INDUSTRY COMMISSION ACT 1989
- Updated as at 6 April 1994 (HISTACT2 CHAP 647 #DATE 06:04:1994)
*1* The Industry Commission Act 1989 as shown in this reprint comprises Act
No. 9, 1990 amended as indicated in the Tables below.
Table of Acts
Act Date Date of Application
Number and of Assent Commencement saving or
Year transitional
provisions
Industry Commission Act 1989
9, 1990 17 Jan 1990 Ss. 1 and 2:
Royal Assent
Remainder: 9 Mar 1990
(see Gazette 1990,
No. S44)
Industrial Relations Legislation Amendment Act 1991
122, 1991 27 June 1991 Ss. 4 (1), 10 (b) S. 31 (2)
and 15-20: 1 Dec 1988
Ss. 28 (b)-(e), 30 and 31:
10 Dec 1991 (see Gazette
1991, No. S332)
Remainder: Royal Assent
Superannuation Legislation (Consequential Amendments and
Transitional Provisions) Act 1992
94, 1992 30 June 1992 S. 3: 1 July 1990 -
Remainder: Royal Assent
Table of Amendments
ad=added or inserted am=amended rep=repealed rs=repealed and substituted
Provision affected How affected
S. 34 rs. No. 122, 1991
S. 38 am. No. 122, 1991; No. 94, 1992
Ss. 38A, 38B ad. No. 94, 1992
INDUSTRY COMMISSION ACT 1989 - TABLE OF PROVISIONS
TABLE
TABLE OF PROVISIONS
Section
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Definitions
4. Act binds Crown
PART 2 - ESTABLISHMENT AND FUNCTIONS OF
INDUSTRY COMMISSION
5. Establishment of Commission
6. Functions of Commission
7. Reference of matters to Commission
8. General policy guidelines for Commission
9. Reports to be tabled
PART 3 - ACTION BY COMMONWEALTH MINISTERS
RELATING TO INDUSTRY
10. Ministers not to take certain action relating to industry
11. Actions subject to section 10 restrictions
12. Actions exempt from section 10
PART 4 - CONDUCT OF INQUIRIES
13. General conduct of inquiries
14. Notice of inquiries
15. Notice to person to furnish information and documents
16. Power to hold hearings
17. Procedure at hearings
18. Summons to person to attend hearing
19. Failure of person summoned to attend
20. Refusal to answer questions or produce documents
21. False or misleading evidence or information
22. Contempt of Commission
23. Powers of Commission in relation to documents produced
24. Written statements and submissions to be made public
25. Allowances to witnesses
26. Person prejudiced in employment because of assisting
Commission
27. Limitation of powers under this Part
PART 5 - CONSTITUTION OF COMMISSION
28. Constitution of Commission
29. Terms of appointment
30. Outside employment
31. Associate Commissioners
32. Executive Commissioner
33. Remuneration and allowances
34. Leave of absence
35. Acting appointments
36. Resignation
37. Retirement
38. Suspension and removal from office
38A. Removal taken to be retirement on ground of invalidity
38B. Retirement on ground of invalidity under the Superannuation
Acts
39. Delegation by Chairperson
40. Meetings of Commission
41. Chairperson may authorise Commission to sit in Divisions
42. Disclosure of interests
PART 6 - MISCELLANEOUS
43. Staff
44. Protection of Commissioners and witnesses
45. Annual report
46. Conduct by directors, servants and agents
47. Regulations
PART 7 - REPEALS AND TRANSITIONAL PROVISIONS
Division 1 - Repeals
48. Repeals
Division 2 - Transitional Provisions
49. Definitions
50. Staff
51. Appropriations
52. Commissioners - members of the ISC
53. Commissioners - members of the IAC
54. Inquiries by IAC
55. Records of IAC and ISC
56. Protection of witnesses
57. References to Tariff Board and IAC
INDUSTRY COMMISSION ACT 1989 - LONG TITLE
SECT
An Act to establish an Industry Commission for the purpose
of holding inquiries into matters relating to industry and
for related purposes, to make other provision in connection
with industry, to repeal the Industries Assistance Commission
Act 1973 and parts of the Inter-State Commission Act 1975,
and to make provision for related matters
INDUSTRY COMMISSION ACT 1989 - PART 1
PART 1 - PRELIMINARY
INDUSTRY COMMISSION ACT 1989 - SECT 1
Short title
SECT
1. This Act may be cited as the Industry Commission Act 1989.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER.
INDUSTRY COMMISSION ACT 1989 - SECT 2
Commencement
SECT
2.*1* (1) Sections 1 and 2 commence on the day on which this Act receives
the Royal Assent.
(2) Subject to subsection (3), the remaining provisions of this Act commence
on a day or days to be fixed by Proclamation.
(3) If a provision referred to in subsection (2) does not commence under
that subsection within the period of 6 months beginning on the day on which
this Act receives the Royal Assent, it commences on the first day after the
end of that period.
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
INDUSTRY COMMISSION ACT 1989 - SECT 3
Definitions
SECT
3. In this Act, unless the contrary intention appears:
"Associate Commissioner" means an Associate Commissioner of the Commission;
"Chairperson" means the Chairperson of the Commission and includes a person
who is acting as Chairperson;
"Commission" means the Industry Commission established by this Act, and
includes a Division of that Commission performing functions of the
Commission;
"Commissioner" means a Commissioner of the Commission and:
(a) includes the Chairperson and a person who is acting as a Commissioner;
and
(b) except in sections 28 to 39 (inclusive), includes an Associate
Commissioner who is a member of a Division;
"Commonwealth body" means:
(a) a body (whether incorporated or not) established for a public purpose by
or under a law of the Commonwealth or of a Territory; or
(b) a company in which the Commonwealth, a Territory, or a body so
established, holds a controlling interest;
"Division" means a Division of the Commission constituted under section 41;
"duties" means duties of customs, other than duties to which the Customs
Tariff (Anti-Dumping) Act 1975 applies;
"hearing" means a hearing held for the purposes of an inquiry;
"industry" means industry of any kind (including any business or activity
relating to goods or services), and a reference to industry is a reference to
industry in general, a particular industry, a part of an industry, or a group
or groups of particular industries;
"inquiry" means an inquiry held under this Act;
"subject of Commonwealth power" means any matter with respect to which the
Parliament has power to make laws, including, in particular, any of the
following:
(a) grants of financial assistance made, or to be made, by the Commonwealth
to the States;
(b) trade and commerce:
(i) with other countries; or
(ii) among the States; or
(iii) between a State and a Territory;
(c) bounties to which paragraph 51 (iii) of the Constitution is applicable;
(d) banking to which paragraph 51 (xiii) of the Constitution is applicable;
(e) insurance to which paragraph 51 (xiv) of the Constitution is
applicable;
(f) foreign corporations, and trading or financial corporations formed
within the limits of the Commonwealth;
(g) appropriations for the purposes of the Commonwealth, within the meaning
of section 81 of the Constitution;
(h) the government of a Territory.
INDUSTRY COMMISSION ACT 1989 - SECT 4
Act binds Crown
SECT
4. 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, but
the Crown is not liable to prosecution for an offence against this Act.
INDUSTRY COMMISSION ACT 1989 - PART 2
PART 2 - ESTABLISHMENT AND FUNCTIONS OF INDUSTRY COMMISSION
INDUSTRY COMMISSION ACT 1989 - SECT 5
Establishment of Commission
SECT
5. An Industry Commission is established.
INDUSTRY COMMISSION ACT 1989 - SECT 6
Functions of Commission
SECT
6. (1) The functions of the Commission are:
(a) to hold inquiries and make reports to the Minister in respect of such
matters relating to industry as are referred to it by the Minister; and
(b) to do anything incidental to those functions.
(2) In subsection (1):
"matters relating to industry" include legislative or administrative action
taken, or to be taken, by the Commonwealth or a State or Territory in relation
to industry.
INDUSTRY COMMISSION ACT 1989 - SECT 7
Reference of matters to Commission
SECT
7. (1) In referring a matter to the Commission for inquiry and report, the
Minister may do any or all of the following:
(a) specify a period within which the report is to be submitted to the
Minister;
(b) require the Commission to make a draft report available to the public
during the inquiry;
(c) require the Commission to report on courses of action that the
Commission considers to exist in relation to the matter;
and the Commission must act accordingly.
(2) Where the Minister has referred a matter to the Commission for inquiry
and report, the Minister may withdraw or amend the reference at any time
before the Minister has received the report from the Commission.
(3) Where a matter is referred to the Commission, the Commission may also
inquire into and make recommendations, in the report, on any matters it
considers relevant to the matter referred.
INDUSTRY COMMISSION ACT 1989 - SECT 8
General policy guidelines for Commission
SECT
8. (1) In the performance of its functions, the Commission must have regard
to the desire of the Commonwealth Government:
(a) to encourage the development and growth of Australian industries that
are efficient in their use of resources, self-reliant, enterprising,
innovative and internationally competitive; and
(b) to facilitate adjustment to structural changes in the economy and to
ease social and economic hardships arising from those changes; and
(c) to reduce regulation of industry (including regulation by the States and
Territories) where this is consistent with the social and economic goals of
the Commonwealth Government; and
(d) to recognise the interests of industries, consumers, and the community,
likely to be affected by measures proposed by the Commission.
(2) In the performance of its functions, the Commission must also have
regard to any other matters notified to it in writing by the Minister.
(3) This section does not apply to a question whether a Commercial Tariff
Concession Order should have been made or revoked, being a question arising
from a request made under subsection 269R (1) or (2) of the Customs Act 1901.
(4) here a matter is referred to the Commission for inquiry and report, the
Commission must also inquire into, and, in the same report, report on, the
social and environmental consequences of any recommendations it makes.
INDUSTRY COMMISSION ACT 1989 - SECT 9
Reports to be tabled
SECT
9. (1) Subject to subsection (2), where the Minister receives a report as
the result of an inquiry, the Minister must cause a copy of the report to be
laid before each House of the Parliament within 25 sitting days of that House
after the day on which the Minister receives the report.
(2) If the Commission recommends that the tabling of the report, or part of
the report, be delayed for a specified period, subsection (1) applies to the
report, or that part of the report, as if the report was received by the
Minister at the end of that period.
INDUSTRY COMMISSION ACT 1989 - PART 3
PART 3 - ACTION BY COMMONWEALTH MINISTERS RELATING TO INDUSTRY
INDUSTRY COMMISSION ACT 1989 - SECT 10
Ministers not to take certain action relating to industry
SECT
10. (1) A Minister of State of the Commonwealth or a delegate of such a
Minister must not take any action referred to in section 11 unless the action
is taken within 12 months after the Minister administering this Act has
received, or last received, as the case requires, a report of the Commission
in relation to the matter.
(2) Where the Minister administering this Act:
(a) has, under subsection 7 (1), specified a period (in this subsection
called the "first period") within which the Commission is to report on a
matter; and
(b) at the end of the period (in this subsection called the "second period")
of 30 days after the end of the first period, has not received a report of the
Commission in relation to the matter;
the Minister is to be treated, for the purposes of subsection (1):
(c) as having received such a report at the end of the second period; and
(d) if the Minister later receives such a report - as having received it at
the end of the second period.
INDUSTRY COMMISSION ACT 1989 - SECT 11
Actions subject to section 10 restrictions
SECT
11. (1) Except as provided in section 12, section 10 applies to action in
respect of any of the following matters:
(a) the imposition, removal, increase or reduction of duties on goods
imported into Australia;
(b) the prohibition or restriction of the importation of goods into
Australia;
(c) the removal of a prohibition, or the extension, reduction or removal of
a restriction, of the importation of goods into Australia;
(d) the provision of financial assistance for over 2 years by the
Commonwealth Government to an industry, whether or not any financial
assistance has been previously provided by that Government to the industry;
(e) the provision of financial assistance for up to 2 years by the
Commonwealth Government to an industry to which financial assistance has
previously been provided by the Government, where:
(i) the previous financial assistance was provided for a period, or
an aggregate period, of not less than 2 years; or
(ii) the previous financial assistance was provided for a period, or
an aggregate period, that together with the period of proposed further
financial assistance exceeds 2 years;
(f) the suspension, withdrawal, increase or reduction of financial
assistance that has been provided by the Commonwealth Government to an
industry for over 2 years.
(2) For the purposes of paragraph (1) (e):
(a) financial assistance that has been previously provided must be
disregarded if it was provided after inquiry and report by the Commission;
and
(b) so much of any period during which financial assistance was previously
provided must be disregarded if it occurred more than 6 years before the
beginning of the period of proposed further financial assistance.
(3) In this section:
"financial assistance" means assistance by payments of money to persons
engaged in the industry concerned, but does not include assistance by such
payments where equivalent amounts of money have been raised by a tax imposed
on the industry for the purpose of providing the assistance;
"industry" means an industry of any kind (including any business relating to
goods or services), and a reference to an industry includes a reference to a
part of an industry or a group or groups of particular industries.
INDUSTRY COMMISSION ACT 1989 - SECT 12
Actions exempt from section 10
SECT
12. (1) Section 10 does not apply to action in respect of the imposition,
removal, increase or reduction of duties on goods imported into Australia,
if:
(a) the action is necessary:
(i) to correct anomalies, errors or ambiguities in the Customs
Tariff Act 1987; or
(ii) to correct an error in the implementation of a decision of the
Commonwealth Government in respect of the matter in respect of which the
action is taken; and
(b) the Minister administering this Act approves the action in writing.
(2) Where:
(a) as a result of a decision of the Commonwealth Government arising from a
report by the Commission, duty is imposed on goods of a particular description
imported into Australia; and
(b) as a result of a decision of a court or tribunal, the rate of duty
applying to those goods differs from the rate at which the duty was being
collected in respect of those goods immediately before the decision of the
court or tribunal; and
(c) a Minister is satisfied that it is necessary to take action to give
effect to the decision of the Commonwealth Government; and
(d) the Minister administering this Act gives written approval of the
action;
section 10 does not prevent the Minister referred to in paragraph (c) from
taking the action to alter the rate of duty to the rate at which it was being
collected immediately before the decision of the court or tribunal.
(3) Section 10 does not apply to action to provide assistance to an industry
in accordance with, or for the purposes of, Part XVA of the Customs Act 1901.
(4) Section 10 does not apply in respect of changes in duties that are only
made to match corresponding changes in excise duties.
(5) Section 10 does not apply to the payment of money to a Commonwealth
corporation that is engaged in an industry, except to the extent that the
money is applied by the corporation in providing financial assistance to other
persons engaged in that industry.
(6) Section 10 does not apply to:
(a) an action to initiate an Act (other than the introduction into the House
of Representatives of a Customs Tariff Proposal or the publication of a notice
under section 273EA of the Customs Act 1901); or
(b) the making of a by-law under the Customs Act 1901 or a determination
under section 273 of that Act; or
(c) the imposition, removal, increase or reduction of a tax (other than
duties).
(7) Section 10 does not apply to action that is necessary to carry out the
policy of the Commonwealth Government:
(a) in relation to, or in relation to negotiations for, bilateral or
multilateral trade agreements; or
(b) in relation to tariff preferences for developing countries.
(8) In this section:
"Commonwealth corporation" means a corporation established for a public
purpose:
(a) by a law of the Commonwealth; or
(b) by the Commonwealth;
"multilateral trade agreements" includes the International Convention on the
Harmonized Commodity Description and Coding System, as amended from time to
time, being the convention that was established under the auspices of the
Customs Co-operation Council and came into force on 1 January 1988.
INDUSTRY COMMISSION ACT 1989 - PART 4
PART 4 - CONDUCT OF INQUIRIES
INDUSTRY COMMISSION ACT 1989 - SECT 13
General conduct of inquiries
SECT
13. In an inquiry, the Commission:
(a) is not bound to act formally; and
(b) is not bound by the rules of evidence; and
(c) may inform itself on any matter in any way it thinks fit; and
(d) may receive information or submissions in the form of oral or written
statements; and
(e) may consult with such persons as it thinks fit.
INDUSTRY COMMISSION ACT 1989 - SECT 14
Notice of inquiries
SECT
14. As soon as practicable after the Commission receives a reference to hold
an inquiry, it must give reasonable notice in each State and internal
Territory, by advertisement published in a newspaper circulating in the State
or Territory, of its intention to hold the inquiry.
INDUSTRY COMMISSION ACT 1989 - SECT 15
Notice to person to furnish information and documents
SECT
15. (1) Where the Commission:
(a) Is holding an inquiry; and
(b) has reason to believe that a person is capable of giving information or
producing documents relevant to the inquiry;
the Chairperson, or a Commissioner nominated to preside at a meeting of a
Division of the Commission constituted for the purposes of the inquiry, may,
by notice in writing served on the person, require the person to send to the
Commission, on or before a day specified in the notice:
(c) a statement, signed by the person, setting out such information as is so
specified; and
(d) such documents as are so specified.
(2) A person must not, without reasonable excuse, refuse or fail to comply
with a notice served under subsection (1).
Penalty: Imprisonment for 6 months or the corresponding fine fixed by section
4B of the Crimes Act 1914.
(3) It is a reasonable excuse for the purposes of subsection (2) that to
send the statement or document to the Commission might tend to incriminate the
person or make the person liable to forfeiture or a penalty.
INDUSTRY COMMISSION ACT 1989 - SECT 16
Power to hold hearings
SECT
16. (1) The Commission must hold hearings for the purposes of an inquiry.
(2) The Commission may hold public seminars, conduct workshops and establish
working groups and task forces for the purposes of an inquiry.
(3) Before the Commission begins to hold hearings for the purposes of an
inquiry, it must give reasonable notice in each State and internal Territory,
by advertisement published in a newspaper circulating in the State or
Territory, of its intention to hold the hearings, the subject of the hearings
and the time and place at which the first of the hearings is to be begun.
(4) Sections 40 and 41 apply to a hearing, so far as those sections are
capable of so applying, as if the hearing were a meeting of the Commission.
INDUSTRY COMMISSION ACT 1989 - SECT 17
Procedure at hearings
SECT
17. (1) Subject to subsection (2), a hearing must be held in public.
(2) If the Commission is satisfied that it is desirable to do so in the
public interest because of the confidential nature of any evidence or matter
or for any other reason, it may:
(a) direct that a hearing or a part of a hearing is to take place in private
and give directions as to the persons who may be present; or
(b) give directions prohibiting or restricting the publication of evidence
given before the hearing or of matters contained in documents given to the
Commission.
(3) A person must not contravene a direction given under paragraph (2) (b).
Penalty: Imprisonment for 6 months or the corresponding fine fixed by section
4B of the Crimes Act 1914.
INDUSTRY COMMISSION ACT 1989 - SECT 18
Summons to person to attend hearing
SECT
18. (1) The Chairperson, or the Commissioner nominated to preside at the
hearing concerned, may summon a person in writing to appear at a hearing to
give evidence and to produce such documents as are specified in the summons.
(2) Where a person has been served with a summons to appear at a hearing,
the Chairperson, or the Commissioner nominated to preside at the hearing, may,
at any time before the person has so appeared, direct the person in writing to
send to the Commission, on or before a day specified in the direction:
(a) a statement, signed by the person, setting out such information as is so
specified; and
(b) such documents as are specified in the summons;
and, if such a direction is served on the person, a prosecution for an offence
against section 19 or 20 must not be brought against the person in relation to
the summons.
(3) A person must not, without reasonable excuse, refuse or fail to comply
with a direction under subsection (2).
Penalty: Imprisonment for 6 months or the corresponding fine fixed by section
4B of the Crimes Act 1914.
(4) It is a reasonable excuse for the purposes of subsection (3) that to
send a statement or document to the Commission might tend to incriminate the
person or make the person liable to forfeiture or a penalty.
INDUSTRY COMMISSION ACT 1989 - SECT 19
Failure of person summoned to attend
SECT
19. A person served with a summons under subsection 18 (1) to appear at a
hearing must not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused, or released from further
attendance, by the Commissioner presiding at the hearing.
Penalty: Imprisonment for 6 months or the corresponding fine fixed by section
4B of the Crimes Act 1914.
INDUSTRY COMMISSION ACT 1989 - SECT 20
Refusal to answer questions or produce documents
SECT
20. (1) A person appearing as a witness at a hearing must not, without
reasonable excuse:
(a) refuse or fail to answer a question that the person is required to
answer by the Commissioner presiding at the hearing; or
(b) refuse or fail to produce a document that the person was required to
produce by a summons under subsection 18 (1) served on the person.
Penalty: Imprisonment for 6 months or the corresponding fine fixed by section
4B of the Crimes Act 1914.
(2) It is a reasonable excuse for the purposes of subsection (1) that the
answer or the production of the document might tend to incriminate the person
or make the person liable to forfeiture or a penalty.
INDUSTRY COMMISSION ACT 1989 - SECT 21
False or misleading evidence or information
SECT
21. (1) A person must not:
(a) give to the Commission, whether orally or in writing, information that
the person knows to be false or misleading in a material particular; or
(b) at a hearing before the Commission, give evidence that the person knows
to be false or misleading in a material particular; or
(c) send to the Commission, under section 15 or 18, a statement or document
containing matter that the person knows to be false or misleading in a
material particular.
Penalty: Imprisonment for 6 months or the corresponding fine fixed by section
4B of the Crimes Act 1914.
(2) Subsection (1) does not apply to a statement or document if, when the
person sends or gives it to the Commission or produces it at a hearing, the
person informs the Commission that it is false or misleading in a material
particular and specifies where it is, to the person's knowledge, false or
misleading.
INDUSTRY COMMISSION ACT 1989 - SECT 22
Contempt of Commission
SECT
22. A person must not:
(a) hinder, obstruct, molest or interfere with a Commissioner in the
exercise of powers or the performance of functions or duties as a
Commissioner; or
(b) create a disturbance, or take part in creating or continuing a
disturbance, in a place where the Commission is holding a hearing; or
(c) do anything else that would, if the Commission were a court of record,
constitute a contempt in the face of that court.
Penalty: Imprisonment for 6 months or the corresponding fine fixed by section
4B of the Crimes Act 1914.
INDUSTRY COMMISSION ACT 1989 - SECT 23
Powers of Commission in relation to documents produced
SECT
23. Where documents are produced or given to the Commission under this Part,
the Commission:
(a) may take possession of, and make copies of or take extracts from, the
documents; and
(b) may keep possession of the documents for such period as is necessary for
the purposes of the inquiry to which they relate; and
(c) during that period must permit them to be inspected at all reasonable
times by persons who would be entitled to inspect them if they were not in the
possession of the Commission.
INDUSTRY COMMISSION ACT 1989 - SECT 24
Written statements and submissions to be made public
SECT
24. Where:
(a) the Commission receives information, or a submission, in the form of a
written statement; or
(b) under section 15 or 18, a person sends a statement to the Commission;
or
(c) evidence is given at a hearing by the tendering of a signed statement;
or
(d) a document is given or sent to the Commission in connection with an
inquiry, or is produced at a hearing;
the Commission must make available to the public in any way it thinks fit the
contents of the statement or document, other than any matter:
(e) that the person from whom the statement or document was received objects
to being made public; and
(f) the evidence of which the Commission is satisfied would have been taken
in private if that evidence had been given orally at a hearing and the person
giving that evidence had objected to giving it in public.
INDUSTRY COMMISSION ACT 1989 - SECT 25
Allowances to witnesses
SECT
25. A person who attends at a hearing under a summons served under section
18 is entitled to be paid by the Commonwealth such allowances and expenses as
are prescribed.
INDUSTRY COMMISSION ACT 1989 - SECT 26
Person prejudiced in employment because of assisting Commission
SECT
26. (1) A person must not:
(a) refuse to employ another person; or
(b) dismiss, or threaten to dismiss, another person from his or her
employment; or
(c) prejudice, or threaten to prejudice, another person in his or her
employment; or
(d) intimidate or coerce, impose any pecuniary or other penalty on, or take
any other disciplinary action in relation to, another person;
for the reason, or for reasons that include the reason:
(e) that the other person has given, or proposes to give, information or
documents to the Commission in connection with an inquiry; or
(f) has given, or proposes to give, evidence at a hearing held for the
purposes of an inquiry; or
(g) has produced, or proposes to produce, documents at a hearing held for
the purposes of an inquiry; or
(h) has sent, or proposes to send, to the Commission a statement or
documents under section 15 or 18 in connection with an inquiry.
Penalty: Imprisonment for 6 months or the corresponding fine fixed by section
4B of the Crimes Act 1914.
(2) In any proceedings for an offence against subsection (1), if it is
established that an action of a kind referred to in any of paragraphs (1) (a)
to (d) (inclusive) took place, the burden lies on the defendant of
establishing that the action was not done for a reason referred to in any of
paragraphs (1) (e) to (h) (inclusive).
INDUSTRY COMMISSION ACT 1989 - SECT 27
Limitation of powers under this Part
SECT
27. (1) The powers of the Commission under section 15, subsection 17 (2),
section 18, paragraph 20 (1) (a) and section 23 may be exercised only as
provided in this section.
(2) The powers may be exercised in relation to:
(a) a person holding, or performing the duties of, an office or appointment
under a law of the Commonwealth or of a Territory; or
(b) a Commonwealth body.
(3) The powers may also be exercised in relation to any person for the
purposes of an inquiry, to the extent that the subject-matter of the inquiry
relates to a subject of Commonwealth power.
(4) Section (3) does not enable a power to be exercised to the extent that
it would impair the capacity of a State to execute its constitutional powers.
INDUSTRY COMMISSION ACT 1989 - PART 5
PART 5 - CONSTITUTION OF COMMISSION
INDUSTRY COMMISSION ACT 1989 - SECT 28
Constitution of Commission
SECT
28. (1) The Commission consists of:
(a) a Chairperson; and
(b) not fewer than 4 nor more than 8 other Commissioners.
(2) At least one of the Commissioners must be a person who has knowledge of,
and at least 3 years experience, in an employed or voluntary capacity, in,
environmental matters.
(3) The exercise of the powers and the performance of the functions of the
Commission are not affected merely because of:
(a) a vacancy in the office of Chairperson; or
(b) the number of Commissioners falling below 5 for a period of not more
than 3 months.
INDUSTRY COMMISSION ACT 1989 - SECT 29
Terms of appointment
SECT
29. (1) The Commissioners are to be appointed by the Governor-General on a
full-time basis.
(2) A Commissioner is to be appointed for such period, not exceeding 5
years, as is specified in the instrument of appointment, but is eligible for
re-appointment.
(3) A Commissioner holds office on such terms (if any) in respect of matters
not provided for by this Act as are determined by the Governor- General.
INDUSTRY COMMISSION ACT 1989 - SECT 30
Outside employment
SECT
30. Except with the consent of the Minister, a Commissioner must not engage
in paid employment outside the duties of his or her office.
INDUSTRY COMMISSION ACT 1989 - SECT 31
Associate Commissioners
SECT
31. (1) The Minister, after consultation with the Chairperson, may appoint
persons to be Associate Commissioners.
(2) An Associate Commissioner is to be appointed for such period, not
exceeding 5 years, as is specified in the instrument of appointment, but is
eligible for re-appointment.
(3) An Associate Commissioner may be appointed on a full-time or part-time
basis.
(4) Subject to this Part, an Associate Commissioner holds office on such
terms and conditions as the Minister determines.
(5) An Associate Commissioner has the powers, and is to perform the
functions and duties, of a Commissioner in relation to an inquiry and report
by a Division of the Commission of which he or she is a member.
INDUSTRY COMMISSION ACT 1989 - SECT 32
Executive Commissioner
SECT
32. (1) The Chairperson may appoint one of the Commissioners to be the
Executive Commissioner.
(2) The Executive Commissioner must assist the Chairperson in the exercise
of the powers and the performance of the functions of the Chairperson.
INDUSTRY COMMISSION ACT 1989 - SECT 33
Remuneration and allowances
SECT
33. (1) A Commissioner or an Associate Commissioner is to be paid such
remuneration as is determined by the Remuneration Tribunal, but, if no
determination of that remuneration by the Tribunal is in operation, is to be
paid such remuneration as is prescribed.
(2) A Commissioner or an Associate Commissioner is to be paid such
allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
INDUSTRY COMMISSION ACT 1989 - SECT 34
Leave of absence
SECT
34. (1) Subject to section 87E of the Public Service Act 1922, a
Commissioner and a full-time Associate Commissioner has such recreation leave
entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a Commissioner and a full-time Associate
Commissioner leave of absence, other than recreation leave, on such terms and
conditions as to remuneration or otherwise as the Minister determines.
(3) The Minister may, by written instrument, delegate to the Chairperson the
Minister's powers under subsection (2) (other than powers in relation to the
Chairperson).
INDUSTRY COMMISSION ACT 1989 - SECT 35
Acting appointments
SECT
35. (1) The Minister may appoint a Commissioner to act as the Chairperson:
(a) during a vacancy in the office of Chairperson; or
(b) during any period, or during all periods, when the Chairperson is absent
from duty or from Australia or is, for any other reason, unable to perform the
duties of the office.
(2) The Minister may appoint a person (including an Associate Commissioner)
to act as a Commissioner other than the Chairperson:
(a) during a vacancy in the office of the Commissioner; or
(b) during any period, or during all periods, when the Commissioner is
absent from duty or from Australia or is, for any other reason (including the
reason that the Commissioner is acting as Chairperson), unable to perform the
duties of the office.
(3) A person appointed to act during a vacancy must not continue so to act
for more than 12 months.
