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Competition and Consumer Act 2010

Authoritative Version
  • - C2015C00327
  • In force - Superseded Version
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Act No. 51 of 1974 as amended, taking into account amendments up to Telecommunications Legislation Amendment (Deregulation) Act 2015
An Act relating to competition, fair trading and consumer protection, and for other purposes
Administered by: Attorney-General's; Treasury; Infrastructure and Regional Development; Industry, Innovation and Science; Communications and the Arts
Registered 14 Jul 2015
Start Date 01 Jul 2015
End Date 24 Feb 2016
Table of contents.

Competition and Consumer Act 2010

No. 51, 1974

Compilation No. 100

Compilation date:                              1 July 2015

Includes amendments up to:            Act No. 38, 2015

Registered:                                         14 July 2015

This compilation is in 3 volumes

Volume 1:       sections 1–119

Volume 2:       sections 10.01–179

Volume 3:       Schedules

                        Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the Competition and Consumer Act 2010 that shows the text of the law as amended and in force on 1 July 2015 (the compilation date).

This compilation was prepared on 8 July 2015.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part X—International liner cargo shipping                                                           1

Division 1—Preliminary                                                                                              1

10.01..................... Objects of Part.................................................................... 1

10.01A.................. Simplified outline................................................................ 2

10.02..................... Interpretation....................................................................... 3

10.02A.................. Inland terminals................................................................ 11

10.03..................... Designated shipper bodies................................................ 12

Division 2—Additional restrictive trade practice provisions applying to ocean carriers           15

10.04..................... Application of section 46 in relation to conference agreements                15

Division 3—Minimum standards for conference agreements               16

10.06..................... Application of Australian law to outwards conference agreements and withdrawal from agreements     16

10.07..................... Minimum levels of shipping services to be specified in conference agreements      16

10.08..................... Conference agreements may include only certain restrictive trade practice provisions             16

10.09..................... Where may consequences of conference agreements not complying with minimum standards be found?.......................................................................................... 18

Division 4—Registers and files and public inspection of them              19

10.10..................... Registers and conference agreement files open to public inspection         19

10.11..................... What registers are to be kept by the Registrar?................. 19

10.12..................... What conference agreement files are to be kept by the Registrar?            19

10.13..................... What register is to be kept by the Commission?............... 20

Division 5—Exemptions from certain restrictive trade practice prohibitions   21

Subdivision A—Exemptions relating to conference agreements                 21

10.14..................... Exemptions apply only to certain activities....................... 21

10.15..................... When do exemptions commence to apply in relation to registered conference agreements?     21

10.16..................... Exemptions do not apply to variations of conference agreement unless varying agreement registered     22

10.17..................... Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45              22

10.17A.................. Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements    23

10.18..................... Exemption from section 47............................................... 24

10.18A.................. Exemptions from section 47 for freight rate agreements... 25

Subdivision B—Exemptions relating to loyalty agreements                        26

10.19..................... Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45              26

10.20..................... Exemption from section 47............................................... 26

10.21..................... Exemptions cease to apply in relation to a shipper at the shipper’s option               26

Subdivision D—Other exemptions                                                                       27

10.24..................... Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations.......................................................................................... 27

10.24A.................. Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to stevedoring contracts............................................................................ 27

Division 6—Registration of conference agreements                                  29

Subdivision A—Provisional registration                                                           29

10.25..................... Application for provisional registration of conference agreement            29

10.26..................... How application is to be made and verified...................... 29

10.27..................... Copy of agreement to be filed with application etc............ 29

10.27A.................. Copy of conference agreement to be given to designated peak shipper body           30

10.28..................... Decision on application for provisional registration.......... 31

10.29..................... Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement..................................................................... 33

Subdivision B—Final registration                                                                       35

10.30..................... Application for final registration of conference agreement 35

10.31..................... How application is to be made and verified...................... 35

10.32..................... Copy of agreement to be filed with application etc............ 35

10.33..................... Decision on application for final registration.................... 36

Subdivision C—Confidentiality requests                                                           38

10.34..................... Request for confidentiality................................................ 38

10.35..................... Abstract to accompany request for confidentiality............ 38

10.36..................... Examination of abstract..................................................... 38

10.37..................... Decision on request for confidentiality............................. 39

10.38..................... Application for registration to be returned where request for confidentiality refused etc.         40

Subdivision D—Miscellaneous                                                                              40

10.39..................... Application also to be made for registration of varying conference agreements       40

10.40..................... Notification of happening of affecting events prior to final registration etc.             41

Division 7—Obligations of ocean carriers in relation to registered conference agreements    43

10.41..................... Parties to registered conference agreement to negotiate with certain designated shipper bodies etc.         43

10.42..................... Application to be made for registration of varying conference agreements              45

10.43..................... Parties to registered conference agreement to notify happening of affecting events etc.           45

Division 8—Powers of Minister in relation to registered conference agreements           47

10.44..................... Powers exercisable by Minister in relation to registered conference agreements etc.               47

10.45..................... Circumstances in which Minister may exercise powers in relation to registered conference agreements 48

10.46..................... Action to be taken where powers exercised by Minister without first obtaining Commission report       52

10.47..................... Investigation and report by Commission on reference by Minister          53

10.48..................... Investigation and report by Commission on own initiative or on application by affected person             53

10.49..................... Undertakings by parties to registered conference agreement 55

10.49A.................. Enforcement of undertakings............................................ 55

Division 9—Obligations of non‑conference ocean carriers with substantial market power      57

10.50..................... Investigations by Commission into market power of ocean carriers        57

10.51..................... Determination by Minister of market power of ocean carriers 57

10.52..................... Non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.......................................................................... 58

10.53..................... Non‑conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc..................................................................................... 60

Division 10—Powers of Minister in relation to non‑conference ocean carriers with substantial market power                                                                                                        61

10.54..................... Powers exercisable by Minister in relation to obligations of non‑conference ocean carriers with substantial market power.................................................................... 61

10.55..................... Circumstances in which Minister may exercise powers.... 61

10.56..................... Action to be taken where powers exercised by Minister without first obtaining Commission report       62

10.57..................... Investigation and report by Commission on reference by Minister          63

10.58..................... Investigation and report by Commission on application by affected person             63

10.59..................... Undertakings by ocean carrier.......................................... 64

10.60..................... Enforcement of orders and undertakings.......................... 65

Division 11—Unfair pricing practices                                                               66

10.61..................... Powers exercisable by Minister in relation to pricing practices etc.          66

10.62..................... Circumstances in which Minister may exercise powers.... 66

10.63..................... Investigation and report by Commission.......................... 67

10.64..................... Undertakings not to engage in pricing practices................ 67

10.65..................... Enforcement of orders and undertakings.......................... 68

10.66..................... Determination of normal freight rates for shipping services 68

10.67..................... Determination of whether practice contrary to national interest                69

Division 12—Registration of ocean carrier agents                                    71

10.68..................... Ocean carrier who provides international liner cargo shipping services to have registered agent             71

10.69..................... Representation of ocean carrier by registered agent.......... 71

10.70..................... Application by ocean carrier for registration of agent....... 72

10.71..................... Registration of agent......................................................... 72

10.72..................... Change of agent etc........................................................... 73

Division 12A—Exemption orders for inwards conference agreements etc.        74

10.72A.................. Exemption orders for inwards conference agreements etc. 74

10.72B................... Criteria for making exemption order................................. 75

10.72C................... Duration of exemption order may be limited..................... 75

10.72D.................. Conditions of exemption order......................................... 75

Division 13—General provisions relating to registers and conference agreement files               76

10.73..................... Form of registers and conference agreement files............. 76

10.74..................... Deletion of entries wrongly existing in certain registers... 76

10.75..................... Deletion of obsolete entries in certain registers................. 76

10.76..................... Correction of clerical errors and other mistakes in certain registers etc.   76

Division 14—Administration                                                                                  77

10.77..................... Registrar of Liner Shipping.............................................. 77

10.78..................... Appointment of Registrar etc............................................ 77

10.79..................... Acting Registrar................................................................ 77

10.80..................... Registrar and staff to be public servants........................... 77

10.81..................... Delegation by Minister..................................................... 77

10.82..................... Delegation by Registrar.................................................... 78

Division 14A—Review of decisions of Commission                                    79

10.82A.................. Review by Tribunal.......................................................... 79

10.82B................... Functions and powers of Tribunal.................................... 79

10.82C................... Provisions that do not apply in relation to a Tribunal review 80

Division 14B—Review of decisions of Minister                                            81

10.82D.................. Review by Tribunal.......................................................... 81

10.82E................... Functions and powers of Tribunal.................................... 82

10.82F................... Modifying register after Tribunal review.......................... 82

10.82G.................. Provisions that do not apply in relation to a Tribunal review 83

Division 15—Miscellaneous                                                                                     84

10.83..................... Act not to affect rights under Freedom of Information Act 84

10.84..................... Review of decisions of Registrar...................................... 84

10.85..................... Statement to accompany notices of Registrar.................... 84

10.86..................... Evidence........................................................................... 85

10.87..................... Notification by Commission of references etc.................. 85

10.88..................... Exclusion of documents etc. from register of Commission investigations               86

10.89..................... Disclosure of confidential information.............................. 87

10.90..................... Fees.................................................................................. 89

10.91..................... Application of Part XID and section 155 to investigations under Part     89

Part XI—Application of the Australian Consumer Law as a law of the Commonwealth            90

Division 1—Preliminary                                                                                            90

130........................ Definitions........................................................................ 90

130A..................... Expressions defined in Schedule 2................................... 92

Division 2—Application of the Australian Consumer Law as a law of the Commonwealth      93

Subdivision A—Application of the Australian Consumer Law                    93

131........................ Application of the Australian Consumer Law in relation to corporations etc.          93

131A..................... Division does not apply to financial services.................... 94

131B...................... Division does not apply to interim bans imposed by State or Territory Ministers    94

131C...................... Saving of other laws and remedies................................... 95

Subdivision B—Effect of other Commonwealth laws on the Australian Consumer Law            95

131D..................... Effect of Part VIB on Chapter 5 of the Australian Consumer Law          95

131E...................... Application of the Legislative Instruments Act 2003........ 96

131F...................... Section 4AB of the Crimes Act does not apply................ 97

131G..................... Application of the Criminal Code..................................... 97

Division 3—Conferences for proposed bans and recall notices           98

Subdivision A—Conference requirements before a ban or compulsory recall              98

132........................ Commonwealth Minister must issue a proposed ban notice 98

132A..................... Commonwealth Minister must issue a proposed recall notice  99

132B...................... Commonwealth Minister to be notified if no person wishes a conference to be held               100

132C...................... Notification of conference............................................... 100

132D..................... Recommendation after conclusion of conference............ 100

Subdivision B—Conference requirements after an interim ban is imposed 102

132E...................... Opportunity for a conference after an interim ban has been imposed by the Commonwealth Minister    102

132F...................... Notification of conference............................................... 102

132G..................... Recommendation after conclusion of conference............ 103

Subdivision C—Conduct of conferences                                                          103

132H..................... Conduct of conferences.................................................. 103

Subdivision D—Miscellaneous                                                                            105

132J....................... Interim ban and recall notice without delay in case of danger to the public              105

132K...................... Copy of notices under this Division to be given to suppliers 105

Division 4—Enforcement                                                                                        107

Subdivision A—Inspectors                                                                                   107

133........................ Appointment of inspectors.............................................. 107

133A..................... Identity cards.................................................................. 107

Subdivision B—Premises to which the public is given access                     108

133B...................... Power to enter premises to which the public has access—consumer goods             108

133C...................... Power to enter premises to which the public has access—product related services  109

Subdivision C—Disclosure notices relating to the safety of goods or services               110

133D..................... Power to obtain information etc...................................... 110

133E...................... Self‑incrimination........................................................... 111

133F...................... Compliance with disclosure notices................................ 112

133G..................... False or misleading information etc................................ 112

Subdivision D—Court orders relating to the destruction etc. of goods    113

133H..................... Court orders relating to consumer goods that do not comply with a safety standard etc.         113

133J....................... Recovery of reasonable costs of seizing, and destroying or disposing of, consumer goods    114

Division 5—Infringement notices                                                                       115

134........................ Purpose and effect of this Division................................. 115

134A..................... Issuing an infringement notice........................................ 115

134B...................... Matters to be included in an infringement notice............. 116

134C...................... Amount of penalty.......................................................... 117

134D..................... Effect of compliance with an infringement notice........... 121

134E...................... Effect of failure to comply with an infringement notice.. 122

134F...................... Infringement notice compliance period for infringement notice                122

134G..................... Withdrawal of an infringement notice............................. 123

Division 6—Search, seizure and entry                                                            125

Subdivision A—Powers of inspectors                                                                125

135........................ Inspector may enter premises.......................................... 125

135A..................... Search‑related powers of inspectors............................... 126

135B...................... Inspector may ask questions and seek production of documents             128

135C...................... Failure to answer questions or produce documents........ 128

135D..................... Persons assisting inspectors........................................... 129

135E...................... Use of force in executing a search warrant..................... 130

135F...................... Announcement before entry under warrant..................... 130

135G..................... Inspector must be in possession of search warrant......... 131

Subdivision B—Obligations of inspectors                                                       131

135H..................... Consent........................................................................... 131

135J....................... Details of search warrant etc. must be given to the occupier of the premises           131

Subdivision C—Occupier’s etc. rights and responsibilities                         132

135K...................... Occupier etc. entitled to observe execution of search warrant  132

135L...................... Occupier etc. to provide inspector etc. with facilities and assistance        132

135M..................... Receipts for seized consumer goods and equipment....... 133

135N..................... Return of seized consumer goods and equipment........... 133

135P...................... Judge may permit consumer goods or equipment to be retained              134

Subdivision D—Provisions relating to seizure                                               135

135Q..................... Recovery of reasonable costs of seizing consumer goods or equipment  135

135R...................... Destruction or disposal of seized consumer goods or equipment             135

Subdivision E—Embargo notices                                                                      136

135S...................... Embargo notices............................................................. 136

135T...................... Embargo period for embargo notices.............................. 138

135U..................... Multiple embargo notices for the same consumer goods or product related services               139

135V..................... Power of inspectors to secure consumer goods.............. 139

135W..................... Power of inspectors to secure equipment used to supply product related services   139

135X..................... Consent to supply etc. embargoed consumer goods etc.. 140

135Y..................... Compliance with embargo notices.................................. 140

Subdivision F—Issue of search warrants                                                         141

135Z...................... Issue of search warrants................................................. 141

136........................ Search warrants by telephone, fax etc............................. 142

136A..................... Offence relating to warrants by telephone, fax etc.......... 144

Subdivision G—Miscellaneous                                                                           145

136B...................... Powers of judges............................................................ 145

Division 7—Remedies                                                                                               146

137........................ Limit on occupational liability......................................... 146

137A..................... Contributory acts or omissions to reduce compensation in defective goods actions 147

137B...................... Reduction of the amount of loss or damage if the claimant fails to take reasonable care          148

137C...................... Limits on recovery of amounts for death or personal injury 148

137D..................... Compensation orders etc. arising out of unfair contract terms  149

137E...................... Limits on compensation orders etc. for death or personal injury              150

137F...................... Court may make orders for the purpose of preserving money or other property held by a person           151

137G..................... Compliance with orders made under section 137F......... 154

137H..................... Finding in proceedings to be evidence............................ 154

Division 8—Jurisdictional matters                                                                    156

138........................ Conferring jurisdiction on the Federal Court.................. 156

138A..................... Conferring jurisdiction on the Federal Circuit Court....... 156

138B...................... Conferring jurisdiction on State and Territory Courts..... 157

138C...................... Transfer of matters by the Federal Court........................ 157

138D..................... Transfer of matters by a State or Territory court............. 158

138E...................... Transfer of proceedings to Family Court........................ 159

Division 9—Miscellaneous                                                                                     162

139........................ Intervention by the Commission..................................... 162

139A..................... Terms excluding consumer guarantees from supplies of recreational services         162

139B...................... Conduct of directors, employees or agents of bodies corporate               163

139C...................... Conduct of employees or agents of persons other than bodies corporate 164

139D..................... Enforcement and recovery of certain fines...................... 165

139DA.................. Application of section 229 of the Australian Consumer Law to a person other than a body corporate    166

139E...................... Cessation of enforcement orders etc............................... 167

139F...................... Compensation for acquisition of property....................... 168

139G..................... Regulations..................................................................... 168

Part XIAA—Application of the Australian Consumer Law as a law of a State or Territory    170

140........................ Definitions...................................................................... 170

140A..................... Object of this Part........................................................... 171

140B...................... The applied Australian Consumer Law........................... 172

140C...................... Federal Court may exercise jurisdiction under application laws of Territories         172

140D..................... Exercise of jurisdiction under cross‑vesting provisions.. 172

140E...................... Commonwealth consent to conferral of functions etc. on Commonwealth entities   172

140F...................... How duty is imposed...................................................... 173

140G..................... When an application law imposes a duty........................ 174

140H..................... Application laws may operate concurrently with this Act 174

140J....................... No doubling‑up of liabilities........................................... 174

140K...................... References in instruments to the Australian Consumer Law 175

Part XIA—The Competition Code                                                                         176

150A..................... Definitions...................................................................... 176

150B...................... Objects of this Part......................................................... 177

150C...................... The Competition Code.................................................... 177

150D..................... Federal Court may exercise jurisdiction under application laws of Territories         178

150E...................... Exercise of jurisdiction under cross‑vesting provisions.. 178

150F...................... Commonwealth consent to conferral of functions etc. on Commonwealth entities   178

150FA................... How duty is imposed...................................................... 179

150FB................... When an application law imposes a duty........................ 180

150G..................... Application laws may operate concurrently with this Act 180

150H..................... No doubling‑up of liabilities........................................... 180

150I....................... References in instruments to the Competition Code........ 181

150J....................... Authorisations etc. under this Act may relate also to Competition Code  181

150K...................... Gazettal of jurisdictions that excessively modify the Code 181

Part XIB—The Telecommunications Industry: Anti‑competitive conduct and record‑keeping rules  182

Division 1—Introduction                                                                                        182

151AA.................. Simplified outline............................................................ 182

151AB................... Definitions...................................................................... 183

151AC................... Extension to external Territories..................................... 185

151AD.................. Continuity of partnerships.............................................. 185

151AE................... Additional operation of Part............................................ 185

151AF................... Telecommunications market............................................ 186

151AG.................. When a body corporate is related to a partnership........... 186

151AH.................. Degree of power in a telecommunications market........... 187

151AI.................... Interpretation of Part IV or VII not affected by this Part 189

Division 2—Anti‑competitive conduct                                                             190

151AJ.................... Anti‑competitive conduct................................................ 190

151AK................... The competition rule....................................................... 193

Division 3—Competition notices and exemption orders                        194

Subdivision A—Competition notices                                                                 194

151AKA................ Part A competition notices.............................................. 194

151AL................... Part B competition notices.............................................. 195

151AM.................. Competition notice to be given to carrier or carriage service provider      196

151AN.................. Evidentiary effect of competition notice.......................... 196

151AO.................. Duration of Part A competition notice............................ 196

151AOA............... Variation of competition notice....................................... 197

151AOB................ Revocation of competition notice.................................... 197

151AP................... Guidelines....................................................................... 197

151AQ.................. Commission to act expeditiously.................................... 198

151AQA............... Stay of proceedings relating to competition notices........ 198

151AQB................ Advisory notices............................................................. 199

151AR................... Register of competition notices....................................... 200

Subdivision B—Exemption orders                                                                    201

151AS................... Exemption orders............................................................ 201

151AT................... Form of application......................................................... 201

151AU.................. Further information......................................................... 202

151AV.................. Withdrawal of application............................................... 202

151AW.................. Commission must publicise receipt of applications......... 202

151AX.................. Commission may refuse to consider application if it relates to the same conduct as an authorisation application........................................................................................ 202

151AY.................. Commission may refuse to consider application if it relates to the same conduct as a Part VII notification........................................................................................ 203

151AZ................... Commission may convene conference to discuss application.. 204

151BA................... Commission must grant or reject application.................. 204

151BB................... Commission to give opportunity for submissions.......... 204

151BC................... Criteria for making exemption order............................... 204

151BD................... Notification of decision................................................... 206

151BE................... Duration of exemption order may be limited................... 206

151BF................... Conditions of exemption order....................................... 206

151BG................... Revocation of exemption order....................................... 207

151BH................... Register of exemption orders.......................................... 207

Subdivision C—Miscellaneous                                                                            209

151BJ.................... Conduct includes proposed conduct............................... 209

Division 4—Tariff filing                                                                                          210

151BK................... Tariff filing directions..................................................... 210

151BL................... Specification of goods and services................................ 212

151BM.................. Notification of reasons.................................................... 212

151BN................... Duration of direction may be limited............................... 213

151BO................... Revocation of direction................................................... 213

151BP................... Variation of direction...................................................... 213

151BQ................... Public access to tariff information................................... 214

151BR................... Register of tariff filing directions.................................... 214

151BT................... Meaning of terms and conditions................................... 215

Division 5—Tariff filing by Telstra                                                                   217

151BTA................ Tariff filing by Telstra..................................................... 217

Division 6—Record‑keeping rules and disclosure directions              219

151BU................... Commission may make record‑keeping rules................. 219

151BUAA............. Minister may give directions to Commission.................. 220

151BUAB............. Request for disclosure.................................................... 222

151BUA................ Commission gives access to reports............................... 222

151BUB................ Carrier or carriage service provider gives access to reports 225

151BUC................ Carrier or carriage service provider gives access to periodic reports        228

151BUD................ Exemption of reports from access requirements............. 232

151BUDA............. Commission gives access to Ministerially‑directed reports 233

151BUDB............. Carrier or carriage service provider gives access to Ministerially‑directed reports   235

151BUDC............. Carrier or carriage service provider gives access to Ministerially‑directed periodic reports     237

151BUE................ Access via the internet.................................................... 240

151BUF................ Self‑incrimination........................................................... 240

151BV................... Incorrect records............................................................. 240

Division 7—Enforcement of the competition rule, tariff filing directions, record‑keeping rules and disclosure directions                                                                        242

151BW.................. Person involved in a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction......................................................... 242

151BX................... Pecuniary penalties for breach of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction......................................................... 242

151BY................... Civil action for recovery of pecuniary penalties.............. 244

151BZ................... Criminal proceedings not to be brought for contraventions of the competition rule, tariff filing directions, record‑keeping rules or disclosure directions.................. 245

151CA................... Injunctions...................................................................... 246

151CB................... Orders to disclose information or publish an advertisement—breach of the competition rule  248

151CC................... Actions for damages—breach of the competition rule.... 248

151CD................... Finding of fact in proceedings to be evidence................. 249

151CE................... Other orders—compensation for breach of the competition rule              249

151CF................... Conduct by directors, employees or agents..................... 251

Division 8—Disclosure of documents by Commission                             252

151CG................... Disclosure of documents by Commission...................... 252

Division 9—Treatment of partnerships                                                          254

151CH................... Treatment of partnerships............................................... 254

Division 10—Review of decisions                                                                       255

151CI.................... Review by Tribunal........................................................ 255

151CJ.................... Functions and powers of Tribunal.................................. 256

151CK................... Provisions that do not apply in relation to a Tribunal review 257

Division 11—Reviews of competitive safeguards within the telecommunications industry        258

151CL................... Reviews of competitive safeguards within the telecommunications industry           258

Division 12—Monitoring of telecommunications charges paid by consumers   259

151CM.................. Monitoring of telecommunications charges paid by consumers               259

Division 12A—Reports about competition in the telecommunications industry               260

151CMA............... Public reports about competition in the telecommunications industry      260

151CMB............... Confidential reports about competition in the telecommunications industry             261

151CMC............... Examples of matters that may be specified in a determination under section 151CMA or 151CMB       261

Division 15—Voluntary undertakings given by Telstra                        263

151CQ................... Voluntary undertakings given by Telstra........................ 263

Division 16—NBN corporations                                                                         264

151DA.................. Authorised conduct—subsection 51(1).......................... 264

151DB................... Listed points of interconnection...................................... 269

Part XIC—Telecommunications access regime                                               270

Division 1—Introduction                                                                                        270

152AA.................. Simplified outline............................................................ 270

152AB................... Object of this Part........................................................... 272

152AC................... Definitions...................................................................... 274

152AD.................. This Part binds the Crown.............................................. 278

152AE................... Extension to external Territories..................................... 278

152AF................... Access............................................................................ 278

152AG.................. Access seeker................................................................. 279

152AGA............... Designated superfast telecommunications network......... 279

152AH.................. Reasonableness—terms and conditions.......................... 283

152AI.................... When public inquiry commences.................................... 283

152AJ.................... Interpretation of Part IIIA not affected by this Part......... 284

152AK................... Operation of Parts IV and VII not affected by this Part.. 284

Division 2—Declared services                                                                             285

152AL................... Declared services............................................................ 285

152ALA................ Duration of declaration................................................... 291

152AM.................. Inquiries about proposals to declare services.................. 294

152AN.................. Combined inquiries about proposals to declare services. 294

152AO.................. Variation or revocation of declaration............................. 295

152AQ.................. Register of declared services........................................... 295

152AQC................ Compensation for acquisition of property....................... 296

Division 3—Standard access obligations                                                        297

Subdivision A—Category A standard access obligations                            297

152AR................... Category A standard access obligations.......................... 297

152ARA................ Layer 2 bitstream services to be supplied on a non‑discriminatory basis 301

152ARB................ Layer 2 bitstream services—carriers and carriage service providers to carry on related activities on a non‑discriminatory basis................................................. 303

152ASA................ Anticipatory class exemptions from category A standard access obligations           304

152ATA................ Anticipatory individual exemptions from category A standard access obligations   306

152AU.................. Individual exemptions—request for further information. 310

152AXA............... Statement of reasons for decision—specification of documents               311

Subdivision B—Category B standard access obligations                            311

152AXB................ Category B standard access obligations.......................... 311

152AXC................ NBN corporation to supply declared services on a non‑discriminatory basis          314

152AXD............... NBN corporation to carry on related activities on a non‑discriminatory basis          315

Subdivision C—Compliance with standard access obligations                  316

152AY.................. Compliance with standard access obligations................. 316

152AYA............... Ancillary obligations—confidential information............. 317

152AZ................... Carrier licence condition................................................. 318

152BA................... Service provider rule....................................................... 319

152BB................... Judicial enforcement of standard access obligations....... 319

152BBAA............. Judicial enforcement of conditions and limitations of exemption determinations and orders    321

152BBA................ Commission may give directions in relation to negotiations 321

152BBB................ Enforcement of directions............................................... 323

152BBC................ Commission’s role in negotiations.................................. 324

152BBD................ Reaching agreement on terms and conditions of access.. 325

Division 4—Access determinations                                                                   326

Subdivision A—Commission may make access determinations                326

152BC................... Access determinations.................................................... 326

152BCA................ Matters that the Commission must take into account...... 328

152BCB................ Restrictions on access determinations............................. 329

152BCC................ Access agreements prevail over inconsistent access determinations         333

152BCCA............. Final migration plan prevails over inconsistent access determinations     333

152BCD................ Fixed principles provisions............................................. 334

152BCE................. Access determinations may be set out in the same document 336

152BCF................. Duration of access determination.................................... 336

152BCG................ Interim access determinations......................................... 340

152BCGA............. Stay of access determinations......................................... 341

Subdivision B—Public inquiries about proposals to make access determinations        341

152BCH................ Access determination to be made after public inquiry..... 341

152BCI.................. When public inquiry must be held.................................. 341

152BCJ................. Combined inquiries about proposals to make access determinations        344

152BCK................ Time limit for making an access determination............... 345

Subdivision C—Variation or revocation of access determinations          346

152BCN................ Variation or revocation of access determinations............ 346

Subdivision D—Compliance with access determinations                             348

152BCO................ Carrier licence condition................................................. 348

152BCP................. Service provider rule....................................................... 348

Subdivision E—Private enforcement of access determinations                 348

152BCQ................ Private enforcement of access determinations................. 348

152BCR................ Consent injunctions........................................................ 349

152BCS................. Interim injunctions.......................................................... 349

152BCT................. Factors relevant to granting a restraining injunction........ 349

152BCU................ Factors relevant to granting a mandatory injunction........ 350

152BCV................ Discharge or variation of injunction or other order......... 350

Subdivision F—Register of Access Determinations                                       350

152BCW............... Register of Access Determinations................................. 350

Division 4A—Binding rules of conduct                                                           352

Subdivision A—Commission may make binding rules of conduct            352

152BD................... Binding rules of conduct................................................. 352

152BDAA............. Matters that the Commission must take into account...... 353

152BDA................ Restrictions on binding rules of conduct......................... 355

152BDB................ Access agreements prevail over inconsistent binding rules of conduct    359

152BDC................ Duration of binding rules of conduct.............................. 359

152BDCA............. Final migration plan prevails over inconsistent binding rules of conduct 359

152BDD................ Commission must give copy of binding rules of conduct to carrier etc.   359

152BDE................ Access determinations that are inconsistent with binding rules of conduct              360

152BDEA............. Stay of binding rules of conduct..................................... 360

Subdivision B—Compliance with binding rules of conduct                        360

152BDF................ Carrier licence condition................................................. 360

152BDG................ Service provider rule....................................................... 360

Subdivision C—Private enforcement of binding rules of conduct            361

152BDH................ Private enforcement of binding rules of conduct............. 361

152BDI................. Consent injunctions........................................................ 362

152BDJ................. Interim injunctions.......................................................... 362

152BDK................ Factors relevant to granting a restraining injunction........ 362

152BDL................ Factors relevant to granting a mandatory injunction........ 363

152BDM............... Discharge or variation of injunction or other order......... 363

Subdivision D—Register of Binding Rules of Conduct                                 363

152BDN................ Register of Binding Rules of Conduct............................ 363

Division 4B—Access agreements                                                                       365

152BE................... Access agreements.......................................................... 365

152BEA................ Quarterly reports about access agreements..................... 367

152BEB................. Commission may request copy of access agreement or variation agreement            368

152BEBA.............. NBN corporation to give the Commission a statement about the differences between an access agreement and a standard form of access agreement............................... 369

152BEBB.............. NBN corporation to give the Commission a statement about the differences between an access agreement and a special access undertaking............................................ 370

152BEBC.............. NBN corporation to give the Commission a statement about the differences between an access agreement and an access determination................................................... 372

152BEBD.............. Register of NBN Access Agreement Statements............ 373

152BEBE.............. Layer 2 bitstream services—carrier or carriage service provider to give the Commission a statement about the differences between an access agreement and a special access undertaking             374

152BEBF.............. Layer 2 bitstream services—carrier or carriage service provider to give the Commission a statement about the differences between an access agreement and an access determination    376

152BEBG.............. Register of Layer 2 Bitstream Access Agreement Statements  378

152BEC................. Carrier licence condition................................................. 378

152BED................ Service provider rule....................................................... 379

Division 5—Access undertakings                                                                       380

Subdivision B—Special access undertakings                                                  380

152CBA................ What is a special access undertaking?............................ 380

152CBAA............. Fixed principles terms and conditions............................. 383

152CBB................ Further information about undertaking........................... 387

152CBC................ Commission to accept or reject access undertaking......... 388

152CBCA............. Serial undertakings......................................................... 391

152CBD................ Criteria for accepting access undertaking........................ 391

152CBDA............. Variation of special access undertaking.......................... 394

152CBE................. Extension of access undertaking..................................... 394

152CBF................. Duration of access undertaking....................................... 396

152CBG................ Variation of access undertakings.................................... 396

152CBH................ Further information about variation of access undertaking 398

152CBI.................. Voluntary withdrawal of undertaking............................. 399

152CBIA............... Special access undertakings prevail over inconsistent access determinations           399

152CBIB............... Special access undertakings prevail over inconsistent binding rules of conduct       400

152CBIC............... Access agreements prevail over special access undertakings 400

152CBJ................. Proposed service............................................................. 400

Subdivision C—General provisions                                                                  400

152CC................... Register of access undertakings...................................... 400

152CD................... Enforcement of access undertakings............................... 401

152CDA................ Deferral of consideration of an access undertaking etc... 401

Division 6—Ministerial pricing determinations                                          402

152CH................... Ministerial pricing determinations................................... 402

152CI.................... Undertakings, access determinations and binding rules of conduct that are inconsistent with Ministerial pricing determinations................................................................. 402

152CJ.................... Register of Ministerial pricing determinations................ 403

Division 6A—Supply of services by NBN corporations                         404

152CJA................. Supply of services by NBN corporations....................... 404

152CJB................. Mandatory NBN services............................................... 405

152CJC................. Carrier licence condition................................................. 407

152CJD................. Service provider rule....................................................... 407

152CJE.................. Judicial enforcement of obligations................................. 407

152CJF.................. Standard form of access agreement................................. 408

152CJG................. When NBN corporation is not capable of supplying a carriage service    408

Division 6B—Explanatory material relating to anti‑discrimination provisions                409

152CJH................. Explanatory material relating to anti‑discrimination provisions                409

Division 7—Relationship between this Part and Part IIIA                  410

152CK................... Relationship between this Part and Part IIIA.................. 410

Division 10—Hindering the fulfilment of a standard access obligation etc.        411

152EF.................... Prohibition on hindering the fulfilment of a standard access obligation etc.             411

152EG................... Enforcement of prohibition on hindering the fulfilment of a standard access obligation etc.    411

152EH................... Consent injunctions........................................................ 412

152EI..................... Interim injunctions.......................................................... 412

152EJ.................... Factors relevant to granting a restraining injunction........ 413

152EK................... Factors relevant to granting a mandatory injunction........ 413

152EL.................... Discharge or variation of injunction or other order......... 413

Division 10A—Procedural Rules                                                                        414

152ELA................. Procedural Rules............................................................. 414

152ELB................. Public consultation.......................................................... 415

152ELC................. Plan for the development of Procedural Rules................ 415

Division 11—Miscellaneous                                                                                   416

152ELD................. Compensation for acquisition of property....................... 416

152EM.................. Continuity of partnerships.............................................. 416

152EN................... Treatment of partnerships............................................... 416

152EO................... Conduct by directors, servants or agents........................ 417

152EOA................ Review of operation of this Part etc................................ 418

152EP.................... Regulations about fees for inspection etc. of registers.... 419

152EQ................... Assistance to independent telecommunications adjudicator 419

152ER................... Voluntary undertakings given by Telstra........................ 420

Part XID—Search and seizure                                                                                  421

Division 1—Preliminary                                                                                          421

154........................ Simplified outline............................................................ 421

154A..................... Definitions...................................................................... 421

Division 2—Appointment of inspectors and identity cards                  424

154B...................... Appointment of inspectors.............................................. 424

154C...................... Identity cards.................................................................. 424

Division 3—Entry to premises with consent                                                 426

154D..................... Entry with consent.......................................................... 426

154E...................... Powers in relation to premises........................................ 426

154F...................... Operation of electronic equipment at premises................ 427

Division 4—Entry to premises under a search warrant                        429

Subdivision A—Powers available under a search warrant                         429

154G..................... The things that are authorised by a search warrant.......... 429

154GA.................. Removing things for examination or processing............. 430

154H..................... Operation of electronic equipment at premises................ 431

154J....................... Securing electronic equipment for use by experts........... 433

Subdivision B—Availability of assistance and use of force in executing a search warrant        434

154K...................... Authorisation of officers assisting.................................. 434

154L...................... Availability of assistance and use of force in executing a search warrant 434

Subdivision C—Obligations of executing officer and officers assisting  435

154M..................... Announcement before entry............................................ 435

154N..................... Details of warrant to be given to occupier....................... 435

Subdivision D—Occupier’s rights and responsibilities                                 435

154P...................... Occupier entitled to observe search being conducted...... 435

154Q..................... Occupier to provide reasonable facilities and assistance. 436

154R...................... Answering of questions or producing evidential material 436

154RA................... Person with computer knowledge to assist access etc..... 437

Subdivision E—General provisions relating to seizure                               438

154S...................... Copies of seized things to be provided........................... 438

154T...................... Receipts for things seized or moved under warrant........ 438

154U..................... Return of seized things................................................... 438

154V..................... Magistrate may permit a thing to be retained................... 439

154W..................... Disposal of things if there is no owner or owner cannot be located         440

Subdivision F—Search warrants                                                                        440

154X..................... Issue of search warrants................................................. 440

154Y..................... Search warrants by telephone, fax etc............................. 442

154Z...................... Offences relating to warrants.......................................... 444

Subdivision G—Powers of magistrates                                                            445

154ZA................... Powers conferred on magistrates.................................... 445

Division 5—General provisions relating to electronic equipment    446

154ZB................... Operation of electronic equipment at premises................ 446

154ZC................... Compensation for damage to electronic equipment......... 446

Part XII—Miscellaneous                                                                                                448

155........................ Power to obtain information, documents and evidence... 448

155AAA............... Protection of certain information..................................... 451

155AA.................. Protection of Part VB information.................................. 458

155A..................... Power to obtain information and documents in New Zealand relating to trans‑Tasman markets              459

155B...................... Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission............................ 459

156........................ Inspection of documents by Commission....................... 461

157........................ Disclosure of documents by Commission...................... 461

157AA.................. Disclosure of documents by Tribunal in relation to merger authorisations               464

157A..................... Disclosure of information by Commission..................... 465

157B...................... Disclosure of protected cartel information to a court or tribunal               466

157C...................... Disclosure of protected cartel information to a party to court proceedings etc.         469

157D..................... General powers of a court............................................... 472

158........................ Protection of members of Tribunal, counsel and witnesses 473

159........................ Incriminating answers..................................................... 473

160........................ Failure of witness to attend............................................. 473

161........................ Refusal to be sworn or to answer questions................... 474

162........................ Contempt........................................................................ 475

162A..................... Intimidation etc............................................................... 475

163........................ Prosecutions................................................................... 476

163A..................... Declarations and orders.................................................. 477

165........................ Inspection of, furnishing of copies of, and evidence of, documents         481

166........................ Certificates as to furnishing of particulars to Commission 482

167........................ Judicial notice................................................................. 483

170........................ Legal and financial assistance......................................... 484

171........................ Annual report by Commission........................................ 485

171A..................... Charges by the Commission........................................... 486

171B...................... Division 3 of Part IIIA does not confer judicial power on the Commission            487

172........................ Regulations..................................................................... 487

173........................ Authorisation for the purposes of subsection 51(1)........ 489

Part XIII—Application and transitional provisions relating to the competition provisions         490

Division 1—Cartel conduct                                                                                   490

174........................ Definitions...................................................................... 490

175........................ Giving effect after the commencement time to a cartel provision in existence before that time 490

176........................ Proceedings relating to price‑fixing contraventions taking place before the commencement time            490

177........................ Authorisations in force before the commencement time.. 490

178........................ Notifications in force before the commencement time..... 491

Division 2—Application of amendments made by the Competition and Consumer Legislation Amendment Act 2011                                                                                                493

179........................ Amendments of section 50............................................. 493


Part XInternational liner cargo shipping

Division 1Preliminary

10.01  Objects of Part

             (1)  The principal objects of this Part are:

                     (a)  to ensure that Australian exporters have continued access to outwards liner cargo shipping services of adequate frequency and reliability at freight rates that are internationally competitive; and

                     (b)  to promote conditions in the international liner cargo shipping industry that encourage stable access to export markets for exporters in all States and Territories; and

                     (c)  to ensure that efficient Australian flag shipping is not unreasonably hindered from normal commercial participation in any outwards liner cargo shipping trade; and

                     (d)  as far as practicable, to extend to Australian importers in each State and Territory the protection given by this Part to Australian exporters.

