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Trade Practices Act 1974

  • - C2010C00331
  • In force - Superseded Version
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Act No. 51 of 1974 as amended, taking into account amendments up to Act No. 44 of 2010
An Act relating to certain Trade Practices
Administered by: Broadband, Communications and the Digital Economy; Infrastructure and Transport; Innovation, Industry, Science and Research; Treasury
Registered 30 Apr 2010
Start Date 15 Apr 2010
End Date 30 Jun 2010
Table of contents.
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Collapse Volume 1Volume 1
Collapse Part I—PreliminaryPart 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
2BA Application of Part IV to local government bodies
2C Activities that are not business
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, VC etc.
6 Extended application of Parts IV, IVA, IVB, V, VA and VC
6AA Application of the Criminal Code
Expand Part II—The Australian Competition and Consumer CommissionPart II—The Australian Competition and Consumer Commission
Expand Part IIA—The National Competition CouncilPart IIA—The National Competition Council
Expand Part III—The Australian Competition TribunalPart III—The Australian Competition Tribunal
Expand Part IIIAA—The Australian Energy Regulator (AER)Part IIIAA—The Australian Energy Regulator (AER)
Expand Part IIIA—Access to servicesPart IIIA—Access to services
Expand Part IV—Restrictive trade practicesPart IV—Restrictive trade practices
Expand Part IVA—Unconscionable conductPart IVA—Unconscionable conduct
Expand Part IVB—Industry codesPart IVB—Industry codes
Expand Part V—Consumer protectionPart V—Consumer protection
Expand Part VA—Liability of manufacturers and importers for defective goodsPart VA—Liability of manufacturers and importers for defective goods
Expand Part VC—OffencesPart VC—Offences
Expand Part VI—Enforcement and remediesPart VI—Enforcement and remedies
Expand Part VIA—Proportionate liability for misleading and deceptive conductPart VIA—Proportionate liability for misleading and deceptive conduct
Expand Part VIB—Claims for damages or compensation for death or personal injuryPart VIB—Claims for damages or compensation for death or personal injury
Expand Part VIC—Infringement noticesPart VIC—Infringement notices
Expand Part VID—Substantiation noticesPart VID—Substantiation notices
Expand Part VII—Authorisations, notifications and clearances in respect of restrictive trade practicesPart VII—Authorisations, notifications and clearances in respect of restrictive trade practices
Expand Part VIIA—Prices surveillancePart VIIA—Prices surveillance
Expand Part VIII—Resale price maintenancePart VIII—Resale price maintenance
Expand Part IX—Review by Tribunal of Determinations of CommissionPart IX—Review by Tribunal of Determinations of Commission
Expand Volume 2Volume 2
Volume 3

Trade Practices Act 1974

Act No. 51 of 1974 as amended

This compilation was prepared on 19 April 2010
taking into account amendments up to Act No. 44 of 2010

Volume 1 includes:       Table of Contents
                                    Sections 1 – 119

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 – 178
                                    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

2BA...... Application of Part IV to local government bodies............................ 2

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

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

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

4A......... Subsidiary, holding and related bodies corporate............................. 14

4B......... Consumers........................................................................................ 16

4C......... Acquisition, supply and re‑supply.................................................. 19

4D......... Exclusionary provisions................................................................... 19

4E.......... Market.............................................................................................. 20

4F.......... References to purpose or reason...................................................... 21

4G......... Lessening of competition to include preventing or hindering competition              21

4H......... Application of Act in relation to leases and licences of land and buildings             21

4J.......... Joint ventures................................................................................... 22

4K......... Loss or damage to include injury...................................................... 22

4KA...... Personal injury.................................................................................. 23

4L.......... Severability....................................................................................... 23

4M........ Saving of law relating to restraint of trade and breaches of confidence 23

4N......... Extended application of Part IIIA.................................................... 23

5............ Extended application of Parts IV, IVA, V, VC etc........................... 24

6............ Extended application of Parts IV, IVA, IVB, V, VA and VC........... 25

6AA...... Application of the Criminal Code.................................................... 31

Part II—The Australian Competition and Consumer Commission           32

6A......... Establishment of Commission.......................................................... 32

7............ Constitution of Commission............................................................ 32

8............ Terms and conditions of appointment............................................. 33

8A......... Associate members........................................................................... 33

8AB...... State/Territory AER members taken to be associate members........ 34

9............ Remuneration.................................................................................... 34

10.......... Deputy Chairpersons....................................................................... 35

11.......... Acting Chairperson........................................................................... 35

12.......... Leave of absence............................................................................... 36

13.......... Termination of appointment of members of the Commission......... 36

14.......... Termination of appointment of associate members of the Commission 37

15.......... Resignation....................................................................................... 37

16.......... Arrangement of business.................................................................. 37

17.......... Disclosure of interests by members................................................ 38

18.......... Meetings of Commission.................................................................. 38

19.......... Chairperson may direct Commission to sit in Divisions.................. 40

25.......... Delegation by Commission............................................................... 40

26.......... Delegation by Commission in relation to unconscionable conduct and consumer protection 41

27.......... Staff of Commission......................................................................... 41

27A....... Consultants....................................................................................... 42

28.......... Functions of Commission in relation to dissemination of information, law reform and research            42

29.......... Commission to comply with directions of Minister and requirements of the Parliament       43

Part IIA—The National Competition Council                                                       45

29A....... Establishment of Council.................................................................. 45

29B....... Functions and powers of Council..................................................... 45

29BA.... Commonwealth consent to conferral of functions etc. on Council... 46

29BB..... How duty is imposed....................................................................... 46

29BC..... When a State/Territory energy law imposes a duty......................... 47

29C....... Membership of Council.................................................................... 47

29D....... Terms and conditions of office......................................................... 48

29E........ Acting Council President.................................................................. 48

29F........ Remuneration of Councillors............................................................ 48

29G....... Leave of absence............................................................................... 49

29H....... Termination of appointment of Councillors..................................... 49

29I......... Resignation of Councillors................................................................ 49

29J........ Arrangement of Council business..................................................... 49

29K....... Disclosure of interests by Councillors............................................. 50

29L........ Council meetings............................................................................... 51

29M...... Staff to help Council......................................................................... 51

29N....... Consultants....................................................................................... 51

29O....... Annual report................................................................................... 52

Part III—The Australian Competition Tribunal                                                  53

29P........ Definition.......................................................................................... 53

30.......... Constitution of Tribunal................................................................... 53

31.......... Qualifications of members of Tribunal............................................. 53

31A....... Appointment of Judge as presidential member of Tribunal not to affect tenure etc.              54

32.......... Terms and conditions of appointment............................................. 54

33.......... Remuneration and allowances of members of Tribunal.................... 54

34.......... Acting appointments........................................................................ 54

35.......... Suspension and removal of members of Tribunal............................. 55

36.......... Resignation....................................................................................... 56

37.......... Constitution of Tribunal for particular matters................................ 56

38.......... Validity of determinations................................................................ 57

39.......... President may give directions........................................................... 57

40.......... Disclosure of interests by members of Tribunal.............................. 57

41.......... Presidential member to preside......................................................... 58

42.......... Decision of questions....................................................................... 58

43.......... Member of Tribunal ceasing to be available..................................... 58

43A....... Counsel assisting Tribunal................................................................ 59

43B....... Consultants....................................................................................... 59

44.......... Staff of Tribunal............................................................................... 59

44A....... Acting appointments........................................................................ 60

Part IIIAA—The Australian Energy Regulator (AER)                                   61

Division 1—Preliminary                                                                                            61

44AB.... Definitions........................................................................................ 61

44AC.... This Part binds the Crown............................................................... 61

44AD.... Extra‑territorial operation................................................................. 61

Division 2—Establishment of the AER                                                             63

44AE..... Establishment of the AER................................................................ 63

44AF..... AER to hold money and property on behalf of the Commonwealth 63

44AG.... Constitution of the AER.................................................................. 63

Division 3—Functions and powers of the AER                                            64

44AH.... Commonwealth functions................................................................. 64

44AI...... Commonwealth consent to conferral of functions etc. on AER....... 64

44AJ..... How duty is imposed....................................................................... 64

44AK.... When a State/Territory energy law imposes a duty......................... 65

44AL..... Powers of the AER........................................................................... 66

