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.................................................. 18
4D......... Exclusionary provisions................................................................... 19
4E.......... Market.............................................................................................. 20
4F.......... References to purpose or reason...................................................... 20
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................................................................................... 21
4K......... Loss or damage to include injury...................................................... 22
4KA...... Definitions etc. that do not apply in Part XI or Schedule 2............. 22
4L.......... Severability....................................................................................... 22
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 this Act to conduct outside Australia........ 23
6............ Extended application of this Act to persons who are not corporations [see Note 2] 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.................................................................................... 35
10.......... Deputy Chairpersons....................................................................... 35
11.......... Acting Chairperson........................................................................... 36
12.......... Leave of absence............................................................................... 36
13.......... Termination of appointment of members of the Commission......... 37
14.......... Termination of appointment of associate members of the Commission 37
15.......... Resignation....................................................................................... 37
16.......... Arrangement of business.................................................................. 38
17.......... Disclosure of interests by members................................................ 38
18.......... Meetings of Commission.................................................................. 39
19.......... Chairperson may direct Commission to sit in Divisions.................. 40
25.......... Delegation by Commission............................................................... 41
26.......... Delegation by Commission of certain functions and powers........... 41
27.......... Staff of Commission......................................................................... 42
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
29LA..... Resolutions without meetings.......................................................... 51
29M...... Staff to help Council......................................................................... 52
29N....... Consultants....................................................................................... 52
29O....... Annual report................................................................................... 52
Part III—The Australian Competition Tribunal 54
29P........ Definition.......................................................................................... 54
30.......... Constitution of Tribunal................................................................... 54
31.......... Qualifications of members of Tribunal............................................. 54
31A....... Appointment of Judge as presidential member of Tribunal not to affect tenure etc. 55
32.......... Terms and conditions of appointment............................................. 55
33.......... Remuneration and allowances of members of Tribunal.................... 55
34.......... Acting appointments........................................................................ 55
35.......... Suspension and removal of members of Tribunal............................. 56
36.......... Resignation....................................................................................... 57
37.......... Constitution of Tribunal for particular matters................................ 57
38.......... Validity of determinations................................................................ 58
39.......... President may give directions........................................................... 58
40.......... Disclosure of interests by members of Tribunal.............................. 58
41.......... Presidential member to preside......................................................... 59
42.......... Decision of questions....................................................................... 59
43.......... Member of Tribunal ceasing to be available..................................... 59
43A....... Counsel assisting Tribunal................................................................ 60
43B....... Consultants....................................................................................... 60
44.......... Staff of Tribunal............................................................................... 60
44A....... Acting appointments........................................................................ 61
Part IIIAA—The Australian Energy Regulator (AER) 62
Division 1—Preliminary 62
44AB.... Definitions........................................................................................ 62
44AC.... This Part binds the Crown............................................................... 62
44AD.... Extra‑territorial operation................................................................. 62
Division 2—Establishment of the AER 64
44AE..... Establishment of the AER................................................................ 64
44AF..... AER to hold money and property on behalf of the Commonwealth 64
44AG.... Constitution of the AER.................................................................. 64
Division 3—Functions and powers of the AER 65
44AH.... Commonwealth functions................................................................. 65
44AI...... Commonwealth consent to conferral of functions etc. on AER....... 65
44AJ..... How duty is imposed....................................................................... 65
44AK.... When a State/Territory energy law imposes a duty......................... 66
44AL..... Powers of the AER........................................................................... 67
Division 4—Administrative provisions relating to the AER 68
Subdivision A—Appointment etc. of members 68
44AM... Appointment of Commonwealth AER member............................... 68
44AN.... Membership of AER and Commission............................................ 68
44AO.... Acting appointment of Commonwealth AER member.................... 69
44AP..... Appointment of State/Territory AER members.............................. 69
44AQ.... Acting appointment of State/Territory AER member...................... 70
44AR.... AER Chair........................................................................................ 70
44AS..... Acting AER Chair............................................................................. 71
44AT.... Remuneration of AER members....................................................... 71
44AU.... Additional remuneration of AER Chair............................................ 72