             (2)  It is the intention of the Parliament that the principal objects of this Part should be achieved:

                     (a)  by permitting continued conference operations while enhancing the competitive environment for international liner cargo shipping services through the provision of adequate and appropriate safeguards against abuse of conference power, particularly by:

                              (i)  enacting additional restrictive trade practice provisions applying to ocean carriers;

                             (ii)  requiring conference agreements to meet certain minimum standards;

                            (iii)  making conference agreements generally publicly available;

                            (iv)  permitting only partial and conditional exemption from restrictive trade practice prohibitions; and

                             (v)  requiring conferences to take part in negotiations with representative shipper bodies;

                     (b)  through increased reliance on private commercial and legal processes and a reduced level of government regulation of routine commercial matters; and

                     (c)  by the exercise of jurisdiction, consistent with international law:

                              (i)  over ocean carriers who have a substantial connection with Australia because they provide international liner cargo shipping services; and

                             (ii)  to enable remedies for contravention of the provisions of this Part to be enforced within Australia.

10.01A  Simplified outline

                   The following is a simplified outline of this Part:

     This Part sets up a system for regulating international liner cargo shipping services.

     The main components of that system are as follows:

               (a)     registration of conference agreements;

              (b)     regulation of non‑conference ocean carriers with substantial market power;

               (c)     regulation of unfair pricing practices;

              (d)     registration of agents of ocean carriers.

     The parties to a conference agreement relating to international liner cargo shipping services may apply for the registration of the agreement.

     If the conference agreement is registered, the parties will be given partial and conditional exemptions from:

               (a)     sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK (cartel conduct); and

              (b)     section 45 (contracts etc. that restrict dealings or affect competition); and

               (c)     section 47 (exclusive dealing).

     The parties to a registered conference agreement are required to negotiate with, and provide information to, representative shipper bodies.

     The Commission may investigate whether grounds exist for the Minister to deregister a conference agreement.

     The main ground for deregistration is a breach by the parties to the agreement of requirements imposed on them by this Part.

10.02  Interpretation

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

agreement means any contract, agreement, arrangement or understanding, whether made in or outside Australia.

ancillary service, in relation to a scheduled cargo shipping service, means:

                     (a)  an inter‑terminal transport service; or

                     (b)  a stevedoring service; or

                     (c)  a service provided outside Australia;

that:

                     (d)  relates to the cargo transported, or to be transported, on the scheduled cargo shipping service; and

                     (e)  is provided by, or on behalf of, the provider of the scheduled cargo shipping service.

association includes a body corporate.

Australian exporter means a person who exports goods from Australia.

Australian flag shipping operator means a person who:

                     (a)  is an Australian citizen or a body corporate incorporated by or under the law of the Commonwealth or of a State or Territory;

                     (b)  provides, or proposes to provide, shipping services; and

                     (c)  normally uses, or proposes normally to use, in providing the services only:

                              (i)  a ship that is registered in Australia; or

                             (ii)  2 or more ships, all or most of which are registered in Australia.

Australian importer means a person who imports goods into Australia.

authorised officer means an officer of the Department who is authorised, in writing, by the Minister for the purposes of this Part.

conference means an unincorporated association of 2 or more ocean carriers carrying on 2 or more businesses each of which includes, or is proposed to include, the provision of outwards liner cargo shipping services or inwards liner cargo shipping services.

conference agreement means:

                     (a)  an outwards conference agreement; or

                     (b)  an inwards conference agreement.

designated inwards peak shipper body means an association specified in a notice under subsection 10.03(2A).

designated inwards secondary shipper body means an association specified in a notice under subsection 10.03(2B).

designated inwards shipper body means:

                     (a)  a designated inwards peak shipper body; or

                     (b)  a designated inwards secondary shipper body.

designated outwards peak shipper body means an association specified in a notice under subsection 10.03(1).

designated outwards secondary shipper body means an association specified in a notice under subsection 10.03(2).

designated outwards shipper body means:

                     (a)  a designated outwards peak shipper body; or

                     (b)  a designated outwards secondary shipper body.

designated port area means the area within the limits of a port appointed under section 15 of the Customs Act 1901, being the limits fixed under that section.

designated secondary shipper body means:

                     (a)  a designated outwards secondary shipper body; or

                     (b)  a designated inwards secondary shipper body.

designated shipper body means:

                     (a)  a designated outwards shipper body; or

                     (b)  a designated inwards shipper body.

exemption order means an order under section 10.72A.

freight rate agreement means a conference agreement that consists of or includes freight rate charges.

freight rate charges:

                     (a)  in relation to an outwards conference agreement—means those parts of the conference agreement that specify freight rates (including base freight rates, surcharges, rebates and allowances) for outwards liner cargo shipping services; and

                     (b)  in relation to an inwards conference agreement—means those parts of the conference agreement that specify freight rates (including base freight rates, surcharges, rebates and allowances) for inwards liner cargo shipping services.

handling cargo includes a service that is related to handling of cargo.

inland terminal has the meaning given by section 10.02A.

international liner cargo shipping service means:

                     (a)  an outwards liner cargo shipping service; or

                     (b)  an inwards liner cargo shipping service.

inter‑terminal transport service means a service for the transport of various types of general cargo:

                     (a)  from an inland terminal to a port terminal; or

                     (b)  from a port terminal to an inland terminal; or

                     (c)  from a port terminal to another port terminal;

and includes the handling of the cargo within any of those terminals.

inwards conference agreement means an agreement between members of a conference in relation to inwards liner cargo shipping services provided, or proposed to be provided, by them, and includes an inwards varying conference agreement.

inwards liner cargo shipping service means an inwards scheduled cargo shipping service and, if the inwards scheduled cargo shipping service is part of a terminal‑to‑terminal service, includes an ancillary service that relates to the inwards scheduled cargo shipping service.

inwards loyalty agreement means an agreement:

                     (a)  between an ocean carrier or conference and a shipper or designated inwards shipper body; and

                     (b)  that makes provision, in relation to inwards liner cargo shipping services, having the purpose or effect of giving certain benefits to the shipper, or a shipper represented by the designated inwards shipper body, if the shipper ships with the ocean carrier, or members of the conference:

                              (i)  all or particular cargo, or a particular portion of all or particular cargo, shipped by the shipper; or

                             (ii)  a particular quantity of cargo or of particular cargo.

inwards scheduled cargo shipping service means a scheduled cargo shipping service where the transport of the cargo by sea commences from a place outside Australia and ends at a place in Australia.

inwards varying conference agreement means an agreement:

                     (a)  that varies an inwards conference agreement; or

                     (b)  that otherwise affects an inwards conference agreement (including an agreement referred to in subsection (4)).

loyalty agreement means:

                     (a)  an outwards loyalty agreement; or

                     (b)  an inwards loyalty agreement.

ocean carrier means a person who provides, or proposes to provide, international liner cargo shipping services.

outwards conference agreement means an agreement between members of a conference in relation to outwards liner cargo shipping services provided, or proposed to be provided, by them, and includes an outwards varying conference agreement.

outwards liner cargo shipping service means an outwards scheduled cargo shipping service and, if the outwards scheduled cargo shipping service is part of a terminal‑to‑terminal service, includes an ancillary service that relates to the outwards scheduled cargo shipping service.

outwards loyalty agreement means an agreement:

                     (a)  between an ocean carrier or conference and a shipper or designated outwards shipper body; and

                     (b)  that makes provision, in relation to outwards liner cargo shipping services, having the purpose or effect of giving certain benefits to the shipper, or a shipper represented by the designated outwards shipper body, if the shipper ships with the ocean carrier, or members of the conference:

                              (i)  all or particular cargo, or a particular portion of all or particular cargo, shipped by the shipper; or

                             (ii)  a particular quantity of cargo or of particular cargo.

outwards scheduled cargo shipping service means a scheduled cargo shipping service where the transport of the cargo by sea commences from a place in Australia and ends at a place outside Australia.

outwards varying conference agreement means an agreement:

                     (a)  that varies an outwards conference agreement; or

                     (b)  that otherwise affects an outwards conference agreement (including an agreement referred to in subsection (3)).

port terminal means:

                     (a)  the area within the limits of a wharf appointed under section 15 of the Customs Act 1901, being the limits fixed under that section; or

                     (b)  a terminal facility within the limits of a designated port area.

pricing practice means the fixing, controlling or maintaining by an ocean carrier of prices charged for, or the giving or allowing by an ocean carrier of discounts, allowances, rebates or credits in relation to, outwards liner cargo shipping services or inwards liner cargo shipping services provided by the ocean carrier.

provisionally registered conference agreement means a conference agreement that is provisionally registered under this Part.

registered agent, in relation to an ocean carrier, means the person specified in the register of ocean carrier agents as the agent of the ocean carrier.

registered conference agreement means a conference agreement that is finally registered under this Part.

registered non‑conference ocean carrier with substantial market power means an ocean carrier specified in the register of non‑conference ocean carriers with substantial market power.

Registrar means the Registrar of Liner Shipping.

scheduled cargo shipping service means a scheduled service for the transport of various types of general cargo by sea on particular routes, generally by container and generally at predetermined freight rates.

stevedoring service means:

                     (a)  the loading or unloading of cargo into or from a ship; or

                     (b)  the handling of cargo within a port terminal.

terminal‑to‑terminal service means:

                     (a)  an outwards scheduled cargo shipping service, together with any ancillary service that relates to the outwards scheduled cargo shipping service; or

                     (b)  an inwards scheduled cargo shipping service, together with any ancillary service that relates to the inwards scheduled cargo shipping service.

vary, in relation to a conference agreement, includes vary by way of:

                     (a)  omitting or altering any of the provisions of, or parties to, the agreement;

                     (b)  adding new provisions or parties to the agreement; or

                     (c)  substituting new provisions or parties for any of the provisions of, or parties to, the agreement.

varying conference agreement means:

                     (a)  an outwards varying conference agreement; or

                     (b)  an inwards varying conference agreement.

             (2)  A reference in this Part to the minimum level of outwards liner cargo shipping services provided, or proposed to be provided, under an outwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of outwards liner cargo shipping services provided, or proposed to be provided, under the agreement.

          (2A)  A reference in this Part to the minimum level of inwards liner cargo shipping services provided, or proposed to be provided, under an inwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of inwards liner cargo shipping services provided, or proposed to be provided, under the agreement.

             (3)  A reference in this Part to an agreement that affects an outwards conference agreement includes a reference to an agreement between parties to the conference agreement or between parties to the conference agreement and other ocean carriers:

                     (a)  that affects the conduct of parties to the conference agreement in relation to outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement;

                     (b)  that affects the minimum level of outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or

                     (c)  that otherwise affects:

                              (i)  the operation, or proposed operation, of the conference agreement; or

                             (ii)  outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement.

             (4)  A reference in this Part to an agreement that affects an inwards conference agreement includes a reference to an agreement between parties to the conference agreement or between parties to the conference agreement and other ocean carriers:

                     (a)  that affects the conduct of parties to the conference agreement in relation to inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or

                     (b)  that affects the minimum level of inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or

                     (c)  that otherwise affects:

                              (i)  the operation, or proposed operation, of the conference agreement; or

                             (ii)  inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement.

             (5)  For the purposes of this Part (except where the contrary intention appears), if:

                     (a)  an ancillary service relates to a scheduled cargo shipping service; and

                     (b)  the ancillary service is provided on behalf of the provider of the scheduled cargo shipping service by a third person;

the ancillary service is taken to be provided by the provider of the scheduled cargo shipping service instead of by the third person.

10.02A  Inland terminals

             (1)  The Minister may, by legislative instrument, declare that a specified facility is an inland terminal for the purposes of this Part.

             (2)  The facility must be in Australia, but outside a designated port area.

             (3)  In making a declaration under subsection (1), the Minister must have regard to the following matters:

                     (a)  whether the facility is under the control of a person who is, or of persons each of whom is:

                              (i)  an ocean carrier; or

                             (ii)  a person who provides services at the facility at the request of an ocean carrier;

                     (b)  whether the facility is used for either or both of the following purposes:

                              (i)  assembling export cargoes for transport to a port terminal located at the port where the cargoes are to be loaded onto ships for export;

                             (ii)  delivering imported cargoes to importers or their representatives;

                     (c)  any other matters that the Minister thinks are relevant.

             (4)  In making a declaration under subsection (1), the Minister must not give preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State.

             (5)  A declaration under subsection (1) has effect accordingly.

10.03  Designated shipper bodies

             (1)  If the Minister is of the opinion that an association represents the interests, in relation to outwards liner cargo shipping services, of Australian shippers generally, the Minister may, by legislative instrument, declare that the association is a designated outwards peak shipper body for the purposes of this Part.

             (2)  If the Minister is of the opinion:

                     (a)  that an association represents the interests, in relation to outwards liner cargo shipping services, of all or any of the following kinds of persons:

                              (i)  Australian shippers in a particular trade;

                             (ii)  Australian shippers of particular kinds of goods;

                            (iii)  shippers in a particular part of Australia;

                            (iv)  producers of goods of a kind exported, or proposed to be exported, from Australia; and

                     (b)  that it is desirable that the association be a designated outwards secondary shipper body for the purposes of this Part;

the Minister may, by legislative instrument, declare that the association is a designated outwards secondary shipper body for the purposes of this Part.

          (2A)  If the Minister is of the opinion that an association represents the interests, in relation to inwards liner cargo shipping services, of Australian shippers generally, the Minister may, by legislative instrument, declare that the association is a designated inwards peak shipper body for the purposes of this Part.

          (2B)  If the Minister is of the opinion:

                     (a)  that an association represents the interests, in relation to inwards liner cargo shipping services, of all or any of the following kinds of persons:

                              (i)  Australian shippers in a particular trade;

                             (ii)  Australian shippers of particular kinds of goods;

                            (iii)  shippers in a particular part of Australia; and

                     (b)  that it is desirable that the association be a designated inwards secondary shipper body for the purposes of this Part;

the Minister may, by legislative instrument, declare that the association is a designated inwards secondary shipper body for the purposes of this Part.

             (3)  Where the Minister declares that an association is a designated outwards peak shipper body, a designated inwards peak shipper body, a designated outwards secondary shipper body or a designated inwards secondary shipper body for the purposes of this Part, the Registrar shall enter particulars of the association in the register of designated shipper bodies.

             (4)  The particulars entered in the register shall include whether the association is a designated outwards peak shipper body, a designated inwards peak shipper body, a designated outwards secondary shipper body or a designated inwards secondary shipper body.

             (5)  The Minister may, by legislative instrument, make guidelines to be applied by the Registrar in the exercise of the Registrar’s powers to nominate designated secondary shipper bodies for the purposes of sections 10.29, 10.41 and 10.52.

             (6)  The Registrar shall enter particulars of any nomination of a designated secondary shipper body for the purposes of section 10.29, 10.41 or 10.52 in the register of designated shipper bodies.

Division 2Additional restrictive trade practice provisions applying to ocean carriers

10.04  Application of section 46 in relation to conference agreements

             (1)  For the purposes of section 46, if the parties to a conference agreement together have a substantial degree of power in a market in which any party to the agreement provides international liner cargo shipping services under the agreement, each party to the conference agreement shall be taken to have a substantial degree of power in the market.

             (2)  In subsection (1):

conference agreement means an agreement between members of a conference in relation to international liner cargo shipping services provided, or proposed to be provided, by them, and includes an agreement that varies such an agreement.

Division 3Minimum standards for conference agreements

10.06  Application of Australian law to outwards conference agreements and withdrawal from agreements

             (1)  An outwards conference agreement must expressly provide for a question arising under the agreement in relation to an outwards liner cargo shipping service provided, or proposed to be provided, under the agreement to be determined in Australia in accordance with Australian law unless the parties and the Minister agree, in writing, to the particular question being otherwise determined.

             (2)  An outwards conference agreement must expressly permit any party to the agreement to withdraw from the agreement on reasonable notice without penalty.

10.07  Minimum levels of shipping services to be specified in conference agreements

             (1)  An outwards conference agreement must contain provisions specifying the minimum level of outwards liner cargo shipping services to be provided under the agreement.

             (2)  An inwards conference agreement must contain provisions specifying the minimum level of inwards liner cargo shipping services to be provided under the agreement.

Note:          See also paragraph 10.33(1)(b) and section 10.72A.

10.08  Conference agreements may include only certain restrictive trade practice provisions

             (1)  If a conference agreement includes a provision:

                    (aa)  that is a provision where the following conditions are satisfied in relation to the provision:

                              (i)  the purpose/effect condition set out in subsection 44ZZRD(2);

                             (ii)  the competition condition set out in subsection 44ZZRD(4); or

                   (ab)  that is a provision where the following conditions are satisfied in relation to the provision:

                              (i)  the purpose condition set out in subsection 44ZZRD(3);

                             (ii)  the competition condition set out in subsection 44ZZRD(4); or

                     (a)  that is an exclusionary provision; or

                     (b)  that has the purpose, or has or is likely to have the effect, of substantially lessening competition (within the meaning of section 45);

the provision, so far as it is covered by paragraph (aa), (ab), (a) or (b), must either:

                     (c)  deal only with the following matters:

                              (i)  the fixing or other regulation of freight rates;

                             (ii)  the pooling or apportionment of earnings, losses or traffic;

                            (iii)  the restriction or other regulation of the quantity or kind of cargo to be carried by parties to the agreement;

                            (iv)  the restriction or other regulation of the entry of new parties to the agreement; or

                     (d)  be necessary for the effective operation of the agreement and of overall benefit to:

                              (i)  in the case of an outwards conference agreement—Australian exporters; or

                             (ii)  in the case of an inwards conference agreement—Australian importers.

             (2)  If a conference agreement includes a provision that permits or requires the practice of exclusive dealing (within the meaning of section 47), the provision, so far as it permits or requires that practice, must be necessary for the effective operation of the agreement and of overall benefit to:

                     (a)  in the case of an outwards conference agreement—Australian exporters; or

                     (b)  in the case of an inwards conference agreement—Australian importers.

Note:          See also paragraph 10.33(1)(ba) and section 10.72A.

             (3)  This section does not apply in relation to a provision of a conference agreement so far as the provision requires or permits a party to the agreement to enter into a loyalty agreement.

10.09  Where may consequences of conference agreements not complying with minimum standards be found?

                   The consequences of a conference agreement not complying with this Division are to be found in the following provisions:

                     (a)  section 10.28 (decision on application for provisional registration);

                     (b)  section 10.33 (decision on application for final registration);

                     (c)  section 10.45 (circumstances in which Minister may exercise powers in relation to registered conference agreements).

Division 4Registers and files and public inspection of them

10.10  Registers and conference agreement files open to public inspection

             (1)  The registers and conference agreement files kept by the Registrar and the Commission under this Part are open to public inspection.

             (2)  A person is entitled, on application to the Registrar or the Commission, as the case requires, and payment of the prescribed fee, to obtain a copy of the whole or any part of:

                     (a)  an entry in a register kept under this Part; or

                     (b)  a conference agreement file kept under this Part.

10.11  What registers are to be kept by the Registrar?

             (1)  The Registrar shall keep:

                     (a)  a register of conference agreements; and

                     (b)  a register of designated shipper bodies; and

                     (c)  a register of non‑conference ocean carriers with substantial market power; and

                     (d)  a register of obligations concerning unfair pricing practices; and

                     (e)  a register of ocean carrier agents; and

                      (f)  a register of exemption orders.

             (2)  An entry in a register must contain such particulars as are prescribed in relation to the register.

10.12  What conference agreement files are to be kept by the Registrar?

             (1)  The Registrar shall keep a file, to be known as the conference agreement file, for each conference agreement (other than a varying conference agreement).

             (2)  The conference agreement file for a conference agreement must include:

                     (a)  documents filed with the Registrar under Division 6 in relation to the agreement or any relevant varying conference agreement (other than any part of a document that is not open to public inspection);

                     (b)  abstracts accepted by the Registrar under section 10.36 in relation to such documents (being abstracts of those parts of the documents that are not open to public inspection); and

                     (c)  notifications given to the Registrar under subsection 10.40(1) or 10.43(1) in relation to the agreement or any relevant varying conference agreement.

10.13  What register is to be kept by the Commission?

             (1)  The Commission shall keep a register of Commission investigations.

             (2)  Subject to section 10.88, the register of Commission investigations shall contain:

                     (a)  references given to the Commission by the Minister under subsections 10.47(1), 10.50(1), 10.57(1) and 10.63(1);

                     (b)  particulars of decisions made by the Commission under subsections 10.48(2), 10.48(2A) and 10.58(2) to hold investigations;

                     (c)  requests made to the Commission by the Minister under subsections 10.48(3) and 10.58(3);

                     (d)  documents given to the Commission in relation to investigations by it under this Part;

                     (e)  particulars of oral submissions made to the Commission in relation to such investigations; and

                      (f)  reports given to the Minister by the Commission in relation to such investigations.

Division 5Exemptions from certain restrictive trade practice prohibitions

Subdivision AExemptions relating to conference agreements

10.14  Exemptions apply only to certain activities

             (1)  Subject to this section, the exemptions provided by this Subdivision apply only in relation to the following parts of an outwards liner cargo shipping service or an inwards liner cargo shipping service:

                     (a)  the parts of the service that consist of the transport of the cargo by sea;

                     (b)  stevedoring services;

                     (c)  activities that take place outside Australia.

             (2)  The exemptions provided by this Subdivision extend to the fixing of charges for an inter‑terminal transport service where the service is part of an outwards liner cargo shipping service or an inwards liner cargo shipping service.

             (3)  The exemptions provided by this Subdivision extend to the determination of common terms and conditions for bills of lading for use in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.

             (4)  To avoid doubt, the exemptions provided by this Subdivision do not extend to any dealings between the parties to a conference agreement and a person who provides ancillary services on behalf of the provider of a scheduled cargo shipping service.

10.15  When do exemptions commence to apply in relation to registered conference agreements?

             (1)  The exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply in relation to the operation of a registered outwards conference agreement only after the end of 30 days after the conference agreement is finally registered.

             (2)  The exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply in relation to the operation of a registered inwards conference agreement only after whichever is the later of the following times:

                     (a)  the end of 30 days after the conference agreement is finally registered;

                     (b)  the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.

10.16  Exemptions do not apply to variations of conference agreement unless varying agreement registered

                   Where a registered conference agreement is varied or otherwise affected by a varying conference agreement (other than an agreement that consists solely of freight rate charges), the exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply only in relation to the operation of the registered conference agreement itself, and not that agreement as varied or otherwise affected, unless the varying conference agreement has been finally registered.

10.17  Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45

             (1)  Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the making of a contract or arrangement, or the arriving at an understanding, if:

                     (a)  the contract, arrangement or understanding is a conference agreement; and

                     (b)  the parties apply for its provisional registration under this Part within 30 days after the making of the contract or arrangement or arriving at the understanding.

             (2)  Sections 44ZZRG, 44ZZRK and 45 do not apply in relation to conduct engaged in by a party to a registered conference agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.

10.17A  Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements

             (1)  Sections 44ZZRF, 44ZZRJ and 45 do not apply to the making of freight rate charges in a freight rate agreement if:

                     (a)  the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last‑mentioned agreement is finally registered; and

                     (b)  the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement.

             (2)  Sections 44ZZRF, 44ZZRJ and 45 do not apply to the making of freight rate charges in a freight rate agreement if:

                     (a)  the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times:

                              (i)  the end of 30 days after the last‑mentioned agreement is finally registered;

                             (ii)  the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and

                     (b)  the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.

             (3)  Sections 44ZZRG, 44ZZRK and 45 do not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:

                     (a)  the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last‑mentioned agreement is finally registered; and

                     (b)  the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement.

             (4)  Sections 44ZZRG, 44ZZRK and 45 do not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:

                     (a)  the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times:

                              (i)  the end of 30 days after the last‑mentioned agreement is finally registered;

                             (ii)  the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and

                     (b)  the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.

10.18  Exemption from section 47

             (1)  Section 47 does not apply in relation to conduct engaged in by a party to a registered conference agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.

             (2)  The exemption provided by subsection (1) does not apply in relation to subsections 47(6) and (7).

10.18A  Exemptions from section 47 for freight rate agreements

             (1)  Section 47 does not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:

                     (a)  the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last‑mentioned agreement is finally registered; and

                     (b)  the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement.

             (2)  Section 47 does not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:

                     (a)  the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times:

                              (i)  the end of 30 days after the last‑mentioned agreement is finally registered;

                             (ii)  the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and

                     (b)  the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.

             (3)  The exemptions provided by subsections (1) and (2) do not apply in relation to subsections 47(6) and (7).

Subdivision BExemptions relating to loyalty agreements

10.19  Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45

             (1)  Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the making of a contract or arrangement, or the arriving at an understanding, if the contract, arrangement or understanding is a loyalty agreement.

             (2)  Sections 44ZZRG, 44ZZRK and 45 do not apply in relation to conduct engaged in by a party to a loyalty agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.

10.20  Exemption from section 47

             (1)  Section 47 does not apply in relation to conduct engaged in by a party to a loyalty agreement in relation to another party to the agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.

             (2)  The exemption provided by subsection (1) does not apply in relation to subsections 47(6) and (7).

10.21  Exemptions cease to apply in relation to a shipper at the shipper’s option

                   The exemptions provided by this Subdivision in relation to the operation of a loyalty agreement cease to apply in relation to conduct engaged in by an ocean carrier in relation to a shipper if the shipper notifies, as prescribed, the Commission and each ocean carrier who is a party to the agreement that the shipper no longer wishes the exemptions to apply.

Subdivision DOther exemptions

10.24  Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations

             (1)  Sections 44ZZRF, 44ZZRJ, 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier, conference, shipper or designated shipper body so far as the conduct relates to the determination of terms and conditions of loyalty agreements.

             (2)  Sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier, conference, shipper or designated shipper body so far as the conduct relates to the obligations of an ocean carrier under any of the following provisions:

                     (a)  section 10.29 (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement);

                     (b)  section 10.41 (parties to registered conference agreement to negotiate with certain designated shipper bodies etc.);

                     (c)  section 10.52 (non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.).

             (3)  The exemptions provided by this section do not apply in relation to subsections 47(6) and (7).

10.24A  Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to stevedoring contracts

             (1)  Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the making of a stevedoring contract.

Note:          For stevedoring contract, see subsection (5).

             (2)  Sections 44ZZRG, 44ZZRK, 45 and 47 do not apply in relation to conduct engaged in by a party to a stevedoring contract so far as the conduct gives effect to a provision of the contract.

             (3)  Sections 44ZZRF, 44ZZRJ, 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier or a stevedoring operator so far as the conduct relates to the determination of terms and conditions of a stevedoring contract.

Note:          For stevedoring operator, see subsection (5).

          (3A)  The exemptions provided by this section do not extend to any dealings between stevedoring operators.

             (4)  The exemptions provided by this section do not apply in relation to subsections 47(6) and (7).

             (5)  In this section:

stevedoring contract means a contract between:

                     (a)  an ocean carrier; and

                     (b)  a stevedoring operator;

under which the stevedoring operator provides, or arranges for the provision of, stevedoring services to the ocean carrier in connection with cargo transported on international liner cargo shipping services provided by the ocean carrier.

stevedoring operator means a person who:

                     (a)  provides, or proposes to provide; or

                     (b)  arranges for the provision of, or proposes to arrange for the provision of;

stevedoring services in connection with cargo transported on international liner cargo shipping services.

Division 6Registration of conference agreements

Subdivision AProvisional registration

10.25  Application for provisional registration of conference agreement

             (1)  The parties to a conference agreement may apply for its provisional registration under this Part.

             (2)  The application must comply with the following provisions:

                     (a)  subsections 10.26(1) and (2) (how application is to be made and verified);

                     (b)  section 10.27 (copy of agreement to be filed with application etc.).

10.26  How application is to be made and verified

             (1)  An application for the provisional registration of a conference agreement must be:

                     (a)  in the appropriate prescribed form;

                     (b)  made to the Registrar in accordance with the regulations; and

                     (c)  accompanied by the appropriate prescribed fee.

             (2)  The application must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.

             (3)  The application may be made by a party to the agreement on behalf of the party and other parties to the agreement.

10.27  Copy of agreement to be filed with application etc.

             (1)  Subject to subsections (1A) and (1B), an application for the provisional registration of a conference agreement must be accompanied by:

                     (a)  a complete copy of the agreement so far as it is in writing (including all provisions of the agreement so far as they are in writing); and

                     (b)  a written memorandum that fully sets out the agreement so far as it is not in writing (including all provisions of the agreement so far as they are not in writing);

other than any parts of the agreement that relate to the minimum level of:

                     (c)  in the case of an outwards conference agreement—outwards liner cargo shipping services to be provided under the agreement or an outwards conference agreement that is varied or otherwise affected by the agreement; or

                     (d)  in the case of an inwards conference agreement—inwards liner cargo shipping services to be provided under the agreement or an inwards conference agreement that is varied or otherwise affected by the agreement.

          (1A)  The copy of the agreement referred to in paragraph (1)(a) need not include the freight rate charges in the agreement.

          (1B)  The written memorandum referred to in paragraph (1)(b) need not include the freight rate charges in the agreement.

             (2)  A document that accompanies an application for the provisional registration of a conference agreement must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.

10.27A  Copy of conference agreement to be given to designated peak shipper body

             (1)  If:

                     (a)  the parties to an outwards conference agreement apply for its provisional registration; and

                     (b)  at the time of the application, there is a designated outwards peak shipper body;

the parties must give the designated outwards peak shipper body a copy of:

                     (c)  the complete copy of the agreement referred to in paragraph 10.27(1)(a); and

                     (d)  the written memorandum referred to in paragraph 10.27(1)(b);

as soon as practicable after the application is made.

             (2)  If:

                     (a)  the parties to an inwards conference agreement apply for its provisional registration; and

                     (b)  at the time of the application, there is a designated inwards peak shipper body;

the parties must give the designated inwards peak shipper body a copy of:

                     (c)  the complete copy of the agreement referred to in paragraph 10.27(1)(a); and

                     (d)  the written memorandum referred to in paragraph 10.27(1)(b);

as soon as practicable after the application is made.

