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Trade Practices Act 1974

  • - C2005C00358
  • In force - Superseded Version
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Act No. 51 of 1974 as amended, taking into account amendments up to Act No. 45 of 2005
An Act relating to certain Trade Practices
Administered by: DCITA; DITR; DOTARS; Treasury
Registered 23 May 2005
Start Date 23 May 2005
End Date 30 Jun 2005
Table of contents.
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Collapse Volume 1Volume 1
Part I—Preliminary
1 Short title [see Note 1]
2 Object of this Act
2A Application of Act to Commonwealth and Commonwealth authorities
2B Application of Act to States and Territories
2C Activities that are not business
2D Exemption of certain activities of local government bodies from Part IV
3 Repeal
4 Interpretation
4A Subsidiary, holding and related bodies corporate
4B Consumers
4C Acquisition, supply and re‑supply
4D Exclusionary provisions
4E Market
4F References to purpose or reason
4G Lessening of competition to include preventing or hindering competition
4H Application of Act in relation to leases and licences of land and buildings
4J Joint ventures
4K Loss or damage to include injury
4KA Personal injury
4L Severability
4M Saving of law relating to restraint of trade and breaches of confidence
4N Extended application of Part IIIA
5 Extended application of Parts IV, IVA, V, VB and VC
6 Extended application of Parts IV, IVA, IVB, V, VA, VB and VC
6AA Application of the Criminal Code
Part II—The Australian Competition and Consumer Commission
6A Establishment of Commission
7 Constitution of Commission
8 Terms and conditions of appointment
8A Associate members
8AB State/Territory AER members taken to be associate members
9 Remuneration
10 Deputy Chairperson
11 Acting Chairperson
12 Leave of absence
13 Termination of appointment of members of the Commission
14 Termination of appointment of associate members of the Commission
15 Resignation
16 Arrangement of business
17 Disclosure of interests by members
18 Meetings of Commission
19 Chairperson may direct Commission to sit in Divisions
25 Delegation by Commission
26 Delegation by Commission in relation to unconscionable conduct and consumer protection
27 Staff of Commission
27A Consultants
28 Functions of Commission in relation to dissemination of information, law reform and research
29 Commission to comply with directions of Minister and requirements of the Parliament
Part IIA—The National Competition Council
29A Establishment of Council
29B Functions and powers of Council
29C Membership of Council
29D Terms and conditions of office
29E Acting Council President
29F Remuneration of Councillors
29G Leave of absence
29H Termination of appointment of Councillors
29I Resignation of Councillors
29J Arrangement of Council business
29K Disclosure of interests by Councillors
29L Council meetings
29M Staff to help Council
29N Consultants
29O Annual report
Part III—The Australian Competition Tribunal
30 Constitution of Tribunal
31 Qualifications of members of Tribunal
31A Appointment of Judge as presidential member of Tribunal not to affect tenure etc.
32 Terms and conditions of appointment
33 Remuneration and allowances of members of Tribunal
34 Acting appointments
35 Suspension and removal of members of Tribunal
36 Resignation
37 Constitution of Tribunal for particular matters
38 Validity of determinations
39 Arrangement of business
40 Disclosure of interests by members of Tribunal
41 Presidential member to preside
42 Decision of questions
43 Member of Tribunal ceasing to be available
43A Counsel assisting Tribunal
43B Consultants
44 Staff of Tribunal
44A Acting appointments
Part IIIAA—The Australian Energy Regulator (AER)
Division 1—Preliminary
44AB Definitions
44AC This Part binds the Crown
44AD Extra‑territorial operation
Division 2—Establishment of the AER
44AE Establishment of the AER
44AF AER to hold money and property on behalf of the Com monwealth
44AG Constitution of the AER
Division 3—Functions and powers of the AER
44AH Commonwealth functions
44AI Commonwealth consent to conferral of functions etc. on AER
44AJ How duty is imposed
44AK When a State/Territory energy law imposes a duty
44AL Powers of the AER
Division 4—Administrative provisions relating to the AER
Subdivision A—Appointment etc. of members
44AM Appointment of Commonwealth AER member
44AN Membership of AER and Commission
44AO Acting appointment of Commonwealth AER member
44AP Appointment of State/Territory AER members
44AQ Acting appointment of State/Territory AER member
44AR AER Chair
44AS Acting AER Chair
44AT Remuneration of AER members
44AU Additional remuneration of AER Chair
44AV Leave of absence
44AW Other terms and conditions
44AX Outside employment
44AY Disclosure of interests
44AZ Resignation
44AAB Termination of appointment
Subdivision B—Staff etc. to assist the AER
44AAC Staff etc. to assist the AER
Subdivision C—Meetings of the AER etc.
44AAD Meetings
44AAE Resolutions without meetings
Subdivision D—Miscellaneous
44AAF Confidentiality
44AAG Federal Court may make certain orders
44AAH Delegation by the AER
44AAI Fees
44AAJ Annual report
44AAK Regulations may deal with transitional matters
Part IIIA—Access to services
Division 1—Preliminary
44B Definitions
44C How this Part applies to partnerships and joint ventures
44D Meaning of designated Minister
44DA The principles in the Competition Principles Agreement have status as guidelines
44E This Part binds the Crown
Division 2—Declared services
Subdivision A—Recommendation by the Council
44F Person may request recommendation
44G Limits on the Council recommending declaration of a service
Subdivision B—Declaration by the designated Minister
44H Designated Minister may declare a service
44I Duration and effect of declaration
44J Revocation of declaration
44K Review of declaration
44L Review of decision not to revoke a declaration
Subdivision C—Miscellaneous
44M Recommendation for a Ministerial decision on effectiveness of access regime
44N Ministerial decision on effectiveness of access regime
44O Review of Ministerial decision on effectiveness of access regime
44P State or Territory ceasing to be a party to Competition Principles Agreement
44Q Register of decisions and declarations
Division 3—Access to declared services
Subdivision A—Scope of Division
44R Constitutional limits on operation of this Division
Subdivision B—Notification of access disputes
44S Notification of access disputes
44T Withdrawal of notifications
Subdivision C—Arbitration of access disputes
44U Parties to the arbitration
44V Determination by Commission
44W Restrictions on access determinations
44X Matters that the Commission must take into account
44Y Commission may terminate arbitration in certain cases
Subdivision D—Procedure in arbitrations
44Z Constitution of Commission for conduct of arbitration
44ZA Member of the Commission presiding at an arbitration
44ZB Reconstitution of Commission
44ZC Determination of questions
44ZD Hearing to be in private
44ZE Right to representation
44ZF Procedure of Commission
44ZG Particular powers of Commission
44ZH Power to take evidence on oath or affirmation
44ZI Failing to attend as a witness
44ZJ Failing to answer questions etc.
44ZK Intimidation etc.
44ZL Party may request Commission to treat material as confidential
44ZM Sections 18 and 19 do not apply to the Commission in an arbitration
44ZN Parties to pay costs of an arbitration
Subdivision E—Effect of determinations
44ZO Operation of determinations
Subdivision F—Review of det erminations
44ZP Review by Tribunal
44ZQ Provisions that do not apply in relation to a Tribunal review
44ZR Appeals to Federal Court from determinations of the Tribunal
44ZS Operation and implementation of a determination that is subject to appeal
44ZT Transmission of documents
Subdivision G—Variation of determinations
44ZU Variation of determinations
Division 4—Registered contracts for access to declared services
44ZV Constitutional limits on operation of this Division
44ZW Registration of contract
44ZX Review of decision not to register contract
44ZY Effect of registration of contract
Division 5—Hindering access to declared services
44ZZ Prohibition on hindering access to declared services
Division 6—Access undertakings for non‑declared services
44ZZA Access undertakings by providers
44ZZAA Access codes prepared by industry bodies
44ZZAB Commission may rely on industry body consultations
44ZZB Undertakings cannot be accepted in certain cases
44ZZC Register of access undertakings and access codes
Division 7—Enforcement and remedies
44ZZD Enforcement of determinations
44ZZE Enforcement of prohibition on hindering access
44ZZF Consent injunctions
44ZZG Interim injunctions
44ZZH Factors relevant to granting a restraining injunction
44ZZI Factors relevant to granting a mandatory injunction
44ZZJ Enforcement of access undertakings
44ZZK Discharge or variation of injunction or other order
Division 8—Miscellaneous
44ZZL Register of determinations
44ZZM Commonwealth consent to conferral of functions etc. on the Commission or Tribunal by State or Territory laws
44ZZMA How duty is imposed
44ZZMB When a law of a State or Territory imposes a duty
44ZZN Compensation for acquisition of property
44ZZNA Operation of Parts IV and VII not affected by this Part
44ZZO Conduct by directors, servants or agents
44ZZP Regulations about review by the Tribunal
44ZZQ Regulations about fees for inspection etc. of registers
Part IV—Restrictive trade practices
45 Contracts, arrangements or underst andings that restrict dealings or affect competition
45A Contracts, arrangements or understandings in relation to prices
45B Covenants affecting competition
45C Covenants in relation to prices
45D Secondary boycotts for the purpose of causing substantial loss or damage
45DA Secondary boycotts for the purpose of causing substantial lessening of competition
45DB Boycotts affecting trade or commerce
45DC Involvement and liability of employee organisations
45DD Situations in which boycotts permitted
45E Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services
45EA Provisions contravening section 45E not to be given effect
45EB Sections 45D to 45EA do not affect operation of other provisions of Part
46 Misuse of market power
46A Misuse of market power—corporation with substantial degree of power in trans‑Tasman market
46B No immunity from jurisdiction in relation to certain New Zealand laws
47 Exclusive dealing
48 Resale price maintenance
50 Prohibition of acquisitions that would result in a substantial lessening of competition
50A Acquisitions that occur outside Australia
51 Exceptions
51AAA Concurrent operation of State and Territory laws
Part IVA—Unconscionable conduct
51AAB Part does not apply to financial services
51AA Unconscionable conduct within the meaning of the unwritten law of the States and Territories
51AB Unconscionable conduct
51AC Unconscionable conduct in business transactions
51ACAA Concurrent operation of State and Territory laws
Part IVB—Industry codes
51ACA Definitions
51AD Contravention of industry codes
51AE Regulations relating to industry codes
51AEA Concurrent operation of State and Territory laws
Part V—Consumer protection
Division 1—Unfair practices
51AF Part does not apply to financial services
51A Interpretation
52 Misleading or deceptive conduct
53 False or misleading representations
53A False representations and other misleading or offensive conduct in relation to land
53B Misleading conduct in relation to employment
53C Cash price to be stated in certain circumstances
54 Offering gifts and prizes
55 Misleading conduct to which Industrial Property Convention applies
55A Certain misleading conduct in relation to services
56 Bait advertising
57 Referral selling
58 Accepting payment without intending or being able to supply as ordered
59 Misleading representations about certain business activities
60 Harassment and coercion
63A Unsolicited credit and debit cards
64 Assertion of right to payment for unsolicited goods or services or for making entry in directory
65 Liability of recipient of unsolicited goods
65A Application of provisions of Division to prescribed information providers
Division 1AAA—Pyramid selling
65AAA Overview
65AAB Definitions
65AAC Pyramid selling schemes—participation
65AAD What is a pyramid selling scheme?
65AAE Marketing schemes—are they pyramid selling schemes?
Division 1AA—Country of origin representations
Subdivision A—General
65AA Overview
65AB General test for country of origin representations
65AC Test for representations that goods are product of/produce of a country
65AD Test for representations made by means of prescribed logo
65AE Substantial transformation of goods
65AF Method of working out costs of production or manufacture
Subdivision B—Cost of production or manufacture of goods
65AG Definitions
65AH Cost of producing or manufacturing goods
65AJ Expenditure on materials
65AK Expenditure on labour
65AL Expenditure on overheads
65AM Regulations may prescribe rules for determining the local percentage costs of production or manufacture
Subdivision C—Evidentiary matters
65AN Proceedings relating to false, misleading or deceptive conduct or representations
Division 1A—Product safety and product information
65B Warning notice to public
65C Product safety standards and unsafe goods
65D Product information standards
65E Power of Minister to declare product safety or information standards
65F Compulsory product recall
65G Compliance with product recall order
65H Loss or damage caused by contravention of product recall order
65J Opportunity for conference to be afforded before certain powers exercised
65K Recommendation after conclusion of conference
65L Exception in case of danger to public
65M Conference after goods banned
65N Recommendation after conclusion of conference
65P Minister to have regard to recommendation of Commission
65Q Power to obtain information, documents and evidence
65R Notification of voluntary recall
65S Copies of certain notices to be given to suppliers or published in certain newspapers
65T Certain action not to affect insurance contracts
Division 2—Conditions and warranties in consumer transactions
66 Interpretation
66A Convention on Contracts for the International Sale of Goods
67 Conflict of laws
68 Application of provisions not to be excluded or modified
68A Limitation of liability for breach of certain conditions or warranties
68B Limitation of liability in relation to supply of recreational services
69 Implied undertakings as to title, encumbrances and quiet possession
70 Supply by description
71 Implied undertakings as to quality or fitness
72 Supply by sample
73 Liability for loss or damage from breach of certain contracts
73A Continuing credit contract
73B Loan contract
74 Warranties in relation to the supply of services
Division 2A—Actions against manufacturers and importers of goods
74A Interpretation
74B Actions in respect of unsuitable goods
74C Actions in respect of false descriptions
74D Actions in respect of goods of unmerchantable quality
74E Actions in respect of non‑correspondence with samples etc.
74F Actions in respect of failure to provide facilities for repairs or parts
74G Actions in respect of non‑compliance with express warranty
74H Right of seller to recover against manufacturer or importer
74J Time for commencing actions
74K Application of Division not to be excluded or modified
74L Limitation in certain circumstances of liability of manufacturer to seller
74M The effect of Part VIB on this Division
Division 3—Miscellaneous
75 Saving of other laws and remedies
75A Rescission of contracts
Part VA—Liability of manufacturers and importers for defective goods
75AA Interpretation
75AB Certain interpretation provisions (importers and others taken to be manufacturers etc.) apply to this Part
75AC Meaning of goods having defect
75AD Liability for defective goods causing injuries—loss by injured individual
75AE Liability for defective goods causing injuries—loss by person other than injured individual
75AF Liability for defective goods—loss relating to other goods
75AG Liability for defective goods—loss relating to buildings etc.
75AH Survival of liability actions
75AI No liability action where workers’ compensation or law giving effect to an international agreement applies
75AJ Unidentified manufacturer
75AK Defences
75AL Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard
75AM Liability joint and several
75AN Contributory acts or omissions to reduce compensation
75AO Time for commencing actions
75AP Application of provisions not to be excluded or modified
75AQ Representative actions by the Commission
75AR Saving of other laws and remedies
75AS Jurisdiction of courts
Part VB—Price exploitation in relation to A New Tax System
75AT Definitions
75AU Price exploitation in relation to New Tax System changes
75AV Price exploitation—guidelines about when prices contravene section 75AU
75AW Commission may issue notice to corporation it considers has contravened section 75AU
75AX Commission may issue notice to aid prevention of price exploitation
75AY Commission may monitor prices
75AYA Prohibition on misrepresenting the effect of the New Tax System changes
75AZ Reporting
Part VC—Offences
Division 1—Application of Part
75AZA Part does not apply to financial services
Division 2—Offences relating to unfair practices
75AZB Interpretation
75AZC False or misleading representations
75AZD False representations and other misleading or offensive conduct in relation to land
75AZE Misleading conduct in relation to employment
75AZF Cash price to be stated in certain circumstances
75AZG Offering gifts and prizes
75AZH Misleading conduct to which Industrial Property Convention applies
75AZI Certain misleading conduct in relation to services
75AZJ Bait advertising
75AZK Referral selling
75AZL Accepting payment without intending or being able to supply as ordered
75AZM Misleading representations about certain business activities
75AZN Harassment and coercion
75AZO Pyramid selling
75AZP Unsolicited credit and debit cards
75AZQ Assertion of right to payment for unsolicited goods or services or for making an entry in a directory
75AZR Application of provisions of Division to prescribed information providers
Division 3—Offences relating to product safety and product information
75AZS Product safety standards and unsafe goods
75AZT Product information standards
75AZU Compliance with product recall notice
Part VI—Enforcement and remedies
75B Interpretation
76 Pecuniary penalties
76A Defence to proceedings under section 76 relating to a contravention of section 75AYA
76B What happens if substantially the same conduct is a contravention of section 75AYA and an offence?
77 Civil action for recovery of pecuniary penalties
78 Criminal proceedings not to be brought for contraventions of Part IV or V or section 75AU or 75AYA
79 Offences against Part VC etc.
79A Enforcement and recovery of certain fines
79B Preference must be given to compensation for victims
80 Injunctions
80AA Division 7 of Part VI of the Workplace Relations Act does not prevent granting of injunction
80B Section 75AU contraventions—orders limiting prices or requiring refunds of money
81 Divestiture
82 Actions for damages
83 Finding in proceedings to be evidence
84 Conduct by directors, servants or agents
85 Defences
86 Jurisdiction of courts
86AA Limit on jurisdiction of Federal Magistrates Court in proceedings under section 82
86A Transfer of matters
86B Transfer of certain proceedings to Family Court
86C Non‑punitive orders
86D Punitive orders—adverse publicity
87 Other orders
87A Power of Court to prohibit payment or transfer of moneys or other property
87AA Special provision relating to Court’s exercise of powers under this Part in relation to boycott conduct
87AB Limit on liability for misleading or deceptive conduct
87B Enforcement of undertakings
87C Enforcement of undertakings—Secretary to the Department
87CA Intervention by Commission
87CAA The effect of Part VIB on this Part
Part VIA—Proportionate liability for misleading and deceptive conduct
87CB Application of Part
87CC Certain concurrent wrongdoers not to have benefit of apportionment
87CD Proportionate liability for apportionable claims
87CE Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware
87CF Contribution not recoverable from defendant
87CG Subsequent actions
87CH Joining non‑party concurrent wrongdoer in the action
87CI Application of Part
Part VIB—Claims for damages or compensation for death or personal injury
Division 1—Introduction
87D Definitions
87E Proceedings to which this Part applies
Division 2—Limitation periods
87F Basic rule
87G Date of discoverability
87H Long‑stop period
87J The effect of minority or incapacity
87K The effect of close relationships
Division 3—Limits on personal injury damages for non‑economic loss
87L Limits on damages for non‑economic loss
87M Maximum amount of damages for non‑economic loss
87P Most extreme cases
87Q Cases of 33% or more (but not 100%) of a most extreme case
87R Cases of 15% or more (but less than 33%) of a most extreme case
87S Cases of less than 15% of a most extreme case
87T Referring to earlier decisions on non‑economic loss
Division 4—Limits on personal injury damages for loss of earning capacity
87U Personal injury damages for loss of earning capacity
87V Average weekly earnings
Division 5—Limits on personal injury damages for gratuitous attendant care services
87W Personal injury damages for gratuitous attendant care services for plaintiff
87X Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant care services
Division 6—Other limits on personal injury damages
87Y Damages for future economic loss—discount rate
87Z Damages for loss of superannuation entitlements
87ZA Interest on damages
87ZB Exemplary and aggravated damages
Division 7—Structured settlements
87ZC Court may make orders under section 87 for structured settlements
Part VII—Authorizations and notifications in respect of restrictive trade practices
Division 1—Authorizations
87ZD Definitions
88 Power of Commission to grant authorisations
89 Procedure for applications and the keeping of a register
90 Determination of applications for authorisations
90A Commission to afford opportunity for conference before determining application for authorisation
90B Commission may rely on consultations undertaken by the AEMC
91 Grant and variation of authorisations
91A Minor variations of authorizations
91B Revocation of an authorization
91C Revocation of an authorization and substitution of a replacement
Division 2—Notifications
93 Notification of exclusive dealing
93A Commission to afford opportunity for conference before giving notice in relation to exclusive dealing
95 Register of notifications
Part VIIA—Prices surveillance
Division 1—Preliminary
95A Interpretation
95B Exempt supplies
95C Application of Part
95D Crown to be bound
95F Simplified overview of this Part
Division 2—Commission’s functions under this Part
95G Commission’s functions under this Part
Division 3—Price inquiries
Subdivision A—Holding of inquiries
95H Price inquiries
95J Content of inquiry notices
95K Period for completing inquiry
95L Notice of holding of inquiry
95M Notice of extension of period for completing inquiry
95N Price restrictions
Subdivision B—Reports on inquiries
95P Copies of report to be made available
95Q Notification of proposed prices after receipt of report
Subdivision C—Procedure at inquiries
95R Public inquiries etc.
95S Taking of evidence on oath or affirmation
95T Failure of witness to attend
95U Refusal to be sworn or to answer question
95V Protection of witnesses
95W Allowances to witnesses
Division 4—Price notifications
95X Declarations by Minister or Commission
95Y Declarations in relation to State or Territory authorities
95Z Price restrictions
95ZA Later notices modifying a locality notice
95ZB Applicable period in relation to a locality notice
95ZC Register of price notifications
95ZD Delegation by Commission
Division 5—Price monitoring
95ZE Directions to monitor prices, costs and profits of an industry
95ZF Directions to monitor prices, costs and profits of a business
95ZG Exceptions to price monitoring
Division 6—Other provisions
95ZH Ministerial directions
95ZI Inquiries by an unincorporated body or a group of 2 or more individuals
95ZJ Withdrawal of notices
95ZK Power to obtain information or documents
95ZL Inspection of documents etc.
95ZM Retention of documents
95ZN Confidential information
95ZO Immunity
95ZP Secrecy: members or staff members of the Commission etc.
95ZQ Secrecy: persons involved in inquiries by bodies other than the Commission
96 Acts constituting engaging in resale price maintenance
96A Resale price maintenance in relation to services
97 Recommended prices
98 Withholding the supply of goods
99 Statements as to the minimum price of goods
100 Evidentiary provisions
Part IX—Review by Tribunal of Determinations of Commission
Division 1—Applications for Review
101 Applications for review
101A Application for review of notice under subsection 93(3) or (3A)
102 Functions and powers of Tribunal
Division 2—Procedure and Evidence
103 Procedure generally
104 Regulations as to certain matters
105 Power to take evidence on oath
106 Hearings to be in public except in special circumstances
107 Evidence in form of written statement
108 Taking of evidence by single member
109 Participants in proceedings before Tribunal
110 Representation
Expand Volume 2Volume 2
Volume 3

Trade Practices Act 1974

Act No. 51 of 1974 as amended

Volume 1 includes:                   Table of Contents
                                                Sections 1 – 110

This compilation was prepared on 23 May 2005
taking into account amendments up to Act No. 45 of 2005

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Volume 2 includes:                   Table of Contents
                                               
Sections 10.01 – 173
                                                Schedule

Volume 3 includes:                   Note 1
                                                Table of Acts
                                                Act Notes
                                                Table of Amendments
                                                Note 2
                                                Table A

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department,
Canberra

  

 

 


Contents

Part I—Preliminary                                                                                                                1

1............ Short title [see Note 1]....................................................................... 1

2............ Object of this Act............................................................................... 1

2A......... Application of Act to Commonwealth and Commonwealth authorities 1

2B......... Application of Act to States and Territories...................................... 2

2C......... Activities that are not business.......................................................... 2

2D......... Exemption of certain activities of local government bodies from Part IV                4

3............ Repeal................................................................................................. 4

4............ Interpretation...................................................................................... 4

4A......... Subsidiary, holding and related bodies corporate............................... 5

4B......... Consumers.......................................................................................... 5

4C......... Acquisition, supply and re-supply.................................................... 5

4D......... Exclusionary provisions..................................................................... 5

4E.......... Market................................................................................................ 5

4F.......... References to purpose or reason........................................................ 5

4G......... Lessening of competition to include preventing or hindering competition              5

4H......... Application of Act in relation to leases and licences of land and buildings             5

4J.......... Joint ventures..................................................................................... 5

4K......... Loss or damage to include injury........................................................ 5

4KA...... Personal injury.................................................................................... 5

4L.......... Severability......................................................................................... 5

4M........ Saving of law relating to restraint of trade and breaches of confidence 5

4N......... Extended application of Part IIIA...................................................... 5

5............ Extended application of Parts IV, IVA, V, VB and VC...................... 5

6............ Extended application of Parts IV, IVA, IVB, V, VA, VB and VC..... 5

6AA...... Application of the Criminal Code...................................................... 5

Part II—The Australian Competition and Consumer Commission             5

6A......... Establishment of Commission............................................................ 5

7............ Constitution of Commission.............................................................. 5

8............ Terms and conditions of appointment............................................... 5

8A......... Associate members............................................................................. 5

8AB...... State/Territory AER members taken to be associate members.......... 5

9............ Remuneration...................................................................................... 5

10.......... Deputy Chairperson........................................................................... 5

11.......... Acting Chairperson............................................................................. 5

12.......... Leave of absence................................................................................. 5

13.......... Termination of appointment of members of the Commission........... 5

14.......... Termination of appointment of associate members of the Commission 5

15.......... Resignation......................................................................................... 5

16.......... Arrangement of business.................................................................... 5

17.......... Disclosure of interests by members.................................................. 5

18.......... Meetings of Commission.................................................................... 5

19.......... Chairperson may direct Commission to sit in Divisions.................... 5

25.......... Delegation by Commission................................................................. 5

26.......... Delegation by Commission in relation to unconscionable conduct and consumer protection 5

27.......... Staff of Commission........................................................................... 5

27A....... Consultants......................................................................................... 5

28.......... Functions of Commission in relation to dissemination of information, law reform and research            5

29.......... Commission to comply with directions of Minister and requirements of the Parliament       5

Part IIA—The National Competition Council                                                         5

29A....... Establishment of Council.................................................................... 5

29B....... Functions and powers of Council....................................................... 5

29C....... Membership of Council...................................................................... 5

29D....... Terms and conditions of office........................................................... 5

29E........ Acting Council President.................................................................... 5

29F........ Remuneration of Councillors.............................................................. 5

29G....... Leave of absence................................................................................. 5

29H....... Termination of appointment of Councillors....................................... 5

29I......... Resignation of Councillors.................................................................. 5

29J........ Arrangement of Council business....................................................... 5

29K....... Disclosure of interests by Councillors............................................... 5

29L........ Council meetings................................................................................. 5

29M...... Staff to help Council........................................................................... 5

29N....... Consultants......................................................................................... 5

29O....... Annual report..................................................................................... 5

Part III—The Australian Competition Tribunal                                                    5

30.......... Constitution of Tribunal..................................................................... 5

31.......... Qualifications of members of Tribunal............................................... 5

31A....... Appointment of Judge as presidential member of Tribunal not to affect tenure etc.              5

32.......... Terms and conditions of appointment............................................... 5

33.......... Remuneration and allowances of members of Tribunal...................... 5

34.......... Acting appointments.......................................................................... 5

35.......... Suspension and removal of members of Tribunal............................... 5

36.......... Resignation......................................................................................... 5

37.......... Constitution of Tribunal for particular matters.................................. 5

38.......... Validity of determinations.................................................................. 5

39.......... Arrangement of business.................................................................... 5

40.......... Disclosure of interests by members of Tribunal................................ 5

41.......... Presidential member to preside........................................................... 5

42.......... Decision of questions......................................................................... 5

43.......... Member of Tribunal ceasing to be available....................................... 5

43A....... Counsel assisting Tribunal.................................................................. 5

43B....... Consultants......................................................................................... 5

44.......... Staff of Tribunal................................................................................. 5

44A....... Acting appointments.......................................................................... 5

Part IIIAA—The Australian Energy Regulator (AER)                                     5

Division 1—Preliminary                                                                                              5

44AB.... Definitions.......................................................................................... 5

44AC.... This Part binds the Crown................................................................. 5

44AD.... Extra-territorial operation................................................................... 5

Division 2—Establishment of the AER                                                               5

44AE..... Establishment of the AER.................................................................. 5

44AF..... AER to hold money and property on behalf of the Commonwealth. 5

44AG.... Constitution of the AER.................................................................... 5

Division 3—Functions and powers of the AER                                              5

44AH.... Commonwealth functions................................................................... 5

44AI...... Commonwealth consent to conferral of functions etc. on AER......... 5

44AJ..... How duty is imposed......................................................................... 5

44AK.... When a State/Territory energy law imposes a duty........................... 5

44AL..... Powers of the AER............................................................................. 5

Division 4—Administrative provisions relating to the AER                   5

Subdivision A—Appointment etc. of members                                                       5

44AM... Appointment of Commonwealth AER member................................. 5

44AN.... Membership of AER and Commission.............................................. 5

44AO.... Acting appointment of Commonwealth AER member...................... 5

44AP..... Appointment of State/Territory AER members................................ 5

44AQ.... Acting appointment of State/Territory AER member........................ 5

44AR.... AER Chair.......................................................................................... 5

44AS..... Acting AER Chair............................................................................... 5

44AT.... Remuneration of AER members......................................................... 5

44AU.... Additional remuneration of AER Chair.............................................. 5

44AV.... Leave of absence................................................................................. 5

44AW... Other terms and conditions................................................................ 5

44AX.... Outside employment.......................................................................... 5

44AY.... Disclosure of interests........................................................................ 5

44AZ.... Resignation......................................................................................... 5

44AAB. Termination of appointment.............................................................. 5

Subdivision B—Staff etc. to assist the AER                                                           5

44AAC. Staff etc. to assist the AER................................................................ 5

Subdivision C—Meetings of the AER etc.                                                               5

44AAD. Meetings............................................................................................. 5

44AAE.. Resolutions without meetings............................................................ 5

Subdivision D—Miscellaneous                                                                                 5

44AAF.. Confidentiality.................................................................................... 5

44AAG. Federal Court may make certain orders.............................................. 5

44AAH. Delegation by the AER....................................................................... 5

44AAI... Fees..................................................................................................... 5

44AAJ.. Annual report..................................................................................... 5

44AAK. Regulations may deal with transitional matters.................................. 5

Part IIIA—Access to services                                                                                         5

Division 1—Preliminary                                                                                              5

44B....... Definitions.......................................................................................... 5

44C....... How this Part applies to partnerships and joint ventures................. 5

44D....... Meaning of designated Minister......................................................... 5

44DA.... The principles in the Competition Principles Agreement have status as guidelines               5

44E........ This Part binds the Crown................................................................. 5

Division 2—Declared services                                                                                5

Subdivision A—Recommendation by the Council                                                 5

44F........ Person may request recommendation................................................. 5

44G....... Limits on the Council recommending declaration of a service............ 5

Subdivision B—Declaration by the designated Minister                                     5

44H....... Designated Minister may declare a service......................................... 5

44I......... Duration and effect of declaration...................................................... 5

44J........ Revocation of declaration................................................................... 5

44K....... Review of declaration......................................................................... 5

44L........ Review of decision not to revoke a declaration.................................. 5

Subdivision C—Miscellaneous                                                                                 5

44M...... Recommendation for a Ministerial decision on effectiveness of access regime       5

44N....... Ministerial decision on effectiveness of access regime....................... 5

44O....... Review of Ministerial decision on effectiveness of access regime...... 5

44P........ State or Territory ceasing to be a party to Competition Principles Agreement      5

44Q....... Register of decisions and declarations................................................ 5

Division 3—Access to declared services                                                          5

Subdivision A—Scope of Division                                                                            5

44R....... Constitutional limits on operation of this Division............................ 5

Subdivision B—Notification of access disputes                                                     5

44S........ Notification of access disputes........................................................... 5

44T....... Withdrawal of notifications................................................................ 5

Subdivision C—Arbitration of access disputes                                                     5

44U....... Parties to the arbitration..................................................................... 5

44V....... Determination by Commission........................................................... 5

44W...... Restrictions on access determinations................................................ 5

44X....... Matters that the Commission must take into account....................... 5

44Y....... Commission may terminate arbitration in certain cases..................... 5

Subdivision D—Procedure in arbitrations                                                             5

44Z....... Constitution of Commission for conduct of arbitration..................... 5

44ZA.... Member of the Commission presiding at an arbitration..................... 5

44ZB..... Reconstitution of Commission........................................................... 5

44ZC..... Determination of questions................................................................ 5

44ZD.... Hearing to be in private...................................................................... 5

44ZE..... Right to representation....................................................................... 5

44ZF..... Procedure of Commission................................................................... 5

44ZG.... Particular powers of Commission...................................................... 5

44ZH.... Power to take evidence on oath or affirmation................................... 5

44ZI...... Failing to attend as a witness.............................................................. 5

44ZJ...... Failing to answer questions etc........................................................... 5

44ZK.... Intimidation etc................................................................................... 5

44ZL..... Party may request Commission to treat material as confidential....... 5

44ZM... Sections 18 and 19 do not apply to the Commission in an arbitration 5

44ZN.... Parties to pay costs of an arbitration................................................. 5

Subdivision E—Effect of determinations                                                                 5

44ZO.... Operation of determinations............................................................... 5

Subdivision F—Review of determinations                                                               5

44ZP..... Review by Tribunal............................................................................ 5

44ZQ.... Provisions that do not apply in relation to a Tribunal review........... 5

44ZR..... Appeals to Federal Court from determinations of the Tribunal......... 5

44ZS..... Operation and implementation of a determination that is subject to appeal           5

44ZT..... Transmission of documents................................................................ 5

Subdivision G—Variation of determinations                                                         5

44ZU.... Variation of determinations................................................................ 5

Division 4—Registered contracts for access to declared services     5

44ZV..... Constitutional limits on operation of this Division............................ 5

44ZW.... Registration of contract...................................................................... 5

44ZX.... Review of decision not to register contract........................................ 5

44ZY..... Effect of registration of contract......................................................... 5

Division 5—Hindering access to declared services                                    5

44ZZ..... Prohibition on hindering access to declared services.......................... 5

Division 6—Access undertakings for non-declared services                 5

44ZZA.. Access undertakings by providers...................................................... 5

44ZZAA.......................................... Access codes prepared by industry bodies  5

44ZZAB....................... Commission may rely on industry body consultations  5

44ZZB.. Undertakings cannot be accepted in certain cases.............................. 5

44ZZC.. Register of access undertakings and access codes............................... 5

Division 7—Enforcement and remedies                                                             5

44ZZD.. Enforcement of determinations........................................................... 5

44ZZE.. Enforcement of prohibition on hindering access................................. 5

44ZZF.. Consent injunctions............................................................................ 5

44ZZG.. Interim injunctions.............................................................................. 5

44ZZH.. Factors relevant to granting a restraining injunction........................... 5

44ZZI... Factors relevant to granting a mandatory injunction.......................... 5

44ZZJ... Enforcement of access undertakings................................................... 5

44ZZK.. Discharge or variation of injunction or other order............................. 5

Division 8—Miscellaneous                                                                                        5

44ZZL.. Register of determinations.................................................................. 5

44ZZM. Commonwealth consent to conferral of functions etc. on the Commission or Tribunal by State or Territory laws............................................................................................................ 5

44ZZMAHow duty is imposed........................................................................ 5

44ZZMBWhen a law of a State or Territory imposes a duty.......................... 5

44ZZN.. Compensation for acquisition of property......................................... 5

44ZZNA...................... Operation of Parts IV and VII not affected by this Part  5

44ZZO.. Conduct by directors, servants or agents........................................... 5

44ZZP.. Regulations about review by the Tribunal.......................................... 5

44ZZQ.. Regulations about fees for inspection etc. of registers....................... 5

Part IV—Restrictive trade practices                                                                           5

45.......... Contracts, arrangements or understandings that restrict dealings or affect competition         5

45A....... Contracts, arrangements or understandings in relation to prices........ 5

45B....... Covenants affecting competition........................................................ 5

45C....... Covenants in relation to prices........................................................... 5

45D....... Secondary boycotts for the purpose of causing substantial loss or damage            5

45DA.... Secondary boycotts for the purpose of causing substantial lessening of competition            5

45DB.... Boycotts affecting trade or commerce................................................ 5

45DC.... Involvement and liability of employee organisations......................... 5

45DD.... Situations in which boycotts permitted............................................. 5

45E........ Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services............................................................................................................ 5

45EA..... Provisions contravening section 45E not to be given effect............... 5

45EB..... Sections 45D to 45EA do not affect operation of other provisions of Part            5

46.......... Misuse of market power.................................................................... 5

46A....... Misuse of market power—corporation with substantial degree of power in trans-Tasman market       5

46B....... No immunity from jurisdiction in relation to certain New Zealand laws                5

47.......... Exclusive dealing................................................................................. 5

48.......... Resale price maintenance.................................................................... 5

50.......... Prohibition of acquisitions that would result in a substantial lessening of competition          5

50A....... Acquisitions that occur outside Australia.......................................... 5

51.......... Exceptions.......................................................................................... 5

51AAA. Concurrent operation of State and Territory laws............................. 5

Part IVA—Unconscionable conduct                                                                             5

51AAB. Part does not apply to financial services............................................ 5

51AA.... Unconscionable conduct within the meaning of the unwritten law of the States and Territories            5

51AB.... Unconscionable conduct..................................................................... 5

51AC.... Unconscionable conduct in business transactions.............................. 5

51ACAAConcurrent operation of State and Territory laws............................. 5

Part IVB—Industry codes                                                                                                  5

51ACA. Definitions.......................................................................................... 5

51AD.... Contravention of industry codes........................................................ 5

51AE..... Regulations relating to industry codes................................................ 5

51AEA.. Concurrent operation of State and Territory laws............................. 5

Part V—Consumer protection                                                                                          5

Division 1—Unfair practices                                                                                     5

51AF..... Part does not apply to financial services............................................ 5

51A....... Interpretation...................................................................................... 5

52.......... Misleading or deceptive conduct........................................................ 5

53.......... False or misleading representations.................................................... 5

53A....... False representations and other misleading or offensive conduct in relation to land               5

53B....... Misleading conduct in relation to employment.................................. 5

53C....... Cash price to be stated in certain circumstances................................ 5

54.......... Offering gifts and prizes..................................................................... 5

55.......... Misleading conduct to which Industrial Property Convention applies.. 5

55A....... Certain misleading conduct in relation to services.............................. 5

56.......... Bait advertising................................................................................... 5

57.......... Referral selling.................................................................................... 5

58.......... Accepting payment without intending or being able to supply as ordered             5

59.......... Misleading representations about certain business activities............. 5

60.......... Harassment and coercion.................................................................... 5

63A....... Unsolicited credit and debit cards....................................................... 5

64.......... Assertion of right to payment for unsolicited goods or services or for making entry in directory         5

65.......... Liability of recipient of unsolicited goods.......................................... 5

65A....... Application of provisions of Division to prescribed information providers           5

Division 1AAA—Pyramid selling                                                                           5

65AAA. Overview............................................................................................ 5

65AAB. Definitions.......................................................................................... 5

65AAC. Pyramid selling schemes—participation............................................ 5

65AAD. What is a pyramid selling scheme?..................................................... 5

65AAE.. Marketing schemes—are they pyramid selling schemes?.................. 5

Division 1AA—Country of origin representations                                       5

Subdivision A—General                                                                                             5

65AA.... Overview............................................................................................ 5

65AB.... General test for country of origin representations............................. 5

65AC.... Test for representations that goods are product of/produce of a country               5

65AD.... Test for representations made by means of prescribed logo.............. 5

65AE..... Substantial transformation of goods................................................... 5

65AF..... Method of working out costs of production or manufacture............. 5

Subdivision B—Cost of production or manufacture of goods                              5

65AG.... Definitions.......................................................................................... 5

65AH.... Cost of producing or manufacturing goods......................................... 5

65AJ..... Expenditure on materials.................................................................... 5

65AK.... Expenditure on labour......................................................................... 5

65AL..... Expenditure on overheads................................................................... 5

65AM... Regulations may prescribe rules for determining the local percentage costs of production or manufacture           5

Subdivision C—Evidentiary matters                                                                        5

65AN.... Proceedings relating to false, misleading or deceptive conduct or representations  5

Division 1A—Product safety and product information                                5

65B....... Warning notice to public..................................................................... 5

65C....... Product safety standards and unsafe goods........................................ 5

65D....... Product information standards........................................................... 5

65E........ Power of Minister to declare product safety or information standards  5

65F........ Compulsory product recall................................................................. 5

65G....... Compliance with product recall order................................................ 5

65H....... Loss or damage caused by contravention of product recall order....... 5

65J........ Opportunity for conference to be afforded before certain powers exercised          5

65K....... Recommendation after conclusion of conference................................ 5

65L........ Exception in case of danger to public................................................. 5

65M...... Conference after goods banned........................................................... 5

65N....... Recommendation after conclusion of conference................................ 5

65P........ Minister to have regard to recommendation of Commission.............. 5

65Q....... Power to obtain information, documents and evidence...................... 5

65R....... Notification of voluntary recall.......................................................... 5

65S........ Copies of certain notices to be given to suppliers or published in certain newspapers          5

65T....... Certain action not to affect insurance contracts................................. 5

Division 2—Conditions and warranties in consumer transactions       5

66.......... Interpretation...................................................................................... 5

66A....... Convention on Contracts for the International Sale of Goods........... 5

67.......... Conflict of laws.................................................................................. 5

68.......... Application of provisions not to be excluded or modified................. 5

68A....... Limitation of liability for breach of certain conditions or warranties. 5

68B....... Limitation of liability in relation to supply of recreational services.. 5

69.......... Implied undertakings as to title, encumbrances and quiet possession 5

70.......... Supply by description........................................................................ 5

71.......... Implied undertakings as to quality or fitness..................................... 5

72.......... Supply by sample.............................................................................. 5

73.......... Liability for loss or damage from breach of certain contracts............. 5

73A....... Continuing credit contract.................................................................. 5

73B....... Loan contract...................................................................................... 5

74.......... Warranties in relation to the supply of services................................. 5

Division 2A—Actions against manufacturers and importers of goods 5

74A....... Interpretation...................................................................................... 5

74B....... Actions in respect of unsuitable goods............................................... 5

74C....... Actions in respect of false descriptions............................................. 5

74D....... Actions in respect of goods of unmerchantable quality..................... 5

74E........ Actions in respect of non-correspondence with samples etc............. 5

74F........ Actions in respect of failure to provide facilities for repairs or parts 5

74G....... Actions in respect of non-compliance with express warranty........... 5

74H....... Right of seller to recover against manufacturer or importer............... 5

74J........ Time for commencing actions............................................................. 5

74K....... Application of Division not to be excluded or modified.................... 5

74L........ Limitation in certain circumstances of liability of manufacturer to seller                5

74M...... The effect of Part VIB on this Division............................................. 5

Division 3—Miscellaneous                                                                                        5

75.......... Saving of other laws and remedies...................................................... 5

75A....... Rescission of contracts....................................................................... 5

Part VA—Liability of manufacturers and importers for defective goods 5

75AA.... Interpretation...................................................................................... 5

75AB.... Certain interpretation provisions (importers and others taken to be manufacturers etc.) apply to this Part         5

75AC.... Meaning of goods having defect......................................................... 5

75AD.... Liability for defective goods causing injuries—loss by injured individual               5

75AE..... Liability for defective goods causing injuries—loss by person other than injured individual 5

75AF..... Liability for defective goods—loss relating to other goods................ 5

75AG.... Liability for defective goods—loss relating to buildings etc............... 5

75AH.... Survival of liability actions................................................................. 5

75AI...... No liability action where workers’ compensation or law giving effect to an international agreement applies        5

75AJ..... Unidentified manufacturer.................................................................. 5

75AK.... Defences............................................................................................. 5

75AL..... Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard.............................................................................................. 5

75AM... Liability joint and several................................................................... 5

75AN.... Contributory acts or omissions to reduce compensation................... 5

75AO.... Time for commencing actions............................................................. 5

75AP..... Application of provisions not to be excluded or modified................. 5

75AQ.... Representative actions by the Commission....................................... 5

75AR.... Saving of other laws and remedies...................................................... 5

75AS..... Jurisdiction of courts.......................................................................... 5

Part VB—Price exploitation in relation to A New Tax System                    5

75AT.... Definitions.......................................................................................... 5

75AU.... Price exploitation in relation to New Tax System changes................. 5

75AV.... Price exploitation—guidelines about when prices contravene section 75AU          5

75AW... Commission may issue notice to corporation it considers has contravened section 75AU    5

75AX.... Commission may issue notice to aid prevention of price exploitation 5

75AY.... Commission may monitor prices........................................................ 5

75AYA. Prohibition on misrepresenting the effect of the New Tax System changes            5

75AZ.... Reporting............................................................................................ 5

Part VC—Offences                                                                                                                5

Division 1—Application of Part                                                                               5

75AZA. Part does not apply to financial services............................................ 5

Division 2—Offences relating to unfair practices                                          5

75AZB.. Interpretation...................................................................................... 5

75AZC.. False or misleading representations.................................................... 5

75AZD. False representations and other misleading or offensive conduct in relation to land               5

75AZE.. Misleading conduct in relation to employment.................................. 5

75AZF.. Cash price to be stated in certain circumstances................................ 5

75AZG. Offering gifts and prizes..................................................................... 5

75AZH. Misleading conduct to which Industrial Property Convention applies.. 5

75AZI... Certain misleading conduct in relation to services.............................. 5

75AZJ... Bait advertising................................................................................... 5

75AZK. Referral selling.................................................................................... 5

75AZL.. Accepting payment without intending or being able to supply as ordered             5

75AZM Misleading representations about certain business activities............. 5

75AZN. Harassment and coercion.................................................................... 5

75AZO. Pyramid selling................................................................................... 5

75AZP.. Unsolicited credit and debit cards....................................................... 5

75AZQ. Assertion of right to payment for unsolicited goods or services or for making an entry in a directory  5

75AZR.. Application of provisions of Division to prescribed information providers           5

Division 3—Offences relating to product safety and product information            5

75AZS.. Product safety standards and unsafe goods........................................ 5

75AZT.. Product information standards........................................................... 5

75AZU. Compliance with product recall notice............................................... 5

Part VI—Enforcement and remedies                                                                           5

75B....... Interpretation...................................................................................... 5

76.......... Pecuniary penalties............................................................................. 5

76A....... Defence to proceedings under section 76 relating to a contravention of section 75AYA        5

76B....... What happens if substantially the same conduct is a contravention of section 75AYA and an offence?               5

77.......... Civil action for recovery of pecuniary penalties................................ 5

78.......... Criminal proceedings not to be brought for contraventions of Part IV or V or section 75AU or 75AYA              5

79.......... Offences against Part VC etc.............................................................. 5

79A....... Enforcement and recovery of certain fines......................................... 5

79B....... Preference must be given to compensation for victims...................... 5

80.......... Injunctions.......................................................................................... 5

80AA.... Division 7 of Part VI of the Workplace Relations Act does not prevent granting of injunction             5

80AB.... Stay of injunctions.............................................................................. 5

80B....... Section 75AU contraventions—orders limiting prices or requiring refunds of money            5

81.......... Divestiture.......................................................................................... 5

82.......... Actions for damages........................................................................... 5

83.......... Finding in proceedings to be evidence................................................ 5

84.......... Conduct by directors, servants or agents........................................... 5

85.......... Defences............................................................................................. 5

86.......... Jurisdiction of courts.......................................................................... 5

86AA.... Limit on jurisdiction of Federal Magistrates Court in proceedings under section 82              5

86A....... Transfer of matters............................................................................. 5

86B....... Transfer of certain proceedings to Family Court............................... 5

86C....... Non-punitive orders........................................................................... 5

86D....... Punitive orders—adverse publicity.................................................... 5

87.......... Other orders........................................................................................ 5

87A....... Power of Court to prohibit payment or transfer of moneys or other property      5

87AA.... Special provision relating to Court’s exercise of powers under this Part in relation to boycott conduct               5

87AB.... Limit on liability for misleading or deceptive conduct....................... 5

87B....... Enforcement of undertakings.............................................................. 5

87C....... Enforcement of undertakings—Secretary to the Department............ 5

87CA.... Intervention by Commission.............................................................. 5

87CAA. The effect of Part VIB on this Part.................................................... 5

Part VIA—Proportionate liability for misleading and deceptive conduct 5

87CB..... Application of Part............................................................................. 5

87CC..... Certain concurrent wrongdoers not to have benefit of apportionment 5

87CD.... Proportionate liability for apportionable claims................................ 5

87CE..... Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware 5

87CF..... Contribution not recoverable from defendant..................................... 5

87CG.... Subsequent actions............................................................................. 5

87CH.... Joining non-party concurrent wrongdoer in the action....................... 5

87CI...... Application of Part............................................................................. 5

Part VIB—Claims for damages or compensation for death or personal injury       5

Division 1—Introduction                                                                                            5

87D....... Definitions.......................................................................................... 5

87E........ Proceedings to which this Part applies............................................... 5

Division 2—Limitation periods                                                                               5

87F........ Basic rule............................................................................................ 5

87G....... Date of discoverability....................................................................... 5

87H....... Long-stop period................................................................................ 5

87J........ The effect of minority or incapacity.................................................. 5

87K....... The effect of close relationships......................................................... 5

Division 3—Limits on personal injury damages for non-economic loss                5

87L........ Limits on damages for non-economic loss.......................................... 5

87M...... Maximum amount of damages for non-economic loss........................ 5

87N....... Index numbers..................................................................................... 5

87P........ Most extreme cases............................................................................ 5

87Q....... Cases of 33% or more (but not 100%) of a most extreme case.......... 5

87R....... Cases of 15% or more (but less than 33%) of a most extreme case... 5

87S........ Cases of less than 15% of a most extreme case.................................. 5

87T....... Referring to earlier decisions on non-economic loss........................... 5

Division 4—Limits on personal injury damages for loss of earning capacity      5

87U....... Personal injury damages for loss of earning capacity......................... 5

87V....... Average weekly earnings.................................................................... 5

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

87W...... Personal injury damages for gratuitous attendant care services for plaintiff           5

87X....... Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant care services  5

Division 6—Other limits on personal injury damages                                5

87Y....... Damages for future economic loss—discount rate............................. 5

87Z....... Damages for loss of superannuation entitlements.............................. 5

87ZA.... Interest on damages............................................................................ 5

87ZB..... Exemplary and aggravated damages.................................................... 5

Division 7—Structured settlements                                                                     5

87ZC..... Court may make orders under section 87 for structured settlements. 5

Part VII—Authorizations and notifications in respect of restrictive trade practices            5

Division 1—Authorizations                                                                                        5

87ZD.... Definitions.......................................................................................... 5

88.......... Power of Commission to grant authorisations................................... 5

89.......... Procedure for applications and the keeping of a register.................... 5

90.......... Determination of applications for authorisations............................... 5

90A....... Commission to afford opportunity for conference before determining application for authorisation    5

90B....... Commission may rely on consultations undertaken by the AEMC.. 5

91.......... Grant and variation of authorisations................................................. 5

91A....... Minor variations of authorizations..................................................... 5

91B....... Revocation of an authorization........................................................... 5

91C....... Revocation of an authorization and substitution of a replacement.... 5

Division 2—Notifications                                                                                            5

93.......... Notification of exclusive dealing......................................................... 5

93A....... Commission to afford opportunity for conference before giving notice in relation to exclusive dealing 5

95.......... Register of notifications...................................................................... 5

Part VIIA—Prices surveillance                                                                                       5

Division 1—Preliminary                                                                                              5

95A....... Interpretation...................................................................................... 5

95B....... Exempt supplies................................................................................. 5

95C....... Application of Part............................................................................. 5

95D....... Crown to be bound............................................................................. 5

95E........ Object of this Part.............................................................................. 5

95F........ Simplified overview of this Part......................................................... 5

Division 2—Commission’s functions under this Part                                  5

95G....... Commission’s functions under this Part............................................ 5

Division 3—Price inquiries                                                                                        5

Subdivision A—Holding of inquiries                                                                       5

95H....... Price inquiries..................................................................................... 5

95J........ Content of inquiry notices.................................................................. 5

95K....... Period for completing inquiry............................................................. 5

95L........ Notice of holding of inquiry............................................................... 5

95M...... Notice of extension of period for completing inquiry........................ 5

95N....... Price restrictions................................................................................. 5

Subdivision B—Reports on inquiries                                                                      5

95P........ Copies of report to be made available................................................ 5

95Q....... Notification of proposed prices after receipt of report...................... 5

Subdivision C—Procedure at inquiries                                                                  5

95R....... Public inquiries etc.............................................................................. 5

95S........ Taking of evidence on oath or affirmation.......................................... 5

95T....... Failure of witness to attend................................................................ 5

95U....... Refusal to be sworn or to answer question........................................ 5

95V....... Protection of witnesses...................................................................... 5

95W...... Allowances to witnesses.................................................................... 5

Division 4—Price notifications                                                                                5

95X....... Declarations by Minister or Commission.......................................... 5

95Y....... Declarations in relation to State or Territory authorities................... 5

95Z....... Price restrictions................................................................................. 5

95ZA.... Later notices modifying a locality notice............................................ 5

95ZB..... Applicable period in relation to a locality notice............................... 5

95ZC..... Register of price notifications............................................................. 5

95ZD.... Delegation by Commission................................................................. 5

Division 5—Price monitoring                                                                                   5

95ZE..... Directions to monitor prices, costs and profits of an industry.......... 5

95ZF..... Directions to monitor prices, costs and profits of a business............ 5

95ZG.... Exceptions to price monitoring........................................................... 5

Division 6—Other provisions                                                                                  5

95ZH.... Ministerial directions.......................................................................... 5

95ZI...... Inquiries by an unincorporated body or a group of 2 or more individuals              5

95ZJ...... Withdrawal of notices......................................................................... 5

95ZK.... Power to obtain information or documents........................................ 5

95ZL..... Inspection of documents etc............................................................... 5

95ZM... Retention of documents...................................................................... 5

95ZN.... Confidential information..................................................................... 5

95ZO.... Immunity............................................................................................ 5

95ZP..... Secrecy: members or staff members of the Commission etc.............. 5

95ZQ.... Secrecy: persons involved in inquiries by bodies other than the Commission        5

Part VIII—Resale price maintenance                                                                         5

96.......... Acts constituting engaging in resale price maintenance...................... 5

96A....... Resale price maintenance in relation to services................................. 5

97.......... Recommended prices.......................................................................... 5

98.......... Withholding the supply of goods....................................................... 5

99.......... Statements as to the minimum price of goods.................................... 5

100........ Evidentiary provisions....................................................................... 5

Part IX—Review by Tribunal of Determinations of Commission               5

Division 1—Applications for Review                                                                   5

101........ Applications for review...................................................................... 5

101A..... Application for review of notice under subsection 93(3) or (3A)...... 5

102........ Functions and powers of Tribunal..................................................... 5

Division 2—Procedure and Evidence                                                                  5

103........ Procedure generally............................................................................. 5

104........ Regulations as to certain matters........................................................ 5

105........ Power to take evidence on oath.......................................................... 5

106........ Hearings to be in public except in special circumstances................... 5

107........ Evidence in form of written statement............................................... 5

108........ Taking of evidence by single member................................................. 5

109........ Participants in proceedings before Tribunal....................................... 5

110........ Representation.................................................................................... 5


An Act relating to certain Trade Practices

  

Part IPreliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Trade Practices Act 1974.

2  Object of this Act

                   The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.

2A  Application of Act to Commonwealth and Commonwealth authorities

             (1)  Subject to this section and sections 44AC, 44E and 95D, this Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth.

             (2)  Subject to the succeeding provisions of this section, this Act applies as if:

                     (a)  the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and

                     (b)  each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Commonwealth) in so far as it carries on a business;

were a corporation.

             (3)  Nothing in this Act makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence.

          (3A)  The protection in subsection (3) does not apply to an authority of the Commonwealth.

             (4)  Part IV does not apply in relation to the business carried on by the Commonwealth in developing, and disposing of interests in, land in the Australian Capital Territory.

2B  Application of Act to States and Territories

             (1)  The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory:

                     (a)  Part IV;

                    (aa)  Part VB;

                     (b)  Part XIB;

                     (c)  the other provisions of this Act so far as they relate to the above provisions.

             (2)  Nothing in this Act renders the Crown in right of a State or Territory liable to a pecuniary penalty or to be prosecuted for an offence.

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

2C  Activities that are not business

             (1)  For the purposes of sections 2A and 2B, the following do not amount to carrying on a business:

                     (a)  imposing or collecting:

                              (i)  taxes; or

                             (ii)  levies; or

                            (iii)  fees for licences;

                     (b)  granting, refusing to grant, revoking, suspending or varying licences (whether or not they are subject to conditions);

                     (c)  a transaction involving:

                              (i)  only persons who are all acting for the Crown in the same right (and none of whom is an authority of the Commonwealth or an authority of a State or Territory); or

                             (ii)  only persons who are all acting for the same authority of the Commonwealth; or

                            (iii)  only persons who are all acting for the same authority of a State or Territory; or

                            (iv)  only the Crown in right of the Commonwealth and one or more non-commercial authorities of the Commonwealth; or

                             (v)  only the Crown in right of a State or Territory and one or more non-commercial authorities of that State or Territory; or

                            (vi)  only non-commercial authorities of the Commonwealth; or

                           (vii)  only non-commercial authorities of the same State or Territory;

                     (d)  the acquisition of primary products by a government body under legislation, unless the acquisition occurs because:

                              (i)  the body chooses to acquire the products; or

                             (ii)  the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products.

             (2)  Subsection (1) does not limit the things that do not amount to carrying on a business for the purposes of sections 2A and 2B.

             (3)  In this section:

acquisition of primary products by a government body under legislation includes vesting of ownership of primary products in a government body by legislation.

government body means the Commonwealth, a State, a Territory, an authority of the Commonwealth or an authority of a State or Territory.

licence means a licence that allows the licensee to supply goods or services.

primary products means:

                     (a)  agricultural or horticultural produce; or

                     (b)  crops, whether on or attached to the land or not; or

                     (c)  animals (whether dead or alive); or

                     (d)  the bodily produce (including natural increase) of animals.

             (4)  For the purposes of this section, an authority of the
Commonwealth or an authority of a State or Territory is non-commercial if:

                     (a)  it is constituted by only one person; and

                     (b)  it is neither a trading corporation nor a financial corporation.

2D  Exemption of certain activities of local government bodies from Part IV

             (1)  Part IV does not apply to:

                     (a)  the refusal to grant, or the granting, suspension or variation of, licences (whether or not they are subject to conditions) by a local government body; or

                     (b)  a transaction involving only persons who are acting for the same local government body.

             (2)  In this section:

licence means a licence that allows the licensee to supply goods or services.

local government body means a body established by or under a law of a State or Territory for the purposes of local government, other than a body established solely or primarily for the purposes of providing a particular service, such as the supply of electricity or water.

3  Repeal

                   The Restrictive Trade Practices Act 1971 and the Restrictive Trade Practices Act 1972 are repealed.

4  Interpretation

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

acquire includes:

                     (a)  in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hire-purchase; and

                     (b)  in relation to services—accept.

AEMC or Australian Energy Market Commission means the body established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia.

AER or Australian Energy Regulator means the body established by section 44AE.

AER Chair means the Chair of the AER.

AER member means a member of the AER.

arrive at, in relation to an understanding, includes reach or enter into.

authority, in relation to a State or Territory (including an external Territory), means:

                     (a)  a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or

                     (b)  an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.

authority of the Commonwealth means:

                     (a)  a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or

                     (b)  an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.

authorization means an authorization under Division 1 of Part VII granted by the Commission or by the Tribunal on a review of a determination 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.

business includes a business not carried on for profit.

Chairperson means the Chairperson of the Commission.

commencing date means 1 October 1974.

Commission means the Australian Competition and Consumer Commission established by section 6A, and includes a member of the Commission or a Division of the Commission performing functions of the Commission.

competition includes competition from imported goods or from services rendered by persons not resident or not carrying on business in Australia.

Competition Principles Agreement means the Competition Principles Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time.

Conduct Code Agreement means the Conduct Code Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time.

corporation means a body corporate that:

                     (a)  is a foreign corporation;

                     (b)  is a trading corporation formed within the limits of Australia or is a financial corporation so formed;

                     (c)  is incorporated in a Territory; or

                     (d)  is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c).

Council means the National Competition Council established by section 29A.

Councillor means a member of the Council, including the Council President.

Council President means the Council President referred to in subsection 29C(1).

covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land), and proposed covenant has a corresponding meaning.

debenture includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a body corporate, whether constituting a charge on property of the body corporate or not.

Deputy Chairperson means the Deputy Chairperson of the Commission.

Deputy President means a Deputy President of the Tribunal, and includes a person appointed to act as a Deputy President of the Tribunal.

Deputy Registrar means a Deputy Registrar of the Tribunal.

document includes:

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

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

Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).

financial corporation means a financial corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that carries on as its sole or principal business the business of banking (other than State banking not extending beyond the limits of the State concerned) or insurance (other than State insurance not extending beyond the limits of the State concerned).

financial product has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001.

financial service has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001.

foreign corporation means a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that is incorporated in an external Territory.

fully-participating jurisdiction means a State or Territory that:

                     (a)  is a participating jurisdiction as defined in section 150A; and

                     (b)  is not named in a notice in operation under section 150K.

give effect to, in relation to a provision of a contract, arrangement or understanding, includes do an act or thing in pursuance of or in accordance with or enforce or purport to enforce.

goods includes:

                     (a)  ships, aircraft and other vehicles;

                     (b)  animals, including fish;

                     (c)  minerals, trees and crops, whether on, under or attached to land or not; and

                     (d)  gas and electricity.

member of the Commission includes the Chairperson and a person appointed to act as a member of the Commission but does not include an associate member of the Commission.

member of the Tribunal includes the President and a person appointed to act as a member of the Tribunal.

New Zealand Commerce Commission means the Commission established by section 8 of the Commerce Act 1986 of New Zealand.

New Zealand Crown corporation means a body corporate that is an instrument of the Crown in respect of the Government of New Zealand.

organisation of employees means an organisation that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment.

personal injury has (except in section 68B) a meaning affected by section 4KA.

practice of exclusive dealing means the practice of exclusive dealing referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9).

practice of resale price maintenance means the practice of resale price maintenance referred to in Part VIII.

President means the President of the Tribunal and includes a person appointed to act as President of the Tribunal.

presidential member or presidential member of the Tribunal means the President or a Deputy President.

price includes a charge of any description.

provision, in relation to an understanding, means any matter forming part of the understanding.

Registrar means the Registrar of the Tribunal.

require, in relation to the giving of a covenant, means require or demand the giving of a covenant, whether by way of making a contract containing the covenant or otherwise, and whether or not a covenant is given in pursuance of the requirement or demand.

send includes deliver, and sent and sender have corresponding meanings.

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

                     (a)  a contract for or in relation to:

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

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

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

                     (b)  a contract of insurance;

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

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

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

share includes stock.

State/Territory AER member means an AER member referred to in section 44AP.

supply, when used as a verb, includes:

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

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

and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.

Territory means:

                     (a)  an internal Territory; or

                     (b)  the Territory of Christmas Island; or

                     (c)  the Territory of Cocos (Keeling) Islands.

the Court or the Federal Court means the Federal Court of Australia.

the Family Court means the Family Court of Australia.

trade or commerce means trade or commerce within Australia or between Australia and places outside Australia.

trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution.

Tribunal means the Australian Competition Tribunal, and includes a member of that Tribunal or a Division of that Tribunal performing functions of that Tribunal.

unsolicited goods means goods sent to a person without any request made by him or her or on his or her behalf.

unsolicited services means services supplied to a person without any request made by him or her or on his or her behalf.

             (2)  In this Act:

                     (a)  a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;

                     (b)  a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), shall be read as a reference to the doing of or the refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;

                     (c)  a reference to refusing to do an act includes a reference to:

                              (i)  refraining (otherwise than inadvertently) from doing that act; or

                             (ii)  making it known that that act will not be done; and

                     (d)  a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.

             (3)  Where a provision of this Act is expressed to render a provision of a contract, or to render a covenant, unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect notwithstanding that:

                     (a)  at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or

                     (b)  the provision of the contract or the covenant will not or may not have that effect at a later time.

             (4)  In this Act:

                     (a)  a reference to the acquisition of shares in the capital of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such shares; and

                     (b)  a reference to the acquisition of assets of a person shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such assets but does not include a reference to an acquisition by way of charge only or an acquisition in the ordinary course of business.

4A  Subsidiary, holding and related bodies corporate

             (1)  For the purposes of this Act, a body corporate shall, subject to subsection (3), be deemed to be a subsidiary of another body corporate if:

                     (a)  that other body corporate:

                              (i)  controls the composition of the board of directors of the first-mentioned body corporate;

                             (ii)  is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first-mentioned body corporate; or

                            (iii)  holds more than one-half of the allotted share capital of the first-mentioned body corporate (excluding any part of that allotted share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

                     (b)  the first-mentioned body corporate is a subsidiary of any body corporate that is that other body corporate’s subsidiary (including any body corporate that is that other body corporate’s subsidiary by another application or other applications of this paragraph).

             (2)  For the purposes of subsection (1), the composition of a body corporate’s board of directors shall be deemed to be controlled by another body corporate if that other body corporate, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other body corporate shall be deemed to have power to make such an appointment if:

                     (a)  a person cannot be appointed as a director without the exercise in his or her favour by that other body corporate of such a power; or

                     (b)  a person’s appointment as a director follows necessarily from his or her being a director or other officer of that other body corporate.

             (3)  In determining whether a body corporate is a subsidiary of another body corporate:

                     (a)  any shares held or power exercisable by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it;

                     (b)  subject to paragraphs (c) and (d), any shares held or power exercisable:

                              (i) by any person as a nominee for that other body corporate (except where that other body corporate is concerned only in a fiduciary capacity); or

                             (ii)  by, or by a nominee for, a subsidiary of that other body corporate, not being a subsidiary that is concerned only in a fiduciary capacity;

                            shall be treated as held or exercisable by that other body corporate;

                     (c)  any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned body corporate, or of a trust deed for securing any allotment of such debentures, shall be disregarded; and

                     (d)  any shares held or power exercisable by, or by a nominee for, that other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other body corporate if the ordinary business of that other body corporate or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business.

             (4)  A reference in this Act to the holding company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary.

             (5)  Where a body corporate:

                     (a) is the holding company of another body corporate;

                     (b)  is a subsidiary of another body corporate; or

                     (c)  is a subsidiary of the holding company of another body corporate;

that first-mentioned body corporate and that other body corporate shall, for the purposes of this Act, be deemed to be related to each other.

             (6)  In proceedings under this Act, whether in the Court or before the Tribunal or the Commission, it shall be presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.

4B  Consumers

             (1)  For the purposes of this Act, unless the contrary intention appears:

                     (a)  a person shall be taken to have acquired particular goods as a consumer if, and only if:

                              (i)  the price of the goods did not exceed the prescribed amount; or

                             (ii)  where that price exceeded the prescribed amount—the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption or the goods consisted of a commercial road vehicle;

                            and the person did not acquire the goods, or hold himself or herself out as acquiring the goods, for the purpose of
re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land; and

                     (b)  a person shall be taken to have acquired particular services as a consumer if, and only if:

                              (i)  the price of the services did not exceed the prescribed amount; or

                             (ii)  where that price exceeded the prescribed amount—the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.

             (2)  For the purposes of subsection (1):

                     (a)  the prescribed amount is $40,000 or, if a greater amount is prescribed for the purposes of this paragraph, that greater amount;

                     (b)  subject to paragraph (c), the price of goods or services purchased by a person shall be taken to have been the amount paid or payable by the person for the goods or services;

                     (c)  where a person purchased goods or services together with other property or services, or with both other property and services, and a specified price was not allocated to the goods or services in the contract under which they were purchased, the price of the goods or services shall be taken to have been:

                              (i)  the price at which, at the time of the acquisition, the person could have purchased from the supplier the goods or services without the other property or services;

                             (ii)  if, at the time of the acquisition, the goods or services were not available for purchase from the supplier except together with the other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier without other property or services—the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or

                            (iii)  if, at the time of the acquisition, goods or services of the kind acquired were not available for purchase from any supplier except together with other property or services—the value of the goods or services at that time;

                     (d)  where a person acquired goods or services otherwise than by way of purchase, the price of the goods or services shall be taken to have been:

                              (i)  the price at which, at the time of the acquisition, the person could have purchased the goods or services from the supplier;

                             (ii)  if, at the time of the acquisition, the goods or services were not available for purchase from the supplier or were so available only together with other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier—the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or

                            (iii)  if goods or services of the kind acquired were not available, at the time of the acquisition, for purchase from any supplier or were not so available except together with other property or services—the value of the goods or services at that time; and

                     (e)  without limiting by implication the meaning of the expression services in subsection 4(1), the obtaining of credit by a person in connection with the acquisition of goods or services by him or her shall be deemed to be the acquisition by him or her of a service and any amount by which the amount paid or payable by him or her for the goods or services is increased by reason of his or her so obtaining credit shall be deemed to be paid or payable by him or her for that service.

             (3)  Where it is alleged in any proceeding under this Act or in any other proceeding in respect of a matter arising under this Act that a person was a consumer in relation to particular goods or services, it shall be presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services.

             (4)  In this section, commercial road vehicle means a vehicle or trailer acquired for use principally in the transport of goods on public roads.

4C  Acquisition, supply and re-supply

                   In this Act, unless the contrary intention appears:

                     (a)  a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods;

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

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

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

                     (e)  a reference to the re-supply of goods acquired from a person includes a reference to:

                              (i)  a supply of the goods to another person in an altered form or condition; and

                             (ii)  a supply to another person of goods in which the first-mentioned goods have been incorporated;

                      (f)  a reference to the re-supply of services (the original services) acquired from a person (the original supplier) includes a reference to:

                              (i)  a supply of the original services to another person in an altered form or condition; and

                             (ii)  a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.

4D  Exclusionary provisions

             (1)  A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if:

                     (a)  the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and

                     (b)  the provision has the purpose of preventing, restricting or limiting:

                              (i)  the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or

                             (ii)  the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions;

                            by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.

             (2)  A person shall be deemed to be competitive with another person for the purposes of subsection (1) if, and only if, the
first-mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates.

4E  Market

                   For the purposes of this Act, unless the contrary intention appears, market means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first-mentioned goods or services.

4F  References to purpose or reason

             (1)  For the purposes of this Act:

                     (a)  a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, or a covenant or a proposed covenant, shall be deemed to have had, or to have, a particular purpose if:

                              (i)  the provision was included in the contract, arrangement or understanding or is to be included in the proposed contract, arrangement or understanding, or the covenant was required to be given or the proposed covenant is to be required to be given, as the case may be, for that purpose or for purposes that included or include that purpose; and

                             (ii)  that purpose was or is a substantial purpose; and

                     (b)  a person shall be deemed to have engaged or to engage in conduct for a particular purpose or a particular reason if:

                              (i)  the person engaged or engages in the conduct for purposes that included or include that purpose or for reasons that included or include that reason, as the case may be; and

                             (ii)  that purpose or reason was or is a substantial purpose or reason.

             (2)  This section does not apply for the purposes of subsections 45D(1), 45DA(1), 45DB(1), 45E(2) and 45E(3).

4G  Lessening of competition to include preventing or hindering competition

                   For the purposes of this Act, references to the lessening of competition shall be read as including references to preventing or hindering competition.

4H  Application of Act in relation to leases and licences of land and buildings

                   In this Act:

                     (a)  a reference to a contract shall be construed as including a reference to a lease of, or a licence in respect of, land or a building or part of a building and shall be so construed notwithstanding the express references in this Act to such leases or licences;

                     (b)  a reference to making or entering into a contract, in relation to such a lease or licence, shall be read as a reference to granting or taking the lease or licence; and

                     (c)  a reference to a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.

4J  Joint ventures

                   In this Act:

                     (a)  a reference to a joint venture is a reference to an activity in trade or commerce:

                              (i)  carried on jointly by two or more persons, whether or not in partnership; or

                             (ii)  carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate; and

                     (b)  a reference to a contract or arrangement made or understanding arrived at, or to a proposed contract or arrangement to be made or proposed understanding to be arrived at, for the purposes of a joint venture shall, in relation to a joint venture by way of an activity carried on by a body corporate as mentioned in subparagraph (a)(ii), be read as including a reference to the memorandum and articles of association, rules or other document that constitute or constitutes, or are or is to constitute, that body corporate.

4K  Loss or damage to include injury

                   In this Act:

                     (a)  a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and

                     (b)  a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.

4KA  Personal injury

                   In this Act (except in section 68B):

personal injury includes:

                     (a)  pre-natal injury; or

                     (b)  impairment of a person’s physical or mental condition; or

                     (c)  disease;

but does not include an impairment of a person’s mental condition unless the impairment consists of a recognised psychiatric illness.

4L  Severability

                   If the making of a contract after the commencement of this section contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 87 or 87A, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision is severable.

4M  Saving of law relating to restraint of trade and breaches of confidence

                   This Act does not affect the operation of:

                     (a)  the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Act; or

                     (b)  the law relating to breaches of confidence;

but nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Act.

4N  Extended application of Part IIIA

             (1)  Part IIIA, and the other provisions of this Act so far as they relate to Part IIIA, extend to services provided by means of facilities that are, or will be, wholly or partly within:

                     (a)  an external Territory; or

                     (b)  the adjacent area in respect of a State, of the Northern Territory, or of an external Territory, as specified in section 5A of the Petroleum (Submerged Lands) Act 1967.

             (2)  For the purposes of subsection (1), the adjacent area in respect of Queensland is to be taken, in accordance with subsection 5A(8) of the Petroleum (Submerged Lands) Act 1967, to include the Coral Sea area as defined in subsection 5A(7) of that Act.

             (3)  Nothing in subsection (1) affects the operation of section 15B of the Acts Interpretation Act 1901 in respect of the application of Part IIIA, and of the other provisions of this Act so far as they relate to Part IIIA, in any part of:

                     (a)  the coastal sea of Australia; or

                     (b)  the coastal sea of an external Territory;

that is on the landward side of each of the adjacent areas referred to in that subsection.

             (4)  For the purposes of this section:

service includes proposed service covered by Subdivision C of Division 2 of Part IIIA.

5  Extended application of Parts IV, IVA, V, VB and VC

             (1)  Part IV, Part IVA, Part V (other than Division 1AA), Part VB and Part VC extend to the engaging in conduct outside Australia by bodies corporate incorporated or carrying on business within Australia or by Australian citizens or persons ordinarily resident within Australia.

          (1A)  In addition to the extended operation that section 46A has by virtue of subsection (1), that section extends to the engaging in conduct outside Australia by:

                     (a)  New Zealand and New Zealand Crown corporations; or

                     (b)  bodies corporate carrying on business within New Zealand; or

                     (c)  persons ordinarily resident within New Zealand.

             (2)  In addition to the extended operation that sections 47 and 48 have by virtue of subsection (1), those sections extend to the engaging in conduct outside Australia by any persons in relation to the supply by those persons of goods or services to persons within Australia.

             (3)  Where a claim under section 82 is made in a proceeding, a person is not entitled to rely at a hearing in respect of that proceeding on conduct to which a provision of this Act extends by virtue of subsection (1) or (2) of this section except with the consent in writing of the Minister.

             (4)  A person other than the Minister or the Commission is not entitled to make an application to the Court for an order under subsection 87(1) or (1A) in a proceeding in respect of conduct to which a provision of this Act extends by virtue of subsection (1) or (2) of this section except with the consent in writing of the Minister.

             (5)  The Minister shall give a consent under subsection (3) or (4) in respect of a proceeding unless, in the opinion of the Minister:

                     (a)  the law of the country in which the conduct concerned was engaged in required or specifically authorised the engaging in of the conduct; and

                     (b)  it is not in the national interest that the consent be given.

6  Extended application of Parts IV, IVA, IVB, V, VA, VB and VC

             (1)  Without prejudice to its effect apart from this section, this Act also has effect as provided by this section.

             (2)  This Act, other than Parts IIIA, VIIA and X, has, by force of this subsection, the effect it would have if:

                     (a) any references in this Act other than in section 45DB, 55 or 75AZH to trade or commerce were, by express provision, confined to trade or commerce:

                              (i)  between Australia and places outside Australia;

                             (ii)  among the States;

                            (iii)  within a Territory, between a State and a Territory or between two Territories; or

                            (iv)  by way of the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth;

                     (b)  sections 45, 45B, 45D to 45EB (other than section 45DB), 46, 46A, 53B, 60 and 61, subsections 64(3) and (4), sections 75A, 75AU, 75AV, 75AW, 75AX, 75AY, 75AZE, 75AZN, 75AZO, subsections 75AZQ(4) to (7) (inclusive) and 75AYA and Part VIII were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:

                              (i)  trade or commerce between Australia and places outside Australia;

                             (ii)  trade or commerce among the States;

                            (iii)  trade or commerce within a Territory, between a State and a Territory or between two Territories; or

                            (iv)  the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth;

                     (c)  any reference in Division 2 of Part V to a contract for the supply of goods or services and any reference in Division 2A of that Part or in Part VA to the supply of goods, were, by express provision, confined to a contract made, or the supply of goods, as the case may be:

                              (i)  in the course of, or in relation to, trade or commerce between Australia and places outside Australia;

                             (ii)  in the course of, or in relation to, trade or commerce among the States; or

                            (iii)  in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between two Territories;

                     (d)  in subsection 45(1) and subparagraph 87(3)(a)(i) the words “in so far as it confers rights or benefits or imposes duties or obligations on a corporation” were omitted;

                     (e)  in subsection 45B(1) and subparagraph 87(3)(a)(ii) the words “in so far as it confers rights or benefits or imposes duties or obligations on a corporation or on a person associated with a corporation” were omitted;

                    (ea)  subsections 45D(3), 45D(4) and 45DA(3) were repealed, the words “In the circumstances specified in subsections (3) and (4)” were omitted from subsection 45D(1) and the words “In the circumstances specified in subsection (3)” were omitted from subsection 45DA(1);

                    (eb)  the second sentence in subsection 45E(1) were omitted;

                     (g)  subsection 96(2) were omitted; and

                     (h)  subject to paragraphs (d), (e), (ea), (eb) and (g), a reference in this Act to a corporation, except a reference in section 4, 48, 50, 50A, 81, 151AE or 151AJ, included a reference to a person not being a corporation.

          (2A)  So far as subsection (2) relates to Part IV, that subsection has effect in relation to a participating Territory as if the words “within a Territory,” were omitted from subparagraphs (2)(a)(iii) and (2)(b)(iii). For this purpose, participating Territory means a Territory that is a participating Territory within the meaning of Part XIA but is not named in a notice in operation under section 150K.

          (2B)  So far as subsection (2) relates to Part VB, that subsection has effect in relation to a Part XIAA scheme Territory as if the words “within a Territory,” were omitted from subparagraph (2)(b)(iii). For this purpose, a Part XIAA scheme Territory is a Territory that has a law applying the New Tax System Price Exploitation Code (see Part XIAA), either with or without modifications, as a law of the Territory.

             (3)  In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by subsection (2), the provisions of Part IVA, of Divisions 1, 1A and 1AA of Part V and of Divisions 2 and 3 of Part VC have, by force of this subsection, the effect they would have if:

                     (a)  those provisions (other than sections 55 and 75AZH) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast; and

                     (b)  a reference in those provisions to a corporation included a reference to a person not being a corporation.

             (4)  In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by subsections (2) and (3), the provisions of Part IVA and of Division 1 (other than sections 53A, 55 and 61) and Division 1AA of Part V and of Division 2 of Part VC (other than sections 75AZD, 75AZH and 75AZO) also have, by force of this subsection, the effect they would have if:

                     (a)  those provisions were, by express provision, confined in their operation to engaging in conduct in a Territory; and

                     (b)  a reference in those provisions to a thing done by a corporation in trade or commerce included a reference to a thing done in the course of the promotional activities of a professional person.

             (5)  In the application of section 73 in relation to a supplier who is a natural person, that section has effect as if there were substituted for paragraph 73(6)(a) the following paragraph:

                    “(a)  the supplier had died or is an undischarged bankrupt or a person whose affairs are being dealt with under Part X of the Bankruptcy Act 1966; or”.

             (6)  Despite anything in Part VC, if a person other than a corporation is convicted of an offence against a provision of that Part, being a provision that applies in relation to the person as provided by this section, the offence is taken to be punishable on conviction by a fine not exceeding 2,000 penalty units.

6AA  Application of the Criminal Code

             (1)  Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  Despite subsection (1), Part 2.5 of the Criminal Code does not apply to an offence against Part IIIA, VC or XIC or Division 7 of Part XIB.


 

Part IIThe Australian Competition and Consumer Commission

  

6A  Establishment of Commission

             (1)  The Australian Competition and Consumer Commission is established by this section.

             (2)  The Commission:

                     (a)  is a body corporate, with perpetual succession;

                     (b)  shall have an official seal;

                     (c)  may acquire, hold and dispose of real and personal property; and

                     (d)  may sue or be sued in its corporate name.

7  Constitution of Commission

             (1)  The Commission shall consist of a Chairperson and such number of other members as are from time to time appointed in accordance with this Act.

             (2)  The members of the Commission shall be appointed by the Governor-General and shall be so appointed as full-time members.

Note:          A member of the Commission who is also appointed as an AER member remains a full-time member of the Commission: see section 44AN.

             (3)  Before the Governor-General appoints a person as a member of the Commission or as Chairperson, the Minister must:

                     (a)  be satisfied that the person qualifies for the appointment because of the person’s knowledge of, or experience in, industry, commerce, economics, law, public administration or consumer protection; and

                     (b)  consider whether the person has knowledge of, or experience in, small business matters; and

                     (c)  if there is at least one fully-participating jurisdiction—be satisfied that a majority of such jurisdictions support the appointment.

             (4)  At least one of the members of the Commission must be a person who has knowledge of, or experience in, consumer protection.

8  Terms and conditions of appointment

             (1)  Subject to this Part, a member of the Commission holds office for such period, not exceeding 5 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor-General determines, but is eligible for re-appointment.

8A  Associate members

             (1)  The Minister may appoint persons to be associate members of the Commission.

          (1A)  If there is at least one fully-participating jurisdiction, the Minister must not appoint a person as an associate member unless the Minister is satisfied that a majority of such jurisdictions support the appointment.

             (2)  An associate member of the Commission shall be appointed for such period not exceeding 5 years as is specified in the instrument of his or her appointment, but is eligible for re-appointment.

             (3)  Subject to this Part, an associate member of the Commission holds office on such terms and conditions as the Minister determines.

             (4)  The Chairperson may, by writing signed by him or her, direct that, for the purposes of the exercise of the powers of the Commission under this Act in relation to a specified matter, not being an exercise of those powers by a Division of the Commission, a specified associate member of the Commission or specified associate members of the Commission shall be deemed to be a member or members of the Commission and, in that case, unless the contrary intention appears, a reference in this Act to a member of the Commission shall, for the purposes only of the exercise of the powers of the Commission in relation to that matter, be construed as including a reference to that associate member of the Commission or each of those associate members of the Commission, as the case may be.

             (5)  Associate members of the Commission shall be deemed to be members of the Commission for the purposes of section 19.

             (6)  For the purpose of the determination by the Commission of an application for an authorization or the making by the Commission of any decision for the purposes of subsection 93(3) or (3A), the Chairperson shall consider:

                     (a)  whether he or she should give a direction under subsection (4) of this section; or

                     (b)  in the case of a matter in relation to which the Chairperson proposes to give a direction under subsection 19(1), whether he or she should direct that the Division concerned is to include an associate member of the Commission or associate members of the Commission.

             (7)  Nothing in subsection (4) or (5) deems an associate member of the Commission to be a member of the Commission for any purpose related to the preparation of a report by the Commission under section 171.

8AB  State/Territory AER members taken to be associate members

             (1)  A State/Territory AER member is taken to be an associate member of the Commission during the period for which he or she is an AER member.

Note:          A State/Territory AER member who is taken to be an associate member of the Commission can still be appointed as an associate member under section 8A.

             (2)  However, a State/Territory AER member who is taken to be an associate member under subsection (1), is not taken to be an associate member for the purposes of sections 8A, 9, 14, 15 and 17.

             (3)  As an associate member, the State/Territory AER member holds office on such terms and conditions as are specified in the instrument of his or her appointment under section 44AP.

9  Remuneration

             (1)  A member of the Commission shall be paid such remuneration as is determined by the Remuneration Tribunal, but, until that remuneration is so determined, he or she shall be paid such remuneration as is prescribed.

             (2)  Subject to the Remuneration Tribunal Act 1973, a member of the Commission shall be paid such allowances as are prescribed.

             (3)  In this section, member of the Commission includes an associate member of the Commission.

10  Deputy Chairperson

             (1)  The Governor-General may appoint a person who is, or is to be, a member of the Commission to be the Deputy Chairperson of the Commission.

          (1A)  If there is at least one fully-participating jurisdiction, the Governor-General must not appoint a person as the Deputy Chairperson unless the Governor-General is satisfied that a majority of such jurisdictions support the appointment.

             (2)  A person appointed under this section holds office as Deputy Chairperson until the expiration of his or her period of appointment as a member of the Commission or until he or she sooner ceases to be a member of the Commission.

             (3)  Where a member of the Commission appointed as Deputy Chairperson is, upon ceasing to be a Deputy Chairperson by virtue of the expiration of the period of his or her appointment as a member, re-appointed as a member, he or she is eligible for re-appointment as Deputy Chairperson.

             (4)  The Deputy Chairperson may resign his or her office of Deputy Chairperson by writing signed by him or her and delivered to the Governor-General.

11  Acting Chairperson

             (1)  Where there is, or is expected to be, a vacancy in the office of Chairperson, the Governor-General may appoint a person to act as Chairperson until the filling of the vacancy.

          (1A)  A person appointed under subsection (1) to act during a vacancy shall not continue so to act for more than 12 months.

             (2)  Where the Chairperson is absent from duty or from Australia:

                     (a)  the Deputy Chairperson shall act as Chairperson during the absence; or

                     (b)  if there is no Deputy Chairperson or the Deputy Chairperson is not available to act as Chairperson, the Minister may appoint a member of the Commission to act as Chairperson during the absence of the Chairperson, but any such appointment ceases to have effect if a person is appointed as Deputy Chairperson or the Deputy Chairperson becomes available to act as Chairperson.

             (3)  A person acting as Chairperson shall act in that capacity on such terms and conditions as the Governor-General determines and has all the powers and duties, and shall perform all the functions, conferred on the Chairperson by this Act.

12  Leave of absence

             (1)  A member of the Commission has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Minister may grant a member of the Commission leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

13  Termination of appointment of members of the Commission

             (1)  The Governor-General may terminate the appointment of a member of the Commission for misbehaviour or physical or mental incapacity.

             (2)  If a member of the Commission:

                     (a)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;

                     (b)  fails to comply with his or her obligations under section 17;

                     (c)  without the consent of the Minister engages in any paid employment outside the duties of his or her office; or

                     (d)  is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;

the Governor-General shall terminate the appointment of that member of the Commission.

14  Termination of appointment of associate members of the Commission

             (1)  The Minister may terminate the appointment of an associate member of the Commission for misbehaviour or physical or mental incapacity.

             (2)  If an associate member of the Commission:

                     (a)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or

                     (b)  fails to comply with his or her obligations under section 17;

the Minister shall terminate the appointment of that associate member of the Commission.

15  Resignation

             (1)  A member of the Commission may resign his or her office by writing signed by him or her and delivered to the Governor-General.

             (2)  An associate member of the Commission may resign his or her office by writing signed by him or her and delivered to the Minister.

16  Arrangement of business

                   The Chairperson may give directions as to the arrangement of the business of the Commission.

17   Disclosure of interests by members

             (1)  Where a member of the Commission other than the Chairperson is taking part, or is to take part, in the determination of a matter before the Commission and the member has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the determination of the matter:

                     (a)  the member shall disclose the interest to the Chairperson; and

                     (b)  the member shall not take part, or continue to take part, in the determination of the matter if:

                              (i)  the Chairperson gives a direction under paragraph (2)(a) in relation to the matter; or

                             (ii)  all of the persons concerned in the matter do not consent to the member taking part in the determination of the matter.

             (2)  Where the Chairperson becomes aware that a member of the Commission is taking part, or is to take part, in the determination of a matter and that the member has in relation to the determination of the matter such an interest:

                     (a)  if the Chairperson considers that the member should not take part, or should not continue to take part, in the determination of the matter—the Chairperson shall give a direction to the member accordingly; or

                     (b)  in any other case—the Chairperson shall cause the interest of the member to be disclosed to the persons concerned in the matter.

             (3)  The Chairperson shall give written notice to the Minister of all pecuniary interests that the Chairperson has or acquires in any business carried on in Australia or in any body corporate carrying on any such business.

             (4)  In this section, member of the Commission includes an associate member of the Commission.

18  Meetings of Commission

             (1)  Subject to this section, the Chairperson shall convene such meetings of the Commission as he or she thinks necessary for the efficient performance of the functions of the Commission.

             (2)  Meetings of the Commission shall be held at such places as the Chairperson determines.

             (3)  The Chairperson shall preside at all meetings of the Commission at which he or she is present.

             (4)  In the absence of the Chairperson from a meeting of the Commission, the Deputy Chairperson shall preside.

             (5)  Subject to this Act and the regulations, the member presiding at a meeting of the Commission may give directions regarding the procedure to be followed at or in connexion with the meeting.

             (6)  At a meeting of the Commission:

                     (a)  three members (including the Chairperson or the Deputy Chairperson) form a quorum;

                     (b)  all questions shall be decided by a majority of votes of the members present and voting; and

                     (c)  the member presiding has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

             (7)  If the Commission so determines, a member or members may participate in, and form part of a quorum at, a meeting of the Commission or a Division of the Commission by means of any of the following methods of communication:

                     (a)  telephone;

                     (b)  closed circuit television;

                     (c)  another method of communication determined by the Commission.

             (8)  A determination made by the Commission under subsection (7) may be made in respect of a particular meeting or meetings of the Commission or a Division of the Commission or in respect of all meetings of the Commission or a Division of the Commission.

19  Chairperson may direct Commission to sit in Divisions

             (1)  The Chairperson may, by writing signed by him or her, direct that the powers of the Commission under this Act in relation to a matter shall be exercised by a Division of the Commission constituted by the Chairperson and such other members (not being less than two in number) as are specified in the direction.

             (2)  Where the Chairperson has given a direction under subsection (1), he or she may, by writing signed by him or her, at any time before the Division of the Commission specified in the direction has made a determination in relation to the matter, revoke the direction or amend the direction in relation to the membership of the Division or in any other respect, and where the membership of a Division of the Commission is changed, the Division as constituted after the change may complete the determination of the matter.

             (3)  For the purposes of the determination of a matter specified in a direction given under subsection (1), the Commission shall be deemed to consist of the Division of the Commission specified in the direction.

             (4)  The Chairperson is not required to attend a meeting of a Division of the Commission if he or she does not think fit to do so.

             (5)  At a meeting of a Division of the Commission at which neither the Chairperson nor the Deputy Chairperson is present, a member of the Commission nominated for the purpose by the Chairperson shall preside.

             (6)  Notwithstanding section 18, at a meeting of a Division of the Commission, two members form a quorum.

             (7)  A Division of the Commission may exercise powers of the Commission under this Act notwithstanding that another Division of the Commission is exercising powers of the Commission at the same time.

25  Delegation by Commission

             (1)  The Commission may, by resolution, delegate to a member of the Commission, either generally or otherwise as provided by the instrument of delegation, any of its powers under this Act (other than Part VIIA), the Telecommunications Act 1997, the Telecommunications (Consumer Protection and Service Standards) Act 1999, Rules of Conduct under Part 20 of the Telecommunications Act 1997 or the Australian Postal Corporation Act 1989, other than this power of delegation and its powers to grant, revoke or vary an authorization.

Note:          Section 95ZD allows the Commission to delegate certain powers under Part VIIA to a member of the Commission.

             (2)  A power so delegated may be exercised or performed by the delegate in accordance with the instrument of delegation.

             (3)  A delegation under this section is revocable at will and does not prevent the exercise of a power by the Commission.

26  Delegation by Commission in relation to unconscionable conduct and consumer protection

             (1)  The Commission may, by resolution, delegate any of its functions and powers under or in relation to Parts IVA, V, VC and VI and any of its powers under Part XII that relate to those Parts, to a staff member of the Australian Securities and Investments Commission within the meaning of section 5 of the Australian Securities and Investments Commission Act 2001.

             (2)  The Commission must not delegate a function or power under subsection (1) unless the Chairperson of the Australian Securities and Investments Commission has agreed to the delegation in writing.

27  Staff of Commission

             (1)  The staff necessary to assist the Commission shall be persons engaged under the Public Service Act 1999.

             (2)  For the purposes of the Public Service Act 1999:

                     (a)  the Chairperson of the Commission and the APS employees assisting the Chairperson together constitute a Statutory Agency; and

                     (b)  the Chairperson is the Head of that Statutory Agency.

27A  Consultants

             (1)  On behalf of the Commonwealth, the Commission may engage persons to give advice to, and perform services for, the Commission.

             (2)  The terms and conditions of engagement are as determined by the Commission.

28  Functions of Commission in relation to dissemination of information, law reform and research

             (1)  In addition to any other functions conferred on the Commission, the Commission has the following functions:

                     (a)  to make available to persons engaged in trade or commerce and other interested persons general information for their guidance with respect to the carrying out of the functions, or the exercise of the powers, of the Commission under this Act;

                     (b)  to examine critically, and report to the Minister on, the laws in force in Australia relating to the protection of consumers in respect of matters referred to the Commission by the Minister, being matters with respect to which the Parliament has power to make laws;

                     (c)  to conduct research in relation to matters affecting the interests of consumers, being matters with respect to which the Parliament has power to make laws;

                    (ca)  to conduct research and undertake studies on matters that are referred to the Commission by the Council and that relate to the Commission’s other functions;

                     (d)  to make available to the public general information in relation to matters affecting the interests of consumers, being matters with respect to which the Parliament has power to make laws;

                     (e)  to make known for the guidance of consumers the rights and obligations of persons under provisions of laws in force in Australia that are designed to protect the interests of consumers.

             (2)  Where a matter of a kind mentioned in paragraph (1)(b) is referred by the Minister to the Commission for examination and report:

                     (a)  the Commission shall cause to be published in the Gazette and in such newspapers and other journals as the Commission considers appropriate a notice:

                              (i)  stating that the reference has been made and specifying the matter to which the reference relates; and

                             (ii)  inviting interested persons to furnish to the Commission their views on that matter and specifying the time and manner within which those views are to be furnished;

                     (b)  the Commission shall not furnish its report to the Minister until a reasonable opportunity has been given to interested persons to furnish to the Commission their views on the matter to which the reference relates; and

                     (c)  the Commission shall include in its report to the Minister any recommendations that it considers desirable with respect to the reform of the law relating to the matter to which the reference relates, whether those recommendations relate to the amendment of existing laws or the making of new laws.

             (3)  The Minister shall cause a copy of each report furnished to him or her by the Commission in relation to a matter referred to the Commission under paragraph (1)(b) to be laid before each House of the Parliament as soon as practicable after the report is received by him or her.

29  Commission to comply with directions of Minister and requirements of the Parliament

             (1)  The Minister may give the Commission directions connected with the performance of its functions or the exercise of its powers under this Act.

          (1A)  The Minister must not give directions under subsection (1) relating to:

                     (a)  Part IIIA, IV,VII, VIIA, X, XIB or XIC; or

                     (b)  section 65J, 65K, 65M or 65N in relation to individual cases.

          (1B)  The Commission must comply with a direction.

             (2)  Any direction given to the Commission under subsection (1) shall be in writing and the Minister shall cause a copy of the direction to be published in the Gazette as soon as practicable after the direction is given.

             (3)  If either House of the Parliament or a Committee of either House, or of both Houses, of the Parliament requires the Commission to furnish to that House or Committee any information concerning the performance of the functions of the Commission under this Act, the Commission shall comply with the requirement.


 

Part IIAThe National Competition Council

  

29A  Establishment of Council

                   The National Competition Council is established by this section.

29B  Functions and powers of Council

             (1)  The Council’s functions include:

                     (a)  carrying out research into matters referred to the Council by the Minister; and

                     (b)  providing advice on matters referred to the Council by the Minister.

             (2)  The Council may:

                     (a)  perform any function conferred on it by a law of the Commonwealth, or of a State or Territory; and

                     (b)  exercise any power:

                              (i)  conferred by that law to facilitate the performance of that function; or

                             (ii)  necessary or convenient to permit the performance of that function.

          (2A)  The Council must not, under subsection (2):

                     (a)  perform a function conferred on it by a law of a State or Territory; or

                     (b)  exercise a power that is so conferred;

unless the conferral of the function or power is in accordance with the Competition Principles Agreement.

             (3)  In performing its functions, the Council may co-operate with a department, body or authority of the Commonwealth, of a State or of a Territory.

29C  Membership of Council

             (1)  The Council consists of the Council President and up to 4 other Councillors.

             (2)  Each Councillor is to be appointed by the Governor-General, for a term of up to 5 years.

             (3)  The Governor-General must not appoint a person as a Councillor or Council President unless the Governor-General is satisfied that:

                     (a)  the person qualifies for the appointment because of the person’s knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration; and

                     (b)  a majority of the States and Territories that are parties to the Competition Principles Agreement support the appointment.

29D  Terms and conditions of office

             (1)  A Councillor may be appointed to hold office on either a full-time or a part-time basis.

             (2)  A Councillor holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as the Governor-General determines.

29E  Acting Council President

             (1)  The Minister may appoint a Councillor to act as the Council President:

                     (a)  if there is a vacancy in the office of Council President, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Council President is absent from duty or absent from Australia or is, for any reason, unable to perform the duties of the office.

             (2)  Anything done by or in relation to a person purporting to act under this section is not invalid merely because:

                     (a)  the occasion for appointment had not arisen;

                     (b)  there was a defect or irregularity in the appointment;

                     (c)  the appointment had ceased to have effect;

                     (d)  the occasion to act had not arisen or had ceased.

29F  Remuneration of Councillors

             (1)  A Councillor is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of the Remuneration Tribunal is in operation, the Councillor is to be paid the remuneration that is prescribed.

             (2)  A Councillor is to be paid such allowances as are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

29G  Leave of absence

             (1)  A full-time Councillor has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Minister may grant a full-time Councillor leave of absence, other than recreation leave, on such terms and conditions as the Minister determines. The terms and conditions may include terms and conditions relating to remuneration.

29H  Termination of appointment of Councillors

             (1)  The Governor-General may terminate the appointment of a Councillor for misbehaviour or for physical or mental incapacity.

             (2)  The Governor-General must terminate the appointment of a Councillor who:

                     (a)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;

                     (b)  fails to comply with his or her obligations under section 29K;

                     (c)  in the case of a full-time Councillor—engages in any paid employment outside the duties of the Councillor’s office without the consent of the Minister;

                     (d)  in the case of a full-time Councillor—is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.

29I  Resignation of Councillors

                   A Councillor may resign by giving the Governor-General a signed resignation notice.

29J  Arrangement of Council business

             (1)  Subject to subsection (2), the Council President may give directions about the arrangement of the Council’s business.

             (2)  The Council must not carry out any work (other than work relating to a function under Part IIIA or VIIA) except in accordance with a program agreed to by:

                     (a)  a majority of the parties to the Competition Principles Agreement; or

                     (b)  if the parties to the Agreement are evenly divided on the question of agreeing to a program—the Commonwealth.

29K  Disclosure of interests by Councillors

             (1)  If a Councillor (except the Council President) is taking part, or is to take part, in the Council’s consideration of a matter and the Councillor has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions relating to the matter:

                     (a)  the Councillor must disclose the interest to the Council President; and

                     (b)  the Councillor must not take part, or continue to take part, in the consideration of the matter if:

                              (i)  all of the persons concerned in the matter do not consent to the Councillor taking part in the consideration of the matter; or

                             (ii)  the Council President gives a direction to the member under paragraph (2)(b).

             (2)  If the Council President becomes aware that a Councillor is taking part, or is to take part, in the Council’s consideration of a matter and that the Councillor has such an interest relating to the matter:

                     (a)  the Council President must cause the Councillor’s interest to be disclosed to the persons concerned in the matter; or

                     (b)  if the Council President considers that the Councillor should not take part or continue to take part in the consideration of the matter—the Council President must direct the Councillor accordingly.

             (3)  The Council President must give the Minister written notice of all pecuniary interests that the Council President has or acquires in any business carried on in Australia or in any body corporate carrying on such business.

29L  Council meetings

             (1)  The Council President must convene the meetings that the Council President thinks are necessary to perform the Council’s functions efficiently.

             (2)  The meetings must be held in places determined by the Council President.

             (3)  The Council President must preside at any meeting that he or she attends.

             (4)  If the Council President is absent from a meeting, a Councillor chosen by the Councillors at the meeting must preside.

             (5)  The Councillor presiding at a meeting may give directions on the procedure to be followed in relation to the meeting.

             (6)  The quorum for a meeting is 3 Councillors (including the Council President).

             (7)  At a meeting, a question must be decided by a majority of votes of the Councillors present and voting. The Councillor presiding has a deliberative vote, and a casting vote if the deliberative votes are equally divided.

29M  Staff to help Council

             (1)  The staff needed to help the Council are to be persons engaged under the Public Service Act 1999.

             (2)  For the purposes of the Public Service Act 1999:

                     (a)  the Council President and the APS employees assisting the Council President together constitute a Statutory Agency; and

                     (b)  the Council President is the Head of that Statutory Agency.

29N  Consultants

             (1)  On behalf of the Commonwealth, the Council may engage persons to give advice to, and perform services for, the Council.

             (2)  The terms and conditions of engagement are as determined by the Council.

29O  Annual report

                   Within 60 days after the end of each financial year, the Councillors must give a report on the Council’s operations during that year to the Minister for presentation to the Parliament.


 

Part IIIThe Australian Competition Tribunal

  

30  Constitution of Tribunal

             (1)  The Trade Practices Tribunal that existed immediately before this subsection commenced continues to exist as the Australian Competition Tribunal.

             (2)  The Tribunal so continued in existence shall consist of a President and such number of Deputy Presidents and other members as are appointed in accordance with this section.

             (3)  A member of the Tribunal shall be appointed by the Governor-General.

31  Qualifications of members of Tribunal

             (1)  A person shall not be appointed as a presidential member of the Tribunal unless he or she is a Judge of a Federal Court, not being the High Court or a court of an external Territory.

             (2)  A person shall not be appointed as a member of the Tribunal other than a presidential member unless he or she appears to the Governor-General to be qualified for appointment by virtue of his or her knowledge of, or experience in, industry, commerce, economics, law or public administration.

31A  Appointment of Judge as presidential member of Tribunal not to affect tenure etc.

                   The appointment of a Judge of a Federal Court as a presidential member of the Tribunal, or service by a Judge of a Federal Court as a presidential member of the Tribunal, whether the appointment was or is made or the service occurred or occurs before or after the commencement of this section, does not affect, and shall be deemed never to have affected, his or her tenure of office as a Judge of a Federal Court or his or her rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge of a Federal Court and, for all purposes, his or her service, whether before or after the commencement of this section, as a presidential member of the Tribunal shall be taken to have been, or to be, service as the holder of his or her office as a Judge of a Federal Court.

32  Terms and conditions of appointment

                   Subject to this Part, a member of the Tribunal holds office for such period, not exceeding 7 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor-General determines, but is eligible for re-appointment.

33  Remuneration and allowances of members of Tribunal

             (4)  A member of the Tribunal other than a presidential member shall be paid such remuneration as is determined by the Remuneration Tribunal.

             (5)  A member of the Tribunal other than a presidential member shall be paid such allowances as are prescribed.

             (6)  Subsections (4) and (5) have effect subject to the Remuneration Tribunal Act 1973.

34  Acting appointments

             (1)  Where:

                     (a)  the President is, or is expected to be, absent from duty; or

                     (b)  there is, or is expected to be, a vacancy in the office of President;

the Minister may appoint a Deputy President or an acting Deputy President to act as President during the absence, or while there is a vacancy in the office of President, as the case may be.

             (2)  Where a presidential member (including the President) of the Tribunal is, or is expected to be, absent from duty, the Governor-General may appoint a person qualified to be appointed as a presidential member to act as a Deputy President during the absence from duty of the member.

             (3)  Where a member of the Tribunal other than a presidential member is, or is expected to be, absent from duty, the Governor-General may appoint a person qualified to be appointed as a member of the Tribunal other than a presidential member to act as such a member during the absence from duty of the member.

             (4)  Where a person has been appointed under subsection (2) or (3), the Governor-General may, by reason of pending proceedings or other special circumstances, direct, before the absent member of the Tribunal resumes duty, that the person so appointed shall continue to act under the appointment after the resumption of duty by the absent member until the Governor-General terminates the appointment, but a person shall not continue to act as a member of the Tribunal by virtue of this subsection for more than 12 months after the resumption of duty by the absent member.

             (5)  Where a person has been appointed under this section to act as a member of the Tribunal during the absence from duty of a member of the Tribunal, and that member ceases to hold office without having resumed duty, the period of appointment of the person so appointed shall be deemed to continue until it is terminated by the Governor-General, or until the expiration of 12 months from the date on which the absent member ceases to hold office, whichever first happens.

35  Suspension and removal of members of Tribunal

             (1)  The Governor-General may suspend a member of the Tribunal from office on the ground of misbehaviour or physical or mental incapacity.

             (2)  The Minister shall cause a statement of the ground of the suspension to be laid before each House of the Parliament within 7 sitting days of the House after the suspension.

             (3)  Where such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member of the Tribunal should be restored to office and, if each House so passes a resolution, the Governor-General shall terminate the suspension.

             (4)  If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the Governor-General may remove the member of the Tribunal from office.

             (5)  If a member of the Tribunal becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, the Governor-General shall remove him or her from office.

             (6)  A member of the Tribunal shall not be removed from office except as provided by this section.

             (7)  A presidential member of the Tribunal ceases to hold office if he or she no longer holds office as a Judge of a Federal Court, not being the High Court or a court of an external Territory.

36  Resignation

                   A member of the Tribunal may resign his or her office by writing signed by him or her and delivered to the Governor-General.

37  Constitution of Tribunal for particular matters

                   The Tribunal shall, for the purpose of hearing and determining proceedings, be constituted by a Division of the Tribunal consisting of a presidential member of the Tribunal and two members of the Tribunal who are not presidential members.

38  Validity of determinations

                   The validity of a determination of the Tribunal shall not be affected or called in question by reason of any defect or irregularity in the constitution of the Tribunal.

39  Arrangement of business

                   The President may give directions as to the arrangement of the business of the Tribunal and the constitution of Divisions of the Tribunal.

40  Disclosure of interests by members of Tribunal

             (1)  Where a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and the member has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the proceedings:

                     (a)  the member shall disclose the interest to the President; and

                     (b)  the member shall not take part, or continue to take part, in the proceedings if:

                              (i)  the President gives a direction under paragraph (2)(a) in relation to the proceedings; or

                             (ii)  all of the persons concerned in the proceedings do not consent to the member taking part in the proceedings.

             (2)  Where the President becomes aware that a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and that the member has in relation to the proceedings such an interest:

                     (a)  if the President considers that the member should not take part, or should not continue to take part, in the
proceedings—the President shall give a direction to the member accordingly; or

                     (b)  in any other case—the President shall cause the interest of the member to be disclosed to the persons concerned in the proceedings.

41  Presidential member to preside

                   The presidential member who is a member of a Division shall preside at proceedings of that Division.

42  Decision of questions

             (1)  A question of law arising in a matter before a Division of the Tribunal (including the question whether a particular question is one of law) shall be determined in accordance with the opinion of the presidential member presiding.

             (2)  Subject to subsection (1), a question arising in proceedings before a Division of the Tribunal shall be determined in accordance with the opinion of a majority of the members constituting the Division.

43  Member of Tribunal ceasing to be available

             (1)  This section applies where the hearing of any proceedings has been commenced or completed by the Tribunal but, before the matter to which the proceedings relate has been determined, one of the members constituting the Tribunal for the purposes of the proceedings has ceased to be a member of the Tribunal or has ceased to be available for the purposes of the proceedings.

             (2)  Where the President is satisfied that this section applies in relation to proceedings, the President may direct that a specified member of the Tribunal shall take the place of the member referred to in subsection (1) for the purposes of the proceedings.

             (3)  Where this section applies in relation to proceedings that were being dealt with before the Tribunal, the President may, instead of giving a direction under subsection (2), direct that the hearing and determination, or the determination, of the proceedings be completed by the Tribunal constituted by the members other than the member referred to in subsection (1).

             (4)  Where the President has given a direction under subsection (3), he or she may, at any time before the determination of the proceedings, direct that a third member be added to the Tribunal as constituted in accordance with subsection (3).

             (5)  The Tribunal as constituted in accordance with any of the provisions of this section for the purposes of any proceedings may have regard to any record of the proceedings before the Tribunal as previously constituted.

43A  Counsel assisting Tribunal

             (1)  The President may, on behalf of the Commonwealth, appoint a legal practitioner to assist the Tribunal as counsel, either generally or in relation to a particular matter or matters.

             (2)  In this section:

legal practitioner means a legal practitioner (however described) of the High Court or of the Supreme Court of a State or Territory.

43B  Consultants

                   The Registrar may, on behalf of the Commonwealth, engage persons as consultants to, or to perform services for, the Tribunal.

44  Staff of Tribunal

             (1)  There shall be a Registrar of the Tribunal and such Deputy Registrars of the Tribunal as are appointed in accordance with this section.

             (2)  The Registrar and the Deputy Registrars shall be appointed by the Minister and shall have such duties and functions as are provided by this Act and the regulations and such other duties and functions as the President directs.

             (3)  The Registrar and the Deputy Registrars, and the staff necessary to assist them, shall be persons engaged under the Public Service Act 1999.

44A  Acting appointments

             (1)  The Minister may appoint a person who is engaged under the Public Service Act 1999 to act as the Registrar or as a Deputy Registrar during any period, or during all periods, when:

                     (a)  the Registrar or that Deputy Registrar, as the case may be, is absent from duty or from Australia or is, for any other reason, unable to perform the duties and functions of his or her office; or

                     (b)  there is a vacancy in the office of Registrar or in that office of Deputy Registrar, as the case may be.

             (2)  A person acting as the Registrar or as a Deputy Registrar by reason of a vacancy in the office of Registrar or of that Deputy Registrar shall not continue so to act after the expiration of 12 months after the occurrence of the vacancy.

             (3)  A person appointed to act as the Registrar or as a Deputy Registrar has, while acting as the Registrar or as that Deputy Registrar, as the case may be, all the duties and functions of the Registrar or of that Deputy Registrar, and references in this Act to the Registrar or to a Deputy Registrar shall:

                     (a)  if a person is acting as the Registrar—be read as a reference to the person so acting; or

                     (b)  if a person is acting as a Deputy Registrar—be read as including a reference to the person so acting.

             (4)  The Minister may at any time terminate an appointment of a person to act as the Registrar or as a Deputy Registrar.

             (5)  A person who holds an appointment to act as the Registrar or as a Deputy Registrar may resign his or her appointment by writing under his or her hand delivered to the Minister.

             (6)  The validity of an act done by a person appointed to act as the Registrar or as a Deputy Registrar shall not be questioned in any proceeding on a ground arising from the fact that the occasion for the appointment, or for him or her to act under the appointment, had not arisen or that the appointment had ceased to have effect or the occasion for him or her to act under the appointment had passed.


 

Part IIIAAThe Australian Energy Regulator (AER)

Division 1Preliminary

44AB  Definitions

                   In this Part, unless the contrary intention appears:

Australian Energy Market Agreement means the agreement, as amended from time to time:

                     (a)  that relates to energy; and

                     (b)  that is between the Commonwealth, all of the States, the Australian Capital Territory and the Northern Territory; and

                     (c)  that is first made in 2004; and

                     (d)  that agrees to the establishment of the AER and the AEMC.

Commonwealth AER member means the member referred to in section 44AM.

full-time AER member means an AER member appointed on a full-time basis.

part-time AER member means an AER member appointed on a part-time basis.

South Australian Electricity Legislation means:

                     (a)  the National Electricity Law set out in Schedule 1 to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; and

                     (b)  any regulations, as in force from time to time, made under Part 4 of that Act; and

                     (c)  any rules (including the National Electricity Code), as in force from time to time, made under the National Electricity Law.

State/Territory energy law means any of the following laws:

                     (a)  a uniform energy law that applies as a law of a State or Territory;

                     (b)  a law of a State or Territory that applies a law mentioned in paragraph (a) as a law of its own jurisdiction;

                     (c)  any other provisions of a law of a State or Territory that are prescribed by the regulations for the purposes of this paragraph.

uniform energy law means:

                     (a)  the South Australian Electricity Legislation; and

                     (b)  provisions of a law of a State or Territory that:

                              (i)  relate to energy; and

                             (ii)  are prescribed by the regulations for the purposes of this subparagraph;

                            being those provisions as in force from time to time.

44AC  This Part binds the Crown

                   This Part binds the Crown in each of its capacities.

44AD  Extra-territorial operation

                   It is the intention of the Parliament that the operation of this Part should, as far as possible, include operation in relation to the following:

                     (a)  things situated in or outside Australia;

                     (b)  acts, transactions and matters done, entered into or occurring in or outside Australia;

                     (c)  things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of a State, a Territory or a foreign country.


 

Division 2Establishment of the AER

44AE  Establishment of the AER

             (1)  The Australian Energy Regulator (the AER) is established by this section.

             (2)  The AER:

                     (a)  is a body corporate with perpetual succession; and

                     (b)  must have a common seal; and

                     (c)  may acquire, hold and dispose of real and personal property; and

                     (d)  may sue and be sued in its corporate name.

44AF  AER to hold money and property on behalf of the Commonwealth

                   The AER holds any money or property for and on behalf of the Commonwealth.

44AG  Constitution of the AER

                   The AER consists of:

                     (a)  a Commonwealth AER member, appointed in accordance with section 44AM; and

                     (b)  2 State/Territory AER members, appointed in accordance with section 44AP.


 

Division 3Functions and powers of the AER

44AH  Commonwealth functions

                   The AER has any functions:

                     (a)  conferred under a law of the Commonwealth; or

                     (b)  prescribed by regulations made under this Act.

Note:          The AER may have functions under the Australian Energy Market Act 2004 and the Gas Pipelines Access (Commonwealth) Act 1998.

44AI  Commonwealth consent to conferral of functions etc. on AER

             (1)  A State/Territory energy law may confer functions or powers, or impose duties, on the AER for the purposes of that law.

Note:          Section 44AK sets out when such a law imposes a duty on the AER.

             (2)  Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a State/Territory energy law to the extent to which:

                     (a)  the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the AER; or

                     (b)  the authorisation would otherwise exceed the legislative power of the Commonwealth.

             (3)  The AER cannot perform a duty or function, or exercise a power, under a State/Territory energy law unless the conferral of the function or power, or the imposition of the duty, is in accordance with the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory concerned.

44AJ  How duty is imposed

Application

             (1)  This section applies if a State/Territory energy law purports to impose a duty on the AER.

Note:          Section 44AK sets out when such a law imposes a duty on the AER.

State or Territory legislative power sufficient to support duty

             (2)  The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:

                     (a)  imposing the duty is within the legislative powers of the State or Territory concerned; and

                     (b)  imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.

Note:          If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 44AI to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

             (3)  If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.

             (4)  If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.

             (5)  The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:

                     (a)  is within the legislative powers of the Commonwealth; and

                     (b)  is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.

             (6)  Subsections (1) to (5) do not limit section 44AI.

44AK  When a State/Territory energy law imposes a duty

                   For the purposes of sections 44AI and 44AJ, a State/Territory energy law imposes a duty on the AER if:

                     (a)  the law confers a function or power on the AER; and

                     (b)  the circumstances in which the function or power is conferred give rise to an obligation on the AER to perform the function or to exercise the power.

44AL  Powers of the AER

                   The AER has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

Note:          State and Territory laws may also confer powers on the AER in respect of its functions under those laws: see section 44AI.


 

Division 4Administrative provisions relating to the AER

Subdivision AAppointment etc. of members

44AM  Appointment of Commonwealth AER member

             (1)  A Commonwealth AER member is to be appointed by the Governor-General by written instrument.

             (2)  The Commonwealth AER member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

             (3)  A person is not eligible for appointment as the Commonwealth AER member unless the person is a member of the Commission. If the person ceases to be a member of the Commission, then the person also ceases to be an AER member.

             (4)  A person is not eligible for appointment as the Commonwealth AER member unless the person has been chosen for appointment in accordance with the Australian Energy Market Agreement.

44AN  Membership of AER and Commission

Member taken to be full-time member of both AER and Commission

             (1)  For the purposes of this Part, the Commonwealth AER member is taken to be a full-time member of the AER.

             (2)  However, the Commonwealth AER member remains a full-time member of the Commission.

Paid employment

             (3)  Paragraph 13(2)(c) does not apply to a member of the Commission in respect of any paid employment of that member as an AER member.

             (4)  Sections 44AX and 44AAB do not apply to an AER member in respect of the paid employment of that member as a member of the Commission.

44AO  Acting appointment of Commonwealth AER member

             (1)  The Chairperson may appoint a member of the Commission to act as the Commonwealth AER member:

                     (a)  during a vacancy in the office of Commonwealth AER member, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Commonwealth AER member is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note:          See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

             (2)  If a person acting as the Commonwealth AER member ceases to be a member of the Commission, then the appointment to act as the Commonwealth AER member also ceases.

             (3)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

44AP  Appointment of State/Territory AER members

             (1)  A State/Territory AER member is to be appointed by the Governor-General by written instrument, on either a full-time or part-time basis.

Note:          A State/Territory AER member is also taken to be an associate member of the Commission: see section 8AB.

             (2)  A State/Territory AER member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

             (3)  A person is not eligible for appointment as a State/Territory AER member unless the person, being a person who has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration, has been nominated for appointment in accordance with the Australian Energy Market Agreement.

44AQ  Acting appointment of State/Territory AER member

             (1)  The Minister may appoint a person to act as a State/Territory AER member:

                     (a)  during a vacancy in the office of State/Territory AER member, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the State/Territory AER member is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note:          See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

             (2)  A person is not eligible for appointment to act as a State/Territory AER member unless the person, being a person who has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration, has been nominated for appointment in accordance with the Australian Energy Market Agreement.

44AR  AER Chair

             (1)  One of the AER members is to be appointed by the Governor-General as the AER Chair, by written instrument. The appointment as AER Chair may be made at the same time as the appointment as AER member, or at a later time.

             (2)  A member is not eligible for appointment as AER Chair unless the person has been nominated for appointment as the Chair in accordance with the Australian Energy Market Agreement.

             (3)  The AER Chair holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

             (4)  If the AER Chair ceases to be an AER member, then he or she also ceases to be the AER Chair.

Note:          A person may cease to be the AER Chair without ceasing to be an AER member.

44AS  Acting AER Chair

             (1)  The Minister may appoint an AER member to act as the AER Chair:

                     (a)  during a vacancy in the office of the AER Chair, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the AER Chair is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note:          See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

             (2)  If a person acting as the AER Chair ceases to be an AER member, then the appointment to act as the AER Chair also ceases.

             (3)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

44AT  Remuneration of AER members

             (1)  An AER member (other than the Commonwealth AER member) is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed.

             (2)  An AER member (other than the Commonwealth AER member) is to be paid the allowances that are prescribed.

             (3)  Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.

             (4)  The Commonwealth AER member is not entitled to be paid remuneration or allowances.

Note:          The Commonwealth AER member is paid as a member of the Commission.

44AU  Additional remuneration of AER Chair

             (1)  The AER Chair (whether or not the Commonwealth AER member) is to be paid additional remuneration (if any) determined by the Remuneration Tribunal.

             (2)  The AER Chair (whether or not the Commonwealth AER member) is to be paid additional allowances (if any) that are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 other than subsection 7(11) of that Act.

44AV  Leave of absence

             (1)  A full-time AER member has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant a full-time AER member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

             (3)  The AER Chair may grant leave of absence to any part-time AER member on the terms and conditions that the AER Chair determines.

44AW  Other terms and conditions

                   An AER member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor-General.

44AX  Outside employment

             (1)  A full-time AER member must not engage in paid employment outside the duties of the member’s office without the Minister’s consent.

             (2)  A part-time AER member must not engage in any paid employment that conflicts or could conflict with the proper performance of the member’s duties.

44AY  Disclosure of interests

             (1)  If an AER member has any direct or indirect interest in a matter being considered, or about to be considered, by the AER, being an interest that could conflict with the proper performance of the member’s functions in relation to a matter arising at a meeting of the AER, then the member must as soon as practicable disclose that interest at a meeting of the AER.

             (2)  The disclosure, and any decision made by the AER in relation to the disclosure, must be recorded in the minutes of the meeting.

44AZ  Resignation

             (1)  An AER member may resign his or her appointment by giving the Governor-General a written resignation.

             (2)  The AER Chair may resign his or her appointment as AER Chair by giving the Governor-General a written resignation. The resignation does not affect the person’s appointment as an AER member.

44AAB  Termination of appointment

All AER members

             (1)  The Governor-General may terminate the appointment of an AER member:

                     (a)  for misbehaviour or physical or mental incapacity; or

                     (b)  if the member:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (c)  if the member fails, without reasonable excuse, to comply with section 44AY.

Additional grounds: full-time AER members

             (2)  The Governor-General may terminate the appointment of a full-time AER member if:

                     (a)  the member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (b)  the member engages, except with the Minister’s consent, in paid employment outside the duties of his or her office.

Additional grounds: part-time AER members

             (3)  The Governor-General may terminate the appointment of a part-time AER member if:

                     (a)  the member is absent, except on leave of absence, from 3 consecutive meetings of the AER; or

                     (b)  the member engages in paid employment that conflicts or could conflict with the proper performance of the duties of his or her office.

Subdivision BStaff etc. to assist the AER

44AAC  Staff etc. to assist the AER

                   The Chairperson must make available:

                     (a)  persons engaged under section 27; and

                     (b)  consultants engaged under section 27A;

to assist the AER to perform its functions.

Subdivision CMeetings of the AER etc.

44AAD  Meetings

             (1)  The AER Chair must convene such meetings of the AER as he or she thinks necessary for the efficient performance of the functions of the AER.

Note:          See also section 33B of the Acts Interpretation Act 1901, which contains extra rules about meetings by telephone etc.

             (2)  Meetings of the AER must be held at such places as the AER Chair determines.

             (3)  At a meeting of the AER, 2 members constitute a quorum. The quorum must include the AER Chair and must also include the Commonwealth AER member (if the Commonwealth AER member is not also the AER Chair).

             (4)  Questions arising at a meeting must be determined by unanimous vote of the members present and voting.

             (5)  The AER Chair must preside at all meetings of the AER.

             (6)  The AER Chair may give directions regarding the procedure to be followed at or in connection with a meeting.

44AAE  Resolutions without meetings

             (1)  If all 3 AER members sign a document containing a statement that they are in favour of a resolution in terms set out in the document, then a resolution in those terms is taken to have been passed at a duly constituted meeting of the AER held on the day the document was signed, or, if the members sign the document on different days, on the last of those days.

             (2)  For the purposes of subsection (1), 2 or more separate documents containing statements in identical terms each of which is signed by one or more members are together taken to constitute one document containing a statement in those terms signed by those members on the respective days on which they signed the separate documents.

             (3)  A member must not sign a document containing a statement in favour of a resolution if the resolution concerns a matter in which the member has any direct or indirect interest, being an interest that could conflict with the proper performance of the member’s functions in relation to any matter.

Subdivision DMiscellaneous

44AAF  Confidentiality

             (1)  The AER must take all reasonable measures to protect from unauthorised use or disclosure information:

                     (a)  given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers; or

                     (b)  that is obtained by compulsion in the exercise of its powers.

Note:          The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information.

             (2)  For the purposes of subsection (1), the disclosure of information as required or permitted by a law of the Commonwealth, a State or Territory, is taken to be authorised use and disclosure of the information.

Authorised use

             (3)  Disclosing information to one of the following is authorised use and disclosure of the information:

                     (a)  the Commission;

                     (b)  the AEMC;

                     (c)  National Electricity Market Management Company Limited (ACN 072 010 327);

                     (d)  any staff or consultant assisting a body mentioned in paragraph (a), (b) or (c) in performing its functions or exercising its powers;

                     (e)  any other person or body prescribed by the regulations for the purpose of this paragraph.

             (4)  A person or body to whom information is disclosed under subsection (3) may use the information for any purpose connected with the performance of the functions, or the exercise of the powers, of the person or body.

             (5)  The AER may impose conditions to be complied with in relation to information disclosed under subsection (3).

             (6)  For the purposes of subsection (1), the use or disclosure of information by a person for the purposes of:

                     (a)  performing the person’s functions, or exercising the person’s powers, as:

                              (i)  an AER member, a person referred to in section 44AAC or a delegate of the AER; or

                             (ii)  a person who is authorised to perform or exercise a function or power of, or on behalf of, the AER; or

                     (b)  the performance of functions, or the exercise of powers, by the person by way of assisting a delegate of the AER;

is taken to be authorised use and disclosure of the information.

             (7)  Regulations made for the purposes of this section may specify uses of information and disclosures of information that are authorised uses and authorised disclosures for the purposes of this section.

             (8)  Nothing in any of the above subsections limits:

                     (a)  anything else in any of those subsections; or

                     (b)  what may otherwise constitute, for the purposes of subsection (1), authorised use or disclosure of information.

44AAG  Federal Court may make certain orders

             (1)  The Federal Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person is in breach of:

                     (a)  a uniform energy law that is applied as a law of the Commonwealth; or

                     (b)  a State/Territory energy law.

             (2)  If the order declares the person to be in breach of such a law, the order may include one or more of the following:

                     (a)  an order that the person pay a civil penalty determined in accordance with the law;

                     (b)  an order that the person cease, within a specified period, the act, activity or practice constituting the breach;

                     (c)  an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;

                     (d)  an order that the person implement a specified program for compliance with the law;

                     (e)  an order of a kind prescribed by regulations made under this Act.

             (3)  If a person has engaged, is engaging or is proposing to engage in any conduct in breach of:

                     (a)  a uniform energy law that is applied as a law of the Commonwealth; or

                     (b)  a State/Territory energy law;

the Federal Court may, on application by the AER on behalf of the Commonwealth, grant an injunction:

                     (c)  restraining the person from engaging in the conduct; and

                     (d)  if, in the court’s opinion, it is desirable to do so—requiring the person to do something.

             (4)  The power of the Federal Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

                     (a)  if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

44AAH  Delegation by the AER

                   The AER may, by resolution, delegate:

                     (a)  all or any of the AER’s functions and powers under this Part or under regulations made under this Act, or under another law of the Commonwealth; or

                     (b)  all or any of the AER’s functions and powers under a State/Territory energy law;

to an AER member or to an SES employee, or acting SES employee, assisting the AER as mentioned in section 44AAC.

Note 1:       Section 17AA of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee.

Note 2:       See also sections 34AA to 34A of the Acts Interpretation Act 1901, which contain extra rules about delegations.

44AAI  Fees

             (1)  The AER may charge a fee specified in the regulations for services provided by it in performing any of its functions, or exercising any of its powers, under this Part or under regulations made under this Act, or under another law of the Commonwealth or a State/Territory energy law.

             (2)  The fee must not be such as to amount to taxation.

44AAJ  Annual report

             (1)  The AER must, within 60 days after the end of each year ending on 30 June, give the Minister a report on its operations during that year, for presentation to the Parliament.

Note:          See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

             (2)  The Minister must give a copy of the report to the relevant Minister of each of the States, the Australian Capital Territory and the Northern Territory.

44AAK  Regulations may deal with transitional matters

             (1)  The Governor-General may make regulations dealing with matters of a transitional nature relating to the transfer of functions and powers from a body to the AER.

             (2)  Without limiting subsection (1), the regulations may deal with:

                     (a)  the transfer of any relevant investigations being conducted by the body at the time of the transfer of functions and powers to the AER; or

                     (b)  the transfer of any decisions or determinations being made by the body at the time of the transfer of functions and powers to the AER; or

                     (c)  the substitution of the AER as a party to any relevant proceedings that are pending in any court or tribunal at the time of the transfer of functions and powers to the AER; or

                     (d)  the transfer of any relevant information from the body to the AER.

             (3)  In this section:

matters of a transitional nature also includes matters of an application or saving nature.


 

Part IIIAAccess to services

Division 1Preliminary

44B  Definitions

                   In this Part, unless the contrary intention appears:

access code means a code referred to in section 44ZZAA.

access undertaking means an undertaking under section 44ZZA.

Commonwealth Minister means the Minister.

constitutional trade or commerce means any of the following:

                     (a)  trade or commerce among the States;

                     (b)  trade or commerce between Australia and places outside Australia;

                     (c)  trade or commerce between a State and a Territory, or between 2 Territories.

declaration means a declaration made by the designated Minister under Division 2.

declaration recommendation means a recommendation made by the Council under section 44F.

declared service means a service for which a declaration is in operation.

designated Minister has the meaning given by section 44D.

determination means a determination made by the Commission under Division 3.

director has the same meaning as in the Corporations Act 2001.

entity means a person, partnership or joint venture.

modifications includes additions, omissions and substitutions.

officer has the same meaning as in the Corporations Act 2001.

party means:

                     (a)  in relation to an arbitration of an access dispute—a party to the arbitration, as mentioned in section 44U;

                     (b)  in relation to a determination—a party to the arbitration in which the Commission made the determination.

provider, in relation to a service, means the entity that is the owner or operator of the facility that is used (or is to be used) to provide the service.

responsible Minister means:

                     (a)  the Premier, in the case of a State;

                     (b)  the Chief Minister, in the case of a Territory.

revocation recommendation means a recommendation made by the Council under section 44J.

service means a service provided by means of a facility and includes:

                     (a)  the use of an infrastructure facility such as a road or railway line;

                     (b)  handling or transporting things such as goods or people;

                     (c)  a communications service or similar service;

but does not include:

                     (d)  the supply of goods; or

                     (e)  the use of intellectual property; or

                      (f)  the use of a production process;

except to the extent that it is an integral but subsidiary part of the service.

State or Territory access regime law means:

                     (a)  a law of a State or Territory that establishes or regulates an access regime; or

                     (b)  a law of a State or Territory that regulates an industry that is subject to an access regime.

State or Territory body means:

                     (a)  a State or Territory;

                     (b)  an authority of a State or Territory.

third party, in relation to a service, means a person who wants access to the service or wants a change to some aspect of the person’s existing access to the service.

44C  How this Part applies to partnerships and joint ventures

             (1)  This section applies if the provider of a service is a partnership or joint venture that consists of 2 or more corporations. Those corporations are referred to in this section as the participants.

             (2)  If this Part requires or permits something to be done by the provider, the thing may be done by one or more of the participants on behalf of the provider.

             (3)  If a provision of this Part refers to the provider bearing any costs, the provision applies as if the provision referred to any of the participants bearing any costs.

             (4)  If a provision of this Part refers to the provider doing something, the provision applies as if the provision referred to one or more of the participants doing that thing on behalf of the provider.

             (5)  If:

                     (a)  a provision of this Part requires the provider to do something, or prohibits the provider from doing something; and

                     (b)  a contravention of the provision is an offence;

the provision applies as if a reference to the provider were a reference to any person responsible for the day-to-day management and control of the provider.

             (6)  If:

                     (a)  a provision of this Part requires a provider to do something, or prohibits a provider doing something; and

                     (b)  a contravention of the provision is not an offence;

the provision applies as if the reference to provider were a reference to each participant and to any other person responsible for the day-to-day management and control of the provider.

44D  Meaning of designated Minister

             (1)  The Commonwealth Minister is the designated Minister unless subsection (2) or (3) applies.

             (2)  In relation to declaring a service in a case where:

                     (a)  the provider is a State or Territory body; and

                     (b)  the State or Territory concerned is a party to the Competition Principles Agreement;

the responsible Minister of the State or Territory is the designated Minister.

             (3)  In relation to revoking a declaration that was made by the responsible Minister of a State or Territory, the responsible Minister of that State or Territory is the designated Minister.

44DA  The principles in the Competition Principles Agreement have status as guidelines

             (1)  For the avoidance of doubt:

                     (a)  the requirement, under subsection 44G(3), that the Council apply the relevant principles set out in the Competition Principles Agreement in deciding whether an access regime is an effective access regime; and

                     (b)  the requirement, under subsection 44H(5), that the designated Minister apply the relevant principles set out in the Agreement in deciding whether an access regime is an effective access regime; and

                     (c)  the requirement, under subsection 44M(4), that the Council apply the relevant principles set out in the Agreement in deciding whether to recommend to the Commonwealth Minister that he or she should decide that an access regime is, or is not, an effective access regime; and

                     (d)  the requirement, under subsection 44N(2), that the Commonwealth Minister, in making a decision on a recommendation received from the Council, apply the relevant principles set out in the Agreement;

are obligations that the Council and the relevant Ministers must treat each individual relevant principle as having the status of a guideline rather than a binding rule.

             (2)  An effective access regime may contain additional matters that are not inconsistent with Competition Principles Agreement principles.

44E  This Part binds the Crown

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

             (2)  Nothing in this Part makes the Crown liable to be prosecuted for an offence.

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


 

Division 2Declared services

Subdivision ARecommendation by the Council

44F  Person may request recommendation

             (1)  The designated Minister, or any other person, may make a written application to the Council asking the Council to recommend under section 44G that a particular service be declared.

             (2)  After receiving the application, the Council:

                     (a)  must tell the provider of the service that the Council has received the application, unless the provider is the applicant; and

                     (b)  must recommend to the designated Minister:

                              (i)  that the service be declared; or

                             (ii)  that the service not be declared.

             (3)  If the applicant is a person other than the designated Minister, the Council may recommend that the service not be declared if the Council thinks that the application was not made in good faith. This subsection does not limit the grounds on which the Council may decide to recommend that the service not be declared.

             (4)  In deciding what recommendation to make, the Council must consider whether it would be economical for anyone to develop another facility that could provide part of the service. This subsection does not limit the grounds on which the Council may decide to recommend that the service be declared or not be declared.

             (5)  The applicant may withdraw the application at any time before the Council makes a recommendation relating to it.

44G  Limits on the Council recommending declaration of a service

             (1)  The Council cannot recommend declaration of a service that is the subject of an access undertaking in operation under section 44ZZA.

             (2)  The Council cannot recommend that a service be declared unless it is satisfied of all of the following matters:

                     (a)  that access (or increased access) to the service would promote competition in at least one market (whether or not in Australia), other than the market for the service;

                     (b)  that it would be uneconomical for anyone to develop another facility to provide the service;

                     (c)  that the facility is of national significance, having regard to:

                              (i)  the size of the facility; or

                             (ii)  the importance of the facility to constitutional trade or commerce; or

                            (iii)  the importance of the facility to the national economy;

                     (d)  that access to the service can be provided without undue risk to human health or safety;

                     (e)  that access to the service is not already the subject of an effective access regime;

                      (f)  that access (or increased access) to the service would not be contrary to the public interest.

             (3)  In deciding whether an access regime established by a State or Territory that is a party to the Competition Principles Agreement is an effective access regime, the Council:

                     (a)  must apply the relevant principles set out in that agreement; and

                     (b)  must, subject to section 44DA, not consider any other matters.

             (4)  If there is in force a decision of the Commonwealth Minister under section 44N that a regime established by a State or Territory for access to the service is an effective access regime, the Council must follow that decision, unless the Council believes that, since the Commonwealth Minister’s decision was published, there have been substantial modifications of the access regime or of the relevant principles set out in the Competition Principles Agreement.

Note:          The period for which a decision is in force is determined under subsection 44N(3) and paragraph 44P(a).

Subdivision BDeclaration by the designated Minister

44H  Designated Minister may declare a service

             (1)  On receiving a declaration recommendation, the designated Minister must either declare the service or decide not to declare it.

             (2)  In deciding whether to declare the service or not, the designated Minister must consider whether it would be economical for anyone to develop another facility that could provide part of the service. This subsection does not limit the grounds on which the designated Minister may make a decision whether to declare the service or not.

             (3)  The designated Minister cannot declare a service that is the subject of an access undertaking in operation under section 44ZZA.

             (4)  The designated Minister cannot declare a service unless he or she is satisfied of all of the following matters:

                     (a)  that access (or increased access) to the service would promote competition in at least one market (whether or not in Australia), other than the market for the service;

                     (b)  that it would be uneconomical for anyone to develop another facility to provide the service;

                     (c)  that the facility is of national significance, having regard to:

                              (i)  the size of the facility; or

                             (ii)  the importance of the facility to constitutional trade or commerce; or

                            (iii)  the importance of the facility to the national economy;

                     (d)  that access to the service can be provided without undue risk to human health or safety;

                     (e)  that access to the service is not already the subject of an effective access regime;

                      (f)  that access (or increased access) to the service would not be contrary to the public interest.

             (5)  In deciding whether an access regime established by a State or Territory that is a party to the Competition Principles Agreement is an effective access regime, the Minister:

                     (a)  must apply the relevant principles set out in that agreement; and

                     (b)  must, subject to section 44DA, not consider any other matters.

             (6)  If there is in force a decision of the Commonwealth Minister under section 44N that a regime established by a State or Territory for access to the service is an effective access regime, the designated Minister must follow that decision, unless the designated Minister believes that, since the Commonwealth Minister’s decision was published, there have been substantial modifications of the access regime or of the relevant principles set out in the Competition Principles Agreement.

Note:          The period for which a decision is in force is determined under subsection 44N(3) and paragraph 44P(a).

             (7)  The designated Minister must publish the declaration or his or her decision not to declare the service. At the same time, the designated Minister must give reasons for the decision and a copy of the declaration recommendation to the provider and to the person who applied for the declaration recommendation.

             (8)  If the designated Minister declares the service, the declaration must specify the expiry date of the declaration.

             (9)  If the designated Minister does not publish under subsection (7) within 60 days after receiving the declaration recommendation, the designated Minister is taken, at the end of that 60-day period, to have decided not to declare the service and to have published that decision not to declare the service.

44I  Duration and effect of declaration

             (1)  Subject to this section, a declaration begins to operate at a time specified in the declaration. The time cannot be earlier than 21 days after the declaration is published.

             (2)  If an application for review of a declaration is made within 21 days after the declaration is published, the declaration does not begin to operate until the Tribunal makes its decision on the review.

             (3)  A declaration continues in operation until its expiry date, unless it is earlier revoked.

             (4)  The expiry or revocation of a declaration does not affect:

                     (a)  the arbitration of an access dispute that was notified before the expiry or revocation; or

                     (b)  the operation or enforcement of any determination made in the arbitration of an access dispute that was notified before the expiry or revocation.

44J  Revocation of declaration

             (1)  The Council may recommend to the designated Minister that a declaration be revoked.

             (2)  The Council cannot recommend revocation of a declaration unless it is satisfied that, at the time of the recommendation, subsection 44H(4) would prevent the designated Minister from declaring the service concerned.

             (3)  On receiving a revocation recommendation, the designated Minister must either revoke the declaration or decide not to revoke the declaration.

             (4)  The designated Minister must publish the decision to revoke or not to revoke.

             (5)  If the designated Minister decides not to revoke, the designated Minister must give reasons for the decision to the provider of the declared service when the designated Minister publishes the decision.

             (6)  The designated Minister cannot revoke a declaration without receiving a revocation recommendation.

44K  Review of declaration

             (1)  If the designated Minister declares a service, the provider may apply in writing to the Tribunal for review of the declaration.

             (2)  If the designated Minister decides not to declare a service, an application in writing for review of the designated Minister’s decision may be made by the person who applied for the declaration recommendation.

             (3)  An application for review must be made within 21 days after publication of the designated Minister’s decision.

             (4)  The review by the Tribunal is a re-consideration of the matter.

             (5)  For the purposes of the review, the Tribunal has the same powers as the designated Minister.

             (6)  The member of the Tribunal presiding at the review may require the Council to give information and other assistance and to make reports, as specified by the member for the purposes of the review.

             (7)  If the designated Minister declared the service, the Tribunal may affirm, vary or set aside the declaration.

             (8)  If the designated Minister decided not to declare the service, the Tribunal may either:

                     (a)  affirm the designated Minister’s decision; or

                     (b)  set aside the designated Minister’s decision and declare the service in question.

             (9)  A declaration, or varied declaration, made by the Tribunal is to be taken to be a declaration by the designated Minister for all purposes of this Part (except this section).

44L  Review of decision not to revoke a declaration

             (1)  If the designated Minister decides not to revoke a declaration, the provider may apply in writing to the Tribunal for review of the decision.

             (2)  An application for review must be made within 21 days after publication of the designated Minister’s decision.

             (3)  The review by the Tribunal is a re-consideration of the matter.

             (4)  For the purposes of the review, the Tribunal has the same powers as the designated Minister.

             (5)  The member of the Tribunal presiding at the review may require the Council to give information and other assistance and to make reports, as specified by the member for the purposes of the review.

             (6)  The Tribunal may either:

                     (a)  affirm the designated Minister’s decision; or

                     (b)  set aside the designated Minister’s decision and revoke the declaration.

Subdivision CMiscellaneous

44M  Recommendation for a Ministerial decision on effectiveness of access regime

             (1)  This section applies if a State or Territory that is a party to the Competition Principles Agreement has established at any time a regime for access to a service or a proposed service.

             (2)  The responsible Minister for the State or Territory may make a written application to the Council asking the Council to recommend that the Commonwealth Minister decide that the regime for access to the service or proposed service is an effective access regime.

             (3)  The Council must recommend to the Commonwealth Minister:

                     (a)  that he or she decide that the access regime is an effective access regime for the service, or proposed service; or

                     (b)  that he or she decide that the access regime is not an effective access regime for the service, or proposed service.

             (4)  In deciding what recommendation it should make, the Council:

                     (a)  must assess whether the access regime is an effective access regime by applying the relevant principles set out in the Competition Principles Agreement; and

                     (b)  must, subject to section 44DA, not consider any other matters.

             (5)  When the Council recommends that the Commonwealth Minister make a particular decision, the Council must also recommend the period for which the decision should be in force.

44N  Ministerial decision on effectiveness of access regime

             (1)  On receiving a recommendation, the Commonwealth Minister must:

                     (a)  decide that the access regime is an effective access regime for the service or proposed service; or

                     (b)  decide that the access regime is not an effective access regime for the service or proposed service.

             (2)  In making a decision, the Commonwealth Minister:

                     (a)  must apply the relevant principles set out in the Competition Principles Agreement; and

                     (b)  must, subject to section 44DA, not consider any other matters.

             (3)  The decision must specify the period for which it is in force.

             (4)  The Commonwealth Minister must publish his or her decision. At the same time, the Commonwealth Minister must give his or her reasons for the decision, and a copy of the Council’s recommendation, to the responsible Minister for the State or Territory who applied for the recommendation.

44O  Review of Ministerial decision on effectiveness of access regime

             (1)  The responsible Minister of the State or Territory who applied for a recommendation that the Commonwealth Minister decide that the access regime is an effective access regime may apply to the Tribunal for review of the Commonwealth Minister’s decision.

             (2)  An application for review must be made within 21 days after publication of the Commonwealth Minister’s decision.

             (3)  The review by the Tribunal is a reconsideration of the matter.

             (4)  For the purposes of the review, the Tribunal has the same powers as the Commonwealth Minister.

             (5)  The member of the Tribunal presiding at the review may require the Council to give information and other assistance, and to make reports, as specified by the member for the purposes of the review.

             (6)  The Tribunal may affirm, vary or reverse the Commonwealth Minister’s decision.

             (7)  A decision made by the Tribunal is to be taken to be a decision of the Commonwealth Minister for all purposes of this Part (except this section).

44P  State or Territory ceasing to be a party to Competition Principles Agreement

                   If a State or Territory that has established a regime for access to a service or proposed service ceases to be a party to the Competition Principles Agreement:

                     (a)  a decision by the Commonwealth Minister that the regime is an effective access regime ceases to be in force; and

                     (b)  the Council, the Commonwealth Minister and the Tribunal need not take any further action relating to an application for a decision by the Commonwealth Minister that the regime is an effective access regime.

44Q  Register of decisions and declarations

                   The Commission must maintain a public register that includes:

                     (a)  each decision of the Commonwealth Minister that a regime established by a State or Territory for access to a service is an effective access regime for the service or proposed service; and

                     (b)  each declaration (including a declaration that is no longer in force).


 

Division 3Access to declared services

Subdivision AScope of Division

44R  Constitutional limits on operation of this Division

                   This Division does not apply in relation to a third party’s access to a service unless:

                     (a)  the provider is a corporation (or a partnership or joint venture consisting wholly of corporations); or

                     (b)  the third party is a corporation; or

                     (c)  the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.

Subdivision BNotification of access disputes

44S  Notification of access disputes

             (1)  If a third party is unable to agree with the provider on one or more aspects of access to a declared service, either the provider or the third party may notify the Commission in writing that an access dispute exists.

Note:          An example of one of the things on which a provider and third party might disagree is whether a previous determination ought to be varied.

             (2)  On receiving the notification, the Commission must give notice in writing of the access dispute to:

                     (a)  the provider, if the third party notified the access dispute;

                     (b)  the third party, if the provider notified the access dispute;

                     (c)  any other person whom the Commission thinks might want to become a party to the arbitration.

44T  Withdrawal of notifications

             (1)  A notification may be withdrawn as follows (and not otherwise):

                     (a)  if the provider notified the dispute:

                              (i)  the provider may withdraw the notification at any time before the Commission makes its determination;

                             (ii)  the third party may withdraw the provider’s notification at any time after the Commission issues a draft determination, but before it makes its determination;

                     (b)  if the third party notified the dispute, the third party may withdraw the notification at any time before the Commission makes its determination.

             (2)  Despite subparagraph (1)(a)(ii), if the provider notified a dispute over variation of a determination, the third party may not withdraw the provider’s notification.

             (3)  If the notification is withdrawn, it is taken for the purposes of this Part never to have been given.

Subdivision CArbitration of access disputes

44U  Parties to the arbitration

                   The parties to the arbitration of an access dispute are:

                     (a)  the provider;

                     (b)  the third party;

                     (c)  any other person who applies in writing to be made a party and is accepted by the Commission as having a sufficient interest.

44V  Determination by Commission

             (1)  Unless it terminates the arbitration under section 44Y, the Commission must make a written determination on access by the third party to the service.

             (2)  The determination may deal with any matter relating to access by the third party to the service, including matters that were not the basis for notification of the dispute. By way of example, the determination may:

                     (a)  require the provider to provide access to the service by the third party;

                     (b)  require the third party to accept, and pay for, access to the service;

                     (c)  specify the terms and conditions of the third party’s access to the service;

                     (d)  require the provider to extend the facility;

                     (e)  specify the extent to which the determination overrides an earlier determination relating to access to the service by the third party.

             (3)  The determination does not have to require the provider to provide access to the service by the third party.

             (4)  Before making a determination, the Commission must give a draft determination to the parties.

             (5)  When the Commission makes a determination, it must give the parties to the arbitration its reasons for making the determination.

44W  Restrictions on access determinations

             (1)  The Commission must not make a determination that would have any of the following effects:

                     (a)  preventing an existing user obtaining a sufficient amount of the service to be able to meet the user’s reasonably anticipated requirements, measured at the time when the dispute was notified;

                     (b)  preventing a person from obtaining, by the exercise of a pre-notification right, a sufficient amount of the service to be able to meet the person’s actual requirements;

                     (c)  depriving any person of a protected contractual right;

                     (d)  resulting in the third party becoming the owner (or one of the owners) of any part of the facility, or of extensions of the facility, without the consent of the provider;

                     (e)  requiring the provider to bear some or all of the costs of extending the facility or maintaining extensions of the facility.

             (2)  Paragraphs (1)(a) and (b) do not apply in relation to the requirements and rights of the third party and the provider when the Commission is making a determination in arbitration of an access dispute relating to an earlier determination of an access dispute between the third party and the provider.

             (3)  A determination is of no effect if it is made in contravention of subsection (1).

             (4)  If the Commission makes a determination that has the effect of depriving a person (the second person) of a pre-notification right to require the provider to supply the service to the second person, the determination must also require the third party:

                     (a)  to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and

                     (b)  to reimburse the provider and the Commonwealth for any compensation that the provider or the Commonwealth agrees, or is required by a court order, to pay to the second party as compensation for the deprivation.

Note:          Without infringing paragraph (1)(b), a determination may deprive a second person of the right to be supplied with an amount of service equal to the difference between the total amount of service the person was entitled to under a pre-notification right and the amount that the person actually needs to meet his or her actual requirements.

             (5)  In this section:

existing user means a person (including the provider) who was using the service at the time when the dispute was notified.

pre-notification right means a right under a contract, or under a determination, that was in force at the time when the dispute was notified.

protected contractual right means a right under a contract that was in force at the beginning of 30 March 1995.

44X  Matters that the Commission must take into account

             (1)  The Commission must take the following matters into account in making a determination:

                     (a)  the legitimate business interests of the provider, and the provider’s investment in the facility;

                     (b)  the public interest, including the public interest in having competition in markets (whether or not in Australia);

                     (c)  the interests of all persons who have rights to use the service;

                     (d)  the direct costs of providing access to the service;

                     (e)  the value to the provider of extensions whose cost is borne by someone else;

                      (f)  the operational and technical requirements necessary for the safe and reliable operation of the facility;

                     (g)  the economically efficient operation of the facility.

             (2)  The Commission may take into account any other matters that it thinks are relevant.

44Y  Commission may terminate arbitration in certain cases

             (1)  The Commission may at any time terminate an arbitration (without making a determination) if it thinks that:

                     (a)  the notification of the dispute was vexatious; or

                     (b)  the subject matter of the dispute is trivial, misconceived or lacking in substance; or

                     (c)  the party who notified the dispute has not engaged in negotiations in good faith; or

                     (d)  access to the service should continue to be governed by an existing contract between the provider and the third party.

             (2)  In addition, if the dispute is about varying an existing determination, the Commission may terminate the arbitration if it thinks there is no sufficient reason why the previous determination should not continue to have effect in its present form.

Subdivision DProcedure in arbitrations

44Z  Constitution of Commission for conduct of arbitration

                   For the purposes of a particular arbitration, the Commission is to be constituted by 2 or more members of the Commission nominated in writing by the Chairperson.

44ZA  Member of the Commission presiding at an arbitration

             (1)  Subject to subsection (2), the Chairperson is to preside at an arbitration.

             (2)  If the Chairperson is not a member of the Commission as constituted under section 44Z in relation to a particular arbitration, the Chairperson must nominate a member of the Commission to preside at the arbitration.

44ZB  Reconstitution of Commission

             (1)  This section applies if a member of the Commission who is one of the members who constitute the Commission for the purposes of a particular arbitration:

                     (a)  stops being a member of the Commission; or

                     (b)  for any reason, is not available for the purpose of the arbitration.

             (2)  The Chairperson must either:

                     (a)  direct that the Commission is to be constituted for the purposes of finishing the arbitration by the remaining member or members; or

                     (b)  direct that the Commission is to be constituted for that purpose by the remaining member or members together with one or more other members of the Commission.

             (3)  If a direction under subsection (2) is given, the Commission as constituted in accordance with the direction must continue and finish the arbitration and may, for that purpose, have regard to any record of the proceedings of the arbitration made by the Commission as previously constituted.

44ZC  Determination of questions

                   If the Commission is constituted for an arbitration by 2 or more members of the Commission, any question before the Commission is to be decided:

                     (a)  unless paragraph (b) applies—according to the opinion of the majority of those members; or

                     (b)  if the members are evenly divided on the question—according to the opinion of the member who is presiding.

44ZD  Hearing to be in private

             (1)  Subject to subsection (2), an arbitration hearing for an access dispute is to be in private.

             (2)  If the parties agree, an arbitration hearing or part of an arbitration hearing may be conducted in public.

             (3)  The member of the Commission who is presiding at an arbitration hearing that is conducted in private may give written directions as to the persons who may be present.

             (4)  In giving directions under subsection (3), the member presiding must have regard to the wishes of the parties and the need for commercial confidentiality.

44ZE  Right to representation

                   In an arbitration hearing before the Commission under this Part, a party may appear in person or be represented by someone else.

44ZF  Procedure of Commission

             (1)  In an arbitration hearing about an access dispute, the Commission:

                     (a)  is not bound by technicalities, legal forms or rules of evidence; and

                     (b)  must act as speedily as a proper consideration of the dispute allows, having regard to the need to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute; and

                     (c)  may inform itself of any matter relevant to the dispute in any way it thinks appropriate.

             (2)  The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an access dispute, and may require that the cases be presented within those periods.

             (3)  The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.

             (4)  The Commission may determine that an arbitration hearing is to be conducted by:

                     (a)  telephone; or

                     (b)  closed circuit television; or

                     (c)  any other means of communication.

44ZG  Particular powers of Commission

             (1)  The Commission may do any of the following things for the purpose of arbitrating an access dispute:

                     (a)  give a direction in the course of, or for the purposes of, an arbitration hearing;

                     (b)  hear and determine the arbitration in the absence of a person who has been summoned or served with a notice to appear;

                     (c)  sit at any place;

                     (d)  adjourn to any time and place;

                     (e)  refer any matter to an expert and accept the expert’s report as evidence;

                      (f)  generally give all such directions, and do all such things, as are necessary or expedient for the speedy hearing and determination of the access dispute.

             (2)  A person must not do any act or thing in relation to the arbitration of an access dispute that would be a contempt of court if the Commission were a court of record.

Penalty:  Imprisonment for 6 months.

             (3)  Subsection (1) has effect subject to any other provision of this Part and subject to the regulations.

             (4)  The Commission may give an oral or written order to a person not to divulge or communicate to anyone else specified information that was given to the person in the course of an arbitration unless the person has the Commission’s permission.

             (5)  A person who contravenes an order under subsection (4) is guilty of an offence, punishable on conviction by imprisonment for a term not exceeding 6 months.

44ZH  Power to take evidence on oath or affirmation

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

             (2)  The member of the Commission who is presiding may summon a person to appear before the Commission to give evidence and to produce such documents (if any) as are referred to in the summons.

             (3)  The powers in this section may be exercised only for the purposes of arbitrating an access dispute.

44ZI  Failing to attend as a witness

                   A person who is served, as prescribed, with a summons to appear as a witness before the Commission must not, without reasonable excuse:

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

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

Penalty:  Imprisonment for 6 months.

44ZJ  Failing to answer questions etc.

             (1)  A person appearing as a witness before the Commission must not, without reasonable excuse:

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

                     (b)  refuse or fail to answer a question that the person is required to answer by the Commission; or

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

Penalty:  Imprisonment for 6 months.

             (2)  It is a reasonable excuse for the purposes of subsection (1) for an individual to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might tend to incriminate the individual or to expose the individual to a penalty. This subsection does not limit what is a reasonable excuse for the purposes of subsection (1).

44ZK  Intimidation etc.

                   A person must not:

                     (a)  threaten, intimidate or coerce another person; or

                     (b)  cause or procure damage, loss or disadvantage to another person;

because that other person:

                     (c)  proposes to produce, or has produced, documents to the Commission; or

                     (d)  proposes to appear or has appeared as a witness before the Commission.

Penalty:  Imprisonment for 12 months.

44ZL  Party may request Commission to treat material as confidential

             (1)  A party to an arbitration hearing may:

                     (a)  inform the Commission that, in the party’s opinion, a specified part of a document contains confidential commercial information; and

                     (b)  request the Commission not to give a copy of that part to another party.

             (2)  On receiving a request, the Commission must:

                     (a)  inform the other party or parties that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and

                     (b)  ask the other party or parties whether there is any objection to the Commission complying with the request.

             (3)  If there is an objection to the Commission complying with a request, the party objecting may inform the Commission of its objection and of the reasons for it.

             (4)  After considering:

                     (a)  a request; and

                     (b)  any objection; and

                     (c)  any further submissions that any party has made in relation to the request;

the Commission may decide not to give to the other party or parties a copy of so much of the document as contains confidential commercial information that the Commission thinks should not be so given.

44ZM  Sections 18 and 19 do not apply to the Commission in an arbitration

                   Sections 18 and 19 do not apply to the Commission, as constituted for an arbitration.

44ZN  Parties to pay costs of an arbitration

                   The regulations may provide for the Commission to:

                     (a)  charge the parties to an arbitration for its costs in conducting the arbitration; and

                     (b)  apportion the charge between the parties.

Subdivision EEffect of determinations

44ZO  Operation of determinations

             (1)  If none of the parties to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s determination, the determination has effect 21 days after the determination is made.

             (2)  If a party to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s determination, the determination is of no effect until the Tribunal makes its determination on the review.

Subdivision FReview of determinations

44ZP  Review by Tribunal

             (1)  A party to a determination may apply in writing to the Tribunal for a review of the determination.

             (2)  The application must be made within 21 days after the Commission made the determination.

             (3)  A review by the Tribunal is a re-arbitration of the access dispute.

             (4)  For the purposes of the review, the Tribunal has the same powers as the Commission.

             (5)  The member of the Tribunal presiding at the review may require the Commission to give information and other assistance and to make reports, as specified by the member for the purposes of the review.

             (6)  The Tribunal may either affirm or vary the Commission’s determination.

             (7)  The determination, as affirmed or varied by the Tribunal, is to be taken to be a determination of the Commission for all purposes of this Part (except this section).

             (8)  The decision of the Tribunal takes effect from when it is made.

44ZQ  Provisions that do not apply in relation to a Tribunal review

                   Sections 37, 39 to 43 (inclusive) and 103 to 110 (inclusive) do not apply in relation to a review by the Tribunal of a determination made by the Commission.

44ZR  Appeals to Federal Court from determinations of the Tribunal

             (1)  A party to an arbitration may appeal to the Federal Court, on a question of law, from the decision of the Tribunal under section 44ZP.

             (2)  An appeal by a person under subsection (1) must be instituted:

                     (a)  not later than the 28th day after the day on which the decision of the Tribunal is made or within such further period as the Federal Court (whether before or after the end of that day) allows; and

                     (b)  in accordance with the Rules of Court made under the Federal Court of Australia Act 1976.

             (3)  The Federal Court must hear and determine the appeal and may make any order that it thinks appropriate.

             (4)  The orders that may be made by the Federal Court on appeal include (but are not limited to):

                     (a)  an order affirming or setting aside the decision of the Tribunal; and

                     (b)  an order remitting the matter to be decided again by the Tribunal in accordance with the directions of the Federal Court.

44ZS  Operation and implementation of a determination that is subject to appeal

             (1)  Subject to this section, the fact that an appeal is instituted in the Federal Court from a decision of the Tribunal does not affect the operation of the decision or prevent action being taken to implement the decision.

             (2)  If an appeal is instituted in the Federal Court from a decision of the Tribunal, the Federal Court or a judge of the Federal Court may make any orders staying or otherwise affecting the operation or implementation of the decision of the Tribunal that the Federal Court or judge thinks appropriate to secure the effectiveness of the hearing and determination of the appeal.

             (3)  If an order is in force under subsection (2) (including an order previously varied under this subsection), the Federal Court or a judge of the Federal Court may make an order varying or revoking the first-mentioned order.

             (4)  An order in force under subsection (2) (including an order previously varied under subsection (3)):

                     (a)  is subject to any conditions that are specified in the order; and

                     (b)  has effect until:

                              (i)  the end of any period for the operation of the order that is specified in the order; or

                             (ii)  the giving of a decision on the appeal;

                            whichever is earlier.

44ZT  Transmission of documents

                   If an appeal is instituted in the Federal Court:

                     (a)  the Tribunal must send to the Federal Court all documents that were before the Tribunal in connection with the matter to which the appeal relates; and

                     (b)  at the conclusion of the proceedings before the Federal Court in relation to the appeal, the Federal Court must return the documents to the Tribunal.

Subdivision GVariation of determinations

44ZU  Variation of determinations

             (1)  The Commission may vary a determination on the application of any party to the determination. However, it cannot vary the determination if any other party objects.

Note:          If the parties cannot agree on a variation, a new access dispute can be notified under section 44S.

             (2)  Sections 44W and 44X apply to a variation under this section as if:

                     (a)  an access dispute arising out of the determination had been notified when the application was made to the Commission for the variation of the determination; and

                     (b)  the variation were the making of a determination in the terms of the varied determination.


 

Division 4Registered contracts for access to declared services

44ZV  Constitutional limits on operation of this Division

                   This Division does not apply to a contract unless:

                     (a)  the contract provides for access to a declared service; and

                     (b)  the contract was made after the service was declared; and

                     (c)  the parties to the contract are the provider of the service and a third party; and

                     (d)  at least one of the following conditions is met:

                              (i)  the provider is a corporation (or a partnership or joint venture consisting wholly of corporations);

                             (ii)  the third party is a corporation;

                            (iii)  the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.

44ZW  Registration of contract

             (1)  On application by all the parties to a contract, the Commission must:

                     (a)  register the contract by entering the following details on a public register:

                              (i)  the names of the parties to the contract;

                             (ii)  the service to which the contract relates;

                            (iii)  the date on which the contract was made; or

                     (b)  decide not to register the contract.

             (2)  In deciding whether to register a contract, the Commission must take into account:

                     (a)  the public interest, including the public interest in having competition in markets (whether or not in Australia); and

                     (b)  the interests of all persons who have rights to use the service to which the contract relates.

             (3)  The Commission must publish a decision not to register a contract.

             (4)  If the Commission publishes a decision not to register a contract, it must give the parties to the contract reasons for the decision when it publishes the decision.

44ZX  Review of decision not to register contract

             (1)  If the Commission decides not to register a contract, a party to the contract may apply in writing to the Tribunal for review of the decision.

             (2)  An application for review must be made within 21 days after publication of the Commission’s decision.

             (3)  The review by the Tribunal is a re-consideration of the matter.

             (4)  For the purposes of the review, the Tribunal has the same powers as the Commission.

             (5)  The member of the Tribunal presiding at the review may require the Commission to give information and other assistance and to make reports, as specified by the member for the purposes of the review.

             (6)  The Tribunal may either:

                     (a)  affirm the Commission’s decision; or

                     (b)  register the contract.

44ZY  Effect of registration of contract

                   The parties to a contract that has been registered:

                     (a)  may enforce the contract under Division 7 as if the contract were a determination of the Commission under section 44V and they were parties to the determination; and

                     (b)  cannot enforce the contract by any other means.


 

Division 5Hindering access to declared services

44ZZ  Prohibition on hindering access to declared services

             (1)  The provider or a user of a service to which a third party has access under a determination, or a body corporate related to the provider or a user of the service, must not engage in conduct for the purpose of preventing or hindering the third party’s access to the service under the determination.

             (2)  A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or from other relevant circumstances. This subsection does not limit the manner in which the purpose of a person may be established for the purposes of subsection (1).

             (3)  In this section, a user of a service includes a person who has a right to use the service.


 

Division 6Access undertakings for non-declared services

44ZZA  Access undertakings by providers

             (1)  A person who is, or expects to be, the provider of a service may give a written undertaking to the Commission in connection with the provision of access to the service.

Note:          The following are examples of the kinds of things that might be dealt with in the undertaking:

(a)           terms and conditions of access to the service;

(b)           procedures for determining terms and conditions of access to the service;

(c)           an obligation on the provider not to hinder access to the service;

(d)           an obligation on the provider to implement a particular business structure;

(e)           an obligation on the provider to provide information to the Commission or to another person;

(f)            an obligation on the provider to comply with decisions of the Commission or another person in relation to matters specified in the undertaking;

(g)           an obligation on the provider to seek a variation of the undertaking in specified circumstances.

             (2)  The undertaking must specify the expiry date of the undertaking.

             (3)  The Commission may accept the undertaking, if it thinks it appropriate to do so having regard to the following matters:

                     (a)  the legitimate business interests of the provider;

                     (b)  the public interest, including the public interest in having competition in markets (whether or not in Australia);

                     (c)  the interests of persons who might want access to the service;

                     (d)  whether access to the service is already the subject of an access regime;

                    (da)  whether the undertaking is in accordance with an access code that applies to the service;

                     (e)  any other matters that the Commission thinks are relevant.

          (3A)  The Commission must not accept the undertaking unless:

                     (a)  the provider, or proposed provider, is a corporation (or a partnership or joint venture consisting wholly of corporations); or

                     (b)  the undertaking provides for access only to third parties that are corporations; or

                     (c)  the undertaking provides for access that is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.

             (4)  The Commission must not accept the undertaking unless the Commission has first:

                     (a)  published the undertaking and invited people to make submissions to the Commission on the undertaking; and

                     (b)  considered any submissions that were received within the time limit specified by the Commission when it published the undertaking.

          (4A)  The Commission may accept the undertaking without complying with subsection (4) if the Commission is satisfied that the undertaking is in accordance with an access code that is in operation at the time of acceptance.

             (5)  If the Commission accepts the undertaking:

                     (a)  the undertaking comes into operation at the time of acceptance; and

                     (b)  the undertaking continues in operation until its expiry date, unless it is earlier withdrawn.

             (6)  If the undertaking provides for disputes about the undertaking to be resolved by the Commission, then the Commission may resolve the disputes in accordance with the undertaking.

          (6A)  If the undertaking provides for the Commission to perform functions or exercise powers in relation to the undertaking, the Commission may perform those functions and exercise those powers. If the Commission decides to do so, it must do so in accordance with the undertaking.

             (7)  The provider may withdraw or vary the undertaking at any time, but only with the consent of the Commission.

44ZZAA  Access codes prepared by industry bodies

             (1)  An industry body may give a written code to the Commission setting out rules for access to a service.

             (2)  The code must specify the expiry date of the code.

             (3)  The Commission may accept the code, if it thinks it appropriate to do so having regard to the following matters:

                     (a)  the legitimate business interests of providers who might give undertakings in accordance with the code;

                     (b)  the public interest, including the public interest in having competition in markets (whether or not in Australia);

                     (c)  the interests of persons who might want access to the service covered by the code;

                     (d)  whether access to the service is already the subject of an access regime;

                     (e)  any matters specified in regulations made for the purposes of this subsection;

                      (f)  any other matters that the Commission thinks are relevant.

             (4)  The Commission must not accept the code unless the Commission has first:

                     (a)  published the code and invited people to make submissions to the Commission on the code; and

                     (b)  considered any submissions that were received within the time limit specified by the Commission when it published the code.

Note:          Alternatively, the Commission may rely on industry body consultations: see section 44ZZAB.

             (5)  If the Commission accepts the code:

                     (a)  the code comes into operation at the time of acceptance; and

                     (b)  the code continues in operation until its expiry date, unless it is earlier withdrawn.

             (6)  The industry body may withdraw or vary the code at any time, but only with the consent of the Commission.

Note:          The Commission may rely on industry body consultations before giving its consent: see section 44ZZAB.

             (7)  If the industry body that gave the code to the Commission has ceased to exist, a withdrawal or variation under subsection (6) may be made by a body or association prescribed by the regulations as a replacement for the original industry body.

             (8)  In this section:

code means a set of rules (which may be in general terms or detailed terms).

industry body means a body or association (including a body or association established by a law of a State or Territory) prescribed by the regulations for the purposes of this section.

44ZZAB  Commission may rely on industry body consultations

             (1)  Despite subsection 44ZZAA(4), the Commission may accept a code if the industry body has done the following before giving the code to the Commission under subsection 44ZZAA(1):

                     (a)  published the code or a draft of the code and invited people to make submissions to the industry body on the code or draft;

                     (b)  specified the effect of this subsection and subsection (2) when it published the code or draft;

                     (c)  considered any submissions that were received within the time limit specified by the industry body when it published the code or draft.

             (2)  In deciding whether to accept the code, the Commission may consider any submission referred to in paragraph (1)(c).

             (3)  Before consenting to a variation or withdrawal of a code under subsection 44ZZAA(6), the Commission may rely on:

                     (a)  publication of the variation or notice of the withdrawal by the industry body, including specification of the effect of this subsection and subsection (4); and

                     (b)  consideration by the industry body of any submissions that were received within the time limit specified by the industry body when it published the variation or notice.

             (4)  In deciding whether to consent to the variation or withdrawal, the Commission may consider any submission referred to in paragraph (3)(b).

             (5)  In this section:

code has the same meaning as it has in section 44ZZAA.

industry body has the same meaning as it has in section 44ZZAA.

44ZZB  Undertakings cannot be accepted in certain cases

                   The Commission cannot accept an undertaking given under section 44ZZA if the service concerned is a declared service.

44ZZC  Register of access undertakings and access codes

             (1)  The Commission must maintain a public register that includes all access undertakings and access codes that have been accepted by the Commission, including those that are no longer in operation.

             (2)  The register must include all variations of access undertakings and access codes.


 

Division 7Enforcement and remedies

44ZZD  Enforcement of determinations

             (1)  If the Federal Court is satisfied, on the application of a party to a determination, that another party to the determination has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of the determination, the Court may make all or any of the following orders:

                     (a)  an order granting an injunction on such terms as the Court thinks appropriate:

                              (i)  restraining the other party from engaging in the conduct; or

                             (ii)  if the conduct involves refusing or failing to do something—requiring the other party to do that thing;

                     (b)  an order directing the other party to compensate the applicant for loss or damage suffered as a result of the contravention;

                     (c)  any other order that the Court thinks appropriate.

             (2)  If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.

             (3)  A reference in this section to a person involved in the contravention is a reference to a person who has:

                     (a)  aided, abetted, counselled or procured the contravention; or

                     (b)  induced the contravention, whether through threats or promises or otherwise; or

                     (c)  been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or

                     (d)  conspired with others to effect the contravention.

44ZZE  Enforcement of prohibition on hindering access

             (1)  If the Federal Court is satisfied, on the application of any person, that another person (the obstructor) has engaged, is engaging, or is proposing to engage in conduct constituting a contravention of section 44ZZ, the Court may make all or any of the following orders:

                     (a)  an order granting an injunction on such terms as the Court thinks appropriate:

                              (i)  restraining the obstructor from engaging in the conduct; or

                             (ii)  if the conduct involves refusing or failing to do something—requiring the obstructor to do that thing;

                     (b)  an order directing the obstructor to compensate a person who has suffered loss or damage as a result of the contravention;

                     (c)  any other order that the Court thinks appropriate.

             (2)  If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.

             (3)  The grounds on which the Court may decide not to make an order under this section include the ground that Divisions 2 and 3 provide a more appropriate way of dealing with the issue of the applicant’s access to the service concerned.

             (4)  A reference in this section to a person involved in the contravention is a reference to a person who has:

                     (a)  aided, abetted, counselled or procured the contravention; or

                     (b)  induced the contravention, whether through threats or promises or otherwise; or

                     (c)  been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or

                     (d)  conspired with others to effect the contravention.

44ZZF  Consent injunctions

                   On an application for an injunction under section 44ZZD or 44ZZE, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.

44ZZG  Interim injunctions

             (1)  The Federal Court may grant an interim injunction pending determination of an application under section 44ZZD or 44ZZE.

             (2)  If the Commission makes an application under section 44ZZE to the Federal Court for an injunction, the Court must not require the Commission or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.

44ZZH  Factors relevant to granting a restraining injunction

                   The power of the Federal Court to grant an injunction under section 44ZZD or 44ZZE restraining a person from engaging in conduct may be exercised whether or not:

                     (a)  it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  the person has previously engaged in conduct of that kind; or

                     (c)  there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

44ZZI  Factors relevant to granting a mandatory injunction

                   The power of the Federal Court to grant an injunction under section 44ZZD or 44ZZE requiring a person to do a thing may be exercised whether or not:

                     (a)  it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or

                     (b)  the person has previously refused or failed to do that thing; or

                     (c)  there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that thing.

44ZZJ  Enforcement of access undertakings

             (1)  If the Commission thinks that the provider of an access undertaking in operation under section 44ZZA has breached any of its terms, the Commission may apply to the Federal Court for an order under subsection (2).

             (2)  If the Federal Court is satisfied that the provider has breached a term of the undertaking, the Court may make all or any of the following orders:

                     (a)  an order directing the provider to comply with that term of the undertaking;

                     (b)  an order directing the provider to compensate any other person who has suffered loss or damage as a result of the breach;

                     (c)  any other order that the Court thinks appropriate.

44ZZK  Discharge or variation of injunction or other order

                   The Federal Court may discharge or vary an injunction or order granted under this Division.


 

Division 8Miscellaneous

44ZZL  Register of determinations

                   The Commission must maintain a public register that specifies the following information for each determination:

                     (a)  the names of the parties to the determination;

                     (b)  the service to which the determination relates;

                     (c)  the date on which the determination was made.

44ZZM  Commonwealth consent to conferral of functions etc. on the Commission or Tribunal by State or Territory laws

             (1)  A State or Territory access regime law may confer functions or powers, or impose duties, on the Commission or Tribunal.

Note:          Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal.

             (2)  Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a law of a State or Territory to the extent to which:

                     (a)  the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal; or

                     (b)  the authorisation would otherwise exceed the legislative power of the Commonwealth.

             (3)  The Commission or Tribunal cannot perform a duty or function, or exercise a power, under a State or Territory access regime law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

44ZZMA  How duty is imposed

Application

             (1)  This section applies if a State or Territory access regime law purports to impose a duty on the Commission or Tribunal.

Note:          Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal.

State or Territory legislative power sufficient to support duty

             (2)  The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:

                     (a)  imposing the duty is within the legislative powers of the State or Territory concerned; and

                     (b)  imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal.

Note:          If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 44ZZM to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

             (3)  If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

             (4)  If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.

             (5)  The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:

                     (a)  is within the legislative powers of the Commonwealth; and

                     (b)  is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal.

             (6)  Subsections (1) to (5) do not limit section 44ZZM.

44ZZMB  When a law of a State or Territory imposes a duty

                   For the purposes of sections 44ZZM and 44ZZMA, a State or Territory access regime law imposes a duty on the Commission or Tribunal if:

                     (a)  the law confers a function or power on the Commission or Tribunal; and

                     (b)  the circumstances in which the function or power is conferred give rise to an obligation on the Commission or Tribunal to perform the function or to exercise the power.

44ZZN  Compensation for acquisition of property

             (1)  If:

                     (a)  a determination would result in an acquisition of property; and

                     (b)  the determination would not be valid, apart from this section, because a particular person has not been sufficiently compensated;

the Commonwealth must pay that person:

                     (c)  a reasonable amount of compensation agreed on between the person and the Commonwealth; or

                     (d)  failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.

             (2)  In assessing compensation payable in a proceeding begun under this section, the following must be taken into account if they arise out of the same event or transaction:

                     (a)  any damages or compensation recovered, or other remedy, in a proceeding begun otherwise than under this section;

                     (b)  compensation awarded under a determination.

             (3)  In this section, acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

44ZZNA  Operation of Parts IV and VII not affected by this Part

                   This Part does not affect the operation of Parts IV and VII.

44ZZO  Conduct by directors, servants or agents

             (1)  If, in a proceeding under this Part in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate in relation to particular conduct, it is sufficient to show:

                     (a)  that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and

                     (b)  that the director, servant or agent had the state of mind.

             (2)  Any conduct engaged in on behalf of a body corporate:

                     (a)  by a director, servant or agent of the body corporate within the scope of the person’s actual or apparent authority; or

                     (b)  by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;

is taken for the purposes of this Part to have been engaged in also by the body corporate, unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

             (3)  If, in a proceeding under this Part in respect of conduct engaged in by an individual, it is necessary to establish the state of mind of the individual, it is sufficient to show:

                     (a)  that the conduct was engaged in by a servant or agent of the individual within the scope of his or her actual or apparent authority; and

                     (b)  that the servant or agent had the relevant state of mind.

             (4)  Conduct engaged in on behalf of an individual:

                     (a)  by a servant or agent of the individual within the scope of the actual or apparent authority of the servant or agent; or

                     (b)  by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the individual, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent;

is taken, for the purposes of this Part, to have been engaged in also by that individual, unless that individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

             (5)  If:

                     (a)  an individual is convicted of an offence; and

                     (b)  the individu