the actual price); and
(c) the person has not supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the period of 12 months before the current supply, but has supplied goods or services of that description elsewhere in Australia on the same or substantially similar terms and conditions in that period; and
(d) the actual price exceeds the highest price at which the person has supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in that period; and
(e) the current supply is not an exempt supply.
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this offence.
Offence: no previous supply in Australia
(3) A person commits an offence if:
(a) the person is a declared person in relation to notified goods or services; and
(b) the person supplies (the current supply) goods or services of that description in a locality on particular terms and conditions (the actual terms) at a particular price (the actual price); and
(c) the person has not supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in the period of 12 months before the current supply; and
(d) the current supply is not an exempt supply.
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this offence.
Defence
(4) Subsection (1), (2) or (3) does not apply if the following 4 requirements are satisfied.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
Locality notice
(5) The first requirement is that the person has given the Commission a notice (a locality notice) in writing stating that the person proposes to supply goods or services of that description in that locality on specified terms and conditions (the proposed terms) at a specified price (the proposed price).
Note: The person may give further notices modifying the locality notice: see section 95ZA.
Response to locality notice
(6) The second requirement is that:
(a) the applicable period in relation to the locality notice has ended; or
(b) the Commission has given the person a notice in writing stating that it has no objection to the person supplying goods or services of that description in that locality on the proposed terms at the proposed price; or
(c) both of the following apply:
(i) the Commission has given the person a notice (the response notice) in writing stating that it would have no objection to the person supplying goods or services of that description in that locality on the proposed terms at a specified price (the approved price) that is less than the proposed price;
(ii) the person has, not later than 7 days after being given the response notice, given the Commission a notice in writing stating that the person proposes to supply goods or services of that description in that locality on the proposed terms at a price not exceeding the approved price.
Actual terms
(7) The third requirement is that the actual terms are the same as, or substantially similar to, the proposed terms.
Actual price
(8) The fourth requirement is that the actual price does not exceed:
(a) if paragraph (6)(a) or (b) applies—the proposed price; or
(b) if paragraph (6)(c) applies—the approved price.
95ZA Later notices modifying a locality notice
(1) If a person gives the Commission a locality notice, the person may give the Commission one or more further notices in writing stating that the locality notice is to have effect as if there were substituted for the proposed price another specified price.
(2) A price specified in a notice under subsection (1) must be:
(a) less than the proposed price; and
(b) less than the price specified in any previous notice under that subsection in relation to the locality notice.
(3) If a notice is given under subsection (1), the locality notice has effect accordingly.
(4) In this section:
proposed price has the meaning given by subsection 95Z(5).
95ZB Applicable period in relation to a locality notice
(1) The applicable period in relation to a locality notice is the period (the price‑freeze period) of 21 days starting on the day on which the notice was given.
(2) However, the Commission may, with the consent of the person who gave the locality notice, determine, before the end of the price‑freeze period, that the applicable period in relation to the notice for the purposes of this section is a specified longer period.
(3) If the Commission so determines, that longer period is taken to become the applicable period in relation to the locality notice.
(4) Also, if the Commission has given a response notice, the period that is the applicable period (worked out under subsections (1) to (3)) in relation to the locality notice is taken to be increased by a period of 14 days.
Example: On 1 May the person gives the Commission a locality notice.
Under subsection (1), the applicable period ends on 21 May.
On 9 May the Commission, with the consent of the person, determines, under subsection (2), that the applicable period ends on 31 May.
If the Commission also gives the person a response notice, under subsection (4), the applicable period instead of ending on 31 May ends on 14 June.
95ZC Register of price notifications
Keeping of register
(1) The Commission must keep, at such place as it thinks fit, a register for the purposes of this section.
Information on the register
(2) If a person has given the Commission a locality notice, the Commission must, as soon as practicable after the end of the applicable period in relation to the notice, include in the register:
(a) a copy of the notice, on which has been endorsed, or to which has been attached, a statement indicating the outcome of the Commission’s consideration of the notice (including any action taken by it in relation to the notice and the outcome of any such action); and
(b) a copy of each notice given under this Part to, or by, the Commission in relation to the locality notice; and
(c) a statement of the reasons for the outcome of the Commission’s consideration of the locality notice.