10.28  Decision on application for provisional registration

             (1)  If the Registrar is satisfied:

                     (a)  that an application has properly been made for the provisional registration of a conference agreement; and

                    (aa)  in the case of an outwards conference agreement—that subsection 10.27A(1) has been complied with, or does not apply to the agreement; and

                   (ab)  in the case of an inwards conference agreement—that subsection 10.27A(2) has been complied with, or does not apply to the agreement; and

                     (b)  in the case of an outwards conference agreement—that the agreement complies with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with that section; and

                   (ba)  in the case of an inwards conference agreement that was in force at the commencement of this paragraph—that there are no circumstances that, under the regulations, are taken to be special circumstances for the purposes of this paragraph; and

                     (c)  that provisional registration of the agreement is not prevented by one or more of the following provisions:

                              (i)  section 10.38 (application for registration to be returned where request for confidentiality refused etc.);

                             (ii)  section 10.39 (application also to be made for registration of varying agreements);

                            (iii)  subsection 10.40(1) (notification of happening of affecting events prior to final registration etc.);

the Registrar shall, within 14 days after the making of the application, provisionally register the agreement by entering in the register of conference agreements:

                     (d)  particulars of the agreement; and

                     (e)  a notation to the effect that the agreement has been provisionally registered.

             (2)  If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse to provisionally register the agreement.

             (3)  When the Registrar provisionally registers the agreement or refuses to provisionally register the agreement, the Registrar shall immediately notify the applicants.

             (4)  If the Registrar provisionally registers the agreement, the Registrar must give the Commission a copy of:

                     (a)  the complete copy of the agreement referred to in paragraph 10.27(1)(a); and

                     (b)  the written memorandum referred to in paragraph 10.27(1)(b).

10.29  Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement

             (1)  The parties to a provisionally registered outwards conference agreement shall:

                     (a)  take part in negotiations with the designated outwards peak shipper bodies or, if there is not at that time a designated outwards peak shipper body, the designated outwards secondary shipper bodies nominated by the Registrar for the purposes of the agreement for the purposes of this section, in relation to the minimum level of outwards liner cargo shipping services to be provided under the agreement (including any provisions of the agreement that affect the level of those services) and consider the matters raised, and representations made, by the shipper bodies;

                     (b)  if a shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties—make the information available to the shipper body; and

                     (c)  provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.

          (1A)  The parties to a provisionally registered inwards conference agreement must:

                     (a)  take part in negotiations with:

                              (i)  the designated inwards peak shipper bodies; or

                             (ii)  if there is not at that time a designated inwards peak shipper body—the designated inwards secondary shipper bodies nominated by the Registrar for the purposes of the agreement for the purposes of this section;

                            in relation to the minimum level of inwards liner cargo shipping services to be provided under the agreement (including any provisions of the agreement that affect the level of those services) and consider the matters raised, and representations made, by the shipper bodies; and

                     (b)  if a shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties—make the information available to the shipper body; and

                     (c)  provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.

          (1B)  Subsections (1) and (1A) do not apply in relation to a conference agreement unless, within 14 days after the provisional registration of the agreement, the shipper bodies notify, as prescribed, the Registrar and the parties to the agreement that they wish to have negotiations in relation to the agreement.

             (2)  Subsections (1) and (1A) do not apply in relation to a conference agreement if the shipper bodies notify, as prescribed, the Registrar and the parties to the agreement that they do not wish to have negotiations in relation to the agreement.

             (3)  The nomination of a designated secondary shipper body for the purposes of a provisionally registered conference agreement must be made by written notice given to the parties to the agreement.

Subdivision BFinal registration

10.30  Application for final registration of conference agreement

             (1)  The parties to a provisionally registered conference agreement may apply for its final registration under this Part.

             (2)  The application must comply with the following provisions:

                     (a)  subsections 10.31(1) and (2) (how application is to be made and verified);

                     (b)  section 10.32 (copy of agreement to be filed with application etc.).

10.31  How application is to be made and verified

             (1)  An application for the final registration of a conference agreement must be:

                     (a)  in the appropriate prescribed form;

                     (b)  made to the Registrar in accordance with the regulations; and

                     (c)  accompanied by the appropriate prescribed fee.

             (2)  The application must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.

             (3)  The application may be made by a party to the agreement on behalf of the party and other parties to the agreement.

10.32  Copy of agreement to be filed with application etc.

             (1)  Subject to subsections (1A) and (1B), an application for the final registration of a conference agreement must be accompanied by:

                     (a)  a complete copy of the agreement so far as it is in writing (including all provisions of the agreement so far as they are in writing); and

                     (b)  a written memorandum that fully sets out the agreement so far as it is not in writing (including all provisions of the agreement so far as they are not in writing).

          (1A)  The copy of the agreement referred to in paragraph (1)(a) need not include the freight rate charges in the agreement.

          (1B)  The written memorandum referred to in paragraph (1)(b) need not include the freight rate charges in the agreement.

             (2)  A document that accompanies an application for the final registration of a conference agreement must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.

10.33  Decision on application for final registration

             (1)  If the Registrar is satisfied:

                     (a)  that an application has properly been made for the final registration of a conference agreement; and

                     (b)  any of the following subparagraphs applies:

                              (i)  that the agreement complies with section 10.07 (minimum levels of shipping services to be specified in conference agreements) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with section 10.07;

                             (ii)  that section 10.07 does not apply in relation to the agreement because of an exemption order;

                            (iii)  that the agreement is an inwards conference agreement that was in force at the commencement of this subparagraph; and

                   (ba)  any of the following subparagraphs applies:

                              (i)  that the agreement complies with section 10.08 (conference agreements may include only certain restrictive trade practice provisions) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with section 10.08;

                             (ii)  that section 10.08 does not apply in relation to the agreement because of an exemption order;

                            (iii)  that the agreement is an inwards conference agreement that was in force at the commencement of this subparagraph; and

                     (c)  in the case of an outwards conference agreement—that subsection 10.29(1) (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with, or does not apply, in relation to the agreement; and

                    (ca)  in the case of an inwards conference agreement—that subsection 10.29(1A) (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with, or does not apply, in relation to the agreement; and

                     (d)  that final registration of the agreement is not prevented by one or more of the following provisions:

                              (i)  section 10.38 (application for registration to be returned where request for confidentiality refused etc.);

                             (ii)  section 10.39 (application also to be made for registration of varying conference agreements);

                            (iii)  subsection 10.40(1) (notification of happening of affecting events prior to final registration etc.);

the Registrar shall, within 14 days after the making of the application, finally register the agreement by entering in the register of conference agreements a notation to the effect that the agreement has been finally registered.

             (2)  If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse to finally register the agreement.

             (3)  When the Registrar finally registers the agreement or refuses to finally register the agreement, the Registrar shall immediately notify the applicants.

             (4)  If the Registrar finally registers the agreement, the Registrar must give the Commission a copy of:

                     (a)  the complete copy of the agreement referred to in paragraph 10.32(1)(a); and

                     (b)  the written memorandum referred to in paragraph 10.32(1)(b).

Subdivision CConfidentiality requests

10.34  Request for confidentiality

             (1)  An application for the provisional or final registration of a conference agreement may include a request that a specified part of the application, or of a document accompanying the application, not be open to public inspection under this Part.

             (2)  If such a request is included in the application, the application must include a statement of reasons in support of the request.

10.35  Abstract to accompany request for confidentiality

             (1)  Where a request is made under section 10.34 that a part of the application in which the request is included, or of a document accompanying the application, not be open to public inspection under this Part, the application must be accompanied by an abstract of the part of the application or other document in relation to which the request is made.

             (2)  The abstract must:

                     (a)  be in the appropriate prescribed form; and

                     (b)  comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.

10.36  Examination of abstract

             (1)  Where:

                     (a)  a request is properly made under section 10.34 that a part of a document not be open to public inspection under this Part; and

                     (b)  the request is accompanied by an abstract of the part of the document;

the Registrar shall first determine whether to accept the abstract.

             (2)  If the Registrar is satisfied:

                     (a)  that the abstract adequately describes the scope of the part of the document; and

                     (b)  that the abstract complies with subsection 10.35(2);

the Registrar shall accept the abstract.

             (3)  If the Registrar is not so satisfied, the Registrar shall:

                     (a)  refuse to accept the abstract; and

                     (b)  refuse the request and immediately notify the applicants of the decision.

10.37  Decision on request for confidentiality

             (1)  If:

                     (a)  the Registrar is satisfied that a request has properly been made under section 10.34 that a part of a document not be open to public inspection under this Part;

                     (b)  the Registrar has, under section 10.36, accepted an abstract for the part of the document; and

                     (c)  the Registrar is also satisfied, on the basis of the statement of reasons in support of the request that is included in the application for provisional or final registration of the conference agreement concerned:

                              (i)  in the case of an outwards conference agreement—that granting the request would not disadvantage Australian exporters; and

                            (ia)  in the case of an inwards conference agreement—that granting the request would not disadvantage Australian importers; and

                             (ii)  that the request is justified because disclosure of the part of the document would disclose:

                                        (A)  trade secrets;

                                        (B)  information (other than trade secrets) having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or

                                        (C)  any other information concerning a person in relation to the person’s business or professional affairs, or concerning the business, commercial or financial affairs of an organisation or undertaking, the disclosure of which would, or could reasonably be expected to, unreasonably affect the person adversely in relation to the person’s lawful business or professional affairs or the organisation or undertaking in relation to its lawful business, commercial or financial affairs;

the Registrar shall, within 14 days after the making of the request, direct that the part of the document not be open to public inspection under this Part.

             (2)  If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse the request and immediately notify the applicants of the decision.

10.38  Application for registration to be returned where request for confidentiality refused etc.

Where:

                     (a)  an application for the provisional or final registration of a conference agreement includes a request under section 10.34 that a part of a document not be open to public inspection under this Part; and

                     (b)  the request is refused by the Registrar;

the Registrar shall also refuse the application, and shall return the application, and any documents that accompanied the application, to the applicants.

Subdivision DMiscellaneous

10.39  Application also to be made for registration of varying conference agreements

             (1)  Subject to subsection (2), if:

                     (a)  application has been made for the provisional or final registration of a conference agreement (in this section called the original agreement), but the original agreement has not been finally registered; and

                     (b)  another conference agreement that varies or otherwise affects the original agreement is or has been made or arrived at;

the Registrar shall not provisionally or finally register the original agreement unless application has been made for the provisional registration of the other conference agreement.

             (2)  Subsection (1) does not apply if the conference agreement referred to in paragraph (1)(b) consists solely of freight rate charges.

10.40  Notification of happening of affecting events prior to final registration etc.

             (1)  If:

                     (a)  application has been made for the provisional or final registration of a conference agreement, but the agreement has not been finally registered; and

                     (b)  either of the following subparagraphs applies:

                              (i)  the proposed operation of the conference agreement is affected, or outwards liner cargo shipping services or inwards liner cargo shipping services proposed to be provided under the agreement are affected, by the happening of an event or otherwise than by a varying conference agreement;

                             (ii)  parties to the conference agreement have made or arrived at an agreement with other ocean carriers that affects outwards liner cargo shipping services or inwards liner cargo shipping services provided, or that would, but for the agreement, have been provided, by the other ocean carriers;

the Registrar shall not provisionally or finally register the original agreement unless the parties to the agreement have notified the Registrar of the matter.

             (2)  The notice must be:

                     (a)  in the appropriate prescribed form; and

                     (b)  given to the Registrar in accordance with the regulations.

             (3)  The notice must comply with any regulations requiring its verification (in whole or part).

             (4)  Where the parties to a conference agreement give a notice under subsection (1), the Registrar may make such variations (if any) to the particulars entered in the register of conference agreements in relation to the agreement as the Registrar considers necessary or desirable to take account of the notice.

Division 7Obligations of ocean carriers in relation to registered conference agreements

10.41  Parties to registered conference agreement to negotiate with certain designated shipper bodies etc.

             (1)  The parties to a registered conference agreement shall:

                     (a)  take part in negotiations with a relevant designated shipper body in relation to negotiable shipping arrangements (including any provisions of the agreement that affect those arrangements) whenever reasonably requested by the shipper body, and consider the matters raised, and representations made, by the shipper body;

                     (b)  if the shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties—make the information available to the shipper body; and

                     (c)  provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.

             (2)  The parties to the agreement shall give each relevant designated shipper body at least 30 days notice of any change in negotiable shipping arrangements unless the shipper body agrees to a lesser period of notice for the change.

             (3)  In this section:

eligible Australian contract means:

                     (a)  a contract entered into in Australia; or

                     (b)  a contract where questions arising under the contract are to be determined in accordance with Australian law.

freight rates includes base freight rates, surcharges, rebates and allowances.

negotiable shipping arrangements:

                     (a)  in relation to an outwards conference agreement—means the arrangements for, or the terms and conditions applicable to, outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call); or

                     (b)  in relation to an inwards conference agreement—means:

                              (i)  the arrangements for, or the terms and conditions applicable to, inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call), where those arrangements or those terms and conditions, as the case may be, are embodied in an eligible Australian contract; or

                             (ii)  the arrangements for, or the terms and conditions applicable to, the parts of the inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement that consist of activities that take place on land in Australia (including, for example, terminal handling charges and charges for inter‑terminal transport services).

relevant designated shipper body:

                     (a)  in relation to an outwards conference agreement—means:

                              (i)  a designated outwards peak shipper body; or

                             (ii)  a designated outwards secondary shipper body nominated by the Registrar (by written notice given to the parties to the agreement) for the purposes of the agreement for the purposes of this section; or

                     (b)  in relation to an inwards conference agreement—means:

                              (i)  a designated inwards peak shipper body; or

                             (ii)  a designated inwards secondary shipper body nominated by the Registrar (by written notice given to the parties to the agreement) for the purposes of the agreement for the purposes of this section.

10.42  Application to be made for registration of varying conference agreements

             (1)  Subject to subsection (3), where a conference agreement that varies or otherwise affects a registered conference agreement is made or arrived at, application shall be made for its provisional registration.

             (2)  The application must be made within 30 days after the making of or arriving at the agreement.

             (3)  Subsection (1) does not apply to a conference agreement that consists solely of freight rate charges.

10.43  Parties to registered conference agreement to notify happening of affecting events etc.

             (1)  Where:

                     (a)  the operation, or proposed operation, of a registered conference agreement is affected, or outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, under the agreement are affected, by the happening of an event or otherwise than by a varying conference agreement; or

                     (b)  parties to a registered conference agreement make or arrive at an agreement with other ocean carriers that affects outwards liner cargo shipping services or inwards liner cargo shipping services provided, or that would, but for the agreement, have been provided, by the other ocean carriers;

the parties to the registered conference agreement shall notify the Registrar of the matter.

             (2)  The notice must be:

                     (a)  in the appropriate prescribed form; and

                     (b)  given to the Registrar in accordance with the regulations within 30 days after the operation, or proposed operation, of the agreement is affected, the services are affected or the agreement is made or arrived at, as the case may be.

             (3)  The notice must comply with any regulations requiring its verification (in whole or part).

             (4)  Where the parties to a registered conference agreement give a notice under subsection (1), the Registrar may make such variations (if any) to the particulars entered in the register of conference agreements in relation to the agreement as the Registrar considers necessary or desirable to take account of the notice.

Division 8Powers of Minister in relation to registered conference agreements

10.44  Powers exercisable by Minister in relation to registered conference agreements etc.

             (1)  Subject to sections 10.45 and 10.46, the Minister may direct the Registrar:

                     (a)  to cancel the registration of a registered conference agreement; or

                     (b)  to cancel the registration of a registered conference agreement so far as it relates to:

                              (i)  a particular provision of the agreement;

                             (ii)  a particular party to the agreement; or

                            (iii)  particular conduct.

             (2)  Where the Minister gives a direction under subsection (1), the Registrar shall immediately enter particulars of the direction in the register of conference agreements.

             (3)  On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the agreement.

             (4)  On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to a particular provision of the agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the provision.

             (5)  On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to a particular party to the agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the party.

             (6)  On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to particular conduct, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to conduct of that kind in relation to the agreement.

             (7)  A direction under subsection (1) must be given in writing, and the Registrar shall serve a copy of the direction on the parties to the conference agreement concerned.

             (8)  If:

                     (a)  the Commission reports to the Minister under section 10.47 or 10.48 in relation to either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix); and

                     (b)  after taking the report into account, the Minister is satisfied of either or both of those matters and decides to give a direction under subsection (1);

the Minister must:

                     (c)  prepare a statement about the decision; and

                     (d)  cause:

                              (i)  a copy of the statement; and

                             (ii)  a copy of the Commission’s report;

                            to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made.

10.45  Circumstances in which Minister may exercise powers in relation to registered conference agreements

             (1)  The Minister shall not give a direction under subsection 10.44(1) in relation to a registered conference agreement unless:

                     (a)  the Minister is satisfied of one or more of the following matters:

                              (i)  in the case of an outwards conference agreement—that the agreement does not comply with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements);

                            (ia)  that section 10.07 (minimum levels of shipping services to be specified in conference agreements) applies to the agreement, and that the agreement does not comply with that section;

                            (ib)  that section 10.08 (conference agreements may include only certain restrictive trade practice provisions) applies to the agreement, and that the agreement does not comply with that section;

                             (ii)  that section 10.41 (parties to registered conference agreement to negotiate with certain designated shipper bodies etc.) applies to the parties to the agreement, and that the parties have contravened, or propose to contravene, that section;

                           (iia)  that parties to the agreement have contravened, or propose to contravene, subsection 10.43(1) (parties to registered conference agreement to notify happening of affecting events etc.);

                            (iii)  that section 10.42 (application to be made for registration of varying conference agreements) has not been complied with in relation to a conference agreement that varies or otherwise affects the agreement;

                            (iv)  that parties to the agreement have given effect to or applied, or propose to give effect to or apply, the agreement without due regard to the need for outwards liner cargo shipping services or inwards liner cargo shipping services provided under the agreement to be:

                                        (A)  efficient and economical; and

                                        (B)  provided at the capacity and frequency reasonably required to meet the needs of shippers who use, and shippers who may reasonably be expected to need to use, the services;

                             (v)  in the case of an outwards conference agreement—that parties to the agreement have given effect to or applied, or propose to give effect to or apply, the agreement in a manner that prevents or hinders an Australian flag shipping operator from engaging efficiently in the provision of outwards liner cargo shipping services to an extent that is reasonable;

                            (vi)  that provisional or final registration of the agreement was granted on the basis of a statement or information that was false or misleading in a material particular;

                           (vii)  that parties to the agreement have breached an undertaking given by the parties to the agreement under section 10.49;

                          (viii)  that subsection (3) applies to parties to the agreement;

                            (ix)  that subsection (4) applies to parties to the agreement; and

                    (aa)  if the Minister is satisfied of either or both of the matters referred to in subparagraphs (1)(a)(viii) and (ix)—at least 21 days before giving the direction, the Minister served on each party to the agreement a written notice of his or her intention to give the direction; and

                     (b)  the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the parties to the agreement directed at obtaining an undertaking or action by the parties that would have made a direction under subsection 10.44(1) unnecessary; and

                     (c)  either of the following subparagraphs applies:

                              (i)  the Commission has reported to the Minister under section 10.47 or 10.48 in relation to matters referred to in paragraph (a) of which the Minister is satisfied and the Minister has taken the report into account;

                             (ii)  the Minister is satisfied that the special circumstances of the case make it desirable to give the direction before he or she receives such a report from the Commission.

             (2)  For the purposes of subparagraph (1)(a)(v), in determining what is reasonable, have regard to:

                     (a)  the national interest; and

                     (b)  the interests of the following:

                              (i)  Australian shippers generally;

                             (ii)  Australian shippers in a particular trade;

                            (iii)  Australian shippers of particular kinds of goods;

                            (iv)  shippers in a particular part of Australia; and

                     (c)  any other relevant matters.

             (3)  This subsection applies to the parties to a registered conference agreement if:

                     (a)  the agreement includes a provision that is covered by paragraph 10.08(1)(aa) or (b); and

                     (b)  the parties to the agreement have engaged in conduct, or propose to engage in conduct, to give effect to or apply the provision; and

                     (c)  that conduct or proposed conduct has not resulted in, or is unlikely to result in, a benefit to the public that outweighs the detriment to the public constituted by any lessening of competition that:

                              (i)  has resulted, or is likely to result, from the conduct; or

                             (ii)  would result, or be likely to result, if the proposed conduct were engaged in; and

                     (d)  there are exceptional circumstances that warrant the giving of a direction under subsection 10.44(1).

             (4)  This subsection applies to the parties to a registered conference agreement if:

                     (a)  the parties to the agreement have prevented, or are proposing to prevent, the entry of a prospective party to the agreement; and

                     (b)  the prevention or proposed prevention is unreasonable; and

                     (c)  the prevention or proposed prevention is contrary to the interests of any or all of the following:

                              (i)  Australian shippers generally;

                             (ii)  Australian shippers in a particular trade;

                            (iii)  Australian shippers of particular kinds of goods;

                            (iv)  shippers in a particular part of Australia;

                             (v)  in the case of an outwards conference agreement—producers of goods of a kind exported, or proposed to be exported, from Australia.

10.46  Action to be taken where powers exercised by Minister without first obtaining Commission report

             (1)  Where the Minister gives a direction under subsection 10.44(1) before receiving a report under section 10.47 or 10.48 in relation to matters referred to in paragraph 10.45(1)(a) of which the Minister was satisfied before giving the direction, the Minister shall immediately refer the matters to the Commission under section 10.47.

             (2)  The Commission shall report to the Minister within a period of not more than 60 days in relation to those matters and any other matters that the Commission is then investigating under this Division in relation to the conference agreement concerned.

             (3)  If, after taking the Commission’s report into account, the Minister is satisfied of one or more of the matters referred to in paragraph 10.45(1)(a), the Minister may, within 21 days after receiving the Commission’s report, direct the Registrar not to take action under subsection (4) in relation to the agreement, and may also give such further directions under subsection 10.44(1) in relation to the agreement as the Minister considers appropriate.

             (4)  The Registrar shall delete the particulars of the direction under subsection 10.44(1) from the register of conference agreements at the end of 21 days after the Minister receives the Commission’s report unless the Minister has given a direction under subsection (3) in relation to the agreement.

             (5)  On the deletion of the particulars of the direction, Subdivision A of Division 5 applies in relation to the agreement to the extent to which it would have applied but for the entry of the particulars.

             (6)  Subsection (1) shall not be taken by implication to limit the matters that may be referred to the Commission under section 10.47.

             (7)  A direction under subsection (3) must be given in writing, and the Registrar must serve a copy of the direction on the parties to the conference agreement concerned.

             (8)  If, after taking the Commission’s report into account:

                     (a)  the Minister is satisfied of either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix); and

                     (b)  the Minister decides to give a direction under subsection (3);

the Minister must:

                     (c)  prepare a statement about the decision; and

                     (d)  cause:

                              (i)  a copy of the statement; and

                             (ii)  a copy of the Commission’s report;

                            to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made.

10.47  Investigation and report by Commission on reference by Minister

             (1)  The Minister may refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied in relation to a registered conference agreement of one or more specified matters referred to in paragraph 10.45(1)(a).

             (2)  The Commission shall hold an investigation into the question and report to the Minister.

             (3)  In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.

10.48  Investigation and report by Commission on own initiative or on application by affected person

             (1)  A person affected by the operation of a registered conference agreement may apply to the Commission for an investigation into the question whether grounds exist for the Minister to be satisfied in relation to the agreement of one or more specified matters referred to in paragraph 10.45(1)(a).

             (2)  If subsection (1) applies, the Commission may hold an investigation into the question, and, if it decides to do so, it shall inform the Minister of its decision and report to the Minister.

          (2A)  The Commission may, on its own initiative, hold an investigation into the question whether grounds exist for the Minister to be satisfied in relation to a registered conference agreement of either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix).

          (2B)  If subsection (2A) applies, the Commission must inform the Minister of its decision to hold an investigation and report to the Minister.

             (3)  In its investigation, the Commission shall give special consideration to such matters (if any) as the Minister requests it to give special consideration.

             (4)  A request under subsection (3) must be made in writing.

             (5)  Without limiting subsection (1), each of the following persons shall be taken to be a person affected by the operation of a registered conference agreement:

                     (a)  a party to the agreement;

                     (b)  a designated shipper body;

                     (c)  in the case of an outwards conference agreement—an Australian flag shipping operator;

                     (d)  a shipper who uses, or may reasonably be expected to need to use, outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, under the agreement;

                     (e)  an association representing shippers who use, or may reasonably be expected to need to use, such services.

10.49  Undertakings by parties to registered conference agreement

             (1)  The parties to a registered conference agreement may, at any time, offer to give an undertaking to do, or not to do, a specified act or thing.

             (2)  The offer must be:

                     (a)  in the appropriate prescribed form; and

                     (b)  made to the Minister in accordance with the regulations.

             (3)  If the Minister accepts the offer, the Minister may do one or more of the following:

                     (a)  revoke any reference made to the Commission under section 10.47 in relation to the agreement;

                     (b)  direct the Commission, in writing, to cease holding any investigation being held by it under section 10.48 in relation to the agreement;

                     (c)  revoke any direction given under subsection 10.44(1) in relation to the agreement.

             (4)  If the Minister accepts the offer, the parties shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of conference agreements.

             (5)  If the Minister revokes a direction given under subsection 10.44(1), the Registrar shall immediately include in the register a notation to the effect that the direction has been revoked.

             (6)  On the inclusion of the notation, Subdivision A of Division 5 applies in relation to the agreement to the extent to which it would have applied but for the entry of the particulars of the direction.

10.49A  Enforcement of undertakings

             (1)  A party to a registered conference agreement must not contravene an undertaking given under section 10.49.

             (2)  Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV.

Division 9Obligations of non‑conference ocean carriers with substantial market power

10.50  Investigations by Commission into market power of ocean carriers

             (1)  The Minister may refer to the Commission for investigation and report the question whether an ocean carrier has a substantial degree of market power in the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on a trade route otherwise than because the ocean carrier is a party to a conference agreement.

             (2)  The Commission shall hold an investigation into the question and report to the Minister.

             (3)  In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.

10.51  Determination by Minister of market power of ocean carriers

             (1)  Where:

                     (a)  the Commission reports to the Minister under section 10.50 that an ocean carrier has a substantial degree of market power in the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on a trade route otherwise than because the ocean carrier is a party to a conference agreement; or

                     (b)  an ocean carrier agrees, in writing, to the Minister giving a direction under this subsection in relation to the ocean carrier in relation to a trade route;

the Minister may direct the Registrar to register the ocean carrier as a non‑conference ocean carrier with substantial market power in relation to the trade route.

             (2)  Where the Minister gives a direction under subsection (1), the Registrar shall immediately enter particulars of the ocean carrier and the trade route in the register of non‑conference ocean carriers with substantial market power.

             (3)  A direction under subsection (1) must be in writing, and the Registrar shall serve a copy of the direction on the ocean carrier concerned.

10.52  Non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.

             (1)  A registered non‑conference ocean carrier with substantial market power shall:

                     (a)  take part in negotiations with a relevant designated shipper body in relation to negotiable shipping arrangements whenever reasonably requested by the shipper body, and consider the matters raised, and representations made, by the shipper body;

                     (b)  if the shipper body requests the ocean carrier to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the ocean carrier—make the information available to the shipper body; and

                     (c)  provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.

             (2)  The ocean carrier shall give each relevant designated shipper body at least 30 days notice of any change in negotiable shipping arrangements unless the shipper body agrees to a lesser period of notice for the change.

             (3)  In this section:

eligible Australian contract means:

                     (a)  a contract entered into in Australia; or

                     (b)  a contract where questions arising under the contract are to be determined in accordance with Australian law.

freight rates includes base freight rates, surcharges, rebates and allowances.

negotiable shipping arrangements means:

                     (a)  the arrangements for, or the terms and conditions applicable to, outwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call); or

                     (b)  the arrangements for, or the terms and conditions applicable to, inwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call), where those arrangements or those terms and conditions, as the case may be, are embodied in an eligible Australian contract; or

                     (c)  the arrangements for, or the terms and conditions applicable to, the parts of the inwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route that consist of activities that take place on land in Australia (including, for example, terminal handling charges and charges for inter‑terminal transport services).

relevant designated shipper body:

                     (a)  in relation to negotiations connected with outwards liner cargo shipping services—means:

                              (i)  a designated outwards peak shipper body; or

                             (ii)  a designated outwards secondary shipper body nominated by the Registrar (by written notice given to the ocean carrier) for the purposes of the relevant trade route; or

                     (b)  in relation to negotiations connected with inwards liner cargo shipping services—means:

                              (i)  a designated inwards peak shipper body; or

                             (ii)  a designated inwards secondary shipper body nominated by the Registrar (by written notice given to the ocean carrier) for the purposes of the relevant trade route.

relevant trade route means the trade route specified in relation to the ocean carrier in the register of non‑conference ocean carriers with substantial market power.

10.53  Non‑conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc.

             (1)  A registered non‑conference ocean carrier with substantial market power shall not prevent or hinder an Australian flag shipping operator from engaging efficiently in the provision of outwards liner cargo shipping services to an extent that is reasonable.

             (2)  For the purposes of subsection (1), in determining what is reasonable, have regard to:

                     (a)  the national interest; and

                     (b)  the interests of the following:

                              (i)  Australian shippers generally;

                             (ii)  Australian shippers in a particular trade;

                            (iii)  Australian shippers of particular kinds of goods;

                            (iv)  shippers in a particular part of Australia; and

                     (c)  any other relevant matters.

Division 10Powers of Minister in relation to non‑conference ocean carriers with substantial market power

10.54  Powers exercisable by Minister in relation to obligations of non‑conference ocean carriers with substantial market power

             (1)  Subject to sections 10.55 and 10.56, the Minister may, by writing served on a registered non‑conference ocean carrier with substantial market power, order the ocean carrier to comply with any of the ocean carrier’s obligations under Division 9.

             (2)  Where the Minister makes an order under subsection (1), the Registrar shall immediately enter particulars of the order in the register of non‑conference ocean carriers with substantial market power.

10.55  Circumstances in which Minister may exercise powers

                   The Minister shall not make an order under subsection 10.54(1) unless:

                     (a)  the Minister is satisfied of either or both of the following matters:

                              (i)  that section 10.52 (non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.) applies to the ocean carrier concerned, and that the ocean carrier has contravened, or proposes to contravene, that section;

                             (ii)  that the ocean carrier concerned has contravened, or proposes to contravene, section 10.53 (non‑conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc.);

                     (b)  the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the ocean carrier directed at obtaining an undertaking or action by the ocean carrier that would have made an order under subsection 10.54(1) unnecessary; and

                     (c)  either of the following subparagraphs applies:

                              (i)  the Commission has reported to the Minister under section 10.57 or 10.58 in relation to matters referred to in paragraph (a) of which the Minister is satisfied and the Minister has taken the report into account;

                             (ii)  the Minister is satisfied that the special circumstances of the case make it desirable to make the order before he or she receives such a report from the Commission.

10.56  Action to be taken where powers exercised by Minister without first obtaining Commission report

             (1)  Where the Minister makes an order under subsection 10.54(1) before receiving a report under section 10.57 or 10.58 in relation to matters referred to in paragraph 10.55(a) of which the Minister was satisfied before making the order, the Minister shall immediately refer the matters to the Commission under section 10.57.

             (2)  The Commission shall report to the Minister within a period of not more than 60 days in relation to those matters and any other matters that the Commission is then investigating under this Division in relation to the ocean carrier concerned.

             (3)  If, after taking the Commission’s report into account, the Minister is satisfied of one or more of the matters referred to in paragraph 10.55(a), the Minister may, within 21 days after receiving the Commission’s report, direct the Registrar not to take action under subsection (4) in relation to the ocean carrier, and may also make such further orders under subsection 10.54(1) in relation to the ocean carrier as the Minister considers appropriate.

             (4)  The Registrar shall delete the particulars of the order under subsection 10.54(1) from the register of non‑conference ocean carriers with substantial market power at the end of 21 days after the Minister receives the Commission’s report unless the Minister has given a direction under subsection (3) in relation to the ocean carrier.

             (5)  Subsection (1) shall not be taken by implication to limit the matters that may be referred to the Commission under section 10.57.

             (6)  A direction under subsection (3) must be given in writing, and the Registrar must serve a copy of the direction on the ocean carrier.

10.57  Investigation and report by Commission on reference by Minister

             (1)  The Minister may refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied in relation to a registered non‑conference ocean carrier with substantial market power of one or more specified matters referred to in paragraph 10.55(a).

             (2)  The Commission shall hold an investigation into the question and report to the Minister.

             (3)  In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.

10.58  Investigation and report by Commission on application by affected person

             (1)  A person affected by the conduct of a registered non‑conference ocean carrier with substantial market power may apply to the Commission for an investigation into the question whether grounds exist for the Minister to be satisfied in relation to the ocean carrier of one or more specified matters referred to in paragraph 10.55(a).

             (2)  The Commission may hold an investigation into the question, and, if it decides to do so, it shall inform the Minister of its decision and report to the Minister.

             (3)  In its investigation, the Commission shall give special consideration to such matters (if any) as the Minister requests it to give special consideration.

             (4)  A request under subsection (3) must be made in writing.

             (5)  Without limiting subsection (1), each of the following persons shall be taken to be a person affected by the conduct of a registered non‑conference ocean carrier with substantial market power:

                     (a)  a designated shipper body;

                     (b)  in the case of an investigation relating to outwards liner cargo shipping services—an Australian flag shipping operator;

                     (c)  a shipper who uses, or may reasonably be expected to need to use, outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, on the trade route specified in relation to the ocean carrier in the register of non‑conference ocean carriers with substantial market power;

                     (d)  an association representing shippers who use, or may reasonably be expected to need to use, such services.

10.59  Undertakings by ocean carrier

             (1)  A registered non‑conference ocean carrier with substantial market power may, at any time, offer to give an undertaking to do, or not to do, a specified act or thing.

             (2)  The offer must be:

                     (a)  in the appropriate prescribed form; and

                     (b)  made to the Minister in accordance with the regulations.

             (3)  If the Minister accepts the offer, the Minister may do one or more of the following:

                     (a)  revoke any reference made to the Commission under section 10.57 in relation to the ocean carrier;

                     (b)  direct the Commission, in writing, to cease holding any investigation being held by it under section 10.58 in relation to the ocean carrier;

                     (c)  revoke any order made under subsection 10.54(1) in relation to the ocean carrier.

             (4)  If the Minister accepts the offer, the ocean carrier shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of non‑conference ocean carriers with substantial market power.

             (5)  If the Minister revokes an order made under subsection 10.54(1), the Registrar shall immediately include in the register a notation to the effect that the order has been revoked.

10.60  Enforcement of orders and undertakings

             (1)  An ocean carrier shall not contravene an order made under subsection 10.54(1) or an undertaking given under section 10.59.