(4) For the purposes of subsection (2), the Commission is to be treated as
having 8 offices of Commissioner other than the Chairperson.
(5) Anything done by a person purporting to act under an appointment under
this section is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in or in connection with the
appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion for the person to act had not arisen or had ceased.
INDUSTRY COMMISSION ACT 1989 - SECT 36
Resignation
SECT
36. (1) A Commissioner may resign by written instrument delivered to the
Governor-General.
(2) An Associate Commissioner may resign by written instrument delivered to
the Minister.
INDUSTRY COMMISSION ACT 1989 - SECT 37
Retirement
SECT
37. (1) The Governor-General may, with the consent of the Commissioner,
retire a Commissioner on the ground of invalidity.
(2) The Minister may, with the consent of the Associate Commissioner, retire
an Associate Commissioner on the ground of invalidity.
INDUSTRY COMMISSION ACT 1989 - SECT 38
Suspension and removal from office
SECT
38. (1) The Governor-General may suspend a Commissioner or an Associate
Commissioner from office for proved misbehaviour or physical or mental
incapacity.
(2) If the Governor-General does so, the Minister is to cause a statement of
the ground of the suspension to be laid before each House of the Parliament
within 7 sitting days of the House after the suspension.
(3) Where the statement has been laid before a House of the Parliament, that
House may, within 15 sitting days of that House after the day on which the
statement has been laid before it, by resolution, declare that the
Commissioner or Associate Commissioner should be restored to office and, if
each House so passes a resolution, the Governor-General is to terminate the
suspension.
(4) If, at the end of 15 sitting days of a House of the Parliament after the
day on which the statement has been laid before that House, that House has not
passed such a resolution, the Governor-General may remove the Commissioner or
Associate Commissioner from office.
(5) If:
(a) a Commissioner or Associate Commissioner becomes bankrupt, applies to
take the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with creditors or makes an assignment of remuneration for their
benefit; or
(b) a Commissioner:
(i) engages, except with the consent of the Minister, in paid
employment outside the duties of his or her office; or
(ii) is absent from duty, except on leave of absence, for 14
consecutive days or for 28 days in any 12 months; or
(c) an Associate Commissioner engages in paid employment that, in the
opinion of the Minister, conflicts with the proper performance of his or her
duties; or
(d) a Commissioner or Associate Commissioner fails, without reasonable
excuse, to comply with section 42;
the Governor-General may remove the Commissioner or Associate Commissioner
from office.
(7) A Commissioner or Associate Commissioner who is suspended from office
under this section is not entitled to be paid any remuneration or allowances
in respect of the period of suspension unless he or she is restored to office.
(8) A Commissioner or Associate Commissioner is not to be removed from
office except as provided by this section.
INDUSTRY COMMISSION ACT 1989 - SECT 38A
Removal taken to be retirement on ground of invalidity
SECT
38A. (1) If:
(a) a Commissioner or Associate Commissioner is an eligible employee
for the purposes of the Superannuation Act 1976; and
(b) is removed from office under section 38 on the ground of physical
or mental incapacity;
for the purposes of that Act, he or she is taken to have been retired on the
ground of invalidity within the meaning of Part IVA of that Act on the day on
which he or she was suspended from office.
(2) In spite of subsection (1), section 54C of the Superannuation Act 1976
applies in relation to the Commissioner or Associate Commissioner.
(3) If a Commissioner or Associate Commissioner:
(a) is a member of the superannuation scheme established by deed
under the Superannuation Act 1990; and
(b) is removed from office under section 38 on the ground of physical
or mental incapacity;
for the purposes of that Act, he or she is taken to have been retired on the
ground of invalidity within the meaning of that Act on the day on which he or
she was suspended from office.
(4) In spite of subsection (3), section 13 of the Superannuation Act 1990
applies in relation to the Commissioner or Associate Commissioner.
INDUSTRY COMMISSION ACT 1989 - SECT 38B
Retirement on ground of invalidity under the Superannuation Acts
SECT
38B. (1) In spite of anything contained in sections 37 and 38, a
Commissioner or Associate Commissioner who:
(a) is an eligible employee for the purposes of the Superannuation
Act 1976; and
(b) has not reached his or her maximum retiring age within the
meaning of that Act;
is not capable of being retired from office on the ground of invalidity within
the meaning of Part IVA of that Act unless the Commonwealth Superannuation
Board of Trustees No. 2 has given a certificate under section 54C of that Act.
(2) In spite of anything contained in sections 37 and 38, a Commissioner or
Associate Commissioner who:
(a) is a member of the superannuation scheme established by deed
under the Superannuation Act 1990; and
(b) is under 60 years of age;
is not capable of being retired from office on the ground of invalidity within
the meaning of that Act unless the Commonwealth Superannuation Board of
Trustees No. 1 has given a certificate under section 13 of that Act.
INDUSTRY COMMISSION ACT 1989 - SECT 39
Delegation by Chairperson
SECT
39. The Chairperson may, by written instrument, delegate any of his or her
powers and functions under this Act:
(a) to a Commissioner; or
(b) to an Associate Commissioner for the purposes of an inquiry and report
to be made by a Division of the Commission of which the Associate Commissioner
is a member.
INDUSTRY COMMISSION ACT 1989 - SECT 40
Meetings of Commission
SECT
40. (1) The Chairperson is to convene such meetings of the Commission as he
or she thinks necessary for the efficient performance of the functions of the
Commission.
(2) Meetings are to be held at such places as the Chairperson determines.
(3) The Chairperson must preside at all meetings.
(4) The Chairperson may give directions regarding the procedure to be
followed at or in connection with a meeting.
(5) At a meeting:
(a) the Chairperson and 3 other Commissioners form a quorum; and
(b) questions must be decided by a majority of votes of the Commissioners
present and voting; and
(c) the Chairperson has a deliberative vote and, if necessary, also has a
casting vote.
(6) The Chairperson may permit a person to participate in, or a Commissioner
to form part of a quorum at, a meeting by means of telephone, closed circuit
television or any other method of communication.
(7) A power of the Chairperson under subsection (1), (2), (4) or (6) must be
exercised, so far as practicable, only after consultation with the
Commissioners.
(8) This section has effect subject to section 41.
INDUSTRY COMMISSION ACT 1989 - SECT 41
Chairperson may authorise Commission to sit in Divisions
SECT
41. (1) For the purposes of a particular inquiry and report, the Chairperson
may, by written instrument, determine that the powers of the Commission under
this Act may be exercised by a Division constituted by the Chairperson and the
other Commissioner or Commissioners specified in the determination.
(2) Where the Chairperson has made such a determination, he or she may, by
written instrument, at any time before the Division has completed the inquiry
and report, amend the determination in any respect, and, if the constitution
of the Division is changed, the Division as constituted after the change may
complete the inquiry and report.
(3) For the purposes of an inquiry and report specified in a determination
under subsection (1), the Commission is to be taken to consist of the Division
specified in the determination.
(4) The Chairperson is not required to attend a meeting of a Division if he
or she does not think fit to do so and, in that case, subsection 40 (3) does
not apply.
(5) At a meeting of a Division at which the Chairperson is not present, a
Commissioner nominated for the purpose by the Chairperson must preside.
(6) At a meeting of a Division constituted by 3 or more Commissioners, 2
Commissioners form a quorum.
(7) Two or more Divisions may at any time meet and exercise powers of the
Commission under this Act.
INDUSTRY COMMISSION ACT 1989 - SECT 42
Disclosure of interests
SECT
42. (1) The Chairperson must give written notice to the Minister of all
direct and indirect pecuniary interests that he or she has or acquires in a
business or in a body corporate carrying on a business.
(2) Where the Chairperson has or acquires an interest, pecuniary or
otherwise, that could conflict with the proper performance of his or her
functions during an inquiry and the Chairperson takes part in the inquiry, the
interest must be disclosed in the report resulting from the inquiry.
(3) Where a Commissioner (other than the Chairperson) has or acquires an
interest, pecuniary or otherwise, that could conflict with the proper
performance of his or her functions during an inquiry:
(a) he or she must disclose the interest to the Chairperson; and
(b) except with the consent of the Chairperson, he or she shall not take
part, or continue to take part, in the inquiry; and
(c) if he or she takes part, or continues to take part, in the inquiry - the
interest must be disclosed in the report resulting from the inquiry.
(4) Where the Chairperson becomes aware that a Commissioner (other than the
Chairperson) has, in relation to an inquiry, an interest of a kind referred to
in subsection (3):
(a) if the Chairperson considers that the Commissioner should not take part,
or should not continue to take part, in the inquiry - he or she must give a
direction to the Commissioner accordingly; or
(b) in any other case - the interest must be disclosed in the report
resulting from the inquiry.
INDUSTRY COMMISSION ACT 1989 - PART 6
PART 6 - MISCELLANEOUS
INDUSTRY COMMISSION ACT 1989 - SECT 43
Staff
SECT
43. (1) Subject to subsection (2), the staff required to assist the
Commission in the performance of its functions are to be persons appointed or
employed under the Public Service Act 1922.
(2) The Chairperson may engage other persons to provide services for the
Commission.
(3) The Chairperson has all the powers of a Secretary under the Public
Service Act 1922 so far as they relate to the branch of the Australian Public
Service comprising the staff of the Commission.
INDUSTRY COMMISSION ACT 1989 - SECT 44
Protection of Commissioners and witnesses
SECT
44. (1) A Commissioner has, in the performance of duties under this Act, the
same protection and immunity as a Justice of the High Court.
(2) A person appearing as a witness at a hearing 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.
(3) A person appearing at a hearing on behalf of another person has the same
protection and immunity as a barrister has in appearing for a party in
proceedings in the High Court.
(4) Where a person, for the purposes of this Act, sends a statement or
document to the Commission, subsection (2) applies to the person as if the
person appeared as a witness at a hearing and produced that statement or
document at the hearing.
INDUSTRY COMMISSION ACT 1989 - SECT 45
Annual report
SECT
45. (1) The Commission must, as soon as practicable after 30 June in each
year, prepare and give to the Minister a report (in this section called an
"annual report") on the operations of the Commission during the year that
ended on that day.
(2) In an annual report, the Commission must, so far as practicable, also
report on:
(a) the economic performance of industry and the principal factors affecting
that performance; and
(b) assistance and regulations affecting industry, matters referred to in
paragraphs 11 (1) (a), (b) and (c), and the effect of such assistance,
regulations and matters on industry and the Australian economy generally.
(3) The Minister must cause a copy of an annual report to be laid before
each House of the Parliament within 15 sitting days of that House after the
date of receipt of the report by the Minister.
(4) In this section:
"assistance" includes any act that, directly or indirectly, assists a person
to carry on a business or activity or confers a pecuniary benefit on, or
results in a pecuniary benefit accruing to, a person in respect of carrying on
a business or activity.
INDUSTRY COMMISSION ACT 1989 - SECT 46
Conduct by directors, servants and agents
SECT
46. (1) Where, in proceedings for an offence against this Act, it is
necessary to establish the state of mind of a body corporate in relation to
particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, servant or agent of the
body corporate within the scope of his or her actual or apparent authority;
and
(b) that the director, servant or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director,
servant or agent of the body corporate within the scope of his or her actual
or apparent authority is to be taken, for the purposes of a prosecution for an
offence against this Act, to have been engaged in also by the body corporate
unless the body corporate establishes that it took reasonable precautions and
exercised due diligence to avoid the conduct.
(3) Where, in proceedings for an offence against this Act, it is necessary
to establish the state of mind of a person other than a body corporate in
relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a servant or agent of the person
within the scope of his or her actual or apparent authority; and
(b) that the servant or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body corporate
by a servant or agent of the person within the scope of his or her actual or
apparent authority is to be taken, for the purposes of a prosecution for an
offence against this Act, to have been engaged in also by the first-mentioned
person unless he or she establishes that he or she took reasonable precautions
and exercised due diligence to avoid the conduct.
(5) Where:
(a) a person other than a body corporate is convicted of an offence; and
(b) the person would not have been convicted of the offence if subsections
(3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that offence.
(6) A reference in subsection (1) or (3) to the state of mind of a person
includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person's reasons for the intention, opinion, belief or purpose.
(7) A reference in this section to a director of a body corporate includes a
reference to a constituent member of a body corporate incorporated for a
public purpose by a law of the Commonwealth, of a State or of a Territory.
(8) A reference in this section to engaging in conduct includes a reference
to failing or refusing to engage in conduct.
INDUSTRY COMMISSION ACT 1989 - SECT 47
Regulations
SECT
47. The Governor-General may make regulations, not inconsistent with this
Act, prescribing all 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.
INDUSTRY COMMISSION ACT 1989 - PART 7
PART 7 - REPEALS AND TRANSITIONAL PROVISIONS
INDUSTRY COMMISSION ACT 1989 - DIVISION 1
Division 1 - Repeals
INDUSTRY COMMISSION ACT 1989 - SECT 48
Repeals
SECT
48. (1) The Industries Assistance Commission Act 1973 is repealed.
(2) The provisions of the Inter-State Commission Act 1975 (other than Part
II, sections 19, 20 and 24 and subsection 30 (1)) are repealed.
(3) Subject to subsection (4), the Governor-General may, by Proclamation,
repeal Part II, sections 19, 20 and 24 and subsection 30 (1) of the
Inter-State Commission Act 1975.
(4) A Proclamation must not be made under subsection (3) at any time when a
person holds office as a member of the Inter-State Commission.
INDUSTRY COMMISSION ACT 1989 - DIVISION 2
Division 2 - Transitional Provisions
INDUSTRY COMMISSION ACT 1989 - SECT 49
Definitions
SECT
49. In this Division, unless the contrary intention appears:
"commencement" means the commencement of this Part;
"IAC" means the Industries Assistance Commission;
"IAC Act" means the Industries Assistance Commission Act 1973;
"ISC" means the Inter-State Commission;
"ISC Act" means the Inter-State Commission Act 1975.
INDUSTRY COMMISSION ACT 1989 - SECT 50
Staff
SECT
50. A person who, immediately before the commencement, was a member of the
staff of the IAC or the ISC is to be treated after the commencement as a
member of the staff of the Commission.
INDUSTRY COMMISSION ACT 1989 - SECT 51
Appropriations
SECT
51. (1) Where an Appropriation Act has appropriated, or appropriates, money
for the purposes of the IAC or the ISC, the Act is to be treated as having
appropriated, or as appropriating, the money for the purposes of the
Commission.
(2) Subsection (1) does not apply to money that has been spent before the
commencement or money appropriated under section 19 of the ISC Act.
INDUSTRY COMMISSION ACT 1989 - SECT 52
Commissioners - members of the ISC
SECT
52. (1) This section has effect in spite of Part 5.
(2) Where a person appointed as a Commissioner was a member of the ISC
immediately before the commencement, then, until the end of the period for
which the person was appointed as a member of the ISC:
(a) the remuneration and allowances to which the person is entitled as a
Commissioner are to be not less than the remuneration and allowances
applicable from time to time to the office of a member of the ISC; and
(b) the terms of appointment of the person as a Commissioner are to be not
less favourable than the terms applicable from time to time to the office of a
member of the ISC; and
(c) the person may be removed from office as a Commissioner by the
Governor-General on an address from both Houses of the Parliament in the same
session praying for the removal on the ground of proved misbehaviour or
incapacity, but the person is not to be removed otherwise.
(3) If section 19 of the ISC Act is repealed before the end of the period
referred to in subsection (2), that subsection applies as if that section had
not been repealed.
INDUSTRY COMMISSION ACT 1989 - SECT 53
Commissioners - members of the IAC
SECT
53. (1) This section has effect in spite of Part 5.
(2) Where a person appointed as a Commissioner was a member of the IAC
immediately before the commencement, then, until the end of the period for
which the person was appointed as a member of the IAC:
(a) the remuneration and allowances to which the person is entitled as a
Commissioner are to be not less than the remuneration and allowances that
would have been applicable from time to time to the office of a member of the
IAC if the IAC Act had not been repealed; and
(b) the terms of appointment of the person as a Commissioner are to be not
less favourable than the terms that would have been applicable from time to
time to the office of a member of the IAC if the IAC Act had not been
repealed.
(3) In this section:
"member", in relation to the IAC, means a Commissioner within the meaning of
the IAC Act.
INDUSTRY COMMISSION ACT 1989 - SECT 54
Inquiries by IAC
SECT
54. (1) Where an inquiry or a report under the IAC Act had been begun but
had not been completed before the commencement, it may be completed by the
Commission as if it had been begun under this Act.
(2) Where an inquiry had been completed under the IAC Act but a report had
not been begun in respect of the inquiry, the Commission may make the report
as if the inquiry had been held under this Act.
INDUSTRY COMMISSION ACT 1989 - SECT 55
Records of IAC and ISC
SECT
55. (1) Records of the IAC and the ISC become records of the Commission, and
any information or documents that were treated as confidential by the IAC or
the ISC must be treated as confidential by the Commission until the Commission
determines, with the consent of the person who supplied the information or
documents, that the circumstances that originally required their
confidentiality no longer apply.
(2) Where a direction given by the ISC under paragraph 12 (2) (b) of the ISC
Act was in effect immediately before the commencement, it has effect after the
commencement as if it were a direction given by the Commission under paragraph
17 (2) (b) of this Act.
INDUSTRY COMMISSION ACT 1989 - SECT 56
Protection of witnesses
SECT
56. A person who gave evidence, made a statement or produced a document in a
hearing before the IAC or an investigation by the ISC is entitled to the same
protection as if the person had done so in a hearing before the Commission.
INDUSTRY COMMISSION ACT 1989 - SECT 57
References to Tariff Board and IAC
SECT
57. A reference in a law of the Commonwealth to the Tariff Board or to the
IAC is to be read as a reference to the Commission, except in relation to a
report made by the Tariff Board or the IAC before the commencement.