Gazette notice
(3) The Commission must, within 3 months after the end of the applicable period in relation to the locality notice, cause to be published in the Gazette a notice:
(a) stating that the Commission received the locality notice and specifying the date it received the notice; and
(b) setting out such particulars (if any) relating to the outcome of the Commission’s consideration of the locality notice as it considers appropriate.
Exclusion of confidential information
(4) A person who gives the Commission a document in relation to a locality notice, or who makes an oral submission to the Commission in relation to such a notice, may ask it to exclude from a document to be placed in the register any information:
(a) that was in the document given by the person or in the submission made by the person; and
(b) that the person claims is confidential.
(5) The Commission may exclude the information if it is satisfied that the claim is justified and is not of the opinion that disclosure of the information is necessary in the public interest.
(6) An application may be made to the Administrative Appeals Tribunal for the review of a decision under subsection (5) to refuse to exclude the information.
Inspection of register
(7) A person may, at any time during ordinary office hours in the place where the register is kept, inspect or make copies of, or take extracts from, the register.
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).
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.
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.
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.
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 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.
(3A) A member of the Commission may vary a notice under subsection (1) to extend, or further extend, the period.
(3B) Subsection (3A) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a notice under subsection (1) of this section.
Offence: refusal or failure to comply with notice
(4) A person commits an offence if the person refuses or fails to comply with a notice given to the person under this section.
Penalty: 20 penalty units.
(5) Subsection (4) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
(6) It is a reasonable excuse for the purposes of subsection (4) for an individual to refuse or fail to give information or produce a document on the ground that the information or production of the document might tend to incriminate the individual or to expose the individual to a penalty.
(7) Subsection (6) does not limit what is a reasonable excuse for the purposes of subsection (5).
Offence: false or misleading declarations
(8) A person must not, in a declaration made for the purposes of paragraph (1)(g), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.
Penalty: 20 penalty units.
Making information or documents publicly available
(9) If:
(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).
Delegation
(10) A member of the Commission may, by writing, delegate the member’s powers under subsection (3A) to a member of the staff of the Commission who is an SES employee or an acting SES employee.
Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee.
Note 2: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(11) In performing a function, or exercising a power, under a delegation, the delegate must comply with any directions of the member.
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.
(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
(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 commits an offence if:
(a) the person:
(i) makes a copy or other record of any protected information or of all or part of any protected document; or
(ii) discloses any protected information to another person or to a court; or
(iii) produces all or part of a protected document to another person or to a court; and
(b) in doing so, the person is not acting in the course of performing or exercising functions, powers or duties under or in relation to this Act.
Penalty: Imprisonment for 2 years.
Courts
(2) An entrusted person cannot be required to:
(a) disclose any protected information to a court; or
(b) produce all or part of a protected document to a court;
unless that disclosure or production is necessary for the purpose of carrying into effect the provisions of this Act.
Definitions
(3) In this section:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
entrusted person means a person who is or was:
(a) a member of the Commission or an associate member of the Commission; or
(b) a member of the staff of the Commission; or
(c) appointed or engaged under the Public Service Act 1999.
produce includes permit access to.
protected document means a document that:
(a) is given to or otherwise acquired by the Commission for the purposes of this Part; and
(b) has not been made available to the public by the Commission under this Part.
protected information means information that:
(a) is disclosed to, or obtained by, an entrusted person for the purposes of this Part or as permitted by the repealed Part; and
(b) has not been made available to the public under this Part by the Commission and is not contained in oral evidence given in public at the hearing of an inquiry.
repealed Part means Part V of the Prices Surveillance Act 1983, as continued in operation by Schedule 2 to the Trade Practices Legislation Amendment Act 2003.