             (2)  Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV.

Division 11Unfair pricing practices

10.61  Powers exercisable by Minister in relation to pricing practices etc.

             (1)  Subject to section 10.62, the Minister may, by writing served on an ocean carrier, order the ocean carrier not to engage in a pricing practice.

             (2)  Where the Minister makes an order under subsection (1), the Registrar shall immediately enter particulars of the order in the register of obligations concerning unfair pricing practices.

10.62  Circumstances in which Minister may exercise powers

                   The Minister shall not make an order under subsection 10.61(1) unless:

                     (a)  the Minister is satisfied:

                              (i)  that the ocean carrier concerned has engaged in the pricing practice concerned in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on a particular trade route;

                             (ii)  that the practice has resulted in the freight rates charged by the ocean carrier for all or some outwards liner cargo shipping services or inwards liner cargo shipping services provided on the trade route being less than normal freight rates for services of that kind (as determined in accordance with section 10.66);

                            (iii)  that the practice is of such a magnitude or such a recurring or systematic character that it has prevented or hindered, or threatens to prevent or hinder, the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on the trade route that are:

                                        (A)  efficient and economical; and

                                        (B)  provided at the capacity and frequency reasonably required to meet the needs of shippers who use, and shippers who may reasonably be expected to need to use, the services; and

                            (iv)  that the practice is contrary to the national interest (as determined in accordance with section 10.67);

                     (b)  the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the ocean carrier directed at obtaining an undertaking or action by the ocean carrier that would have made an order under subsection 10.61(1) unnecessary; and

                     (c)  the Commission has reported to the Minister under section 10.63 in relation to the ocean carrier in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on the trade route and the Minister has taken the report into account.

10.63  Investigation and report by Commission

             (1)  The Minister may, on the complaint of an affected person or otherwise, refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied, in relation to an ocean carrier in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on a trade route, of the matters referred to in paragraph 10.62(a).

             (2)  The Commission shall hold an investigation into the question and report to the Minister.

             (3)  In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.

10.64  Undertakings not to engage in pricing practices

             (1)  An ocean carrier may, at any time, offer to give an undertaking:

                     (a)  not to engage in a pricing practice; and

                     (b)  to give the Registrar such information as the Registrar from time to time requires (verified as the Registrar requires) for the purpose of ascertaining whether the ocean carrier is engaging in, or has engaged in, the pricing practice.

             (2)  The offer must be:

                     (a)  in the appropriate prescribed form; and

                     (b)  made to the Minister in accordance with the regulations.

             (3)  If the Minister accepts the offer, the Minister may do either or both of the following:

                     (a)  revoke any reference made to the Commission under subsection 10.63(1) in relation to the ocean carrier;

                     (b)  revoke any order made under subsection 10.61(1) in relation to the ocean carrier.

             (4)  If the Minister accepts the offer, the ocean carrier shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of obligations concerning unfair pricing practices.

             (5)  If the Minister revokes an order made under subsection 10.61(1), the Registrar shall immediately include in the register a notation to the effect that the order has been revoked.

10.65  Enforcement of orders and undertakings

             (1)  An ocean carrier shall not contravene an order made under subsection 10.61(1) or an undertaking given under section 10.64.

             (2)  Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV.

10.66  Determination of normal freight rates for shipping services

             (1)  The normal freight rates for outwards liner cargo shipping services or inwards liner cargo shipping services provided on a trade route are, subject to subsection (2), the freight rates actually charged in the ordinary course of shipping business for the same or similar services on the same or a comparable trade route by ocean carriers who do not enjoy non‑commercial advantages given by a government (including a government of a foreign country).

             (2)  If such actual freight rates do not exist or it is not possible to ascertain satisfactorily what they are, the normal freight rates for the services may be determined by:

                     (a)  comparing the costs of the ocean carrier concerned and comparable ocean carriers who do not enjoy non‑commercial advantages given by a government (including a government of a foreign country); and

                     (b)  allowing reasonable margins of profit.

             (3)  The comparison shall:

                     (a)  take into account all costs incurred in the ordinary course of shipping business, whether the costs are fixed or variable; and

                     (b)  allow for reasonable overhead expenses.

10.67  Determination of whether practice contrary to national interest

             (1)  In determining whether a pricing practice in relation to outwards liner cargo shipping services is contrary to the national interest, regard shall be had, in particular, to:

                     (a)  the effect that the practice has had, or is likely to have, in relation to:

                              (i)  continued access by Australian exporters to outwards liner cargo shipping services of adequate frequency and reliability at freight rates that are internationally competitive; and

                             (ii)  stable access to export markets for exporters in all States and Territories;

                     (b)  the extent to which any advantages provided by the practice or similar practices are enjoyed by competitors of Australian exporters; and

                     (c)  the effect that denial of any advantages provided by the practice would have on the competitiveness of Australian industries.

             (2)  Subsection (3) applies when determining whether a pricing practice in relation to inwards liner cargo shipping services is contrary to the national interest.

             (3)  Regard must be had, in particular, to the effect that the practice has had, or is likely to have, in relation to continuous stable access by Australian importers in all States and Territories to inwards liner cargo shipping services that:

                     (a)  are of adequate frequency and reliability; and

                     (b)  are at freight rates that are internationally competitive.

Division 12Registration of ocean carrier agents

10.68  Ocean carrier who provides international liner cargo shipping services to have registered agent

             (1)  Every ocean carrier who provides international liner cargo shipping services shall, at all times, be represented for the purposes of this Act by a person who:

                     (a)  is an individual resident in Australia;

                     (b)  has been appointed by the ocean carrier as the ocean carrier’s agent for the purposes of this Act; and

                     (c)  is specified in the register of ocean carrier agents as the ocean carrier’s agent.

             (2)  An ocean carrier who, without reasonable excuse, contravenes subsection (1) is guilty of an offence punishable, on conviction, by a fine not exceeding:

                     (a)  in the case of a natural person—$2,000; and

                     (b)  in the case of a body corporate—$10,000.

10.69  Representation of ocean carrier by registered agent

             (1)  Everything done by or in relation to an ocean carrier’s registered agent in that capacity shall, for the purposes of this Act, be taken to be done by or in relation to the ocean carrier.

             (2)  Without limiting subsection (1), a document required or permitted to be served on, or given to, an ocean carrier under or for the purposes of this Act (including the process of any court) may be served on, or given to, the ocean carrier by serving it on, or giving it to, the ocean carrier’s registered agent.

             (3)  A document that is, under subsection (2), permitted to be served on, or given to, an ocean carrier’s registered agent may be served on, or given to, the agent by:

                     (a)  delivering it to the agent personally; or

                     (b)  leaving it at, or sending it by pre‑paid post to, the address for service specified in relation to the agent in the register of ocean carrier agents.

             (4)  Subsection (3) does not affect:

                     (a)  the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or

                     (b)  the power of a court to authorise service of a document otherwise than as provided in that subsection.

10.70  Application by ocean carrier for registration of agent

             (1)  An ocean carrier may apply for the registration of a person as the ocean carrier’s agent for the purposes of this Act.

             (2)  The person must:

                     (a)  be an individual resident in Australia;

                     (b)  have been appointed by the ocean carrier as the ocean carrier’s agent for the purposes of this Act; and

                     (c)  have an address for service in Australia.

             (3)  The application must be:

                     (a)  made to the Registrar;

                     (b)  made in the prescribed form and in accordance with the regulations; and

                     (c)  accompanied by the prescribed fee.

10.71  Registration of agent

             (1)  Where an ocean carrier properly applies under section 10.70 for the registration of an agent, the Registrar shall register the agent by entering particulars of the ocean carrier and the agent in the register of ocean carrier agents.

             (2)  The particulars entered in the register must include:

                     (a)  the name of the ocean carrier; and

                     (b)  the name, and address for service, of the agent.

10.72  Change of agent etc.

             (1)  An ocean carrier may, by notice given to the Registrar:

                     (a)  revoke the appointment of the ocean carrier’s registered agent and, subject to subsection (2), appoint a new agent for the purposes of this Act;

                     (b)  change the address for service of the ocean carrier’s registered agent to another address in Australia; or

                     (c)  request the Registrar to vary any of the particulars entered in the register of ocean carrier agents in relation to the ocean carrier.

             (2)  A new agent appointed under paragraph (1)(a) must:

                     (a)  be an individual resident in Australia; and

                     (b)  have an address for service in Australia.

             (3)  A notice under paragraph (1)(a), (b) or (c):

                     (a)  must be in the appropriate prescribed form;

                     (b)  must be given to the Registrar in accordance with the regulations; and

                     (c)  may be expressed to take effect on and from a specified future day.

             (4)  Where an ocean carrier properly gives a notice under paragraph (1)(a) or (b), the Registrar shall immediately make such variations to the particulars entered in the register of ocean carrier agents in relation to the ocean carrier as are necessary to give effect to the notice.

             (5)  Where an ocean carrier properly gives a notice under paragraph (1)(c), the Registrar shall make such variations (if any) to the particulars entered in the register of ocean carrier agents in relation to the ocean carrier as the Registrar considers necessary or desirable to give effect to the notice.

Division 12AExemption orders for inwards conference agreements etc.

10.72A  Exemption orders for inwards conference agreements etc.

             (1)  The Minister may, by legislative instrument, make an order exempting:

                     (a)  a specified inwards conference agreement; or

                     (b)  specified inwards liner cargo shipping services; or

                     (c)  specified conduct in relation to the provision, or proposed provision, of inwards liner cargo shipping services;

from the scope of any or all of the eligible regulatory provisions.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

             (2)  The Registrar must enter particulars of any order under subsection (1) in the register of exemption orders.

             (4)  For the purposes of this section, each of the following provisions is an eligible regulatory provision:

                     (a)  subsection 10.07(2);

                     (b)  section 10.08;

                     (c)  paragraph 10.28(1)(ba);

                     (d)  subsection 10.29(1A);

                     (e)  section 10.40;

                      (f)  section 10.41;

                     (g)  section 10.43;

                     (h)  subparagraph 10.45(1)(a)(iv);

                      (i)  subsection 10.45(3);

                      (j)  subsection 10.45(4);

                     (k)  section 10.52;

                      (l)  subparagraph 10.62(a)(i).

10.72B  Criteria for making exemption order

             (1)  The Minister must not make an exemption order unless the Minister is of the opinion that it is in the national interest to make the order.

             (2)  For the purposes of subsection (1), in determining what is in the national interest, the Minister must have regard to each of the following:

                     (a)  Australia’s international relations;

                     (b)  Australia’s international obligations;

                     (c)  any relevant principle of international law or practice;

                     (d)  the interests of Australian exporters;

                     (e)  the interests of Australian importers;

                      (f)  any other relevant matters.

10.72C  Duration of exemption order may be limited

             (1)  An exemption order may be expressed to be in force for a period specified in the order.

             (2)  Subsection (1) does not prevent the revocation of an exemption order in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

10.72D  Conditions of exemption order

                   An exemption order may be expressed to be subject to such conditions as are specified in the order.

Division 13General provisions relating to registers and conference agreement files

10.73  Form of registers and conference agreement files

             (1)  The registers and conference agreement files kept by the Registrar may be kept in such form (whether or not documentary form) as the Registrar considers appropriate.

             (2)  The register of Commission investigations may be kept in such form (whether or not documentary form) as the Commission considers appropriate.

10.74  Deletion of entries wrongly existing in certain registers

                   Where the Registrar is satisfied that an entry wrongly exists in a register kept by the Registrar, the Registrar shall delete the entry.

10.75  Deletion of obsolete entries in certain registers

                   Where the Registrar is satisfied that an entry in a register kept by the Registrar is obsolete, the Registrar may delete the entry.

10.76  Correction of clerical errors and other mistakes in certain registers etc.

                   Where the Registrar is satisfied that a clerical error or other mistake exists in particulars entered in a register kept by the Registrar or that matters included in particulars entered in a register kept by the Registrar are obsolete, the Registrar may vary the particulars for the purpose of correcting the error or mistake or removing the obsolete matters.

Division 14Administration

10.77  Registrar of Liner Shipping

                   There shall be a Registrar of Liner Shipping.

10.78  Appointment of Registrar etc.

                   The Registrar shall be appointed by the Minister, and holds office during the pleasure of the Minister.

10.79  Acting Registrar

                   The Minister may appoint a person to act as Registrar:

                     (a)  during a vacancy in the office of Registrar (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Registrar is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.

10.80  Registrar and staff to be public servants

                   The Registrar, and any staff of the Registrar, shall be persons engaged under the Public Service Act 1999.

10.81  Delegation by Minister

                   The Minister may, by signed writing, delegate to the Registrar, or to a person occupying a specified office in the Department, all or any of the Minister’s powers under or in relation to this Part (other than powers under sections 10.02A and 10.03, subsections 10.06(1) and 10.44(1), sections 10.46, 10.47, 10.48 and 10.50, subsection 10.54(1), sections 10.56, 10.57 and 10.58, subsection 10.61(1) and sections 10.63 and 10.72A).

10.82  Delegation by Registrar

                   The Registrar may, by signed writing, delegate to a person occupying a specified office in the Department all or any of the Registrar’s powers under this Part.

Division 14AReview of decisions of Commission

10.82A  Review by Tribunal

             (1)  For the purposes of this section, each of the following decisions of the Commission is a reviewable decision:

                     (a)  a decision to refuse to hold an investigation under subsection 10.48(2) or 10.58(2);

                     (b)  a decision under section 10.88 to:

                              (i)  exclude a document, or the particulars of a submission, from the register of Commission investigations; or

                             (ii)  refuse to exclude a document, or the particulars of a submission, from the register of Commission investigations.

             (2)  If the Commission makes a reviewable decision:

                     (a)  a person whose interests are affected by the decision; or

                     (b)  a designated shipper body;

may apply in writing to the Tribunal for a review of the decision.

             (3)  An application under this section for a review of a decision must be made within 21 days after the Commission made the decision.

             (4)  If the Tribunal receives an application under this section for a review of a decision, the Tribunal must review the decision.

10.82B  Functions and powers of Tribunal

             (1)  On a review of a decision of the Commission of a kind mentioned in section 10.82A, the Tribunal may make a decision affirming, setting aside or varying the decision of the Commission and, for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.

             (2)  A decision by the Tribunal affirming, setting aside or varying a decision of the Commission is taken for the purposes of this Act (other than this Division) to be a decision of the Commission.

             (3)  For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.

             (4)  For the purposes of a review, the Tribunal may have regard to any information given, documents produced or evidence given to the Commission in connection with the making of the decision to which the review relates.

Note:          Division 2 of Part IX applies to proceedings before the Tribunal.

10.82C  Provisions that do not apply in relation to a Tribunal review

                   Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision of the Commission of a kind mentioned in section 10.82A.

Division 14BReview of decisions of Minister

10.82D  Review by Tribunal

             (1)  For the purposes of this section, each of the following decisions of the Minister is a reviewable decision:

                     (a)  a decision to:

                              (i)  give; or

                             (ii)  refuse to give;

                            a direction under subsection 10.44(1), subsection 10.46(3), paragraph 10.49(3)(b), subsection 10.51(1), subsection 10.56(3) or paragraph 10.59(3)(b);

                     (b)  a decision under section 10.49, 10.59 or 10.64 to:

                              (i)  accept an offer; or

                             (ii)  refuse to accept an offer;

                     (c)  a decision under paragraph 10.49(3)(a), 10.59(3)(a) or 10.64(3)(a) to:

                              (i)  revoke a reference; or

                             (ii)  refuse to revoke a reference;

                     (d)  a decision under paragraph 10.49(3)(c) to:

                              (i)  revoke a direction; or

                             (ii)  refuse to revoke a direction;

                     (e)  a decision to:

                              (i)  make; or

                             (ii)  refuse to make;

                            an order under subsection 10.54(1) or 10.61(1);

                      (f)  a decision under paragraph 10.59(3)(c) or 10.64(3)(b) to:

                              (i)  revoke an order; or

                             (ii)  refuse to revoke an order.

             (2)  If the Minister makes a reviewable decision:

                     (a)  a person whose interests are affected by the decision; or

                     (b)  a designated shipper body;

may apply in writing to the Tribunal for a review of the decision.

             (3)  An application under this section for a review of a decision must be made within 21 days after the Minister made the decision.

             (4)  If the Tribunal receives an application under this section for a review of a decision, the Tribunal must review the decision.

10.82E  Functions and powers of Tribunal

             (1)  On a review of a decision of the Minister of a kind mentioned in section 10.82D, the Tribunal may make a decision affirming, setting aside or varying the decision of the Minister and, for the purposes of the review, may perform all the functions and exercise all the powers of the Minister.

             (2)  A decision by the Tribunal affirming, setting aside or varying a decision of the Minister is taken for the purposes of this Act (other than this Division) to be a decision of the Minister.

             (3)  For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may request the Minister to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies. The Minister must comply with such a request.

             (4)  For the purposes of a review, the Tribunal may have regard to any information given, documents produced or evidence given to the Minister in connection with the making of the decision to which the review relates.

Note:          Division 2 of Part IX applies to proceedings before the Tribunal.

10.82F  Modifying register after Tribunal review

             (1)  If:

                     (a)  the Tribunal decides to set aside or vary a decision of the Minister; and

                     (b)  a register kept by the Registrar is not consistent with the decision of the Tribunal;

the Minister must direct the Registrar to take such action, by way of modifying the register, as is necessary to ensure that the register is consistent with the Tribunal’s decision.

             (2)  The Registrar must comply with a direction under subsection (1).

             (3)  If, in accordance with subsection (2), the Registrar:

                     (a)  deletes particulars of a direction under subsection 10.44(1) from the register of conference agreements; or

                     (b)  includes in the register of conference agreements a notation to the effect that a direction under subsection 10.44(1) has been set aside;

Subdivision A of Division 5 applies in relation to the conference agreement concerned to the extent to which that Subdivision would have applied but for the entry of the particulars of the direction.

10.82G  Provisions that do not apply in relation to a Tribunal review

                   Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision of the Minister of a kind mentioned in section 10.82D.

Division 15Miscellaneous

10.83  Act not to affect rights under Freedom of Information Act

                   Nothing in this Part affects a right that a person may have under the Freedom of Information Act 1982.

10.84  Review of decisions of Registrar

             (1)  Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision.

             (2)  In subsection (1):

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

reviewable decision means a decision of the Registrar under this Part, other than:

                     (a)  a decision to provisionally or finally register a conference agreement; or

                     (b)  a decision as to the form of a register.

10.85  Statement to accompany notices of Registrar

             (1)  Where the Registrar makes a reviewable decision (within the meaning of section 10.84) and gives to a person whose interests are affected by the decision written notice of the making of the decision, the notice must include:

                     (a)  a statement to the effect that application may be made to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 for review of a decision of the Registrar under this Part; and

                     (b)  a statement to the effect that a person who is entitled to apply to the Administrative Appeals Tribunal for review of a decision may, under section 28 of that Act, request a statement that includes reasons for the decision.

             (2)  Paragraph (1)(b) does not apply in relation to a case to which subsection 28(4) of the Administrative Appeals Tribunal Act 1975 applies.

             (3)  A contravention of subsection (1) in relation to a decision does not affect the validity of the decision.

10.86  Evidence

             (1)  A certificate signed by the Registrar stating any matter in relation to the registration under this Part of an ocean carrier, ocean carrier’s agent, conference agreement, direction, undertaking, determination or order, or any other matter in relation to a register, or conference agreement file, kept by the Registrar under this Part, is prima facie evidence of the matter.

             (2)  Without limiting subsection (1), the matters that may be certified under that subsection include:

                     (a)  whether an ocean carrier, ocean carrier’s agent, conference agreement, undertaking, determination or order is or is not registered under this Part;

                     (b)  the name and address for service of an ocean carrier’s agent; and

                     (c)  the provisions and other particulars of a conference agreement, direction, undertaking, determination or order.

             (3)  A document purporting to be a certificate under subsection (1) shall, unless the contrary is established, be taken to be such a certificate and to have been properly given.

10.87  Notification by Commission of references etc.

                   The Commission may make public, in such manner as it considers appropriate:

                     (a)  receipt of references under subsections 10.47(1), 10.50(1), 10.57(1) and 10.63(1); and

                     (b)  decisions made by it under subsections 10.48(2), 10.48(2A) and 10.58(2) to hold investigations.

10.88  Exclusion of documents etc. from register of Commission investigations

             (1)  Where:

                     (a)  a person gives a document to the Commission in relation to an investigation; or

                     (b)  a person makes an oral submission to the Commission in relation to an investigation;

the person may, at the same time, request that the document, or the particulars of the submission, be excluded from the register because of the confidential nature of matters contained in the document or submission.

             (2)  If the Commission is satisfied that the request is justified because disclosure of matters contained in the document or submission would disclose:

                     (a)  trade secrets;

                     (b)  information (other than trade secrets) having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or

                     (c)  any other information concerning a person in relation to the person’s business or professional affairs, or concerning the business, commercial or financial affairs of an organisation or undertaking, the disclosure of which would, or could reasonably be expected to, unreasonably affect the person adversely in relation to the person’s lawful business or professional affairs or the organisation or undertaking in relation to its lawful business, commercial or financial affairs;

the Commission shall exclude the document, or the particulars of the submission, from the register.

             (3)  If:

                     (a)  the Commission refuses a request to exclude a document from the register; and

                     (b)  the person who gave the document requests the Commission to return it;

the Commission shall return the document and, in that case, paragraph 10.13(2)(d) does not apply in relation to the document.

             (4)  If:

                     (a)  the Commission refuses a request to exclude the particulars of an oral submission from the register; and

                     (b)  the person who made the submission withdraws it;

paragraph 10.13(2)(e) does not apply in relation to the submission.

             (5)  If the Commission is satisfied that it is otherwise desirable to do so, the Commission may exclude a document, or the particulars of a submission, from the register.

             (6)  If a person makes a request under subsection (1), the document or the particulars of the submission concerned must not be included in the register until the Commission has dealt with the request.

             (7)  In this section:

document includes a part of a document.

investigation means an investigation under section 10.47, 10.48, 10.50, 10.57, 10.58 or 10.63.

register means the register of Commission investigations.

submission includes a part of a submission.

10.89  Disclosure of confidential information

             (1)  In this section:

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

give includes permit access to.

officer means a person who is or has been:

                     (a)  the Registrar;

                     (b)  a member of the staff assisting the Registrar; or

                     (c)  a person to whom powers under this Part have been delegated by the Minister or the Registrar.

produce includes permit access to.

             (2)  This section applies in relation to information if the information relates to a person and was obtained by an officer, either directly or indirectly, from a part of a document filed with the Registrar, being a part that is not open to public inspection.

             (3)  This section applies in relation to a part of a document filed with the Registrar, being a part that is not open to public inspection.

             (4)  An officer shall not:

                     (a)  make a record of any information to which this section applies;

                     (b)  divulge or communicate to a person any information to which this section applies; or

                     (c)  give a person a part of a document to which this section applies;

unless the record is made, the information divulged or communicated or the part of the document given:

                     (d)  for the purposes of this Act; or

                     (e)  in relation to the performance of a duty or the exercise of a power under or in relation to this Act.

Penalty:  $5,000 or imprisonment for 2 years, or both.

             (5)  Subsection (4) applies in relation to the divulging or communicating of information whether directly or indirectly, but does not apply in relation to the divulging or communicating of information to, or the giving of a part of a document to, the Minister.

             (6)  An officer shall not be required:

                     (a)  to produce in a court a part of a document to which this section applies; or

                     (b)  to divulge or communicate to a court any information to which this section applies;

except so far as it is necessary to do so for the purposes of carrying into effect the provisions of this Act.

10.90  Fees

             (1)  The regulations may prescribe fees for the purposes of this Part, including fees payable on applications and requests made under this Part.

             (2)  The regulations shall not fix fees exceeding:

                     (a)  in the case of an application for provisional registration of a conference agreement—$1,200; and

                     (b)  in the case of an application for final registration of a conference agreement—$700; and

                     (c)  in the case of an application for the registration of a person as an ocean carrier’s agent—$160; and

                    (ca)  in the case of variation of the register of ocean carrier agents following a notice under subsection 10.72(1)—$160; and

                     (d)  in the case of an application to obtain a copy of, the whole or any part of, an entry in a register kept under this Part or a conference agreement file kept under this Part—$200.

10.91  Application of Part XID and section 155 to investigations under Part

             (1)  Part XID and section 155 apply in relation to an investigation by the Commission under this Part as if the investigation were an investigation by the Commission relating to a matter that constitutes, or may constitute, a contravention of this Act.

             (2)  Subsection (1) shall not be taken to limit by implication any powers that the Commission has apart from that subsection.

Part XIApplication of the Australian Consumer Law as a law of the Commonwealth

Division 1Preliminary

130  Definitions

                   In this Part:

associate: a person (the first person) is an associate of another person if:

                     (a)  the first person holds money or other property on behalf of the other person; or

                     (b)  if the other person is a body corporate—the first person is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of the other person.

Australian Consumer Law means Schedule 2 as applied under Subdivision A of Division 2 of this Part.

Chairperson has the same meaning as in subsection 4(1).

corporation has the same meaning as in subsection 4(1).

disclosure notice: see subsection 133D(3).

embargo notice: see subsection 135S(1).

embargo period for an embargo notice means the period specified in the embargo notice under paragraph 135S(3)(c) or (d).

enforcement order: see paragraph 139D(1)(b).

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

Federal Court means the Federal Court of Australia.

infringement notice means an infringement notice issued under subsection 134A(1).

infringement notice compliance period: see subsection 134F(1).

infringement notice provision: see subsection 134A(2).

inspector means a person who is appointed as an inspector under subsection 133(1).

listed corporation has the meaning given by section 9 of the Corporations Act 2001.

member of the Commission has the same meaning as in subsection 4(1).

occupational liability: see subsection 137(5).

personal injury includes:

                     (a)  prenatal injury; and

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

                     (c)  disease;

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

person assisting: see subsection 135D(2).

professional standards law: see subsection 137(4).

proposed ban notice: see subsection 132(1).

proposed recall notice: see subsection 132A(1).

reckless conduct: see subsection 139A(5).

recreational services: see subsection 139A(2).

search‑related powers: see subsections 135A(1) and (2).

search warrant means a warrant issued or signed under section 135Z or 136.

smoking has the same meaning as in the Tobacco Advertising Prohibition Act 1992.

state of mind, of a person, includes a reference to:

                     (a)  the knowledge, intention, opinion, belief or purpose of the person; and

                     (b)  the person’s reasons for the person’s intention, opinion, belief or purpose.

tobacco product has the same meaning as in the Tobacco Advertising Prohibition Act 1992.

130A  Expressions defined in Schedule 2

                   An expression has the same meaning in this Part as in Schedule 2.

Division 2Application of the Australian Consumer Law as a law of the Commonwealth

Subdivision AApplication of the Australian Consumer Law

131  Application of the Australian Consumer Law in relation to corporations etc.

             (1)  Schedule 2 applies as a law of the Commonwealth to the conduct of corporations, and in relation to contraventions of Chapter 2, 3 or 4 of Schedule 2 by corporations.

Note:          Sections 5 and 6 of this Act extend the application of this Part (and therefore extend the application of the Australian Consumer Law as a law of the Commonwealth).

             (2)  Without limiting subsection (1):

                     (a)  section 21 of Schedule 2 also applies as a law of the Commonwealth in relation to:

                              (i)  a supply or possible supply of goods or services by any person to a corporation (other than a listed public company); or

                             (ii)  an acquisition or possible acquisition of goods or services from any person by a corporation (other than a listed public company); and

                     (b)  section 147 of Schedule 2 also applies as a law of the Commonwealth to, and in relation to, a corporation as a supplier referred to in that section; and

                     (c)  Division 2 of Part 5‑1 of Schedule 2 also applies as a law of the Commonwealth to and in relation to a person if the other person referred to in section 219 of Schedule 2 is a corporation.

             (3)  The table of contents in Schedule 2 is additional information that is not part of this Act. Information in the table may be added to or edited in any published version of this Act.

131A  Division does not apply to financial services

             (1)  Despite section 131, this Division does not apply (other than in relation to the application of Part 5‑5 of Schedule 2 as a law of the Commonwealth) to the supply, or possible supply, of services that are financial services, or of financial products.

             (2)  Without limiting subsection (1):

                     (a)  Part 2‑1 of Schedule 2 and sections 34 and 156 of Schedule 2 do not apply to conduct engaged in in relation to financial services; and

                     (b)  Part 2‑3 of Schedule 2 does not apply to, or in relation to:

                              (i)  contracts that are financial products; or

                             (ii)  contracts for the supply, or possible supply, of services that are financial services; and

                     (c)  if a financial product consists of or includes an interest in land—the following provisions of Schedule 2 do not apply to that interest:

                              (i)  section 30;

                             (ii)  paragraphs 32(1)(c) and (d) and (2)(c) and (d);

                            (iii)  paragraphs 50(1)(c) and (d);

                            (iv)  section 152;

                             (v)  subparagraphs 154(1)(b)(iii) and (iv) and (2)(b)(iii) and (iv);

                            (vi)  subparagraphs 168(1)(b)(iii) and (iv); and

                     (d)  sections 39 and 161 of Schedule 2 do not apply to:

                              (i)  a credit card that is part of, or that provides access to, a credit facility that is a financial product; or

                             (ii)  a debit card that allows access to an account that is a financial product.

131B  Division does not apply to interim bans imposed by State or Territory Ministers

                   Despite section 131, this Division does not apply to an interim ban that is not imposed by the Commonwealth Minister.

131C  Saving of other laws and remedies

             (1)  This Part is not intended to exclude or limit the concurrent operation of any law, whether written or unwritten, of a State or a Territory.

             (2)  Section 73 of the Australian Consumer Law does not operate in a State or a Territory to the extent necessary to ensure that no inconsistency arises between:

                     (a)  that section; and

                     (b)  a provision of a law of the State or Territory that would, but for this subsection, be inconsistent with that section.

             (3)  Despite subsection (1):

                     (a)  if an act or omission of a person is both:

                              (i)  an offence against this Part or the Australian Consumer Law; and

                             (ii)  an offence against a law of a State or a Territory; and

                     (b)  the person is convicted of either of those offences;

he or she is not liable to be convicted of the other of those offences.

             (4)  Except as expressly provided by this Part or the Australian Consumer Law, nothing in this Part or the Australian Consumer Law is taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Part and the Australian Consumer Law had not been enacted.

Subdivision BEffect of other Commonwealth laws on the Australian Consumer Law

131D  Effect of Part VIB on Chapter 5 of the Australian Consumer Law

                   Chapter 5 of the Australian Consumer Law has effect subject to Part VIB.

131E  Application of the Legislative Instruments Act 2003

             (1)  The following instruments made under the Australian Consumer Law by the Commonwealth Minister are to be made by legislative instrument:

                     (a)  a determination under subsection 66(1) (display notices);

                     (b)  a notice under subsection 104(1) or 105(1) (safety standards);

                     (c)  a notice under subsection 109(1) or (2) (interim bans);

                     (d)  a notice under section 111 (extensions of interim bans);

                     (e)  a notice under section 113 (revocation of interim bans);

                      (f)  a notice under subsection 114(1) or (2) (permanent bans);

                     (g)  a notice under section 117 (revocation of permanent bans);

                     (h)  a notice under subsection 122(1) (recall notices);

                      (i)  a notice under subsection 134(1) or 135(1) (information standards).

             (2)  The following instruments made under the Australian Consumer Law are not legislative instruments:

                     (a)  an approval given under paragraph 106(5)(b) (approval to export);

                     (b)  an approval given under paragraph 118(5)(b) (approval to export);

                     (c)  a notice under subsection 128(3) (voluntary recalls);

                     (d)  a notice under subsection 129(1) or (2) (safety warning notices);

                     (e)  a notice under subsection 130(1) (announcement of results of an investigation);

                      (f)  a notice under subsection 223(1) or (2) (public warning notices).

             (3)  To avoid doubt, an instrument made under the Australian Consumer Law by a responsible Minister who is not the Commonwealth Minister, or a regulator that is not the Commission, is not a legislative instrument.

131F  Section 4AB of the Crimes Act does not apply

                   Section 4AB of the Crimes Act 1914 does not apply to any provision of this Part or the Australian Consumer Law.

131G  Application of the Criminal Code

Corporate criminal responsibility

             (1)  Part 2.5 of the Criminal Code does not apply to an offence against this Part or the Australian Consumer Law.

Mistake of fact defence

             (2)  Section 9.2 of the Criminal Code does not apply to an offence against Chapter 4 of the Australian Consumer Law.

Note:          Section 207 of the Australian Consumer Law provides a mistake of fact defence for offences under Chapter 4 of the Australian Consumer Law.

Division 3Conferences for proposed bans and recall notices

Subdivision AConference requirements before a ban or compulsory recall

132  Commonwealth Minister must issue a proposed ban notice

             (1)  The Commonwealth Minister must issue a proposed ban notice if the Commonwealth Minister proposes to impose an interim ban, or a permanent ban:

                     (a)  on consumer goods of a particular kind; or

                     (b)  on product related services of a particular kind.

             (2)  Subsection (1) does not apply in relation to an interim ban if the Commonwealth Minister has issued a notice under section 132J certifying that the ban should be imposed without delay.

             (3)  The proposed ban notice must:

                     (a)  be in writing; and

                     (b)  be published on the internet; and

                     (c)  set out a copy of a draft notice for the imposition of the interim ban or permanent ban; and

                     (d)  set out a summary of the reasons for the proposed imposition of the ban; and

                     (e)  invite any person who supplies, or proposes to supply:

                              (i)  consumer goods of that kind; or

                             (ii)  product related services of that kind;

                            to notify the Commission, in writing and within a period specified in the notice, if the person wishes the Commission to hold a conference in relation to the proposed imposition of the ban.

             (4)  The period specified in the proposed ban notice under paragraph (3)(e):

                     (a)  must be a period of at least 10 days, or such longer period as the Commonwealth Minister specifies in the notice; and

                     (b)  must not commence before the day on which the notice is published.

             (5)  A proposed ban notice is not a legislative instrument.

132A  Commonwealth Minister must issue a proposed recall notice

             (1)  The Commonwealth Minister must issue a proposed recall notice if the Commonwealth Minister proposes to issue a recall notice for consumer goods of a particular kind.

             (2)  Subsection (1) does not apply in relation to a recall notice if the Commonwealth Minister has issued a notice under section 132J certifying that the recall notice should be issued without delay.

             (3)  The proposed recall notice must:

                     (a)  be in writing; and

                     (b)  be published on the internet; and

                     (c)  set out a copy of a draft recall notice; and

                     (d)  set out a summary of the reasons for the proposed issue of the recall notice; and

                     (e)  invite any person who supplies, or proposes to supply, consumer goods of that kind to notify the Commission, in writing and within a period specified in the notice, if the person wishes the Commission to hold a conference in relation to the proposed issue of the recall notice.

