Commonwealth Coat of Arms of Australia

Competition and Consumer Act 2010

No. 51, 1974

Compilation No. 151

Compilation date: 1 May 2024

Includes amendments: Act No. 16, 2024

Registered: 6 May 2024

This compilation is in 4 volumes

Volume 1: sections 1–53ZZC

Volume 2: sections 55–110

Volume 3: sections 10.01–187

Volume 4: Schedules

 Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the Competition and Consumer Act 2010 that shows the text of the law as amended and in force on 1 May 2024 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Selfrepealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

 

 

 

Contents

Part IVC—Payment surcharges

Division 1—Preliminary

55 Object of this Part

55A Definitions

Division 2—Limit on payment surcharges

55B Payment surcharges must not be excessive

Division 3—Information about payment surcharges

55C Surcharge information notices

55D Extending periods for complying with notices

55E Participant must comply with notice

Division 4—Infringement notices

55F Purpose and effect of this Division

55G Issuing an infringement notice

55H Matters to be included in an infringement notice

55J Amount of penalty

55K Effect of compliance with an infringement notice

55L Effect of failure to comply with an infringement notice

55M Infringement notice compliance period for infringement notice

55N Withdrawal of an infringement notice

Part IVD—Consumer data right

Division 1—Preliminary

Subdivision A—Object and simplified outline

56AA Object of this Part

56AB Simplified outline

Subdivision B—Designating sectors subject to the consumer data right

56AC Designated sectors subject to the consumer data right

56AD Minister’s tasks before designating a sector etc.

56AE Secretary must arrange for analysis, consultation and report about an instrument proposing to designate a sector

56AEA Commission must analyse an instrument proposing to designate a sector

56AF Information Commissioner must analyse and report about an instrument proposing to designate a sector

56AH Other matters

Subdivision C—Meanings of key terms

56AI Meanings of CDR data, directly or indirectly derived and CDR consumer

56AJ Meaning of data holder

56AK Meaning of accredited data recipient

56AL Meanings of CDR participant and designated gateway

56AM Meanings of chargeable CDR data, chargeable circumstances and feefree CDR data

Subdivision D—Extension to external Territories and extraterritorial operation

56AN Extension to external Territories

56AO Extraterritorial operation of the CDR provisions

56AP Geographical application of offences

Subdivision E—Application to government entities

56AQ CDR provisions bind the Crown

56AR Government entities may participate under this Part

56AS Participating government entities of a State or Territory—declaration

56AT Participating government entities of a State or Territory—revocation

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

Division 2—Consumer data right

Subdivision A—Power to make consumer data rules

56BA Minister may make consumer data rules

56BAA Rules must include requirement to delete CDR data on request from CDR consumer

56BB Matters that the consumer data rules may deal with

56BC Rules about disclosure, collection, use, accuracy, storage, security or deletion of CDR data for which there are CDR consumers

56BD Limitations for rules about CDR data for which there are CDR consumers

56BE Rules about disclosure, collection, use, accuracy, storage, security or deletion of product data

56BF Limitations for rules about product data

56BG Rules about designated gateways

56BH Rules about accreditation of data recipients

56BI Rules about reporting, record keeping and auditing

56BJ Rules about incidental or related matters

56BK Further limitations on the consumer data rules

Subdivision B—Compliance with consumer data rules

56BL Obligation to comply with consumer data rules

56BM Infringement notices

56BN Misleading or deceptive conduct—offence

56BO Misleading or deceptive conduct—civil penalty

Subdivision C—Process for making consumer data rules etc.

56BP Minister’s tasks before making the rules

56BQ Secretary must arrange for consultation and report before the rules are made

56BR Commission and Information Commissioner must analyse the proposed rules

56BS Emergency rules: public consultation not required etc.

56BT Emergency rules: consequences if made

56BTA Other matters

Subdivision D—Fees for disclosing CDR data

56BU Charging a fee in inappropriate circumstances when required to disclose CDR data

56BV Commission may intervene if fee for disclosing or using chargeable CDR data is unreasonable etc.

56BW Review by the Tribunal of determinations specifying particular CDR participants

56BX Functions and powers of Tribunal

56BY Provisions that do not apply in relation to a Tribunal review

Division 3—Accreditation etc.