95ZPA Disclosure of protected information to the Energy Department
(1) An authorised entrusted person may disclose protected information to the Energy Department if the Chairperson is satisfied that the information will enable or assist an officer of the Energy Department to perform or exercise any function or power under the Petroleum and Other Fuels Reporting Act 2017 or the Fuel Security Act 2021.
(2) The Chairperson may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (1).
(3) An instrument under subsection (2) is not a legislative instrument.
Delegation
(4) The Chairperson may, by writing, delegate any or all of his or her powers under subsection (1) or (2) to:
(a) another member of the Commission; or
(b) a member of the staff of the Commission who is an SES employee or an acting SES employee.
Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee.
Note 2: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(5) In performing a function, or exercising a power, under a delegation, the delegate must comply with any directions of the Chairperson.
(6) This section has effect despite anything in section 95ZN.
Definitions
(7) In this section:
authorised entrusted person means an entrusted person authorised by the Chairperson, in writing, for the purposes of this definition.
Energy Department means the Department administered by the Minister administering the Petroleum and Other Fuels Reporting Act 2017.
protected information has the same meaning as in section 95ZP.
95ZQ Secrecy: persons involved in inquiries by bodies other than the Commission
Offence
(1) An external person commits an offence if:
(a) the person:
(i) makes a copy or other record of any protected information or of all or part of any protected document; or
(ii) discloses any protected information to another person or to a court; or
(iii) produces all or part of a protected document to another person or to a court; and
(b) in doing so, the person is not acting in the course of performing or exercising functions, powers or duties under or in relation to this Act.
Penalty: Imprisonment for 2 years.
Courts
(2) An external person cannot be required to:
(a) disclose any protected information to a court; or
(b) produce all or part of a protected document to a court;
unless that disclosure or production is necessary for the purpose of carrying into effect the provisions of this Act.
Definitions
(3) In this section:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
external person means a person who is or was:
(a) the person presiding at an external inquiry; or
(b) a person providing assistance in such an inquiry to the body holding the inquiry.
produce includes permit access to.
protected document means a document that:
(a) is given to or otherwise acquired by the body holding the external inquiry concerned for the purposes of that inquiry; and
(b) has not been made available to the public by that body under this Part.
protected information means information that:
(a) is disclosed to, or obtained by, an external person for the purposes of the inquiry concerned; and
(b) has not been made available to the public under this Part by the body holding that inquiry and is not contained in oral evidence given in public at the hearing of that inquiry.
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 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.
(6) For the purposes of subsection (3), anything done by a person acting on behalf of, or by arrangement with, the supplier shall be deemed to have been done by the supplier.
(7) A reference in any of paragraphs (3)(a) to (e), inclusive, including a reference in negative form, to the selling of goods at a price less than a price specified by the supplier shall be construed as including references to:
(a) the advertising of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be advertised for sale;
(b) the displaying of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be displayed for sale; and
(c) the offering of goods for sale at a price less than a price specified by the supplier as the price below which the goods are not to be offered for sale;
and a reference in paragraph (3)(d), (e) or (f) to a price below which the goods are not to be sold shall be construed as including a reference to the price below which the goods are not to be advertised for sale, to the price below which the goods are not to be displayed for sale and to the price below which the goods are not to be offered for sale.
(8) Subsection (1) does not apply with respect to any act referred to in a paragraph of subsection (3) if the supplier and the second person referred to in that paragraph are bodies corporate that are related to each other.
96A Resale price maintenance in relation to services
(1) This Part applies to conduct in relation to services in a way that corresponds to the way it applies to conduct in relation to goods.
(2) For the purposes of subsection (1), this Part is to be read with appropriate modifications, including the following modifications:
(a) references in this Part to goods are to be read as references to services;
(b) references to the sale of goods are to be read as references to the re‑supply of services.
97 Recommended prices
For the purposes of paragraph 96(3)(b), the supplier is not to be taken as inducing, or attempting to induce, a second person as mentioned in that paragraph in relation to any goods:
(a) by reason only of a statement of a price being applied to the goods as mentioned in paragraph 99(1)(a) or being applied to a covering, label, reel or thing as mentioned in paragraph 99(1)(b), provided that the statement is preceded by the words “recommended price”; or
(b) by reason only of his or her having given notification in writing to the second person (not being a notification by way of a statement being applied as mentioned in paragraph (a)) of the price that he or she recommends as appropriate for the sale of those goods, provided that there is included in the notification, and in each writing that refers, whether expressly or by implication, to the notification, a statement to the following effect:
“The price set out or referred to herein is a recommended price only and there is no obligation to comply with the recommendation.”.
98 Withholding the supply of goods
(1) For the purposes of paragraph 96(3)(d) or (e), the supplier shall be deemed to withhold the supply of goods to another person if:
(a) the supplier refuses or fails to supply those goods to, or as requested by, the other person;
(b) the supplier refuses to supply those goods except on terms that are disadvantageous to the other person;
(c) in supplying goods to the other person, the supplier treats that person less favourably, whether in respect of time, method or place of delivery or otherwise, than the supplier treats other persons to whom the supplier supplies the same or similar goods; or
(d) the supplier causes or procures a person to withhold the supply of goods to the other person as mentioned in paragraph (a), (b) or (c) of this subsection.
(2) Paragraph 96(3)(d) does not apply in relation to the withholding by the supplier of the supply of goods to another person who, within the preceding year, has sold goods obtained, directly or indirectly, from the supplier at less than their cost to that other person:
(a) for the purpose of attracting to the establishment at which the goods were sold persons likely to purchase other goods; or
(b) otherwise for the purpose of promoting the business of that other person.
(3) For the purposes of subsection (2), there shall be disregarded:
(a) a genuine seasonal or clearance sale of goods that were not acquired for the purpose of being sold at that sale; or
(b) a sale of goods that took place with the consent of the supplier.
99 Statements as to the minimum price of goods
(1) For the purposes of paragraph 96(3)(f), if:
(a) a statement is applied to goods, whether by being woven in, impressed on, worked into or annexed or affixed to the goods or otherwise;
(b) a statement is applied to a covering, label, reel or thing in or with which goods are supplied; or
(c) a statement is used in a sign, advertisement, invoice, catalogue, business letter, business paper, price list or other document or otherwise in a manner likely to lead to the belief that it refers to goods;
the statement shall be deemed to have been used in relation to those goods.
(2) For the purposes of subsection (1), covering includes a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper and label includes a band or ticket.
100 Evidentiary provisions
(1) Where, in proceedings under this Act by a person (in this section referred to as the plaintiff) against another person (in this section referred to as the defendant), it is claimed that the defendant has engaged in the practice of resale price maintenance and it is established that:
(a) the defendant has acted, in relation to the plaintiff, as mentioned in paragraph 98(1)(a), (b), (c) or (d);
(b) during a period ending immediately before the time when the defendant so acted, the defendant had been supplying goods of the kind withheld to the plaintiff or to another person carrying on a business similar to that of the plaintiff; and
(c) during the period of 6 months immediately before the time when the defendant so acted, the defendant became aware of a matter or circumstance capable of constituting a reason referred to in paragraph 96(3)(d) or (e) for the defendant’s so acting;
then, subject to subsection (2), it shall be presumed, unless the contrary is established, that that matter or circumstance was the reason for the defendant’s so acting.
(2) Subsection (1) does not apply where the plaintiff establishes the matter mentioned in paragraph 98(1)(b) or (c) but the terms disadvantageous to the plaintiff, or the less favourable treatment of the plaintiff, consisted only of a requirement by the defendant as to 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).
Part IX—Review by Tribunal of Determinations of Commission
Division 1—Applications for review
101 Applications for review
(1) A person dissatisfied with a determination by the Commission under Division 1 of Part VII:
(a) in relation to an application for an authorization or a minor variation of an authorization; or
(b) in relation to the revocation of an authorization, or the revocation of an authorization and the substitution of another authorization;
may, as prescribed and within the time allowed by or under the regulations or under subsection (1B), as the case may be, apply to the Tribunal for a review of the determination.
(1AAA) Subsection (1) does not apply to a determination under subsection 89(1A).
(1AA) If:
(a) the person applying under subsection (1) for review of a determination was the applicant for an authorization, or for the minor variation of an authorization, for the revocation of an authorization or for the revocation of an authorization and the substitution of another authorization; or
(b) the Tribunal is satisfied that the person has a sufficient interest;
the Tribunal must review the determination.
(1A) Where a person has, whether before or after the commencement of this subsection, made an application under subsection (1) for a review of a determination, the Tribunal may, if the Tribunal determines it to be appropriate, make a determination by consent of the applicant, the Commission, and all persons who have been permitted under subsection 109(2) to intervene in the proceedings for review, whether or not the Tribunal is satisfied of the matters referred to in subsection 90(7).
(1B) A presidential member may, on the application of a person concerned:
(a) in an application for an overseas merger authorisation; or
(b) in an application for a minor variation or a revocation of such an authorization; or
(c) in an application for the revocation of such an authorization and the substitution of another authorization;
shorten the time allowed by or under the regulations within which an application under subsection (1) may be made for a review of the determination by the Commission of the application referred to in paragraph (a), (b) or (c) if the member is satisfied that special circumstances exist and that, in all the circumstances, it would not be unfair to do so.
(1C) The regulations may make it a requirement that a person applying under subsection (1) for review of a determination relating to a merger authorisation give an undertaking under section 87B that the person will not make the acquisition to which the authorisation relates while the Tribunal is considering the application.
(2) A review by the Tribunal is a re‑hearing of the matter, unless it is a review of a determination by the Commission:
(a) in relation to an application for a merger authorisation or a minor variation of a merger authorisation; or
(b) in relation to the revocation of a merger authorisation, or the revocation of a merger authorisation and the substitution of another merger authorisation.
(3) Subsections 90(7), 91A(4) and (4A), 91B(5) and 91C(7) apply in relation to the Tribunal in like manner as they apply in relation to the Commission.
101A Application for review of notices under Division 2 of Part VII
A person dissatisfied with the giving of a notice by the Commission under subsection 93(3), (3A) or (3B), 93AAA(1), 93AC(1), (2) or (2A), 93ACA(1), 93AD(5) or 93AG(7) may, as prescribed and within the time allowed by or under the regulations, apply to the Tribunal for a review of the giving of the notice and, if the person was the person to whom the notice was given or the Tribunal is satisfied that the person has a sufficient interest, the Tribunal shall review the giving of the notice.
101B Application for review of notice under section 95AB
(1) A person dissatisfied with the giving of a notice under section 95AB may, as prescribed and within the time allowed by or under the regulations, apply to the Tribunal for a review of the giving of the notice.
(2) If the person is the person to whom the notice was given or the Tribunal is satisfied that the person has a sufficient interest, the Tribunal must review the giving of the notice.
102 Functions and powers of Tribunal
(1) On a review of a determination of the Commission under Division 1 of Part VII in relation to:
(a) an application for an authorization; or
(b) an application for a minor variation of an authorization; or
(c) an application for, or the Commission’s proposal for, the revocation of an authorization; or
(d) an application for, or the Commission’s proposal for, the revocation of an authorization and the substitution of another authorization;
the Tribunal may make a determination affirming, setting aside or varying the determination of the Commission and, for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.
Note: Subsections (9) and (10) contain limitations in relation to determinations relating to merger authorisations.
(1AA) If a person applies to the Tribunal for review of a determination of the Commission relating to:
(a) the grant of a merger authorisation (a domestic merger authorisation) that is not an overseas merger authorisation; or
(b) the minor variation, or the revocation, of a domestic merger authorisation; or
(c) the revocation of a domestic merger authorisation and the substitution of another domestic merger authorisation;
the Tribunal must make its determination on the review within the period applying under subsection (1AC) (the relevant period).
(1AB) If the Tribunal has not made its determination on the review of a determination of the Commission mentioned in subsection (1AA) within the relevant period, the Tribunal is taken to have made a determination affirming the Commission’s determination.
(1AC) The period applying under this subsection is as follows:
(a) unless paragraph (b) or (c) applies—90 days;
(b) if the Tribunal allows new information, documents or evidence under subsection (9), and paragraph (c) does not apply—120 days;
(c) if an extended period is determined under subsection (1AD)—that extended period;
beginning on the day the Tribunal receives the application for review.
(1AD) Before the end of the period (the initial period) otherwise applying under paragraph (1AC)(a) or (b) for the review, the Tribunal may determine in writing that:
(a) the matter cannot be dealt with properly within the initial period, either because of its complexity or because of other special circumstances; and
(b) an extended period applies for the review, which consists of the initial period and a further specified period of not more than 90 days.
The Tribunal must, before the end of the initial period, notify the applicant and the Commission of any determination under this subsection.
(1A) If a person applies to the Tribunal for review of a determination of the Commission relating to:
(a) the grant of an overseas merger authorisation; or
(b) the minor variation, or the revocation, of an overseas merger authorisation; or
(c) the revocation of an overseas merger authorisation and the substitution of another overseas merger authorisation;
the Tribunal must make its determination on the review within 60 days after receiving the application for review.
(1B) The 60 day time limit in subsection (1A) does not apply if the Tribunal considers that the matter cannot be dealt with properly within that period of 60 days, either because of its complexity or because of other special circumstances.
(1C) If subsection (1B) applies, the Tribunal must notify the applicant before the end of the 60 day period that the matter cannot be dealt with properly within that period.
(2) A determination by the Tribunal affirming, setting aside or varying a determination of the Commission under Division 1 of Part VII in relation to:
(a) an application for an authorization; or
(b) an application for a minor variation of an authorization; or
(c) an application for, or the Commission’s proposal for, the revocation of an authorization; or
(d) an application for, or the Commission’s proposal for, the revocation of an authorization and the substitution of another authorization;
is, for the purposes of this Act other than this Part, to be taken to be a determination of the Commission.
(4) Upon a review of the giving of a notice by the Commission under subsection 93(3):
(a) if the person who applied for the review satisfies the Tribunal that:
(i) the conduct or proposed conduct does not and would not have the purpose, and does not and is not likely to have or would not have and would not be likely to have the effect, of substantially lessening competition (within the meaning of section 47); or
(ii) in all the circumstances:
(A) the conduct or proposed conduct has resulted or is likely to result, or would result or be likely to result, in a benefit to the public; and
(B) that benefit outweighs or would outweigh the detriment to the public that has resulted or is likely to result, or would result or be likely to result, from the conduct or proposed conduct;
the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(5) Where the Tribunal makes a determination setting aside a notice given by the Commission under subsection 93(3), then, after the setting aside of the notice, subsection 93(7) has effect in relation to the conduct referred to in the notice as if the Commission had not given the notice.
(5AAA) Upon a review of the giving of a notice by the Commission under subsection 93(3B):
(a) if the person who applied for the review satisfies the Tribunal that the corporation or other person on whom the conditions relating to the conduct or proposed conduct have been imposed has not failed to comply with those conditions—the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(5AAB) Upon a review of the giving of a notice by the Commission under subsection 93AAA(1):
(a) if the person who applied for the review satisfies the Tribunal that:
(i) apart from section 93AAA, the Commission would not have had grounds referred to in subparagraph 93AAA(1)(b)(i); or
(ii) compliance with the conditions imposed by the notice would not ensure those grounds would not exist;
the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(5AA) Upon a review of the giving of a notice by the Commission under subsection 93AC(1):
(a) if the person who applied for the review satisfies the Tribunal that any benefit to the public that has resulted or is likely to result or would result or be likely to result from the provision outweighs or would outweigh the detriment to the public that has resulted or is likely to result or would result or be likely to result from the provision—the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(5AB) Upon a review of the giving of a notice by the Commission under subsection 93AC(2):
(a) if the person who applied for the review satisfies the Tribunal that:
(i) the provision does not and would not have the purpose, and does not and is not likely to have or would not have and would not be likely to have the effect, of substantially lessening competition (within the meaning of section 45); or
(ii) in all the circumstances:
(A) the provision has resulted or is likely to result, or would result or be likely to result, in a benefit to the public; and
(B) that benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result, or would result or be likely to result, from the provision;
the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(5ABA) Upon a review of the giving of a notice by the Commission under subsection 93AC(2A):
(a) if the person who applied for the review satisfies the Tribunal that the corporation on whom the conditions relating to the conduct or proposed conduct have been imposed has not failed to comply with those conditions—the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(5AC) If the Tribunal sets aside a notice (the objection notice) given by the Commission under subsection 93AC(1), (2) or (2A), then:
(a) if the Commission gave the objection notice as part of a process starting when the Commission gave a notice under subsection 93A(2) (conference notice) during the period described in paragraph 93AD(1)(a)—the Commission is taken for the purposes of paragraph 93AD(1)(b) to have decided not to give the objection notice at the time the Tribunal set it aside; and
(b) for the purposes of subsections 93AD(2) and (3), the objection notice is taken not to have been given.
(5A) The Tribunal must set aside a notice under subsection 93(3A) if the person who applied for a review of the giving of the notice satisfies the Tribunal that the likely benefit to the public from the conduct or proposed conduct to which the notice relates will outweigh the likely detriment to the public from the conduct or proposed conduct.
(5B) The Tribunal must affirm the giving of a notice under subsection 93(3A) if the person who applied for a review of the giving of the notice does not satisfy the Tribunal as described in subsection (5A).
(5C) If the Tribunal sets aside a notice given by the Commission under subsection 93(3A), then:
(a) if the Commission gave the notice as part of a process starting when the Commission gave a notice under subsection 93A(2) during the period described in paragraph 93(7A)(a)—the Commission is taken for the purposes of paragraph 93(7A)(b) to have decided not to give the notice under subsection 93(3A) at the time the Tribunal set aside the notice given under subsection 93(3A); and
(b) for the purposes of subsections 93(7B) and (7C) the notice is taken not to have been given.
(5D) Upon a review of the giving of a notice by the Commission under subsection 93ACA(1):
(a) if the person who applied for the review satisfies the Tribunal that:
(i) apart from section 93ACA, the Commission would not have had grounds referred to in subparagraph 93ACA(1)(b)(i); or
(ii) compliance with the conditions imposed by the notice would not ensure those grounds would not exist;
the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(5E) Upon a review of the giving of a notice by the Commission under subsection 93AD(5):
(a) if the person who applied for the review satisfies the Tribunal that:
(i) the period provided for in subparagraph 93AD(3)(c)(i) in relation to the relevant collective bargaining notice is appropriate in all the circumstances; or
(ii) the other period determined by the Commission under subsection 93AD(5) is not appropriate in all the circumstances;
the Tribunal must make a determination setting aside the notice under subsection 93AD(5); or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(5F) Upon a review of the giving of a notice by the Commission under subsection 93AG(7) extending a period for a further period:
(a) if the person who applied for the review satisfies the Tribunal that in all the circumstances it is not reasonable to extend the period for the further period, the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(5G) Upon a review of the giving of a notice under section 95AB:
(a) if the person who applied for the review satisfies the Tribunal that conduct of the kind specified in the notice:
(i) would not have the effect, or would not be likely to have the effect, of substantially lessening competition; or
(ii) would result, or would be likely to result, in a benefit to the public that would outweigh the detriment to the public that would result, or would be likely to result, from conduct of that kind;
the Tribunal must make a determination setting aside the notice under section 95AB; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(6) For the purposes of a review by the Tribunal under this Division, the member of the Tribunal presiding at the review may require the Commission to furnish such information, make such reports and provide such other assistance to the Tribunal as the member specifies.
(7) For the purposes of a review under this Division, the Tribunal may have regard to any information furnished, documents produced or evidence given to the Commission in connexion with the making of the determination, or the giving of the notice, to which the review relates.
(8) Subsections (9) and (10) apply to a review of a determination of the Commission in relation to:
(a) an application for a merger authorisation; or
(b) an application for a minor variation of a merger authorisation; or
(c) an application for, or the Commission’s proposal for, the revocation of a merger authorisation; or
(d) an application for, or the Commission’s proposal for, the revocation of a merger authorisation and the substitution of another merger authorisation.
(9) For the purposes of the review, the Tribunal may allow a person to provide new information, documents or evidence that the Tribunal is satisfied was not in existence at the time the Commission made the determination.
(10) Despite subsection (1), the Tribunal must not, for the purposes of the review, have regard to any information, documents or evidence other than:
(a) information that was referred to in the Commission’s reasons for making the determination; and
(b) any information or report given to the Tribunal under subsection (6); and
(c) the information, documents or evidence referred to in subsection (7); and
(d) information given to the Tribunal as a result of the Tribunal seeking such relevant information, and consulting with such persons, as it considers reasonable and appropriate for the sole purpose of clarifying the information, documents or evidence referred to in subsection (7); and
(e) any information, documents or evidence referred to in subsection (9).
Division 2—Procedure and Evidence
103 Procedure generally
(1) In proceedings before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations, within the discretion of the Tribunal;
(b) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence.
(2) The powers of the Tribunal with respect to matters of procedure in particular proceedings may be exercised by a presidential member.
(3) The powers mentioned in subsection (2) may be exercised by a presidential member:
(a) whether or not the Tribunal has been constituted under section 37 in relation to the proceedings; and
(b) once the Tribunal is so constituted—whether or not that member is part of the Division of the Tribunal so constituted.
104 Regulations as to certain matters
The regulations may make provision:
(a) for securing, by means of preliminary statements of facts and contentions, and by the production of documents, that all material facts and considerations are brought before the Tribunal by all persons participating in any proceedings before the Tribunal; and
(aa) with respect to evidence in proceedings before the Tribunal, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written report); and
(b) with respect to the representation in any such proceedings of persons having a common interest in the proceedings.
105 Power to take evidence on oath
(1) The Tribunal may take evidence on oath or affirmation and for that purpose a member of the Tribunal may administer an oath or affirmation.
(2) A member of the Tribunal may summon a person to appear before the Tribunal to give evidence and to produce such documents (if any) as are referred to in the summons.
106 Hearings to be in public except in special circumstances
(1) Subject to this section, the hearing of proceedings before the Tribunal shall be in public.
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may:
(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; or
(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents filed or lodged with the Registrar, received in evidence by the Tribunal or placed in the records of the Tribunal.
(3) The powers of the Tribunal under this section may be exercised by the Tribunal as constituted for the purposes of the hearing or by the Tribunal constituted by a presidential member.
107 Evidence in form of written statement
The Tribunal may permit a person appearing as a witness before the Tribunal to give evidence by tendering, and, if the Tribunal thinks fit, verifying by oath or affirmation, a written statement, which shall be filed with the Registrar.
108 Taking of evidence by single member
The Tribunal as constituted for the purposes of any proceedings in which evidence may be taken may authorize a presidential member to take evidence for the purposes of the proceedings on its behalf, with such limitations (if any) as the Tribunal so constituted directs, and, where such an authority is given:
(a) that member may take evidence accordingly; and
(b) for the purposes of this Act, that member shall, in relation to the taking of evidence in accordance with the authority, be deemed to constitute the Tribunal.
109 Participants in proceedings before Tribunal
(1) A person to whom an authorization under Division 1 of Part VII was granted is entitled to participate in any proceedings before the Tribunal instituted by another person in relation to that authorization.
(1A) A person to whom a notice was given by the Commission under subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A) is entitled to participate in any proceedings before the Tribunal instituted by another person in relation to that notice.
(2) The Tribunal may, upon such conditions as it thinks fit, permit a person to intervene in proceedings before the Tribunal.
110 Representation
In proceedings before the Tribunal:
(a) a natural person may appear in person;
(aa) a person other than a body corporate may be represented by an employee of the person approved by the Tribunal;
(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.