             (4)  The period specified in the proposed recall notice under paragraph (3)(e):

                     (a)  must be a period of at least 10 days, or such longer period as the Commonwealth Minister specifies in the notice; and

                     (b)  must not commence before the day on which the notice is published.

             (5)  A proposed recall notice is not a legislative instrument.

132B  Commonwealth Minister to be notified if no person wishes a conference to be held

             (1)  If no person notifies the Commission in accordance with a proposed ban notice, or a proposed recall notice, that the person wishes the Commission to hold a conference, the Commission must, in writing, notify the Commonwealth Minister of that fact.

             (2)  A notice under subsection (1) is not a legislative instrument.

132C  Notification of conference

             (1)  If one or more persons notify the Commission in accordance with a proposed ban notice, or a proposed recall notice, that they wish the Commission to hold a conference, the Commission must:

                     (a)  appoint a day, time and place for the holding of the conference; and

                     (b)  give written notice to the Commonwealth Minister, and to each person who so notified the Commission, of that day, time and place.

             (2)  The day appointed must be at least 5 days, but not more than 14 days, after the end of the period:

                     (a)  for a proposed ban notice—specified under paragraph 132(3)(e); or

                     (b)  for a proposed recall notice—specified under paragraph 132A(3)(e).

             (3)  A notice under paragraph (1)(b) is not a legislative instrument.

132D  Recommendation after conclusion of conference

             (1)  As soon as is practicable after the conclusion of a conference held under this Subdivision in relation to the proposed imposition of an interim ban or permanent ban, the Commission must:

                     (a)  by written notice given to the Commonwealth Minister, recommend that the Commonwealth Minister:

                              (i)  impose the ban in the same terms as the draft notice referred to in paragraph 132(3)(c); or

                             (ii)  impose the ban with such modifications to that notice as are specified by the Commission; or

                            (iii)  not impose the ban; and

                     (b)  cause a copy of the notice given under paragraph (a) to be given to each person who was present or represented at the conference.

             (2)  As soon as is practicable after the conclusion of a conference held under this Subdivision in relation to the proposed issue of a recall notice, the Commission must:

                     (a)  by written notice given to the Commonwealth Minister, recommend that the Commonwealth Minister:

                              (i)  issue the recall notice in the same terms as the draft recall notice referred to in paragraph 132A(3)(c); or

                             (ii)  issue the recall notice with such modifications to that draft recall notice as are specified by the Commission; or

                            (iii)  not issue the recall notice; and

                     (b)  cause a copy of the notice given under paragraph (a) to be given to each person who was present or represented at the conference.

             (3)  The Commonwealth Minister must:

                     (a)  have regard to a recommendation made under paragraph (1)(a) or (2)(a); and

                     (b)  if he or she decides to act otherwise than in accordance with the recommendation—the Commonwealth Minister must, by written notice published on the internet, set out the reasons for his or her decision.

Subdivision BConference requirements after an interim ban is imposed

132E  Opportunity for a conference after an interim ban has been imposed by the Commonwealth Minister

             (1)  This section applies if:

                     (a)  an interim ban on consumer goods of a particular kind, or on product related services of a particular kind, is in force; and

                     (b)  the interim ban was imposed by the Commonwealth Minister; and

                     (c)  before the ban was imposed, the Commonwealth Minister published a notice under section 132J certifying that the interim ban should be imposed without delay.

             (2)  The Commonwealth Minister must, by written notice published on the internet, invite any person who supplied, or proposes to supply:

                     (a)  consumer goods of that kind; or

                     (b)  product related services of that kind;

to notify the Commission, in writing and within a period specified in the notice, if the person wishes the Commission to hold a conference in relation to the interim ban.

             (3)  The period specified in the notice under subsection (2):

                     (a)  must be a period of at least 10 days, or such longer period as the Commonwealth Minister specifies in the notice; and

                     (b)  must not commence before the day on which the notice is published.

             (4)  A notice under subsection (2) is not a legislative instrument.

132F  Notification of conference

             (1)  If one or more persons notify the Commission in accordance with a notice published under subsection 132E(2) that they wish the Commission to hold a conference, the Commission must:

                     (a)  appoint a day, time and place for the holding of the conference; and

                     (b)  give written notice to the Commonwealth Minister, and to each person who so notified the Commission, of that day, time and place.

             (2)  The day appointed must be at least 5 days, but not more than 14 days, after the end of the period specified in the notice under subsection 132E(2).

             (3)  A notice under paragraph (1)(b) is not a legislative instrument.

132G  Recommendation after conclusion of conference

             (1)  As soon as is practicable after the conclusion of a conference held under this Subdivision in relation to an interim ban, the Commission must:

                     (a)  by written notice given to the Commonwealth Minister, recommend that the interim ban remain in force, be varied or be revoked; and

                     (b)  cause a copy of the notice to be given to each person who was present or represented at the conference.

             (2)  The Commonwealth Minister must:

                     (a)  have regard to a recommendation made under paragraph (1)(a); and

                     (b)  if he or she decides to act otherwise than in accordance with the recommendation—the Commonwealth Minister must, by written notice published on the internet, set out the reasons for his or her decision.

Subdivision CConduct of conferences

132H  Conduct of conferences

             (1)  At a conference held under Subdivision A or B of this Division:

                     (a)  the Commission must be represented by a member or members of the Commission who are nominated by the Chairperson; and

                     (b)  each person who notified the Commission in accordance with whichever of the following is applicable:

                              (i)  a proposed ban notice;

                             (ii)  a proposed recall notice;

                            (iii)  a notice under subsection 132E(2);

                            is entitled to be present or to be represented; and

                     (c)  any other person whose presence at the conference is considered by the Commission to be appropriate is entitled to be present or to be represented; and

                     (d)  the Commonwealth Minister is, or a person or persons nominated in writing by the Commonwealth Minister are, entitled to be present; and

                     (e)  the procedure to be followed must be as determined by the Commission.

             (2)  The Commission must cause a record of the proceedings at the conference to be kept.

             (3)  The Commission must, as far as is practicable, ensure that each person who is entitled to be present, or who is representing such a person, at the conference is given a reasonable opportunity at the conference to present his or her case and in particular:

                     (a)  to inspect any documents (other than a document that contains particulars of a secret formula or process) which the Commission proposes to consider for the purpose of making a recommendation after the conclusion of the conference; and

                     (b)  to make submissions in relation to those documents.

Subdivision DMiscellaneous

132J  Interim ban and recall notice without delay in case of danger to the public

             (1)  If it appears to the Commonwealth Minister that consumer goods of a particular kind create an imminent risk of death, serious illness or serious injury, he or she may, by written notice published on the internet, certify that:

                     (a)  an interim ban on consumer goods of that kind should be imposed without delay; or

                     (b)  a recall notice for consumer goods of that kind should be issued without delay.

             (2)  If it appears to the Commonwealth Minister that product related services of a particular kind create an imminent risk of death, serious illness or serious injury, he or she may, by written notice published on the internet, certify that an interim ban on services of that kind should be imposed without delay.

             (3)  If:

                     (a)  the Commonwealth Minister publishes a notice under subsection (1) or (2); and

                     (b)  action of any kind has been taken under Subdivision A of this Division in relation to the interim ban or recall notice, but no recommendation has been made under section 132D;

the Commonwealth Minister may impose the interim ban, or issue the recall notice, without regard to that action.

             (4)  A notice under subsection (1) or (2) is not a legislative instrument.

132K  Copy of notices under this Division to be given to suppliers

             (1)  If the Commonwealth Minister:

                     (a)  issues a proposed ban notice; or

                     (b)  issues a proposed recall notice; or

                     (c)  publishes a notice under subsection 132E(2); or

                     (d)  publishes a notice under subsection 132J(1) or (2);

he or she must cause a copy of the notice to be given to each person who, to the knowledge of the Commonwealth Minister, supplies the consumer goods, or the product related services, to which the notice relates.

             (2)  The copy must be given:

                     (a)  within 2 days after the publication or issue of the notice; or

                     (b)  if it is not practicable to give the copy within that period—as soon as practicable after the end of that period.

             (3)  A failure to comply with subsection (1) does not invalidate the notice.

Division 4Enforcement

Subdivision AInspectors

133  Appointment of inspectors

             (1)  The Chairperson may, in writing, appoint a member of the staff assisting the Commission as an inspector.

             (2)  The Chairperson must not appoint a person as an inspector unless the Chairperson is satisfied that the person has suitable qualifications and experience to exercise properly the powers of an inspector.

             (3)  An inspector must, in exercising powers as an inspector, comply with any directions of the Chairperson.

             (4)  If a direction under subsection (3) is given in writing, the direction is not a legislative instrument.

133A  Identity cards

             (1)  The Chairperson must issue an identity card to a person appointed as an inspector.

Form of identity card

             (2)  The identity card must:

                     (a)  be in the form prescribed by the regulations; and

                     (b)  contain a recent photograph of the person.

Offence

             (3)  A person commits an offence if:

                     (a)  the person has been issued with an identity card under subsection (1); and

                     (b)  the person ceases to be an inspector; and

                     (c)  the person does not, as soon as practicable after so ceasing, return the identity card to the Chairperson.

Penalty:  1 penalty unit.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Defence: card lost or destroyed

             (5)  Subsection (3) does not apply if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.

Inspector must carry card

             (6)  An inspector issued with an identity card under subsection (1) must carry his or her identity card at all times when exercising powers as an inspector.

Subdivision BPremises to which the public is given access

133B  Power to enter premises to which the public has access—consumer goods

             (1)  An inspector may enter premises in or from which a person, in trade or commerce, supplies consumer goods, if the public has access to the premises at the time of entry, for the purpose of ascertaining whether:

                     (a)  any of those consumer goods will or may cause injury to any person; or

                     (b)  a reasonably foreseeable use (including a misuse) of those consumer goods will or may cause injury to any person;

and remain on the premises for such a purpose while the public has access to the premises.

             (2)  While on the premises, the inspector may:

                     (a)  take photographs of:

                              (i)  any of those consumer goods; or

                             (ii)  equipment used in the manufacturing, processing or storage any of those consumer goods; and

                     (b)  inspect, handle and measure any of those consumer goods; and

                     (c)  purchase any of those consumer goods.

133C  Power to enter premises to which the public has access—product related services

             (1)  An inspector may enter premises in or from which a person, in trade or commerce, supplies product related services, if the public has access to the premises at the time of entry, for the purposes of ascertaining whether:

                     (a)  as a result of any of those product related services being supplied, any consumer goods will or may cause injury to any person; or

                     (b)  a reasonably foreseeable use (including a misuse) of any consumer goods, to which any of those product related services relate, will or may cause injury to any person as a result of those services being supplied;

and remain on the premises for such a purpose while the public has access to the premises.

             (2)  While on the premises, the inspector may:

                     (a)  take photographs of:

                              (i)  the premises; or

                             (ii)  equipment used to supply any of those product related services; and

                     (b)  inspect, handle and measure such equipment; and

                     (c)  purchase any of those product related services.

Subdivision CDisclosure notices relating to the safety of goods or services

133D  Power to obtain information etc.

Consumer goods

             (1)  The Commonwealth Minister or an inspector may give a disclosure notice to a person (the supplier) who, in trade or commerce, supplies consumer goods of a particular kind if the person giving the notice has reason to believe:

                     (a)  that:

                              (i)  consumer goods of that kind will or may cause injury to any person; or

                             (ii)  a reasonably foreseeable use (including a misuse) of consumer goods of that kind will or may cause injury to any person; and

                     (b)  that the supplier is capable of giving information, producing documents or giving evidence in relation to those consumer goods.

Product related services

             (2)  The Commonwealth Minister or an inspector may give a disclosure notice to a person (the supplier) who, in trade or commerce, supplies product related services of a particular kind if the person giving the notice has reason to believe:

                     (a)  that:

                              (i)  as a result of services of that kind being supplied, consumer goods of a particular kind will or may cause injury to any person; or

                             (ii)  a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which such services relate, will or may cause injury to any person as a result of such services being supplied; and

                     (b)  that the supplier is capable of giving information, producing documents or giving evidence in relation to those services.

Disclosure notice

             (3)  A disclosure notice is a written notice requiring the supplier:

                     (a)  to give, in writing signed by the supplier, any such information to the person specified in the notice:

                              (i)  in the manner specified in the notice; and

                             (ii)  within such reasonable time as is specified in the notice; or

                     (b)  to produce, in accordance with such reasonable requirements as are specified in the notice, any such documents to the person specified in the notice; or

                     (c)  to appear before the person specified in the notice at such reasonable time, and at such place, as is specified in the notice:

                              (i)  to give any such evidence, on oath or affirmation; and

                             (ii)  to produce any such documents.

             (4)  The person specified in the notice may be:

                     (a)  the Commonwealth Minister; or

                     (b)  an inspector (whether or not that inspector gave the notice).

133E  Self‑incrimination

             (1)  A person is not excused from:

                     (a)  giving information or evidence; or

                     (b)  producing a document;

as required by a disclosure notice given to the person on the ground that the information or evidence, or production of the document, might tend to incriminate the person or expose the person to a penalty.

             (2)  However, in the case of an individual:

                     (a)  the information or evidence given, or the document produced; and

                     (b)  giving the information or evidence, or producing the document;

are not admissible in evidence against the individual:

                     (c)  in any proceedings instituted by the individual; or

                     (d)  in any criminal proceedings, other than proceedings against the individual for an offence against section 133F or 133G.

133F  Compliance with disclosure notices

             (1)  A person commits an offence if:

                     (a)  the person is given a disclosure notice; and

                     (b)  the person refuses or fails to comply with the notice.

Penalty:

                     (a)  if the person is a body corporate—200 penalty units; or

                     (b)  if the person is not a body corporate—40 penalty units.

             (2)  Subsection (1) does not apply if the person complies with the disclosure notice to the extent to which the person is capable of complying with the notice.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.

             (3)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

133G  False or misleading information etc.

                   A person commits an offence if:

                     (a)  the person gives information, evidence or a document in purported compliance with a disclosure notice; and

                     (b)  the person does so knowing that the information, evidence or document is false or misleading in a material particular.

Penalty:

                     (a)  if the person is a body corporate—300 penalty units; or

                     (b)  if the person is not a body corporate—60 penalty units or imprisonment for 12 months, or both.

Subdivision DCourt orders relating to the destruction etc. of goods

133H  Court orders relating to consumer goods that do not comply with a safety standard etc.

             (1)  If a court is satisfied that:

                     (a)  a person possesses or has control of consumer goods of a particular kind; and

                     (b)  any of the following apply:

                              (i)  the consumer goods do not comply with a safety standard that is in force for consumer goods of that kind and the cause of that non‑compliance cannot be remedied;

                             (ii)  a permanent ban on consumer goods of that kind is in force;

                            (iii)  a recall notice for consumer goods of that kind is in force and a defect or dangerous characteristic of such consumer goods identified in the notice cannot be remedied;

the court may, on the application of an inspector, make an order of a kind referred to in subsection (2).

             (2)  The court may make an order under subsection (1) authorising one or more inspectors to do the following in accordance with any requirements specified in the order:

                     (a)  to enter the premises of the person that are specified in the order;

                     (b)  to search the premises for consumer goods of a kind specified in the order;

                     (c)  to seize any such consumer goods that are found at those premises;

                     (d)  to destroy or otherwise dispose of any such consumer goods that are so seized.

             (3)  Before making an application under subsection (1), the inspector must:

                     (a)  take reasonable steps to discover who has an interest in the consumer goods; and

                     (b)  if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.

             (4)  A person notified under subsection (3) is entitled to be heard in relation to the application.

133J  Recovery of reasonable costs of seizing, and destroying or disposing of, consumer goods

             (1)  If an inspector seizes, and destroys or otherwise disposes of, consumer goods in accordance with an order made under subsection 133H(1):

                     (a)  the person from whom the consumer goods were seized; or

                     (b)  if that person is not entitled to possess the consumer goods—the owner of the consumer goods;

is liable to pay an amount equal to the costs reasonably incurred by the inspector in seizing, and in destroying or disposing of, the consumer goods.

             (2)  An amount payable by a person under subsection (1):

                     (a)  is a debt due by the person to the Commonwealth; and

                     (b)  may be recovered by action in a court of competent jurisdiction.

Division 5Infringement notices

134  Purpose and effect of this Division

             (1)  The purpose of this Division is to provide for the issue of an infringement notice to a person for an alleged contravention of an infringement notice provision as an alternative to proceedings for an order under section 224 of the Australian Consumer Law.

             (2)  This Division does not:

                     (a)  require an infringement notice to be issued to a person for an alleged contravention of an infringement notice provision; or

                     (b)  affect the liability of a person to proceedings under Chapter 4 or Part 5‑2 of the Australian Consumer Law in relation to an alleged contravention of an infringement notice provision if:

                              (i)  an infringement notice is not issued to the person for the alleged contravention; or

                             (ii)  an infringement notice issued to a person for the alleged contravention is withdrawn under section 134G; or

                     (c)  prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice.

134A  Issuing an infringement notice

             (1)  If the Commission has reasonable grounds to believe that a person has contravened an infringement notice provision, the Commission may issue an infringement notice to the person.

             (2)  Each of the following provisions of the Australian Consumer Law is an infringement notice provision:

                     (a)  a provision of Part 2‑2;

                     (b)  a provision of Part 3‑1 (other than subsection 32(1), 35(1) or 36(1), (2) or (3) or section 40 or 43);

                     (c)  subsection 66(2);

                     (d)  a provision of Division 2 of Part 3‑2 (other than section 85);

                     (e)  a provision of Division 3 of Part 3‑2 (other than subsection 96(2));

                      (f)  subsection 100(1) or (3), 101(3) or (4), 102(2) or 103(2);

                     (g)  subsection 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6), 131(1), 132(1), 136(1), (2) or (3) or 137(1) or (2);

                     (h)  subsection 221(1) or 222(1).

             (3)  The Commission must not issue more than one infringement notice to the person for the same alleged contravention of the infringement notice provision.

             (4)  The infringement notice does not have any effect if the notice:

                     (a)  is issued more than 12 months after the day on which the contravention of the infringement notice provision is alleged to have occurred; or

                     (b)  relates to more than one alleged contravention of an infringement notice provision by the person.

134B  Matters to be included in an infringement notice

                   An infringement notice must:

                     (a)  be identified by a unique number; and

                     (b)  state the day on which it is issued; and

                     (c)  state the name and address of the person to whom it is issued; and

                     (d)  identify the Commission; and

                     (e)  state how the Commission may be contacted; and

                      (f)  give details of the alleged contravention by the person, including:

                              (i)  the date of the alleged contravention; and

                             (ii)  the particular infringement notice provision that was allegedly contravened; and

                     (g)  state the maximum pecuniary penalty that the court could order the person to pay under section 224 of the Australian Consumer Law for the alleged contravention; and

                     (h)  specify the penalty that is payable in relation to the alleged contravention; and

                      (i)  state that the penalty is payable within the infringement notice compliance period for the notice; and

                      (j)  state that the penalty is payable to the Commission on behalf of the Commonwealth; and

                     (k)  explain how payment of the penalty is to be made; and

                      (l)  explain the effect of sections 134D, 134E, 134F and 134G.

134C  Amount of penalty

                   The penalty to be specified in an infringement notice that is to be issued to a person, in relation to an alleged contravention of a provision of the Australian Consumer Law, must be a penalty equal to the amount worked out using the following table:

 

Amount of penalty

Item

If the infringement notice is for an alleged contravention of one of the following provisions of the Australian Consumer Law ...

the amount is ...

1

a provision of Part 2‑2

(a) if the person is a listed corporation—600 penalty units; or

(b) if the person is a body corporate other than a listed corporation—60 penalty units; or

(c) if the person is not a body corporate—12 penalty units.

2

a provision of Part 3‑1 (other than subsection 32(1), 35(1), 36(1), (2) or (3), section 40 or 43 or subsection 47(1))

(a) if the person is a listed corporation—600 penalty units; or

(b) if the person is a body corporate other than a listed corporation—60 penalty units; or

(c) if the person is not a body corporate—12 penalty units.

3

subsection 47(1)

(a) if the person is a body corporate—10 penalty units; or

(b) if the person is not a body corporate—2 penalty units.

4

subsection 66(2)

(a) if the person is a body corporate—55 penalty units; or

(b) if the person is not a body corporate—11 penalty units.

5

a provision of Division 2 of Part 3‑2 (other than section 85)

(a) if the person is a body corporate—60 penalty units; or

(b) if the person is not a body corporate—12 penalty units.

6

a provision of Division 3 of Part 3‑2 (other than subsection 96(2))

(a) if the person is a body corporate—55 penalty units; or

(b) if the person is not a body corporate—11 penalty units.

7

subsection 100(1) or (3) or 101(3) or (4)

(a) if the person is a body corporate—20 penalty units; or

(b) if the person is not a body corporate—4 penalty units.

8

subsection 102(2) or 103(2)

(a) if the person is a body corporate—60 penalty units; or

(b) if the person is not a body corporate—12 penalty units.

9

subsection 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2)

(a) if the person is a listed corporation—600 penalty units; or

(b) if the person is a body corporate other than a listed corporation—60 penalty units; or

(c) if the person is not a body corporate—12 penalty units.

10

subsection 125(4)

(a) if the person is a body corporate—30 penalty units; or

(b) if the person is not a body corporate—6 penalty units.

11

subsection 127(1) or (2)

(a) if the person is a listed corporation—600 penalty units; or

(b) if the person is a body corporate other than a listed corporation—60 penalty units; or

(c) if the person is not a body corporate—12 penalty units.

12

subsection 128(2) or (6), 131(1) or 132(1)

(a) if the person is a body corporate—30 penalty units; or

(b) if the person is not a body corporate—6 penalty units.

13

subsection 136(1), (2) or (3) or 137(1) or (2)

(a) if the person is a listed corporation—600 penalty units; or

(b) if the person is a body corporate other than a listed corporation—60 penalty units; or

(c) if the person is not a body corporate—12 penalty units.

14

subsection 221(1)

(a) if the person is a body corporate—30 penalty units; or

(b) if the person is not a body corporate—6 penalty units.

15

subsection 222(1)

(a) if the person is a body corporate—50 penalty units; or

(b) if the person is not a body corporate—10 penalty units.

134D  Effect of compliance with an infringement notice

             (1)  This section applies if:

                     (a)  an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and

                     (b)  the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and

                     (c)  the infringement notice is not withdrawn under section 134G.

             (2)  The person is not, merely because of the payment, regarded as:

                     (a)  having contravened the infringement notice provision; or

                     (b)  having been convicted of an offence constituted by the same conduct that constituted the alleged contravention of the infringement notice provision.

             (3)  No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth, in relation to:

                     (a)  the alleged contravention of the infringement notice provision; or

                     (b)  an offence constituted by the same conduct that constituted the alleged contravention.

134E  Effect of failure to comply with an infringement notice

                   If:

                     (a)  an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and

                     (b)  the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and

                     (c)  the infringement notice is not withdrawn under section 134G;

the person is liable to proceedings under Chapter 4 or Part 5‑2 of the Australian Consumer Law in relation to the alleged contravention of the infringement notice provision.

134F  Infringement notice compliance period for infringement notice

             (1)  Subject to this section, the infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day on which the infringement notice is issued by the Commission.

             (2)  The Commission may extend, by notice in writing, the infringement notice compliance period for the notice if the Commission is satisfied that it is appropriate to do so.

             (3)  Only one extension may be given and the extension must not be for longer than 28 days.

             (4)  Notice of the extension must be given to the person who was issued the infringement notice.

             (5)  A failure to comply with subsection (4) does not affect the validity of the extension.

             (6)  If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.

134G  Withdrawal of an infringement notice

Representations to the Commission

             (1)  The person to whom an infringement notice has been issued for an alleged contravention of an infringement notice provision may make written representations to the Commission seeking the withdrawal of the infringement notice.

             (2)  Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).

Withdrawal by the Commission

             (3)  The Commission may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so.

             (4)  Subsection (3) applies whether or not the person has made representations seeking the withdrawal.

Content of withdrawal notices

             (5)  The withdrawal notice must state:

                     (a)  the name and address of the person; and

                     (b)  the day on which the infringement notice was issued to the person; and

                     (c)  that the infringement notice is withdrawn; and

                     (d)  that proceedings under Chapter 4 or Part 5‑2 of the Australian Consumer Law may be started or continued against the person in relation to:

                              (i)  the alleged contravention of the infringement notice provision; or

                             (ii)  an offence constituted by the same conduct that constituted the alleged contravention.

Time limit for giving withdrawal notices

             (6)  To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice.

Refunds

             (7)  If the infringement notice is withdrawn after the person has paid the penalty specified in the infringement notice, the Commission must refund to the person an amount equal to the amount paid.

Division 6Search, seizure and entry

Subdivision APowers of inspectors

135  Inspector may enter premises

Consumer goods

             (1)  If an inspector has reason to believe that:

                     (a)  consumer goods of a particular kind will or may cause injury to any person; or

                     (b)  a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind will or may cause injury to any person;

the inspector may, for the purposes of ascertaining the matter referred to in paragraph (a) or (b):

                     (c)  enter any premises in or from which the inspector has reason to believe that a person supplies consumer goods of that kind in trade or commerce; and

                     (d)  exercise search‑related powers in relation to the premises.

Product related services

             (2)  If an inspector has reason to believe that:

                     (a)  as a result of product related services of a particular kind being supplied, consumer goods of a particular kind will or may cause injury to any person; or

                     (b)  a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which product related services of a particular kind relate, will or may cause injury to any person as a result of such services being supplied;

the inspector may, for the purposes of ascertaining the matter referred to in paragraph (a) or (b):

                     (c)  enter any premises in or from which the inspector has reason to believe that a person supplies product related services of that kind in trade or commerce; and

                     (d)  exercise search‑related powers in relation to the premises.

Limitation on entry

             (3)  However, the inspector is not entitled to enter premises under subsection (1) or (2) unless:

                     (a)  the occupier of the premises has consented to the entry and the inspector has shown his or her identity card if required by the occupier; or

                     (b)  the entry is made under a search warrant; or

                     (c)  the entry is made in circumstances in which the exercise of search‑related powers is required without delay in order to protect life or public safety.

Note:          For requirements relating to the occupier’s consent, see section 135H.

135A  Search‑related powers of inspectors

Search‑related powers—consumer goods

             (1)  The following are the search‑related powers that an inspector may exercise, under subsection 135(1), in relation to premises in or from which the inspector has reason to believe that a person supplies consumer goods of a particular kind:

                     (a)  if entry to the premises is under a search warrant—the power to seize consumer goods of that kind;

                     (b)  the power to inspect, handle and measure consumer goods of that kind;

                     (c)  the power to take samples of consumer goods of that kind;

                     (d)  the power:

                              (i)  to inspect, handle and read any documents relating to consumer goods of that kind; and

                             (ii)  to make copies of, or take extracts from, those documents;

                     (e)  the power:

                              (i)  to inspect, handle and measure equipment used in the manufacturing, processing or storage of consumer goods of that kind; and

                             (ii)  if entry to the premises is under a search warrant—to seize such equipment;

                      (f)  the power to make any still or moving image or any recording of:

                              (i)  consumer goods of that kind; or

                             (ii)  the premises; or

                            (iii)  any equipment referred to in subparagraph (e)(i).

Search‑related powers—product related services

             (2)  The following are the search‑related powers that an inspector may exercise, under subsection 135(2), in relation to premises in or from which the inspector has reason to believe that a person supplies product related services of a particular kind:

                     (a)  the power:

                              (i)  to inspect, handle and read any documents relating to services of that kind; and

                             (ii)  to make copies of, or take extracts from, those documents;

                     (b)  the power:

                              (i)  to inspect, handle and measure equipment used to supply services of that kind; and

                             (ii)  if entry to the premises is under a search warrant—to seize such equipment;

                     (c)  the power to make any still or moving image or any recording of:

                              (i)  any consumer goods to which product related services of that kind relate; or

                             (ii)  the premises; or

                            (iii)  any equipment referred to in subparagraph (b)(i).

135B  Inspector may ask questions and seek production of documents

Entry with consent etc.

             (1)  If an inspector enters premises because the occupier of the premises consents to the entry or in the circumstances referred to in paragraph 135(3)(c), the inspector may ask the occupier to:

                     (a)  answer any questions relating to the reasons for the inspector entering the premises that are put by the inspector; and

                     (b)  produce any document relating to the reasons for the inspector entering the premises that is requested by the inspector.

Entry under a search warrant

             (2)  If an inspector enters premises under a search warrant, the inspector may require any person on the premises to:

                     (a)  answer any questions relating to the reasons for the inspector entering the premises that are put by the inspector; and

                     (b)  produce any document relating to the reasons for the inspector entering the premises that is requested by the inspector.

135C  Failure to answer questions or produce documents

             (1)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subsection 135B(2); and

                     (b)  the person fails to comply with the requirement.

Penalty:

                     (a)  if the person is a body corporate—150 penalty units; or

                     (b)  if the person is not a body corporate—30 penalty units.

             (2)  A person is not excused from:

                     (a)  answering a question; or

                     (b)  producing a document;

as required under subsection 135B(2) on the ground that the answer, or production of the document, might tend to incriminate the person or expose the person to a penalty.

             (3)  However, in the case of an individual:

                     (a)  the answer, or the document produced; and

                     (b)  giving the answer, or producing the document;

are not admissible in evidence against the individual in any criminal proceedings other than:

                     (c)  proceedings for any offence against subsection (1); or

                     (d)  proceedings for an offence based on the answer or document being false or misleading; or

                     (e)  proceedings for an offence based on the obstruction of public officials.

             (4)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

135D  Persons assisting inspectors

Inspectors may be assisted by other persons

             (1)  An inspector may, in entering premises under section 135 and in exercising search‑related powers in relation to the premises, be assisted by other persons if that assistance is necessary and reasonable.

             (2)  A person giving such assistance is a person assisting the inspector.

Powers of a person assisting the inspector

             (3)  A person assisting the inspector may:

                     (a)  enter the premises; and

                     (b)  exercise search‑related powers in relation to the premises, but only in accordance with a direction given to the person by the inspector.

             (4)  A power exercised by a person assisting the inspector as mentioned in subsection (3) is taken for all purposes to have been exercised by the inspector.

135E  Use of force in executing a search warrant

                   In executing a search warrant, an inspector executing the warrant may use such force against persons and things as is necessary and reasonable in the circumstances.

135F  Announcement before entry under warrant

             (1)  An inspector must, before entering premises under a search warrant:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and

                     (c)  give any person at the premises an opportunity to allow entry to the premises.

             (2)  However, an inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required:

                     (a)  to ensure the safety of a person (including the inspector or a person assisting the inspector); or

                     (b)  to ensure that the effective execution of the warrant is not frustrated.

             (3)  If:

                     (a)  the inspector does not comply with subsection (1) because of subsection (2); and

                     (b)  the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

the inspector must, as soon as practicable after entering the premises, show his or her identity card to the occupier or other person.

135G  Inspector must be in possession of search warrant

                   If a search warrant is being executed in relation to premises, an inspector executing the warrant must be in possession of:

                     (a)  the warrant issued under section 135Z or a copy of that warrant; or

                     (b)  the form of warrant completed under subsection 136(7), or a copy of that form.

Subdivision BObligations of inspectors

135H  Consent

             (1)  An inspector must, before obtaining the consent of an occupier of premises for the purposes of paragraph 135(3)(a), inform the occupier that the occupier may refuse consent.

             (2)  A consent has no effect unless the consent is voluntary.

             (3)  If an inspector enters premises because the occupier of the premises consented to the entry, the inspector, and a person assisting the inspector, must leave the premises if the consent ceases to have effect.

135J  Details of search warrant etc. must be given to the occupier of the premises

                   If:

                     (a)  a search warrant is being executed in relation to premises; and

                     (b)  the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

an inspector executing the warrant must, as soon as practicable:

                     (c)  do one of the following:

                              (i)  if the warrant was issued under section 135Z—make a copy of the warrant available to the occupier or other person (which need not include the signature of the judge who issued it);

                             (ii)  if the warrant was signed under section 136—make a copy of the form of warrant completed under subsection 136(7) available to the occupier or other person; and

                     (d)  inform the occupier or other person of the rights and responsibilities of the occupier or other person under Subdivision C.

Subdivision COccupier’s etc. rights and responsibilities

135K  Occupier etc. entitled to observe execution of search warrant

             (1)  If:

                     (a)  a search warrant is being executed in relation to premises; and

                     (b)  the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

the occupier or other person is entitled to observe the execution of the warrant.

             (2)  The right to observe the execution of the search warrant ceases if the occupier or other person impedes that execution.

             (3)  This section does not prevent the execution of the search warrant in 2 or more areas of the premises at the same time.

135L  Occupier etc. to provide inspector etc. with facilities and assistance

             (1)  A person commits an offence if:

                     (a)  the person is:

                              (i)  the occupier of premises to which a search warrant relates; or

                             (ii)  another person who apparently represents the occupier of those premises; and

                     (b)  the person fails to provide:

                              (i)  an inspector executing the warrant; and

                             (ii)  a person assisting the inspector;

                            with all reasonable facilities and assistance for the effective exercise of their powers.

Penalty:

                     (a)  if the person is a body corporate—600 penalty units; or

                     (b)  if the person is not a body corporate—120 penalty units or imprisonment for 2 years, or both.

             (2)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

135M  Receipts for seized consumer goods and equipment

             (1)  If consumer goods are seized under a search warrant, an inspector must provide a receipt for the goods.

             (2)  If equipment is seized under a search warrant, an inspector must provide a receipt for the equipment.

             (3)  One receipt may cover:

                     (a)  consumer goods and equipment that have been so seized; and

                     (b)  2 or more kinds of consumer goods or equipment that have been so seized.

135N  Return of seized consumer goods and equipment

             (1)  Subject to any order under section 135P, if an inspector seizes consumer goods or equipment under a search warrant, the inspector must take reasonable steps to return the consumer goods or equipment if:

                     (a)  the reason for the seizure no longer exists; or

                     (b)  the period of 60 days after the seizure ends;

whichever happens first.

             (2)  Subsection (1) does not apply if:

                     (a)  the consumer goods are, or the equipment is, forfeited or forfeitable to the Commonwealth; or

                     (b)  the consumer goods are, or the equipment is, the subject of a dispute as to ownership.

             (3)  If, apart from this subsection, the inspector would be required to take reasonable steps to return consumer goods or equipment under subsection (1) because of paragraph (b) of that subsection, the inspector is not required to do so if:

                     (a)  the return of the consumer goods or equipment could cause an imminent risk of death, serious illness or serious injury; or

                     (b)  the inspector is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or a Territory) to retain, destroy, dispose of or otherwise deal with the consumer goods or equipment.