Subdivision A—Accreditation process

56CA Granting accreditations

56CB Review of decisions refusing to accredit

56CC Prohibition on holding out—offence

56CD Prohibition on holding out—civil penalty

Subdivision B—Register of Accredited Persons

56CE Register of Accredited Persons

56CF Evidentiary value of the register

Subdivision C—Data Recipient Accreditor

56CG Appointment of the Data Recipient Accreditor

56CH Functions, powers and annual report

56CI Directions by Minister

56CJ Delegation

Subdivision D—Accreditation Registrar

56CK Appointment of the Accreditation Registrar

56CL Functions, powers and annual report

56CM Directions by Minister

56CN Delegation

Division 4—External dispute resolution

56DA Minister may recognise external dispute resolution schemes

Division 5—Privacy safeguards

Subdivision A—Preliminary

56EA Simplified outline

56EB Kinds of CDR data to which the privacy safeguards apply

56EC Relationship with other laws

Subdivision B—Consideration of CDR data privacy

56ED Privacy safeguard 1—open and transparent management of CDR data

56EE Privacy safeguard 2—anonymity and pseudonymity

Subdivision C—Collecting CDR data

56EF Privacy safeguard 3—soliciting CDR data from CDR participants

56EG Privacy safeguard 4—dealing with unsolicited CDR data from CDR participants

56EH Privacy safeguard 5—notifying of the collection of CDR data

Subdivision D—Dealing with CDR data

56EI Privacy safeguard 6—use or disclosure of CDR data by accredited data recipients or designated gateways

56EJ Privacy safeguard 7—use or disclosure of CDR data for direct marketing by accredited data recipients or designated gateways

56EK Privacy safeguard 8—overseas disclosure of CDR data by accredited data recipients

56EL Privacy safeguard 9—adoption or disclosure of government related identifiers by accredited data recipients

56EM Privacy safeguard 10—notifying of the disclosure of CDR data

Subdivision E—Integrity of CDR data

56EN Privacy safeguard 11—quality of CDR data

56EO Privacy safeguard 12—security of CDR data, and destruction or deidentification of redundant CDR data

Subdivision F—Correction of CDR data

56EP Privacy safeguard 13—correction of CDR data

Subdivision G—Compliance with the privacy safeguards

56EQ Information Commissioner to promote compliance etc.

56ER Information Commissioner may conduct an assessment relating to the management and handling of CDR data

56ES Notification of CDR data security breaches

56ET Investigating breaches of the privacy safeguards etc.

56EU Civil penalty provisions

56EV Civil penalty provisions—maximum amount of penalty

56EW Enforceable undertakings

56EX Injunctions

56EY Actions for damages

56EZ Delegation to the Commission etc.

Division 6—Data standards etc.

Subdivision A—Data standards

56FA Making data standards

56FB What data standards can set out etc.

56FC Data standards must be published

56FD Legal effect of data standards

56FE Enforcement of binding data standards

Subdivision B—Data Standards Chair

56FF Data Standards Chair

56FG Appointment of the Data Standards Chair

56FH Functions and powers of the Data Standards Chair

56FI Directions by Minister

Subdivision C—Data Standards Body

56FJ Appointment of the Data Standards Body

56FK Function and powers of the Data Standards Body

Subdivision D—Administrative provisions

56FL Acting appointments

56FM Terms and conditions

56FN Remuneration

56FO Leave

56FP Application of the finance law etc.

56FQ Resignation

56FR Termination of appointment

56FS Delegation

Division 7—Other matters

56GA CDR functions of the Information Commissioner

56GAA Delegation by Secretary

56GAB Concurrent operation of State and Territory laws

56GB Referring to instruments as in force from time to time

56GC Complying with requirements to provide CDR data: protection from liability

56GD Exemptions by the Commission

56GE Exemptions and modifications by regulations

56GF Constitutional basis

56GG Compensation for acquisition of property

56GH Review of the operation of this Part

Part IVE—Motor vehicle service and repair information sharing scheme

Division 1—Objects of Part and simplified outline

57AA Objects of Part

57AB Simplified outline

Division 2—Key concepts

57BA Meaning of scheme vehicle

57BB Meaning of Australian repairer

57BC Meaning of scheme RTO and RTO course

57BD Meaning of scheme information

57BE Meaning of data provider

57BF Meaning of safety and security information

57BG Supply of scheme information between related bodies corporate

Division 3—Supply of scheme information

57CA Scheme information—offer to supply to Australian repairers and scheme RTOs

57CB Scheme information—supply on request by Australian repairers or scheme RTOs

57CC Scheme information—terms and conditions of supply and use

57CD Scheme information—interaction of supply obligations and other rights and obligations

Division 4—Information management

57DA Safety and security information—packaging

57DB Safety and security information—supply to Australian repairers and scheme RTOs

57DC Safety and security information—use or disclosure of sensitive information

57DD Safety and security information—storage of, and access to, sensitive information

57DE Security information—records of access

Division 5—Dispute resolution

57EA Scope of Division

57EB Resolving disputes

57EC Right to bring proceedings unaffected

57ED Attempt to resolve dispute before mediation

57EE When is a party taken to have tried to resolve a dispute?

57EF Mediation

57EG Termination of mediation

57EH Costs of mediation

Division 6—Motor vehicle service and repair information scheme adviser

57FA Scheme adviser—establishment and appointment

57FB Scheme adviser—functions

Division 7—Miscellaneous

57GA Civil penalty provisions

57GB Infringement notices

57GC Concurrent operation of State and Territory laws

57GD Acquisition of property

57GE Scheme rules

Part V—Carbon tax price reduction obligation

Division 1—Preliminary

60 Simplified outline of this Part

60AA Objects etc.

60A Definitions

60B Regulated goods

Division 2—Carbon tax price reduction obligation

60C Price exploitation in relation to the carbon tax repeal

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

60D Notice to entity that is considered to have engaged in price exploitation in relation to the carbon tax repeal

60E Commission may issue notice to aid prevention of price exploitation in relation to the carbon tax repeal

60F Acquisition of property

Division 2A—Carbon tax removal substantiation notices

60FA Carbon tax removal substantiation notices

60FB Extending periods for complying with carbon tax removal substantiation notices

60FC Compliance with carbon tax removal substantiation notices

Division 2B—Carbon tax removal substantiation statements

60FD Carbon tax removal substantiation statements

Division 2C—Statements for customers

60FE Statements for customers

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.

60H Informationgathering powers

60J Reporting

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

Division 5—Infringement notices

60L Issuing an infringement notice

60M Effect of compliance with an infringement notice

60N Effect of failure to comply with an infringement notice

60P Infringement notice compliance period for infringement notice

60Q Withdrawal of an infringement notice

60R Effect of this Division

Part VI—Enforcement and remedies

75B Interpretation

76 Pecuniary penalties

76A Defence to proceedings under section 76 relating to a contravention of section 92

76B Consequences in some cases if substantially the same conduct contravenes a provision of this Act and is an offence

77 Civil action for recovery of pecuniary penalties

77A Indemnification of officers

77B Certain indemnities not authorised and certain documents void

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

78 Criminal proceedings not to be brought for contraventions of Part IV

79 Offences against section 45AF or 45AG

79A Enforcement and recovery of certain fines

79B Preference must be given to compensation for victims

80 Injunctions

80A Price exploitation in relation to the carbon tax repeal—orders limiting prices or requiring refunds of money

80AB Stay of injunctions

80AC Injunctions to prevent mergers if authorisation granted on the basis of false or misleading information

81 Divestiture where merger contravenes section 50 or 50A

81A Divestiture where merger done under authorisation granted on false etc. information

82 Actions for damages

83 Findings and admissions of fact in proceedings to be evidence

84 Conduct by directors, employees or agents

85 Defences

86 Jurisdiction of courts

86AA Limit on jurisdiction of Federal Circuit and Family Court of Australia (Division 2)

86A Transfer of matters

86C Nonpunitive orders

86D Punitive orders—adverse publicity

86E Order disqualifying a person from managing corporations

86F Privilege against exposure to penalty—disqualification from managing corporations

87 Other orders

87AA Special provision relating to Court’s exercise of powers under this Part in relation to boycott conduct

87B Enforcement of undertakings

87C Enforcement of undertakings—Secretary of the Department

87CA Intervention by Commission

Part VIA—Proportionate liability for misleading and deceptive conduct

87CB Application of Part

87CC Certain concurrent wrongdoers not to have benefit of apportionment

87CD Proportionate liability for apportionable claims

87CE Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware

87CF Contribution not recoverable from defendant

87CG Subsequent actions

87CH Joining nonparty concurrent wrongdoer in the action

87CI Application of Part

Part VIB—Claims for damages or compensation for death or personal injury

Division 1—Introduction

87D Definitions

87E Proceedings to which this Part applies

Division 2—Limitation periods

87F Basic rule

87G Date of discoverability

87H Longstop period

87J The effect of minority or incapacity

87K The effect of close relationships

Division 3—Limits on personal injury damages for noneconomic loss

87L Limits on damages for noneconomic loss

87M Maximum amount of damages for noneconomic loss

87N Index numbers

87P Most extreme cases

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

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

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

87T Referring to earlier decisions on noneconomic loss

Division 4—Limits on personal injury damages for loss of earning capacity

87U Personal injury damages for loss of earning capacity

87V Average weekly earnings

Division 5—Limits on personal injury damages for gratuitous attendant care services

87W Personal injury damages for gratuitous attendant care services for plaintiff

87X Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant care services

Division 6—Other limits on personal injury damages

87Y Damages for future economic loss—discount rate

87Z Damages for loss of superannuation entitlements

87ZA Interest on damages

87ZB Exemplary and aggravated damages

Division 7—Structured settlements

87ZC Court may make orders under section 87 for structured settlements

Part VII—Authorisations and notifications

Division 1—Authorisations

87ZP Definitions

88 Commission may grant authorisations

89 Procedure for applications and the keeping of a register

90 Determination of applications for authorisations

90A Commission to afford opportunity for conference before determining application for authorisation

90B Commission may rely on consultations undertaken by the AEMC

91 Grant and variation of authorisations

91A Minor variations of authorisations

91B Revocation of an authorisation

91C Revocation of an authorisation and substitution of a replacement

92 Providing false or misleading information

Division 2—Notifications

Subdivision A—Exclusive dealing and resale price maintenance

93 Notification of exclusive dealing or resale price maintenance

93AAA Imposing conditions relating to notifications

Subdivision B—Collective bargaining

93AA Definitions

93AB Notification of collective bargaining

93AC Commission’s objection notice

93ACA Imposing conditions relating to collective boycott conduct

93AD When collective bargaining notice comes into force and ceases to be in force

93AE Withdrawal of collective bargaining notice

93AEA Only 1 collective bargaining notice under subsection 93AB(1A) may be given

93AF Only 1 collective bargaining notice under subsection 93AB(1) may be given

93AG Stop notice for collective boycott conduct

Subdivision C—Conferences

93A Commission to afford opportunity for conference before giving notice

Subdivision D—Register of notifications

95 Register of notifications

Division 3—Class exemptions

95AA Commission may determine class exemptions

95AB Commission may withdraw the benefit of class exemption in particular case

Part VIIA—Prices surveillance

Division 1—Preliminary

95A Interpretation

95B Exempt supplies

95C Application of Part

95D Crown to be bound

95E Object of this Part

95F Simplified overview of this Part

Division 2—Commission’s functions under this Part

95G Commission’s functions under this Part

Division 3—Price inquiries

Subdivision A—Holding of inquiries

95H Price inquiries

95J Content of inquiry notices

95K Period for completing inquiry

95L Notice of holding of inquiry

95M Notice of extension of period for completing inquiry

95N Price restrictions

Subdivision B—Reports on inquiries

95P Copies of report to be made available

95Q Notification of proposed prices after receipt of report

Subdivision C—Procedure at inquiries

95R Public inquiries etc.

95S Taking of evidence on oath or affirmation

95T Failure of witness to attend

95U Refusal to be sworn or to answer question

95V Protection of witnesses

95W Allowances to witnesses

Division 4—Price notifications

95X Declarations by Minister or Commission

95Y Declarations in relation to State or Territory authorities

95Z Price restrictions

95ZA Later notices modifying a locality notice

95ZB Applicable period in relation to a locality notice

95ZC Register of price notifications

95ZD Delegation by Commission

Division 5—Price monitoring

95ZE Directions to monitor prices, costs and profits of an industry

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

95ZG Exceptions to price monitoring

Division 6—Other provisions

95ZH Ministerial directions

95ZI Inquiries by an unincorporated body or a group of 2 or more individuals

95ZJ Withdrawal of notices

95ZK Power to obtain information or documents

95ZL Inspection of documents etc.

95ZM Retention of documents

95ZN Confidential information

95ZO Immunity

95ZP Secrecy: members or staff members of the Commission etc.

95ZPA Disclosure of protected information to the Energy Department

95ZQ Secrecy: persons involved in inquiries by bodies other than the Commission

Part VIII—Resale price maintenance

96 Acts constituting engaging in resale price maintenance

96A Resale price maintenance in relation to services

97 Recommended prices

98 Withholding the supply of goods

99 Statements as to the minimum price of goods

100 Evidentiary provisions

Part IX—Review by Tribunal of Determinations of Commission

Division 1—Applications for review

101 Applications for review

101A Application for review of notices under Division 2 of Part VII

101B Application for review of notice under section 95AB

102 Functions and powers of Tribunal

Division 2—Procedure and Evidence

103 Procedure generally

104 Regulations as to certain matters

105 Power to take evidence on oath

106 Hearings to be in public except in special circumstances

107 Evidence in form of written statement

108 Taking of evidence by single member

109 Participants in proceedings before Tribunal

110 Representation

Part IVCPayment surcharges

Division 1Preliminary

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 2Limit 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 3Information 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 4Infringement 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 IVDConsumer data right

Division 1Preliminary

Subdivision AObject 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 BDesignating 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 firstmentioned 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 datadriven 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 CMeanings 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 firstmentioned 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 firstmentioned 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 firstmentioned 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 feefree 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 feefree CDR data if:

 (a) the consumer data rules require it to be disclosed; and

 (b) it is not chargeable CDR data.

Subdivision DExtension 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 EApplication 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 FApplication 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 2Consumer data right

Subdivision APower 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 feefree CDR data is required to be disclosed

 (2) The consumer data rules cannot allow a fee to be charged for:

 (a) the disclosure of feefree CDR data under rules like those described in paragraph 56BC(1)(a) or 56BG(1)(a); or

 (b) the use of feefree CDR data received as the result of such a disclosure.

Note: Fees may be charged for other kinds of disclosures or uses of feefree 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 BCompliance 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 22 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 52 of the Australian Consumer Law

Part VI of this Act.

3

a provision of Part 22 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 firstmentioned 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 12month 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 firstmentioned 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 CProcess 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 DFees 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 feefree 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 3Accreditation etc.

Subdivision AAccreditation 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 12month 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 BRegister 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 CData 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 DAccreditation 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 4External 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 5Privacy safeguards

Subdivision APreliminary

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 BConsideration 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 uptodate 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 deidentify 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 CCollecting 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 DDealing 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 EIntegrity 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 deidentification 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 deidentified.

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 FCorrection 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 GCompliance 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, subsubparagraph 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 12month 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 6Data standards etc.

Subdivision AData 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) deidentifying 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 3party 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 BData 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 fulltime basis or a parttime 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 CData 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 DAdministrative 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 fulltime 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 fulltime 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 parttime 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 fulltime basis—the Data Standards Chair is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12month 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 7Other 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 firstmentioned 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 IVEMotor vehicle service and repair information sharing scheme

Division 1Objects 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 2Key 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 3Supply 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 4Information 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.

Recordkeeping 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 5Dispute 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 6Motor 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 any payment (including any remuneration or allowances) relating to this appointment.

Note: The person appointed could be a body corporate or an individual.

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 7Miscellaneous

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 VCarbon tax price reduction obligation

Division 1Preliminary

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 435, so far as that section relates to a carbon reduction;

 (iii) section 438;

 (iv) section 4311;

 (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 2000 (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 2Carbon 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 2ACarbon 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 pricerelated informationgathering powers of the Commission).

Section does not limit section 155

 (7) This section does not limit section 155 (which is about the general informationgathering 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 2BCarbon 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 pricerelated informationgathering powers of the Commission).

Section does not limit section 155

 (10) This section does not limit section 155 (which is about the general informationgathering 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 2CStatements 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 3Price 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—prerepeal 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 prerepeal transition period, of relevant goods.

Note 1: For prerepeal 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 prerepeal transition period, of relevant goods by entities.

Note 1: For prerepeal 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 prerepeal 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 prerepeal 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 prerepeal 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 prerepeal 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).

Prerepeal transition period

 (13) For the purposes of this section, prerepeal transition period means the period:

 (a) beginning at the commencement of this section; and

 (b) ending at the end of 30 June 2014.

60H  Informationgathering 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 informationgathering 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 4False 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 5Infringement 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 VIEnforcement 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;

 (iiib) subsection 153ZEL(2);

 (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)

13A

subsection 153ZEL(2)

600 penalty units

$500,000

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 12month 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;

 (vi) section 153ZEL; 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 firstmentioned 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 firstmentioned 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 firstmentioned 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 firstmentioned 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, subjectmatter 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  Nonpunitive 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.

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 firstmentioned 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 firstmentioned instrument; or

 (ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the firstmentioned 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 firstmentioned 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 VIAProportionate 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