Division 4—Administrative provisions relating to the AER                 67

Subdivision A—Appointment etc. of members                                                     67

44AM... Appointment of Commonwealth AER member............................... 67

44AN.... Membership of AER and Commission............................................ 67

44AO.... Acting appointment of Commonwealth AER member.................... 68

44AP..... Appointment of State/Territory AER members.............................. 68

44AQ.... Acting appointment of State/Territory AER member...................... 69

44AR.... AER Chair........................................................................................ 69

44AS..... Acting AER Chair............................................................................. 70

44AT.... Remuneration of AER members....................................................... 70

44AU.... Additional remuneration of AER Chair............................................ 71

44AV.... Leave of absence............................................................................... 71

44AW... Other terms and conditions.............................................................. 71

44AX.... Outside employment........................................................................ 71

44AY.... Disclosure of interests...................................................................... 72

44AZ.... Resignation....................................................................................... 72

44AAB. Termination of appointment............................................................ 72

Subdivision B—Staff etc. to assist the AER                                                         73

44AAC. Staff etc. to assist the AER.............................................................. 73

Subdivision C—Meetings of the AER etc.                                                             73

44AAD. Meetings........................................................................................... 73

44AAE.. Resolutions without meetings.......................................................... 74

44AAEAArbitration........................................................................................ 74

Subdivision D—Miscellaneous                                                                               75

44AAF.. Confidentiality.................................................................................. 75

44AAG. Federal Court may make certain orders............................................ 76

44AAGAFederal Court may order disconnection if an event specified
in the National Electricity Rules occurs........................................... 77

44AAH. Delegation by the AER..................................................................... 78

44AAI... Fees................................................................................................... 79

44AAJ.. Annual report................................................................................... 79

44AAK. Regulations may deal with transitional matters................................ 79

Part IIIA—Access to services                                                                                       81

Division 1—Preliminary                                                                                            81

44AA.... Objects of Part.................................................................................. 81

44B....... Definitions........................................................................................ 81

44C....... How this Part applies to partnerships and joint ventures............... 84

44D....... Meaning of designated Minister....................................................... 85

44DA.... The principles in the Competition Principles Agreement have status as guidelines               86

44E........ This Part binds the Crown............................................................... 86

Division 2—Declared services                                                                              87

Subdivision A—Recommendation by the Council                                               87

44F........ Person may request recommendation............................................... 87

44G....... Limits on the Council recommending declaration of a service.......... 88

44GA.... Target time limits on Council recommendation................................ 89

44GB.... Council may invite public submissions on the application.............. 90

44GC.... Council must publish its recommendation....................................... 91

Subdivision B—Declaration by the designated Minister                                   92

44H....... Designated Minister may declare a service....................................... 92

44HA.... Designated Minister must publish his or her decision..................... 94

44I......... Duration and effect of declaration.................................................... 95

44J........ Revocation of declaration................................................................. 95

44JA..... Target time limits on designated Minister’s revocation decision..... 96

44K....... Review of declaration....................................................................... 97

44L........ Review of decision not to revoke a declaration................................ 98

Division 2A—Effective access regimes                                                            99

Subdivision A—Recommendation by Council                                                      99

44M...... Recommendation for a Ministerial decision on effectiveness of access regime       99

Subdivision B—Decision by Commonwealth Minister                                     100

44N....... Ministerial decision on effectiveness of access regime................... 100

Subdivision C—Extensions of Commonwealth Minister’s decision              100

44NA.... Recommendation by Council.......................................................... 100

44NB.... Decision by the Commonwealth Minister..................................... 101

Subdivision D—Procedural provisions                                                               102

44NC.... Target time limits—Council........................................................... 102

44ND.... Target time limits—Commonwealth Minister............................... 103

44NE..... Council may invite public submissions.......................................... 104

44NF..... Publication—Council...................................................................... 105

44NG.... Publication—Commonwealth Minister.......................................... 106

Subdivision E—Review of decisions                                                                     106

44O....... Review of Ministerial decision on effectiveness of access regime.. 106

Subdivision F—State or Territory ceasing to be a party to Competition Principles Agreement     107

44P........ State or Territory ceasing to be a party to Competition Principles Agreement      107

Division 2B—Competitive tender processes for government owned facilities                108

44PA..... Approval of competitive tender process........................................ 108

44PB..... Report on conduct of tender process............................................. 109

44PC..... Revocation of approval decision.................................................... 109

44PD..... Target time limits for Commission decisions................................. 111

44PE..... Commission may invite public submissions.................................. 112

44PF..... Commission must publish its decisions......................................... 113

44PG..... Review of Commission’s initial decision........................................ 114

44PH..... Review of decision to revoke an approval...................................... 115

Division 2C—Register of decisions and declarations                             116

44Q....... Register of decisions and declarations............................................ 116

Division 3—Access to declared services                                                      117

Subdivision A—Scope of Division                                                                        117

44R....... Constitutional limits on operation of this Division........................ 117

Subdivision B—Notification of access disputes                                                 117

44S........ Notification of access disputes....................................................... 117

44T....... Withdrawal of notifications............................................................ 117

Subdivision C—Arbitration of access disputes                                                 118

44U....... Parties to the arbitration................................................................. 118

44V....... Determination by Commission....................................................... 118

44W...... Restrictions on access determinations............................................ 119

44X....... Matters that the Commission must take into account................... 121

44XA.... Target time limits for Commission’s final determination............... 121

44Y....... Commission may terminate arbitration in certain cases................. 122

Subdivision D—Procedure in arbitrations                                                         123

44Z....... Constitution of Commission for conduct of arbitration................. 123

44ZA.... Member of the Commission presiding at an arbitration................. 123

44ZB..... Reconstitution of Commission....................................................... 123

44ZC..... Determination of questions............................................................ 124

44ZD.... Hearing to be in private.................................................................. 124

44ZE..... Right to representation................................................................... 124

44ZF..... Procedure of Commission............................................................... 124

44ZG.... Particular powers of Commission.................................................. 125

44ZH.... Power to take evidence on oath or affirmation............................... 126

44ZI...... Failing to attend as a witness.......................................................... 126

44ZJ...... Failing to answer questions etc....................................................... 126

44ZK.... Intimidation etc............................................................................... 127

44ZL..... Party may request Commission to treat material as confidential... 127

44ZM... Sections 18 and 19 do not apply to the Commission in an arbitration 128

44ZN.... Parties to pay costs of an arbitration............................................. 128

44ZNA. Joint arbitration hearings................................................................ 128

Subdivision DA—Arbitration reports                                                                 130

44ZNB.. Arbitration reports......................................................................... 130

Subdivision E—Effect of determinations                                                             132

44ZO.... Operation of final determinations................................................... 132

44ZOA. Effect and duration of interim determinations................................ 133

Subdivision F—Review of final determinations                                                 134

44ZP..... Review by Tribunal........................................................................ 134

44ZQ.... Provisions that do not apply in relation to a Tribunal review....... 134

44ZR..... Appeals to Federal Court from determinations of the Tribunal..... 135

44ZS..... Operation and implementation of a determination that is subject to appeal           135

44ZT..... Transmission of documents............................................................ 136

Subdivision G—Variation and revocation of determinations                          136

44ZU.... Variation of final determinations.................................................... 136

44ZUA. Variation and revocation of interim determinations........................ 137

Division 4—Registered contracts for access to declared services 138

44ZV..... Constitutional limits on operation of this Division........................ 138

44ZW.... Registration of contract.................................................................. 138

44ZX.... Review of decision not to register contract.................................... 139

44ZY..... Effect of registration of contract..................................................... 139

Division 5—Hindering access to declared services                                140

44ZZ..... Prohibition on hindering access to declared services...................... 140

Division 6—Access undertakings and access codes for services    141

Subdivision A—Giving of access undertakings and access codes                 141

44ZZA.. Access undertakings by providers.................................................. 141

44ZZAAAccess codes prepared by industry bodies.................................... 142

44ZZAB....................... Commission may rely on industry body consultations  144

Subdivision B—Effect of access undertakings and access codes                   145

44ZZBA........ When access undertakings and access codes come into operation  145

Subdivision C—Extensions of access undertakings and access codes         146

44ZZBB............................. Extensions of access undertakings and access codes  146

Subdivision D—Procedural provisions                                                               147

44ZZBC........................................ Target time limits for Commission decisions  147

44ZZBD........................................ Commission may invite public submissions  148

44ZZBE Commission must publish its decisions......................................... 149

Subdivision E—Review of decisions                                                                     150

44ZZBF Review of decisions........................................................................ 150

Subdivision F—Register of access undertakings and access codes              151

44ZZC.. Register of access undertakings and access codes........................... 151

Division 6A—Pricing principles for access disputes and access undertakings or codes             152

44ZZCA Pricing principles for access disputes and access undertakings or codes 152

Division 6B—Overlap among determinations, registered contracts and access undertakings               153

44ZZCB................................. Deferring access disputes or access undertakings  153

44ZZCC................... Overlap between determinations and access undertakings  154

44ZZCD............ Overlap between registered contracts and access undertakings  155

Division 7—Enforcement and remedies                                                         156

44ZZD.. Enforcement of determinations....................................................... 156

44ZZE.. Enforcement of prohibition on hindering access............................. 156

44ZZF.. Consent injunctions........................................................................ 157

44ZZG.. Interim injunctions.......................................................................... 158

44ZZH.. Factors relevant to granting a restraining injunction....................... 158

44ZZI... Factors relevant to granting a mandatory injunction...................... 158

44ZZJ... Enforcement of access undertakings............................................... 158

44ZZK.. Discharge or variation of injunction or other order......................... 159

Division 8—Miscellaneous                                                                                    160

44ZZL.. Register of determinations.............................................................. 160

44ZZM. Commonwealth consent to conferral of functions etc. on the Commission or Tribunal by State or Territory laws........................................................................................................ 160

44ZZMAHow duty is imposed.................................................................... 160

44ZZMBWhen a law of a State or Territory imposes a duty...................... 161

44ZZN.. Compensation for acquisition of property..................................... 162

44ZZNAOperation of Parts IV and VII not affected by this Part................ 162

44ZZO.. Conduct by directors, servants or agents....................................... 162

44ZZOATarget time limits for Tribunal decisions....................................... 164

44ZZP.. Regulations about review by the Tribunal...................................... 165

44ZZQ.. Regulations about fees for inspection etc. of registers................... 165

44ZZR.. Procedure of the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law............................................................ 165

Part IV—Restrictive trade practices                                                                       167

Division 1—Cartel conduct                                                                                   167

Subdivision A—Introduction                                                                                 167

44ZZRA.................................................................................. Simplified outline  167

44ZZRB............................................................................................ Definitions  167

44ZZRC.................................................................... Extended meaning of party  169

44ZZRD.................................................................................. Cartel provisions  169

44ZZRE Meaning of expressions in other provisions of this Act................ 174

Subdivision B—Offences etc.                                                                                174

44ZZRF Making a contract etc. containing a cartel provision...................... 174

44ZZRG........................................................ Giving effect to a cartel provision  175

44ZZRH.................................................................................. Determining guilt  176

44ZZRI. Court may make related civil orders............................................... 176

Subdivision C—Civil penalty provisions                                                             177

44ZZRJ Making a contract etc. containing a cartel provision...................... 177

44ZZRK........................................................ Giving effect to a cartel provision  177

Subdivision D—Exceptions                                                                                    177

44ZZRL Conduct notified............................................................................. 177

44ZZRMCartel provision subject to grant of authorisation......................... 178

44ZZRN Contracts, arrangements or understandings between related bodies corporate        178

44ZZRO................................................................ Joint ventures—prosecution  179

44ZZRP Joint ventures—civil penalty proceedings..................................... 182

44ZZRQ.......................................................... Covenants affecting competition  184

44ZZRR...................................................................... Resale price maintenance  184

44ZZRS Exclusive dealing............................................................................. 184

44ZZRT......................................................... Dual listed company arrangement  185

44ZZRU............................................................. Acquisition of shares or assets  186

44ZZRV Collective acquisition of goods or services by the parties to a contract, arrangement or understanding 186

Division 2—Other provisions                                                                              188

45.......... Contracts, arrangements or understandings that restrict dealings or affect competition         188

45B....... Covenants affecting competition.................................................... 191

45C....... Covenants in relation to prices....................................................... 194

45D....... Secondary boycotts for the purpose of causing substantial loss or damage            196

45DA.... Secondary boycotts for the purpose of causing substantial lessening of competition            197

45DB.... Boycotts affecting trade or commerce............................................ 198

45DC.... Involvement and liability of employee organisations..................... 198

45DD.... Situations in which boycotts permitted......................................... 200

45E........ Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services........................................................................................................ 203

45EA..... Provisions contravening section 45E not to be given effect........... 207

45EB..... Sections 45D to 45EA do not affect operation of other provisions of Part            207

46.......... Misuse of market power................................................................ 207

46A....... Misuse of market power—corporation with substantial degree of power in trans‑Tasman market       211

46B....... No immunity from jurisdiction in relation to certain New Zealand laws                213

47.......... Exclusive dealing............................................................................. 214

48.......... Resale price maintenance................................................................ 220

49.......... Dual listed company arrangements that affect competition........... 220

50.......... Prohibition of acquisitions that would result in a substantial lessening of competition          221

50A....... Acquisitions that occur outside Australia...................................... 223

51.......... Exceptions...................................................................................... 226

51AAA. Concurrent operation of State and Territory laws......................... 230

Part IVA—Unconscionable conduct                                                                         231

51AAB. Part does not apply to financial services........................................ 231

51AA.... Unconscionable conduct within the meaning of the unwritten law of the States and Territories            231

51AB.... Unconscionable conduct................................................................. 231

51AC.... Unconscionable conduct in business transactions.......................... 232

51ACAAConcurrent operation of State and Territory laws......................... 236

Part IVB—Industry codes                                                                                              237

51ACA. Definitions...................................................................................... 237

51AD.... Contravention of industry codes.................................................... 237

51AE..... Regulations relating to industry codes............................................ 238

51AEA.. Concurrent operation of State and Territory laws......................... 238

Part V—Consumer protection                                                                                      239

Division 1—Unfair practices                                                                                 239

51AF..... Part does not apply to financial services........................................ 239

51A....... Interpretation.................................................................................. 239

52.......... Misleading or deceptive conduct.................................................... 240

53.......... False or misleading representations................................................ 240

53A....... False representations and other misleading or offensive conduct in relation to land               241

53B....... Misleading conduct in relation to employment.............................. 242

53C....... Single price to be stated in certain circumstances........................... 242

54.......... Offering gifts and prizes................................................................. 244

55.......... Misleading conduct to which Industrial Property Convention applies.. 244

55A....... Certain misleading conduct in relation to services.......................... 244

56.......... Bait advertising............................................................................... 244

57.......... Referral selling................................................................................ 245

58.......... Accepting payment without intending or being able to supply as ordered             245

59.......... Misleading representations about certain business activities......... 246

60.......... Harassment and coercion................................................................ 246

63A....... Unsolicited credit and debit cards................................................... 246

64.......... Assertion of right to payment for unsolicited goods or services or for making entry in directory         247

65.......... Liability of recipient of unsolicited goods...................................... 250

65A....... Application of provisions of Division to prescribed information providers           251

Division 1AAA—Pyramid selling                                                                       254

65AAA. Overview........................................................................................ 254

65AAB. Definitions...................................................................................... 254

65AAC. Pyramid selling schemes—participation........................................ 255

65AAD. What is a pyramid selling scheme?................................................. 255

65AAE.. Marketing schemes—are they pyramid selling schemes?.............. 256

Division 1AA—Country of origin representations                                   257

Subdivision A—General                                                                                         257

65AA.... Overview........................................................................................ 257

65AB.... General test for country of origin representations......................... 257

65AC.... Test for representations that goods are product of/produce of a country               257

65AD.... Test for representations made by means of prescribed logo.......... 258

65AE..... Substantial transformation of goods............................................... 258

65AF..... Method of working out costs of production or manufacture......... 259

Subdivision B—Cost of production or manufacture of goods                          259

65AG.... Definitions...................................................................................... 259

65AH.... Cost of producing or manufacturing goods..................................... 259

65AJ..... Expenditure on materials................................................................ 259

65AK.... Expenditure on labour..................................................................... 260

65AL..... Expenditure on overheads............................................................... 260

65AM... Regulations may prescribe rules for determining the local percentage costs of production or manufacture           261

Subdivision C—Evidentiary matters                                                                    261

65AN.... Proceedings relating to false, misleading or deceptive conduct or representations  261

Division 1A—Product safety and product information                            263

65B....... Warning notice to public................................................................. 263

65C....... Product safety standards and unsafe goods.................................... 263

65D....... Product information standards....................................................... 265

65E........ Power of Minister to declare product safety or information standards  267

65F........ Compulsory product recall............................................................. 267

65G....... Compliance with product recall order............................................ 270

65H....... Loss or damage caused by contravention of product recall order... 271

65J........ Opportunity for conference to be afforded before certain powers exercised          271

65K....... Recommendation after conclusion of conference............................ 273

65L........ Exception in case of danger to public............................................. 273

65M...... Conference after goods banned....................................................... 274

65N....... Recommendation after conclusion of conference............................ 274

65P........ Minister to have regard to recommendation of Commission.......... 275

65Q....... Power to obtain information, documents and evidence.................. 275

65R....... Notification of voluntary recall...................................................... 279

65S........ Copies of certain notices to be given to suppliers or published in certain newspapers          279

65T....... Certain action not to affect insurance contracts............................. 280

Division 2—Conditions and warranties in consumer transactions   281

66.......... Interpretation.................................................................................. 281

66A....... Convention on Contracts for the International Sale of Goods....... 281

67.......... Conflict of laws.............................................................................. 282

68.......... Application of provisions not to be excluded or modified............. 282

68A....... Limitation of liability for breach of certain conditions or warranties 282

68B....... Limitation of liability in relation to supply of recreational services 284

69.......... Implied undertakings as to title, encumbrances and quiet possession 285

70.......... Supply by description.................................................................... 286

71.......... Implied undertakings as to quality or fitness................................. 286

72.......... Supply by sample.......................................................................... 287

73.......... Liability for loss or damage from breach of certain contracts......... 288

73A....... Continuing credit contract.............................................................. 294

73B....... Loan contract.................................................................................. 295

74.......... Warranties in relation to the supply of services............................. 296

Division 2A—Actions against manufacturers and importers of goods 297

74A....... Interpretation.................................................................................. 297

74B....... Actions in respect of unsuitable goods........................................... 299

74C....... Actions in respect of false descriptions......................................... 300

74D....... Actions in respect of goods of unmerchantable quality................. 301

74E........ Actions in respect of non‑correspondence with samples etc......... 302

74F........ Actions in respect of failure to provide facilities for repairs or parts 303

74G....... Actions in respect of non‑compliance with express warranty....... 305

74H....... Right of seller to recover against manufacturer or importer........... 306

74J........ Time for commencing actions......................................................... 307

74K....... Application of Division not to be excluded or modified................ 308

74L........ Limitation in certain circumstances of liability of manufacturer to seller                309

74M...... The effect of Part VIB on this Division......................................... 309

Division 3—Miscellaneous                                                                                    310

75.......... Saving of other laws and remedies.................................................. 310

75A....... Rescission of contracts................................................................... 310

Part VA—Liability of manufacturers and importers for defective goods 312

75AA.... Interpretation.................................................................................. 312

75AB.... Certain interpretation provisions (importers and others taken to be manufacturers etc.) apply to this Part         313

75AC.... Meaning of goods having defect..................................................... 313

75AD.... Liability for defective goods causing injuries—loss by injured individual               313

75AE..... Liability for defective goods causing injuries—loss by person other than injured individual 314

75AF..... Liability for defective goods—loss relating to other goods............ 315

75AG.... Liability for defective goods—loss relating to buildings etc........... 315

75AH.... Survival of liability actions............................................................. 316

75AI...... No liability action where workers’ compensation or law giving effect to an international agreement applies        316

75AJ..... Unidentified manufacturer.............................................................. 316

75AK.... Defences......................................................................................... 316

75AL..... Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard.......................................................................................... 317

75AM... Liability joint and several............................................................... 318

75AN.... Contributory acts or omissions to reduce compensation............... 318

75AO.... Time for commencing actions......................................................... 318

75AP..... Application of provisions not to be excluded or modified............. 319

75AQ.... Representative actions by the Commission................................... 319

75AR.... Saving of other laws and remedies.................................................. 319

75AS..... Jurisdiction of courts...................................................................... 320

Part VC—Offences                                                                                                            321

Division 1—Application of Part                                                                           321

75AZA. Part does not apply to financial services........................................ 321

75AZAAConcurrent operation of State and Territory laws......................... 321

Division 2—Offences relating to unfair practices                                      322

75AZB.. Interpretation.................................................................................. 322

75AZC.. False or misleading representations................................................ 322

75AZD. False representations and other misleading or offensive conduct in relation to land               323

75AZE.. Misleading conduct in relation to employment.............................. 325

75AZF.. Single price to be stated in certain circumstances........................... 326

75AZG. Offering gifts and prizes................................................................. 328

75AZH. Misleading conduct to which Industrial Property Convention applies.. 328

75AZI... Certain misleading conduct in relation to services.......................... 329

75AZJ... Bait advertising............................................................................... 329

75AZK. Referral selling................................................................................ 331

75AZL.. Accepting payment without intending or being able to supply as ordered             331

75AZM Misleading representations about certain business activities......... 332

75AZN. Harassment and coercion................................................................ 333

75AZO. Pyramid selling............................................................................... 334

75AZP.. Unsolicited credit and debit cards................................................... 334

75AZQ. Assertion of right to payment for unsolicited goods or services or for making an entry in a directory  336

75AZR.. Application of provisions of Division to prescribed information providers           338

Division 3—Offences relating to product safety and product information            340

75AZS.. Product safety standards and unsafe goods.................................... 340

75AZT.. Product information standards....................................................... 341

75AZU. Compliance with product recall notice........................................... 342

Part VI—Enforcement and remedies                                                                       344

75B....... Interpretation.................................................................................. 344

76.......... Pecuniary penalties—restrictive trade practices etc....................... 344

76A....... Defence to proceedings under section 76 relating to a contravention of section 95AZN        347

76B....... What happens if substantially the same conduct is a contravention of Part IV or section 95AZN and an offence?........................................................................................................ 348

76C....... Defence to proceedings relating to exclusionary provisions........... 349

76E........ Pecuniary penalties—consumer protection etc.............................. 350

76F........ Pecuniary penalties under section 76E and offences...................... 352

77.......... Civil action for recovery of pecuniary penalties............................ 353

77A....... Indemnification of officers.............................................................. 354

77B....... Certain indemnities not authorised and certain documents void.... 354

77C....... Application of section 77A to a person other than a body corporate 354

78.......... Criminal proceedings not to be brought for contraventions of Part IV or V            355

79.......... Offences against section 44ZZRF or 44ZZRG or Part VC etc...... 355

79A....... Enforcement and recovery of certain fines..................................... 358

79B....... Preference must be given to compensation for victims.................. 359

80.......... Injunctions...................................................................................... 360

80AB.... Stay of injunctions.......................................................................... 363

80AC.... Injunctions to prevent mergers if clearance or authorisation granted on the basis of false or misleading information........................................................................................................ 364

81.......... Divestiture where merger contravenes section 50 or 50A.............. 365

81A....... Divestiture where merger done under clearance or authorisation granted on false etc. information        366

82.......... Actions for damages....................................................................... 369

83.......... Finding in proceedings to be evidence............................................ 370

84.......... Conduct by directors, employees or agents................................... 371

85.......... Defences......................................................................................... 373

86.......... Jurisdiction of courts...................................................................... 375

86AA.... Limit on jurisdiction of Federal Magistrates Court........................ 376

86A....... Transfer of matters......................................................................... 377

86B....... Transfer of certain proceedings to Family Court........................... 378

86C....... Non‑punitive orders....................................................................... 380

86D....... Punitive orders—adverse publicity................................................ 382

86DA.... Commission may issue a public warning notice............................. 383

86E........ Order disqualifying a person from managing corporations............. 384

86F........ Privilege against exposure to penalty—disqualification from managing corporations             385

87.......... Other orders.................................................................................... 386

87AAA. Orders to redress loss or damage suffered by non‑party consumers etc.                392

87AAB. Kinds of orders that may be made to redress loss or damage suffered by non‑party consumers etc.     394

87A....... Power of Court to prohibit payment or transfer of moneys or other property      395

87AA.... Special provision relating to Court’s exercise of powers under this Part in relation to boycott conduct               397

87AB.... Limit on liability for misleading or deceptive conduct................... 398

87B....... Enforcement of undertakings.......................................................... 399

87C....... Enforcement of undertakings—Secretary to the Department........ 400

87CA.... Intervention by Commission.......................................................... 401

87CAA. The effect of Part VIB on this Part................................................ 401

Part VIA—Proportionate liability for misleading and deceptive conduct 402

87CB..... Application of Part......................................................................... 402

87CC..... Certain concurrent wrongdoers not to have benefit of apportionment 402

87CD.... Proportionate liability for apportionable claims............................ 403

87CE..... Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware 404

87CF..... Contribution not recoverable from defendant................................. 404

87CG.... Subsequent actions......................................................................... 405

87CH.... Joining non‑party concurrent wrongdoer in the action................... 405

87CI...... Application of Part......................................................................... 405

Part VIB—Claims for damages or compensation for death or personal injury       406

Division 1—Introduction                                                                                        406

87D....... Definitions...................................................................................... 406

87E........ Proceedings to which this Part applies........................................... 407

Division 2—Limitation periods                                                                           409

87F........ Basic rule........................................................................................ 409

87G....... Date of discoverability................................................................... 410

87H....... Long‑stop period............................................................................ 411

87J........ The effect of minority or incapacity.............................................. 412

87K....... The effect of close relationships..................................................... 412

Division 3—Limits on personal injury damages for non‑economic loss                413

87L........ Limits on damages for non‑economic loss...................................... 413

87M...... Maximum amount of damages for non‑economic loss.................... 413

87N....... Index numbers................................................................................. 414

87P........ Most extreme cases........................................................................ 414

87Q....... Cases of 33% or more (but not 100%) of a most extreme case...... 414

87R....... Cases of 15% or more (but less than 33%) of a most extreme case 415

87S........ Cases of less than 15% of a most extreme case.............................. 416

87T....... Referring to earlier decisions on non‑economic loss....................... 416

Division 4—Limits on personal injury damages for loss of earning capacity      417

87U....... Personal injury damages for loss of earning capacity..................... 417

87V....... Average weekly earnings................................................................ 417

Division 5—Limits on personal injury damages for gratuitous attendant care services              419

87W...... Personal injury damages for gratuitous attendant care services for plaintiff           419

87X....... Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant care services  420

Division 6—Other limits on personal injury damages                            422

87Y....... Damages for future economic loss—discount rate......................... 422

87Z....... Damages for loss of superannuation entitlements.......................... 422

87ZA.... Interest on damages........................................................................ 423

87ZB..... Exemplary and aggravated damages................................................ 424

Division 7—Structured settlements                                                                 425

87ZC..... Court may make orders under section 87 for structured settlements 425

Part VIC—Infringement notices                                                                                 426

87ZD.... Purpose and effect of this Part....................................................... 426

87ZE..... Issue of an infringement notice....................................................... 426

87ZF..... Matters to be included in an infringement notice........................... 427

87ZG.... Amount of penalty......................................................................... 427

87ZH.... Effect of compliance with an infringement notice.......................... 428

87ZI...... Effect of failure to comply with an infringement notice................. 429

87ZJ...... Infringement notice compliance period for infringement notice..... 429

87ZK.... Withdrawal of an infringement notice............................................. 430

Part VID—Substantiation notices                                                                             432

87ZL..... Commission may require claims to be substantiated etc................ 432

87ZM... Extending periods for complying with substantiation notices....... 433

87ZN.... Compliance with substantiation notices......................................... 434

87ZO.... False or misleading information etc................................................ 434

Part VII—Authorisations, notifications and clearances in respect of restrictive trade practices 435

Division 1—Authorisations (other than section 50 merger authorisations)        435

87ZP..... Definitions...................................................................................... 435

88.......... Power of Commission to grant authorisations............................... 435

89.......... Procedure for applications and the keeping of a register................ 442

90.......... Determination of applications for authorisations........................... 445

90A....... Commission to afford opportunity for conference before determining application for authorisation    451

90B....... Commission may rely on consultations undertaken by the AEMC 454

91.......... Grant and variation of authorisations............................................. 455

91A....... Minor variations of authorizations................................................. 457

91B....... Revocation of an authorization....................................................... 459

91C....... Revocation of an authorization and substitution of a replacement 460

Division 2—Notifications                                                                                        463

Subdivision A—Exclusive dealing                                                                        463

93.......... Notification of exclusive dealing..................................................... 463

Subdivision B—Collective bargaining                                                                468

93AA.... Definitions...................................................................................... 468

93AB.... Notification of collective bargaining............................................... 468

93AC.... Commission’s objection notice....................................................... 473

93AD.... When collective bargaining notice comes into force and ceases to be in force         474

93AE..... Withdrawal of collective bargaining notice..................................... 476

93AEA.. Only 1 collective bargaining notice under subsection 93AB(1A) may be given      477

93AF..... Only 1 collective bargaining notice under subsection 93AB(1) may be given         477

Subdivision C—Conferences                                                                                478

93A....... Commission to afford opportunity for conference before giving notice  478

Subdivision D—Register of notifications                                                           480

95.......... Register of notifications.................................................................. 480

Division 3—Merger clearances and authorisations                                 484

Subdivision A—Preliminary                                                                                 484

95AA.... Simplified outline of this Division.................................................. 484

95AB.... Definitions...................................................................................... 485

Subdivision B—Merger clearances                                                                     486

95AC.... Commission may grant clearance for a merger................................ 486

95AD.... Application for clearance................................................................ 486

95AE..... Requirements for valid clearance application................................. 486

95AF..... Commission to notify if clearance application is invalid................ 487

95AG.... Application to be published on the internet................................... 487

95AH.... Merger clearance register................................................................ 487

95AI...... Confidentiality claims etc............................................................... 488

95AJ..... Commission may seek additional information from applicant....... 489

95AK.... Commission may seek further information and consult others...... 489

95AL..... Applicant may withdraw application............................................ 490

95AM... Commission to make determination on application....................... 490

95AN.... When clearance must not be granted............................................... 491

95AO.... Time limits for determining application......................................... 491

95AP..... Clearance subject to conditions...................................................... 491

95AQ.... When clearance is in force............................................................... 492

95AR.... Minor variations of clearances........................................................ 493

95AS..... Revocation of clearance or revocation of clearance and substitution of a new clearance         496

Subdivision C—Merger authorisations                                                              500

95AT.... Tribunal may grant authorisation for a merger............................... 500

95AU.... Application for authorisation......................................................... 501

95AV.... Requirements for valid authorisation application........................... 501

95AW... Tribunal to notify if authorisation application is invalid............... 501

95AX.... Tribunal to notify Commission of authorisation application......... 502

95AY.... Application to be published on the internet................................... 502

95AZ.... Merger authorisation register.......................................................... 502

95AZA. Confidentiality claims etc............................................................... 503

95AZC.. Tribunal may seek additional information from applicant............. 504

95AZD. Tribunal may seek further information and consult others etc....... 504

95AZE.. Applicant may withdraw application............................................ 505

95AZEATribunal must require Commission to give report.......................... 505

95AZF.. Commission to assist Tribunal....................................................... 505

95AZFACommission may make enquiries................................................... 506

95AZG. Tribunal to make determination on application.............................. 506

95AZH. When authorisation must not be granted........................................ 507

95AZI... Time limits for determining application......................................... 507

95AZJ... Authorisation subject to conditions............................................... 508

95AZK. When authorisation is in force........................................................ 508

95AZL.. Minor variations of authorisations................................................. 508

95AZM Revocation of authorisation or revocation of authorisation and substitution of a new authorisation     512

Subdivision D—Miscellaneous                                                                             517

95AZN. Providing false or misleading information....................................... 517

Part VIIA—Prices surveillance                                                                                   518

Division 1—Preliminary                                                                                          518

95A....... Interpretation.................................................................................. 518

95B....... Exempt supplies............................................................................. 521

95C....... Application of Part......................................................................... 522

95D....... Crown to be bound......................................................................... 523

95E........ Object of this Part.......................................................................... 523

95F........ Simplified overview of this Part..................................................... 523

Division 2—Commission’s functions under this Part                              525

95G....... Commission’s functions under this Part........................................ 525

Division 3—Price inquiries                                                                                    527

Subdivision A—Holding of inquiries                                                                   527

95H....... Price inquiries................................................................................. 527

95J........ Content of inquiry notices.............................................................. 528

95K....... Period for completing inquiry......................................................... 529

95L........ Notice of holding of inquiry........................................................... 529

95M...... Notice of extension of period for completing inquiry.................... 530

95N....... Price restrictions............................................................................. 530

Subdivision B—Reports on inquiries                                                                  533

95P........ Copies of report to be made available............................................ 533

95Q....... Notification of proposed prices after receipt of report.................. 533

Subdivision C—Procedure at inquiries                                                              534

95R....... Public inquiries etc.......................................................................... 534

95S........ Taking of evidence on oath or affirmation...................................... 535

95T....... Failure of witness to attend............................................................ 536

95U....... Refusal to be sworn or to answer question.................................... 536

95V....... Protection of witnesses.................................................................. 537

95W...... Allowances to witnesses................................................................ 537

Division 4—Price notifications                                                                            538

95X....... Declarations by Minister or Commission...................................... 538

95Y....... Declarations in relation to State or Territory authorities............... 538

95Z....... Price restrictions............................................................................. 540

95ZA.... Later notices modifying a locality notice........................................ 542

95ZB..... Applicable period in relation to a locality notice........................... 543

95ZC..... Register of price notifications......................................................... 544

95ZD.... Delegation by Commission............................................................. 545

Division 5—Price monitoring                                                                               546

95ZE..... Directions to monitor prices, costs and profits of an industry...... 546

95ZF..... Directions to monitor prices, costs and profits of a business........ 546

95ZG.... Exceptions to price monitoring....................................................... 547

Division 6—Other provisions                                                                              548

95ZH.... Ministerial directions...................................................................... 548

95ZI...... Inquiries by an unincorporated body or a group of 2 or more individuals              548

95ZJ...... Withdrawal of notices..................................................................... 549

95ZK.... Power to obtain information or documents.................................... 549

95ZL..... Inspection of documents etc........................................................... 552

95ZM... Retention of documents.................................................................. 552

95ZN.... Confidential information................................................................. 553

95ZO.... Immunity........................................................................................ 554

95ZP..... Secrecy: members or staff members of the Commission etc.......... 554

95ZQ.... Secrecy: persons involved in inquiries by bodies other than the Commission        556

Part VIII—Resale price maintenance                                                                     558

96.......... Acts constituting engaging in resale price maintenance.................. 558

96A....... Resale price maintenance in relation to services............................. 560

97.......... Recommended prices...................................................................... 560

98.......... Withholding the supply of goods................................................... 561

99.......... Statements as to the minimum price of goods................................ 562

100........ Evidentiary provisions................................................................... 562

Part IX—Review by Tribunal of Determinations of Commission           564

Division 1—Applications for review (other than for merger clearances)             564

101........ Applications for review.................................................................. 564

101A..... Application for review of notice under subsection 93(3) or (3A) or 93AC(1) or (2)             565

102........ Functions and powers of Tribunal................................................. 565

Division 2—Procedure and Evidence                                                              570

102A..... Definition........................................................................................ 570

103........ Procedure generally......................................................................... 570

104........ Regulations as to certain matters.................................................... 570

105........ Power to take evidence on oath...................................................... 571

106........ Hearings to be in public except in special circumstances............... 571

107........ Evidence in form of written statement........................................... 572

108........ Taking of evidence by single member............................................. 572

109........ Participants in proceedings before Tribunal................................... 572

110........ Representation................................................................................ 572

Division 3—Review of Commission’s determinations on merger clearances   574

111........ Applications for review.................................................................. 574

112........ Tribunal to notify Commission...................................................... 575

113........ Commission to give material to Tribunal........................................ 575

114........ Tribunal may consult etc. to clarify information............................ 575

115........ Commission to assist Tribunal....................................................... 576

116........ Tribunal only to consider material before the Commission............ 576

117........ Tribunal to make decision on review.............................................. 576

118........ Time limits for making review decision.......................................... 576

119........ Tribunal’s decision taken to be Commission’s............................... 577


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;

                     (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.

2BA  Application of Part IV to local government bodies

             (1)  Part IV applies in relation to a local government body only to the extent that it carries on a business, either directly or by an incorporated company in which it has a controlling interest.

             (2)  In this section:

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.

2C  Activities that are not business

             (1)  For the purposes of sections 2A, 2B and 2BA, 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; or

                           (viii)  only persons who are all acting for the same local government body (within the meaning of section 2BA) or for the same incorporated company in which such a body has a controlling interest;

                     (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, 2B and 2BA.

             (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.

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.

authorisation means:

                     (a)  an authorisation under Division 1 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission; or

                     (b)  an authorisation under Division 3 of Part VII granted by the Tribunal.

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.

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.

cartel provision has the meaning given by section 44ZZRD.

Chairperson means the Chairperson of the Commission.

clearance means a clearance under Division 3 of Part VII granted by the Commission or by the Tribunal on a review of a determination 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 a 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.

designated Commonwealth energy law means:

                     (a)  the National Electricity (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or

                     (b)  the National Gas (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or

                     (c)  the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004).

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.

dual listed company arrangement has the same meaning as in section 125‑60 of the Income Tax Assessment Act 1997.

enforcement proceeding means:

                     (a)  a proceeding for an offence against Part VC; or

                     (b)  a proceeding instituted under Part VI (other than section 87AAA).

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.

infringement notice means an infringement notice issued under section 87ZE.

infringement notice compliance period has the meaning given by section 87ZJ.

infringement notice provision means:

                     (a)  a provision of Part IVA; or

                     (b)  a provision of Division 1 or 1AAA of Part V (other than section 52, paragraph 53A(1)(c), section 54, subsection 56(1) or section 58 or 64); or

                     (c)  subsection 65C(1) or (3) or 65D(1) or section 65G; or

                     (d)  section 87ZN or 87ZO.

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.

non‑party consumer, in relation to conduct, means a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct.

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.

South Australian Electricity Legislation means:

                     (a)  the National Electricity Law set out in the Schedule 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.

The reference in paragraph (a) to the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

South Australian Gas Legislation means:

                     (a)  the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time; and

                     (b)  any regulations, as in force from time to time, made under Part 3 of that Act.

The reference in paragraph (a) to the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

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

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:

                              (i)  relate to energy; and

                             (ii)  are prescribed by the regulations for the purposes of this paragraph;

                            being those provisions as in force from time to time.

substantiation notice means a notice under section 87ZL.

substantiation notice compliance period has the meaning given by subsection 87ZN(2).

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.

uniform energy law means:

                     (a)  the South Australian Electricity Legislation; or

                     (b)  the South Australian Gas Legislation; or

                     (c)  the Western Australian Gas Legislation; or

                     (d)  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.

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.

Western Australian Gas Legislation means:

                     (a)  the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time; and

                     (b)  any regulations, as in force from time to time, made under Part 3 of that Act.

The reference in paragraph (a) to the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

             (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.

          (5A)  For the purposes of Parts IV, VI and VII:

                     (a)  a body corporate that is a party to a dual listed company arrangement is taken to be related to the other body corporate that is a party to the arrangement; and

                     (b)  a body corporate that is related to one of the parties to the arrangement is taken to be related to the other party to the arrangement; and

                     (c)  a body corporate that is related to one of the parties to the arrangement is taken to be related to each body corporate that is related to the other party to the arrangement.

             (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, 87AAA 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 offshore area in respect of a State, of the Northern Territory, or of an external Territory, as specified in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

             (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 offshore areas referred to in that subsection.

             (4)  For the purposes of this section:

service includes proposed service covered by Division 2A of Part IIIA.

5  Extended application of Parts IV, IVA, V, VC etc.

             (1)  Each of the following provisions:

                     (a)  Part IV;

                     (b)  Part IVA;

                     (c)  Part V (other than Division 1AA);

                     (e)  Part VC;

                      (f)  the remaining provisions of this Act (to the extent to which they relate to any of the provisions covered by paragraph (a), (b), (c) or (e));

extends to the engaging in conduct outside Australia by:

                     (g)  bodies corporate incorporated or carrying on business within Australia; or

                     (h)  Australian citizens; or

                      (i)  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, the Commission or the Director of Public Prosecutions 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 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; and

                     (b)  sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45, 45B, 45D to 45EB (other than section 45DB), 46, 46A, 53B and 60, subsections 64(3) and (4), Division 1AAA of Part V, sections 75A, 75AZE, 75AZN, 75AZO, subsections 75AZQ(4) to (7) (inclusive) 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; and

                     (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; and

                     (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; and

                     (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; and

                    (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); and

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

                     (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, 49, 50, 50A, 77A, 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.

          (2C)  In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:

                     (a)  the reference in paragraph 44ZZRD(2)(c) to goods or services supplied, or likely to be supplied, were, by express provision, confined to goods or services supplied, or likely to be supplied, to corporations or classes of corporations; and

                     (b)  the reference in paragraph 44ZZRD(2)(d) to goods or services acquired, or likely to be acquired, were, by express provision, confined to goods or services acquired, or likely to be acquired, from corporations or classes of corporations; and

                     (c)  the reference in paragraph 44ZZRD(2)(e) to goods or services re‑supplied, or likely to be re‑supplied, were, by express provision, confined to goods or services re‑supplied, or likely to be re‑supplied, to corporations or classes of corporations; and

                     (d)  the reference in paragraph 44ZZRD(2)(f) to goods or services likely to be re‑supplied were, by express provision, confined to goods or services likely to be re‑supplied to corporations or classes of corporations; and

                     (e)  the following paragraphs were added at the end of subsection 44ZZRD(2):

              “; or (g)  goods or services re‑supplied, or likely to be re‑supplied, by corporations or classes of corporations to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or

                     (h)  goods or services likely to be re‑supplied by corporations or classes of corporations to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding.”; and

                      (f)  the reference in subparagraph 44ZZRD(3)(a)(i) to the production, or likely production, of goods were, by express provision, confined to the production, or likely production, of goods for supply to corporations or classes of corporations; and

                     (g)  the reference in subparagraph 44ZZRD(3)(a)(ii) to the supply of services were, by express provision, confined to the supply of services to corporations or classes of corporations; and

                     (h)  each reference in subparagraphs 44ZZRD(3)(a)(iii), (b)(i) and (ii) to persons or classes of persons were, by express provision, confined to corporations or classes of corporations; and

                      (i)  the reference in subparagraph 44ZZRD(3)(b)(iii) to the geographical areas in which goods or services are supplied, or likely to be supplied, were, by express provision, confined to the geographical areas in which goods or services are supplied, or likely to be supplied, to corporations or classes of corporations; and

                      (j)  the reference in subparagraph 44ZZRD(3)(b)(iv) to the geographical areas in which goods or services are acquired, or likely to be acquired, were, by express provision, confined to the geographical areas in which goods or services are acquired, or likely to be acquired, from corporations or classes of corporations; and

                     (k)  the reference in paragraph 44ZZRD(3)(c) to the supply or acquisition of goods or services were, by express provision, confined to supply of goods or services to, or the acquisition of goods or services from, corporations or classes of corporations; and

                      (l)  the reference in paragraph 44ZZRD(4)(e) to paragraph (2)(e) or (f) included a reference to paragraph (2)(g) or (h); and

                    (m)  section 44ZZRD also provided that it is immaterial whether the identities of the corporations referred to in subsection (2) or (3) of that section can be ascertained; and

                     (n)  each reference in the following provisions of this Act:

                              (i)  Division 1 of Part IV (other than section 44ZZRD);

                             (ii)  any other provision (other than section 4, 44ZZRD, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV;

                            to a corporation included a reference to a person not being a corporation.

For the purposes of this subsection, likely and production have the same meaning as in Division 1 of Part IV.

          (2D)  In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:

                     (a)  sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of, or relates to, a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; and

                     (b)  each reference in the following provisions of this Act:

                              (i)  Division 1 of Part IV;

                             (ii)  any other provision (other than section 4, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV;

                            to a corporation included a reference to a person not being a corporation.

           (2E)  In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:

                     (a)  sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in, or relates to:

                              (i)  a Territory; or

                             (ii)  a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); and

                     (b)  each reference in the following provisions of this Act:

                              (i)  Division 1 of Part IV;

                             (ii)  any other provision (other than section 4, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV;

                            to a corporation included a reference to a person not being a corporation.

             (3)  In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by another subsection of this section, the provisions of Part IVA, of Divisions 1, 1AAA, 1AA and 1A 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 another subsection of this section, the provisions of Part IVA and of Division 1 (other than sections 53A and 55) and Divisions 1AAA and 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”.

          (5A)  Despite anything in section 44ZZRF or 44ZZRG, if a body corporate other than a corporation is convicted of an offence against that section (as that section applies because of this section), the offence is taken to be punishable on conviction as if the body corporate were a corporation.

          (5B)  Despite anything in section 44ZZRF or 44ZZRG, if a person other than a body corporate is convicted of an offence against that section (as that section applies because of this section), the offence is taken to be punishable on conviction by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both.

             (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, Division 7 of Part XIB, or section 44ZZRF or 44ZZRG.


 

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 a clearance, or the making by the Commission of any decision for the purposes of subsection 93(3) or (3A) or 93AC(1) or (2), 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 Chairpersons

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

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

          (1B)  Before the Governor‑General appoints a person as a Deputy Chairperson, the Minister must be satisfied that, immediately after the appointment, there will be at least one Deputy Chairperson who has knowledge of, or experience in, small business matters.

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

             (5)  Not more than 2 persons may hold office as Deputy Chairperson at any one time.

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)  if there are 2 Deputy Chairpersons available to act as Chairperson, the Minister may appoint 1 of them to act as Chairperson during the absence of the Chairperson; or

                     (b)  if there is only 1 Deputy Chairperson available to act as Chairperson, that Deputy Chairperson is to act as Chairperson during the absence of the Chairperson; or

                     (c)  if there are no Deputy Chairpersons or none of the Deputy Chairpersons are 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 a Deputy Chairperson or a 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:

                     (a)  if there are 2 Deputy Chairpersons available to preside at the meeting—the Chairperson may nominate 1 of them to preside at the meeting; or

                     (b)  if there is only 1 Deputy Chairperson available to preside at the meeting—that Deputy Chairperson is to preside at the meeting.

             (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 a 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 a Deputy Chairperson is presiding, 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 or section 152ELA), Procedural Rules under Part XIC, the Telecommunications Act 1997, the Telecommunications (Consumer Protection and Service Standards) Act 1999, the Water Act 2007, 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 or a clearance.

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.

          (2B)  Subsection (2) does not apply to a State/Territory energy law.

Note:          Section 29BA provides that a State/Territory energy law may confer functions or powers, or impose duties, on the Council.

             (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.

29BA  Commonwealth consent to conferral of functions etc. on Council

             (1)  A State/Territory energy law may confer functions or powers, or impose duties, on the Council for the purposes of that law.

Note:          Section 29BC sets out when such a law imposes a duty on the Council.

             (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 Council; or

                     (b)  the authorisation would otherwise exceed the legislative power of the Commonwealth.

             (3)  The Council 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 an agreement between the Commonwealth and the State or Territory concerned.

29BB  How duty is imposed

Application

             (1)  This section applies if a State/Territory energy law purports to impose a duty on the Council.

Note:          Section 29BC sets out when such a law imposes a duty on the Council.

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 Council.

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 29BA 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 Council.

             (6)  Subsections (1) to (5) do not limit section 29BA.

29BC  When a State/Territory energy law imposes a duty

                   For the purposes of sections 29BA and 29BB, a State/Territory energy law imposes a duty on the Council if:

                     (a)  the law confers a function or power on the Council; and

                     (b)  the circumstances in which the function or power is conferred give rise to an obligation on the Council to perform the function or to exercise the power.

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

             (1)  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.

             (2)  The report must also include details of the following:

                     (a)  the time taken by the Council to make a recommendation on any application under section 44F, 44M or 44NA (about access regime applications under Part IIIA);

                     (b)  any court or Tribunal decision interpreting:

                              (i)  paragraph (f) of the definition of service in section 44B (which is an exclusion to do with production processes); or

                             (ii)  any of the matters mentioned in subsection 44H(4) (about matters relevant to declaring services under Part IIIA);

                     (c)  any matter the Council considers has impeded the operation of Part IIIA from delivering efficient access outcomes;

                     (d)  any evidence of the benefits arising from determinations of the Commission under section 44V (about arbitration determinations under Part IIIA);

                     (e)  any evidence of the costs of, or the disincentives for, investment in the infrastructure by which declared services (within the meaning of Part IIIA) are provided;

                      (f)  any implications for the operation of Part IIIA in the future.


 

Part IIIThe Australian Competition Tribunal

  

29P  Definition

                   In this Part, unless the contrary intention appears:

proceedings includes:

                     (a)  applications made to the Tribunal under Subdivision C of Division 3 of Part VII; and

                     (b)  applications made to the Tribunal under section 111 (about review of the Commission’s decisions on merger clearances).

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  President may give directions

             (1)  The President may give directions as to the arrangement of the business of the Tribunal and the constitution of Divisions of the Tribunal.

             (2)  The President may give directions to the Deputy Presidents in relation to the exercise by the Deputy Presidents of powers with respect to matters of procedure in proceedings before the Tribunal.

Note:          Subsection 103(2) provides that any presidential member may exercise powers with respect to matters of procedure in proceedings before 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.

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.

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.

44AAEA  Arbitration

             (1)  Sections 44AAD and 44AAE do not apply to the AER as constituted for an arbitration under:

                     (a)  the National Electricity (Commonwealth) Law (as defined by the Australian Energy Market Act 2004); or

                     (b)  the National Gas (Commonwealth) Law (as defined by the Australian Energy Market Act 2004); or

                     (c)  a provision of a State/Territory energy law.

             (2)  The reference in subsection (1) to an arbitration includes a reference to each of the following:

                     (a)  the making, variation or revocation of an access determination (within the meaning of the law concerned);

                     (b)  the performance of a function, or the exercise of a power, in connection with the making, variation or revocation of an access determination (within the meaning of the law concerned).

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)  Australian Energy Market Operator 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.

44AAGA  Federal Court may order disconnection if an event specified in the National Electricity Rules occurs

             (1)  If a relevant disconnection event occurs, the Federal Court may make an order, on application by the AER on behalf of the Commonwealth, directing that a Registered participant’s loads be disconnected.

             (2)  In this section:

National Electricity Law means:

                     (a)  the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; or

                     (b)  that Law as it applies as a law of another State; or

                     (c)  that Law as it applies as a law of a Territory; or

                     (d)  that Law as it applies as a law of the Commonwealth.

National Electricity Rules means:

                     (a)  the National Electricity Rules, as in force from time to time, made under the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia; or

                     (b)  those Rules as they apply as a law of another State; or

                     (c)  those Rules as they apply as a law of a Territory; or

                     (d)  those Rules as they apply as a law of the Commonwealth.

Registered participant has the same meaning as in the National Electricity Law.

relevant disconnection event means an event specified in the National Electricity Rules as being an event for which a Registered participant’s loads may be disconnected, where the event does not constitute a breach of the National Electricity Rules.

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

44AA  Objects of Part

                   The objects of this Part are to:

                     (a)  promote the economically efficient operation of, use of and investment in the infrastructure by which services are provided, thereby promoting effective competition in upstream and downstream markets; and

                     (b)  provide a framework and guiding principles to encourage a consistent approach to access regulation in each industry.

44B  Definitions

                   In this Part, unless the contrary intention appears:

access code means a code referred to in section 44ZZAA.

access code application means:

                     (a)  an access code given to the Commission; or

                     (b)  a request made to the Commission for the withdrawal or variation of an access code; or

                     (c)  an application under subsection 44ZZBB(4) for an extension of the period for which an access code is in operation.

access code decision means:

                     (a)  a decision under section 44ZZAA to accept or reject an access code; or

                     (b)  a decision under section 44ZZAA to consent or refuse to consent to the withdrawal or variation of an access code; or

                     (c)  a decision under section 44ZZBB to extend or refuse to extend the period for which an access code is in operation.

access undertaking means an undertaking under section 44ZZA.

access undertaking application means:

                     (a)  an access undertaking given to the Commission; or

                     (b)  a request made to the Commission for the withdrawal or variation of an access undertaking; or

                     (c)  an application under subsection 44ZZBB(1) for an extension of the period for which an access undertaking is in operation.

access undertaking decision means:

                     (a)  a decision under section 44ZZA to accept or reject an access undertaking; or

                     (b)  a decision under section 44ZZA to consent or refuse to consent to the withdrawal or variation of an access undertaking; or

                     (c)  a decision under section 44ZZBB to extend or refuse to extend the period for which an access undertaking is in operation.

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.

final determination means a determination other than an interim determination.

interim determination means a determination that is expressed to be an interim determination.

modifications includes additions, omissions and substitutions.

National Gas Law means:

                     (a)  the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time, as that Law applies as a law of South Australia; or

                     (b)  if an Act of another State or of the Australian Capital Territory or the Northern Territory applies the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia, as in force from time to time, as a law of that other State or of that Territory—the National Gas Law as so applied; or

                     (c)  the Western Australian Gas Legislation; or

                     (d)  the National Gas (Commonwealth) Law (within the meaning of the Australian Energy Market Act 2004); or

                     (e)  the Offshore Western Australian Pipelines (Commonwealth) Law (within the meaning of the Australian Energy Market Act 2004).

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; or

                     (c)  a State/Territory energy law.

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 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, after having regard to the objects of this Part, recommend to the designated Minister:

                              (i)  that the service be declared; or

                             (ii)  that the service not be declared.

Note 1:       There are target time limits that apply to the Council’s recommendation: see section 44GA.

Note 2:       The Council may invite public submissions on the application: see section 44GB.

Note 3:       The Council must publish its recommendation: see section 44GC.

             (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 Division 6.

          (1A)  While a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of a facility, as a competitive tender process, the Council cannot recommend declaration of any service provided by means of the facility that was specified under paragraph 44PA(2)(a).

             (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 a material increase in 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, subject to subsection (5), apply the relevant principles set out in that agreement; and

                    (aa)  must have regard to the objects of this Part; 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).

             (5)  In deciding whether a regime is an effective access regime, the Council must disregard Chapter 5 of a National Gas Law.

             (6)  The Council cannot recommend declaration of a service provided by means of a pipeline (within the meaning of a National Gas Law) if:

                     (a)  a 15‑year no‑coverage determination is in force under the National Gas Law in respect of the pipeline; or

                     (b)  a price regulation exemption is in force under the National Gas Law in respect of the pipeline.

44GA  Target time limits on Council recommendation

             (1)  The Council must use its best endeavours to make a recommendation on an application under section 44F within:

                     (a)  the period (the standard period) of 4 months beginning on the day it received the application; or

                     (b)  if the standard period is extended—that period as extended.

Extensions

             (2)  If the Council is unable to make a recommendation within the standard period, or that period as extended, it must, by notice in writing, extend the standard period by a specified period.

             (3)  The Council must give a copy of the notice to:

                     (a)  the applicant; and

                     (b)  if the applicant is not the provider of the service—the provider.

Multiple extensions

             (4)  The Council may extend the standard period more than once.

Publication

             (5)  If the Council extends the standard period, it must publish a notice in a national newspaper:

                     (a)  stating that it has done so; and

                     (b)  specifying the day by which it must now use its best endeavours to make a recommendation on the application.

44GB  Council may invite public submissions on the application

Invitation

             (1)  The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44F if it considers that it is appropriate and practicable to do so.

             (2)  The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published).

Council to consider any submission

             (3)  Subject to subsection (6), the Council must have regard to any submission so made in deciding what recommendation to make on the application.

Council may make submissions publicly available

             (4)  The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.

Confidentiality

             (5)  A person may, at the time of making a submission, request that the Council:

                     (a)  not make the whole or a part of the submission available under subsection (4); and

                     (b)  not publish or make available the whole or a part of the submission under section 44GC;

because of the confidential commercial