             (4)  Consumer goods that are required to be returned under this section must be returned to the person from whom they were seized (or to the owner if that person is not entitled to possess them).

             (5)  Equipment that is required to be returned under this section must be returned to the person from whom it was seized (or to the owner if that person is not entitled to possess it).

135P  Judge may permit consumer goods or equipment to be retained

             (1)  An inspector who has seized consumer goods or equipment under a search warrant may, before the end of the period referred to in paragraph 135N(1)(b), apply to a judge of the Federal Court for an order that the inspector may retain the consumer goods or equipment for a further period of up to 60 days.

             (2)  If:

                     (a)  an application to a judge is made under subsection (1); and

                     (b)  the judge is satisfied that it is necessary in all the circumstances for the inspector to continue to retain the consumer goods or equipment;

the judge may order that the inspector may retain the consumer goods or equipment for a further period (not exceeding 60 days) specified in the order.

             (3)  Before making the application under subsection (1), the inspector must:

                     (a)  take reasonable steps to discover who has an interest in the retention of the consumer goods or equipment; and

                     (b)  if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.

Subdivision DProvisions relating to seizure

135Q  Recovery of reasonable costs of seizing consumer goods or equipment

             (1)  If an inspector seizes consumer goods or equipment under a search warrant:

                     (a)  the person from whom the consumer goods were seized, or the equipment was seized; or

                     (b)  if that person is not entitled to possess the consumer goods or equipment—the owner of the consumer goods or equipment;

is liable to pay an amount equal to the costs reasonably incurred by the inspector in seizing the consumer goods or equipment.

             (2)  An amount payable by a person under subsection (1):

                     (a)  is a debt due by the person to the Commonwealth; and

                     (b)  may be recovered by action in a court of competent jurisdiction.

135R  Destruction or disposal of seized consumer goods or equipment

             (1)  If:

                     (a)  an inspector seizes consumer goods, or equipment used to supply product‑related services, under a search warrant; and

                     (b)  apart from this section, the inspector is required to return the consumer goods or equipment to a person; and

                     (c)  either:

                              (i)  the inspector cannot, despite making reasonable efforts, locate the person; or

                             (ii)  the person has refused to take possession of the consumer goods or equipment;

a court may, on the application of the inspector, make an order authorising the inspector to destroy or otherwise dispose of the consumer goods or equipment.

             (2)  If subparagraph (1)(c)(ii) applies, the inspector must, before making an application under subsection (1), inform the person referred to in that subparagraph that the inspector proposes to make an application under that subsection.

             (3)  If:

                     (a)  an order is made under subsection (1); and

                     (b)  subparagraph (1)(c)(ii) applies;

the person referred to in that subparagraph is liable to pay an amount equal to the costs reasonably incurred by the inspector in destroying or disposing of the consumer goods or equipment.

             (4)  An amount payable by a person under subsection (3):

                     (a)  is a debt due by the person to the Commonwealth; and

                     (b)  may be recovered by action in a court of competent jurisdiction.

Subdivision EEmbargo notices

135S  Embargo notices

             (1)  An inspector who enters premises under a search warrant may give an embargo notice to the occupier of the premises.

             (2)  The inspector may give the notice to the occupier of the premises:

                     (a)  by causing a copy of the notice to be served on the occupier; or

                     (b)  if the occupier cannot be located after all reasonable steps have been taken to do so—by:

                              (i)  causing a copy of the notice to be served on a person on the premises who is reasonably believed to be in regular contact with the occupier; or

                             (ii)  causing a copy of the notice to be affixed to the premises, or to a thing on the premises, in a prominent position.

             (3)  The embargo notice must:

                     (a)  be in writing; and

                     (b)  specify the consumer goods, or product related services, to which the notice relates; and

                     (c)  if the notice relates to consumer goods—state that the specified consumer goods must not be:

                              (i)  supplied in or from the premises; or

                             (ii)  transferred, moved, altered, destroyed or otherwise interfered with;

                            during the period specified in the notice; and

                     (d)  if the notice relates to product related services—state that the specified product related services must not be supplied in or from the premises during the period specified in the notice; and

                     (e)  explain the effect of section 135V or 135W.

             (4)  Despite anything in any other law, a contract for a supply of consumer goods or product related services that is prohibited by an embargo notice is void.

             (5)  If consumer goods are supplied in contravention of an embargo notice:

                     (a)  the supplier must immediately return or refund to the person who acquired the goods any consideration (or the value of any consideration) that that person gave:

                              (i)  under an agreement for the supply; or

                             (ii)  under a related contract or instrument; and

                     (b)  if the goods have been removed from the premises in which they were subject to the embargo notice—the person who acquired the goods must:

                              (i)  return the goods to the premises; or

                             (ii)  notify the supplier of the place where the supplier may collect the goods; and

                     (c)  if subparagraph (b)(ii) applies—the supplier must collect the goods from the place notified to the supplier, and return them to the premises.

135T  Embargo period for embargo notices

Embargo period

             (1)  Subject to this section, the embargo period for an embargo notice must not be longer than:

                     (a)  if the inspector giving the notice secures consumer goods under section 135V or secures equipment under section 135W—24 hours; or

                     (b)  otherwise—28 days.

Extensions of embargo period

             (2)  An inspector may, before the embargo period ends, apply to a judge of the Federal Court for an extension of the period.

             (3)  If an inspector intends to make an application under subsection (2), the inspector must, before making the application, notify the occupier of the premises to which the embargo notice relates of that intention.

             (4)  The occupier of the premises is entitled to be heard in relation to the application.

             (5)  The judge may extend the embargo period for a specified period if the judge is satisfied that the extension is necessary in all the circumstances.

135U  Multiple embargo notices for the same consumer goods or product related services

                   An inspector must not give an embargo notice in relation to consumer goods, or product related services, of a particular kind if:

                     (a)  an embargo notice (the earlier embargo notice) has already been given in relation to consumer goods, or product related services, of that kind; and

                     (b)  the embargo period for the earlier embargo notice did not end at least 5 days ago.

135V  Power of inspectors to secure consumer goods

                   If:

                     (a)  an embargo notice relates to consumer goods; and

                     (b)  the inspector who gives the notice believes on reasonable grounds that it is necessary to secure the consumer goods in order to ensure that the notice is complied with;

the inspector may, during the embargo period for the embargo notice, do anything that the inspector thinks is necessary to secure those consumer goods (whether by locking them up, placing a guard or otherwise).

135W  Power of inspectors to secure equipment used to supply product related services

                   If:

                     (a)  an embargo notice relates to product related services; and

                     (b)  the inspector who gives the notice believes on reasonable grounds that it is necessary to secure equipment used to supply the services in order to ensure that the notice is complied with;

the inspector may, during the embargo period for the embargo notice, do anything that the inspector thinks is necessary to secure that equipment (whether by locking it up, placing a guard or otherwise).

135X  Consent to supply etc. embargoed consumer goods etc.

             (1)  If an embargo notice relating to consumer goods has been given, the owner of the goods or another person who has an interest in the goods may, in writing, request consent to do any of the following:

                     (a)  to supply the goods;

                     (b)  to transfer, move, alter, destroy or otherwise interfere with the goods.

             (2)  If an embargo notice relating to product related services has been given, the following persons may, in writing, request consent to supply the services:

                     (a)  the person who would, but for the embargo notice, supply the services;

                     (b)  another person whose interests would be affected if the services were not supplied.

             (3)  If a request for consent is made under subsection (1) or (2), the requested consent may be given, in writing, by the Commonwealth Minister, the Chairperson or any inspector.

             (4)  A consent given under subsection (3) is not a legislative instrument.

135Y  Compliance with embargo notices

             (1)  A person commits an offence if:

                     (a)  the person knows that an embargo notice has been given; and

                     (b)  the person, contrary to the embargo notice, does an act or omits to do an act.

Penalty:

                     (a)  if the person is a body corporate—200 penalty units; or

                     (b)  if the person is not a body corporate—40 penalty units.

             (2)  A person commits an offence if:

                     (a)  the person knows that an embargo notice has been given; and

                     (b)  the person causes another person:

                              (i)  to do an act that is contrary to the embargo notice; or

                             (ii)  contrary to the embargo notice, to omit to do an act.

Penalty:

                     (a)  if the person is a body corporate—200 penalty units; or

                     (b)  if the person is not a body corporate—40 penalty units.

             (3)  Subsection (1) or (2) does not apply in relation to:

                     (a)  an act done in accordance with a consent given under section 135X; or

                     (b)  if the embargo notice relates to consumer goods—an act done for the purpose of protecting or preserving the consumer goods; or

                     (c)  if the embargo notice relates to product related services—an act done for the purpose of protecting or preserving equipment used to supply the services.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.

             (4)  Strict liability applies to paragraphs (1)(b) and (2)(b).

Note:          For strict liability, see section 6.1 of the Criminal Code.

Subdivision FIssue of search warrants

135Z  Issue of search warrants

Application for warrant

             (1)  An inspector may apply to a judge of the Federal Court for a warrant in relation to premises.

Issue of warrant

             (2)  The judge may issue the warrant if:

                     (a)  an affidavit has been given to the judge setting out the grounds on which the issue of the warrant is being sought; and

                     (b)  the applicant, or some other person, has given to the judge such further information (if any) as the judge requires concerning the grounds on which the issue of the warrant is being sought; and

                     (c)  the judge is satisfied that there are reasonable grounds for issuing the warrant.

Content of warrant

             (3)  The warrant must:

                     (a)  specify the purpose for which the warrant is issued; and

                     (b)  describe the premises to which the warrant relates; and

                     (c)  state that the warrant is issued under this section; and

                     (d)  name one or more inspectors; and

                     (e)  authorise the inspector or inspectors so named:

                              (i)  to enter the premises; and

                             (ii)  to exercise search‑related powers in relation to the premises; and

                      (f)  state whether the entry is authorised to be made at any time of the day or night, or during specified hours of the day or night; and

                     (g)  specify a day (which must not be more than 7 days after the day the warrant is issued) on which the warrant ceases to be in force.

136  Search warrants by telephone, fax etc.

Application for warrant

             (1)  An inspector may apply to a judge of the Federal Court by telephone, fax or other electronic means for a warrant under section 135Z in relation to premises if the inspector believes on reasonable grounds that the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

Voice communication

             (2)  The judge may require communication by voice to the extent that it is practicable in the circumstances.

Affidavit

             (3)  Before applying for the warrant, the inspector must prepare an affidavit of the kind mentioned in paragraph 135Z(2)(a).

             (4)  If it is necessary to do so, the inspector may apply for the warrant before the affidavit has been sworn.

Signing of warrant

             (5)  If the judge is satisfied:

                     (a)  after considering the terms of the affidavit; and

                     (b)  after receiving such further information (if any) as the judge requires concerning the grounds on which the issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the judge may complete and sign the same warrant that the judge would issue under section 135Z if the application had been made under that section.

Notification

             (6)  If the judge completes and signs the warrant, the judge must inform the inspector, by telephone, fax or other electronic means, of:

                     (a)  the terms of the warrant; and

                     (b)  the day on which and the time at which the warrant was signed.

Form of warrant

             (7)  The inspector must then complete a form of warrant in the same terms as the warrant completed and signed by the judge, stating on the form the name of the judge and the day on which and the time at which the warrant was signed.

Completed form of warrant to be given to judge

             (8)  The inspector must also, not later than the day after the day on which the warrant ceased to be in force or the day of execution of the warrant, whichever is the earlier, send to the judge:

                     (a)  the form of warrant completed by the inspector; and

                     (b)  the affidavit referred to in subsection (3), which must have been duly sworn.

Attachment

             (9)  The judge must attach to the documents provided under subsection (8) the warrant signed by the judge.

Authority of warrant

           (10)  A form of warrant duly completed under subsection (7) is authority for the same powers as are authorised by the warrant signed by the judge.

           (11)  If:

                     (a)  it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and

                     (b)  the warrant signed by the judge authorising the exercise of the power is not produced in evidence;

the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.

136A  Offence relating to warrants by telephone, fax etc.

                   An inspector commits an offence if the inspector:

                     (a)  states in a document that purports to be a form of warrant under section 136 the name of a judge unless that judge signed the warrant; or

                     (b)  states on a form of warrant under that section a matter that, to the inspector’s knowledge, departs in a material particular from the terms of the warrant signed by the judge under that section; or

                     (c)  purports to execute, or presents to another person, a document that purports to be a form of warrant under that section that the inspector knows:

                              (i)  has not been approved by a judge under that section; or

                             (ii)  departs in a material particular from the terms of a warrant signed by a judge under that section; or

                     (d)  gives to a judge a form of warrant under that section that is not the form of warrant that the inspector purported to execute.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

Subdivision GMiscellaneous

136B  Powers of judges

Powers conferred personally

             (1)  A power conferred on a judge by this Division is conferred on the judge:

                     (a)  in a personal capacity; and

                     (b)  not as a court or a member of a court.

Powers need not be accepted

             (2)  The judge need not accept the power conferred.

Protection and immunity

             (3)  A judge exercising a power conferred by this Division has the same protection and immunity as if he or she were exercising the power:

                     (a)  as the court of which the judge is a member; or

                     (b)  as a member of the court of which the judge is a member.

Division 7Remedies

137  Limit on occupational liability

State or Territory professional standards law limits liability

             (1)  A professional standards law of a State, the Australian Capital Territory or the Northern Territory applies to limit occupational liability relating to an action for a contravention of section 18 of the Australian Consumer Law in the same way as it limits occupational liability arising under a law of the State or Territory.

             (2)  However, the professional standards law applies for that purpose:

                     (a)  only in relation to a scheme that was prescribed by the regulations at the time (the contravention time) of the contravention; and

                     (b)  as if the scheme were in force under that law at the contravention time, in the form the scheme would have been in if:

                              (i)  the scheme had not been amended or revoked under that law since the scheme was first prescribed; and

                             (ii)  any additions, omissions, substitutions and other modifications prescribed by the regulations at the contravention time had been made to the scheme.

Operation of choice of law rules

             (3)  For the purposes of working out whether a professional standards law of a particular State or Territory applies under subsection (1) in relation to a particular contravention of section 18 of the Australian Consumer Law, choice of law rules operate in relation to the contravention in the same way as they operate in relation to a tort.

Professional standards laws

             (4)  A professional standards law is a law that provides for the limitation of occupational liability by reference to schemes for limiting that liability that were formulated and published in accordance with that law.

Occupational liability

             (5)  Occupational liability is civil liability arising directly or vicariously from anything done or omitted by a person who:

                     (a)  does or omits to do the thing in the course of his or her profession, trade or occupation; and

                     (b)  is a member of a body:

                              (i)  that represents the interests of persons who have the same profession, trade or occupation; and

                             (ii)  whose membership is limited principally to such persons.

137A  Contributory acts or omissions to reduce compensation in defective goods actions

             (1)  If the loss or damage to which a defective goods action under section 138 or 139 of the Australian Consumer Law relates was caused by both:

                     (a)  an act or omission of:

                              (i)  the individual who suffers the injuries referred to in that section; or

                             (ii)  a person for whom that individual is responsible; and

                     (b)  a safety defect of the goods to which the action relates;

the amount of the loss or damage is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to that individual’s share in the responsibility for the loss or damage.

             (2)  If the loss or damage to which a defective goods action under section 140 or 141 of the Australian Consumer Law relates was caused by both:

                     (a)  an act or omission of:

                              (i)  the person who suffered the loss or damage; or

                             (ii)  another person for whom that person is responsible; and

                     (b)  a safety defect of the goods to which the action relates;

the amount of the loss or damage is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to the person’s share in the responsibility for the loss or damage.

137B  Reduction of the amount of loss or damage if the claimant fails to take reasonable care

                   If:

                     (a)  a person (the claimant) makes a claim under subsection 236(1) of the Australian Consumer Law in relation to economic loss, or damage to property, suffered by the claimant because of the conduct of another person; and

                     (b)  the conduct contravened section 18 of the Australian Consumer Law; and

                     (c)  the claimant suffered the loss or damage as result:

                              (i)  partly of the claimant’s failure to take reasonable care; and

                             (ii)  partly of the conduct of the other person; and

                     (d)  the other person did not intend to cause the loss or damage and did not fraudulently cause the loss or damage;

the amount of the loss or damage that the claimant may recover under subsection 236(1) of the Australian Consumer Law is to be reduced to the extent to which a court thinks just and equitable having regard to the claimant’s share in the responsibility for the loss or damage.

137C  Limits on recovery of amounts for death or personal injury

             (1)  A person is not entitled to recover an amount of loss or damage by action under subsection 236(1) of the Australian Consumer Law to the extent to which:

                     (a)  the action would be based on the conduct contravening a provision of Part 2‑1 or 3‑1 of the Australian Consumer Law; and

                     (b)  the loss or damage is, or results from, death or personal injury; and

                     (c)  the death or personal injury does not result from smoking or other use of tobacco products.

             (2)  Divisions 2 and 7 of Part VIB of this Act apply to an action under subsection 236(1) of the Australian Consumer Law for loss or damage a person suffers to the extent to which:

                     (a)  the action is based on the conduct contravening a provision of Part 2‑1 or 3‑1 of the Australian Consumer Law; and

                     (b)  the loss or damage is, or results from, death or personal injury; and

                     (c)  the death or personal injury results from smoking or other use of tobacco products;

as if the action were a proceeding to which Part VIB of this Act applied.

Note 1:       Division 2 of Part VIB of this Act deals with the limitation periods that apply for claims for damages or compensation for death or personal injury and, to the extent to which that Division is applied to the action by this subsection, it overrides subsection 236(2) of the Australian Consumer Law.

Note 2:       Division 7 of Part VIB of this Act deals with structured settlements for claims for damages or compensation for death or personal injury.

137D  Compensation orders etc. arising out of unfair contract terms

                   In determining whether to make an order under subsection 237(1) or 238(1) of the Australian Consumer Law in relation to:

                     (a)  a contravention of a provision of Part 2‑2 of the Australian Consumer Law; or

                     (b)  a term of a consumer contract that has been declared under section 250 of the Australian Consumer Law to be an unfair term;

the court may have regard to the conduct of the parties to the proceeding referred to in that subsection since the contravention occurred or the declaration was made.

137E  Limits on compensation orders etc. for death or personal injury

             (1)  A court must not make an order under subsection 237(1) or 238(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person to the extent to which:

                     (a)  the action would be based on the conduct contravening a provision of Part 2‑1 or 3‑1 of the Australian Consumer Law; and

                     (b)  the loss or damage is, or results from, death or personal injury; and

                     (c)  the death or personal injury does not result from smoking or other use of tobacco products.

             (2)  Division 2 of Part VIB of this Act applies to an application for an order under subsection 237(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person to the extent to which:

                     (a)  the action would be based on the conduct contravening a provision of Part 2‑1 or 3‑1 of the Australian Consumer Law; and

                     (b)  the loss or damage is, or results from, death or personal injury; and

                     (c)  the death or personal injury results from smoking or other use of tobacco products;

as if the proceeding in relation to the application were a proceeding to which Part VIB of this Act applies and as if the making of the application were the commencement of the proceeding.

Note:          Division 2 of Part VIB of this Act deals with the limitation periods that apply for claims for damages or compensation for death or personal injury and, to the extent to which that Division is applied to the application by this subsection, it overrides subsection 237(3) of the Australian Consumer Law.

             (3)  Division 7 of Part VIB of this Act applies to a proceeding in which an order under subsection 237(1) or 238(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person is made, to the extent to which:

                     (a)  the action would be based on the conduct contravening a provision of Part 2‑1 or Part 3‑1 of the Australian Consumer Law; and

                     (b)  the loss or damage is, or results from, death or personal injury; and

                     (c)  the death or personal injury results from smoking or other use of tobacco products;

as if the proceeding were a proceeding to which Part VIB of this Act applied.

Note:          Division 7 of Part VIB of this Act deals with structured settlements for claims for damages or compensation for death or personal injury.

137F  Court may make orders for the purpose of preserving money or other property held by a person

             (1)  A court may, on the application of the Commonwealth Minister or the Commission, make an order or orders mentioned in subsection (3) if:

                     (a)  proceedings of a kind referred to in subsection (2) have been taken against a person, or proceedings of a kind referred to in paragraph (2)(d) may be taken against a person; and

                     (b)  the court is satisfied that it is necessary or desirable to make the order or orders for the purpose of preserving money or other property held by, or on behalf of, the person if the person is liable, or may become liable, under the Australian Consumer Law:

                              (i)  to pay money by way of a fine, damages, compensation, refund or otherwise; or

                             (ii)  to transfer, sell or refund other property; and

                     (c)  the court is satisfied that the making of such an order or orders will not unduly prejudice the rights and interests of any other person.

Kinds of proceedings taken against the person

             (2)  For the purposes of paragraph (1)(a), the kinds of proceedings taken against the person are:

                     (a)  proceedings against the person for an offence against a provision of Chapter 4 of the Australian Consumer Law; or

                     (b)  an application under section 232 of the Australian Consumer Law for an injunction against the person in relation to:

                              (i)  a contravention of a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or

                             (ii)  a term of a consumer contract in relation to which a declaration under section 250 of the Australian Consumer Law has been made; or

                     (c)  an action under subsection 236(1) of the Australian Consumer Law against the person in relation to a contravention of a provision of Part 2‑1 or Chapter 3 of the Australian Consumer Law; or

                     (d)  an application for an order under subsection 237(1) or 239(1) of the Australian Consumer Law against a person in relation to:

                              (i)  a contravention of a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or

                             (ii)  a term of a consumer contract in relation to which a declaration under section 250 of the Australian Consumer Law has been made.

Kinds of orders that may be made

             (3)  The court may make the following orders under subsection (1) of this section in a relation to money or other property held by, or on behalf of, a person (the respondent):

                     (a)  an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the respondent, or to an associate of the respondent, from making a payment, in total or partial discharge of the debt:

                              (i)  to the respondent; or

                             (ii)  to another person at the direction or request of the respondent;

                     (b)  an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property on behalf of the respondent, or on behalf of an associate of the respondent:

                              (i)  from paying all or any of the money to the respondent, or to another person at the direction or request of the respondent; or

                             (ii)  from transferring the other property to the respondent, or to another person at the direction or request of the respondent, or otherwise parting with possession of that property;

                     (c)  an order prohibiting, either absolutely or subject to conditions, the taking or sending by any person of money of the respondent, or of an associate of the respondent, to a place outside the State or Territory in which the money is held;

                     (d)  an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by any person of other property of the respondent, or of an associate of the respondent, to a place outside the State or Territory in which that property is located;

                     (e)  if the respondent is a natural person—an order appointing a receiver or trustee of the property, or of part of the property, of the respondent with such powers as are specified in the order.

Operation of order

             (4)  If the court makes such an order, the order operates:

                     (a)  for the period specified in the order (which must not be longer than 30 days if the application for the order was an ex parte application); or

                     (b)  if proceedings in relation to which the order is made are concluded before the end of that period—until the conclusion of those proceedings.

Other

             (5)  This section:

                     (a)  has effect subject to the Bankruptcy Act 1966; and

                     (b)  does not affect any other powers of the court.

137G  Compliance with orders made under section 137F

             (1)  A person commits an offence if:

                     (a)  an order made under section 137F applies to the person; and

                     (b)  the person contravenes, or refuses or fails to comply with, the order.

Penalty:

                     (a)  if the person is a body corporate—900 penalty units; or

                     (b)  if the person is not a body corporate—180 penalty units.

             (2)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

137H  Finding in proceedings to be evidence

             (1)  In an action against a person under subsection 236(1) of the Australian Consumer Law:

                     (a)  a finding of a fact by a court to which subsection (3) of this section applies is prima facie evidence of that fact; and

                     (b)  the finding may be proved by production of a document under the seal of the court from which the finding appears.

             (2)  In proceedings for an order against a person under subsection 237(1) or 239(1) of the Australian Consumer Law:

                     (a)  a finding of a fact by a court to which subsection (3) of this section applies is prima facie evidence of that fact; and

                     (b)  the finding may be proved by production of a document under the seal of the court from which the finding appears.

             (3)  This subsection applies to a finding of a fact by a court that is made in proceedings under section 228, 232, 246, 247 or 248 of the Australian Consumer Law, or for an offence against a provision of Chapter 4 of the Australian Consumer Law, in which the person has been found:

                     (a)  to have contravened a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or

                     (b)  to have attempted to contravene such a provision; or

                     (c)  to have aided, abetted, counselled or procured a person to contravene such a provision; or

                     (d)  to have induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or

                     (e)  to have been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

                      (f)  to have conspired with others to contravene such a provision.

Division 8Jurisdictional matters

138  Conferring jurisdiction on the Federal Court

             (1)  Jurisdiction is conferred on the Federal Court in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding has been instituted under this Part or the Australian Consumer Law.

             (2)  The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than:

                     (a)  the jurisdiction of the Federal Circuit Court under section 138A; and

                     (b)  the jurisdiction of the several courts of the States and Territories under section 138B; and

                     (c)  the jurisdiction of the High Court under section 75 of the Constitution.

138A  Conferring jurisdiction on the Federal Circuit Court

             (1)  Subject to this section, jurisdiction is conferred on the Federal Circuit Court in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than the Commonwealth Minister.

             (2)  If proceedings under Part 3‑5, or section 236, of the Australian Consumer Law are instituted in, or transferred to, the Federal Circuit Court, the Federal Circuit Court does not have jurisdiction to award an amount for loss or damage that exceeds:

                     (a)  $750,000; or

                     (b)  if another amount is specified in the regulations—that other amount.

Note:          For transfers from the Federal Court to the Federal Circuit Court: see section 32AB of the Federal Court of Australia Act 1976.

138B  Conferring jurisdiction on State and Territory Courts

             (1)  Jurisdiction is conferred on the several courts of the States and Territories in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than the Commonwealth Minister or the Commission.

             (2)  However, subsection (1) does not apply in relation to a matter arising under:

                     (a)  Division 3 of Part 3‑1 of the Australian Consumer Law; or

                     (b)  Part 3‑5 of the Australian Consumer Law.

             (3)  The jurisdiction conferred by subsection (1) on the several courts of the States is conferred within the limits of their several jurisdictions, whether those limits are as to locality, subject matter or otherwise.

             (4)  The jurisdiction conferred by subsection (1) on the several courts of the Territories is conferred to the extent that the Constitution permits.

             (5)  This section is not to be taken to enable an inferior court of a State or a Territory to grant a remedy other than a remedy of a kind that the court is able to grant under the law of that State or Territory.

138C  Transfer of matters by the Federal Court

             (1)  Subject to subsections (2) and (3), if:

                     (a)  a civil proceeding instituted by a person (other than the Commonwealth Minister or the Commission) is pending in the Federal Court; and

                     (b)  a matter for determination in the proceeding arises under this Part or the Australian Consumer Law;

the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the matter, and any other matter for determination in the proceeding, to a court of a State or a Territory.

             (2)  The Federal Court must not transfer a matter to another court under subsection (1) unless:

                     (a)  the other court has power to grant the remedies sought before the Federal Court in the matter; and

                     (b)  it appears to the Federal Court that:

                              (i)  the matter arises out of, or is related to, a proceeding that is pending in the other court; or

                             (ii)  it is otherwise in the interests of justice that the matter be determined by the other court.

             (3)  Subsection (1) does not apply in relation to a matter arising under:

                     (a)  Division 3 of Part 3‑1 of the Australian Consumer Law; or

                     (b)  Part 3‑5 of the Australian Consumer Law.

             (4)  If the Federal Court transfers a matter to another court under subsection (1):

                     (a)  further proceedings in the matter must be as directed by the other court; and

                     (b)  the judgment of the other court in the matter is enforceable throughout Australia and the external Territories as if it were a judgment of the Federal Court.

138D  Transfer of matters by a State or Territory court

             (1)  This section applies if:

                     (a)  a proceeding is pending in a court (other than the Supreme Court) of a State or a Territory; and

                     (b)  a matter for determination in the proceeding arises under this Part or the Australian Consumer Law, other than under:

                              (i)  Division 3 of Part 3‑1 of the Australian Consumer Law; or

                             (ii)  Part 3‑5 of the Australian Consumer Law; or

                            (iii)  Chapter 4 of the Australian Consumer Law.

             (2)  The court must, if directed to do so by the Federal Court, transfer to the Federal Court:

                     (a)  the matter; and

                     (b)  such other matters for determination in the proceeding, the determination of which would (apart from any law of a State or of the Northern Territory relating to cross‑vesting of jurisdiction) be within the jurisdiction of the Federal Court, as the Federal Court determines.

             (3)  Subject to subsection (4), the court may, on the application of a party to the proceeding or of its own motion, transfer the matter to a court (other than the Supreme Court) of another State or Territory.

             (4)  The court (the first court) must not transfer a matter to another court under subsection (3) unless:

                     (a)  the other court has power to grant the remedies sought before the first court in the matter; and

                     (b)  it appears to the first court that:

                              (i)  the matter arises out of, or is related to, a proceeding that is pending in the other court; or

                             (ii)  it is otherwise in the interests of justice that the matter be determined by the other court.

             (5)  If the court transfers a matter to another court under subsection (3), further proceedings in the matter must be as directed by the other court.

138E  Transfer of proceedings to Family Court

             (1)  If:

                     (a)  a civil proceeding is pending in the Federal Court; and

                     (b)  a matter for determination in the proceeding arises under this Part or the Australian Consumer Law, other than under:

                              (i)  Division 3 of Part 3‑1 of the Australian Consumer Law; or

                             (ii)  Part 3‑5 of the Australian Consumer Law;

the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the proceeding to the Family Court.

             (2)  Subject to subsection (3), if a proceeding is transferred to the Family Court under subsection (1):

                     (a)  the Family Court has jurisdiction to hear and determine the proceeding; and

                     (b)  the Family Court also has jurisdiction to hear and determine matters not otherwise within its jurisdiction (whether because of paragraph (a) or otherwise):

                              (i)  that are associated with matters arising in the proceeding; or

                             (ii)  that, apart from subsection 32(1) of the Federal Court of Australia Act 1976, the Federal Court would have had jurisdiction to hear and determine in the proceeding; and

                     (c)  the Family Court may, in and in relation to the proceeding:

                              (i)  grant such remedies; and

                             (ii)  make orders of such kinds; and

                            (iii)  issue, and direct the issue of, writs of such kinds;

                            as the Federal Court could have granted, made, issued or directed the issue of, in and in relation to the proceeding; and

                     (d)  remedies, orders and writs granted, made or issued by the Family Court in and in relation to the proceeding have effect, and may be enforced by the Family Court, as if they had been granted, made or issued by the Federal Court; and

                     (e)  appeals lie from judgments of the Family Court given in and in relation to the proceeding as if the judgments were judgments of the Federal Court constituted by a single Judge of that Court, and do not otherwise lie; and

                      (f)  subject to paragraphs (a) to (e) of this subsection, this Act, the regulations, the Federal Court of Australia Act 1976, the Rules of Court made under that Act, and other laws of the Commonwealth, apply in and in relation to the proceeding as if:

                              (i)  a reference to the Federal Court (other than in the expression the Court or a Judge) included a reference to the Family Court; and

                             (ii)  a reference to a Judge of the Federal Court (other than in the expression the Court or a Judge) included a reference to a Family Court Judge; and

                            (iii)  a reference to the expression the Court or a Judge when used in relation to the Federal Court included a reference to a Family Court Judge sitting in Chambers; and

                            (iv)  a reference to a Registrar of the Federal Court included a reference to a Registrar of the Family Court; and

                             (v)  any other necessary changes were made.

             (3)  If any difficulty arises in the application of paragraphs (2)(c), (d) and (f) in or in relation to a particular proceeding, the Family Court may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.

             (4)  An appeal does not lie from a decision of the Federal Court in relation to the transfer of a proceeding under this Act to the Family Court.

Division 9Miscellaneous

139  Intervention by the Commission

             (1)  The Commission may, with the leave of a court and subject to any conditions imposed by the court, intervene in any proceeding instituted under this Part or the Australian Consumer Law.

             (2)  If the Commission intervenes in a proceeding, the Commission is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.

139A  Terms excluding consumer guarantees from supplies of recreational services

             (1)  A term of a contract for the supply of recreational services to a consumer by a person is not void under section 64 of the Australian Consumer Law only because the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying:

                     (a)  the application of all or any of the provisions of Subdivision B of Division 1 of Part 3‑2 of the Australian Consumer Law; or

                     (b)  the exercise of a right conferred by such a provision; or

                     (c)  any liability of the person for a failure to comply with a guarantee that applies under that Subdivision to the supply.

             (2)  Recreational services are services that consist of participation in:

                     (a)  a sporting activity or a similar leisure time pursuit; or

                     (b)  any other activity that:

                              (i)  involves a significant degree of physical exertion or physical risk; and

                             (ii)  is undertaken for the purposes of recreation, enjoyment or leisure.

             (3)  This section does not apply unless the exclusion, restriction or modification is limited to liability for:

                     (a)  death; or

                     (b)  a physical or mental injury of an individual (including the aggravation, acceleration or recurrence of such an injury of the individual); or

                     (c)  the contraction, aggravation or acceleration of a disease of an individual; or

                     (d)  the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual:

                              (i)  that is or may be harmful or disadvantageous to the individual or community; or

                             (ii)  that may result in harm or disadvantage to the individual or community.

             (4)  This section does not apply if the exclusion, restriction or modification would apply to significant personal injury suffered by a person that is caused by the reckless conduct of the supplier of the recreational services.

             (5)  The supplier’s conduct is reckless conduct if the supplier:

                     (a)  is aware, or should reasonably have been aware, of a significant risk that the conduct could result in personal injury to another person; and

                     (b)  engages in the conduct despite the risk and without adequate justification.

139B  Conduct of directors, employees or agents of bodies corporate

             (1)  If, in a proceeding under this Part or the Australian Consumer Law in respect of conduct that is engaged in by a body corporate and to which this Part or the Australian Consumer Law applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show:

                     (a)  that a director, employee or agent of the body corporate engaged in that conduct within the scope of the actual or apparent authority of the director, employee or agent; and

                     (b)  that the director, employee or agent had that state of mind.

             (2)  Any conduct engaged in on behalf of a body corporate:

                     (a)  by a director, employee or agent of the body corporate within the scope of the actual or apparent authority of the director, employee or agent; or

                     (b)  by any other person:

                              (i)  at the direction of a director, employee or agent of the body corporate; or

                             (ii)  with the consent or agreement (whether express or implied) of such a director, employee or agent;

                            if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;

is taken, for the purposes of this Part or the Australian Consumer Law, to have been engaged in also by the body corporate.

139C  Conduct of employees or agents of persons other than bodies corporate

             (1)  If, in a proceeding under this Part or the Australian Consumer Law in respect of conduct that is engaged in by a person (the principal) other than a body corporate and to which this Part or the Australian Consumer Law applies, it is necessary to establish the state of mind of the principal, it is sufficient to show:

                     (a)  that an employee or agent of the principal engaged in that conduct within the scope of the actual or apparent authority of the employee or agent; and

                     (b)  the employee or agent had that state of mind.