44AV.... Leave of absence............................................................................... 72
44AW... Other terms and conditions.............................................................. 72
44AX.... Outside employment........................................................................ 72
44AY.... Disclosure of interests...................................................................... 73
44AZ.... Resignation....................................................................................... 73
44AAB. Termination of appointment............................................................ 73
Subdivision B—Staff etc. to assist the AER 74
44AAC. Staff etc. to assist the AER.............................................................. 74
Subdivision C—Meetings of the AER etc. 74
44AAD. Meetings........................................................................................... 74
44AAE.. Resolutions without meetings.......................................................... 75
44AAEAArbitration........................................................................................ 75
Subdivision D—Miscellaneous 76
44AAF.. Confidentiality.................................................................................. 76
44AAG. Federal Court may make certain orders............................................ 77
44AAGAFederal Court may order disconnection if an event specified
in the National Electricity Rules occurs........................................... 78
44AAH. Delegation by the AER..................................................................... 79
44AAI... Fees................................................................................................... 80
44AAJ.. Annual report................................................................................... 80
44AAK. Regulations may deal with transitional matters................................ 80
Part IIIA—Access to services 82
Division 1—Preliminary 82
44AA.... Objects of Part.................................................................................. 82
44B....... Definitions........................................................................................ 82
44C....... How this Part applies to partnerships and joint ventures............... 86
44D....... Meaning of designated Minister....................................................... 87
44DA.... The principles in the Competition Principles Agreement have status as guidelines 87
44E........ This Part binds the Crown............................................................... 88
Division 2—Declared services 89
Subdivision A—Recommendation by the Council 89
44F........ Person may request recommendation............................................... 89
44FA..... Council may request information..................................................... 90
44G....... Limits on the Council recommending declaration of a service.......... 91
44GA.... Time limit for Council recommendations......................................... 92
44GB.... Council may invite public submissions on the application.............. 94
44GC.... Council must publish its recommendation....................................... 95
Subdivision B—Declaration by the designated Minister 96
44H....... Designated Minister may declare a service....................................... 96
44HA.... Designated Minister must publish his or her decision..................... 98
44I......... Duration and effect of declaration.................................................... 99
44J........ Revocation of declaration............................................................... 100
44K....... Review of declaration..................................................................... 100
44KA.... Tribunal may stay operation of declaration................................... 102
44KB.... Tribunal may order costs be awarded............................................. 103
44L........ Review of decision not to revoke a declaration.............................. 104
Division 2AA—Services that are ineligible to be declared 106
Subdivision A—Scope of Division 106
44LA..... Constitutional limits on operation of this Division........................ 106
Subdivision B—Ineligibility recommendation by Council 106
44LB..... Ineligibility recommendation.......................................................... 106
44LC..... Council may request information................................................... 108
44LD..... Time limit for Council recommendations....................................... 108
44LE..... Council may invite public submissions on the application............ 110
44LF..... Council must publish its recommendation..................................... 111
Subdivision C—Designated Minister’s decision on ineligibility 112
44LG..... Designated Minister’s decision on ineligibility.............................. 112
44LH..... Designated Minister must publish his or her decision................... 114
Subdivision D—Revocation of ineligibility decision 114
44LI...... Revocation of ineligibility decision................................................. 114
Subdivision E—Review of decisions 116
44LJ...... Review of ineligibility decisions..................................................... 116
44LK..... Review of decision to revoke or not revoke an ineligibility decision 118
Subdivision F—Other matters 119
44LL..... Ineligibility decisions subject to alteration, cancellation etc........... 119
Division 2A—Effective access regimes 121
Subdivision A—Recommendation by Council 121
44M...... Recommendation for a Ministerial decision on effectiveness of access regime 121
44MA... Council may request information................................................... 122
Subdivision B—Decision by Commonwealth Minister 122
44N....... Ministerial decision on effectiveness of access regime................... 122
Subdivision C—Extensions of Commonwealth Minister’s decision 123
44NA.... Recommendation by Council.......................................................... 123
44NAA. Council may request information................................................... 124
44NB.... Decision by the Commonwealth Minister..................................... 125
Subdivision D—Procedural provisions 126
44NC.... Time limit for Council recommendations....................................... 126
44NE..... Council may invite public submissions.......................................... 128
44NF..... Publication—Council...................................................................... 130
44NG.... Publication—Commonwealth Minister.......................................... 130
Subdivision E—Review of decisions 131
44O....... Review of Ministerial decision on effectiveness of access regime.. 131
Subdivision F—State or Territory ceasing to be a party to Competition Principles Agreement 132
44P........ State or Territory ceasing to be a party to Competition Principles Agreement 132
Division 2B—Competitive tender processes for government owned facilities 134
44PA..... Approval of competitive tender process........................................ 134
44PAA.. Commission may request information............................................ 135
44PB..... Report on conduct of tender process............................................. 136
44PC..... Revocation of approval decision.................................................... 136
44PD..... Time limit for Commission decisions............................................. 138
44PE..... Commission may invite public submissions.................................. 139
44PF..... Commission must publish its decisions......................................... 141
44PG..... Review of Commission’s initial decision........................................ 141
44PH..... Review of decision to revoke an approval...................................... 143
Division 2C—Register of decisions and declarations 145
44Q....... Register of decisions, declarations and ineligibility decisions......... 145
Division 3—Access to declared services 146
Subdivision A—Scope of Division 146
44R....... Constitutional limits on operation of this Division........................ 146
Subdivision B—Notification of access disputes 146
44S........ Notification of access disputes....................................................... 146
44T....... Withdrawal of notifications............................................................ 146
Subdivision C—Arbitration of access disputes 147
44U....... Parties to the arbitration................................................................. 147
44V....... Determination by Commission....................................................... 147
44W...... Restrictions on access determinations............................................ 148
44X....... Matters that the Commission must take into account................... 150
44XA.... Time limit for Commission’s final determination........................... 151
44Y....... Commission may terminate arbitration in certain cases................. 153
44YA.... Commission must terminate arbitration if declaration varied or set aside by Tribunal 153
Subdivision D—Procedure in arbitrations 153
44Z....... Constitution of Commission for conduct of arbitration................. 153
44ZA.... Member of the Commission presiding at an arbitration................. 154
44ZB..... Reconstitution of Commission....................................................... 154
44ZC..... Determination of questions............................................................ 154
44ZD.... Hearing to be in private.................................................................. 155
44ZE..... Right to representation................................................................... 155
44ZF..... Procedure of Commission............................................................... 155
44ZG.... Particular powers of Commission.................................................. 156
44ZH.... Power to take evidence on oath or affirmation............................... 157
44ZI...... Failing to attend as a witness.......................................................... 157
44ZJ...... Failing to answer questions etc....................................................... 157
44ZK.... Intimidation etc............................................................................... 158
44ZL..... Party may request Commission to treat material as confidential... 158
44ZM... Sections 18 and 19 do not apply to the Commission in an arbitration 159
44ZN.... Parties to pay costs of an arbitration............................................. 159
44ZNA. Joint arbitration hearings................................................................ 159
Subdivision DA—Arbitration reports 161
44ZNB.. Arbitration reports......................................................................... 161
Subdivision E—Effect of determinations 162
44ZO.... Operation of final determinations................................................... 162
44ZOA. Effect and duration of interim determinations................................ 164
Subdivision F—Review of final determinations 164
44ZP..... Review by Tribunal........................................................................ 164
44ZQ.... Provisions that do not apply in relation to a Tribunal review....... 165
44ZR..... Appeals to Federal Court from determinations of the Tribunal..... 166
44ZS..... Operation and implementation of a determination that is subject to appeal 166
44ZT..... Transmission of documents............................................................ 167
Subdivision G—Variation and revocation of determinations 167
44ZU.... Variation of final determinations.................................................... 167
44ZUA. Variation and revocation of interim determinations........................ 168
Division 4—Registered contracts for access to declared services 169
44ZV..... Constitutional limits on operation of this Division........................ 169
44ZW.... Registration of contract.................................................................. 169
44ZX.... Review of decision not to register contract.................................... 170
44ZY..... Effect of registration of contract..................................................... 171
Division 5—Hindering access to declared services 172
44ZZ..... Prohibition on hindering access to declared services...................... 172
Division 6—Access undertakings and access codes for services 173
Subdivision A—Giving of access undertakings and access codes 173
44ZZA.. Access undertakings by providers.................................................. 173
44ZZAAAProposed amendments to access undertakings............................ 175
44ZZAABAccess undertakings containing fixed principles......................... 177
44ZZAAAccess codes prepared by industry bodies.................................... 179
44ZZAB....................... Commission may rely on industry body consultations 180
Subdivision B—Effect of access undertakings and access codes 181
44ZZBA........ When access undertakings and access codes come into operation 181
Subdivision C—Extensions of access undertakings and access codes 182
44ZZBB............................. Extensions of access undertakings and access codes 182
Subdivision D—Procedural provisions 184
44ZZBC................................................... Time limit for Commission decisions 184
44ZZBCACommission may request information......................................... 186
44ZZBD........................................ Commission may invite public submissions 186
44ZZBE Commission must publish its decisions......................................... 188
Subdivision E—Review of decisions 189
44ZZBF Review of decisions........................................................................ 189
Subdivision F—Register of access undertakings and access codes 191
44ZZC.. Register of access undertakings and access codes........................... 191
Division 6A—Pricing principles for access disputes and access undertakings or codes 192
44ZZCA Pricing principles for access disputes and access undertakings or codes 192
Division 6B—Overlap among determinations, registered contracts, access undertakings and Tribunal review 193
44ZZCB................................. Deferring access disputes or access undertakings 193
44ZZCBADeferral of arbitration if review is underway............................... 194
44ZZCC................... Overlap between determinations and access undertakings 196
44ZZCD............ Overlap between registered contracts and access undertakings 196
Division 7—Enforcement and remedies 197
44ZZD.. Enforcement of determinations....................................................... 197
44ZZE.. Enforcement of prohibition on hindering access............................. 197
44ZZF.. Consent injunctions........................................................................ 198
44ZZG.. Interim injunctions.......................................................................... 199
44ZZH.. Factors relevant to granting a restraining injunction....................... 199
44ZZI... Factors relevant to granting a mandatory injunction...................... 199
44ZZJ... Enforcement of access undertakings............................................... 199
44ZZK.. Discharge or variation of injunction or other order......................... 200
Division 8—Miscellaneous 201
44ZZL.. Register of determinations.............................................................. 201
44ZZM. Commonwealth consent to conferral of functions etc. on the Commission or Tribunal by State or Territory laws........................................................................................................ 201
44ZZMAHow duty is imposed.................................................................... 201
44ZZMBWhen a law of a State or Territory imposes a duty...................... 202
44ZZN.. Compensation for acquisition of property..................................... 203
44ZZNAOperation of Parts IV and VII not affected by this Part................ 203
44ZZO.. Conduct by directors, servants or agents....................................... 203
44ZZOAAAInformation to be given to Tribunal......................................... 205
44ZZOAATribunal only to consider particular material.............................. 207
44ZZOATime limit for Tribunal decisions................................................... 207
44ZZP.. Regulations about review by the Tribunal...................................... 210
44ZZQ.. Regulations about fees for inspection etc. of registers................... 211
44ZZR.. Procedure of the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law............................................................ 211
Part IV—Restrictive trade practices 213
Division 1—Cartel conduct 213
Subdivision A—Introduction 213
44ZZRA.................................................................................. Simplified outline 213
44ZZRB............................................................................................ Definitions 213
44ZZRC.................................................................... Extended meaning of party 215
44ZZRD.................................................................................. Cartel provisions 215
44ZZRE Meaning of expressions in other provisions of this Act................ 220
Subdivision B—Offences etc. 220
44ZZRF Making a contract etc. containing a cartel provision...................... 220
44ZZRG........................................................ Giving effect to a cartel provision 221
44ZZRH.................................................................................. Determining guilt 222
44ZZRI. Court may make related civil orders............................................... 222
Subdivision C—Civil penalty provisions 223
44ZZRJ Making a contract etc. containing a cartel provision...................... 223
44ZZRK........................................................ Giving effect to a cartel provision 223
Subdivision D—Exceptions 223
44ZZRL Conduct notified............................................................................. 223
44ZZRMCartel provision subject to grant of authorisation......................... 224
44ZZRN Contracts, arrangements or understandings between related bodies corporate 224
44ZZRO................................................................ Joint ventures—prosecution 225
44ZZRP Joint ventures—civil penalty proceedings..................................... 228
44ZZRQ.......................................................... Covenants affecting competition 230
44ZZRR...................................................................... Resale price maintenance 230
44ZZRS Exclusive dealing............................................................................. 230
44ZZRT......................................................... Dual listed company arrangement 231
44ZZRU............................................................. Acquisition of shares or assets 232
44ZZRV Collective acquisition of goods or services by the parties to a contract, arrangement or understanding 232
Division 2—Other provisions 234
45.......... Contracts, arrangements or understandings that restrict dealings or affect competition 234
45B....... Covenants affecting competition.................................................... 237
45C....... Covenants in relation to prices....................................................... 240
45D....... Secondary boycotts for the purpose of causing substantial loss or damage 242
45DA.... Secondary boycotts for the purpose of causing substantial lessening of competition 243
45DB.... Boycotts affecting trade or commerce............................................ 244
45DC.... Involvement and liability of employee organisations..................... 244
45DD.... Situations in which boycotts permitted......................................... 246
45E........ Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services........................................................................................................ 249
45EA..... Provisions contravening section 45E not to be given effect........... 253
45EB..... Sections 45D to 45EA do not affect operation of other provisions of Part 253
46.......... Misuse of market power................................................................ 253
46A....... Misuse of market power—corporation with substantial degree of power in trans‑Tasman market 257
46B....... No immunity from jurisdiction in relation to certain New Zealand laws 259
47.......... Exclusive dealing............................................................................. 259
48.......... Resale price maintenance................................................................ 265
49.......... Dual listed company arrangements that affect competition........... 265
50.......... Prohibition of acquisitions that would result in a substantial lessening of competition 267
50A....... Acquisitions that occur outside Australia...................................... 269
51.......... Exceptions...................................................................................... 271
51AAA. Concurrent operation of State and Territory laws......................... 276
Part IVB—Industry codes 277
Division 1—Preliminary 277
51ACA. Definitions...................................................................................... 277
Division 2—Contravention of industry codes 279
51AD.... Contravention of industry codes.................................................... 279
Division 3—Public warning notices 280
51ADA. Commission may issue a public warning notice............................. 280
Division 4—Orders to redress loss or damage suffered by non‑parties etc. 281
51ADB. Orders to redress loss or damage suffered by non‑parties etc........ 281
51ADC. Kinds of orders that may be made to redress loss or damage suffered by non‑parties etc. 283
Division 5—Investigation power 285
51ADD. Commission may require corporation to provide information....... 285
51ADE.. Extending periods for complying with notices............................... 285
51ADF.. Compliance with notices................................................................ 285
51ADG. False or misleading information etc................................................ 286
Division 6—Miscellaneous 287
51AE..... Regulations relating to industry codes............................................ 287
51AEA.. Concurrent operation of State and Territory laws......................... 287
Part VI—Enforcement and remedies 288
75B....... Interpretation [see Note 2]............................................................. 288
76.......... Pecuniary penalties......................................................................... 288
76A....... Defence to proceedings under section 76 relating to a contravention of section 95AZN 291
76B....... What happens if substantially the same conduct is a contravention of Part IV or section 95AZN and an offence?........................................................................................................ 292
76C....... Defence to proceedings relating to exclusionary provisions........... 293
77.......... Civil action for recovery of pecuniary penalties............................ 294
77A....... Indemnification of officers.............................................................. 294
77B....... Certain indemnities not authorised and certain documents void.... 295
77C....... Application of section 77A to a person other than a body corporate 295
78.......... Criminal proceedings not to be brought for contraventions of Part IV or V [see Note 2] 295
79.......... Offences against section 44ZZRF or 44ZZRG.............................. 296
79A....... Enforcement and recovery of certain fines..................................... 297
79B....... Preference must be given to compensation for victims.................. 299
80.......... Injunctions...................................................................................... 299
80AB.... Stay of injunctions.......................................................................... 302
80AC.... Injunctions to prevent mergers if clearance or authorisation granted on the basis of false or misleading information........................................................................................................ 303
81.......... Divestiture where merger contravenes section 50 or 50A.............. 304
81A....... Divestiture where merger done under clearance or authorisation granted on false etc. information 306
82.......... Actions for damages [see Note 2]................................................... 308
83.......... Finding in proceedings to be evidence [see Note 2]........................ 308
84.......... Conduct by directors, employees or agents................................... 309
85.......... Defences......................................................................................... 310
86.......... Jurisdiction of courts [see Note 2]................................................. 311
86AA.... Limit on jurisdiction of Federal Magistrates Court........................ 312
86A....... Transfer of matters......................................................................... 312
86C....... Non‑punitive orders....................................................................... 313
86D....... Punitive orders—adverse publicity................................................ 315
86E........ Order disqualifying a person from managing corporations............. 316
86F........ Privilege against exposure to penalty—disqualification from managing corporations 317
87.......... Other orders [see Note 2]............................................................... 318
87AA.... Special provision relating to Court’s exercise of powers under this Part in relation to boycott conduct 322
87B....... Enforcement of undertakings.......................................................... 323
87C....... Enforcement of undertakings—Secretary to the Department........ 323
87CA.... Intervention by Commission.......................................................... 324
Part VIA—Proportionate liability for misleading and deceptive conduct 325
87CB..... Application of Part......................................................................... 325
87CC..... Certain concurrent wrongdoers not to have benefit of apportionment 325
87CD.... Proportionate liability for apportionable claims............................ 326
87CE..... Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware 327
87CF..... Contribution not recoverable from defendant................................. 327
87CG.... Subsequent actions......................................................................... 328
87CH.... Joining non‑party concurrent wrongdoer in the action................... 328
87CI...... Application of Part......................................................................... 328
Part VIB—Claims for damages or compensation for death or personal injury 329
Division 1—Introduction 329
87D....... Definitions...................................................................................... 329
87E........ Proceedings to which this Part applies........................................... 330
Division 2—Limitation periods 332
87F........ Basic rule........................................................................................ 332
87G....... Date of discoverability................................................................... 333
87H....... Long‑stop period............................................................................ 334
87J........ The effect of minority or incapacity.............................................. 335
87K....... The effect of close relationships..................................................... 335
Division 3—Limits on personal injury damages for non‑economic loss 336
87L........ Limits on damages for non‑economic loss...................................... 336
87M...... Maximum amount of damages for non‑economic loss.................... 336
87N....... Index numbers................................................................................. 337
87P........ Most extreme cases........................................................................ 337
87Q....... Cases of 33% or more (but not 100%) of a most extreme case...... 337
87R....... Cases of 15% or more (but less than 33%) of a most extreme case 338
87S........ Cases of less than 15% of a most extreme case.............................. 339
87T....... Referring to earlier decisions on non‑economic loss....................... 339
Division 4—Limits on personal injury damages for loss of earning capacity 340
87U....... Personal injury damages for loss of earning capacity..................... 340
87V....... Average weekly earnings................................................................ 340
Division 5—Limits on personal injury damages for gratuitous attendant care services 342
87W...... Personal injury damages for gratuitous attendant care services for plaintiff 342
87X....... Personal injury damages for loss of plaintiff’s capacity to provide gratuitous attendant care services 343
Division 6—Other limits on personal injury damages 345
87Y....... Damages for future economic loss—discount rate......................... 345
87Z....... Damages for loss of superannuation entitlements.......................... 345
87ZA.... Interest on damages........................................................................ 346
87ZB..... Exemplary and aggravated damages................................................ 347
Division 7—Structured settlements 348
87ZC..... Court may make orders under section 87 for structured settlements 348
Part VII—Authorisations, notifications and clearances in respect of restrictive trade practices 349
Division 1—Authorisations (other than section 50 merger authorisations) 349
87ZP..... Definitions...................................................................................... 349
88.......... Power of Commission to grant authorisations............................... 349
89.......... Procedure for applications and the keeping of a register................ 356
90.......... Determination of applications for authorisations........................... 359
90A....... Commission to afford opportunity for conference before determining application for authorisation 364
90B....... Commission may rely on consultations undertaken by the AEMC 368
91.......... Grant and variation of authorisations............................................. 369
91A....... Minor variations of authorizations................................................. 371
91B....... Revocation of an authorization....................................................... 373
91C....... Revocation of an authorization and substitution of a replacement 374
Division 2—Notifications 377
Subdivision A—Exclusive dealing 377
93.......... Notification of exclusive dealing..................................................... 377
Subdivision B—Collective bargaining 382
93AA.... Definitions...................................................................................... 382
93AB.... Notification of collective bargaining............................................... 382
93AC.... Commission’s objection notice....................................................... 387
93AD.... When collective bargaining notice comes into force and ceases to be in force 388
93AE..... Withdrawal of collective bargaining notice..................................... 390
93AEA.. Only 1 collective bargaining notice under subsection 93AB(1A) may be given 391
93AF..... Only 1 collective bargaining notice under subsection 93AB(1) may be given 391
Subdivision C—Conferences 392
93A....... Commission to afford opportunity for conference before giving notice 392
Subdivision D—Register of notifications 394
95.......... Register of notifications.................................................................. 394
Division 3—Merger clearances and authorisations 398
Subdivision A—Preliminary 398
95AA.... Simplified outline of this Division.................................................. 398
95AB.... Definitions...................................................................................... 399
Subdivision B—Merger clearances 400
95AC.... Commission may grant clearance for a merger................................ 400
95AD.... Application for clearance................................................................ 400
95AE..... Requirements for valid clearance application................................. 400
95AF..... Commission to notify if clearance application is invalid................ 401
95AG.... Application to be published on the internet................................... 401
95AH.... Merger clearance register................................................................ 401
95AI...... Confidentiality claims etc............................................................... 402
95AJ..... Commission may seek additional information from applicant....... 403
95AK.... Commission may seek further information and consult others...... 403
95AL..... Applicant may withdraw application............................................ 404
95AM... Commission to make determination on application....................... 404
95AN.... When clearance must not be granted............................................... 405
95AO.... Time limits for determining application......................................... 405
95AP..... Clearance subject to conditions...................................................... 405
95AQ.... When clearance is in force............................................................... 406
95AR.... Minor variations of clearances........................................................ 407
95AS..... Revocation of clearance or revocation of clearance and substitution of a new clearance 410
Subdivision C—Merger authorisations 414
95AT.... Tribunal may grant authorisation for a merger............................... 414
95AU.... Application for authorisation......................................................... 415
95AV.... Requirements for valid authorisation application........................... 415
95AW... Tribunal to notify if authorisation application is invalid............... 415
95AX.... Tribunal to notify Commission of authorisation application......... 416
95AY.... Application to be published on the internet................................... 416
95AZ.... Merger authorisation register.......................................................... 416
95AZA. Confidentiality claims etc............................................................... 417
95AZC.. Tribunal may seek additional information from applicant............. 418
95AZD. Tribunal may seek further information and consult others etc....... 418
95AZE.. Applicant may withdraw application............................................ 419
95AZEATribunal must require Commission to give report.......................... 419
95AZF.. Commission to assist Tribunal....................................................... 419
95AZFACommission may make enquiries................................................... 420
95AZG. Tribunal to make determination on application.............................. 420
95AZH. When authorisation must not be granted........................................ 421
95AZI... Time limits for determining application......................................... 421
95AZJ... Authorisation subject to conditions............................................... 422
95AZK. When authorisation is in force........................................................ 422
95AZL.. Minor variations of authorisations................................................. 422
95AZM Revocation of authorisation or revocation of authorisation and substitution of a new authorisation 426
Subdivision D—Miscellaneous 431
95AZN. Providing false or misleading information....................................... 431
Part VIIA—Prices surveillance 432
Division 1—Preliminary 432
95A....... Interpretation.................................................................................. 432
95B....... Exempt supplies............................................................................. 435
95C....... Application of Part......................................................................... 436
95D....... Crown to be bound......................................................................... 437
95E........ Object of this Part.......................................................................... 437
95F........ Simplified overview of this Part..................................................... 437
Division 2—Commission’s functions under this Part 439
95G....... Commission’s functions under this Part........................................ 439
Division 3—Price inquiries 441
Subdivision A—Holding of inquiries 441
95H....... Price inquiries................................................................................. 441
95J........ Content of inquiry notices.............................................................. 442
95K....... Period for completing inquiry......................................................... 443
95L........ Notice of holding of inquiry........................................................... 443
95M...... Notice of extension of period for completing inquiry.................... 444
95N....... Price restrictions............................................................................. 444
Subdivision B—Reports on inquiries 447
95P........ Copies of report to be made available............................................ 447
95Q....... Notification of proposed prices after receipt of report.................. 447
Subdivision C—Procedure at inquiries 448
95R....... Public inquiries etc.......................................................................... 448
95S........ Taking of evidence on oath or affirmation...................................... 449
95T....... Failure of witness to attend............................................................ 450
95U....... Refusal to be sworn or to answer question.................................... 450
95V....... Protection of witnesses.................................................................. 451
95W...... Allowances to witnesses................................................................ 451
Division 4—Price notifications 452
95X....... Declarations by Minister or Commission...................................... 452
95Y....... Declarations in relation to State or Territory authorities............... 452
95Z....... Price restrictions............................................................................. 454
95ZA.... Later notices modifying a locality notice........................................ 456
95ZB..... Applicable period in relation to a locality notice........................... 457
95ZC..... Register of price notifications......................................................... 458
95ZD.... Delegation by Commission............................................................. 459
Division 5—Price monitoring 460
95ZE..... Directions to monitor prices, costs and profits of an industry...... 460
95ZF..... Directions to monitor prices, costs and profits of a business........ 460
95ZG.... Exceptions to price monitoring....................................................... 461
Division 6—Other provisions 462
95ZH.... Ministerial directions...................................................................... 462
95ZI...... Inquiries by an unincorporated body or a group of 2 or more individuals 462
95ZJ...... Withdrawal of notices..................................................................... 463
95ZK.... Power to obtain information or documents.................................... 463
95ZL..... Inspection of documents etc........................................................... 466
95ZM... Retention of documents.................................................................. 466
95ZN.... Confidential information................................................................. 467
95ZO.... Immunity........................................................................................ 468
95ZP..... Secrecy: members or staff members of the Commission etc.......... 468
95ZQ.... Secrecy: persons involved in inquiries by bodies other than the Commission 470
Part VIII—Resale price maintenance 472
96.......... Acts constituting engaging in resale price maintenance.................. 472
96A....... Resale price maintenance in relation to services............................. 474
97.......... Recommended prices...................................................................... 474
98.......... Withholding the supply of goods................................................... 475
99.......... Statements as to the minimum price of goods................................ 476
100........ Evidentiary provisions................................................................... 476
Part IX—Review by Tribunal of Determinations of Commission 478
Division 1—Applications for review (other than for merger clearances) 478
101........ Applications for review.................................................................. 478
101A..... Application for review of notice under subsection 93(3) or (3A) or 93AC(1) or (2) 479
102........ Functions and powers of Tribunal................................................. 479
Division 2—Procedure and Evidence 484
102A..... Definition........................................................................................ 484
103........ Procedure generally......................................................................... 484
104........ Regulations as to certain matters.................................................... 484
105........ Power to take evidence on oath...................................................... 485
106........ Hearings to be in public except in special circumstances............... 485
107........ Evidence in form of written statement........................................... 486
108........ Taking of evidence by single member............................................. 486
109........ Participants in proceedings before Tribunal................................... 486
110........ Representation................................................................................ 486
Division 3—Review of Commission’s determinations on merger clearances 488
111........ Applications for review.................................................................. 488
112........ Tribunal to notify Commission...................................................... 489
113........ Commission to give material to Tribunal........................................ 489
114........ Tribunal may consult etc. to clarify information............................ 489
115........ Commission to assist Tribunal....................................................... 490
116........ Tribunal only to consider material before the Commission............ 490
117........ Tribunal to make decision on review.............................................. 490
118........ Time limits for making review decision.......................................... 490
119........ Tribunal’s decision taken to be Commission’s............................... 491
An Act relating to competition, fair trading and consumer protection, and for other purposes
Part I—Preliminary
1 Short title [see Note 1]
This Act may be cited as the Competition and Consumer Act 2010.
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.
Australian Consumer Law means Schedule 2 as applied under Subdivision A of Division 2 of Part XI.
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.
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.
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).
foreign corporation means a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that is incorporated in an external Territory.
fully‑participating jurisdiction means a State or Territory that:
(a) is a participating jurisdiction as defined in section 150A; and
(b) is not named in a notice in operation under section 150K.
give effect to, in relation to a provision of a contract, arrangement or understanding, includes do an act or thing in pursuance of or in accordance with or enforce or purport to enforce.
goods includes:
(a) ships, aircraft and other vehicles;
(b) animals, including fish;
(c) minerals, trees and crops, whether on, under or attached to land or not; and
(d) gas and electricity.
member of the Commission includes the Chairperson and a person appointed to act as a member of the Commission but does not include an associate member of the Commission.
member of the Tribunal includes the President and a person appointed to act as a member of the Tribunal.
New Zealand Commerce Commission means the Commission established by section 8 of the Commerce Act 1986 of New Zealand.
New Zealand Crown corporation means a body corporate that is an instrument of the Crown in respect of the Government of New Zealand.
organisation of employees means an organisation that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment.
personal injury 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.
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.
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.
Telstra has the same meaning as in the Telstra Corporation Act 1991.
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.
this Act includes Schedule 2 to the extent that it is applied under Subdivision A of Division 2 of Part XI.
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.
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 Definitions etc. that do not apply in Part XI or Schedule 2
Despite any other provision of this Act, sections 4 to 4K do not affect the meaning of any expression used in Part XI or Schedule 2, unless a contrary intention appears.
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 51ADB or 87, 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 this Act to conduct outside Australia
(1) Each of the following provisions:
(a) Part IV;
(b) Part XI;
(c) the Australian Consumer Law (other than Part 5‑3);
(f) the remaining provisions of this Act (to the extent to which they relate to any of the provisions covered by paragraph (a), (b) or (c));
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, or under section 236 of the Australian Consumer Law, 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), or under subsection 237(1) or 238(1) of the Australian Consumer Law, 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 this Act to persons who are not corporations [see Note 2]
(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, or section 33 or 155 of the Australian Consumer Law, to trade or commerce were, by express provision, confined to trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(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) the following provisions:
(i) sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45, 45B, 45D to 45EB (other than section 45DB), 46 and 46A;
(ii) Part VIII;
(iii) sections 31 and 43, Division 3 of Part 3‑1, and sections 50, 153, 163, 164 and 168, of the Australian Consumer Law;
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:
(iv) trade or commerce between Australia and places outside Australia; or
(v) trade or commerce among the States; or
(vi) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or
(vii) the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; and
(c) any reference in Division 1 of Part 3‑2 of the Australian Consumer Law to a contract for the supply of goods or services and any reference in Part 3‑5 or 5‑4 of the Australian Consumer Law to the supply of goods or services, were, by express provision, confined to a contract made, or the supply of goods or services, as the case may be:
(i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or
(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
(ca) any reference in Part 2‑3 of the Australian Consumer Law to a contract were, by express provision, confined to a contract made:
(i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or
(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 or in section 229 of the Australian Consumer Law, 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 33 and 155 of the Australian Consumer Law) 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 the provisions of Part XI to a corporation included a reference to a person not being a corporation.
(3A) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by subsection (2), the provisions of Part 2‑3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if:
(a) those provisions were, by express provision, confined in their operation to contracts for or relating to:
(i) the use of postal, telegraphic or telephonic services; or
(ii) radio or television broadcasts; and
(b) a reference in the provisions of Part XI 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 Parts 2‑2, 3‑1 (other than sections 30 and 33), Part 4‑1 (other than sections 152, 155 and 164) and 5‑3 of the Australian Consumer Law 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 sections 279, 282 and 283 of the Australian Consumer Law in relation to a supplier who is a natural person, those sections have effect as if there were substituted for paragraphs 279(3)(a), 282(2)(a) and 283(5)(a) of the Australian Consumer Law the following paragraph:
“(a) the supplier has 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.
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 or XIC, Division 7 of Part XIB, or section 44ZZRF or 44ZZRG.
Part II—The 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.
(3) Any real or personal property held by the Commission is held for and on behalf of the Commonwealth.
(4) Any money received by the Commission is received for and on behalf of the Commonwealth.
(5) To avoid doubt, a right to sue is taken not to be personal property for the purposes of subsection (3).
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 of certain functions and powers
(1) The Commission may, by resolution, delegate:
(a) any of its functions and powers under or in relation to Parts VI and XI and the Australian Consumer Law; and
(b) any of its powers under Part XII that relate to those Parts or the Australian Consumer Law;
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.