Prices Surveillance Act 1983

An Act to make provision for the surveillance of, and the holding of inquiries into, prices charged or proposed to be charged for the supply of certain goods and services in Australia

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Part I—Preliminary

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1 Short title [see Note 1]

This Act may be cited as the Prices Surveillance Act 1983.

2 Commencement [see Note 1]

This Act shall come into operation on a date to be fixed by Proclamation.

3 Interpretation

(1) In this Act, unless the contrary intention appears:

associate member means an associate member of the Commission.

banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

Chairperson means the Chairperson of the Commission.

Commission means the Australian Competition and Consumer Commission established by the Trade Practices Act 1974.

Commonwealth authority means:

(a) the Commonwealth;

(b) an authority, institution or other body (other than a society, association or incorporated company) established for a public purpose by or under a law of the Commonwealth; and

(c) a society, association or incorporated company in which the Commonwealth, or an authority, institution or other body of the kind referred to in paragraph (b), has a controlling interest.

declared person, in relation to goods or services of a particular description, means a person in relation to whom a declaration under paragraph 21(1)(b) in relation to goods or services of that description is in force.

document includes:

(a) a book, plan, paper, parchment or other material on which there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them;

(b) a disc, tape, paper, or other device from which sounds or messages are capable of being reproduced; and

exempt supply, in relation to goods or services of a particular description, means a supply of goods or services of that description in relation to which a declaration under paragraph 21(1)(c) is in force.

goods includes:

(a) ships, aircraft and other vehicles;

(b) animals, including fish;

(d) water; and

(e) gas and electricity.

inquiry means an inquiry held by the Commission in accordance with Part III into a matter or matters relating to prices for the supply of goods or services.

law of the Commonwealth does not include:

(a) the Northern Territory (Self‑Government) Act 1978;

(b) the Norfolk Island Act 1979; or

member means:

(a) the Chairperson; or

(b) a member of the Commission other than the Chairperson.

Note: Under subsection 17(5) (which applies subsection 8A(4) of the Trade Practices Act 1974) references to members in provisions conferring powers on the Commission include associate members.

member of the staff of the Commission means a person referred to in subsection 27(1) of the Trade Practices Act 1974 or a person engaged under section 27A of that Act.

National Competition Council means the National Competition Council established by the Trade Practices Act 1974.

notified goods or services means goods or services of a description in relation to which a declaration under paragraph 21(1)(a) is in force.

person includes a Commonwealth authority and a State or Territory authority.

price includes:

(a) a charge of any description; and

(b) in relation to goods or services—any pecuniary benefit, whether direct or indirect, received or to be received by a person for or in connection with the supply by the person of the goods or services.

services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

(a) a contract for or in relation to:

(i) the performance of work (including work of a professional nature), whether with or without the supply of goods; or

(ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

(iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;

(b) a contract of insurance; or

(c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or

(d) any contract for or in relation to the lending of moneys;

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.

State or Territory authority means:

(a) a State, the Australian Capital Territory or the Northern Territory; or

(b) an authority, institution or other body (except a society, association or incorporated company) established for a public purpose by or under a law of a State, the Australian Capital Territory or the Northern Territory; or

(i) a State, the Australian Capital Territory or the Northern Territory; or

(ii) an authority, institution or other body covered by paragraph (b).

supply includes:

(a) in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and

(b) in relation to services—provide, grant or confer.

(2) In this Act, unless the contrary intention appears:

(a) a reference to the supply of goods or services includes a reference to agreeing to supply goods or services;

(b) a reference to the supply of goods includes a reference to the supply of goods together with other property or services, or both;

(c) a reference to the supply of services includes a reference to the supply of services together with property or other services, or both;

(d) a reference to the supply of goods does not include a reference to:

(i) a supply for use outside Australia;

(ii) a supply for which a price is not charged; or

(iii) any other prescribed supply; and

(e) a reference to the supply of services does not include a reference to:

(i) a supply outside Australia;

(ii) a supply for which a price is not charged; or

(iii) any other prescribed supply.

(3) For the purposes of this Act, a supply by way of retail sale shall be taken not to be a supply on terms and conditions that are the same as, or substantially similar to, the terms and conditions of a supply by way of wholesale sale.

4 Application of Act

(1) Subject to subsection (2), this Act applies in relation to the supply of goods or services:

(a) by a Commonwealth authority;

(b) by a foreign corporation;

(d) by a financial corporation in the course of, or for the purposes of, its business operations;

(e) by a body corporate incorporated in a Territory (other than the Northern Territory or Norfolk Island);

(f) in an internal Territory (other than the Northern Territory), the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; or

(g) in the course of, or in connection with, trade or commerce:

(i) among the States;

(ii) between a State and an internal Territory;

(iia) between a State and the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands;

(iib) between an internal Territory and the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands;

(iic) between the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands; or

(iii) between 2 internal Territories;

and not otherwise.

(2) This Act does not apply in relation to the supply of goods or services by:

(a) an authority, institution or other body (except a society, association or incorporated company) established for a public purpose by or under a law of Norfolk Island; or

(b) a society, association or incorporated company in which a controlling interest is held by Norfolk Island, or an authority, institution or other body covered by paragraph (a).

5 Extent to which Act binds Crown

(1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

(2) Nothing in this Act renders the Crown in right of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory liable to be prosecuted for an offence.

(3) The protection in subsection (2) does not apply to an incorporated Commonwealth authority or an incorporated State or Territory authority.

Part III—Functions of the Commission

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17 Functions of the Commission under this Act

(1) The functions of the Commission are:

(a) to consider notices given to the Commission under paragraph 22(2)(a) and to take in relation to such notices such action in accordance with this Part as it considers appropriate; and

(b) to hold inquiries in accordance with this Part into matters relating to prices for the supply of goods or services (except the supply of goods or services by a State or Territory authority), and to report to the Minister the results of each such inquiry; and

(c) to monitor prices, costs and profits in any industry or business that the Minister directs the Commission to monitor, and to report to the Minister the results of the monitoring.

(2) The Commission shall hold such inquiries as it is required to hold by instrument given by the Minister under section 18 and may, with the approval of the Minister under section 18, hold such other inquiries as it thinks fit.

(3) In exercising its powers and performing its functions under this Act, the Commission shall, subject to any directions under section 20, have particular regard to:

(a) the need to maintain investment and employment, including the influence of profitability on investment and employment;

(b) the need to discourage a person who is in a position substantially to influence a market for goods or services from taking advantage of that power in setting prices; and

(c) the need to discourage cost increases arising from increases in wages and changes in conditions of employment inconsistent with principles established by relevant industrial tribunals.

(4) Paragraphs 13(2)(b) and 14(2)(b) and section 17, of the Trade Practices Act 1974 apply in relation to the disclosure of interests in matters before the Commission under this Act.

(5) Subsections 8A(4) and (5) and sections 16, 18 and 19 of the Trade Practices Act 1974 apply in relation to the Commission’s powers and functions under this Act in the same way as they apply to the Commission’s powers and functions under that Act.

18 Powers of Minister in relation to inquiries

(1) The Minister may, by instrument in writing delivered to the Chairperson:

(a) require the Commission to hold an inquiry into a specified matter or specified matters; or

(b) approve the holding by the Commission of an inquiry into a specified matter or specified matters.

(1A) The Minister must not require or approve an inquiry into the supply by a State or Territory authority of goods or services.

(2) An instrument under subsection (1):

(a) shall specify:

(i) the description of the goods or services in relation to which the inquiry is to be held; and

(ii) whether the inquiry is to be held in relation to the supply of goods or services of that description by a particular person or persons; and

(b) may, if the inquiry is to be held in relation to the supply of goods or services of that description by a particular person or persons, specify the particular person or persons.

(3) Where an instrument under subsection (1) states that an inquiry is to be held in relation to the supply of goods or services of a particular description by a particular person or persons, but does not specify the particular person or persons, the Commission shall determine the person or persons in relation to whom the inquiry will be held, and the Chairperson shall give notice in writing of the determination to the Minister.

(3A) The Commission must not determine a State or Territory authority as a person in relation to whom an inquiry will be held.

(4) The Minister may, in an instrument under subsection (1), give such directions as he or she thinks fit as to the holding of the inquiry to which the instrument relates or the matters to be taken into consideration in that inquiry.

(5) An instrument under subsection (1) shall specify the period within which the inquiry to which the instrument relates is to be completed and a report on the inquiry submitted, and, subject to subsection (6), the Commission shall complete the inquiry and submit such a report within that period.

(6) The Minister may, before the expiration of the period within which the Commission is required by subsection (5) or by this subsection, as the case may be, to complete an inquiry and to submit its report on the inquiry, extend, or further extend, as the case requires, that period by instrument in writing delivered to the Chairperson, and, if the Minister does so, the Commission shall complete the inquiry and submit the report within that period as so extended, or further extended, as the case may be.

19 Commission to give notice in relation to inquiries

(1) Where the Commission is to hold an inquiry, the Commission shall, as soon as practicable and in any case before it commences to hold the inquiry:

(a) give reasonable notice in each State and internal Territory, by advertisement published in the Gazette and in a newspaper circulating in that State or Territory, as the case may be, that it is to hold the inquiry and specifying the matter or matters in relation to which the inquiry is to be held and the time and place at which the inquiry is to commence; and

(b) if the inquiry is to be held in relation to the supply of goods or services by a particular person or persons—serve on the person, or on each of the persons, as the case may be, a notice in writing stating that the Commission is to hold the inquiry and specifying the matter or matters in relation to which the inquiry is to be held and the time and place at which the inquiry is to commence.

(2) Where:

(a) an inquiry is being held in relation to the supply of goods or services of a particular description by a particular person or persons; and

(b) the Minister, pursuant to subsection 18(6), extends, or further extends, the period within which the inquiry is required to be completed and a report on the inquiry submitted;

the Commission shall forthwith serve on the person, or on each of the persons, as the case may be, a notice in writing giving particulars of the extension or further extension.

20 Directions of Minister as to special considerations

The Minister may, by instrument in writing delivered to the Chairperson, direct the Commission to give special consideration, in exercising its powers and performing its functions under this Act, to the matter or matters specified in the instrument, and the Commission shall comply with such a direction.

21 Declarations by Minister or Commission

(1) The Minister, or the Commission with the approval of the Minister, may by instrument in writing published in the Gazette:

(a) declare goods or services of a specified description to be notified goods or services for the purposes of this Act;

(b) declare a person to be, in relation to goods or services of a specified description, a declared person for the purposes of this Act; or

(c) declare a supply of goods or services of a specified description, being a supply in a specified manner, of a specified kind or in specified circumstances, to be an exempt supply for the purposes of this Act.

(1A) The Minister must not make or approve a declaration of a State or Territory authority unless:

(a) the appropriate Minister of the State or Territory concerned has agreed to the declaration being made; or

(b) the National Competition Council has, on the request of an Australian government, recommended the declaration and the Minister has consulted the appropriate Minister of the State or Territory concerned.

(1B) The National Competition Council must not recommend a declaration of a State or Territory authority in relation to goods or services unless the Council is satisfied that:

(a) at least one Australian government has notified the State or Territory concerned that the Australian government is not satisfied that there is effective supervision of the prices charged by the authority for the supply of those goods or services; and

(b) there is not effective supervision of prices charged by the authority for the supply of those goods or services; and

(c) the supply of those goods or services by the authority has a significant direct or indirect impact on trade or commerce described in paragraph 4(1)(g) or trade and commerce between Australia and another place.

(1C) The National Competition Council must not recommend a declaration of a State or Territory authority in relation to goods or services if:

(a) at any time during the period of 5 years before the Council received the request mentioned in paragraph (1A)(b), the Council was satisfied (when considering a previous request) that there was effective supervision of prices charged by the State or Territory authority for the supply of those goods or services; and

(b) the Council is satisfied that there has not been a substantial change in the mechanism for that supervision since the Council was satisfied as mentioned in paragraph (a).

(1D) In deciding whether there is effective supervision of prices charged by a State or Territory authority, where the State or Territory concerned is a party to the Competition Principles Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, the National Competition Council must apply the relevant principles set out in the agreement.

(1E) A declaration under paragraph (1)(b) must specify the time when it is to cease to have effect.

(2) The Minister, or the Commission with the approval of the Minister, may by instrument in writing published in the Gazette revoke or vary a declaration under subsection (1).

(3) A declaration under paragraph (1)(b) ceases to have effect at the time specified under subsection (1E), unless the declaration is revoked sooner.

(4) In this section:

Australian government means the Commonwealth, a State, the Australian Capital Territory or the Northern Territory.

22 Notification to Commission of proposed increases in prices of goods or services

(1) Subject to subsection (2), a person who is a declared person in relation to goods or services of a particular description, being notified goods or services, shall not supply goods or services of that description in a locality on particular terms and conditions:

(a) if the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the past 12 months—at a price exceeding the highest price at which the person has supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in that period;

(b) if the person has not supplied goods or services of that description in that locality on the same or substantially similar terms and conditions in the past 12 months, but has supplied goods or services of that description elsewhere in Australia on the same or substantially similar terms and conditions in that period—at a price exceeding the highest price at which the person has supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in that period; or

(c) if the person has not supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in the past 12 months.

Penalty: $10,000.

(2) Subsection (1) does not prohibit a person from supplying goods or services of a particular description in a locality on particular terms and conditions (in this subsection referred to as the relevant terms) at a particular price (in this subsection referred to as the relevant price) if:

(a) the person has given to the Commission a notice in writing stating that the person proposes to supply goods or services of that description in that locality on specified terms and conditions (in this subsection referred to as the proposed terms) at a specified price (in this subsection referred to as the proposed price);

(b) the event or events referred to in one of the following subparagraphs has or have occurred:

(i) the prescribed period in relation to the notice referred to in paragraph (a) has expired;

(ii) the Commission has served notice in writing on the person stating that the Commission has no objection to the person supplying goods or services of that description in that locality on the proposed terms at the proposed price;

(iii) the Commission has served a notice in writing on the person stating that the Commission would have no objection to the person supplying goods or services of that description in that locality on the proposed terms at a specified price, being a price that is lower than the proposed price, and the person has, not later than 7 days after service on the person of the notice by the Commission, given to the Commission a further notice stating that the person proposes to supply goods or services of that description in that locality on the proposed terms at a price not exceeding the price specified in the notice by the Commission;

(d) the relevant price does not exceed:

(i) in a case to which subparagraph (ii) does not apply—the proposed price; or

(ii) if both of the events referred to in subparagraph (b)(iii) have occurred—the price specified in the notice first referred to in that subparagraph.

(3) Subsection (1) does not apply in relation to a supply of goods or services of a particular description that is an exempt supply in relation to goods or services of that description.

(4) Where a person has given a notice to the Commission under paragraph (2)(a) (in this subsection referred to as the original notice) specifying a price:

(a) the person may (whether or not he or she has previously given to the Commission a notice under this subsection in relation to the original notice) give to the Commission a further notice stating that the original notice is to have effect as if there were substituted for the price specified in the original notice such price (being a price lower than the price specified in the original notice and lower than the price specified in any previous notice under this subsection in relation to the original notice) as is specified in the further notice; and

(b) if a further notice is so given by the person, the original notice has effect accordingly.

(5) For the purposes of this section, the prescribed period in relation to a notice given to the Commission under paragraph (2)(a) is, subject to subsections (6) and (7), the period of 21 days commencing on the day on which the notice was so given.

(6) The Commission may, with the consent of a person who has given a notice to the Commission under paragraph (2)(a), determine, before the expiration of the period of 21 days referred to in subsection (5), that the prescribed period in relation to the notice for the purposes of this section shall be a specified longer period and, in that case, a reference to that longer period shall, for the purposes of the application of that subsection in relation to the notice, be deemed to be substituted in that subsection for the reference to the period of 21 days.

(7) Where the Commission has served a notice on a person under subparagraph (2)(b)(iii) in relation to a notice given by the person to the Commission under paragraph (2)(a) then, for the purposes of the application of subsection (5) in relation to the second‑mentioned notice, the reference in that subsection to the period of 21 days, or, if a reference to a longer period is to be deemed, by virtue of subsection (6), to be substituted in subsection (5), the reference to that longer period, shall be deemed to be a reference to the period of 21 days, or to that longer period, as the case may be, increased by a further period of 14 days.

23 Commission to keep register of, and to publish, outcomes of consideration of notices

(1) The Commission shall keep, at such place as the Commission determines, a register for the purposes of this section.

(2) Where a person has given a notice (in this subsection referred to as the relevant notice) to the Commission under paragraph 22(2)(a), the Commission shall:

(a) as soon as practicable after the prescribed time in relation to the relevant notice, include in the register:

(i) a copy of the relevant notice, being a copy on which has been endorsed, or to which has been attached, a statement indicating the outcome of the consideration by the Commission of the relevant notice, including any action taken by the Commission in relation to the relevant notice and the outcome of any such action; and

(ii) a copy of each notice given or served under this Act to or by the Commission in relation to the relevant notice; and

(iii) a statement of the reasons for the outcome of the consideration by the Commission of the relevant notice; and

(b) within 3 months after the prescribed time in relation to the relevant notice, cause to be published in the Gazette a notice:

(i) stating that the relevant notice has been received by the Commission and specifying the date on which it was so received; and

(ii) setting out such particulars (if any) relating to the outcome of the consideration by the Commission of the relevant notice as the Commission considers appropriate.

(2A) A person who gives the Commission a document in relation to a notice under paragraph 22(2)(a) or makes an oral submission to the Commission in relation to a notice may ask the Commission to exclude from a document to be placed in the register any information:

(a) that was in the person’s document or submission; and

(b) that the person claims is confidential.

(2B) The Commission may exclude the information if the Commission is satisfied that the claim is justified and is not of the opinion that disclosure of the information is necessary in the public interest.

(3) A person may, at any time during ordinary office hours in the place where the register is kept, inspect or make copies of, or take extracts from, the register.

(4) The validity of an act done by the Commission in relation to a notice given to the Commission under paragraph 22(2)(a) is not affected by a failure of the Commission to comply with this section.

(5) In this section:

prescribed time, in relation to a notice given to the Commission under paragraph 22(2)(a), means the time at which expires the period that is, for the purposes of section 22, the prescribed period in relation to the notice.

24 Prices of goods or services not to be increased pending inquiry

(1) Where the Commission serves on a person, pursuant to paragraph 19(1)(b), a notice stating that the Commission is to hold an inquiry in relation to the supply by the person of goods or services of a particular description, the person shall not, before the prescribed day in relation to the notice, supply goods or services of that description in a locality on particular terms and conditions:

(c) if the person has not supplied goods or services of that description in Australia on the same or substantially similar terms and conditions in the past 12 months.

Penalty: $10,000.

(2) For the purposes of subsection (1), the prescribed day in relation to a notice served by the Authority on a person pursuant to paragraph 19(1)(b) is the fourteenth day after whichever is the earlier of the following days:

(a) the day on which a copy of the report by the Authority on the inquiry to which the notice relates is received by the person; or

(b) the last day of the period within which the Authority is required by subsection 18(5) or (6), as the case requires, to complete the inquiry to which the notice relates and to submit its report on the inquiry.

(3) This section has effect subject to section 25.

25 Interim price increases

(1) Where the Commission has served, or proposes to serve, a notice on a person pursuant to paragraph 19(1)(b), the Commission may at any time, on its own initiative or on the application of the person, give to the person a notice in writing stating that the person is permitted, from a specified date until the day that is, for the purposes of subsection 24(1), the prescribed day in relation to the first‑mentioned notice, to supply goods or services of a specified description in a specified locality on specified terms and conditions at a price not exceeding a specified price.

(2) Where a notice given to a person under subsection (1) is in force, the person is not guilty of an offence against section 24 by reason only that the person supplies goods or services of the description specified in the notice in the locality so specified on the terms and conditions so specified, or on terms and conditions that are the same as, or substantially similar to, those terms and conditions, at a price not exceeding the price so specified.

26 Report by Commission

Where the Commission submits to the Minister a report on an inquiry, the Commission shall:

(a) in the case of an inquiry held in relation to the supply of goods or services by a particular person or persons:

(i) send a copy of the report to the person, or to each of those persons, as the case may be, on the day on which it submits the report to the Minister; and

(ii) as soon as practicable after the person, or each of the persons, as the case may be, has received a copy of the report, make copies of the report available for inspection by the public; or

(b) in any other case—as soon as practicable after it has submitted the report to the Minister, make copies of the report available for inspection by the public.

27 Obligation to notify price following receipt of report

(1) Where a person receives a copy of a report on an inquiry held by the Commission in relation to the supply by the person of goods or services of a particular description:

(a) the person shall, within 14 days after receiving the copy of the report, give notice in writing to the Commission specifying the price or prices at which the person is supplying, or proposes to supply, goods or services of that description; and

(b) the Commission shall, within 14 days after it receives the notice under paragraph (a), make available to the public particulars of the price or prices specified in the notice.

(2) A person who fails to comply with paragraph (1)(a) is guilty of an offence punishable, on conviction, by a fine not exceeding $1,000.

27A Directions to monitor prices, costs and profits of an industry or business

(1) The Minister may give the Commission a written direction:

(a) to monitor prices, costs and profits relating to the supply of goods or services by persons in a specified industry and to report to the Minister on the monitoring at a specified time or at specified intervals within a specified period; or

(b) to monitor prices, costs and profits relating to the supply of goods or services by a specified person and to report to the Minister on the monitoring at a specified time or at specified intervals within a specified period.

(2) The Minister must not direct the Commission to monitor prices, costs and profits of a State or Territory authority that supplies goods or services unless the State or Territory concerned has agreed to the direction being given.

27B Report on monitoring

(1) The Commission must make copies of a report under paragraph 27A(1)(a) available for inspection by the public as soon as practicable after the Commission has given the report to the Minister.

(2) In the case of a report under paragraph 27A(1)(b) relating to a person, the Commission must:

(a) send the person a copy of the report on the day the Commission gives the report to the Minister; and

(b) make copies of the report available for inspection by the public as soon as practicable after the person has received a copy of the report.

28 Withdrawal of notices by Commission

The Commission may, by notice in writing served on a person, withdraw a notice previously served by the Commission on the person under this Act (other than this section) and, where the Commission does so, this Act has effect, as from the time at which the first‑mentioned notice is served on the person, as if the other notice had not been served on the person.

29 Delegation of some of the Commission’s powers and functions under this Act

The Commission may delegate to a member, by written instrument:

(a) the Commission’s functions described in paragraph 17(1)(a) in relation to specified notices given to the Commission under paragraph 22(2)(a); and

(b) the Commission’s powers under subparagraphs 22(2)(b)(ii) and (iii) in relation to specified notices given to the Commission under paragraph 22(2)(a); and

(c) the Commission’s power under section 28 relating to a notice served by the member exercising (as a delegate) the Commission’s power under subparagraph 22(2)(b)(ii) or (iii).

31 Procedure at inquiries

(1) Subject to a direction given to the Commission by the Minister, the Commission shall hold an inquiry in public.

(2) Where, at an inquiry held in public, a witness objects to giving in public evidence that the Commission is satisfied is of a confidential nature, the Commission may take that evidence in private if it considers that it is desirable to do so.

(3) In an inquiry, the Commission may, if it thinks fit, permit a person appearing as a witness at the inquiry to give evidence by tendering, and verifying by oath or affirmation, a written statement and, where evidence is so given in an inquiry held in public, the Commission shall make available to the public in such manner as the Commission thinks fit the contents of the statement other than any matter:

(a) that the person who gave the evidence objects to being made public; and

(b) the evidence of which the Commission is satisfied would have been taken in private if that evidence had been given orally and the witness had objected to giving it in public.

(4) In an inquiry, the Commission may, if it thinks fit, require or permit a person desiring to make a submission to the Commission to make the submission in writing and, where a submission is so made in an inquiry held in public, the Commission shall make available to the public in such manner as the Commission thinks fit the contents of the submission.

(5) Subject to subsection (6), in an inquiry:

(a) the procedure to be followed is within the discretion of the member presiding at the inquiry; and

(b) the Commission is not bound by the rules of evidence.

(6) Subsection (5) operates subject to this Act and:

(a) in any case—subject to any direction given to the Commission by the Minister; and

(b) in the case of an inquiry at which a member other than the Chairperson is presiding—subject to any direction given to that member by the Chairperson.

32 Power to obtain information

(1) The Chairperson may, by notice in writing signed by him or her and served on a person, require the person:

(a) to furnish to the Commission, by writing signed by the person or his or her agent, or, in the case of a Commonwealth authority or a body corporate, by a competent officer of the Commonwealth authority or body corporate, within the time and in the manner specified in the notice, such information in relation to the affairs of the person as is so specified; or

(b) to produce to the Commission, in accordance with the notice, such documents in relation to the affairs of the person as are specified in the notice;

being information that is, or documents that are, relevant to:

(c) the consideration by the Commission of the matters contained in a notice given to the Commission by the person under paragraph 22(2)(a);

(d) an inquiry that is being held in relation to the person; or

(e) a supply of goods or services by the person, being a supply of a kind in relation to which the Commission is carrying out an inquiry under section 18 or monitoring under a direction under section 27A.

(2) A person shall not:

(a) without reasonable excuse, refuse or fail to comply with a notice under subsection (1); or

(b) in purported compliance with such a notice, knowingly furnish information that is false or misleading.

Penalty: $1,000.

(2A) It is a reasonable excuse for the purposes of subsection (2) for an individual to refuse or fail to give information or produce a document on the ground that the information or production of the document might tend to incriminate the individual or to expose the individual to a penalty. This subsection does not limit what is a reasonable excuse for the purposes of subsection (2).

(3) Subject to section 33, where, pursuant to a notice served on a person under subsection (1) in relation to information that is, or documents that are, relevant to an inquiry that is being held in public in relation to the person, the person furnishes information or produces documents to the Commission in connection with the inquiry, the Commission shall make the information or documents available to the public in such manner as the Commission thinks fit.

33 Confidential information

Notwithstanding anything contained in sections 31 and 32, where:

(a) a person claims that information (in this section referred to as the relevant information):

(i) made available, or to be made available, by or on behalf of the person (whether in oral evidence or in a written statement, submission or other document) at the hearing of an inquiry; or

(ii) furnished, or contained in a document produced, by the person in accordance with section 32;

is information the disclosure of which would damage the competitive position of the person; and

(b) the Commission is satisfied that the claim is justified and is not of the opinion that disclosure of the relevant information is necessary in the public interest;

the Commission shall take all reasonable steps to ensure that the relevant information is not, without the consent of the person, disclosed, in the proceedings or by the Commission, to a person other than:

(d) a member of the staff of the Commission who receives the relevant information in the course of his or her duties.

34 Power to take evidence on oath or affirmation

(1) In an inquiry, the Commission may take evidence on oath or affirmation and, for that purpose, a member may administer an oath or affirmation.

(2) The Chairperson may, for the purposes of this Act, by writing signed by him or her, summon a person to appear at an inquiry to give evidence and to produce such documents (if any) as are referred to in the summons.

(3) The power conferred on the Chairperson by subsection (2) may, in the discretion of the Chairperson, be exercised on the application of another person.

35 Failure of witness to attend

A person served with a summons to appear as a witness at an inquiry shall not, without reasonable excuse:

(a) fail to attend as required by the summons; or

(b) fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by a member.

Penalty: $1,000.

36 Refusal to be sworn or to answer question

(1) A person appearing as a witness at an inquiry shall not, without reasonable excuse:

(a) refuse or fail to be sworn or to make an affirmation;

(b) refuse or fail to answer a question that he or she is required to answer by the member presiding at the inquiry; or

(c) refuse or fail to produce a document that he or she was required to produce by a summons under this Part served on him or her.

Penalty: $1,000.

(2) It is a reasonable excuse for the purposes of paragraph (1)(b) for a person to refuse or fail to answer a question on the ground that the answer might tend to incriminate the person or to expose the person to a penalty.

(3) It is a reasonable excuse for the purposes of paragraph (1)(c) for a person to refuse or fail to produce a document on the ground that the production of the document might tend to incriminate the person or to expose the person to a penalty.

(4) Subsections (2) and (3) do not limit what is a reasonable excuse for the purposes of paragraphs (1)(b) and (c).

37 Protection of members and witnesses

(1) A member or associate member has, in the performance of his or her duty as a member or associate member, the same protection and immunity as a Justice of the High Court.

(2) Subject to this Act, a person summoned to attend or appearing as a witness at an inquiry has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, in any civil or criminal proceedings as a witness in proceedings in the High Court.

38 Powers of Commission in relation to documents produced

(1) A member, or a member of the staff of the Commission, may inspect documents:

(a) furnished to the Commission for the purposes of the exercise of its powers or the performance of its functions under this Act; or

(b) produced at an inquiry;

and may make copies of, or take extracts from, those documents.

(2) An associate member may inspect documents:

(a) furnished to the Authority for the purposes of the exercise of its powers or the performance of its functions under this Act in relation to an inquiry for the purposes of which the Chairperson has directed that the associate member be taken to be a member; or

(b) produced at that inquiry;

and may make copies of, or take extracts from, those documents.

(3) Documents furnished or produced as mentioned in subsection (1) or (2) may be retained by the Commission for such reasonable period as the Commission thinks fit.

39 Allowances to witnesses

A witness summoned under this Act to appear at an inquiry is entitled to be paid:

(a) in a case where the witness was summoned on the application of a person—by that person; or

(b) in any other case—by the Commonwealth;

such allowances for his or her travelling and other expenses as are prescribed.

Part IV—Miscellaneous

Do not delete : Division placeholder

40 Prosecutions

(1) A prosecution for an offence against this Act shall be instituted only in the Federal Court of Australia.

(2) Jurisdiction is conferred on the Federal Court of Australia with respect to offences against sections 22, 24, 27, 32, 35, 36 and 43.

(3) The jurisdiction of the Federal Court of Australia under this section may be exercised by a single Judge.

43 Secrecy

(1) A prescribed person shall not, either directly or indirectly, except in or in connection with the performance of a duty or function under or in connection with this Act or the Trade Practices Act 1974:

(a) make a record of, or divulge or communicate to any person, information acquired in or in connection with the performance of his or her duties or functions, or the exercise of his or her powers, under or in connection with this Act, being information in relation to which subsection (3) applies in relation to the prescribed person; or

(b) produce to any person a document supplied to, lodged with or otherwise acquired by the Commission for the purposes of this Act, except a document made available to the public by the Commission under this Act.

Penalty: $1,000.

(2) Except where it is necessary to do so for the purposes of this Act or the Trade Practices Act 1974:

(a) a prescribed person shall not be required to divulge or communicate to a court any information in relation to which subsection (3) applies in relation to the prescribed person; and

(b) a person shall not be required to produce in a court a document in relation to which paragraph (1)(b) applies.

(3) This subsection applies in relation to information in relation to a prescribed person if, and only if:

(a) the information was disclosed to the prescribed person by a person, or was obtained by the prescribed person from a person, for the purposes of this Act or as permitted by section 51; or

(b) the information was divulged or communicated to the prescribed person by another prescribed person and this subsection applies in relation to the information in relation to the other prescribed person;

and the information has not been made available to the public by the Commission pursuant to a provision of this Act and is not information contained in oral evidence given in public at the hearing of an inquiry.

(4) In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

prescribed person means a person who:

(a) is or has been:

(i) a member or associate member; or

(ii) a member of the staff of the Commission; or

(iii) an officer or employee as defined in subsection 7(1) of the Public Service Act 1922; or

(b) has been a member or associate member of the Prices Surveillance Authority that ceased to exist on the commencement of Part 3 of the Competition Policy Reform Act 1995, or an associate member of that Authority; or

(c) has been engaged by that Authority under subsection 42(1) of this Act, as in force at any time before the commencement of section 77 of the Competition Policy Reform Act 1995.

produce includes permit access to.

45 Regulations

(1) The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) Regulations providing for allowances and expenses for the purposes of section 39 may provide for those allowances and expenses by reference to a scale of expenses for witnesses who attend before a court specified in the regulations.

Part V—Repeal of Petroleum Products Pricing Act 1981

Do not delete : Division placeholder

46 Interpretation

In this Part:

repealed Act means the Petroleum Products Pricing Act 1981 as amended and in force immediately before the commencement of this Act.

Statutes Review Act means the Commonwealth Functions (Statutes Review) Act 1981.

51 Obligations of secrecy

(1) Despite the repeal of the repealed Act, the provisions of section 36 of the repealed Act continue to operate in relation to a person who, immediately before the commencement of this Act, was a person to whom that section applied.

(2) Section 36 of the repealed Act, as continued in operation by subsection (1), does not prohibit:

(a) the transfer of records to the Commission; or

(b) a person from divulging or communicating information or producing a document to:

(i) a member or associate member;

(ii) a member of the staff of the Commission; or

(iii) an officer of the Department.

(3) Section 34A of the Prices Justification Act 1973, as continued in operation by subsection 234(1) of the Statutes Review Act, does not prohibit:

(a) the transfer of records to the Commission; or

(b) a person from divulging or communicating information or producing a document (being information or a document relating to the supply of goods or services) to:

(i) a member or associate member;

(ii) a member of the staff of the Commission; or

(iii) an officer of the Department.

Prices Surveillance Act 1983	145, 1983	22 Dec 1983	19 Mar 1984 (see Gazette 1984, No. S96)
Public Service and Statutory Authorities Amendment Act 1985	166, 1985	11 Dec 1985	Ss. 1‑3, 5, 30(8), 31, 35, 40 and 43: Royal Assent Ss. 12 and 15: 22 Dec 1984 Ss. 14, 18, 21, 22, 30(1)‑(7) and 32: 1 July 1986 (see Gazette 1986, No. S310) S. 24: 15 Mar 1981 Ss. 27‑29: 1 Jan 1986 (see s. 2(5) and Gazette 1985, No. S563) Ss. 33, 34 and 36‑39: 1 Apr 1986 (see Gazette 1989, No. S134) S. 44: 21 July 1985 Remainder: 8 Jan 1986	S. 45‑(2)
Industrial Relations Legislation Amendment Act 1991	122, 1991	27 June 1991	Ss. 4(1), 10(b) and 15‑20: 1 Dec 1988 Ss. 28(b)‑(e), 30 and 31: 10 Dec 1991 (see Gazette 1991, No. S332) Remainder: Royal Assent	S. 31(2)
Territories Law Reform Act 1992	104, 1992	30 June 1992	S. 24: 1 July 1992 (a)	—
Qantas Sale Act 1992	196, 1992	21 Dec 1992	Schedule (Part 1): 10 Mar 1993 (see Gazette 1993, No. GN17) (b) Schedule (Part 5): 30 Aug 1995 (see Gazette 1995, No. S324) (b)	S. 2(6) (am. by 60, 1993, s. 4; 168, 1994, s. 3)
as amended by
Qantas Sale Amendment Act 1993	60, 1993	3 Nov 1993	10 Mar 1993	—
Qantas Sale Amendment Act 1994	168, 1994	16 Dec 1994	S. 3 (item 17): Royal Assent (c)	—
Competition Policy Reform Act 1995	88, 1995	20 July 1995	S. 77: 6 Nov 1995 (see Gazette 1995, No. S423) (d) Part 4 (s. 79): (d)	—
Crimes and Other Legislation Amendment Act 1997	20, 1997	7 Apr 1997	Schedule 2 (item 7): Royal Assent (e)	—
Financial Sector Reform (Consequential Amendments) Act 1998	48, 1998	29 Jun 1998	Schedule 1 (item 132): 1 July 1998 (see Gazette 1998, No. S316) (f)	—

Provision affected	How affected
S. 3....................	Statutory Rules 1989 No. 396 (modified)
	am. No. 196, 1992; No. 88, 1995; No. 48, 1998
S. 4....................	am. No. 104, 1992; No. 88, 1995
S. 5....................	am. No. 88, 1995
Part II (ss. 6‑16)	rep. No. 88, 1995
Ss. 6‑8...........	rep. No. 88, 1995
S. 9....................	rs. No. 122, 1991
	rep. No. 88, 1995
Ss. 10‑14.........	rep. No. 88, 1995
S. 15...................	am. No. 122, 1991
	rep. No. 88, 1995
S. 16...................	rep. No. 88, 1995
Heading to Part III..........	am. No. 88, 1995
Heading to s. 17...........	am. No. 88, 1995
Ss. 17, 18................	am. No. 88, 1995
Heading to s. 19...........	am. No. 88, 1995
Ss. 19, 20................	am. No. 88, 1995
Headings to ss. 21‑23	am. No. 88, 1995
Ss. 21‑23.........	am. No. 88, 1995
Ss. 24, 25................	am. No. 88, 1995
Heading to s. 26...........	am. No. 88, 1995
Ss. 26, 27................	am. No. 88, 1995
Ss. 27A, 27B.............	ad. No. 88, 1995
Heading to s. 28...........	am. No. 88, 1995
S. 28...................	am. No. 88, 1995
S. 29...................	rs. No. 88, 1995
S. 30...................	rep. No. 88, 1995
Ss. 31‑37.........	am. No. 88, 1995
Heading to s. 38...........	am. No. 88, 1995
S. 38...................	am. No. 88, 1995
S. 39...................	am. No. 88, 1995
S. 40...................	am. No. 20, 1997
S. 41...................	rep. No. 88, 1995
S. 42...................	am. No. 166, 1985
	rep. No. 88, 1995
S. 43...................	am. No. 88, 1995
S. 44...................	rep. No. 88, 1995
S. 46...................	am. No. 88, 1995
Ss. 47‑50.........	rep. No. 88, 1995
S. 51...................	am. No. 88, 1995