             (2)  Any conduct engaged in on behalf of a person (the principal) other than a body corporate:

                     (a)  by an employee or agent of the principal within the scope of the actual or apparent authority of the employee or agent; or

                     (b)  by any other person:

                              (i)  at the direction of an employee or agent of the principal; or

                             (ii)  with the consent or agreement (whether express or implied) of such an employee or agent;

                            if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;

is taken, for the purposes of this Part or the Australian Consumer Law, to have been engaged in also by the principal.

             (3)  If:

                     (a)  a person other than a body corporate is convicted of an offence; and

                     (b)  subsection (1) or (2) applied in relation to the conviction on the basis that the person was the principal mentioned in that subsection; and

                     (c)  the person would not have been convicted of the offence if that subsection had not been enacted;

the person is not liable to be punished by imprisonment for that offence.

139D  Enforcement and recovery of certain fines

             (1)  If a person defaults in paying a fine that has been imposed on the person for an offence against a provision of Chapter 4 of the Australian Consumer Law or section 137G of this Act, a court may:

                     (a)  exercise any power that the court has apart from this section in relation to the enforcement and recovery of the fine; or

                     (b)  make an order (the enforcement order), on the application of the Commonwealth Minister or the Commission, declaring that the fine is to have effect, and may be enforced, as if it were a judgment debt under a judgment of the court.

             (2)  If:

                     (a)  the court makes an enforcement order; and

                     (b)  the person gives security for the payment of the fine;

the court must cancel the enforcement order.

             (3)  If the court makes an enforcement order, the court may, at any time before the enforcement order is executed:

                     (a)  allow the person a specified time in which to pay the fine; or

                     (b)  allow the person to pay the fine by specified instalments.

             (4)  If the court allows the person a specified time in which to pay the fine:

                     (a)  the enforcement order must not be executed unless the person fails to pay the fine within that time; and

                     (b)  if the person pays the fine within that time—the enforcement order is taken to have been discharged.

             (5)  If the court allows the person to pay the fine by specified instalments:

                     (a)  the enforcement order must not be executed unless the person fails to pay such an instalment at or before the time when it becomes payable; and

                     (b)  if the person pays all those instalments—the enforcement order is taken to have been discharged.

             (6)  The term of a sentence of imprisonment imposed by an order under a law of a State or a Territory applied by section 15A of the Crimes Act 1914 (including an order described in subsection 15A(1AA) of that Act) in respect of a fine is to be calculated at the rate of one day’s imprisonment for each $25 of the amount of the fine that is from time to time unpaid.

139DA  Application of section 229 of the Australian Consumer Law to a person other than a body corporate

                   If, as a result of the operation of Part 2.4 of the Criminal Code, a person other than a body corporate is:

                     (a)  convicted of an offence (the relevant offence) against subsection 229(1) of the Australian Consumer Law; or

                     (b)  convicted of an offence (the relevant offence) against section 11.4 of the Criminal Code in relation to an offence referred to in subsection 229(1) of the Australian Consumer Law;

the relevant offence is taken to be punishable on conviction by a fine not exceeding $550.

139E  Cessation of enforcement orders etc.

             (1)  Subject to this section, an enforcement order in relation to a fine ceases to have effect:

                     (a)  on payment of the fine; or

                     (b)  if the fine is not paid—on full compliance with the enforcement order.

             (2)  Subject to this section, if a person is required under one or more enforcement orders to serve periods of imprisonment, those periods must be served consecutively.

             (3)  If:

                     (a)  a person would, but for this subsection, be required under one or more enforcement orders that relate to 3 or more fines to serve periods of imprisonment that in aggregate are longer than 3 years; and

                     (b)  those fines were imposed (whether or not in the same proceedings) for offences constituted by contraventions:

                              (i)  that occurred within a period of 2 years; and

                             (ii)  that appear to a court to have been of the same nature or of a substantially similar nature;

the court must, by order, declare that the enforcement order or orders cease to have effect in respect of those fines after the person has served an aggregate of 3 years’ imprisonment.

             (4)  If subsection (3) would, but for this subsection, apply to a person with respect to offences committed by the person within 2 or more overlapping periods of 2 years, the court must make an order under that subsection in relation to only one of those periods.

             (5)  The order under subsection (4) must relate to the period which would give the person the maximum benefit under subsection (3).

             (6)  For the purposes of subsection (4), the court may vary or revoke an order made under subsection (3).

139F  Compensation for acquisition of property

             (1)  If the operation of this Part (including Schedule 2 as applied by this Part) would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

139G  Regulations

             (1)  The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by Schedule 2 to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to that Schedule.

             (2)  Before the Governor‑General makes a regulation for the purposes of paragraph 25(n) of Schedule 2 prescribing a kind of term of a consumer contract, or a kind of effect that such a term has, the Commonwealth Minister must take into consideration:

                     (a)  the detriment that a term of that kind would cause to consumers; and

                     (b)  the impact on business generally of prescribing that kind of term or effect; and

                     (c)  the public interest.

             (3)  Before the Governor‑General makes a regulation under subsection (1) for the purposes of paragraph 65(1)(a) of Schedule 2 in relation to supplies of a particular kind, the Commonwealth Minister must be satisfied that:

                     (a)  the laws of the Commonwealth; and/or

                     (b)  the laws of the States and Territories;

adequately provide for consumer rights in relation to supplies of that kind.

             (4)  The regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of Schedule 2 or of specified provisions of Schedule 2:

                     (a)  conduct engaged in by a specified organisation or body that performs functions in relation to the marketing of primary products; or

                     (b)  any of the following:

                              (i)  a specified contract or proposed contract made;

                             (ii)  contracts included in a specified class of contracts made;

                            (iii)  specified conduct entered into;

                            pursuant to or for the purposes of a specified agreement, arrangement or understanding between the Government of Australia and the Government of a foreign country; or

                     (c)  prescribed conduct engaged in in the course of a business carried on by the Commonwealth or by a prescribed authority of the Commonwealth.

             (5)  Strict compliance with a form of application or notice prescribed for the purposes of Schedule 2 is not, and is taken never to have been, required and substantial compliance is, and is taken always to have been, sufficient.

Part XIAAApplication of the Australian Consumer Law as a law of a State or Territory

  

140  Definitions

                   In this Part:

application law means:

                     (a)  a law of a participating jurisdiction that applies the applied Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or

                     (b)  any regulations or other legislative instrument made under a law described in paragraph (a); or

                     (c)  the applied Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications.

applied Australian Consumer Law means (according to the context):

                     (a)  the text described in section 140B; or

                     (b)  that text, applying as a law of a participating jurisdiction, either with or without modifications.

apply, in relation to the applied Australian Consumer Law, means apply the applied Australian Consumer Law by reference:

                     (a)  as in force from time to time; or

                     (b)  as in force at a particular time.

Commonwealth entity means:

                     (a)  an authority of the Commonwealth; or

                     (b)  an officer of the Commonwealth.

imposes a duty has the meaning given by section 140G.

modifications includes additions, omissions and substitutions.

officer, in relation to the Commonwealth, includes the following:

                     (a)  a Minister;

                     (b)  a person who holds:

                              (i)  an office established by or under an Act; or

                             (ii)  an appointment made under an Act; or

                            (iii)  an appointment made by the Governor‑General or a Minister but not under an Act;

                     (c)  a person who is a member or officer of an authority of the Commonwealth;

                     (d)  a person who is:

                              (i)  in the service or employment of the Commonwealth, or of an authority of the Commonwealth; or

                             (ii)  employed or engaged under an Act.

participating jurisdiction means a participating State or participating Territory.

participating State means a State that is a party to the Intergovernmental Agreement for the Australian Consumer Law and applies the applied Australian Consumer Law as a law of the State, either with or without modifications.

participating Territory means a Territory that is a party to the Intergovernmental Agreement for the Australian Consumer Law and applies the applied Australian Consumer Law as a law of the Territory, either with or without modifications.

Territory means the Australian Capital Territory or the Northern Territory.

140A  Object of this Part

                   The object of this Part is to facilitate the application of the Australian Consumer Law by participating States and participating Territories.

140B  The applied Australian Consumer Law

                   The applied Australian Consumer Law consists of:

                     (a)  Schedule 2; and

                     (b)  the regulations made under section 139G of this Act.

140C  Federal Court may exercise jurisdiction under application laws of Territories

                   The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the applied Australian Consumer Law.

140D  Exercise of jurisdiction under cross‑vesting provisions

                   This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross‑vesting of jurisdiction.

140E  Commonwealth consent to conferral of functions etc. on Commonwealth entities

             (1)  An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the applied Australian Consumer Law.

Note:          Section 140G sets out when such a law imposes a duty on a Commonwealth entity.

             (2)  Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which:

                     (a)  the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or

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

             (3)  The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

140F  How duty is imposed

Application

             (1)  This section applies if an application law purports to impose a duty on a Commonwealth entity.

Note:          Section 140G sets out when such a law imposes a duty on a Commonwealth entity.

State or Territory legislative power sufficient to support duty

             (2)  The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:

                     (a)  imposing the duty is within the legislative powers of the State or Territory concerned; and

                     (b)  imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.

Note:          If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 140E to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

             (3)  If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

             (4)  If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.

             (5)  The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:

                     (a)  is within the legislative powers of the Commonwealth; and

                     (b)  is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.

             (6)  Subsections (1) to (5) do not limit section 140E.

140G  When an application law imposes a duty

                   For the purposes of this Part, an application law imposes a duty on a Commonwealth entity if:

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

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

140H  Application laws may operate concurrently with this Act

                   This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.

140J  No doubling‑up of liabilities

             (1)  If:

                     (a)  an act or omission is an offence against this Act and is also an offence against an application law; and

                     (b)  the offender has been punished for the offence under the application law;

the offender is not liable to be punished for the offence against this Act.

             (2)  If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.

140K  References in instruments to the Australian Consumer Law

             (1)  A reference in any instrument to the Australian Consumer Law is a reference to:

                     (a)  the Australian Consumer Law as applied under Division 2 of Part XI; and

                     (b)  the applied Australian Consumer Laws of any or all of the participating jurisdictions.

             (2)  Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.

Part XIAThe Competition Code

  

150A  Definitions

                   In this Part, unless the contrary intention appears:

application law means:

                     (a)  a law of a participating jurisdiction that applies the Competition Code, either with or without modifications, as a law of the participating jurisdiction; or

                     (b)  any regulations or other legislative instrument made under a law described in paragraph (a); or

                     (c)  the Competition Code, applying as a law of the participating jurisdiction, either with or without modifications.

apply, in relation to the Competition Code, means apply the Competition Code by reference:

                     (a)  as in force from time to time; or

                     (b)  as in force at a particular time.

Commonwealth entity means:

                     (a)  an authority of the Commonwealth; or

                     (b)  an officer of the Commonwealth.

Competition Code means (according to the context):

                     (a)  the text described in section 150C; or

                     (b)  that text, applying as a law of a participating jurisdiction, either with or without modifications.

modifications includes additions, omissions and substitutions.

officer, in relation to the Commonwealth, includes the following:

                     (a)  a Minister;

                     (b)  a person who holds:

                              (i)  an office established by or under an Act;

                             (ii)  an appointment made under an Act;

                            (iii)  an appointment made by the Governor‑General or a Minister but not under an Act;

                     (c)  a person who is a member or officer of an authority of the Commonwealth;

                     (d)  a person who is in the service or employment of the Commonwealth, or of an authority of the Commonwealth, or is employed or engaged under an Act.

participating jurisdiction means a participating State or Territory.

participating State means a State that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the State, either with or without modifications.

participating Territory means a Territory that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the Territory, either with or without modifications.

Schedule version of Part IV means the text that is set out in Part 1 of Schedule 1 to this Act.

Territory means the Australian Capital Territory or the Northern Territory.

150B  Objects of this Part

                   The objects of this Part are:

                     (a)  to facilitate the application of the Competition Code by participating Territories; and

                     (b)  to facilitate the application of the Competition Code by participating States.

150C  The Competition Code

             (1)  The Competition Code consists of:

                     (a)  the Schedule version of Part IV;

                     (b)  the remaining provisions of this Act (except sections 2A, 5, 6 and 172), so far as they would relate to the Schedule version if the Schedule version were substituted for Part IV;

                     (c)  the regulations under this Act, so far as they relate to any provision covered by paragraph (a) or (b).

             (2)  For the purpose of forming part of the Competition Code, the provisions referred to in paragraphs (1)(b) and (c) are to be modified as necessary to fit in with the Schedule version of Part IV. In particular, references to corporations are to include references to persons who are not corporations.

150D  Federal Court may exercise jurisdiction under application laws of Territories

                   The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the Competition Code.

150E  Exercise of jurisdiction under cross‑vesting provisions

                   This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross‑vesting of jurisdiction.

150F  Commonwealth consent to conferral of functions etc. on Commonwealth entities

             (1)  An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the Competition Code.

Note:          Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.

             (2)  Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which:

                     (a)  the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or

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

             (3)  The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

150FA  How duty is imposed

Application

             (1)  This section applies if an application law purports to impose a duty on a Commonwealth entity.

Note:          Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.

State or Territory legislative power sufficient to support duty

             (2)  The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:

                     (a)  imposing the duty is within the legislative powers of the State or Territory concerned; and

                     (b)  imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.

Note:          If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 150F to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

             (3)  If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

             (4)  If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.

             (5)  The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:

                     (a)  is within the legislative powers of the Commonwealth; and

                     (b)  is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.

             (6)  Subsections (1) to (5) do not limit section 150F.

150FB  When an application law imposes a duty

                   For the purposes of sections 150F and 150FA, an application law imposes a duty on a Commonwealth entity if:

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

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

150G  Application laws may operate concurrently with this Act

                   This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.

150H  No doubling‑up of liabilities

             (1)  If:

                     (a)  an act or omission is an offence against this Act and is also an offence against an application law; and

                     (b)  the offender has been punished for the offence under the application law;

the offender is not liable to be punished for the offence against this Act.

             (2)  If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.

150I  References in instruments to the Competition Code

             (1)  A reference in any instrument to the Competition Code is a reference to the Competition Codes of any or all of the participating jurisdictions.

             (2)  Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.

150J  Authorisations etc. under this Act may relate also to Competition Code

                   The validity of an authorisation, notification, clearance or any other thing given or done for the purposes of this Act is not affected only because it was given or done also for the purposes of the Competition Code.

150K  Gazettal of jurisdictions that excessively modify the Code

             (1)  If the Minister is satisfied that the laws of a participating jurisdiction have made significant modifications to the Competition Code in its application to persons within the legislative competence of the participating jurisdiction, the Minister may publish a notice in the Gazette stating that the Minister is so satisfied.

             (2)  The Minister may, by further notice in the Gazette, revoke a notice published under subsection (1).

Part XIBThe Telecommunications Industry: Anti‑competitive conduct and record‑keeping rules

Division 1Introduction

151AA  Simplified outline

                   The following is a simplified outline of this Part:

     This Part sets up a special regime for regulating anti‑competitive conduct in the telecommunications industry. The regime applies in addition to Part IV.

     The Part sets out the circumstances in which carriers and carriage service providers are said to engage in anti‑competitive conduct.

     A carrier or carriage service provider must not engage in anti‑competitive conduct. This rule is called the competition rule.

     The Commission may issue a notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in anti‑competitive conduct. The notice is called a Part A competition notice.

     Proceedings for the enforcement of the competition rule (other than proceedings for injunctive relief) must not be instituted unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force at the time when the alleged conduct occurred.

     The Commission may issue a notice stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule. The notice is called a Part B competition notice.

     A Part B competition notice is prima facie evidence of the matters in the notice.

     The Commission may make an order exempting specified conduct from the scope of the definition of anti‑competitive conduct. The order is called an exemption order.

     Carriers and carriage service providers may be directed to file tariff information with the Commission. The direction is called a tariff filing direction.

     The Commission may make record‑keeping rules that apply to carriers and carriage service providers.

     Carriers and carriage service providers may be directed by the Commission to make certain reports available. The direction is called a disclosure direction.

151AB  Definitions

                   In this Part, unless the contrary intention appears:

ACMA means the Australian Communications and Media Authority.

anti‑competitive conduct has the meaning given by section 151AJ.

carriage service has the same meaning as in the Telecommunications Act 1997.

carriage service provider has the same meaning as in the Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act 1997.

carrier licence has the same meaning as in the Telecommunications Act 1997.

competition notice means:

                     (a)  a Part A competition notice; or

                     (b)  a Part B competition notice.

competition rule means the rule set out in section 151AK.

content service has the same meaning as in the Telecommunications Act 1997.

data processing device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.

disclosure direction means a direction under subsection 151BUB(2), 151BUC(2), 151BUDB(2) or 151BUDC(2).

eligible partnership has the same meaning as in the Telecommunications Act 1997.

exemption order means an order under section 151BA.

facility has the same meaning as in the Telecommunications Act 1997.

Federal Court means the Federal Court of Australia.

listed carriage service has the same meaning as in the Telecommunications Act 1997.

Ministerially‑directed report has the meaning given by section 151BUAA.

NBN corporation has the same meaning as in the National Broadband Network Companies Act 2011.

Part A competition notice means a notice issued under subsection 151AKA(1) or (2).

Part B competition notice means a notice issued under subsection 151AL(1).

person includes a partnership.

Note:          Section 151CH sets out additional rules about partnerships.

record‑keeping rule means a rule under section 151BU.

service provider rule has the same meaning as in the Telecommunications Act 1997.

tariff filing direction means a direction under section 151BK.

telecommunications market has the meaning given by section 151AF.

151AC  Extension to external Territories

                   This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).

151AD  Continuity of partnerships

                   For the purposes of this Part, a change in the composition of a partnership does not affect the continuity of the partnership.

151AE  Additional operation of Part

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

             (2)  This Part has, by force of this subsection, the effect it would have if:

                     (a)  any references in this Part to a carrier were, by express provision, confined to a carrier that is a corporation; and

                     (b)  any references in this Part to a carriage service provider were, by express provision, confined to a carriage service provider that is a corporation.

             (3)  In addition to the effect that this Part has as provided by subsection (2), this Part has, by force of this subsection, the effect it would have if subsections 151AJ(2) and (3) 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:

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

                     (b)  trade or commerce among the States; or

                     (c)  trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

                     (d)  the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth.

151AF  Telecommunications market

                   For the purposes of this Part, a telecommunications market is a market in which any of the following goods or services are supplied or acquired:

                     (a)  carriage services;

                     (b)  goods or services for use in connection with a carriage service;

                     (c)  access to facilities;

                     (d)  content services.

Note:          Market has a meaning affected by section 4E.

151AG  When a body corporate is related to a partnership

                   For the purposes of this Part, if:

                     (a)  a carrier or a carriage service provider is a partnership; and

                     (b)  a body corporate is related to a partner in the partnership;

the body corporate is taken to be related to the carrier or carriage service provider, as the case requires.

151AH  Degree of power in a telecommunications market

             (1)  For the purposes of this Part, if:

                     (a)  a body corporate is related to:

                              (i)  a carrier; or

                             (ii)  a carriage service provider; and

                     (b)  the body corporate has a substantial degree of power in a telecommunications market;

the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.

             (2)  For the purposes of this Part, if:

                     (a)  2 or more bodies corporate are related to the one:

                              (i)  carrier; or

                             (ii)  carriage service provider; and

                     (b)  those bodies corporate together have a substantial degree of power in a telecommunications market;

the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.

             (3)  For the purposes of this Part, if:

                     (a)  a body corporate is related to:

                              (i)  a carrier; or

                             (ii)  a carriage service provider; and

                     (b)  the body corporate and the carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market;

the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.

             (4)  For the purposes of this Part, if:

                     (a)  2 or more bodies corporate are related to:

                              (i)  a carrier; or

                             (ii)  a carriage service provider; and

                     (b)  those bodies corporate and that carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market;

the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.

             (5)  In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard must be had to the extent to which the conduct of the person or any of those persons in that market is constrained by the conduct of:

                     (a)  competitors, or potential competitors, of the person or of any of those persons in that market; or

                     (b)  persons to whom or from whom the person or any of those persons supplies or acquires goods or services in that market.

          (5A)  In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard may be had to the power that the person has, or that the persons have, in that market that results from:

                     (a)  any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the person has or may have, or that the persons have or may have, with another party or parties; and

                     (b)  any covenants, or proposed covenants, that the person is or would be, or that the persons are or would be, bound by or entitled to the benefit of.

             (6)  Subsections (5) and (5A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market.

          (6A)  For the purposes of this Part, without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial degree of power in a telecommunications market, a person may have a substantial degree of power in a telecommunications market even though:

                     (a)  the person does not substantially control the market; or

                     (b)  the person does not have absolute freedom from constraint by the conduct of:

                              (i)  competitors, or potential competitors, of the person in that market; or

                             (ii)  persons to whom or from whom the person supplies or acquires goods or services in that market.

          (6B)  To avoid doubt, for the purposes of this Part, more than 1 person may have a substantial degree of power in a telecommunications market.

             (7)  In this Part:

                     (a)  a reference to power is a reference to market power; and

                     (b)  a reference to power in relation to, or to conduct in, a telecommunications market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.

151AI  Interpretation of Part IV or VII not affected by this Part

                   In determining the meaning of a provision of Part IV or VII, the provisions of this Part are to be ignored.

Division 2Anti‑competitive conduct

151AJ  Anti‑competitive conduct

             (1)  This section sets out the 2 circumstances in which:

                     (a)  a carrier; or

                     (b)  a carriage service provider;

is said to engage in anti‑competitive conduct for the purposes of this Part.

             (2)  A carrier or carriage service provider engages in anti‑competitive conduct if the carrier or carriage service provider:

                     (a)  has a substantial degree of power in a telecommunications market; and

                     (b)  either:

                              (i)  takes advantage of that power in that or any other market with the effect, or likely effect, of substantially lessening competition in that or any other telecommunications market; or

                             (ii)  takes advantage of that power in that or any other market, and engages in other conduct on one or more occasions, with the combined effect, or likely combined effect, of substantially lessening competition in that or any other telecommunications market.

          (2A)  Without limiting the matters to which regard may be had for the purpose of determining whether a carrier or carriage service provider has engaged in anti‑competitive conduct as defined in subsection (2), regard may be had to:

                     (a)  any conduct of the carrier or carriage service provider that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the carrier or carriage service provider of supplying such goods or services; and

                     (b)  the reasons for that conduct.

             (3)  A carrier or carriage service provider engages in anti‑competitive conduct if the carrier or carriage service provider:

                     (a)  engages in conduct in contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48; and

                     (b)  the conduct relates to a telecommunications market.

             (4)  For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation, in determining whether conduct of the carrier or provider is in contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48, the following assumptions are to be made:

                     (a)  the assumption that each reference to a corporation in:

                              (i)  those sections; and

                             (ii)  sections 44ZZRL and 44ZZRM;

                            included a reference to a carrier, or a carriage service provider, that is not a corporation;

                     (b)  the assumption that subsections 45(8) and 47(12) and section 44ZZRN had not been enacted.

             (5)  For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation or a partnership, in determining whether conduct of the carrier or provider is in contravention of section 45, 45B, 46, 47 or 48, the following assumptions are to be made:

                     (a)  the assumption that the expression “or any body corporate related to such a corporation” were omitted from subsection 45(3);

                     (b)  the assumption that the expression “or a body corporate related to the corporation” were omitted from paragraph 45(4)(b);

                     (c)  the assumption that the expression “or of a body corporate that is related to the corporation” were omitted from paragraphs 46(1)(a) and (1AA)(a);

                     (d)  the assumption that subsection 46(2) had not been enacted;

                     (e)  the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from each of the following provisions:

                              (i)  paragraphs 47(2)(d) and (e);

                             (ii)  paragraphs 47(3)(d) and (e);

                            (iii)  subparagraphs 47(8)(a)(i) and (ii);

                      (f)  the assumption that the expression “not being a body corporate related to the corporation” were omitted from subsections 47(6) and (7) and paragraphs 47(8)(c) and 47(9)(d);

                     (g)  the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from paragraphs 47(9)(a) and (b);

                     (h)  the assumption that the expression “, or by a body corporate related to the corporation,” were omitted from paragraph 47(10)(b);

                      (i)  the assumption that the expression “or any body corporate related to that corporation” were omitted from subparagraph 47(13)(b)(i);

                      (j)  the assumption that the expression “or any body corporate related to either of those corporations” were omitted from paragraph 47(13)(c) and the expression “any body corporate related to the last‑mentioned corporation” were substituted;

                     (k)  the assumption that the expression “where the second person mentioned in that paragraph is a corporation” were omitted from subsection 96(2).

             (6)  A person may be taken to have engaged in anti‑competitive conduct even if the conduct involves the exercise, or proposed exercise, of an existing legal or equitable right (whether under a contract or otherwise).

             (7)  Despite anything in this section, a carrier or carriage service provider does not engage in anti‑competitive conduct if that conduct does not constitute a contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48:

                     (a)  because an authorisation is in force; or

                     (b)  because of the operation of subsection 44ZZRL(1) or 45(8A) or section 93; or

                     (c)  because of the operation of subsection 45(9); or

                     (d)  because of the operation of subsection 45B(8); or

                     (e)  because of the operation of section 44ZZRM.

             (8)  A carrier or carriage service provider does not engage in anti‑competitive conduct if that conduct occurred before 1 July 1997.

             (9)  Despite anything in this section, a person does not engage in anti‑competitive conduct if, under section 577BA of the Telecommunications Act 1997, the conduct is authorised for the purposes of subsection 51(1) of this Act.

           (10)  Despite anything in this section, a person does not engage in anti‑competitive conduct if, under section 151DA, the conduct is authorised for the purposes of subsection 51(1).

151AK  The competition rule

             (1)  A carrier or carriage service provider must not engage in anti‑competitive conduct.

             (2)  For the purposes of this Part, the rule set out in subsection (1) is to be known as the competition rule.

Note:          For enforcement of the competition rule, see Division 7.

Division 3Competition notices and exemption orders

Subdivision ACompetition notices

151AKA  Part A competition notices

Particular anti‑competitive conduct

             (1)  The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in a specified instance of anti‑competitive conduct.

Kind of anti‑competitive conduct

             (2)  The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in at least one instance of anti‑competitive conduct of a kind described in the notice.

Part A competition notice

             (3)  A notice under subsection (1) or (2) is to be known as a Part A competition notice.

Part A competition notices under subsection (2)

             (4)  For the purposes of this Part, a kind of anti‑competitive conduct described in a Part A competition notice under subsection (2) is taken to be conduct of a kind dealt with in the notice.

             (5)  To avoid doubt, a Part A competition notice under subsection (2) is not required to specify any instance of anti‑competitive conduct.

             (6)  In deciding how to describe a kind of anti‑competitive conduct in a Part A competition notice under subsection (2), the Commission may have regard to:

                     (a)  whether the carrier or carriage service provider concerned could, by varying its conduct, continue to engage in anti‑competitive conduct and avoid proceedings against it under one or more provisions of Division 7; and

                     (b)  any other matters that the Commission thinks are relevant.

Threshold for issuing Part A competition notices

             (7)  The Commission may issue a Part A competition notice under subsection (1) that specifies an instance of anti‑competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in that instance of anti‑competitive conduct.

             (8)  The Commission may issue a Part A competition notice under subsection (2) that describes a kind of anti‑competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in at least one instance of anti‑competitive conduct of that kind.

Procedural fairness

             (9)  The Commission is not required to observe any requirements of procedural fairness in relation to the issue of a Part A competition notice.

Note:          For the effect of a Part A competition notice, see subsections 151BY(3), 151CB(3), 151CC(3) and 151CE(5).

151AL  Part B competition notices

             (1)  The Commission may issue a written notice:

                     (a)  stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule; and

                     (b)  setting out particulars of that contravention.

             (2)  A notice under subsection (1) is to be known as a Part B competition notice.

Threshold for issuing Part B competition notices

             (3)  The Commission may issue a Part B competition notice relating to a particular contravention if the Commission has reason to believe that the carrier or carriage service provider concerned has committed, or is committing, the contravention.

Notice may be issued after proceedings have been instituted

             (4)  To avoid doubt, a Part B competition notice may be issued even if any relevant proceedings under Division 7 have been instituted.

Note:          For the effect of a Part B competition notice, see subsection 151AN(1).

151AM  Competition notice to be given to carrier or carriage service provider

                   As soon as practicable after issuing a competition notice, the Commission must give a copy of the competition notice to the carrier or carriage service provider concerned.

151AN  Evidentiary effect of competition notice

             (1)  In any proceedings under, or arising out of, this Part, a Part B competition notice is prima facie evidence of the matters in the notice.

             (2)  A document purporting to be a competition notice must, unless the contrary is established, be taken to be a competition notice and to have been properly issued.

             (3)  The Commission may certify that a document is a copy of a competition notice.

             (4)  This section applies to the certified copy as if it were the original.

151AO  Duration of Part A competition notice

             (1)  A Part A competition notice comes into force:

                     (a)  when it is issued; or

                     (b)  if the notice specifies a later time—at that later time;

and, unless sooner revoked, remains in force until the end of the period specified in the notice. The period must not be longer than 12 months.

             (2)  If a Part A competition notice expires, this Part does not prevent the Commission from issuing a fresh Part A competition notice under section 151AKA that relates to the same matter as the expired notice.

151AOA  Variation of competition notice

             (1)  If a competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice so long as the variation is of a minor nature.

             (2)  If a Part A competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice by omitting the time at which the notice is expressed to come into force and substituting a later time.

             (3)  If a competition notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation.

151AOB  Revocation of competition notice

             (1)  The Commission may revoke a competition notice.

             (2)  If a competition notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the notice has been revoked.

151AP  Guidelines

             (1)  In deciding whether to issue a competition notice, the Commission must have regard to:

                     (a)  any guidelines in force under subsection (2); and

                     (b)  such other matters as the Commission considers relevant.

             (2)  The Commission must, by written instrument, formulate guidelines for the purposes of subsection (1).

             (3)  Guidelines under subsection (2) must address the appropriateness of the Commission issuing a competition notice as opposed to the Commission taking other action under this Act.

             (4)  The Commission must take all reasonable steps to ensure that guidelines under subsection (2) comply with subsection (3) within 12 months after the commencement of this subsection.

151AQ  Commission to act expeditiously

             (1)  If the Commission has reason to suspect that a carrier or carriage service provider has contravened, or is contravening, the competition rule, the Commission must act expeditiously in deciding whether to issue a competition notice in relation to that contravention.

             (2)  A failure to comply with subsection (1) does not affect the validity of a competition notice.

151AQA  Stay of proceedings relating to competition notices

             (1)  Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision to issue a competition notice.

             (2)  If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application. However, this subsection does not apply to an order under subsection (3).

             (3)  If:

                     (a)  either:

                              (i)  a person applies to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision to issue a competition notice; or

                             (ii)  a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice; and

                     (b)  any relevant proceedings have been instituted under Division 7 of this Part;

the Federal Court or a Judge of the Federal Court may, by order, on such conditions as the Court or the Judge thinks fit, stay those proceedings.

             (4)  If:

                     (a)  a person applies to the Federal Circuit Court under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision to issue a competition notice; and

                     (b)  any relevant proceedings have been instituted under Division 7 of this Part;

the Federal Circuit Court or a Judge of the Federal Circuit Court may, by order, on such conditions as the Court or the Judge thinks fit, stay those proceedings.

151AQB  Advisory notices

Issue of advisory notice

             (1)  The Commission may give a carrier or carriage service provider a written notice (an advisory notice) advising the carrier or provider of the action it should take, or consider taking, in order to ensure that it does not engage, or continue to engage, in anti‑competitive conduct.

             (2)  The Commission does not have a duty to consider whether to issue an advisory notice in relation to:

                     (a)  a particular instance of anti‑competitive conduct; or

                     (b)  a particular kind of anti‑competitive conduct;

before it issues a Part A competition notice in relation to that instance or kind of conduct.

Nature of advisory notice

             (3)  An advisory notice is an instrument of an advisory character.

Varying or revoking advisory notice

             (5)  The Commission may vary or revoke an advisory notice.

             (6)  If an advisory notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation.

             (7)  If an advisory notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the advisory notice has been revoked.

Publication of advisory notice

             (8)  If the Commission is satisfied that:

                     (a)  the publication of an advisory notice would result, or be likely to result, in a benefit to the public; and

                     (b)  that benefit would outweigh any substantial prejudice to the commercial interests of a person that would result, or be likely to result, if the advisory notice were published;

the Commission may publish the advisory notice in such manner as it thinks fit.

151AR  Register of competition notices

             (1)  The Commission must keep a Register in relation to competition notices.

             (2)  The Register must include particulars of all competition notices (including notices that have expired).

             (3)  The Register may be maintained by electronic means.

             (4)  A person may, on payment of the fee (if any) specified in the regulations:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (5)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.

             (6)  If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.

Subdivision BExemption orders

151AS  Exemption orders

             (1)  A person may apply to the Commission for an order exempting specified conduct of the person from the scope of section 151AJ (which deals with anti‑competitive conduct). The order is called an exemption order.

             (2)  An exemption order is not invalid only because the conduct specified in the order is conduct of a kind that, apart from the order, is outside the scope of section 151AJ (which deals with anti‑competitive conduct).

151AT  Form of application

                   An application for an exemption order must be:

                     (a)  in writing; and

                     (b)  in a form approved in writing by the Commission; and

                     (c)  accompanied by the prescribed fee.

151AU  Further information

             (1)  The Commission may request an applicant for an exemption order to give the Commission further information about the application.

             (2)  The Commission may refuse to consider the application until the applicant gives the Commission the information.

             (3)  The Commission may withdraw its request for further information, in whole or in part.

151AV  Withdrawal of application

                   An applicant for an exemption order may withdraw the application by written notice given to the Commission.

151AW  Commission must publicise receipt of applications

                   If the Commission receives an application for an exemption order, the Commission must publicise the receipt of the application in such manner as it thinks fit.

151AX  Commission may refuse to consider application if it relates to the same conduct as an authorisation application

             (1)  This section applies if:

                     (a)  the Commission receives, or has received, an application for an exemption order; and

                     (b)  the Commission receives, or has received, an application for an authorisation under Division 1 of Part VII; and

                     (c)  the application for the exemption order and the application for the authorisation relate to the same conduct.

             (2)  The Commission may refuse to:

                     (a)  consider the application for the exemption order; or

                     (b)  convene a conference under section 151AZ to discuss the application for the exemption order;

until:

                     (c)  the Commission has made a determination under section 90 in relation to the application for the authorisation; or

                     (d)  if the Commission makes such a determination—the expiry of the time limit allowed for a person to apply to the Tribunal for a review of the determination; or

                     (e)  if a person applies to the Tribunal for a review of the determination—the review (including any court proceedings arising out of the review) is finalised.

151AY  Commission may refuse to consider application if it relates to the same conduct as a Part VII notification

             (1)  This section applies if:

                     (a)  the Commission receives, or has received, an application for an exemption order; and

                     (b)  the Commission receives, or has received, a notice under subsection 93(1) or 93AB(1A) or (1); and

                     (c)  the application for the exemption order and the notice relate to the same conduct.

             (2)  The Commission may refuse to:

                     (a)  consider the application for the exemption order; or

                     (b)  convene a conference under section 151AZ to discuss the application for the exemption order;

until:

                     (c)  the Commission decides whether or not to give a notice under subsection 93(3) or (3A) or 93AC(1) or (2); or

                     (d)  if the Commission gives such a notice—the expiry of the time limit allowed for a person to apply to the Tribunal for review of the decision; or

                     (e)  if a person applies to the Tribunal for a review of the decision—the review (including any court proceedings arising out of the review) is finalised.

151AZ  Commission may convene conference to discuss application

             (1)  If the Commission receives an application for an exemption order, the Commission may convene a conference to discuss the application.

             (2)  If the Commission decides to convene a conference, the Commission must give:

                     (a)  the applicant (or a representative of the applicant); and

                     (b)  any other persons whom the Commission considers interested;

a reasonable opportunity to attend and take part in the conference.

             (3)  This Act does not prevent a conference under this section from being combined with a conference under section 90A or 93A if the combined conference relates to the same conduct.

151BA  Commission must grant or reject application

                   If the Commission receives an application for an exemption order, the Commission must either:

                     (a)  make the order; or

                     (b)  refuse to make the order.

151BB  Commission to give opportunity for submissions

                   Before making an exemption order, the Commission must give:

                     (a)  the applicant; and

                     (b)  any other person whom the Commission considers interested;

a reasonable opportunity to make submissions to the Commission about the order.

151BC  Criteria for making exemption order

             (1)  The Commission must not make an exemption order in relation to particular conduct of a person unless it is satisfied that:

                     (a)  both:

                              (i)  the conduct will result, or is likely to result, in a benefit to the public; and

                             (ii)  that benefit outweighs, or will outweigh, the detriment to the public constituted by any lessening of competition that will result, or is likely to result, from engaging in the conduct; or

                     (b)  the conduct is not anti‑competitive conduct.

             (2)  In determining whether the Commission is satisfied about the matters referred to in paragraph (1)(a), the Commission may have regard to the following matters:

                     (a)  the extent to which the conduct relates to the supply of goods or services on favourable terms and conditions to:

                              (i)  a financially disadvantaged individual; or

                             (ii)  an individual who is disadvantaged on health grounds; or

                            (iii)  a registered charity; or

                          (iiia)  a community organisation that is a not‑for‑profit entity and is not a charity; or

                            (iv)  an educational institution; or

                             (v)  a health facility;

                     (b)  the extent to which the conduct relates to the supply of goods or services for:

                              (i)  community, charitable or educational purposes; or

                             (ii)  the promotion of health or safety;

                            on favourable terms and conditions;

                     (c)  the need to satisfy any applicable universal service obligation;

                     (d)  the extent to which the conduct prevents or reduces, or is likely to prevent or reduce, pollution or other forms of degradation of environmental amenity;

                     (e)  the extent to which the conduct contributes, or is likely to contribute, to technical innovation, or the development of new goods or services, by Australian industry.

             (3)  Subsection (2) does not, by implication, limit the matters to which the Commission may have regard.

             (4)  The Commission must not make an exemption order in relation to particular conduct of a person if:

                     (a)  the conduct is in contravention of section 46; and

                     (b)  subsection 46(6) does not apply to the conduct.

             (5)  Subsections 151AJ(4) and (5) apply for the purposes of subsection (4) of this section in a corresponding way to the way in which they apply for the purposes of subsection 151AJ(3).

             (6)  In this section:

environment includes all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings.

151BD  Notification of decision

             (1)  If the Commission makes an exemption order, the Commission must give the applicant a written notice setting out the order and the reasons for the order.

             (2)  If the Commission refuses to make an exemption order, the Commission must give the applicant a written notice stating that the order has been refused and setting out the reasons for the refusal.

151BE  Duration of exemption order may be limited

                   An exemption order may be expressed to be in force for a period specified in the order.

151BF  Conditions of exemption order

                   An exemption order may be expressed to be subject to such conditions as are specified in the order.

151BG  Revocation of exemption order

             (1)  If:

                     (a)  an exemption order is in force in relation to a person; and

                     (b)  the Commission is satisfied that:

                              (i)  the order was made on the basis of information that was false or misleading in a material particular; or

                             (ii)  a condition to which the order is subject has been contravened; or

                            (iii)  there has been a material change of circumstances since the order was made;

the Commission may revoke the order.

             (2)  The Commission must not revoke an exemption order unless the Commission has first:

                     (a)  published a draft notice of revocation and invited people to make submissions to the Commission on the draft notice; and

                     (b)  considered any submissions that were received within the time limit specified by the Commission when it published the draft notice.

             (3)  The Commission may make a further exemption order under section 151BA in substitution for the revoked order.

             (4)  If the Commission revokes an exemption order relating to a person, the Commission must give the person a written notice stating that the order has been revoked and setting out the reasons for the revocation.

             (5)  A revocation of an exemption order takes effect:

                     (a)  at the time when notice of the revocation is given; or

                     (b)  if a later time is specified in the notice of the revocation—at that later time.

151BH  Register of exemption orders

             (1)  The Commission must keep a Register in relation to exemption orders.

             (2)  The Register must include the following:

                     (a)  particulars of all exemption orders (including orders that have expired);

                     (b)  applications for exemption orders received by the Commission (including applications that have been withdrawn);

                     (c)  particulars of decisions refusing to make exemption orders;

                     (d)  particulars of decisions revoking, or refusing to revoke, exemption orders;

                     (e)  particulars of the Commission’s reasons for making exemption orders.

             (3)  Despite subsection (2), the Register must not set out information covered by subsection (2) if the disclosure of the information could reasonably be expected to prejudice substantially the commercial interests of the person, or any of the persons, to whom the information relates.

             (4)  The Register may be maintained by electronic means.

             (5)  A person may, on payment of the fee (if any) specified in the regulations:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (6)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.

             (7)  If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.

Subdivision CMiscellaneous

151BJ  Conduct includes proposed conduct

                   A reference in this Division to conduct includes a reference to proposed conduct.

Division 4Tariff filing

151BK  Tariff filing directions

             (1)  This section applies to a person who is a carrier or carriage service provider if the Commission is satisfied that the person has a substantial degree of power in a telecommunications market.

             (2)  The Commission may give the person a written direction that:

                     (a)  contains a statement to the effect that any or all of the following are within the scope of the direction:

                              (i)  specified carriage services;

                             (ii)  specified ancillary goods;

                            (iii)  specified ancillary services; and

                     (b)  complies with subsection (3), (4) or (5).

The direction is called a tariff filing direction.

Note:          For enforcement of tariff filing directions, see Division 7.

             (3)  A direction complies with this subsection if it contains a requirement that if, at the time the direction is given, the person has charges for goods or services within the scope of the direction, the person must give the Commission, within the period and in the form specified in the direction, a written statement setting out such information about those charges as is specified in the direction.

             (4)  A direction complies with this subsection if it contains a requirement that the person must, at least 7 days before:

                     (a)  imposing a new charge for goods or services within the scope of the direction at any time when the direction is in force; or

                     (b)  varying a charge for goods or services within the scope of the direction at any time when the direction is in force; or

                     (c)  ceasing to impose a charge for goods or services within the scope of the direction at any time when the direction is in force;

give the Commission, in the form specified in the direction, a written statement setting out such information about the person’s intentions as is specified in the direction.

Note:          See subsection (6) for a special rule relating to this subsection.

             (5)  A direction complies with this subsection if it contains a requirement that, in the event that the person:

                     (a)  imposes a new charge for goods or services within the scope of the direction at any time when the direction is in force; or

                     (b)  varies a charge for goods or services within the scope of the direction at any time when the direction is in force; or

                     (c)  ceases to impose a charge for goods or services within the scope of the direction at any time when the direction is in force;

the person must give the Commission:

                     (d)  within such period after the imposition, variation or cessation, as the case may be, as is specified in the direction; and

                     (e)  in the form specified in the direction;

a written statement setting out such information about the imposition, variation or cessation, as the case may be, as is specified in the direction.

             (6)  The Commission may, on the application of the person, make a written determination that subsection (4) has effect, in relation to a specified matter, as if the reference in that subsection to 7 days were a reference to such shorter period as is specified in the determination. The determination has effect accordingly.

             (7)  This section does not, by implication, limit section 87B or 155.

             (8)  This section does not prevent 2 or more tariff filing directions being given to the same person at the same time.

             (9)  For the purposes of this section, information relating to the terms and conditions on which goods or services have been, are being or are proposed to be supplied is taken to be information relating to charges that have been imposed, are being imposed or are proposed to be imposed for those goods or services.

           (10)  A tariff filing direction given before 1 July 1997 comes into force on 1 July 1997.

           (11)  In this section:

ancillary goods means goods for use in connection with a carriage service.

ancillary service means a service for use in connection with a carriage service.

variation, in relation to a charge, means a variation of the nature of the charge or the amount of the charge, or both.

151BL  Specification of goods and services

             (1)  Goods or services may be specified in a tariff filing direction by reference to any or all of the following:

                     (a)  the nature of the goods or services;

                     (b)  the customers to whom the goods or services are, or are proposed to be, supplied (whether those customers are identified by name, by inclusion in a specified class or in any other way);

                     (c)  the kinds of terms and conditions on which the goods or services are, or are proposed to be, supplied.

             (2)  Subsection (1) does not, by implication, limit the ways in which goods and services may be specified in a tariff filing direction.

151BM  Notification of reasons

                   If the Commission gives a tariff filing direction to a person, the Commission must give the person a written notice setting out the reasons for the direction.

151BN  Duration of direction may be limited

                   A tariff filing direction may be expressed to cease to be in force at a time ascertained in accordance with the direction.

Note:          A time specified in accordance with the direction may be the time of occurrence of a specified event or the time when a specified condition is satisfied.

151BO  Revocation of direction

             (1)  If a tariff filing direction relating to a person is in force, the Commission may revoke the direction.

             (2)  The Commission must give the person a written notice stating that the direction has been revoked.

             (3)  A revocation of a tariff filing direction takes effect:

                     (a)  at the time when the notice of revocation is given; or

                     (b)  if a later time is specified in the notice of revocation—at that later time.

151BP  Variation of direction

             (1)  If a tariff filing direction relating to a person is in force, the Commission may vary the direction.

             (2)  The Commission must give the person a written notice setting out:

                     (a)  the terms of the variation; and

                     (b)  the reasons for the variation.

             (3)  A variation of a tariff filing direction takes effect:

                     (a)  at the time when the notice of variation is given; or

                     (b)  if a later time is specified in the notice of variation—at that later time.

151BQ  Public access to tariff information

             (1)  This section applies to a particular item of information given to the Commission by a person (the first person) in accordance with a tariff filing direction.

             (2)  If the Commission is satisfied that:

                     (a)  the disclosure of the information would result, or be likely to result, in a benefit to the public; and

                     (b)  that benefit would outweigh both:

                              (i)  the detriment to the public constituted by any lessening of competition that would result, or be likely to result, if the information were disclosed; and

                             (ii)  any substantial prejudice to the commercial interests of a person that would result, or be likely to result, if the information were disclosed;

the Commission must give the first person a written notice stating that the Commission intends to make copies of the information, together with copies of the direction, available for inspection and purchase by the public.

             (3)  If the Commission gives the first person a notice under subsection (2), the Commission must make copies of the information, together with copies of the direction, available for inspection and purchase by the public:

                     (a)  as soon as practicable after the end of the 7‑day period that began when the notice was given to the first person; or

                     (b)  if the Commission decides that the information and direction should not be made available during a further period of up to 14 days—after the end of that further period.

151BR  Register of tariff filing directions

             (1)  The Commission must keep a Register in relation to tariff filing directions.

             (2)  The Register must include the following:

                     (a)  particulars of all tariff filing directions (including directions that have expired);

                     (b)  particulars of all revocations of tariff filing directions;

                     (c)  particulars of all variations of tariff filing directions.

             (3)  The Register may be maintained by electronic means.

             (4)  A person may, on payment of the fee (if any) specified in the regulations:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (5)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.

             (6)  If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.

151BT  Meaning of terms and conditions

                   In this Division:

terms and conditions, in relation to the supply of goods or services, includes:

                     (a)  charges for the supply of the goods or services; and

                     (b)  any discounts, allowances, rebates or credits given or allowed in relation to the supply of the goods or services; and

                     (c)  any commissions or similar benefits (whether monetary or otherwise) payable or given in relation to the supply of the goods or services; and

                     (d)  the supply of other goods or services, where the other goods or services are supplied in connection with the first‑mentioned goods or services; and

                     (e)  the making of payments for such other goods or services.

Division 5Tariff filing by Telstra

151BTA  Tariff filing by Telstra

             (1)  This section applies to a charge for a basic carriage service.

             (2)  At least 7 days before:

                     (a)  imposing a new charge; or

                     (b)  varying a charge; or

                     (c)  ceasing to impose a charge;

Telstra must give the Commission, in a form approved in writing by the Commission, a written statement setting out such information about Telstra’s intentions as the Commission requires.

             (3)  The Commission may, on the application of Telstra, make a written determination that subsection (2) has effect, in relation to a specified matter, as if the reference in that subsection to 7 days were a reference to such shorter period as specified in the determination.

             (4)  A determination under subsection (3) has effect accordingly.

             (5)  Divisions 6 and 7 apply to a contravention of subsection (2) in a corresponding way to the way in which they apply to a contravention of a tariff filing direction.

             (6)  This section does not, by implication, limit the application of Division 4 to Telstra.

             (7)  The Commission may, by written notice given to Telstra, exempt a charge for a specified basic carriage service from the scope of subsection (2).

             (8)  A basic carriage service may be specified for the purposes of subsection (7) by reference to any or all of the following:

                     (a)  the customers to whom the services are, or are proposed to be, supplied;

                     (b)  the kinds of terms and conditions on which the services are, or are proposed to be, supplied.

             (9)  Subsection (8) does not, by implication, limit subsection (7).

           (10)  An exemption under subsection (7) may be unconditional or subject to such conditions (if any) as are specified in the exemption.

           (11)  Section 151BQ applies to information given to the Commission under this section in a corresponding way to the way in which it applies to information given to the Commission in accordance with a tariff filing direction.

           (13)  In this section:

basic carriage service has the meaning given by section 174 of the Telecommunications Act 1991, as in force before 1 July 1997, but does not include a service supplied to an existing carrier.

existing carrier means a person who held a general telecommunications licence, or a public mobile licence, that was in force under the Telecommunications Act 1991 immediately before 1 July 1997.

terms and conditions has the same meaning as in section 151BT.

variation, in relation to a charge, means a variation of the nature of the charge or the amount of the charge, or both.

Division 6Record‑keeping rules and disclosure directions

151BU  Commission may make record‑keeping rules

             (1)  The Commission may, by written instrument, make rules for and in relation to requiring one or more specified carriers or one or more specified carriage service providers to keep and retain records. Rules under this subsection may also require those carriers or carriage service providers to prepare reports consisting of information contained in those records. Rules under this subsection may also require those carriers or carriage service providers to give any or all of the reports to the Commission. Rules under this subsection are to be known as record‑keeping rules.

Note 1:       Carriers and carriage service providers may be specified by name, by inclusion in a specified class or in any other way.

Note 2:       For enforcement of the record‑keeping rules, see Division 7.

             (2)  The rules may specify the manner and form in which the records are to be kept.

          (2A)  The rules may specify the manner and form in which reports are to be prepared.

          (2B)  The rules may provide for:

                     (a)  the preparation of reports as and when required by the Commission; or

                     (b)  the preparation of periodic reports relating to such regular intervals as are specified in the rules.

          (2C)  The rules may require or permit a report prepared in accordance with the rules to be given to the Commission, in accordance with specified software requirements and specified authentication requirements:

                     (a)  on a specified kind of data processing device; or

                     (b)  by way of a specified kind of electronic transmission.

          (2D)  Subsections (2), (2A), (2B) and (2C) do not limit subsection (1).

             (3)  If the rules apply to a particular carrier or carriage service provider, the Commission must give the carrier or provider a copy of the rules.

             (4)  The Commission must not exercise its powers under this section so as to require the keeping or retention of records unless the records contain, or will contain, information that is relevant to:

                     (a)  ascertaining whether the competition rule has been, or is being, complied with; or

                     (b)  ascertaining whether tariff filing directions have been, or are being, complied with; or

                     (c)  the operation of this Part (other than this Division); or

                     (d)  the operation of Part XIC (which deals with access); or

                   (da)  the operation of the National Broadband Network Companies Act 2011 or regulations under that Act; or

                     (e)  the operation of Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or

                      (f)  the operation of Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges).

             (5)  Record‑keeping rules made before 1 July 1997 come into force on 1 July 1997.

             (6)  This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).

151BUAA  Minister may give directions to Commission

             (1)  The Minister may give written directions to the Commission in relation to the exercise of its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC.

          (1A)  The Minister may only give a direction under subsection (1) that:

                     (a)  requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC; or

                     (b)  requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC in a particular way.

          (1B)  The Minister may give a written direction to the Commission requiring it, in the event that it receives a specified Ministerially‑directed report, to:

                     (a)  prepare a specified kind of analysis of the report; and

                     (b)  publish the analysis within a specified period after receiving the report.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

          (1C)  The Minister may give a written direction to the Commission requiring it, in the event that it receives a report in a specified series of Ministerially‑directed periodic reports, to:

                     (a)  prepare a specified kind of analysis of the report; and

                     (b)  publish the analysis within a specified period after receiving the report.

             (2)  The Commission must comply with a direction under this section.

             (3)  If:

                     (a)  a record‑keeping rule is made as a result of a direction under subsection (1); and

                     (b)  the rule requires the preparation of a report;

then:

                     (c)  the rule must contain a statement to the effect that the rule was made as a result of a Ministerial direction; and

                     (d)  a report prepared under the rule is to be known as a Ministerially‑directed report.

             (4)  A direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

151BUAB  Request for disclosure

             (1)  A person may request the Commission to exercise its powers under:

                     (a)  section 151BUA or 151BUB in relation to a particular report; or

                     (b)  section 151BUC in relation to a particular series of periodic reports.

             (2)  The request must be in writing.

             (3)  The Commission must consider the request.

             (4)  However, the Commission need not consider the request if it considers that the request is frivolous, vexatious or was not made in good faith.

151BUA  Commission gives access to reports

             (1)  This section applies to a particular report given to the Commission by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.

Criteria for disclosure

             (2)  If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to:

                     (a)  promote competition in markets for listed carriage services; or

                     (b)  facilitate the operation of:

                              (i)  this Part (other than this Division); or

                             (ii)  Part XIC (which deals with access); or

                           (iia)  the National Broadband Network Companies Act 2011 or regulations under that Act; or

                            (iii)  Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or

                            (iv)  Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);

the Commission may give the carrier or carriage service provider concerned:

                     (c)  a written notice stating that the Commission intends to make copies of the report or extracts, together with other relevant material (if any) specified in the notice, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; or

                     (d)  a written notice stating that the Commission intends to make copies of the report or extracts, together with other relevant material (if any) specified in the notice, available for inspection and purchase:

                              (i)  by such persons as are specified in the notice; and

                             (ii)  on such terms and conditions (if any) as are specified in the notice;

                            as soon as practicable after the end of the period specified in the notice.

Note:          For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

Period specified in notice

             (3)  The period specified in a notice under subsection (2) must run for at least 28 days after the notice was given.

Criteria for giving notice

             (4)  In deciding whether to give a notice under subsection (2), the Commission must have regard to:

                     (a)  the legitimate commercial interests of the carrier or carriage service provider concerned; and

                     (b)  such other matters as the Commission considers relevant.

Consultation before giving notice

             (5)  The Commission must not give the carrier or carriage service provider concerned a notice under subsection (2) unless the Commission has first:

                     (a)  given the carrier or carriage service provider a written notice:

                              (i)  setting out a draft version of the notice under subsection (2); and

                             (ii)  inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and

                     (b)  considered any submission that was received within that time limit.

The time limit specified in a notice under paragraph (a) must be at least 28 days after the notice was given.

Public access

             (6)  If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(c), the Commission:

                     (a)  must make copies of the report or extracts, together with the other material (if any) specified in the notice, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; and

                     (b)  may also give a written direction to the carrier or carriage service provider concerned requiring it to take such action as is specified in the direction to inform the public, or such persons as are specified in the direction, that the report is, or the extracts are, so available.

Note:          For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

             (7)  A person must comply with a direction under paragraph (6)(b).

Limited access

             (8)  If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(d), the Commission must:

                     (a)  make copies of the report or extracts, together with the other material (if any) specified in the notice, available for inspection and purchase by the persons specified in the notice as soon as practicable after the end of the period specified in the notice; and

                     (b)  take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the notice.

             (9)  If, in accordance with subsection (8), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the notice concerned.

Offences

           (10)  A person who contravenes subsection (7) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.

           (11)  A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.

151BUB  Carrier or carriage service provider gives access to reports

             (1)  This section applies to a report prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.

Disclosure direction

             (2)  If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to:

                     (a)  promote competition in markets for listed carriage services; or

                     (b)  facilitate the operation of:

                              (i)  this Part (other than this Division); or

                             (ii)  Part XIC (which deals with access); or

                           (iia)  the National Broadband Network Companies Act 2011 or regulations under that Act; or

                            (iii)  Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or

                            (iv)  Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);

the Commission may give the carrier or carriage service provider concerned:

                     (c)  a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the direction; or

                     (d)  a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase:

                              (i)  by such persons as are specified in the direction; and

                             (ii)  on such terms and conditions (if any) as are specified in the direction;

                            as soon as practicable after the end of the period specified in the direction.

Note:          For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

             (3)  The period specified in a direction under subsection (2) must run for at least 28 days after the direction was given.

             (4)  A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.

Criteria for giving direction

             (5)  In deciding whether to give a direction under subsection (2), the Commission must have regard to:

                     (a)  the legitimate commercial interests of the carrier or carriage service provider concerned; and

                     (b)  such other matters as the Commission considers relevant.

Consultation before giving direction

             (6)  The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:

                     (a)  given the carrier or carriage service provider a written notice:

                              (i)  setting out a draft version of the direction; and

                             (ii)  inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and

                     (b)  considered any submission that was received within that time limit.

The time limit specified in the notice must be at least 28 days after the notice was given.

Direction to give information about availability of report

             (7)  If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that the report is, or extracts are, available for inspection and purchase.

             (8)  If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that the report is, or the extracts are, available for inspection and purchase.

             (9)  A person must comply with a direction under subsection (7) or (8).

Reasonable charge

           (10)  The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase.

Compliance with terms and conditions

           (11)  If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.

Offences

           (12)  A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.

           (13)  A person who contravenes subsection (11) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.

Section 151BUC does not limit this section

           (14)  Section 151BUC does not limit this section.

151BUC  Carrier or carriage service provider gives access to periodic reports

             (1)  This section applies to a particular series of periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.

Disclosure direction

             (2)  If the Commission is satisfied that the disclosure of each of the reports in that series, or the disclosure of particular extracts from each of the reports in that series, would be likely to:

                     (a)  promote competition in markets for listed carriage services; or

                     (b)  facilitate the operation of:

                              (i)  this Part (other than this Division); or

                             (ii)  Part XIC (which deals with access); or

                           (iia)  the National Broadband Network Companies Act 2011 or regulations under that Act; or

                            (iii)  Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or

                            (iv)  Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);

the Commission may give the carrier or carriage service provider concerned:

                     (c)  a written direction requiring it to make copies of each of those reports or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase by the public by such times as are ascertained in accordance with the direction; or

                     (d)  a written direction requiring it to make copies of each of those reports or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase:

                              (i)  by such persons as are specified in the direction; and

                             (ii)  on such terms and conditions (if any) as are specified in the direction;

                            by such times as are ascertained in accordance with the direction.

Note 1:       For example, a direction under paragraph (2)(c) could require that each report in a particular series of quarterly reports be made available by the 28th day after the end of the quarter to which the report relates.

Note 2:       For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

             (3)  In the case of the first report in the series (or extracts from that report), the applicable time ascertained in accordance with a direction under subsection (2) must be later than the 28th day after the day on which the direction was given.

             (4)  A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.

Criteria for giving direction

             (5)  In deciding whether to give a direction under subsection (2), the Commission must have regard to:

                     (a)  the legitimate commercial interests of the carrier or carriage service provider concerned; and

                     (b)  such other matters as the Commission considers relevant.

Consultation before giving direction

             (6)  The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:

                     (a)  given the carrier or carriage service provider a written notice:

                              (i)  setting out a draft version of the direction; and

                             (ii)  inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and

                     (b)  considered any submission that was received within that time limit.

The time limit specified in the notice must be at least 28 days after the notice was given.

Direction to give information about availability of reports

             (7)  If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that each of those reports is, or extracts are, available for inspection and purchase.

             (8)  If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that each of those reports is, or the extracts are, available for inspection and purchase.

             (9)  A person must comply with a direction under subsection (7) or (8).

Reasonable charge

           (10)  The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase.

Compliance with terms and conditions

           (11)  If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.

Offences

           (12)  A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.

           (13)  A person who contravenes subsection (11) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.

151BUD  Exemption of reports from access requirements

Full exemption

             (1)  The Commission may, by legislative instrument, make a determination exempting specified reports from the scope of sections 151BUA, 151BUB and 151BUC, either:

                     (a)  unconditionally; or

                     (b)  subject to such conditions (if any) as are specified in the determination.

The determination has effect accordingly.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

             (2)  If all of the information contained in a report (the first report) is, or is to be, set out in a report under Division 12A, the first report is exempt from the scope of sections 151BUA, 151BUB and 151BUC.

Partial exemption

             (3)  The Commission may, by legislative instrument, make a determination that specified information is exempt information for the purposes of this section, either:

                     (a)  unconditionally; or

                     (b)  subject to such conditions (if any) as are specified in the determination.

The determination has effect accordingly.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

             (4)  If some, but not all, of the information contained in a report is, or is to be, set out in a report under Division 12A, so much of the information as is, or is to be, set out in the Division 12A report is exempt information for the purposes of this section.

             (5)  If a report contains exempt information, sections 151BUA, 151BUB and 151BUC apply as if:

                     (a)  the exempt information were not part of the report; and

                     (b)  so much of the report as does not consist of the exempt information were a report in its own right.

151BUDA  Commission gives access to Ministerially‑directed reports

             (1)  This section applies to a particular Ministerially‑directed report given to the Commission by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.

Public access

             (2)  The Commission:

                     (a)  may make:

                              (i)  copies of the report or copies of extracts from the report; and

                             (ii)  such other relevant material (if any) as the Commission determines;

                            available to the public; and

                     (b)  may also give a written direction to the carrier or provider requiring it to take such action as is specified in the direction to inform the public, or such persons as are specified in the direction, that the report is, or the extracts are, so available.

Note:          For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

Limited access

             (3)  The Commission may make:

                     (a)  copies of the report or copies of extracts from the report; and

                     (b)  such other relevant material (if any) as the Commission determines;

available:

                     (c)  to particular persons; and

                     (d)  on such terms and conditions (if any) as the Commission determines.

             (4)  If subsection (3) applies, the Commission must take reasonable steps to inform the persons who access copies of the report or extracts of the terms and conditions (if any) on which the copies are available.

             (5)  If, in accordance with subsection (3), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) on which the copy is available.

Offences

             (6)  A person is guilty of an offence if:

                     (a)  the person is subject to a direction under paragraph (2)(b); and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the direction.

Penalty:  20 penalty units.

             (7)  A person is guilty of an offence if:

                     (a)  the person is subject to a requirement under subsection (5); and

                     (b)  the person does an act or omits to do an act; and

                     (c)  the act or omission breaches the requirement.

Penalty:  100 penalty units.

Exercise of power by Commission

             (8)  The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.

Application of section 151BUA

             (9)  This section does not limit section 151BUA.

151BUDB  Carrier or carriage service provider gives access to Ministerially‑directed reports

             (1)  This section applies to a Ministerially‑directed report prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.

Disclosure direction

             (2)  The Commission may give the carrier or provider:

                     (a)  a written direction requiring it to make copies of the report or copies of particular extracts from the report, together with other relevant material (if any) specified in the direction, available:

                              (i)  to the public; and

                             (ii)  in the manner specified in the direction; and

                            (iii)  as soon as practicable after the end of the period specified in the direction; or

                     (b)  a written direction requiring it to make copies of the report or copies of particular extracts from the report, together with other relevant material (if any) specified in the direction, available:

                              (i)  to such persons as are specified in the direction; and

                             (ii)  on such terms and conditions (if any) as are specified in the direction; and

                            (iii)  in the manner specified in the direction; and

                            (iv)  as soon as practicable after the end of the period specified in the direction.

Note:          For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

             (3)  A direction under paragraph (2)(b) is also taken to require the carrier or provider to take reasonable steps to inform the persons who access the copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.

Direction to give information about availability of report

             (4)  If the Commission gives the carrier or provider a direction under paragraph (2)(a), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public:

                     (a)  that the report is, or extracts are, available; and

                     (b)  of the way in which the report or extracts may be accessed.

             (5)  If the Commission gives the carrier or provider a direction under paragraph (2)(b), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(b) direction that:

                     (a)  the report is, or the extracts are, available; and

                     (b)  of the way in which the report or extracts may be accessed.

Compliance with terms and conditions

             (6)  If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.

Offences

             (7)  A person is guilty of an offence if:

                     (a)  the person is subject to a direction under subsection (4) or (5); and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the direction.

Penalty:  20 penalty units.

             (8)  A person is guilty of an offence if:

                     (a)  the person is subject to a requirement under subsection (6); and

                     (b)  the person does an act or omits to do an act; and

                     (c)  the act or omission breaches the requirement.

Penalty:  100 penalty units.

Exercise of power by Commission

             (9)  The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.

Application of section 151BUB

           (10)  This section does not limit section 151BUB.

Application of section 151BUDC

           (11)  Section 151BUDC does not limit this section.

151BUDC  Carrier or carriage service provider gives access to Ministerially‑directed periodic reports

             (1)  This section applies to a particular series of Ministerially‑directed periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.

Disclosure direction

             (2)  The Commission may give the carrier or provider:

                     (a)  a written direction requiring it to make copies of each of the reports in that series or copies of particular extracts from each of the reports in that series, together with other relevant material (if any) specified in the direction, available:

                              (i)  to the public; and

                             (ii)  in the manner specified in the direction; and

                            (iii)  by such times as are ascertained in accordance with the direction; or

                     (b)  a written direction requiring it to make copies of each of the reports in the series or copies of particular extracts from each of the reports in the series, together with other relevant material (if any) specified in the direction, available:

                              (i)  to such persons as are specified in the direction; and

                             (ii)  on such terms and conditions (if any) as are specified in the direction; and

                            (iii)  in the manner specified in the direction; and

                            (iv)  by such times as are ascertained in accordance with the direction.

Note 1:       For example, a direction under paragraph (2)(a) could require that each report in a particular series of quarterly reports be made available by the 28th day after the end of the quarter to which the report relates.

Note 2:       For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

             (3)  A direction under paragraph (2)(b) is also taken to require the carrier or provider to take reasonable steps to inform the persons who access the copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.

Direction to give information about availability of report

             (4)  If the Commission gives the carrier or provider a direction under paragraph (2)(a), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public:

                     (a)  that each of those reports is, or extracts are, available; and

                     (b)  of the way in which those reports or extracts may be accessed.

             (5)  If the Commission gives the carrier or provider a direction under paragraph (2)(b), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(b) direction:

                     (a)  that each of those reports is, or extracts are, available; and

                     (b)  of the way in which those reports or extracts may be accessed.

Compliance with terms and conditions

             (6)  If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.

Offences

             (7)  A person is guilty of an offence if:

                     (a)  the person is subject to a direction under subsection (4) or (5); and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the direction.

Penalty:  20 penalty units.

             (8)  A person is guilty of an offence if:

                     (a)  the person is subject to a requirement under subsection (6); and

                     (b)  the person does an act or omits to do an act; and

                     (c)  the act or omission breaches the requirement.

Penalty:  100 penalty units.

Exercise of power by Commission

             (9)  The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.

Application of section 151BUC

           (10)  This section does not limit section 151BUC.

Application of section 151BUDB

           (11)  Section 151BUDB does not limit this section.

151BUE  Access via the internet

                   If the Commission, a carrier or a carriage service provider is required under this Division to make copies of a report, extracts or other material available for inspection and purchase, the Commission, carrier or carriage service provider, as the case may be, may comply with that requirement by making the report, extracts or other material available for inspection and purchase on the internet.

151BUF  Self‑incrimination

             (1)  An individual is not excused from giving a report under the record‑keeping rules, or from making a report or extracts available under this Division, on the ground that the report or extracts might tend to incriminate the individual or expose the individual to a penalty.

             (2)  However:

                     (a)  giving the report or making the report or extracts available; or

                     (b)  any information, document or thing obtained as a direct or indirect consequence of giving the report or making the report or extracts available;

is not admissible in evidence against the individual in:

                     (c)  criminal proceedings other than proceedings under, or arising out of, section 151BV; or

                     (d)  proceedings under section 151BY for recovery of a pecuniary penalty in relation to a contravention of a disclosure direction.

151BV  Incorrect records

             (1)  A person must not, in purported compliance with a requirement imposed by the record‑keeping rules, make a record of any matter or thing in such a way that it does not correctly record the matter or thing.

             (2)  A person who contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

Division 7Enforcement of the competition rule, tariff filing directions, record‑keeping rules and disclosure directions

151BW  Person involved in a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction

                   A reference in this Division to a person involved in a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction is a reference to a person who:

                     (a)  has aided, abetted, counselled or procured the contravention; or

                     (b)  has induced, whether by threats or promises or otherwise, the contravention; or

                     (c)  has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or

                     (d)  has conspired with others to effect the contravention.

151BX  Pecuniary penalties for breach of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction

             (1)  If the Federal Court is satisfied that a person:

                     (a)  has contravened the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction; or

                     (b)  has attempted to contravene the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction; or

                     (c)  has been involved in a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction;

the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate.

             (2)  In determining a pecuniary penalty, the Court must have regard to all relevant matters, including:

                     (a)  the nature and extent of the contravention; and

                     (b)  the nature and extent of any loss or damage suffered as a result of the contravention; and

                     (c)  the circumstances in which the contravention took place; and

                     (d)  whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

             (3)  The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed:

                     (a)  in the case of a contravention of the competition rule—for each contravention: