عن الملكية الفكرية التدريب في مجال الملكية الفكرية إذكاء الاحترام للملكية الفكرية التوعية بالملكية الفكرية الملكية الفكرية لفائدة… الملكية الفكرية و… الملكية الفكرية في… معلومات البراءات والتكنولوجيا معلومات العلامات التجارية معلومات التصاميم الصناعية معلومات المؤشرات الجغرافية معلومات الأصناف النباتية (الأوبوف) القوانين والمعاهدات والأحكام القضائية المتعلقة بالملكية الفكرية مراجع الملكية الفكرية تقارير الملكية الفكرية حماية البراءات حماية العلامات التجارية حماية التصاميم الصناعية حماية المؤشرات الجغرافية حماية الأصناف النباتية (الأوبوف) تسوية المنازعات المتعلقة بالملكية الفكرية حلول الأعمال التجارية لمكاتب الملكية الفكرية دفع ثمن خدمات الملكية الفكرية هيئات صنع القرار والتفاوض التعاون التنموي دعم الابتكار الشراكات بين القطاعين العام والخاص أدوات وخدمات الذكاء الاصطناعي المنظمة العمل مع الويبو المساءلة البراءات العلامات التجارية التصاميم الصناعية المؤشرات الجغرافية حق المؤلف الأسرار التجارية أكاديمية الويبو الندوات وحلقات العمل إنفاذ الملكية الفكرية WIPO ALERT إذكاء الوعي اليوم العالمي للملكية الفكرية مجلة الويبو دراسات حالة وقصص ناجحة في مجال الملكية الفكرية أخبار الملكية الفكرية جوائز الويبو الأعمال الجامعات الشعوب الأصلية الأجهزة القضائية الموارد الوراثية والمعارف التقليدية وأشكال التعبير الثقافي التقليدي الاقتصاد التمويل الأصول غير الملموسة المساواة بين الجنسين الصحة العالمية تغير المناخ سياسة المنافسة أهداف التنمية المستدامة التكنولوجيات الحدودية التطبيقات المحمولة الرياضة السياحة ركن البراءات تحليلات البراءات التصنيف الدولي للبراءات أَردي – البحث لأغراض الابتكار أَردي – البحث لأغراض الابتكار قاعدة البيانات العالمية للعلامات مرصد مدريد قاعدة بيانات المادة 6(ثالثاً) تصنيف نيس تصنيف فيينا قاعدة البيانات العالمية للتصاميم نشرة التصاميم الدولية قاعدة بيانات Hague Express تصنيف لوكارنو قاعدة بيانات Lisbon Express قاعدة البيانات العالمية للعلامات الخاصة بالمؤشرات الجغرافية قاعدة بيانات الأصناف النباتية (PLUTO) قاعدة بيانات الأجناس والأنواع (GENIE) المعاهدات التي تديرها الويبو ويبو لكس - القوانين والمعاهدات والأحكام القضائية المتعلقة بالملكية الفكرية معايير الويبو إحصاءات الملكية الفكرية ويبو بورل (المصطلحات) منشورات الويبو البيانات القطرية الخاصة بالملكية الفكرية مركز الويبو للمعارف الاتجاهات التكنولوجية للويبو مؤشر الابتكار العالمي التقرير العالمي للملكية الفكرية معاهدة التعاون بشأن البراءات – نظام البراءات الدولي ePCT بودابست – نظام الإيداع الدولي للكائنات الدقيقة مدريد – النظام الدولي للعلامات التجارية eMadrid الحماية بموجب المادة 6(ثالثاً) (الشعارات الشرفية، الأعلام، شعارات الدول) لاهاي – النظام الدولي للتصاميم eHague لشبونة – النظام الدولي لتسميات المنشأ والمؤشرات الجغرافية eLisbon UPOV PRISMA UPOV e-PVP Administration UPOV e-PVP DUS Exchange الوساطة التحكيم قرارات الخبراء المنازعات المتعلقة بأسماء الحقول نظام النفاذ المركزي إلى نتائج البحث والفحص (CASE) خدمة النفاذ الرقمي (DAS) WIPO Pay الحساب الجاري لدى الويبو جمعيات الويبو اللجان الدائمة الجدول الزمني للاجتماعات WIPO Webcast وثائق الويبو الرسمية أجندة التنمية المساعدة التقنية مؤسسات التدريب في مجال الملكية الفكرية الدعم المتعلق بكوفيد-19 الاستراتيجيات الوطنية للملكية الفكرية المساعدة في مجالي السياسة والتشريع محور التعاون مراكز دعم التكنولوجيا والابتكار نقل التكنولوجيا برنامج مساعدة المخترعين WIPO GREEN WIPO's PAT-INFORMED اتحاد الكتب الميسّرة اتحاد الويبو للمبدعين WIPO Translate أداة تحويل الكلام إلى نص مساعد التصنيف الدول الأعضاء المراقبون المدير العام الأنشطة بحسب كل وحدة المكاتب الخارجية المناصب الشاغرة المشتريات النتائج والميزانية التقارير المالية الرقابة
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القوانين المعاهدات الأحكام التصفح بحسب الاختصاص القضائي

قانون المنافسة والمستهلك لعام 2010 (بصيغته المعدلة حتى 23 فبراير 2017)، أستراليا

عودة للخلف
النص مستبدل  الذهاب إلى أحدث إصدار في ويبو لِكس
التفاصيل التفاصيل سنة الإصدار 2017 تواريخ بدء النفاذ : 1 أكتوبر 1974 الاعتماد : 24 أغسطس 1974 نوع النص قوانين ذات صلة بالملكية الفكرية الموضوع المنافسة، المعلومات غير المكشوف عنها (الأسرار التجارية)، إنفاذ قوانين الملكية الفكرية والقوانين ذات الصلة، الإجراءات البديلة لتسوية المنازعات، هيئة تنظيمية للملكية الفكرية، مواضيع أخرى

المواد المتاحة

النصوص الرئيسية النصوص ذات الصلة
النصوص الإضافية الأعداد (1 نصوص) الأعداد (1 نصوص) بالإنكليزية Competition and Consumer Act 2010 (consolidated as of February 23, 2017) 1       2       3      
 Competition and Consumer Act 2010 (consolidated as of 23 February 2017)

Prepared by the Office of Parliamentary Counsel, Canberra

Competition and Consumer Act 2010

No. 51, 1974

Compilation No. 107

Compilation date: 23 February 2017

Includes amendments up to: Act No. 5, 2017

Registered: 3 March 2017

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

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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 23 February 2017 (the compilation

date).

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 the Legislation Register (www.legislation.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 the Legislation Register 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.

Editorial changes

For more information about any editorial changes made in this compilation, see

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 the Legislation

Register 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.

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Contents

Part I—Preliminary 1 1 Short title...........................................................................1

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

2A Application of Act to Commonwealth and

Commonwealth authorities................................................1

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

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

2C Activities that are not business ..........................................3

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

4 Interpretation .....................................................................5

4A Subsidiary, holding and related bodies corporate ............16

4B Consumers.......................................................................18

4C Acquisition, supply and re-supply ...................................21

4D Exclusionary provisions ..................................................22

4E Market .............................................................................23

4F References to purpose or reason......................................23

4G Lessening of competition to include preventing or

hindering competition......................................................24

4H Application of Act in relation to leases and

licences of land and buildings .........................................24

4J Joint ventures ..................................................................24

4K Loss or damage to include injury ....................................25

4KA Definitions etc. that do not apply in Part XI or

Schedule 2 .......................................................................25

4L Severability .....................................................................25

4M Saving of law relating to restraint of trade and

breaches of confidence ....................................................26

4N Extended application of Part IIIA....................................26

5 Extended application of this Act to conduct

outside Australia..............................................................26

6 Extended application of this Act to persons who

are not corporations .........................................................28

6AA Application of the Criminal Code ...................................35

Part II—The Australian Competition and Consumer

Commission 37 6A Establishment of Commission .........................................37

7 Constitution of Commission............................................38

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8 Terms and conditions of appointment .............................38

8A Associate members..........................................................38

8AB State/Territory AER members taken to be

associate members...........................................................40

9 Remuneration ..................................................................40

10 Deputy Chairpersons .......................................................41

11 Acting Chairperson..........................................................41

12 Leave of absence .............................................................42

13 Termination of appointment of members of the

Commission.....................................................................42

14 Termination of appointment of associate members

of the Commission ..........................................................43

15 Resignation......................................................................43

16 Arrangement of business .................................................44

17 Disclosure of interests by members.................................44

18 Meetings of Commission.................................................45

19 Chairperson may direct Commission to sit in

Divisions .........................................................................46

25 Delegation by Commission .............................................47

26 Delegation by Commission of certain functions

and powers ......................................................................48

27 Staff of Commission........................................................48

27A Consultants......................................................................48

28 Functions of Commission in relation to

dissemination of information, law reform and

research ...........................................................................49

29 Commission to comply with directions of Minister

and requirements of the Parliament .................................50

Part IIA—The National Competition Council 52 29A Establishment of Council ................................................52

29B Functions and powers of Council ....................................52

29BA Commonwealth consent to conferral of functions

etc. on Council.................................................................53

29BB How duty is imposed.......................................................53

29BC When a State/Territory energy law imposes a duty .........55

29C Membership of Council...................................................55

29D Terms and conditions of office ........................................55

29E Acting Council President.................................................55

29F Remuneration of Councillors ..........................................56

29G Leave of absence .............................................................56

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29H Termination of appointment of Councillors ....................56

29I Resignation of Councillors ..............................................57

29J Arrangement of Council business....................................57

29K Disclosure of interests by Councillors.............................57

29L Council meetings.............................................................58

29LA Resolutions without meetings..........................................59

29M Staff to help Council........................................................59

29N Consultants......................................................................60

29O Annual report ..................................................................60

Part III—The Australian Competition Tribunal 62 29P Definition ........................................................................62

30 Constitution of Tribunal ..................................................62

31 Qualifications of members of Tribunal............................62

31A Appointment of Judge as presidential member of

Tribunal not to affect tenure etc. .....................................63

32 Terms and conditions of appointment .............................63

33 Remuneration and allowances of members of

Tribunal ...........................................................................63

34 Acting appointments........................................................63

35 Suspension and removal of members of Tribunal ...........65

36 Resignation......................................................................66

37 Constitution of Tribunal for particular matters ................66

38 Validity of determinations...............................................66

39 President may give directions..........................................66

40 Disclosure of interests by members of Tribunal ..............66

41 Presidential member to preside........................................67

42 Decision of questions ......................................................67

43 Member of Tribunal ceasing to be available ...................68

43A Counsel assisting Tribunal ..............................................68

43B Consultants......................................................................69

44 Staff of Tribunal ..............................................................69

44A Acting appointments........................................................69

Part IIIAA—The Australian Energy Regulator (AER) 70

Division 1—Preliminary 70

44AB Definitions.......................................................................70

44AC This Part binds the Crown ...............................................70

44AD Extra-territorial operation................................................70

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Division 2—Establishment of the AER 72

44AE Establishment of the AER ...............................................72

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

Commonwealth ...............................................................72

44AG Constitution of the AER ..................................................72

Division 3—Functions and powers of the AER 73

44AH Commonwealth functions................................................73

44AI Commonwealth consent to conferral of functions

etc. on AER .....................................................................73

44AJ How duty is imposed.......................................................74

44AK When a State/Territory energy law etc. imposes a

duty..................................................................................75

44AL Powers of the AER ..........................................................75

Division 4—Administrative provisions relating to the AER 77

Subdivision A—Appointment etc. of members 77

44AM Appointment of Commonwealth AER member ..............77

44AN Membership of AER and Commission............................77

44AO Acting appointment of Commonwealth AER

member............................................................................78

44AP Appointment of State/Territory AER members ...............78

44AQ Acting appointment of State/Territory AER

member............................................................................79

44AR AER Chair .......................................................................79

44AS Acting AER Chair ...........................................................80

44AT Remuneration of AER members......................................80

44AU Additional remuneration of AER Chair...........................81

44AV Leave of absence .............................................................81

44AW Other terms and conditions..............................................81

44AX Outside employment........................................................81

44AY Disclosure of interests .....................................................82

44AZ Resignation......................................................................82

44AAB Termination of appointment ............................................82

Subdivision B—Staff etc. to assist the AER 83

44AAC Staff etc. to assist the AER ..............................................83

Subdivision C—Meetings of the AER etc. 83

44AAD Meetings..........................................................................83

44AAE Resolutions without meetings..........................................84

44AAEA Arbitration .......................................................................85

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Subdivision D—Miscellaneous 85

44AAF Confidentiality.................................................................85

44AAG Federal Court may make certain orders...........................87

44AAGA Federal Court may order disconnection if an event

specified in the National Electricity Rules occurs ...........88

44AAH Delegation by the AER....................................................89

44AAI Fees .................................................................................89

44AAJ Annual report ..................................................................90

44AAK Regulations may deal with transitional matters ...............90

Part IIIAB—Application of the finance law 92 44AAL Application of the finance law.........................................92

Part IIIA—Access to services 93

Division 1—Preliminary 93

44AA Objects of Part.................................................................93

44B Definitions.......................................................................93

44C How this Part applies to partnerships and joint

ventures ...........................................................................97

44D Meaning of designated Minister......................................98

44DA The principles in the Competition Principles

Agreement have status as guidelines ...............................99

44E This Part binds the Crown ...............................................99

Division 2—Declared services 101

Subdivision A—Recommendation by the Council 101

44F Person may request recommendation ............................101

44FA Council may request information ..................................102

44G Limits on the Council recommending declaration

of a service ....................................................................103

44GA Time limit for Council recommendations......................104

44GB Council may invite public submissions on the

application .....................................................................107

44GC Council must publish its recommendation.....................108

Subdivision B—Declaration by the designated Minister 109

44H Designated Minister may declare a service ...................109

44HA Designated Minister must publish his or her

decision .........................................................................111

44I Duration and effect of declaration .................................112

44J Revocation of declaration..............................................113

44K Review of declaration....................................................114

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44KA Tribunal may stay operation of declaration ...................115

44KB Tribunal may order costs be awarded............................117

44L Review of decision not to revoke a declaration .............118

Division 2AA—Services that are ineligible to be declared 120

Subdivision A—Scope of Division 120

44LA Constitutional limits on operation of this Division........120

Subdivision B—Ineligibility recommendation by Council 120

44LB Ineligibility recommendation ........................................120

44LC Council may request information ..................................122

44LD Time limit for Council recommendations......................123

44LE Council may invite public submissions on the

application .....................................................................125

44LF Council must publish its recommendation.....................126

Subdivision C—Designated Minister’s decision on ineligibility 127

44LG Designated Minister’s decision on ineligibility .............127

44LH Designated Minister must publish his or her

decision .........................................................................129

Subdivision D—Revocation of ineligibility decision 130

44LI Revocation of ineligibility decision...............................130

Subdivision E—Review of decisions 132

44LJ Review of ineligibility decisions ...................................132

44LK Review of decision to revoke or not revoke an

ineligibility decision ......................................................133

Subdivision F—Other matters 135

44LL Ineligibility decisions subject to alteration,

cancellation etc. .............................................................135

Division 2A—Effective access regimes 136

Subdivision A—Recommendation by Council 136

44M Recommendation for a Ministerial decision on

effectiveness of access regime.......................................136

44MA Council may request information ..................................137

Subdivision B—Decision by Commonwealth Minister 137

44N Ministerial decision on effectiveness of access

regime............................................................................137

Subdivision C—Extensions of Commonwealth Minister’s decision 139

44NA Recommendation by Council ........................................139

44NAA Council may request information ..................................140

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44NB Decision by the Commonwealth Minister .....................140

Subdivision D—Procedural provisions 142

44NC Time limit for Council recommendations......................142

44NE Council may invite public submissions .........................144

44NF Publication—Council ....................................................146

44NG Publication—Commonwealth Minister .........................147

Subdivision E—Review of decisions 147

44O Review of Ministerial decision on effectiveness of

access regime ................................................................147

Subdivision F—State or Territory ceasing to be a party to

Competition Principles Agreement 149

44P State or Territory ceasing to be a party to

Competition Principles Agreement................................149

Division 2B—Competitive tender processes for government

owned facilities 150

44PA Approval of competitive tender process ........................150

44PAA Commission may request information...........................151

44PB Report on conduct of tender process .............................152

44PC Revocation of approval decision ...................................152

44PD Time limit for Commission decisions............................154

44PE Commission may invite public submissions..................156

44PF Commission must publish its decisions.........................157

44PG Review of Commission’s initial decision ......................158

44PH Review of decision to revoke an approval.....................160

Division 2C—Register of decisions and declarations 162

44Q Register of decisions, declarations and ineligibility

decisions........................................................................162

Division 3—Access to declared services 163

Subdivision A—Scope of Division 163

44R Constitutional limits on operation of this Division........163

Subdivision B—Notification of access disputes 163

44S Notification of access disputes ......................................163

44T Withdrawal of notifications...........................................164

Subdivision C—Arbitration of access disputes 164

44U Parties to the arbitration ................................................164

44V Determination by Commission......................................164

44W Restrictions on access determinations ...........................165

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44X Matters that the Commission must take into

account ..........................................................................167

44XA Time limit for Commission’s final determination .........168

44Y Commission may terminate arbitration in certain

cases ..............................................................................170

44YA Commission must terminate arbitration if

declaration varied or set aside by Tribunal ....................170

Subdivision D—Procedure in arbitrations 171

44Z Constitution of Commission for conduct of

arbitration ......................................................................171

44ZA Member of the Commission presiding at an

arbitration ......................................................................171

44ZB Reconstitution of Commission ......................................171

44ZC Determination of questions............................................172

44ZD Hearing to be in private .................................................172

44ZE Right to representation ..................................................172

44ZF Procedure of Commission .............................................172

44ZG Particular powers of Commission..................................173

44ZH Power to take evidence on oath or affirmation ..............174

44ZI Failing to attend as a witness.........................................174

44ZJ Failing to answer questions etc......................................175

44ZK Intimidation etc. ............................................................175

44ZL Party may request Commission to treat material as

confidential....................................................................176

44ZM Sections 18 and 19 do not apply to the

Commission in an arbitration ........................................176

44ZN Parties to pay costs of an arbitration..............................177

44ZNA Joint arbitration hearings ...............................................177

Subdivision DA—Arbitration reports 179

44ZNB Arbitration reports .........................................................179

Subdivision E—Effect of determinations 180

44ZO Operation of final determinations..................................180

44ZOA Effect and duration of interim determinations ...............182

Subdivision F—Review of final determinations 183

44ZP Review by Tribunal .......................................................183

44ZQ Provisions that do not apply in relation to a

Tribunal review .............................................................184

44ZR Appeals to Federal Court from determinations of

the Tribunal ...................................................................184

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44ZS Operation and implementation of a determination

that is subject to appeal .................................................185

44ZT Transmission of documents ...........................................185

Subdivision G—Variation and revocation of determinations 186

44ZU Variation of final determinations...................................186

44ZUA Variation and revocation of interim determinations ......186

Division 4—Registered contracts for access to declared services 187

44ZV Constitutional limits on operation of this Division........187

44ZW Registration of contract .................................................187

44ZX Review of decision not to register contract ...................188

44ZY Effect of registration of contract....................................189

Division 5—Hindering access to declared services 190

44ZZ Prohibition on hindering access to declared

services..........................................................................190

Division 6—Access undertakings and access codes for services 191

Subdivision A—Giving of access undertakings and access codes 191

44ZZA Access undertakings by providers .................................191

44ZZAAA Proposed amendments to access undertakings ..............193

44ZZAAB Access undertakings containing fixed principles...........195

44ZZAA Access codes prepared by industry bodies ....................197

44ZZAB Commission may rely on industry body

consultations..................................................................199

Subdivision B—Effect of access undertakings and access codes 200

44ZZBA When access undertakings and access codes come

into operation ................................................................200

Subdivision C—Extensions of access undertakings and access

codes 201

44ZZBB Extensions of access undertakings and access

codes..............................................................................201

Subdivision D—Procedural provisions 203

44ZZBC Time limit for Commission decisions............................203

44ZZBCA Commission may request information...........................205

44ZZBD Commission may invite public submissions..................206

44ZZBE Commission must publish its decisions.........................207

Subdivision E—Review of decisions 208

44ZZBF Review of decisions.......................................................208

Subdivision F—Register of access undertakings and access codes 210

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44ZZC Register of access undertakings and access codes .........210

Division 6A—Pricing principles for access disputes and access

undertakings or codes 211

44ZZCA Pricing principles for access disputes and access

undertakings or codes....................................................211

Division 6B—Overlap among determinations, registered

contracts, access undertakings and Tribunal review 212

44ZZCB Deferring access disputes or access undertakings .........212

44ZZCBA Deferral of arbitration if review is underway ................214

44ZZCC Overlap between determinations and access

undertakings ..................................................................215

44ZZCD Overlap between registered contracts and access

undertakings ..................................................................215

Division 7—Enforcement and remedies 217

44ZZD Enforcement of determinations .....................................217

44ZZE Enforcement of prohibition on hindering access ...........218

44ZZF Consent injunctions .......................................................219

44ZZG Interim injunctions ........................................................219

44ZZH Factors relevant to granting a restraining

injunction.......................................................................219

44ZZI Factors relevant to granting a mandatory

injunction.......................................................................219

44ZZJ Enforcement of access undertakings .............................220

44ZZK Discharge or variation of injunction or other order .......220

Division 8—Miscellaneous 221

44ZZL Register of determinations.............................................221

44ZZM Commonwealth consent to conferral of functions

etc. on the Commission or Tribunal by State or

Territory laws ................................................................221

44ZZMA How duty is imposed.....................................................222

44ZZMB When a law of a State or Territory imposes a duty........223

44ZZN Compensation for acquisition of property .....................223

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

Part ................................................................................224

44ZZO Conduct by directors, servants or agents .......................224

44ZZOAAA Information to be given to Tribunal...............................226

44ZZOAA Tribunal only to consider particular material ................228

44ZZOA Time limit for Tribunal decisions..................................228

44ZZP Regulations about review by the Tribunal .....................231

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44ZZQ Regulations about fees for inspection etc. of

registers .........................................................................232

44ZZR Procedure of the Tribunal when performing

functions under a State/Territory energy law or a

designated Commonwealth energy law .........................232

Part IV—Restrictive trade practices 233

Division 1—Cartel conduct 233

Subdivision A—Introduction 233

44ZZRA Simplified outline..........................................................233

44ZZRB Definitions.....................................................................233

44ZZRC Extended meaning of party ...........................................235

44ZZRD Cartel provisions ...........................................................235

44ZZRE Meaning of expressions in other provisions of this

Act.................................................................................241

Subdivision B—Offences etc. 241

44ZZRF Making a contract etc. containing a cartel

provision........................................................................241

44ZZRG Giving effect to a cartel provision .................................242

44ZZRH Determining guilt ..........................................................243

44ZZRI Court may make related civil orders..............................244

Subdivision C—Civil penalty provisions 244

44ZZRJ Making a contract etc. containing a cartel

provision........................................................................244

44ZZRK Giving effect to a cartel provision .................................244

Subdivision D—Exceptions 245

44ZZRL Conduct notified............................................................245

44ZZRM Cartel provision subject to grant of authorisation..........245

44ZZRN Contracts, arrangements or understandings

between related bodies corporate ..................................246

44ZZRO Joint ventures—prosecution ..........................................246

44ZZRP Joint ventures—civil penalty proceedings.....................249

44ZZRQ Covenants affecting competition ...................................252

44ZZRR Resale price maintenance ..............................................252

44ZZRS Exclusive dealing ..........................................................253

44ZZRT Dual listed company arrangement .................................254

44ZZRU Acquisition of shares or assets.......................................254

44ZZRV Collective acquisition of goods or services by the

parties to a contract, arrangement or understanding ......255

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information 256

44ZZS Definitions.....................................................................256

44ZZT Goods and services to which this Division applies........256

44ZZU Provisions affecting whether a corporation has

disclosed information to a person..................................257

44ZZV Meaning of private disclosure to competitors ...............258

44ZZW Corporation must not make private disclosure of

pricing information etc. to competitors .........................259

44ZZX Corporation must not make disclosure of pricing

information etc. for purpose of substantially

lessening competition ....................................................260

44ZZY Exceptions that apply to sections 44ZZW and

44ZZX...........................................................................261

44ZZZ Additional exceptions that only apply to

section 44ZZW..............................................................263

44ZZZA Burden of proof .............................................................266

44ZZZB Mere receipt of information does not constitute

being knowingly involved in contravention ..................267

Division 2—Other provisions 268

45 Contracts, arrangements or understandings that

restrict dealings or affect competition ...........................268

45B Covenants affecting competition ...................................271

45C Covenants in relation to prices ......................................275

45D Secondary boycotts for the purpose of causing

substantial loss or damage .............................................277

45DA Secondary boycotts for the purpose of causing

substantial lessening of competition..............................278

45DB Boycotts affecting trade or commerce ...........................279

45DC Involvement and liability of employee

organisations .................................................................280

45DD Situations in which boycotts permitted..........................282

45E Prohibition of contracts, arrangements or

understandings affecting the supply or acquisition

of goods or services .......................................................285

45EA Provisions contravening section 45E not to be

given effect....................................................................289

45EB Sections 45D to 45EA do not affect operation of

other provisions of Part .................................................289

46 Misuse of market power ................................................289

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46A Misuse of market power—corporation with

substantial degree of power in trans-Tasman

market............................................................................294

46B No immunity from jurisdiction in relation to

certain New Zealand laws .............................................296

47 Exclusive dealing ..........................................................296

48 Resale price maintenance ..............................................303

49 Dual listed company arrangements that affect

competition....................................................................303

50 Prohibition of acquisitions that would result in a

substantial lessening of competition..............................305

50A Acquisitions that occur outside Australia ......................307

51 Exceptions .....................................................................310

51AAA Concurrent operation of State and Territory laws..........315

Part IVB—Industry codes 316

Division 1—Preliminary 316

51ACA Definitions.....................................................................316

Division 2—Contravention of industry codes 318

51ACB Contravention of industry codes....................................318

Division 2A—Infringement notices 319

51ACC Purpose and effect of this Division................................319

51ACD Issuing an infringement notice ......................................319

51ACE Matters to be included in an infringement notice ..........320

51ACF Amount of penalty.........................................................320

51ACG Effect of compliance with an infringement notice.........321

51ACH Effect of failure to comply with an infringement

notice.............................................................................321

51ACI Infringement notice compliance period for

infringement notice........................................................322

51ACJ Withdrawal of an infringement notice ...........................322

Division 3—Public warning notices 325

51ADA Commission may issue a public warning notice............325

Division 4—Orders to redress loss or damage suffered by

non-parties etc. 326

51ADB Orders to redress loss or damage suffered by

non-parties etc. ..............................................................326

51ADC Kinds of orders that may be made to redress loss

or damage suffered by non-parties etc...........................328

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Division 5—Investigation power 330

51ADD Commission may require corporation to provide

information....................................................................330

51ADE Extending periods for complying with notices ..............330

51ADF Compliance with notices ...............................................331

51ADG False or misleading information etc. .............................331

Division 6—Miscellaneous 332

51AE Regulations relating to industry codes...........................332

51AEA Concurrent operation of State and Territory laws..........332

Part IVC—Payment surcharges 333

Division 1—Preliminary 333

55 Object of this Part..........................................................333

55A Definitions.....................................................................333

Division 2—Limit on payment surcharges 335

55B Payment surcharges must not be excessive ...................335

Division 3—Information about payment surcharges 336

55C Surcharge information notices.......................................336

55D Extending periods for complying with notices ..............336

55E Participant must comply with notice .............................337

Division 4—Infringement notices 338

55F Purpose and effect of this Division................................338

55G Issuing an infringement notice ......................................338

55H Matters to be included in an infringement notice ..........339

55J Amount of penalty.........................................................339

55K Effect of compliance with an infringement notice.........339

55L Effect of failure to comply with an infringement

notice.............................................................................340

55M Infringement notice compliance period for

infringement notice........................................................340

55N Withdrawal of an infringement notice ...........................341

Part V—Carbon tax price reduction obligation 343

Division 1—Preliminary 343

60 Simplified outline of this Part........................................343

60AA Objects etc. ....................................................................344

60A Definitions.....................................................................345

60B Regulated goods ............................................................350

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Division 2—Carbon tax price reduction obligation 351

60C Price exploitation in relation to the carbon tax

repeal .............................................................................351

60CA Failure to pass on cost savings—250% penalty.............351

60D Notice to entity that is considered to have engaged

in price exploitation in relation to the carbon tax

repeal .............................................................................353

60E Commission may issue notice to aid prevention of

price exploitation in relation to the carbon tax

repeal .............................................................................354

60F Acquisition of property .................................................355

Division 2A—Carbon tax removal substantiation notices 356

60FA Carbon tax removal substantiation notices ....................356

60FB Extending periods for complying with carbon tax

removal substantiation notices.......................................357

60FC Compliance with carbon tax removal

substantiation notices ....................................................357

Division 2B—Carbon tax removal substantiation statements 359

60FD Carbon tax removal substantiation statements...............359

Division 2C—Statements for customers 362

60FE Statements for customers...............................................362

Division 3—Price monitoring in relation to the carbon tax repeal

etc. 364

60G Commission may monitor prices in relation to the

carbon tax repeal etc......................................................364

60H Information-gathering powers .......................................366

60J Reporting.......................................................................368

Division 4—False or misleading representations about the effect

of the carbon tax repeal etc. on prices 369

60K False or misleading representations about the

effect of the carbon tax repeal etc. on prices .................369

Division 5—Infringement notices 370

60L Issuing an infringement notice ......................................370

60M Effect of compliance with an infringement notice.........371

60N Effect of failure to comply with an infringement

notice.............................................................................372

60P Infringement notice compliance period for

infringement notice........................................................372

60Q Withdrawal of an infringement notice ...........................373

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60R Effect of this Division ...................................................374

Part VI—Enforcement and remedies 376 75B Interpretation .................................................................376

76 Pecuniary penalties........................................................376

76A Defence to proceedings under section 76 relating

to a contravention of section 95AZN.............................380

76B What happens if substantially the same conduct is

a contravention of Part IV or section 95AZN and

an offence? ....................................................................381

76C Defence to proceedings relating to exclusionary

provisions ......................................................................382

77 Civil action for recovery of pecuniary penalties............383

77A Indemnification of officers ............................................383

77B Certain indemnities not authorised and certain

documents void .............................................................384

77C Application of section 77A to a person other than a

body corporate...............................................................384

78 Criminal proceedings not to be brought for

contraventions of Part IV...............................................384

79 Offences against section 44ZZRF or 44ZZRG..............385

79A Enforcement and recovery of certain fines ....................386

79B Preference must be given to compensation for

victims...........................................................................388

80 Injunctions.....................................................................389

80A Price exploitation in relation to the carbon tax

repeal—orders limiting prices or requiring refunds

of money........................................................................392

80AB Stay of injunctions.........................................................392

80AC Injunctions to prevent mergers if clearance or

authorisation granted on the basis of false or

misleading information..................................................394

81 Divestiture where merger contravenes section 50

or 50A ...........................................................................395

81A Divestiture where merger done under clearance or

authorisation granted on false etc. information..............397

82 Actions for damages......................................................399

83 Finding in proceedings to be evidence ..........................399

84 Conduct by directors, employees or agents ...................400

85 Defences........................................................................402

86 Jurisdiction of courts .....................................................402

86AA Limit on jurisdiction of Federal Circuit Court...............404

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86A Transfer of matters ........................................................404

86C Non-punitive orders.......................................................405

86D Punitive orders—adverse publicity ...............................407

86E Order disqualifying a person from managing

corporations...................................................................408

86F Privilege against exposure to penalty—

disqualification from managing corporations ................409

87 Other orders...................................................................410

87AA Special provision relating to Court’s exercise of

powers under this Part in relation to boycott

conduct ..........................................................................415

87B Enforcement of undertakings ........................................416

87C Enforcement of undertakings—Secretary of the

Department ....................................................................417

87CA Intervention by Commission .........................................417

Part VIA—Proportionate liability for misleading and deceptive

conduct 418 87CB Application of Part ........................................................418

87CC Certain concurrent wrongdoers not to have benefit

of apportionment ...........................................................418

87CD Proportionate liability for apportionable claims ............419

87CE Defendant to notify plaintiff of concurrent

wrongdoer of whom defendant aware ...........................420

87CF Contribution not recoverable from defendant................421

87CG Subsequent actions ........................................................421

87CH Joining non-party concurrent wrongdoer in the

action.............................................................................421

87CI Application of Part ........................................................421

Part VIB—Claims for damages or compensation for death or

personal injury 423

Division 1—Introduction 423

87D Definitions.....................................................................423

87E Proceedings to which this Part applies ..........................425

Division 2—Limitation periods 426

87F Basic rule.......................................................................426

87G Date of discoverability ..................................................427

87H Long-stop period ...........................................................429

87J The effect of minority or incapacity ..............................429

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87K The effect of close relationships....................................430

Division 3—Limits on personal injury damages for

non-economic loss 431

87L Limits on damages for non-economic loss ....................431

87M Maximum amount of damages for non-economic

loss ................................................................................431

87N Index numbers ...............................................................432

87P Most extreme cases .......................................................432

87Q Cases of 33% or more (but not 100%) of a most

extreme case ..................................................................433

87R Cases of 15% or more (but less than 33%) of a

most extreme case .........................................................433

87S Cases of less than 15% of a most extreme case .............434

87T Referring to earlier decisions on non-economic

loss ................................................................................434

Division 4—Limits on personal injury damages for loss of

earning capacity 435

87U Personal injury damages for loss of earning

capacity .........................................................................435

87V Average weekly earnings ..............................................435

Division 5—Limits on personal injury damages for gratuitous

attendant care services 437

87W Personal injury damages for gratuitous attendant

care services for plaintiff ...............................................437

87X Personal injury damages for loss of plaintiff’s

capacity to provide gratuitous attendant care

services..........................................................................438

Division 6—Other limits on personal injury damages 440

87Y Damages for future economic loss—discount rate ........440

87Z Damages for loss of superannuation entitlements .........440

87ZA Interest on damages .......................................................441

87ZB Exemplary and aggravated damages .............................442

Division 7—Structured settlements 443

87ZC Court may make orders under section 87 for

structured settlements ....................................................443

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Part VII—Authorisations, notifications and clearances in

respect of restrictive trade practices 444

Division 1—Authorisations (other than section 50 merger

authorisations) 444

87ZP Definitions.....................................................................444

88 Power of Commission to grant authorisations ...............444

89 Procedure for applications and the keeping of a

register...........................................................................452

90 Determination of applications for authorisations...........455

90A Commission to afford opportunity for conference

before determining application for authorisation...........462

90B Commission may rely on consultations undertaken

by the AEMC ................................................................466

91 Grant and variation of authorisations ............................467

91A Minor variations of authorizations ................................469

91B Revocation of an authorization......................................471

91C Revocation of an authorization and substitution of

a replacement ................................................................473

Division 2—Notifications 476

Subdivision A—Exclusive dealing and private disclosure of

pricing information 476

93 Notification of exclusive dealing or private

disclosure of pricing information ..................................476

Subdivision B—Collective bargaining 482

93AA Definitions.....................................................................482

93AB Notification of collective bargaining .............................482

93AC Commission’s objection notice .....................................487

93AD When collective bargaining notice comes into

force and ceases to be in force.......................................489

93AE Withdrawal of collective bargaining notice...................490

93AEA Only 1 collective bargaining notice under

subsection 93AB(1A) may be given..............................491

93AF Only 1 collective bargaining notice under

subsection 93AB(1) may be given.................................492

Subdivision C—Conferences 492

93A Commission to afford opportunity for conference

before giving notice.......................................................492

Subdivision D—Register of notifications 495

95 Register of notifications ................................................495

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Division 3—Merger clearances and authorisations 499

Subdivision A—Preliminary 499

95AA Simplified outline of this Division ................................499

95AB Definitions.....................................................................500

Subdivision B—Merger clearances 501

95AC Commission may grant clearance for a merger .............501

95AD Application for clearance ..............................................502

95AE Requirements for valid clearance application................502

95AF Commission to notify if clearance application is

invalid............................................................................502

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

95AH Merger clearance register ..............................................503

95AI Confidentiality claims etc..............................................503

95AJ Commission may seek additional information from

applicant ........................................................................505

95AK Commission may seek further information and

consult others ................................................................505

95AL Applicant may withdraw application.............................505

95AM Commission to make determination on application.......505

95AN When clearance must not be granted .............................506

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

95AP Clearance subject to conditions .....................................507

95AQ When clearance is in force ............................................508

95AR Minor variations of clearances ......................................509

95AS Revocation of clearance or revocation of clearance

and substitution of a new clearance ...............................513

Subdivision C—Merger authorisations 517

95AT Tribunal may grant authorisation for a merger ..............517

95AU Application for authorisation.........................................518

95AV Requirements for valid authorisation application ..........518

95AW Tribunal to notify if authorisation application is

invalid............................................................................519

95AX Tribunal to notify Commission of authorisation

application .....................................................................519

95AY Application to be published on the internet ...................519

95AZ Merger authorisation register ........................................519

95AZA Confidentiality claims etc..............................................520

95AZC Tribunal may seek additional information from

applicant ........................................................................521

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95AZD Tribunal may seek further information and consult

others etc. ......................................................................522

95AZE Applicant may withdraw application.............................522

95AZEA Tribunal must require Commission to give report .........522

95AZF Commission to assist Tribunal ......................................522

95AZFA Commission may make enquiries..................................523

95AZG Tribunal to make determination on application .............523

95AZH When authorisation must not be granted .......................524

95AZI Time limits for determining application ........................525

95AZJ Authorisation subject to conditions ...............................525

95AZK When authorisation is in force.......................................526

95AZL Minor variations of authorisations.................................526

95AZM Revocation of authorisation or revocation of

authorisation and substitution of a new

authorisation..................................................................530

Subdivision D—Miscellaneous 535

95AZN Providing false or misleading information ....................535

Part VIIA—Prices surveillance 537

Division 1—Preliminary 537

95A Interpretation .................................................................537

95B Exempt supplies ............................................................541

95C Application of Part ........................................................541

95D Crown to be bound ........................................................542

95E Object of this Part..........................................................542

95F Simplified overview of this Part ....................................543

Division 2—Commission’s functions under this Part 544

95G Commission’s functions under this Part ........................544

Division 3—Price inquiries 546

Subdivision A—Holding of inquiries 546

95H Price inquiries................................................................546

95J Content of inquiry notices .............................................547

95K Period for completing inquiry .......................................548

95L Notice of holding of inquiry ..........................................549

95M Notice of extension of period for completing

inquiry ...........................................................................549

95N Price restrictions............................................................550

Subdivision B—Reports on inquiries 553

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95P Copies of report to be made available ...........................553

95Q Notification of proposed prices after receipt of

report .............................................................................553

Subdivision C—Procedure at inquiries 554

95R Public inquiries etc. .......................................................554

95S Taking of evidence on oath or affirmation ....................555

95T Failure of witness to attend............................................556

95U Refusal to be sworn or to answer question ....................556

95V Protection of witnesses ..................................................557

95W Allowances to witnesses................................................558

Division 4—Price notifications 559

95X Declarations by Minister or Commission ......................559

95Y Declarations in relation to State or Territory

authorities......................................................................559

95Z Price restrictions............................................................561

95ZA Later notices modifying a locality notice ......................564

95ZB Applicable period in relation to a locality notice...........564

95ZC Register of price notifications .......................................565

95ZD Delegation by Commission ...........................................567

Division 5—Price monitoring 568

95ZE Directions to monitor prices, costs and profits of

an industry.....................................................................568

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

business .........................................................................568

95ZG Exceptions to price monitoring......................................569

Division 6—Other provisions 570

95ZH Ministerial directions.....................................................570

95ZI Inquiries by an unincorporated body or a group of

2 or more individuals.....................................................570

95ZJ Withdrawal of notices ...................................................571

95ZK Power to obtain information or documents....................571

95ZL Inspection of documents etc. .........................................574

95ZM Retention of documents.................................................575

95ZN Confidential information ...............................................575

95ZO Immunity .......................................................................576

95ZP Secrecy: members or staff members of the

Commission etc. ............................................................577

95ZQ Secrecy: persons involved in inquiries by bodies

other than the Commission............................................578

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Part VIII—Resale price maintenance 581 96 Acts constituting engaging in resale price

maintenance...................................................................581

96A Resale price maintenance in relation to services ...........583

97 Recommended prices ....................................................584

98 Withholding the supply of goods...................................584

99 Statements as to the minimum price of goods ...............585

100 Evidentiary provisions...................................................586

Part IX—Review by Tribunal of Determinations of

Commission 587

Division 1—Applications for review (other than for merger

clearances) 587

101 Applications for review .................................................587

101A Application for review of notice under

subsection 93(3) or (3A) or 93AC(1) or (2) ..................588

102 Functions and powers of Tribunal .................................589

Division 2—Procedure and Evidence 594

102A Definition ......................................................................594

103 Procedure generally.......................................................594

104 Regulations as to certain matters ...................................594

105 Power to take evidence on oath .....................................595

106 Hearings to be in public except in special

circumstances ................................................................595

107 Evidence in form of written statement...........................596

108 Taking of evidence by single member...........................596

109 Participants in proceedings before Tribunal ..................596

110 Representation...............................................................597

Division 3—Review of Commission’s determinations on merger

clearances 598

111 Applications for review .................................................598

112 Tribunal to notify Commission......................................599

113 Commission to give material to Tribunal ......................599

114 Tribunal may consult etc. to clarify information ...........599

115 Commission to assist Tribunal ......................................600

116 Tribunal only to consider material before the

Commission...................................................................600

117 Tribunal to make decision on review.............................600

118 Time limits for making review decision ........................601

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119 Tribunal’s decision taken to be Commission’s ..............601

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Section 1

Competition and Consumer Act 2010 1

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

An Act relating to competition, fair trading and

consumer protection, and for other purposes

Part I—Preliminary

1 Short title

This Act may be cited as the Competition and Consumer Act 2010.

2 Object of this Act

The object of this Act is to enhance the welfare of Australians

through the promotion of competition and fair trading and

provision for consumer protection.

2A Application of Act to Commonwealth and Commonwealth

authorities

(1) Subject to this section and sections 44AC, 44E and 95D, this Act

binds the Crown in right of the Commonwealth in so far as the

Crown in right of the Commonwealth carries on a business, either

directly or by an authority of the Commonwealth.

(2) Subject to the succeeding provisions of this section, this Act

applies as if:

(a) the Commonwealth, in so far as it carries on a business

otherwise than by an authority of the Commonwealth; and

(b) each authority of the Commonwealth (whether or not acting

as an agent of the Crown in right of the Commonwealth) in

so far as it carries on a business;

were a corporation.

(3) Nothing in this Act makes the Crown in right of the

Commonwealth liable to a pecuniary penalty or to be prosecuted

for an offence.

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Part I Preliminary

Section 2B

2 Competition and Consumer Act 2010

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

the Commonwealth.

(4) Part IV does not apply in relation to the business carried on by the

Commonwealth in developing, and disposing of interests in, land

in the Australian Capital Territory.

2B Application of Act to States and Territories

(1) The following provisions of this Act bind the Crown in right of

each of the States, of the Northern Territory and of the Australian

Capital Territory, so far as the Crown carries on a business, either

directly or by an authority of the State or Territory:

(a) Part IV;

(aa) Part V;

(b) Part XIB;

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

above provisions.

(2) Nothing in this Act renders the Crown in right of a State or

Territory liable to a pecuniary penalty or to be prosecuted for an

offence.

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

State or Territory.

2BA Application of Part IV to local government bodies

(1) Part IV applies in relation to a local government body only to the

extent that it carries on a business, either directly or by an

incorporated company in which it has a controlling interest.

(2) In this section:

local government body means a body established by or under a law

of a State or Territory for the purposes of local government, other

than a body established solely or primarily for the purposes of

providing a particular service, such as the supply of electricity or

water.

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Section 2C

Competition and Consumer Act 2010 3

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2C Activities that are not business

(1) For the purposes of sections 2A, 2B and 2BA, the following do not

amount to carrying on a business:

(a) imposing or collecting:

(i) taxes; or

(ii) levies; or

(iii) fees for licences;

(b) granting, refusing to grant, revoking, suspending or varying

licences (whether or not they are subject to conditions);

(c) a transaction involving:

(i) only persons who are all acting for the Crown in the

same right (and none of whom is an authority of the

Commonwealth or an authority of a State or Territory);

or

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

the Commonwealth; or

(iii) only persons who are all acting for the same authority of

a State or Territory; or

(iv) only the Crown in right of the Commonwealth and one

or more non-commercial authorities of the

Commonwealth; or

(v) only the Crown in right of a State or Territory and one

or more non-commercial authorities of that State or

Territory; or

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

or

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

Territory; or

(viii) only persons who are all acting for the same local

government body (within the meaning of section 2BA)

or for the same incorporated company in which such a

body has a controlling interest;

(d) the acquisition of primary products by a government body

under legislation, unless the acquisition occurs because:

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

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(ii) the body has not exercised a discretion that it has under

the legislation that would allow it not to acquire the

products.

(2) Subsection (1) does not limit the things that do not amount to

carrying on a business for the purposes of sections 2A, 2B and

2BA.

(3) In this section:

acquisition of primary products by a government body under

legislation includes vesting of ownership of primary products in a

government body by legislation.

government body means the Commonwealth, a State, a Territory,

an authority of the Commonwealth or an authority of a State or

Territory.

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

services.

primary products means:

(a) agricultural or horticultural produce; or

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

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

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

(4) For the purposes of this section, an authority of the Commonwealth

or an authority of a State or Territory is non-commercial if:

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

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

3 Repeal

The Restrictive Trade Practices Act 1971 and the Restrictive Trade

Practices Act 1972 are repealed.

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

acquire includes:

(a) in relation to goods—acquire by way of purchase, exchange

or taking on lease, on hire or on hire-purchase; and

(b) in relation to services—accept.

AEMC or Australian Energy Market Commission means the body

established by section 5 of the Australian Energy Market

Commission Establishment Act 2004 of South Australia.

AER or Australian Energy Regulator means the body established

by section 44AE.

AER Chair means the Chair of the AER.

AER member means a member of the AER.

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

into.

Australian Consumer Law means Schedule 2 as applied under

Subdivision A of Division 2 of Part XI.

authorisation means:

(a) an authorisation under Division 1 of Part VII granted by the

Commission or by the Tribunal on a review of a

determination of the Commission; or

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

Tribunal.

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

Territory), means:

(a) a body corporate established for a purpose of the State or the

Territory by or under a law of the State or Territory; or

(b) an incorporated company in which the State or the Territory,

or a body corporate referred to in paragraph (a), has a

controlling interest.

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authority of the Commonwealth means:

(a) a body corporate established for a purpose of the

Commonwealth by or under a law of the Commonwealth or a

law of a Territory; or

(b) an incorporated company in which the Commonwealth, or a

body corporate referred to in paragraph (a), has a controlling

interest.

banker includes, but is not limited to, a body corporate that is an

ADI (authorised deposit-taking institution) for the purposes of the

Banking Act 1959.

business includes a business not carried on for profit.

cartel provision has the meaning given by section 44ZZRD.

Chairperson means the Chairperson of the Commission.

clearance means a clearance under Division 3 of Part VII granted

by the Commission or by the Tribunal on a review of a

determination of the Commission.

Commission means the Australian Competition and Consumer

Commission established by section 6A, and includes a member of

the Commission or a Division of the Commission performing

functions of the Commission.

competition includes competition from imported goods or from

services rendered by persons not resident or not carrying on

business in Australia.

Competition Principles Agreement means the Competition

Principles Agreement made on 11 April 1995 between the

Commonwealth, New South Wales, Victoria, Queensland, Western

Australia, South Australia, Tasmania, the Australian Capital

Territory and the Northern Territory, being that agreement as in

force from time to time.

Conduct Code Agreement means the Conduct Code Agreement

made on 11 April 1995 between the Commonwealth, New South

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Wales, Victoria, Queensland, Western Australia, South Australia,

Tasmania, the Australian Capital Territory and the Northern

Territory, being that agreement as in force from time to time.

corporation means a body corporate that:

(a) is a foreign corporation;

(b) is a trading corporation formed within the limits of Australia

or is a financial corporation so formed;

(c) is incorporated in a Territory; or

(d) is the holding company of a body corporate of a kind referred

to in paragraph (a), (b) or (c).

Council means the National Competition Council established by

section 29A.

Councillor means a member of the Council, including the Council

President.

Council President means the Council President referred to in

subsection 29C(1).

covenant means a covenant (including a promise not under seal)

annexed to or running with an estate or interest in land (whether at

law or in equity and whether or not for the benefit of other land),

and proposed covenant has a corresponding meaning.

debenture includes debenture stock, bonds, notes and any other

document evidencing or acknowledging indebtedness of a body

corporate, whether constituting a charge on property of the body

corporate or not.

Deputy Chairperson means a Deputy Chairperson of the

Commission.

Deputy President means a Deputy President of the Tribunal, and

includes a person appointed to act as a Deputy President of the

Tribunal.

Deputy Registrar means a Deputy Registrar of the Tribunal.

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designated Commonwealth energy law means:

(a) the National Electricity (Commonwealth) Law and

Regulations (as defined by the Australian Energy Market Act

2004); or

(b) the National Gas (Commonwealth) Law and Regulations (as

defined by the Australian Energy Market Act 2004); or

(c) the Offshore Western Australian Pipelines (Commonwealth)

Law and Regulations (as defined by the Australian Energy

Market Act 2004); or

(d) the National Energy Retail Law and Regulations

(Commonwealth) (as defined by the Australian Energy

Market Act 2004).

document means any record of information, and includes:

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols or

perforations having a meaning for persons qualified to

interpret them; and

(c) anything from which sounds, images or writings can be

reproduced with or without the aid of anything else; and

(d) a map, plan, drawing or photograph.

dual listed company arrangement has the same meaning as in

section 125-60 of the Income Tax Assessment Act 1997.

electronic communication means a communication of information

by means of guided and/or unguided electromagnetic energy:

(a) whether in the form of text; or

(b) whether in the form of data; or

(c) whether in the form of speech, music or other sounds; or

(d) whether in the form of visual images (animated or

otherwise); or

(e) whether in any other form; or

(f) whether in any combination of forms.

Federal Circuit Court means the Federal Circuit Court of

Australia.

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financial corporation means a financial corporation within the

meaning of paragraph 51(xx) of the Constitution and includes a

body corporate that carries on as its sole or principal business the

business of banking (other than State banking not extending

beyond the limits of the State concerned) or insurance (other than

State insurance not extending beyond the limits of the State

concerned).

foreign corporation means a foreign corporation within the

meaning of paragraph 51(xx) of the Constitution and includes a

body corporate that is incorporated in an external Territory.

fully-participating jurisdiction means a State or Territory that:

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

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

give effect to, in relation to a provision of a contract, arrangement

or understanding, includes do an act or thing in pursuance of or in

accordance with or enforce or purport to enforce.

goods includes:

(a) ships, aircraft and other vehicles;

(b) animals, including fish;

(c) minerals, trees and crops, whether on, under or attached to

land or not; and

(d) gas and electricity.

local energy instrument means a regulation, rule, order,

declaration or other instrument if:

(a) the instrument is made or has effect under a law of a State or

Territory; and

(b) the law of the State or Territory applies a uniform energy law

as a law of its own jurisdiction.

member of the Commission includes the Chairperson and a person

appointed to act as a member of the Commission but does not

include an associate member of the Commission.

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member of the Tribunal includes the President and a person

appointed to act as a member of the Tribunal.

New Zealand Commerce Commission means the Commission

established by section 8 of the Commerce Act 1986 of New

Zealand.

New Zealand Crown corporation means a body corporate that is

an instrument of the Crown in respect of the Government of New

Zealand.

organisation of employees means an organisation that exists or is

carried on for the purpose, or for purposes that include the purpose,

of furthering the interests of its members in relation to their

employment.

personal injury includes:

(a) pre-natal injury; or

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

(c) disease;

but does not include an impairment of a person’s mental condition

unless the impairment consists of a recognised psychiatric illness.

practice of exclusive dealing means the practice of exclusive

dealing referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or

(9).

practice of resale price maintenance means the practice of resale

price maintenance referred to in Part VIII.

President means the President of the Tribunal and includes a

person appointed to act as President of the Tribunal.

presidential member or presidential member of the Tribunal

means the President or a Deputy President.

price includes a charge of any description.

provision, in relation to an understanding, means any matter

forming part of the understanding.

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registered charity means an entity that is registered under the

Australian Charities and Not-for-profits Commission Act 2012 as

the type of entity mentioned in column 1 of item 1 of the table in

subsection 25-5(5) of that Act.

Registrar means the Registrar of the Tribunal.

require, in relation to the giving of a covenant, means require or

demand the giving of a covenant, whether by way of making a

contract containing the covenant or otherwise, and whether or not a

covenant is given in pursuance of the requirement or demand.

send includes deliver, and sent and sender have corresponding

meanings.

services includes any rights (including rights in relation to, and

interests in, real or personal property), benefits, privileges or

facilities that are, or are to be, provided, granted or conferred in

trade or commerce, and without limiting the generality of the

foregoing, includes the rights, benefits, privileges or facilities that

are, or are to be, provided, granted or conferred under:

(a) a contract for or in relation to:

(i) the performance of work (including work of a

professional nature), whether with or without the supply

of goods;

(ii) the provision of, or the use or enjoyment of facilities

for, amusement, entertainment, recreation or instruction;

or

(iii) the conferring of rights, benefits or privileges for which

remuneration is payable in the form of a royalty, tribute,

levy or similar exaction;

(b) a contract of insurance;

(c) a contract between a banker and a customer of the banker

entered into in the course of the carrying on by the banker of

the business of banking; or

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

but does not include rights or benefits being the supply of goods or

the performance of work under a contract of service.

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share includes stock.

South Australian Electricity Legislation means:

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

National Electricity (South Australia) Act 1996 of South

Australia as in force from time to time; and

(b) any regulations, as in force from time to time, made under

Part 4 of that Act.

The reference in paragraph (a) to the National Electricity Law set

out in the Schedule to the National Electricity (South Australia)

Act 1996 of South Australia as in force from time to time includes

a reference to any Rules or other instruments, as in force from time

to time, made or having effect under that Law.

South Australian Energy Retail Legislation means:

(a) the National Energy Retail Law set out in the Schedule to the

National Energy Retail Law (South Australia) Act 2011 of

South Australia, as amended from time to time; and

(b) any regulations, as amended from time to time, made under

Part 11 of the National Energy Retail Law.

The reference in paragraph (a) to the National Energy Retail Law

set out in the Schedule to the National Energy Retail Law (South

Australia) Act 2011 of South Australia, as amended from time to

time, includes a reference to any Rules or other instruments, as

amended from time to time, made or having effect under that Law.

South Australian Gas Legislation means:

(a) the National Gas Law set out in the Schedule to the National

Gas (South Australia) Act 2008 of South Australia as in force

from time to time; and

(b) any regulations, as in force from time to time, made under

Part 3 of that Act.

The reference in paragraph (a) to the National Gas Law set out in

the Schedule to the National Gas (South Australia) Act 2008 of

South Australia as in force from time to time includes a reference

to any Rules or other instruments, as in force from time to time,

made or having effect under that Law.

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State/Territory AER member means an AER member referred to

in section 44AP.

State/Territory energy law means any of the following laws:

(a) a uniform energy law that applies as a law of a State or

Territory;

(b) a law of a State or Territory that applies a law mentioned in

paragraph (a) as a law of its own jurisdiction;

(c) any other provisions of a law of a State or Territory that:

(i) relate to energy; and

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

paragraph;

being those provisions as in force from time to time.

supply, when used as a verb, includes:

(a) in relation to goods—supply (including re-supply) by way of

sale, exchange, lease, hire or hire-purchase; and

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

and, when used as a noun, has a corresponding meaning, and

supplied and supplier have corresponding meanings.

Telstra has the same meaning as in the Telstra Corporation Act

1991.

Territory means:

(a) an internal Territory; or

(b) the Territory of Christmas Island; or

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

the Court or the Federal Court means the Federal Court of

Australia.

the Family Court means the Family Court of Australia.

this Act includes Schedule 2 to the extent that it is applied under

Subdivision A of Division 2 of Part XI.

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trade or commerce means trade or commerce within Australia or

between Australia and places outside Australia.

trading corporation means a trading corporation within the

meaning of paragraph 51(xx) of the Constitution.

Tribunal means the Australian Competition Tribunal, and includes

a member of that Tribunal or a Division of that Tribunal

performing functions of that Tribunal.

uniform energy law means:

(a) the South Australian Electricity Legislation; or

(b) the South Australian Gas Legislation; or

(c) the Western Australian Gas Legislation; or

(ca) the South Australian Energy Retail Legislation; or

(d) provisions of a law of a State or Territory that:

(i) relate to energy; and

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

subparagraph;

being those provisions as in force from time to time.

Western Australian Gas Legislation means:

(a) the National Gas Access (Western Australia) Law (within the

meaning of the National Gas Access (WA) Act 2009 of

Western Australia) as in force from time to time; and

(b) any regulations, as in force from time to time, made under

Part 3 of that Act.

The reference in paragraph (a) to the National Gas Access

(Western Australia) Law (within the meaning of the National Gas

Access (WA) Act 2009 of Western Australia) as in force from time

to time includes a reference to any Rules or other instruments, as in

force from time to time, made or having effect under that Law.

(2) In this Act:

(a) a reference to engaging in conduct shall be read as a

reference to doing or refusing to do any act, including the

making of, or the giving effect to a provision of, a contract or

arrangement, the arriving at, or the giving effect to a

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provision of, an understanding or the requiring of the giving

of, or the giving of, a covenant;

(b) a reference to conduct, when that expression is used as a

noun otherwise than as mentioned in paragraph (a), shall be

read as a reference to the doing of or the refusing to do any

act, including the making of, or the giving effect to a

provision of, a contract or arrangement, the arriving at, or the

giving effect to a provision of, an understanding or the

requiring of the giving of, or the giving of, a covenant;

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

(i) refraining (otherwise than inadvertently) from doing

that act; or

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

(d) a reference to a person offering to do an act, or to do an act

on a particular condition, includes a reference to the person

making it known that the person will accept applications,

offers or proposals for the person to do that act or to do that

act on that condition, as the case may be.

(3) Where a provision of this Act is expressed to render a provision of

a contract, or to render a covenant, unenforceable if the provision

of the contract or the covenant has or is likely to have a particular

effect, that provision of this Act applies in relation to the provision

of the contract or the covenant at any time when the provision of

the contract or the covenant has or is likely to have that effect

notwithstanding that:

(a) at an earlier time the provision of the contract or the covenant

did not have that effect or was not regarded as likely to have

that effect; or

(b) the provision of the contract or the covenant will not or may

not have that effect at a later time.

(4) In this Act:

(a) a reference to the acquisition of shares in the capital of a

body corporate shall be construed as a reference to an

acquisition, whether alone or jointly with another person, of

any legal or equitable interest in such shares; and

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(b) a reference to the acquisition of assets of a person shall be

construed as a reference to an acquisition, whether alone or

jointly with another person, of any legal or equitable interest

in such assets but does not include a reference to an

acquisition by way of charge only or an acquisition in the

ordinary course of business.

4A Subsidiary, holding and related bodies corporate

(1) For the purposes of this Act, a body corporate shall, subject to

subsection (3), be deemed to be a subsidiary of another body

corporate if:

(a) that other body corporate:

(i) controls the composition of the board of directors of the

first-mentioned body corporate;

(ii) is in a position to cast, or control the casting of, more

than one-half of the maximum number of votes that

might be cast at a general meeting of the first-mentioned

body corporate; or

(iii) holds more than one-half of the allotted share capital of

the first-mentioned body corporate (excluding any part

of that allotted share capital that carries no right to

participate beyond a specified amount in a distribution

of either profits or capitan( � or

(b) the first-mentioned body corporate is a subsidiary of any

body corporate that is that other body corporate’s subsidiary

(including any body corporate that is that other body

corporate’s subsidiary by another application or other

applications of this paragraph).

(2) For the purposes of subsection (1), the composition of a body

corporate’s board of directors shall be deemed to be controlled by

another body corporate if that other body corporate, by the exercise

of some power exercisable by it without the consent or concurrence

of any other person, can appoint or remove all or a majority of the

directors, and for the purposes of this provision that other body

corporate shall be deemed to have power to make such an

appointment if:

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(a) a person cannot be appointed as a director without the

exercise in his or her favour by that other body corporate of

such a power; or

(b) a person’s appointment as a director follows necessarily from

his or her being a director or other officer of that other body

corporate.

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

body corporate:

(a) any shares held or power exercisable by that other body

corporate in a fiduciary capacity shall be treated as not held

or exercisable by it;

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

exercisable:

(i) by any person as a nominee for that other body

corporate (except where that other body corporate is

concerned only in a fiduciary capacity); or

(ii) by, or by a nominee for, a subsidiary of that other body

corporate, not being a subsidiary that is concerned only

in a fiduciary capacity;

shall be treated as held or exercisable by that other body

corporate;

(c) any shares held or power exercisable by any person by virtue

of the provisions of any debentures of the first-mentioned

body corporate, or of a trust deed for securing any allotment

of such debentures, shall be disregarded; and

(d) any shares held or power exercisable by, or by a nominee for,

that other body corporate or its subsidiary (not being held or

exercisable as mentioned in paragraph (c)) shall be treated as

not held or exercisable by that other body corporate if the

ordinary business of that other body corporate or its

subsidiary, as the case may be, includes the lending of money

and the shares are held or the power is exercisable by way of

security only for the purposes of a transaction entered into in

the ordinary course of that business.

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(4) A reference in this Act to the holding company of a body corporate

shall be read as a reference to a body corporate of which that other

body corporate is a subsidiary.

(5) Where a body corporate:

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

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

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

corporate;

that first-mentioned body corporate and that other body corporate

shall, for the purposes of this Act, be deemed to be related to each

other.

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

(a) a body corporate that is a party to a dual listed company

arrangement is taken to be related to the other body corporate

that is a party to the arrangement; and

(b) a body corporate that is related to one of the parties to the

arrangement is taken to be related to the other party to the

arrangement; and

(c) a body corporate that is related to one of the parties to the

arrangement is taken to be related to each body corporate that

is related to the other party to the arrangement.

(6) In proceedings under this Act, whether in the Court or before the

Tribunal or the Commission, it shall be presumed, unless the

contrary is established, that bodies corporate are not, or were not at

a particular time, related to each other.

4B Consumers

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

(a) a person shall be taken to have acquired particular goods as a

consumer if, and only if:

(i) the price of the goods did not exceed the prescribed

amount; or

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(ii) where that price exceeded the prescribed amount—the

goods were of a kind ordinarily acquired for personal,

domestic or household use or consumption or the goods

consisted of a commercial road vehicle;

and the person did not acquire the goods, or hold himself or

herself out as acquiring the goods, for the purpose of

re-supply or for the purpose of using them up or transforming

them, in trade or commerce, in the course of a process of

production or manufacture or of repairing or treating other

goods or fixtures on land; and

(b) a person shall be taken to have acquired particular services as

a consumer if, and only if:

(i) the price of the services did not exceed the prescribed

amount; or

(ii) where that price exceeded the prescribed amount—the

services were of a kind ordinarily acquired for personal,

domestic or household use or consumption.

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

(a) the prescribed amount is $40,000 or, if a greater amount is

prescribed for the purposes of this paragraph, that greater

amount;

(b) subject to paragraph (c), the price of goods or services

purchased by a person shall be taken to have been the amount

paid or payable by the person for the goods or services;

(c) where a person purchased goods or services together with

other property or services, or with both other property and

services, and a specified price was not allocated to the goods

or services in the contract under which they were purchased,

the price of the goods or services shall be taken to have been:

(i) the price at which, at the time of the acquisition, the

person could have purchased from the supplier the

goods or services without the other property or services;

(ii) if, at the time of the acquisition, the goods or services

were not available for purchase from the supplier except

together with the other property or services but, at that

time, goods or services of the kind acquired were

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available for purchase from another supplier without

other property or services—the lowest price at which

the person could, at that time, reasonably have

purchased goods or services of that kind from another

supplier; or

(iii) if, at the time of the acquisition, goods or services of the

kind acquired were not available for purchase from any

supplier except together with other property or

services—the value of the goods or services at that time;

(d) where a person acquired goods or services otherwise than by

way of purchase, the price of the goods or services shall be

taken to have been:

(i) the price at which, at the time of the acquisition, the

person could have purchased the goods or services from

the supplier;

(ii) if, at the time of the acquisition, the goods or services

were not available for purchase from the supplier or

were so available only together with other property or

services but, at that time, goods or services of the kind

acquired were available for purchase from another

supplier—the lowest price at which the person could, at

that time, reasonably have purchased goods or services

of that kind from another supplier; or

(iii) if goods or services of the kind acquired were not

available, at the time of the acquisition, for purchase

from any supplier or were not so available except

together with other property or services—the value of

the goods or services at that time; and

(e) without limiting by implication the meaning of the

expression services in subsection 4(1), the obtaining of credit

by a person in connection with the acquisition of goods or

services by him or her shall be deemed to be the acquisition

by him or her of a service and any amount by which the

amount paid or payable by him or her for the goods or

services is increased by reason of his or her so obtaining

credit shall be deemed to be paid or payable by him or her for

that service.

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(3) Where it is alleged in any proceeding under this Act or in any other

proceeding in respect of a matter arising under this Act that a

person was a consumer in relation to particular goods or services, it

shall be presumed, unless the contrary is established, that the

person was a consumer in relation to those goods or services.

(4) In this section, commercial road vehicle means a vehicle or trailer

acquired for use principally in the transport of goods on public

roads.

4C Acquisition, supply and re-supply

In this Act, unless the contrary intention appears:

(a) a reference to the acquisition of goods includes a reference to

the acquisition of property in, or rights in relation to, goods

in pursuance of a supply of the goods;

(b) a reference to the supply or acquisition of goods or services

includes a reference to agreeing to supply or acquire goods or

services;

(c) a reference to the supply or acquisition of goods includes a

reference to the supply or acquisition of goods together with

other property or services, or both;

(d) a reference to the supply or acquisition of services includes a

reference to the supply or acquisition of services together

with property or other services, or both;

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

includes a reference to:

(i) a supply of the goods to another person in an altered

form or condition; and

(ii) a supply to another person of goods in which the

first-mentioned goods have been incorporated;

(f) a reference to the re-supply of services (the original services)

acquired from a person (the original supplier) includes a

reference to:

(i) a supply of the original services to another person in an

altered form or condition; and

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(ii) a supply to another person of other services that are

substantially similar to the original services, and could

not have been supplied if the original services had not

been acquired by the person who acquired them from

the original supplier.

4D Exclusionary provisions

(1) A provision of a contract, arrangement or understanding, or of a

proposed contract, arrangement or understanding, shall be taken to

be an exclusionary provision for the purposes of this Act if:

(a) the contract or arrangement was made, or the understanding

was arrived at, or the proposed contract or arrangement is to

be made, or the proposed understanding is to be arrived at,

between persons any 2 or more of whom are competitive

with each other; and

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

limiting:

(i) the supply of goods or services to, or the acquisition of

goods or services from, particular persons or classes of

persons; or

(ii) the supply of goods or services to, or the acquisition of

goods or services from, particular persons or classes of

persons in particular circumstances or on particular

conditions;

by all or any of the parties to the contract, arrangement or

understanding or of the proposed parties to the proposed

contract, arrangement or understanding or, if a party or

proposed party is a body corporate, by a body corporate that

is related to the body corporate.

(2) A person shall be deemed to be competitive with another person

for the purposes of subsection (1) if, and only if, the

first-mentioned person or a body corporate that is related to that

person is, or is likely to be, or, but for the provision of any

contract, arrangement or understanding or of any proposed

contract, arrangement or understanding, would be, or would be

likely to be, in competition with the other person, or with a body

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corporate that is related to the other person, in relation to the

supply or acquisition of all or any of the goods or services to which

the relevant provision of the contract, arrangement or

understanding or of the proposed contract, arrangement or

understanding relates.

4E Market

For the purposes of this Act, unless the contrary intention appears,

market means a market in Australia and, when used in relation to

any goods or services, includes a market for those goods or

services and other goods or services that are substitutable for, or

otherwise competitive with, the first-mentioned goods or services.

4F References to purpose or reason

(1) For the purposes of this Act:

(a) a provision of a contract, arrangement or understanding or of

a proposed contract, arrangement or understanding, or a

covenant or a proposed covenant, shall be deemed to have

had, or to have, a particular purpose if:

(i) the provision was included in the contract, arrangement

or understanding or is to be included in the proposed

contract, arrangement or understanding, or the covenant

was required to be given or the proposed covenant is to

be required to be given, as the case may be, for that

purpose or for purposes that included or include that

purpose; and

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

(b) a person shall be deemed to have engaged or to engage in

conduct for a particular purpose or a particular reason if:

(i) the person engaged or engages in the conduct for

purposes that included or include that purpose or for

reasons that included or include that reason, as the case

may be; and

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

reason.

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(2) This section does not apply for the purposes of subsections 45D(1),

45DA(1), 45DB(1), 45E(2) and 45E(3).

4G Lessening of competition to include preventing or hindering

competition

For the purposes of this Act, references to the lessening of

competition shall be read as including references to preventing or

hindering competition.

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

buildings

In this Act:

(a) a reference to a contract shall be construed as including a

reference to a lease of, or a licence in respect of, land or a

building or part of a building and shall be so construed

notwithstanding the express references in this Act to such

leases or licences;

(b) a reference to making or entering into a contract, in relation

to such a lease or licence, shall be read as a reference to

granting or taking the lease or licence; and

(c) a reference to a party to a contract, in relation to such a lease

or licence, shall be read as including a reference to any

person bound by, or entitled to the benefit of, any provision

contained in the lease or licence.

4J Joint ventures

In this Act:

(a) a reference to a joint venture is a reference to an activity in

trade or commerce:

(i) carried on jointly by two or more persons, whether or

not in partnership; or

(ii) carried on by a body corporate formed by two or more

persons for the purpose of enabling those persons to

carry on that activity jointly by means of their joint

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control, or by means of their ownership of shares in the

capital, of that body corporate; and

(b) a reference to a contract or arrangement made or

understanding arrived at, or to a proposed contract or

arrangement to be made or proposed understanding to be

arrived at, for the purposes of a joint venture shall, in relation

to a joint venture by way of an activity carried on by a body

corporate as mentioned in subparagraph (a)(ii), be read as

including a reference to the memorandum and articles of

association, rules or other document that constitute or

constitutes, or are or is to constitute, that body corporate.

4K Loss or damage to include injury

In this Act:

(a) a reference to loss or damage, other than a reference to the

amount of any loss or damage, includes a reference to injury;

and

(b) a reference to the amount of any loss or damage includes a

reference to damages in respect of an injury.

4KA Definitions etc. that do not apply in Part XI or Schedule 2

Despite any other provision of this Act, sections 4 to 4K do not

affect the meaning of any expression used in Part XI or Schedule 2,

unless a contrary intention appears.

4L Severability

If the making of a contract after the commencement of this section

contravenes this Act by reason of the inclusion of a particular

provision in the contract, then, subject to any order made under

section 51ADB or 87, nothing in this Act affects the validity or

enforceability of the contract otherwise than in relation to that

provision in so far as that provision is severable.

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

confidence

This Act does not affect the operation of:

(a) the law relating to restraint of trade in so far as that law is

capable of operating concurrently with this Act; or

(b) the law relating to breaches of confidence;

but nothing in the law referred to in paragraph (a) or (b) affects the

interpretation of this Act.

4N Extended application of Part IIIA

(1) Part IIIA, and the other provisions of this Act so far as they relate

to Part IIIA, extend to services provided by means of facilities that

are, or will be, wholly or partly within:

(a) an external Territory; or

(b) the offshore area in respect of a State, of the Northern

Territory, or of an external Territory, as specified in section 7

of the Offshore Petroleum and Greenhouse Gas Storage Act

2006.

(3) Nothing in subsection (1) affects the operation of section 15B of

the Acts Interpretation Act 1901 in respect of the application of

Part IIIA, and of the other provisions of this Act so far as they

relate to Part IIIA, in any part of:

(a) the coastal sea of Australia; or

(b) the coastal sea of an external Territory;

that is on the landward side of each of the offshore areas referred to

in that subsection.

(4) For the purposes of this section:

service includes proposed service covered by Division 2A of

Part IIIA.

5 Extended application of this Act to conduct outside Australia

(1) Each of the following provisions:

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(a) Part IV;

(b) Part XI;

(c) the Australian Consumer Law (other than Part 5-3);

(f) the remaining provisions of this Act (to the extent to which

they relate to any of the provisions covered by paragraph (a),

(b) or (c));

extends to the engaging in conduct outside Australia by:

(g) bodies corporate incorporated or carrying on business within

Australia; or

(h) Australian citizens; or

(i) persons ordinarily resident within Australia.

(1A) In addition to the extended operation that section 46A has by virtue

of subsection (1), that section extends to the engaging in conduct

outside Australia by:

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

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

or

(c) persons ordinarily resident within New Zealand.

(2) In addition to the extended operation that sections 47 and 48 have

by virtue of subsection (1), those sections extend to the engaging in

conduct outside Australia by any persons in relation to the supply

by those persons of goods or services to persons within Australia.

(3) Where a claim under section 82, or under section 236 of the

Australian Consumer Law, is made in a proceeding, a person is not

entitled to rely at a hearing in respect of that proceeding on conduct

to which a provision of this Act extends by virtue of subsection (1)

or (2) of this section except with the consent in writing of the

Minister.

(4) A person other than the Minister, the Commission or the Director

of Public Prosecutions is not entitled to make an application to the

Court for an order under subsection 87(1) or (1A), or under

subsection 237(1) or 238(1) of the Australian Consumer Law, in a

proceeding in respect of conduct to which a provision of this Act

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extends by virtue of subsection (1) or (2) of this section except

with the consent in writing of the Minister.

(5) The Minister shall give a consent under subsection (3) or (4) in

respect of a proceeding unless, in the opinion of the Minister:

(a) the law of the country in which the conduct concerned was

engaged in required or specifically authorised the engaging in

of the conduct; and

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

6 Extended application of this Act to persons who are not

corporations

(1) Without prejudice to its effect apart from this section, this Act also

has effect as provided by this section.

(2) This Act, other than Parts IIIA, VIIA and X, has, by force of this

subsection, the effect it would have if:

(a) any references in this Act other than in section 45DB, or

section 33 or 155 of the Australian Consumer Law, to trade

or commerce were, by express provision, confined to trade or

commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory, between a State and a Territory or

between two Territories; or

(iv) by way of the supply of goods or services to the

Commonwealth or an authority or instrumentality of the

Commonwealth; and

(b) the following provisions:

(i) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK,

Division 1A of Part IV, and sections 45, 45B, 45D to

45EB (other than section 45DB), 46 and 46A;

(ia) Part V (other than Division 5);

(ii) Part VIII;

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(iii) sections 31 and 43, Division 3 of Part 3-1, and

sections 50, 153, 163, 164 and 168, of the Australian

Consumer Law;

were, by express provision, confined in their operation to

engaging in conduct to the extent to which the conduct takes

place in the course of or in relation to:

(iv) trade or commerce between Australia and places outside

Australia; or

(v) trade or commerce among the States; or

(vi) trade or commerce within a Territory, between a State

and a Territory or between 2 Territories; or

(vii) the supply of goods or services to the Commonwealth or

an authority or instrumentality of the Commonwealth;

and

(c) any reference in Division 1 of Part 3-2 of the Australian

Consumer Law to a contract for the supply of goods or

services and any reference in Part 3-5 or 5-4 of the Australian

Consumer Law to the supply of goods or services, were, by

express provision, confined to a contract made, or the supply

of goods or services, as the case may be:

(i) in the course of, or in relation to, trade or commerce

between Australia and places outside Australia; or

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

among the States; or

(iii) in the course of, or in relation to, trade or commerce

within a Territory, between a State and a Territory or

between two Territories; and

(ca) any reference in Part 2-3 of the Australian Consumer Law to

a contract were, by express provision, confined to a contract

made:

(i) in the course of, or in relation to, trade or commerce

between Australia and places outside Australia; or

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

among the States; or

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(iii) in the course of, or in relation to, trade or commerce

within a Territory, between a State and a Territory or

between two Territories; and

(d) in subsection 45(1) and subparagraph 87(3)(a)(i) the words

“in so far as it confers rights or benefits or imposes duties or

obligations on a corporation” were omitted; and

(e) in subsection 45B(1) and subparagraph 87(3)(a)(ii) the words

“in so far as it confers rights or benefits or imposes duties or

obligations on a corporation or on a person associated with a

corporation” were omitted; and

(ea) subsections 45D(3), 45D(4) and 45DA(3) were repealed, the

words “In the circumstances specified in subsections (3) and

(4)” were omitted from subsection 45D(1) and the words “In

the circumstances specified in subsection (3)” were omitted

from subsection 45DA(1); and

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

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

(h) subject to paragraphs (d), (e), (ea), (eb) and (g), a reference in

this Act to a corporation, except a reference in section 4, 48,

49, 50, 50A, 77A, 81, 151AE or 151AJ or in section 229 of

the Australian Consumer Law, included a reference to a

person not being a corporation.

(2A) So far as subsection (2) relates to Part IV, that subsection has effect

in relation to a participating Territory as if the words “within a

Territory,” were omitted from subparagraphs (2)(a)(iii) and

(2)(b)(iii). For this purpose, participating Territory means a

Territory that is a participating Territory within the meaning of

Part XIA but is not named in a notice in operation under

section 150K.

(2C) In addition to the effect that this Act (other than Parts IIIA, VIIA

and X) has as provided by another subsection of this section, this

Act (other than Parts IIIA, VIIA and X) has, by force of this

subsection, the effect it would have if:

(a) the reference in paragraph 44ZZRD(2)(c) to goods or

services supplied, or likely to be supplied, were, by express

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provision, confined to goods or services supplied, or likely to

be supplied, to corporations or classes of corporations; and

(b) the reference in paragraph 44ZZRD(2)(d) to goods or

services acquired, or likely to be acquired, were, by express

provision, confined to goods or services acquired, or likely to

be acquired, from corporations or classes of corporations;

and

(c) the reference in paragraph 44ZZRD(2)(e) to goods or

services re-supplied, or likely to be re-supplied, were, by

express provision, confined to goods or services re-supplied,

or likely to be re-supplied, to corporations or classes of

corporations; and

(d) the reference in paragraph 44ZZRD(2)(f) to goods or services

likely to be re-supplied were, by express provision, confined

to goods or services likely to be re-supplied to corporations

or classes of corporations; and

(e) the following paragraphs were added at the end of

subsection 44ZZRD(2):

“; or (g) goods or services re-supplied, or likely to be re-supplied, by

corporations or classes of corporations to whom those goods

or services were supplied by any or all of the parties to the

contract, arrangement or understanding; or

(h) goods or services likely to be re-supplied by corporations or

classes of corporations to whom those goods or services are

likely to be supplied by any or all of the parties to the

contract, arrangement or understanding.”; and

(f) the reference in subparagraph 44ZZRD(3)(a)(i) to the

production, or likely production, of goods were, by express

provision, confined to the production, or likely production, of

goods for supply to corporations or classes of corporations;

and

(g) the reference in subparagraph 44ZZRD(3)(a)(ii) to the supply

of services were, by express provision, confined to the supply

of services to corporations or classes of corporations; and

(h) each reference in subparagraphs 44ZZRD(3)(a)(iii), (b)(i)

and (ii) to persons or classes of persons were, by express

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provision, confined to corporations or classes of

corporations; and

(i) the reference in subparagraph 44ZZRD(3)(b)(iii) to the

geographical areas in which goods or services are supplied,

or likely to be supplied, were, by express provision, confined

to the geographical areas in which goods or services are

supplied, or likely to be supplied, to corporations or classes

of corporations; and

(j) the reference in subparagraph 44ZZRD(3)(b)(iv) to the

geographical areas in which goods or services are acquired,

or likely to be acquired, were, by express provision, confined

to the geographical areas in which goods or services are

acquired, or likely to be acquired, from corporations or

classes of corporations; and

(k) the reference in paragraph 44ZZRD(3)(c) to the supply or

acquisition of goods or services were, by express provision,

confined to supply of goods or services to, or the acquisition

of goods or services from, corporations or classes of

corporations; and

(l) the reference in paragraph 44ZZRD(4)(e) to paragraph (2)(e)

or (f) included a reference to paragraph (2)(g) or (h); and

(m) section 44ZZRD also provided that it is immaterial whether

the identities of the corporations referred to in subsection (2)

or (3) of that section can be ascertained; and

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

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

(ii) any other provision (other than section 4, 44ZZRD,

151AE or 151AJ or this subsection or subsection (5A))

to the extent to which it relates to Division 1 of Part IV;

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

corporation.

For the purposes of this subsection, likely and production have the

same meaning as in Division 1 of Part IV.

(2D) In addition to the effect that this Act (other than Parts IIIA, VIIA

and X) has as provided by another subsection of this section, this

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Act (other than Parts IIIA, VIIA and X) has, by force of this

subsection, the effect it would have if:

(a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by

express provision, confined in their operation to engaging in

conduct to the extent to which the conduct involves the use

of, or relates to, a postal, telegraphic, telephonic or other like

service within the meaning of paragraph 51(v) of the

Constitution; and

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

(i) Division 1 of Part IV;

(ii) any other provision (other than section 4, 151AE or

151AJ or this subsection or subsection (5A)) to the

extent to which it relates to Division 1 of Part IV;

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

corporation.

(2E) In addition to the effect that this Act (other than Parts IIIA, VIIA

and X) has as provided by another subsection of this section, this

Act (other than Parts IIIA, VIIA and X) has, by force of this

subsection, the effect it would have if:

(a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by

express provision, confined in their operation to engaging in

conduct to the extent to which the conduct takes place in, or

relates to:

(i) a Territory; or

(ii) a Commonwealth place (within the meaning of the

Commonwealth Places (Application of Laws) Act 1970);

and

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

(i) Division 1 of Part IV;

(ii) any other provision (other than section 4, 151AE or

151AJ or this subsection or subsection (5A)) to the

extent to which it relates to Division 1 of Part IV;

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

corporation.

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(2F) In addition to the effect that this Act (other than Parts IIIA, VIIA

and X) has as provided by another subsection of this section, this

Act (other than Parts IIIA, VIIA and X) has, by force of this

subsection, the effect it would have if:

(a) each reference in Part IVC to a payment surcharge were a

reference to a payment surcharge charged for processing a

payment made by means of a postal, telegraphic, telephonic,

or other like service (including electronic communication);

and

(b) each reference to a corporation included a reference to a

person not being a corporation.

(3) In addition to the effect that this Act, other than Parts IIIA, VIIA

and X, has as provided by another subsection of this section, the

provisions of Parts 2-1, 2-2, 3-1 (other than Division 3), 3-3, 3-4,

4-1 (other than Division 3), 4-3, 4-4 and 5-3 of the Australian

Consumer Law have, by force of this subsection, the effect they

would have if:

(a) those provisions (other than sections 33 and 155 of the

Australian Consumer Law) were, by express provision,

confined in their operation to engaging in conduct to the

extent to which the conduct involves the use of postal,

telegraphic or telephonic services or takes place in a radio or

television broadcast; and

(b) a reference in the provisions of Part XI to a corporation

included a reference to a person not being a corporation.

(3A) In addition to the effect that this Act, other than Parts IIIA, VIIA

and X, has as provided by subsection (2), the provisions of Part 2-3

of the Australian Consumer Law have, by force of this subsection,

the effect they would have if:

(a) those provisions were, by express provision, confined in their

operation to contracts for or relating to:

(i) the use of postal, telegraphic or telephonic services; or

(ii) radio or television broadcasts; and

(b) a reference in the provisions of Part XI to a corporation

included a reference to a person not being a corporation.

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(4) In addition to the effect that this Act, other than Parts IIIA, VIIA

and X, has as provided by another subsection of this section, the

provisions of Parts 2-2, 3-1 (other than sections 30 and 33),

Part 4-1 (other than sections 152, 155 and 164) and 5-3 of the

Australian Consumer Law also have, by force of this subsection,

the effect they would have if:

(a) those provisions were, by express provision, confined in their

operation to engaging in conduct in a Territory; and

(b) a reference in those provisions to a thing done by a

corporation in trade or commerce included a reference to a

thing done in the course of the promotional activities of a

professional person.

(5) In the application of sections 279, 282 and 283 of the Australian

Consumer Law in relation to a supplier who is a natural person,

those sections have effect as if there were substituted for

paragraphs 279(3)(a), 282(2)(a) and 283(5)(a) of the Australian

Consumer Law the following paragraph:

“(a) the supplier has died or is an undischarged bankrupt or a

person whose affairs are being dealt with under Part X of the

Bankruptcy Act 1966; or”.

(5A) Despite anything in section 44ZZRF or 44ZZRG, if a body

corporate other than a corporation is convicted of an offence

against that section (as that section applies because of this section),

the offence is taken to be punishable on conviction as if the body

corporate were a corporation.

(5B) Despite anything in section 44ZZRF or 44ZZRG, if a person other

than a body corporate is convicted of an offence against that

section (as that section applies because of this section), the offence

is taken to be punishable on conviction by a term of imprisonment

not exceeding 10 years or a fine not exceeding 2,000 penalty units,

or both.

6AA Application of the Criminal Code

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

Act.

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

criminal responsibility.

(2) Despite subsection (1), Part 2.5 of the Criminal Code does not

apply to an offence against Part IIIA or XIC, Division 7 of

Part XIB, or section 44ZZRF or 44ZZRG.

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Part II—The Australian Competition and

Consumer Commission

6A Establishment of Commission

(1) The Australian Competition and Consumer Commission is

established by this section.

(1A) However, the Commission is taken, for the purposes of the finance

law (within the meaning of the Public Governance, Performance

and Accountability Act 2013):

(a) to be a non-corporate Commonwealth entity, and not to be a

corporate Commonwealth entity; and

(b) to be a part of the Commonwealth; and

(c) not to be a body corporate.

(2) The Commission:

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

(b) shall have an official seal;

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

and

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

(3) Any real or personal property held by the Commission is held for

and on behalf of the Commonwealth.

(4) Any money received by the Commission is received for and on

behalf of the Commonwealth.

(5) To avoid doubt, a right to sue is taken not to be personal property

for the purposes of subsection (3).

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Section 7

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7 Constitution of Commission

(1) The Commission shall consist of a Chairperson and such number

of other members as are from time to time appointed in accordance

with this Act.

(2) The members of the Commission shall be appointed by the

Governor-General and shall be so appointed as full-time members.

Note: A member of the Commission who is also appointed as an AER

member remains a full-time member of the Commission: see

section 44AN.

(3) Before the Governor-General appoints a person as a member of the

Commission or as Chairperson, the Minister must:

(a) be satisfied that the person qualifies for the appointment

because of the person’s knowledge of, or experience in,

industry, commerce, economics, law, public administration

or consumer protection; and

(b) consider whether the person has knowledge of, or experience

in, small business matters; and

(c) if there is at least one fully-participating jurisdiction—be

satisfied that a majority of such jurisdictions support the

appointment.

(4) At least one of the members of the Commission must be a person

who has knowledge of, or experience in, consumer protection.

8 Terms and conditions of appointment

(1) Subject to this Part, a member of the Commission holds office for

such period, not exceeding 5 years, as is specified in the instrument

of his or her appointment and on such terms and conditions as the

Governor-General determines, but is eligible for re-appointment.

8A Associate members

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

Commission.

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(1A) If there is at least one fully-participating jurisdiction, the Minister

must not appoint a person as an associate member unless the

Minister is satisfied that a majority of such jurisdictions support the

appointment.

(2) An associate member of the Commission shall be appointed for

such period not exceeding 5 years as is specified in the instrument

of his or her appointment, but is eligible for re-appointment.

(3) Subject to this Part, an associate member of the Commission holds

office on such terms and conditions as the Minister determines.

(4) The Chairperson may, by writing signed by him or her, direct that,

for the purposes of the exercise of the powers of the Commission

under this Act in relation to a specified matter, not being an

exercise of those powers by a Division of the Commission, a

specified associate member of the Commission or specified

associate members of the Commission shall be deemed to be a

member or members of the Commission and, in that case, unless

the contrary intention appears, a reference in this Act to a member

of the Commission shall, for the purposes only of the exercise of

the powers of the Commission in relation to that matter, be

construed as including a reference to that associate member of the

Commission or each of those associate members of the

Commission, as the case may be.

(5) Associate members of the Commission shall be deemed to be

members of the Commission for the purposes of section 19.

(6) For the purpose of the determination by the Commission of an

application for an authorization or a clearance, or the making by

the Commission of any decision for the purposes of

subsection 93(3) or (3A) or 93AC(1) or (2), the Chairperson shall

consider:

(a) whether he or she should give a direction under

subsection (4) of this section; or

(b) in the case of a matter in relation to which the Chairperson

proposes to give a direction under subsection 19(1), whether

he or she should direct that the Division concerned is to

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include an associate member of the Commission or associate

members of the Commission.

(7) Nothing in subsection (4) or (5) deems an associate member of the

Commission to be a member of the Commission for any purpose

related to the preparation of a report by the Commission under

section 171.

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

(1) A State/Territory AER member is taken to be an associate member

of the Commission during the period for which he or she is an

AER member.

Note: A State/Territory AER member who is taken to be an associate

member of the Commission can still be appointed as an associate

member under section 8A.

(2) However, a State/Territory AER member who is taken to be an

associate member under subsection (1), is not taken to be an

associate member for the purposes of sections 8A, 9, 14, 15 and 17.

(3) As an associate member, the State/Territory AER member holds

office on such terms and conditions as are specified in the

instrument of his or her appointment under section 44AP.

9 Remuneration

(1) A member of the Commission shall be paid such remuneration as

is determined by the Remuneration Tribunal, but, until that

remuneration is so determined, he or she shall be paid such

remuneration as is prescribed.

(2) Subject to the Remuneration Tribunal Act 1973, a member of the

Commission shall be paid such allowances as are prescribed.

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

member of the Commission.

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10 Deputy Chairpersons

(1) The Governor-General may appoint a person who is, or is to be, a

member of the Commission to be a Deputy Chairperson of the

Commission.

(1A) If there is at least one fully-participating jurisdiction, the

Governor-General must not appoint a person as a Deputy

Chairperson unless the Governor-General is satisfied that a

majority of such jurisdictions support the appointment.

(1B) Before the Governor-General appoints a person as a Deputy

Chairperson, the Minister must be satisfied that, immediately after

the appointment, there will be at least one Deputy Chairperson who

has knowledge of, or experience in, small business matters.

(2) A person appointed under this section holds office as Deputy

Chairperson until the expiration of his or her period of appointment

as a member of the Commission or until he or she sooner ceases to

be a member of the Commission.

(3) Where a member of the Commission appointed as Deputy

Chairperson is, upon ceasing to be a Deputy Chairperson by virtue

of the expiration of the period of his or her appointment as a

member, re-appointed as a member, he or she is eligible for

re-appointment as Deputy Chairperson.

(4) A Deputy Chairperson may resign his or her office of Deputy

Chairperson by writing signed by him or her and delivered to the

Governor-General.

(5) Not more than 2 persons may hold office as Deputy Chairperson at

any one time.

11 Acting Chairperson

(1) Where there is, or is expected to be, a vacancy in the office of

Chairperson, the Governor-General may appoint a person to act as

Chairperson until the filling of the vacancy.

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Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

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

(a) if there are 2 Deputy Chairpersons available to act as

Chairperson, the Minister may appoint 1 of them to act as

Chairperson during the absence of the Chairperson; or

(b) if there is only 1 Deputy Chairperson available to act as

Chairperson, that Deputy Chairperson is to act as

Chairperson during the absence of the Chairperson; or

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

Chairpersons are available to act as Chairperson, the Minister

may appoint a member of the Commission to act as

Chairperson during the absence of the Chairperson, but any

such appointment ceases to have effect if a person is

appointed as a Deputy Chairperson or a Deputy Chairperson

becomes available to act as Chairperson.

Note: For rules that apply to persons acting as the Chairperson, see

section 33A of the Acts Interpretation Act 1901.

(3) A person acting as Chairperson shall act in that capacity on such

terms and conditions as the Governor-General determines and has

all the powers and duties, and shall perform all the functions,

conferred on the Chairperson by this Act.

12 Leave of absence

(1) A member of the Commission has such recreation leave

entitlements as are determined by the Remuneration Tribunal.

(2) The Minister may grant a member of the Commission leave of

absence, other than recreation leave, on such terms and conditions

as to remuneration or otherwise as the Minister determines.

13 Termination of appointment of members of the Commission

(1) The Governor-General may terminate the appointment of a

member of the Commission for misbehaviour or physical or mental

incapacity.

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(2) If a member of the Commission:

(a) becomes bankrupt, applies to take the benefit of any law for

the relief of bankrupt or insolvent debtors, compounds with

his or her creditors or makes an assignment of his or her

remuneration for their benefit;

(b) fails to comply with his or her obligations under section 17;

(c) without the consent of the Minister engages in any paid

employment outside the duties of his or her office; or

(d) is absent from duty, except on leave of absence, for 14

consecutive days or for 28 days in any 12 months;

the Governor-General shall terminate the appointment of that

member of the Commission.

14 Termination of appointment of associate members of the

Commission

(1) The Minister may terminate the appointment of an associate

member of the Commission for misbehaviour or physical or mental

incapacity.

(2) If an associate member of the Commission:

(a) becomes bankrupt, applies to take the benefit of any law for

the relief of bankrupt or insolvent debtors, compounds with

his or her creditors or makes an assignment of his or her

remuneration for their benefit; or

(b) fails to comply with his or her obligations under section 17;

the Minister shall terminate the appointment of that associate

member of the Commission.

15 Resignation

(1) A member of the Commission may resign his or her office by

writing signed by him or her and delivered to the

Governor-General.

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(2) An associate member of the Commission may resign his or her

office by writing signed by him or her and delivered to the

Minister.

16 Arrangement of business

The Chairperson may give directions as to the arrangement of the

business of the Commission.

17 Disclosure of interests by members

(1) Where a member of the Commission other than the Chairperson is

taking part, or is to take part, in the determination of a matter

before the Commission and the member has or acquires any

pecuniary interest that could conflict with the proper performance

of his or her functions in relation to the determination of the

matter:

(a) the member shall disclose the interest to the Chairperson; and

(b) the member shall not take part, or continue to take part, in the

determination of the matter if:

(i) the Chairperson gives a direction under paragraph (2)(a)

in relation to the matter; or

(ii) all of the persons concerned in the matter do not consent

to the member taking part in the determination of the

matter.

(2) Where the Chairperson becomes aware that a member of the

Commission is taking part, or is to take part, in the determination

of a matter and that the member has in relation to the determination

of the matter such an interest:

(a) if the Chairperson considers that the member should not take

part, or should not continue to take part, in the determination

of the matter—the Chairperson shall give a direction to the

member accordingly; or

(b) in any other case—the Chairperson shall cause the interest of

the member to be disclosed to the persons concerned in the

matter.

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(3) The Chairperson shall give written notice to the Minister of all

pecuniary interests that the Chairperson has or acquires in any

business carried on in Australia or in any body corporate carrying

on any such business.

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

member of the Commission.

18 Meetings of Commission

(1) Subject to this section, the Chairperson shall convene such

meetings of the Commission as he or she thinks necessary for the

efficient performance of the functions of the Commission.

(2) Meetings of the Commission shall be held at such places as the

Chairperson determines.

(3) The Chairperson shall preside at all meetings of the Commission at

which he or she is present.

(4) In the absence of the Chairperson from a meeting of the

Commission:

(a) if there are 2 Deputy Chairpersons available to preside at the

meeting—the Chairperson may nominate 1 of them to

preside at the meeting; or

(b) if there is only 1 Deputy Chairperson available to preside at

the meeting—that Deputy Chairperson is to preside at the

meeting.

(5) Subject to this Act and the regulations, the member presiding at a

meeting of the Commission may give directions regarding the

procedure to be followed at or in connexion with the meeting.

(6) At a meeting of the Commission:

(a) three members (including the Chairperson or a Deputy

Chairperson) form a quorum;

(b) all questions shall be decided by a majority of votes of the

members present and voting; and

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(c) the member presiding has a deliberative vote and, in the

event of an equality of votes, also has a casting vote.

(7) If the Commission so determines, a member or members may

participate in, and form part of a quorum at, a meeting of the

Commission or a Division of the Commission by means of any of

the following methods of communication:

(a) telephone;

(b) closed circuit television;

(c) another method of communication determined by the

Commission.

(8) A determination made by the Commission under subsection (7)

may be made in respect of a particular meeting or meetings of the

Commission or a Division of the Commission or in respect of all

meetings of the Commission or a Division of the Commission.

19 Chairperson may direct Commission to sit in Divisions

(1) The Chairperson may, by writing signed by him or her, direct that

the powers of the Commission under this Act in relation to a matter

shall be exercised by a Division of the Commission constituted by

the Chairperson and such other members (not being less than two

in number) as are specified in the direction.

(2) Where the Chairperson has given a direction under subsection (1),

he or she may, by writing signed by him or her, at any time before

the Division of the Commission specified in the direction has made

a determination in relation to the matter, revoke the direction or

amend the direction in relation to the membership of the Division

or in any other respect, and where the membership of a Division of

the Commission is changed, the Division as constituted after the

change may complete the determination of the matter.

(3) For the purposes of the determination of a matter specified in a

direction given under subsection (1), the Commission shall be

deemed to consist of the Division of the Commission specified in

the direction.

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(4) The Chairperson is not required to attend a meeting of a Division

of the Commission if he or she does not think fit to do so.

(5) At a meeting of a Division of the Commission at which neither the

Chairperson nor a Deputy Chairperson is presiding, a member of

the Commission nominated for the purpose by the Chairperson

shall preside.

(6) Notwithstanding section 18, at a meeting of a Division of the

Commission, two members form a quorum.

(7) A Division of the Commission may exercise powers of the

Commission under this Act notwithstanding that another Division

of the Commission is exercising powers of the Commission at the

same time.

25 Delegation by Commission

(1) The Commission may, by resolution, delegate to a member of the

Commission, either generally or otherwise as provided by the

instrument of delegation, any of its powers under this Act (other

than Part VIIA or section 152ELA), Procedural Rules under

Part XIC, the Telecommunications Act 1997, the

Telecommunications (Consumer Protection and Service Standards)

Act 1999, the Water Act 2007, Rules of Conduct under Part 20 of

the Telecommunications Act 1997, the National Broadband

Network Companies Act 2011, regulations under the National

Broadband Network Companies Act 2011, or the Australian Postal

Corporation Act 1989, other than this power of delegation and its

powers to grant, revoke or vary an authorization or a clearance.

Note: Section 95ZD allows the Commission to delegate certain powers

under Part VIIA to a member of the Commission.

(2) A power so delegated may be exercised or performed by the

delegate in accordance with the instrument of delegation.

(3) A delegation under this section is revocable at will and does not

prevent the exercise of a power by the Commission.

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26 Delegation by Commission of certain functions and powers

(1) The Commission may, by resolution, delegate:

(a) any of its functions and powers under or in relation to Parts

VI and XI and the Australian Consumer Law; and

(b) any of its powers under Part XII that relate to those Parts or

the Australian Consumer Law;

to a staff member of the Australian Securities and Investments

Commission within the meaning of section 5 of the Australian

Securities and Investments Commission Act 2001.

(2) The Commission must not delegate a function or power under

subsection (1) unless the Chairperson of the Australian Securities

and Investments Commission has agreed to the delegation in

writing.

27 Staff of Commission

(1) The staff necessary to assist the Commission shall be persons

engaged under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the Chairperson of the Commission and the APS employees

assisting the Chairperson together constitute a Statutory

Agency; and

(b) the Chairperson is the Head of that Statutory Agency.

27A Consultants

(1) On behalf of the Commonwealth, the Commission may engage

persons to give advice to, and perform services for, the

Commission.

(2) The terms and conditions of engagement are as determined by the

Commission.

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28 Functions of Commission in relation to dissemination of

information, law reform and research

(1) In addition to any other functions conferred on the Commission,

the Commission has the following functions:

(a) to make available to persons engaged in trade or commerce

and other interested persons general information for their

guidance with respect to the carrying out of the functions, or

the exercise of the powers, of the Commission under this

Act;

(b) to examine critically, and report to the Minister on, the laws

in force in Australia relating to the protection of consumers

in respect of matters referred to the Commission by the

Minister, being matters with respect to which the Parliament

has power to make laws;

(c) to conduct research in relation to matters affecting the

interests of consumers, being matters with respect to which

the Parliament has power to make laws;

(ca) to conduct research and undertake studies on matters that are

referred to the Commission by the Council and that relate to

the Commission’s other functions;

(d) to make available to the public general information in

relation to matters affecting the interests of consumers, being

matters with respect to which the Parliament has power to

make laws;

(e) to make known for the guidance of consumers the rights and

obligations of persons under provisions of laws in force in

Australia that are designed to protect the interests of

consumers.

(2) Where a matter of a kind mentioned in paragraph (1)(b) is referred

by the Minister to the Commission for examination and report:

(a) the Commission shall cause to be published in the Gazette

and in such newspapers and other journals as the

Commission considers appropriate a notice:

(i) stating that the reference has been made and specifying

the matter to which the reference relates; and

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(ii) inviting interested persons to furnish to the Commission

their views on that matter and specifying the time and

manner within which those views are to be furnished;

(b) the Commission shall not furnish its report to the Minister

until a reasonable opportunity has been given to interested

persons to furnish to the Commission their views on the

matter to which the reference relates; and

(c) the Commission shall include in its report to the Minister any

recommendations that it considers desirable with respect to

the reform of the law relating to the matter to which the

reference relates, whether those recommendations relate to

the amendment of existing laws or the making of new laws.

(3) The Minister shall cause a copy of each report furnished to him or

her by the Commission in relation to a matter referred to the

Commission under paragraph (1)(b) to be laid before each House

of the Parliament as soon as practicable after the report is received

by him or her.

29 Commission to comply with directions of Minister and

requirements of the Parliament

(1) The Minister may give the Commission directions connected with

the performance of its functions or the exercise of its powers under

this Act.

(1A) The Minister must not give directions under subsection (1) relating

to:

(a) Part IIIA, IV, VII, VIIA, X, XIB or XIC; or

(b) Division 3 of Part XI in relation to individual cases.

(1B) The Commission must comply with a direction.

(2) Any direction given to the Commission under subsection (1) shall

be in writing and the Minister shall cause a copy of the direction to

be published in the Gazette as soon as practicable after the

direction is given.

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(3) If either House of the Parliament or a Committee of either House,

or of both Houses, of the Parliament requires the Commission to

furnish to that House or Committee any information concerning the

performance of the functions of the Commission under this Act,

the Commission shall comply with the requirement.

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Section 29A

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Part IIA—The National Competition Council

29A Establishment of Council

The National Competition Council is established by this section.

29B Functions and powers of Council

(1) The Council’s functions include:

(a) carrying out research into matters referred to the Council by

the Minister; and

(b) providing advice on matters referred to the Council by the

Minister.

(2) The Council may:

(a) perform any function conferred on it by a law of the

Commonwealth, or of a State or Territory; and

(b) exercise any power:

(i) conferred by that law to facilitate the performance of

that function; or

(ii) necessary or convenient to permit the performance of

that function.

(2A) The Council must not, under subsection (2):

(a) perform a function conferred on it by a law of a State or

Territory; or

(b) exercise a power that is so conferred;

unless the conferral of the function or power is in accordance with

the Competition Principles Agreement.

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

Note: Section 29BA provides that a State/Territory energy law may confer

functions or powers, or impose duties, on the Council.

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(3) In performing its functions, the Council may co-operate with a

department, body or authority of the Commonwealth, of a State or

of a Territory.

29BA Commonwealth consent to conferral of functions etc. on

Council

(1) A State/Territory energy law may confer functions or powers, or

impose duties, on the Council for the purposes of that law.

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

Council.

(2) Subsection (1) does not authorise the conferral of a function or

power, or the imposition of a duty, by a State/Territory energy law

to the extent to which:

(a) the conferral or imposition, or the authorisation, would

contravene any constitutional doctrines restricting the duties

that may be imposed on the Council; or

(b) the authorisation would otherwise exceed the legislative

power of the Commonwealth.

(3) The Council cannot perform a duty or function, or exercise a

power, under a State/Territory energy law unless the conferral of

the function or power, or the imposition of the duty, is in

accordance with an agreement between the Commonwealth and the

State or Territory concerned.

29BB How duty is imposed

Application

(1) This section applies if a State/Territory energy law purports to

impose a duty on the Council.

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

Council.

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State or Territory legislative power sufficient to support duty

(2) The duty is taken not to be imposed by this Part (or any other law

of the Commonwealth) to the extent to which:

(a) imposing the duty is within the legislative powers of the State

or Territory concerned; and

(b) imposing the duty by the law of the State or Territory is

consistent with the constitutional doctrines restricting the

duties that may be imposed on the Council.

Note: If this subsection applies, the duty will be taken to be imposed by

force of the law of the State or Territory (the Commonwealth having

consented under section 29BA to the imposition of the duty by that

law).

Commonwealth legislative power sufficient to support duty but

State or Territory legislative powers are not

(3) If, to ensure the validity of the purported imposition of the duty, it

is necessary that the duty be imposed by a law of the

Commonwealth (rather than by the law of the State or Territory),

the duty is taken to be imposed by this Part to the extent necessary

to ensure that validity.

(4) If, because of subsection (3), this Part is taken to impose the duty,

it is the intention of the Parliament to rely on all powers available

to it under the Constitution to support the imposition of the duty by

this Part.

(5) The duty is taken to be imposed by this Part in accordance with

subsection (3) only to the extent to which imposing the duty:

(a) is within the legislative powers of the Commonwealth; and

(b) is consistent with the constitutional doctrines restricting the

duties that may be imposed on the Council.

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

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

For the purposes of sections 29BA and 29BB, a State/Territory

energy law imposes a duty on the Council if:

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

(b) the circumstances in which the function or power is

conferred give rise to an obligation on the Council to perform

the function or to exercise the power.

29C Membership of Council

(1) The Council consists of the Council President and up to 4 other

Councillors.

(2) Each Councillor is to be appointed by the Governor-General, for a

term of up to 5 years.

(3) The Governor-General must not appoint a person as a Councillor

or Council President unless the Governor-General is satisfied that:

(a) the person qualifies for the appointment because of the

person’s knowledge of, or experience in, industry,

commerce, economics, law, consumer protection or public

administration; and

(b) a majority of the States and Territories that are parties to the

Competition Principles Agreement support the appointment.

29D Terms and conditions of office

(1) A Councillor may be appointed to hold office on either a full-time

or a part-time basis.

(2) A Councillor holds office on such terms and conditions (if any) in

respect of matters not provided for by this Act as the

Governor-General determines.

29E Acting Council President

The Minister may appoint a Councillor to act as the Council

President:

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(a) if there is a vacancy in the office of Council President,

whether or not an appointment has previously been made to

the office; or

(b) during any period, or during all periods, when the Council

President is absent from duty or absent from Australia or is,

for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

29F Remuneration of Councillors

(1) A Councillor is to be paid the remuneration that is determined by

the Remuneration Tribunal. If no determination of the

Remuneration Tribunal is in operation, the Councillor is to be paid

the remuneration that is prescribed.

(2) A Councillor is to be paid such allowances as are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

29G Leave of absence

(1) A full-time Councillor has such recreation leave entitlements as are

determined by the Remuneration Tribunal.

(2) The Minister may grant a full-time Councillor leave of absence,

other than recreation leave, on such terms and conditions as the

Minister determines. The terms and conditions may include terms

and conditions relating to remuneration.

29H Termination of appointment of Councillors

(1) The Governor-General may terminate the appointment of a

Councillor for misbehaviour or for physical or mental incapacity.

(2) The Governor-General must terminate the appointment of a

Councillor who:

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(a) becomes bankrupt, applies to take the benefit of any law for

the relief of bankrupt or insolvent debtors, compounds with

his or her creditors or makes an assignment of his or her

remuneration for their benefit;

(b) fails to comply with his or her obligations under section 29K;

(c) in the case of a full-time Councillor—engages in any paid

employment outside the duties of the Councillor’s office

without the consent of the Minister;

(d) in the case of a full-time Councillor—is absent from duty,

except on leave of absence, for 14 consecutive days or for 28

days in any 12 months.

29I Resignation of Councillors

A Councillor may resign by giving the Governor-General a signed

resignation notice.

29J Arrangement of Council business

(1) Subject to subsection (2), the Council President may give

directions about the arrangement of the Council’s business.

(2) The Council must not carry out any work (other than work relating

to a function under Part IIIA or VIIA) except in accordance with a

program agreed to by:

(a) a majority of the parties to the Competition Principles

Agreement; or

(b) if the parties to the Agreement are evenly divided on the

question of agreeing to a program—the Commonwealth.

29K Disclosure of interests by Councillors

(1) If a Councillor (except the Council President) is taking part, or is to

take part, in the Council’s consideration of a matter and the

Councillor has or acquires any pecuniary interest that could

conflict with the proper performance of his or her functions

relating to the matter:

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(a) the Councillor must disclose the interest to the Council

President; and

(b) the Councillor must not take part, or continue to take part, in

the consideration of the matter if:

(i) all of the persons concerned in the matter do not consent

to the Councillor taking part in the consideration of the

matter; or

(ii) the Council President gives a direction to the member

under paragraph (2)(b).

(2) If the Council President becomes aware that a Councillor is taking

part, or is to take part, in the Council’s consideration of a matter

and that the Councillor has such an interest relating to the matter:

(a) the Council President must cause the Councillor’s interest to

be disclosed to the persons concerned in the matter; or

(b) if the Council President considers that the Councillor should

not take part or continue to take part in the consideration of

the matter—the Council President must direct the Councillor

accordingly.

(3) The Council President must give the Minister written notice of all

pecuniary interests that the Council President has or acquires in

any business carried on in Australia or in any body corporate

carrying on such business.

29L Council meetings

(1) The Council President must convene the meetings that the Council

President thinks are necessary to perform the Council’s functions

efficiently.

(2) The meetings must be held in places determined by the Council

President.

(3) The Council President must preside at any meeting that he or she

attends.

(4) If the Council President is absent from a meeting, a Councillor

chosen by the Councillors at the meeting must preside.

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(5) The Councillor presiding at a meeting may give directions on the

procedure to be followed in relation to the meeting.

(6) The quorum for a meeting is 3 Councillors (including the Council

President).

(7) At a meeting, a question must be decided by a majority of votes of

the Councillors present and voting. The Councillor presiding has a

deliberative vote, and a casting vote if the deliberative votes are

equally divided.

29LA Resolutions without meetings

(1) If all Councillors (other than those that must not sign a document

because of subsection (3)) sign a document containing a statement

that they are in favour of a resolution in terms set out in the

document, then a resolution in those terms is taken to have been

passed at a duly constituted meeting of the Council held on the day

the document was signed, or, if the members sign the document on

different days, on the last of those days.

(2) For the purposes of subsection (1), 2 or more separate documents

containing statements in identical terms each of which is signed by

one or more Councillors are together taken to constitute one

document containing a statement in those terms signed by those

Councillors on the respective days on which they signed the

separate documents.

(3) A Councillor must not sign a document containing a statement in

favour of a resolution if the resolution concerns a matter in which

the Councillor has any pecuniary interest, being an interest that

could conflict with the proper performance of the Councillor’s

functions in relation to any matter.

29M Staff to help Council

(1) The staff needed to help the Council are to be persons engaged

under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

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(a) the Council President and the APS employees assisting the

Council President together constitute a Statutory Agency;

and

(b) the Council President is the Head of that Statutory Agency.

29N Consultants

(1) On behalf of the Commonwealth, the Council may engage persons

to give advice to, and perform services for, the Council.

(2) The terms and conditions of engagement are as determined by the

Council.

29O Annual report

(1) Within 60 days after the end of each financial year, the Councillors

must give a report on the Council’s operations during that year to

the Minister for presentation to the Parliament.

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

(a) the time taken by the Council to make a recommendation on

any application under section 44F, 44M or 44NA (about

access regime applications under Part IIIA);

(b) any court or Tribunal decision interpreting:

(i) paragraph (f) of the definition of service in section 44B

(which is an exclusion to do with production processes);

or

(ii) any of the matters mentioned in subsection 44H(4)

(about matters relevant to declaring services under

Part IIIA);

(c) any matter the Council considers has impeded the operation

of Part IIIA from delivering efficient access outcomes;

(d) any evidence of the benefits arising from determinations of

the Commission under section 44V (about arbitration

determinations under Part IIIA);

(e) any evidence of the costs of, or the disincentives for,

investment in the infrastructure by which declared services

(within the meaning of Part IIIA) are provided;

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

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29P Definition

In this Part, unless the contrary intention appears:

proceedings includes:

(a) applications made to the Tribunal under Subdivision C of

Division 3 of Part VII; and

(b) applications made to the Tribunal under section 111 (about

review of the Commission’s decisions on merger clearances).

30 Constitution of Tribunal

(1) The Trade Practices Tribunal that existed immediately before this

subsection commenced continues to exist as the Australian

Competition Tribunal.

(2) The Tribunal so continued in existence shall consist of a President

and such number of Deputy Presidents and other members as are

appointed in accordance with this section.

(3) A member of the Tribunal shall be appointed by the

Governor-General.

31 Qualifications of members of Tribunal

(1) A person shall not be appointed as a presidential member of the

Tribunal unless he or she is a Judge of a Federal Court, not being

the High Court or a court of an external Territory.

(2) A person shall not be appointed as a member of the Tribunal other

than a presidential member unless he or she appears to the

Governor-General to be qualified for appointment by virtue of his

or her knowledge of, or experience in, industry, commerce,

economics, law or public administration.

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31A Appointment of Judge as presidential member of Tribunal not

to affect tenure etc.

The appointment of a Judge of a Federal Court as a presidential

member of the Tribunal, or service by a Judge of a Federal Court

as a presidential member of the Tribunal, whether the appointment

was or is made or the service occurred or occurs before or after the

commencement of this section, does not affect, and shall be

deemed never to have affected, his or her tenure of office as a

Judge of a Federal Court or his or her rank, title, status,

precedence, salary, annual or other allowances or other rights or

privileges as the holder of his or her office as a Judge of a Federal

Court and, for all purposes, his or her service, whether before or

after the commencement of this section, as a presidential member

of the Tribunal shall be taken to have been, or to be, service as the

holder of his or her office as a Judge of a Federal Court.

32 Terms and conditions of appointment

Subject to this Part, a member of the Tribunal holds office for such

period, not exceeding 7 years, as is specified in the instrument of

his or her appointment and on such terms and conditions as the

Governor-General determines, but is eligible for re-appointment.

33 Remuneration and allowances of members of Tribunal

(4) A member of the Tribunal other than a presidential member shall

be paid such remuneration as is determined by the Remuneration

Tribunal.

(5) A member of the Tribunal other than a presidential member shall

be paid such allowances as are prescribed.

(6) Subsections (4) and (5) have effect subject to the Remuneration

Tribunal Act 1973.

34 Acting appointments

(1) Where:

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(a) the President is, or is expected to be, absent from duty; or

(b) there is, or is expected to be, a vacancy in the office of

President;

the Minister may appoint a Deputy President or an acting Deputy

President to act as President during the absence, or while there is a

vacancy in the office of President, as the case may be.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

(2) Where a presidential member (including the President) of the

Tribunal is, or is expected to be, absent from duty, the

Governor-General may appoint a person qualified to be appointed

as a presidential member to act as a Deputy President during the

absence from duty of the member.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

(3) Where a member of the Tribunal other than a presidential member

is, or is expected to be, absent from duty, the Governor-General

may appoint a person qualified to be appointed as a member of the

Tribunal other than a presidential member to act as such a member

during the absence from duty of the member.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

(4) Where a person has been appointed under subsection (2) or (3), the

Governor-General may, by reason of pending proceedings or other

special circumstances, direct, before the absent member of the

Tribunal resumes duty, that the person so appointed shall continue

to act under the appointment after the resumption of duty by the

absent member until the Governor-General terminates the

appointment, but a person shall not continue to act as a member of

the Tribunal by virtue of this subsection for more than 12 months

after the resumption of duty by the absent member.

(5) Where a person has been appointed under this section to act as a

member of the Tribunal during the absence from duty of a member

of the Tribunal, and that member ceases to hold office without

having resumed duty, the period of appointment of the person so

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appointed shall be deemed to continue until it is terminated by the

Governor-General, or until the expiration of 12 months from the

date on which the absent member ceases to hold office, whichever

first happens.

35 Suspension and removal of members of Tribunal

(1) The Governor-General may suspend a member of the Tribunal

from office on the ground of misbehaviour or physical or mental

incapacity.

(2) The Minister shall cause a statement of the ground of the

suspension to be laid before each House of the Parliament within 7

sitting days of the House after the suspension.

(3) Where such a statement has been laid before a House of the

Parliament, that House may, within 15 sitting days of that House

after the day on which the statement has been laid before it, by

resolution, declare that the member of the Tribunal should be

restored to office and, if each House so passes a resolution, the

Governor-General shall terminate the suspension.

(4) If, at the expiration of 15 sitting days of a House of the Parliament

after the day on which the statement has been laid before that

House, that House has not passed such a resolution, the

Governor-General may remove the member of the Tribunal from

office.

(5) If a member of the Tribunal becomes bankrupt, applies to take the

benefit of any law for the relief of bankrupt or insolvent debtors,

compounds with his or her creditors or makes an assignment of his

or her remuneration for their benefit, the Governor-General shall

remove him or her from office.

(6) A member of the Tribunal shall not be removed from office except

as provided by this section.

(7) A presidential member of the Tribunal ceases to hold office if he or

she no longer holds office as a Judge of a Federal Court, not being

the High Court or a court of an external Territory.

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36 Resignation

A member of the Tribunal may resign his or her office by writing

signed by him or her and delivered to the Governor-General.

37 Constitution of Tribunal for particular matters

The Tribunal shall, for the purpose of hearing and determining

proceedings, be constituted by a Division of the Tribunal

consisting of a presidential member of the Tribunal and two

members of the Tribunal who are not presidential members.

38 Validity of determinations

The validity of a determination of the Tribunal shall not be affected

or called in question by reason of any defect or irregularity in the

constitution of the Tribunal.

39 President may give directions

(1) The President may give directions as to the arrangement of the

business of the Tribunal and the constitution of Divisions of the

Tribunal.

(2) The President may give directions to the Deputy Presidents in

relation to the exercise by the Deputy Presidents of powers with

respect to matters of procedure in proceedings before the Tribunal.

Note: Subsection 103(2) provides that any presidential member may

exercise powers with respect to matters of procedure in proceedings

before the Tribunal.

40 Disclosure of interests by members of Tribunal

(1) Where a member of the Tribunal is, or is to be, a member of a

Division of the Tribunal in any proceedings and the member has or

acquires any pecuniary interest that could conflict with the proper

performance of his or her functions in relation to the proceedings:

(a) the member shall disclose the interest to the President; and

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(b) the member shall not take part, or continue to take part, in the

proceedings if:

(i) the President gives a direction under paragraph (2)(a) in

relation to the proceedings; or

(ii) all of the persons concerned in the proceedings do not

consent to the member taking part in the proceedings.

(2) Where the President becomes aware that a member of the Tribunal

is, or is to be, a member of a Division of the Tribunal in any

proceedings and that the member has in relation to the proceedings

such an interest:

(a) if the President considers that the member should not take

part, or should not continue to take part, in the proceedings—

the President shall give a direction to the member

accordingly; or

(b) in any other case—the President shall cause the interest of

the member to be disclosed to the persons concerned in the

proceedings.

41 Presidential member to preside

The presidential member who is a member of a Division shall

preside at proceedings of that Division.

42 Decision of questions

(1) A question of law arising in a matter before a Division of the

Tribunal (including the question whether a particular question is

one of law) shall be determined in accordance with the opinion of

the presidential member presiding.

(2) Subject to subsection (1), a question arising in proceedings before

a Division of the Tribunal shall be determined in accordance with

the opinion of a majority of the members constituting the Division.

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43 Member of Tribunal ceasing to be available

(1) This section applies where the hearing of any proceedings has been

commenced or completed by the Tribunal but, before the matter to

which the proceedings relate has been determined, one of the

members constituting the Tribunal for the purposes of the

proceedings has ceased to be a member of the Tribunal or has

ceased to be available for the purposes of the proceedings.

(2) Where the President is satisfied that this section applies in relation

to proceedings, the President may direct that a specified member of

the Tribunal shall take the place of the member referred to in

subsection (1) for the purposes of the proceedings.

(3) Where this section applies in relation to proceedings that were

being dealt with before the Tribunal, the President may, instead of

giving a direction under subsection (2), direct that the hearing and

determination, or the determination, of the proceedings be

completed by the Tribunal constituted by the members other than

the member referred to in subsection (1).

(4) Where the President has given a direction under subsection (3), he

or she may, at any time before the determination of the

proceedings, direct that a third member be added to the Tribunal as

constituted in accordance with subsection (3).

(5) The Tribunal as constituted in accordance with any of the

provisions of this section for the purposes of any proceedings may

have regard to any record of the proceedings before the Tribunal as

previously constituted.

43A Counsel assisting Tribunal

(1) The President may, on behalf of the Commonwealth, appoint a

legal practitioner to assist the Tribunal as counsel, either generally

or in relation to a particular matter or matters.

(2) In this section:

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legal practitioner means a legal practitioner (however described)

of the High Court or of the Supreme Court of a State or Territory.

43B Consultants

The Registrar may, on behalf of the Commonwealth, engage

persons as consultants to, or to perform services for, the Tribunal.

44 Staff of Tribunal

(1) There shall be a Registrar of the Tribunal and such Deputy

Registrars of the Tribunal as are appointed in accordance with this

section.

(2) The Registrar and the Deputy Registrars shall be appointed by the

Minister and shall have such duties and functions as are provided

by this Act and the regulations and such other duties and functions

as the President directs.

(3) The Registrar and the Deputy Registrars, and the staff necessary to

assist them, shall be persons engaged under the Public Service Act

1999.

44A Acting appointments

The Minister may appoint a person who is engaged under the

Public Service Act 1999 to act as the Registrar or as a Deputy

Registrar during any period, or during all periods, when:

(a) the Registrar or that Deputy Registrar, as the case may be, is

absent from duty or from Australia or is, for any other

reason, unable to perform the duties and functions of his or

her office; or

(b) there is a vacancy in the office of Registrar or in that office of

Deputy Registrar, as the case may be.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

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Division 1 Preliminary

Section 44AB

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(AER)

Division 1—Preliminary

44AB Definitions

In this Part, unless the contrary intention appears:

Australian Energy Market Agreement means the agreement, as

amended from time to time:

(a) that relates to energy; and

(b) that is between the Commonwealth, all of the States, the

Australian Capital Territory and the Northern Territory; and

(c) that is first made in 2004; and

(d) that agrees to the establishment of the AER and the AEMC.

Commonwealth AER member means the member referred to in

section 44AM.

full-time AER member means an AER member appointed on a

full-time basis.

part-time AER member means an AER member appointed on a

part-time basis.

44AC This Part binds the Crown

This Part binds the Crown in each of its capacities.

44AD Extra-territorial operation

It is the intention of the Parliament that the operation of this Part

should, as far as possible, include operation in relation to the

following:

(a) things situated in or outside Australia;

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(b) acts, transactions and matters done, entered into or occurring

in or outside Australia;

(c) things, acts, transactions and matters (wherever situated,

done, entered into or occurring) that would, apart from this

Act, be governed or otherwise affected by the law of a State,

a Territory or a foreign country.

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Section 44AE

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Division 2—Establishment of the AER

44AE Establishment of the AER

(1) The Australian Energy Regulator (the AER) is established by this

section.

(2) The AER:

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

(b) must have a common seal; and

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

and

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

(3) However, the AER is taken, for the purposes of the finance law

(within the meaning of the Public Governance, Performance and

Accountability Act 2013):

(a) not to be a corporate Commonwealth entity; and

(b) to be a part of the Commonwealth, and a part of the

Commission; and

(c) not to be a body corporate.

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

Commonwealth

The AER holds any money or property for and on behalf of the

Commonwealth.

44AG Constitution of the AER

The AER consists of:

(a) a Commonwealth AER member, appointed in accordance

with section 44AM; and

(b) 2 State/Territory AER members, appointed in accordance

with section 44AP.

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44AH Commonwealth functions

The AER has any functions:

(a) conferred under a law of the Commonwealth; or

(b) prescribed by regulations made under this Act.

Note: The AER may have functions under the Australian Energy Market Act

2004.

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

General rule

(1) A State/Territory energy law or a local energy instrument may

confer functions or powers, or impose duties, on the AER for the

purposes of that law or instrument.

Note: Section 44AK sets out when such a law or instrument imposes a duty

on the AER.

(2) Subsection (1) does not authorise the conferral of a function or

power, or the imposition of a duty, by a State/Territory energy law

or local energy instrument to the extent to which:

(a) the conferral or imposition, or the authorisation, would

contravene any constitutional doctrines restricting the duties

that may be imposed on the AER; or

(b) the authorisation would otherwise exceed the legislative

power of the Commonwealth.

(3) The AER cannot perform a duty or function, or exercise a power,

under a State/Territory energy law or local energy instrument

unless the conferral of the function or power, or the imposition of

the duty, is in accordance with the Australian Energy Market

Agreement, or any other relevant agreement between the

Commonwealth and the State or Territory concerned.

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(4) A local energy instrument may confer functions or powers, or

impose duties, on the AER only if the instrument is designated for

the purposes of this subsection under the Australian Energy Market

Agreement, or any other relevant agreement between the

Commonwealth and the State or Territory that made the

instrument.

(5) To avoid doubt, if a State/Territory energy law is also a local

energy instrument, subsection (4) applies to the law.

44AJ How duty is imposed

Application

(1) This section applies if a State/Territory energy law or local energy

instrument purports to impose a duty on the AER.

Note 1: Section 44AK sets out when such a law or instrument imposes a duty

on the AER.

Note 2: Section 320 of the South Australian Energy Retail Legislation, as it

applies as a law of a State or Territory, deals with the case where a

duty purportedly imposed on a Commonwealth body under that

applied law cannot be imposed by the State or Territory or the

Commonwealth due to constitutional doctrines restricting such duties.

State or Territory legislative power sufficient to support duty

(2) The duty is taken not to be imposed by this Part (or any other law

of the Commonwealth) to the extent to which:

(a) imposing the duty is within the legislative powers of the State

or Territory concerned; and

(b) imposing the duty by the law or instrument of the State or

Territory is consistent with the constitutional doctrines

restricting the duties that may be imposed on the AER.

Note: If this subsection applies, the duty will be taken to be imposed by

force of the law or instrument of the State or Territory (the

Commonwealth having consented under section 44AI to the

imposition of the duty by that law or instrument).

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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 or instrument of the State

or Territory), the duty is taken to be imposed by this Part to the

extent necessary to ensure that validity.

(4) If, because of subsection (3), this Part is taken to impose the duty,

it is the intention of the Parliament to rely on all powers available

to it under the Constitution to support the imposition of the duty by

this Part.

(5) The duty is taken to be imposed by this Part in accordance with

subsection (3) only to the extent to which imposing the duty:

(a) is within the legislative powers of the Commonwealth; and

(b) is consistent with the constitutional doctrines restricting the

duties that may be imposed on the AER.

(6) Subsections (1) to (5) do not limit section 44AI.

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

For the purposes of sections 44AI and 44AJ, a State/Territory

energy law or local energy instrument imposes a duty on the AER

if:

(a) the law or instrument confers a function or power on the

AER; and

(b) the circumstances in which the function or power is

conferred give rise to an obligation on the AER to perform

the function or to exercise the power.

44AL Powers of the AER

The AER has power to do all things necessary or convenient to be

done for or in connection with the performance of its functions.

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Note: State and Territory laws or instruments may also confer powers on the

AER in respect of its functions under those laws or instruments: see

section 44AI.

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Division 4—Administrative provisions relating to the AER

Subdivision A—Appointment etc. of members

44AM Appointment of Commonwealth AER member

(1) A Commonwealth AER member is to be appointed by the

Governor-General by written instrument.

(2) The Commonwealth AER member holds office for the period

specified in the instrument of appointment. The period must not

exceed 5 years.

(3) A person is not eligible for appointment as the Commonwealth

AER member unless the person is a member of the Commission. If

the person ceases to be a member of the Commission, then the

person also ceases to be an AER member.

(4) A person is not eligible for appointment as the Commonwealth

AER member unless the person has been chosen for appointment

in accordance with the Australian Energy Market Agreement.

44AN Membership of AER and Commission

Member taken to be full-time member of both AER and

Commission

(1) For the purposes of this Part, the Commonwealth AER member is

taken to be a full-time member of the AER.

(2) However, the Commonwealth AER member remains a full-time

member of the Commission.

Paid employment

(3) Paragraph 13(2)(c) does not apply to a member of the Commission

in respect of any paid employment of that member as an AER

member.

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(4) Sections 44AX and 44AAB do not apply to an AER member in

respect of the paid employment of that member as a member of the

Commission.

44AO Acting appointment of Commonwealth AER member

(1) The Chairperson may appoint a member of the Commission to act

as the Commonwealth AER member:

(a) during a vacancy in the office of Commonwealth AER

member, whether or not an appointment has previously been

made to the office; or

(b) during any period, or during all periods, when the

Commonwealth AER member is absent from duty or from

Australia, or is, for any reason, unable to perform the duties

of the office.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

(2) If a person acting as the Commonwealth AER member ceases to be

a member of the Commission, then the appointment to act as the

Commonwealth AER member also ceases.

44AP Appointment of State/Territory AER members

(1) A State/Territory AER member is to be appointed by the

Governor-General by written instrument, on either a full-time or

part-time basis.

Note: A State/Territory AER member is also taken to be an associate

member of the Commission: see section 8AB.

(2) A State/Territory AER member holds office for the period

specified in the instrument of appointment. The period must not

exceed 5 years.

(3) A person is not eligible for appointment as a State/Territory AER

member unless the person, being a person who has knowledge of,

or experience in, industry, commerce, economics, law, consumer

protection or public administration, has been nominated for

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appointment in accordance with the Australian Energy Market

Agreement.

44AQ Acting appointment of State/Territory AER member

(1) The Minister may appoint a person to act as a State/Territory AER

member:

(a) during a vacancy in the office of State/Territory AER

member, whether or not an appointment has previously been

made to the office; or

(b) during any period, or during all periods, when the

State/Territory AER member is absent from duty or from

Australia, or is, for any reason, unable to perform the duties

of the office.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

(2) A person is not eligible for appointment to act as a State/Territory

AER member unless the person, being a person who has

knowledge of, or experience in, industry, commerce, economics,

law, consumer protection or public administration, has been

nominated for appointment in accordance with the Australian

Energy Market Agreement.

44AR AER Chair

(1) One of the AER members is to be appointed by the

Governor-General as the AER Chair, by written instrument. The

appointment as AER Chair may be made at the same time as the

appointment as AER member, or at a later time.

(2) A member is not eligible for appointment as AER Chair unless the

person has been nominated for appointment as the Chair in

accordance with the Australian Energy Market Agreement.

(3) The AER Chair holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.

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(4) If the AER Chair ceases to be an AER member, then he or she also

ceases to be the AER Chair.

Note: A person may cease to be the AER Chair without ceasing to be an

AER member.

44AS Acting AER Chair

(1) The Minister may appoint an AER member to act as the AER

Chair:

(a) during a vacancy in the office of the AER Chair, whether or

not an appointment has previously been made to the office;

or

(b) during any period, or during all periods, when the AER Chair

is absent from duty or from Australia, or is, for any reason,

unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

(2) If a person acting as the AER Chair ceases to be an AER member,

then the appointment to act as the AER Chair also ceases.

44AT Remuneration of AER members

(1) An AER member (other than the Commonwealth AER member) is

to be paid the remuneration that is determined by the Remuneration

Tribunal. If no determination of that remuneration by the Tribunal

is in operation, the member is to be paid the remuneration that is

prescribed.

(2) An AER member (other than the Commonwealth AER member) is

to be paid the allowances that are prescribed.

(3) Subsections (1) and (2) have effect subject to the Remuneration

Tribunal Act 1973.

(4) The Commonwealth AER member is not entitled to be paid

remuneration or allowances.

Note: The Commonwealth AER member is paid as a member of the

Commission.

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44AU Additional remuneration of AER Chair

(1) The AER Chair (whether or not the Commonwealth AER member)

is to be paid additional remuneration (if any) determined by the

Remuneration Tribunal.

(2) The AER Chair (whether or not the Commonwealth AER member)

is to be paid additional allowances (if any) that are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act

1973 other than subsection 7(11) of that Act.

44AV Leave of absence

(1) A full-time AER member has the recreation leave entitlements that

are determined by the Remuneration Tribunal.

(2) The Minister may grant a full-time AER member leave of absence,

other than recreation leave, on the terms and conditions as to

remuneration or otherwise that the Minister determines.

(3) The AER Chair may grant leave of absence to any part-time AER

member on the terms and conditions that the AER Chair

determines.

44AW Other terms and conditions

An AER member holds office on the terms and conditions (if any)

in relation to matters not covered by this Act that are determined

by the Governor-General.

44AX Outside employment

(1) A full-time AER member must not engage in paid employment

outside the duties of the member’s office without the Minister’s

consent.

(2) A part-time AER member must not engage in any paid

employment that conflicts or could conflict with the proper

performance of the member’s duties.

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44AY Disclosure of interests

(1) If an AER member has any direct or indirect interest in a matter

being considered, or about to be considered, by the AER, being an

interest that could conflict with the proper performance of the

member’s functions in relation to a matter arising at a meeting of

the AER, then the member must as soon as practicable disclose that

interest at a meeting of the AER.

(2) The disclosure, and any decision made by the AER in relation to

the disclosure, must be recorded in the minutes of the meeting.

44AZ Resignation

(1) An AER member may resign his or her appointment by giving the

Governor-General a written resignation.

(2) The AER Chair may resign his or her appointment as AER Chair

by giving the Governor-General a written resignation. The

resignation does not affect the person’s appointment as an AER

member.

44AAB Termination of appointment

All AER members

(1) The Governor-General may terminate the appointment of an AER

member:

(a) for misbehaviour or physical or mental incapacity; or

(b) if the member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(c) if the member fails, without reasonable excuse, to comply

with section 44AY.

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Additional grounds: full-time AER members

(2) The Governor-General may terminate the appointment of a

full-time AER member if:

(a) the member is absent, except on leave of absence, for 14

consecutive days or for 28 days in any 12 months; or

(b) the member engages, except with the Minister’s consent, in

paid employment outside the duties of his or her office.

Additional grounds: part-time AER members

(3) The Governor-General may terminate the appointment of a

part-time AER member if:

(a) the member is absent, except on leave of absence, from 3

consecutive meetings of the AER; or

(b) the member engages in paid employment that conflicts or

could conflict with the proper performance of the duties of

his or her office.

Subdivision B—Staff etc. to assist the AER

44AAC Staff etc. to assist the AER

The Chairperson must make available:

(a) persons engaged under section 27; and

(b) consultants engaged under section 27A;

to assist the AER to perform its functions.

Subdivision C—Meetings of the AER etc.

44AAD Meetings

(1) The AER Chair must convene such meetings of the AER as he or

she thinks necessary for the efficient performance of the functions

of the AER.

Note: See also section 33B of the Acts Interpretation Act 1901, which

contains extra rules about meetings by telephone etc.

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(2) Meetings of the AER must be held at such places as the AER Chair

determines.

(3) At a meeting of the AER, 2 members constitute a quorum. The

quorum must include the AER Chair and must also include the

Commonwealth AER member (if the Commonwealth AER

member is not also the AER Chair).

(4) Questions arising at a meeting must be determined by unanimous

vote of the members present and voting.

(5) The AER Chair must preside at all meetings of the AER.

(6) The AER Chair may give directions regarding the procedure to be

followed at or in connection with a meeting.

44AAE Resolutions without meetings

(1) If all 3 AER members sign a document containing a statement that

they are in favour of a resolution in terms set out in the document,

then a resolution in those terms is taken to have been passed at a

duly constituted meeting of the AER held on the day the document

was signed, or, if the members sign the document on different

days, on the last of those days.

(2) For the purposes of subsection (1), 2 or more separate documents

containing statements in identical terms each of which is signed by

one or more members are together taken to constitute one

document containing a statement in those terms signed by those

members on the respective days on which they signed the separate

documents.

(3) A member must not sign a document containing a statement in

favour of a resolution if the resolution concerns a matter in which

the member has any direct or indirect interest, being an interest that

could conflict with the proper performance of the member’s

functions in relation to any matter.

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44AAEA Arbitration

(1) Sections 44AAD and 44AAE do not apply to the AER as

constituted for an arbitration under:

(a) the National Electricity (Commonwealth) Law (as defined by

the Australian Energy Market Act 2004); or

(b) the National Gas (Commonwealth) Law (as defined by the

Australian Energy Market Act 2004); or

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

(2) The reference in subsection (1) to an arbitration includes a

reference to each of the following:

(a) the making, variation or revocation of an access

determination (within the meaning of the law concerned);

(b) the performance of a function, or the exercise of a power, in

connection with the making, variation or revocation of an

access determination (within the meaning of the law

concerned).

Subdivision D—Miscellaneous

44AAF Confidentiality

(1) The AER must take all reasonable measures to protect from

unauthorised use or disclosure information:

(a) given to it in confidence in, or in connection with, the

performance of its functions or the exercise of its powers; or

(b) that is obtained by compulsion in the exercise of its powers.

Note: The Privacy Act 1988 also contains provisions relevant to the use and

disclosure of information.

(2) For the purposes of subsection (1), the disclosure of information as

required or permitted by a law of the Commonwealth, a State or

Territory, is taken to be authorised use and disclosure of the

information.

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Authorised use

(3) Disclosing information to one of the following is authorised use

and disclosure of the information:

(a) the Commission;

(b) the AEMC;

(c) Australian Energy Market Operator Limited

(ACN 072 010 327);

(ca) the Clean Energy Regulator;

(cb) the Climate Change Authority;

(d) any staff or consultant assisting a body mentioned in

paragraph (a), (b), (c), (ca) or (cb) in performing its functions

or exercising its powers;

(e) any other person or body prescribed by the regulations for the

purpose of this paragraph.

(4) A person or body to whom information is disclosed under

subsection (3) may use the information for any purpose connected

with the performance of the functions, or the exercise of the

powers, of the person or body.

(5) The AER may impose conditions to be complied with in relation to

information disclosed under subsection (3).

(6) For the purposes of subsection (1), the use or disclosure of

information by a person for the purposes of:

(a) performing the person’s functions, or exercising the person’s

powers, as:

(i) an AER member, a person referred to in section 44AAC

or a delegate of the AER; or

(ii) a person who is authorised to perform or exercise a

function or power of, or on behalf of, the AER; or

(b) the performance of functions, or the exercise of powers, by

the person by way of assisting a delegate of the AER;

is taken to be authorised use and disclosure of the information.

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(7) Regulations made for the purposes of this section may specify uses

of information and disclosures of information that are authorised

uses and authorised disclosures for the purposes of this section.

(8) Nothing in any of the above subsections limits:

(a) anything else in any of those subsections; or

(b) what may otherwise constitute, for the purposes of

subsection (1), authorised use or disclosure of information.

44AAG Federal Court may make certain orders

(1) The Federal Court may make an order, on application by the AER

on behalf of the Commonwealth, declaring that a person is in

breach of:

(a) a uniform energy law that is applied as a law of the

Commonwealth; or

(b) a State/Territory energy law.

(2) If the order declares the person to be in breach of such a law, the

order may include one or more of the following:

(a) an order that the person pay a civil penalty determined in

accordance with the law;

(b) an order that the person cease, within a specified period, the

act, activity or practice constituting the breach;

(c) an order that the person take such action, or adopt such

practice, as the Court requires for remedying the breach or

preventing a recurrence of the breach;

(d) an order that the person implement a specified program for

compliance with the law;

(e) an order of a kind prescribed by regulations made under this

Act.

(3) If a person has engaged, is engaging or is proposing to engage in

any conduct in breach of:

(a) a uniform energy law that is applied as a law of the

Commonwealth; or

(b) a State/Territory energy law;

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the Federal Court may, on application by the AER on behalf of the

Commonwealth, grant an injunction:

(c) restraining the person from engaging in the conduct; and

(d) if, in the court’s opinion, it is desirable to do so—requiring

the person to do something.

(4) The power of the Federal Court under subsection (3) to grant an

injunction restraining a person from engaging in conduct of a

particular kind may be exercised:

(a) if the court is satisfied that the person has engaged in conduct

of that kind—whether or not it appears to the court that the

person intends to engage again, or to continue to engage, in

conduct of that kind; or

(b) if it appears to the court that, if an injunction is not granted, it

is likely that the person will engage in conduct of that kind—

whether or not the person has previously engaged in conduct

of that kind and whether or not there is an imminent danger

of substantial damage to any person if the person engages in

conduct of that kind.

44AAGA Federal Court may order disconnection if an event

specified in the National Electricity Rules occurs

(1) If a relevant disconnection event occurs, the Federal Court may

make an order, on application by the AER on behalf of the

Commonwealth, directing that a Registered participant’s loads be

disconnected.

(2) In this section:

National Electricity Law means:

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

National Electricity (South Australia) Act 1996 of South

Australia as in force from time to time; or

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

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

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

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National Electricity Rules means:

(a) the National Electricity Rules, as in force from time to time,

made under the National Electricity Law set out in the

Schedule to the National Electricity (South Australia) Act

1996 of South Australia; or

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

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

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

Registered participant has the same meaning as in the National

Electricity Law.

relevant disconnection event means an event specified in the

National Electricity Rules as being an event for which a Registered

participant’s loads may be disconnected, where the event does not

constitute a breach of the National Electricity Rules.

44AAH Delegation by the AER

The AER may, by resolution, delegate:

(a) all or any of the AER’s functions and powers under this Part

or under regulations made under this Act, or under another

law of the Commonwealth; or

(b) all or any of the AER’s functions and powers under a

State/Territory energy law;

to an AER member or to an SES employee, or acting SES

employee, assisting the AER as mentioned in section 44AAC.

Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions

of SES employee and acting SES employee.

Note 2: See also sections 34AA to 34A of the Acts Interpretation Act 1901,

which contain extra rules about delegations.

44AAI Fees

(1) The AER may charge a fee specified in the regulations for services

provided by it in performing any of its functions, or exercising any

of its powers, under this Part or under regulations made under this

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Act, or under another law of the Commonwealth or a

State/Territory energy law.

(2) The fee must not be such as to amount to taxation.

44AAJ Annual report

(1) The AER must, within 60 days after the end of each year ending on

30 June, give the Minister a report on its operations during that

year, for presentation to the Parliament.

Note: See also section 34C of the Acts Interpretation Act 1901, which

contains extra rules about annual reports.

(2) The Minister must give a copy of the report to the relevant Minister

of each of the States, the Australian Capital Territory and the

Northern Territory.

44AAK Regulations may deal with transitional matters

(1) The Governor-General may make regulations dealing with matters

of a transitional nature relating to the transfer of functions and

powers from a body to the AER.

(2) Without limiting subsection (1), the regulations may deal with:

(a) the transfer of any relevant investigations being conducted by

the body at the time of the transfer of functions and powers to

the AER; or

(b) the transfer of any decisions or determinations being made by

the body at the time of the transfer of functions and powers to

the AER; or

(c) the substitution of the AER as a party to any relevant

proceedings that are pending in any court or tribunal at the

time of the transfer of functions and powers to the AER; or

(d) the transfer of any relevant information from the body to the

AER.

(3) In this section:

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matters of a transitional nature also includes matters of an

application or saving nature.

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Part IIIAB Application of the finance law

Section 44AAL

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Part IIIAB—Application of the finance law

44AAL Application of the finance law

For the purposes of the finance law (within the meaning of the

Public Governance, Performance and Accountability Act 2013):

(a) the following combination of bodies is a listed entity:

(i) the Commission;

(ii) the AER; and

(b) the listed entity is to be known as the Australian Competition

and Consumer Commission; and

(c) the Chairperson is the accountable authority of the listed

entity; and

(d) the following persons are officials of the listed entity:

(i) the Chairperson;

(ii) the other members of the Commission;

(iii) the associate members of the Commission;

(iv) the AER members;

(v) persons engaged under section 27; and

(e) the purposes of the listed entity include:

(i) the functions conferred on the Commission by this Act;

and

(ii) the functions of the AER under Division 3 of

Part IIIAA.

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Part IIIA—Access to services

Division 1—Preliminary

44AA Objects of Part

The objects of this Part are to:

(a) promote the economically efficient operation of, use of and

investment in the infrastructure by which services are

provided, thereby promoting effective competition in

upstream and downstream markets; and

(b) provide a framework and guiding principles to encourage a

consistent approach to access regulation in each industry.

44B Definitions

In this Part, unless the contrary intention appears:

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

access code application means:

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

(b) a request made to the Commission for the withdrawal or

variation of an access code; or

(c) an application under subsection 44ZZBB(4) for an extension

of the period for which an access code is in operation.

access code decision means:

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

access code; or

(b) a decision under section 44ZZAA to consent or refuse to

consent to the withdrawal or variation of an access code; or

(c) a decision under section 44ZZBB to extend or refuse to

extend the period for which an access code is in operation.

access undertaking means an undertaking under section 44ZZA.

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access undertaking application means:

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

(b) a request made to the Commission for the withdrawal or

variation of an access undertaking; or

(ba) a request made to the Commission under

subsection 44ZZAAB(7) to consent to the revocation or

variation of a fixed principle included as a term of an access

undertaking; or

(c) an application under subsection 44ZZBB(1) for an extension

of the period for which an access undertaking is in operation.

access undertaking decision means:

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

undertaking; or

(b) a decision under section 44ZZA to consent or refuse to

consent to the withdrawal or variation of an access

undertaking; or

(ba) a decision under subsection 44ZZAAB(7) to consent or

refuse to consent to the revocation or variation of a fixed

principle included as a term of an access undertaking; or

(c) a decision under section 44ZZBB to extend or refuse to

extend the period for which an access undertaking is in

operation.

Commonwealth Minister means the Minister.

constitutional trade or commerce means any of the following:

(a) trade or commerce among the States;

(b) trade or commerce between Australia and places outside

Australia;

(c) trade or commerce between a State and a Territory, or

between 2 Territories.

declaration means a declaration made by the designated Minister

under Division 2.

declaration recommendation means a recommendation made by

the Council under section 44F.

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declared service means a service for which a declaration is in

operation.

designated Minister has the meaning given by section 44D.

determination means a determination made by the Commission

under Division 3.

director has the same meaning as in the Corporations Act 2001.

entity means a person, partnership or joint venture.

final determination means a determination other than an interim

determination.

fixed principle has the meaning given by section 44ZZAAB.

ineligibility recommendation means a recommendation made by

the Council under section 44LB.

interim determination means a determination that is expressed to

be an interim determination.

modifications includes additions, omissions and substitutions.

National Gas Law means:

(a) the National Gas Law set out in the Schedule to the National

Gas (South Australia) Act 2008 of South Australia as in force

from time to time, as that Law applies as a law of South

Australia; or

(b) if an Act of another State or of the Australian Capital

Territory or the Northern Territory applies the National Gas

Law set out in the Schedule to the National Gas (South

Australia) Act 2008 of South Australia, as in force from time

to time, as a law of that other State or of that Territory—the

National Gas Law as so applied; or

(c) the Western Australian Gas Legislation; or

(d) the National Gas (Commonwealth) Law (within the meaning

of the Australian Energy Market Act 2004); or

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(e) the Offshore Western Australian Pipelines (Commonwealth)

Law (within the meaning of the Australian Energy Market

Act 2004).

officer has the same meaning as in the Corporations Act 2001.

party means:

(a) in relation to an arbitration of an access dispute—a party to

the arbitration, as mentioned in section 44U;

(b) in relation to a determination—a party to the arbitration in

which the Commission made the determination.

proposed facility means a facility that is proposed to be constructed

(but the construction of which has not started) that will be:

(a) structurally separate from any existing facility; or

(b) a major extension of an existing facility.

provider, in relation to a service, means the entity that is the owner

or operator of the facility that is used (or is to be used) to provide

the service.

responsible Minister means:

(a) the Premier, in the case of a State;

(b) the Chief Minister, in the case of a Territory.

revocation recommendation means a recommendation made by

the Council under section 44J.

service means a service provided by means of a facility and

includes:

(a) the use of an infrastructure facility such as a road or railway

line;

(b) handling or transporting things such as goods or people;

(c) a communications service or similar service;

but does not include:

(d) the supply of goods; or

(e) the use of intellectual property; or

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(f) the use of a production process;

except to the extent that it is an integral but subsidiary part of the

service.

State or Territory access regime law means:

(a) a law of a State or Territory that establishes or regulates an

access regime; or

(b) a law of a State or Territory that regulates an industry that is

subject to an access regime; or

(c) a State/Territory energy law.

State or Territory body means:

(a) a State or Territory;

(b) an authority of a State or Territory.

third party, in relation to a service, means a person who wants

access to the service or wants a change to some aspect of the

person’s existing access to the service.

44C How this Part applies to partnerships and joint ventures

(1) This section applies if the provider of a service is a partnership or

joint venture that consists of 2 or more corporations. Those

corporations are referred to in this section as the participants.

(2) If this Part requires or permits something to be done by the

provider, the thing may be done by one or more of the participants

on behalf of the provider.

(3) If a provision of this Part refers to the provider bearing any costs,

the provision applies as if the provision referred to any of the

participants bearing any costs.

(4) If a provision of this Part refers to the provider doing something,

the provision applies as if the provision referred to one or more of

the participants doing that thing on behalf of the provider.

(5) If:

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98 Competition and Consumer Act 2010

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(a) a provision of this Part requires the provider to do something,

or prohibits the provider from doing something; and

(b) a contravention of the provision is an offence;

the provision applies as if a reference to the provider were a

reference to any person responsible for the day-to-day management

and control of the provider.

(6) If:

(a) a provision of this Part requires a provider to do something,

or prohibits a provider doing something; and

(b) a contravention of the provision is not an offence;

the provision applies as if the reference to provider were a

reference to each participant and to any other person responsible

for the day-to-day management and control of the provider.

44D Meaning of designated Minister

(1) The Commonwealth Minister is the designated Minister unless

subsection (2), (3), (4) or (5) applies.

(2) In relation to declaring a service in a case where:

(a) the provider is a State or Territory body; and

(b) the State or Territory concerned is a party to the Competition

Principles Agreement;

the responsible Minister of the State or Territory is the designated

Minister.

(3) In relation to revoking a declaration that was made by the

responsible Minister of a State or Territory, the responsible

Minister of that State or Territory is the designated Minister.

(4) In relation to deciding whether a service is ineligible to be a

declared service in a case where:

(a) a person who is, or expects to be, the provider of the service

is a State or Territory body; and

(b) the State or Territory concerned is a party to the Competition

Principles Agreement;

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the responsible Minister of the State or Territory is the designated

Minister.

(5) In relation to revoking a decision:

(a) that a service is ineligible to be a declared service; and

(b) that was made by the responsible Minister of a State or

Territory;

the responsible Minister of that State or Territory is the designated

Minister.

44DA The principles in the Competition Principles Agreement have

status as guidelines

(1) For the avoidance of doubt:

(c) the requirement, under subsection 44M(4), that the Council

apply the relevant principles set out in the Competition

Principles Agreement in deciding whether to recommend to

the Commonwealth Minister that he or she should decide that

an access regime is, or is not, an effective access regime; and

(d) the requirement, under subsection 44N(2), that the

Commonwealth Minister, in making a decision on a

recommendation received from the Council, apply the

relevant principles set out in the Agreement;

are obligations that the Council and the relevant Ministers must

treat each individual relevant principle as having the status of a

guideline rather than a binding rule.

(2) An effective access regime may contain additional matters that are

not inconsistent with Competition Principles Agreement principles.

44E This Part binds the Crown

(1) This Part binds the Crown in right of the Commonwealth, of each

of the States, of the Australian Capital Territory and of the

Northern Territory.

(2) Nothing in this Part makes the Crown liable to be prosecuted for an

offence.

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Section 44E

100 Competition and Consumer Act 2010

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(3) The protection in subsection (2) does not apply to an authority of

the Commonwealth or an authority of a State or Territory.

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Division 2—Declared services

Subdivision A—Recommendation by the Council

44F Person may request recommendation

(1) The designated Minister, or any other person, may make a written

application to the Council asking the Council to recommend that a

particular service be declared.

(2) After receiving the application, the Council:

(a) must tell the provider of the service that the Council has

received the application, unless the provider is the applicant;

and

(b) must, after having regard to the objects of this Part,

recommend to the designated Minister:

(i) that the service be declared, with the expiry date

specified in the recommendation; or

(ii) that the service not be declared.

Note 1: There are time limits that apply to the Council’s recommendation: see

section 44GA.

Note 2: The Council may request information and invite public submissions

on the application: see sections 44FA and 44GB.

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

(3) If the applicant is a person other than the designated Minister, the

Council may recommend that the service not be declared if the

Council thinks that the application was not made in good faith.

This subsection does not limit the grounds on which the Council

may decide to recommend that the service not be declared.

(4) In deciding what recommendation to make, the Council must

consider whether it would be economical for anyone to develop

another facility that could provide part of the service. This

subsection does not limit the grounds on which the Council may

decide to recommend that the service be declared or not be

declared.

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Section 44FA

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(5) The applicant may withdraw the application at any time before the

Council makes a recommendation relating to it.

(6) The applicant may request, in writing, the Council to vary the

application at any time before the Council makes a

recommendation relating to it.

(7) If a request is made under subsection (6), the Council must decide

to:

(a) make the variation; or

(b) reject the variation.

(8) An instrument making a decision under subsection (7) is not a

legislative instrument.

(9) The Council may reject the variation if it is satisfied that the

requested variation is of a kind, or the request for the variation is

made at a time or in a manner, that:

(a) would unduly prejudice the provider (if the provider is not

the applicant) or anyone else the Council considers has a

material interest in the application; or

(b) would unduly delay the process for considering the

application.

44FA Council may request information

(1) The Council may give a person a written notice requesting the

person give to the Council, within a specified period, information

of the kind specified in the notice that the Council considers may

be relevant to deciding what recommendation to make on an

application under section 44F.

(2) The Council must:

(a) give a copy of the notice to:

(i) if the person is not the applicant—the applicant; and

(ii) if the person is not the provider of the service—the

provider; and

(b) publish, by electronic or other means, the notice.

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(3) In deciding what recommendation to make on the application, the

Council:

(a) must have regard to any information given in compliance

with a notice under subsection (1) within the specified

period; and

(b) may disregard any information of the kind specified in the

notice that is given after the specified period has ended.

44G Limits on the Council recommending declaration of a service

(1) The Council cannot recommend declaration of a service that is the

subject of an access undertaking in operation under Division 6.

(1A) While a decision of the Commission is in force under

subsection 44PA(3) approving a tender process, for the

construction and operation of a facility, as a competitive tender

process, the Council cannot recommend declaration of any service

provided by means of the facility that was specified under

paragraph 44PA(2)(a).

(2) The Council cannot recommend that a service be declared unless it

is satisfied of all of the following matters:

(a) that access (or increased access) to the service would

promote a material increase in competition in at least one

market (whether or not in Australia), other than the market

for the service;

(b) that it would be uneconomical for anyone to develop another

facility to provide the service;

(c) that the facility is of national significance, having regard to:

(i) the size of the facility; or

(ii) the importance of the facility to constitutional trade or

commerce; or

(iii) the importance of the facility to the national economy;

(e) that access to the service:

(i) is not already the subject of a regime in relation to

which a decision under section 44N that the regime is an

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Section 44GA

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effective access regime is in force (including as a result

of an extension under section 44NB); or

(ii) is the subject of a regime in relation to which a decision

under section 44N that the regime is an effective access

regime is in force (including as a result of an extension

under section 44NB), but the Council believes that,

since the Commonwealth Minister’s decision was

published, there have been substantial modifications of

the access regime or of the relevant principles set out in

the Competition Principles Agreement;

(f) that access (or increased access) to the service would not be

contrary to the public interest.

(6) The Council cannot recommend declaration of a service provided

by means of a pipeline (within the meaning of a National Gas Law)

if:

(a) a 15-year no-coverage determination is in force under the

National Gas Law in respect of the pipeline; or

(b) a price regulation exemption is in force under the National

Gas Law in respect of the pipeline.

(7) The Council cannot recommend that a service be declared if there

is in force a decision of the designated Minister under

section 44LG that the service is ineligible to be a declared service.

44GA Time limit for Council recommendations

Council to make recommendation within the consideration period

(1) The Council must make a recommendation on an application under

section 44F within the consideration period.

(2) The consideration period is a period of 180 days (the expected

period), starting at the start of the day the application is received,

unless the consideration period is extended under subsection (7).

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Stopping the clock

(3) In working out the expected period in relation to a recommendation

on an application under section 44F, in a situation referred to in

column 1 of an item of the following table, disregard any day in a

period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Stopping the clock

Item Column 1

Situation

Column 2

Start day

Column 3

End day

1 An agreement is

made in relation to

the application

under

subsection (5)

The first day

of the period

specified in

the agreement

The last day of the period specified

in the agreement

2 A notice is given

under

subsection 44FA(1)

requesting

information in

relation to the

application

The day on

which the

notice is given

The last day of the period specified

in the notice for the giving of the

information

(4) Despite subsection (3):

(a) do not disregard any day more than once; and

(b) the total period that is disregarded under that subsection must

not exceed 60 days.

Stopping the clock by agreement

(5) The Council, the applicant and the provider of the service (if the

provider is not the applicant) may agree in writing that a specified

period is to be disregarded in working out the expected period.

(6) The Council must publish, by electronic or other means, the

agreement.

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Council may extend time for making recommendation

(7) If the Council is unable to make a recommendation within the

consideration period (whether it is the expected period or the

consideration period as previously extended under this subsection),

it must, by notice in writing to the designated Minister, extend the

consideration period by a specified period.

(8) The notice must:

(a) specify when the Council must now make a recommendation

on the application; and

(b) include a statement explaining why the Council has been

unable to make a decision on the recommendation within the

consideration period.

(9) The Council must give a copy of the notice to:

(a) the applicant; and

(b) if the applicant is not the provider of the service—the

provider.

Publication

(10) If the Council extends the consideration period under

subsection (7), it must publish a notice in a national newspaper:

(a) stating that it has done so; and

(b) specifying the day by which it must now make a

recommendation on the application.

Failure to comply with time limit does not affect validity

(11) Failure by the Council to comply with a time limit set in this

section does not affect the validity of a recommendation made

under this section.

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44GB Council may invite public submissions on the application

Invitation

(1) The Council may publish, by electronic or other means, a notice

inviting public submissions on an application under section 44F if

it considers that it is appropriate and practicable to do so.

(2) The notice must specify how submissions may be made and the

day by which submissions may be made (which must be at least 14

days after the day the notice is published).

Consideration of submissions

(3) Subject to subsection (6), in deciding what recommendation to

make on the application, the Council:

(a) must have regard to any submission made on or before the

day specified in the notice; and

(b) may disregard any submission made after the day specified in

the notice.

Council may make submissions publicly available

(4) The Council may make any written submission, or a written record

(which may be a summary) of any oral submission, publicly

available.

Confidentiality

(5) A person may, at the time of making a submission, request that the

Council:

(a) not make the whole or a part of the submission available

under subsection (4); and

(b) not publish or make available the whole or a part of the

submission under section 44GC;

because of the confidential commercial information contained in

the submission.

(6) If the Council refuses such a request:

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(a) for a written submission—the Council must, if the person

who made it so requires, return the whole or the part of it to

the person; and

(b) for an oral submission—the person who made it may inform

the Council that the person withdraws the whole or the part

of it; and

(c) if the Council returns the whole or the part of the submission,

or the person withdraws the whole or the part of the

submission, the Council must not:

(i) make the whole or the part of the submission available

under subsection (4); and

(ii) publish or make available the whole or the part of the

submission under section 44GC; and

(iii) have regard to the whole or the part of the submission in

making its recommendation on the application.

44GC Council must publish its recommendation

(1) The Council must publish, by electronic or other means, a

recommendation under section 44F and its reasons for the

recommendation.

(2) The Council must give a copy of the publication to:

(a) the applicant under section 44F; and

(b) if the applicant is not the provider of the service—the

provider.

Timing

(3) The Council must do the things under subsections (1) and (2) on

the day the designated Minister publishes his or her decision on the

recommendation or as soon as practicable after that day.

Consultation

(4) Before publishing under subsection (1), the Council may give any

one or more of the following persons:

(a) the applicant under section 44F;

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(b) if the applicant is not the provider of the service—the

provider;

(c) any other person the Council considers appropriate;

a notice in writing:

(d) specifying what the Council is proposing to publish; and

(e) inviting the person to make a written submission to the

Council within 14 days after the notice is given identifying

any information the person considers should not be published

because of its confidential commercial nature.

(5) The Council must have regard to any submission so made in

deciding what to publish. It may have regard to any other matter it

considers relevant.

Subdivision B—Declaration by the designated Minister

44H Designated Minister may declare a service

(1) On receiving a declaration recommendation, the designated

Minister must either declare the service or decide not to declare it.

Note: The designated Minister must publish his or her decision: see

section 44HA.

(1A) The designated Minister must have regard to the objects of this

Part in making his or her decision.

(2) In deciding whether to declare the service or not, the designated

Minister must consider whether it would be economical for anyone

to develop another facility that could provide part of the service.

This subsection does not limit the grounds on which the designated

Minister may make a decision whether to declare the service or

not.

(3) The designated Minister cannot declare a service that is the subject

of an access undertaking in operation under Division 6.

(3A) While a decision of the Commission is in force under

subsection 44PA(3) approving a tender process, for the

construction and operation of a facility, as a competitive tender

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process, the designated Minister cannot declare any service

provided by means of the facility that was specified under

paragraph 44PA(2)(a).

(4) The designated Minister cannot declare a service unless he or she

is satisfied of all of the following matters:

(a) that access (or increased access) to the service would

promote a material increase in competition in at least one

market (whether or not in Australia), other than the market

for the service;

(b) that it would be uneconomical for anyone to develop another

facility to provide the service;

(c) that the facility is of national significance, having regard to:

(i) the size of the facility; or

(ii) the importance of the facility to constitutional trade or

commerce; or

(iii) the importance of the facility to the national economy;

(e) that access to the service:

(i) is not already the subject of a regime in relation to

which a decision under section 44N that the regime is an

effective access regime is in force (including as a result

of an extension under section 44NB); or

(ii) is the subject of a regime in relation to which a decision

under section 44N that the regime is an effective access

regime is in force (including as a result of an extension

under section 44NB), but the designated Minister

believes that, since the Commonwealth Minister’s

decision was published, there have been substantial

modifications of the access regime or of the relevant

principles set out in the Competition Principles

Agreement;

(f) that access (or increased access) to the service would not be

contrary to the public interest.

(6B) The designated Minister cannot declare a service provided by

means of a pipeline (within the meaning of a National Gas Law) if:

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(a) a 15-year no-coverage determination is in force under the

National Gas Law in respect of the pipeline; or

(b) a price regulation exemption is in force under the National

Gas Law in respect of the pipeline.

(6C) The designated Minister cannot declare a service if there is in force

a decision of the designated Minister under section 44LG that the

service is ineligible to be a declared service.

(8) If the designated Minister declares the service, the declaration must

specify the expiry date of the declaration.

(9) If the designated Minister does not publish under section 44HA his

or her decision on the declaration recommendation within 60 days

after receiving the declaration recommendation, the designated

Minister is taken, at the end of that 60-day period, to have decided

not to declare the service and to have published that decision not to

declare the service.

44HA Designated Minister must publish his or her decision

(1) The designated Minister must publish, by electronic or other

means, his or her decision on a declaration recommendation and

his or her reasons for the decision.

(2) The designated Minister must give a copy of the publication to:

(a) the applicant under section 44F; and

(b) if the applicant is not the provider of the service—the

provider.

Consultation

(3) Before publishing under subsection (1), the designated Minister

may give any one or more of the following persons:

(a) the applicant under section 44F;

(b) if the applicant is not the provider of the service—the

provider;

(c) any other person the designated Minister considers

appropriate;

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Section 44I

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a notice in writing:

(d) specifying what the designated Minister is proposing to

publish; and

(e) inviting the person to make a written submission to the

designated Minister within 14 days after the notice is given

identifying any information the person considers should not

be published because of its confidential commercial nature.

(4) The designated Minister must have regard to any submission so

made in deciding what to publish. He or she may have regard to

any other matter he or she considers relevant.

44I Duration and effect of declaration

(1) Subject to this section, a declaration begins to operate at a time

specified in the declaration. The time cannot be earlier than 21

days after the declaration is published.

(2) If:

(a) an application for review of a declaration is made within 21

days after the day the declaration is published; and

(b) the Tribunal makes an order under section 44KA staying the

operation of the declaration;

the declaration does not begin to operate until the order is no

longer of effect under subsection 44KA(6) or the Tribunal makes a

decision on the review to affirm the declaration, whichever is the

earlier.

(3) A declaration continues in operation until its expiry date, unless it

is earlier revoked.

(4) The expiry or revocation of a declaration does not affect:

(a) the arbitration of an access dispute that was notified before

the expiry or revocation; or

(b) the operation or enforcement of any determination made in

the arbitration of an access dispute that was notified before

the expiry or revocation.

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44J Revocation of declaration

(1) The Council may recommend to the designated Minister that a

declaration be revoked. The Council must have regard to the

objects of this Part in making its decision.

(2) The Council cannot recommend revocation of a declaration unless

it is satisfied that, at the time of the recommendation,

subsection 44H(4) would prevent the designated Minister from

declaring the service concerned.

(3) On receiving a revocation recommendation, the designated

Minister must either revoke the declaration or decide not to revoke

the declaration.

(3A) The designated Minister must have regard to the objects of this

Part in making his or her decision.

(4) The designated Minister must publish the decision to revoke or not

to revoke.

(5) If the designated Minister decides not to revoke, the designated

Minister must give reasons for the decision to the provider of the

declared service when the designated Minister publishes the

decision.

(6) The designated Minister cannot revoke a declaration without

receiving a revocation recommendation.

(7) If the designated Minister does not publish under subsection (4) his

or her decision on the revocation recommendation within the

period starting at the start of the day the recommendation is

received and ending at the end of 60 days after that day, the

designated Minister is taken, immediately after the end of that

60-day period:

(a) to have made a decision that the declaration be revoked; and

(b) to have published that decision in accordance with this

section.

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Section 44K

114 Competition and Consumer Act 2010

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44K Review of declaration

(1) If the designated Minister declares a service, the provider may

apply in writing to the Tribunal for review of the declaration.

(2) If the designated Minister decides not to declare a service, an

application in writing for review of the designated Minister’s

decision may be made by the person who applied for the

declaration recommendation.

(3) An application for review must be made within 21 days after

publication of the designated Minister’s decision.

(4) The review by the Tribunal is a re-consideration of the matter

based on the information, reports and things referred to in

section 44ZZOAA.

Note: There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal’s decision on the review (see section 44ZZOA).

(5) For the purposes of the review, the Tribunal has the same powers

as the designated Minister.

(6) The member of the Tribunal presiding at the review may require

the Council to give assistance for the purposes of the review

(including for the purposes of deciding whether to make an order

under section 44KA).

(6A) Without limiting subsection (6), the member may, by written

notice, require the Council to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(6B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the provider of the service; and

(iii) the person who applied for the declaration

recommendation; and

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(iv) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

(7) If the designated Minister declared the service, the Tribunal may

affirm, vary or set aside the declaration.

(8) If the designated Minister decided not to declare the service, the

Tribunal may either:

(a) affirm the designated Minister’s decision; or

(b) set aside the designated Minister’s decision and declare the

service in question.

(9) A declaration, or varied declaration, made by the Tribunal is to be

taken to be a declaration by the designated Minister for all

purposes of this Part (except this section).

44KA Tribunal may stay operation of declaration

(1) Subject to this section, an application for review of a declaration

under subsection 44K(1) does not:

(a) affect the operation of the declaration; or

(b) prevent the taking of steps in reliance on the declaration.

(2) On application by a person who has been made a party to the

proceedings for review of a declaration, the Tribunal may:

(a) make an order staying, or otherwise affecting the operation or

the taking of steps in reliance on, the declaration if the

Tribunal considers that:

(i) it is desirable to make the order after taking into account

the interests of any person who may be affected by the

review; and

(ii) the order is appropriate for the purpose of securing the

effectiveness of the hearing and determination of the

application for review; or

(b) make an order varying or revoking an order made under

paragraph (a) (including an order that has previously been

varied on one or more occasions under this paragraph).

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Section 44KA

116 Competition and Consumer Act 2010

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(3) Subject to subsection (4), the Tribunal must not:

(a) make an order under subsection (2) unless the Council has

been given a reasonable opportunity to make a submission to

the Tribunal in relation to the matter; or

(b) make an order varying or revoking an order in force under

paragraph (2)(a) (including an order that has previously been

varied on one or more occasions under paragraph (2)(b))

unless:

(i) the Council; and

(ii) the person who requested the making of the order under

paragraph (2)(a); and

(iii) if the order under paragraph (2)(a) has previously been

varied by an order or orders under paragraph (2)(b)—

the person or persons who requested the making of the

last-mentioned order or orders;

have been given a reasonable opportunity to make

submissions to the Tribunal in relation to the matter.

(4) Subsection (3) does not prohibit the Tribunal from making an order

without giving to a person referred to in that subsection a

reasonable opportunity to make a submission to the Tribunal in

relation to a matter if the Tribunal is satisfied that, by reason of the

urgency of the case or otherwise, it is not practicable to give that

person such an opportunity.

(5) If an order is made under subsection (3) without giving the Council

a reasonable opportunity to make a submission to the Tribunal in

relation to a matter, the order does not come into operation until a

notice setting out the terms of the order is given to the Council.

(6) An order in force under paragraph (2)(a) (including an order that

has previously been varied on one or more occasions under

paragraph (2)(b)):

(a) is subject to such conditions as are specified in the order; and

(b) has effect until:

(i) if a period for the operation of the order is specified in

the order—the expiration of that period or, if the

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application for review is decided by the Tribunal before

the expiration of that period, the decision of the

Tribunal on the application for review comes into

operation; or

(ii) if no period is so specified—the decision of the Tribunal

on the application for review comes into operation.

44KB Tribunal may order costs be awarded

(1) If the Tribunal is satisfied that it is appropriate to do so, the

Tribunal may order that a person who has been made a party to

proceedings for a review of a declaration under section 44K pay all

or a specified part of the costs of another person who has been

made a party to the proceedings.

(2) However, the Tribunal must not make an order requiring the

designated Minister to pay some or all of the costs of another party

to proceedings unless the Tribunal considers that the designated

Minister’s conduct in the proceedings was engaged in without due

regard to:

(a) the costs that would be incurred by the other party to the

proceedings as a result of that conduct; or

(b) the time required by the Tribunal to make a decision on the

review as a result of that conduct; or

(c) the time required by the other party to prepare their case for

the purposes of the review as a result of that conduct; or

(d) the submissions or arguments made during the proceedings to

the Tribunal by the other party or parties to the proceedings

or by the Council.

(3) If the Tribunal makes an order under subsection (1), it may make

further orders that it considers appropriate in relation to the

assessment or taxation of the costs.

(4) The regulations may make provision for and in relation to fees

payable for the assessment or taxation of costs ordered by the

Tribunal to be paid.

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Section 44L

118 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(5) If a party (the first party) is ordered to pay some or all of the costs

of another party under subsection (1), the amount of the costs may

be recovered in the Federal Court as a debt due by the first party to

the other party.

44L Review of decision not to revoke a declaration

(1) If the designated Minister decides not to revoke a declaration, the

provider may apply in writing to the Tribunal for review of the

decision.

(2) An application for review must be made within 21 days after

publication of the designated Minister’s decision.

(3) The review by the Tribunal is a re-consideration of the matter

based on the information, reports and things referred to in

section 44ZZOAA.

Note: There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal’s decision on the review (see section 44ZZOA).

(4) For the purposes of the review, the Tribunal has the same powers

as the designated Minister.

(5) The member of the Tribunal presiding at the review may require

the Council to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Council to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

(6) The Tribunal may either:

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(a) affirm the designated Minister’s decision; or

(b) set aside the designated Minister’s decision and revoke the

declaration.

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Section 44LA

120 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2AA—Services that are ineligible to be declared

Subdivision A—Scope of Division

44LA Constitutional limits on operation of this Division

This Division does not apply in relation to a service unless:

(a) the person who is, or expects to be, the provider of the

service is a corporation (or a partnership or joint venture

consisting wholly of corporations); or

(b) access to the service is (or would be) in the course of, or for

the purposes of, constitutional trade or commerce.

Subdivision B—Ineligibility recommendation by Council

44LB Ineligibility recommendation

Person may request recommendation

(1) A person with a material interest in a particular service proposed to

be provided by means of a proposed facility may make a written

application to the Council asking the Council to recommend that

the designated Minister decide that the service is ineligible to be a

declared service.

Note: The application must be made before construction of the facility

commences: see the definition of proposed facility in section 44B.

Council must make recommendation

(2) After receiving the application, the Council must, after having

regard to the objects of this Part:

(a) recommend to the designated Minister:

(i) that he or she decide that the service is ineligible to be a

declared service; and

(ii) the period for which the decision should be in force

(which must be at least 20 years); or

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(b) recommend to the designated Minister that he or she decide

that the service is not ineligible to be a declared service.

Note 1: There are time limits that apply to the Council’s recommendation: see

section 44LD.

Note 2: The Council may request information and invite public submissions

on the application: see sections 44LC and 44LE.

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

Limits on recommendation

(3) The Council cannot recommend that the designated Minister

decide that the service is ineligible to be a declared service unless it

is satisfied of both of the following matters:

(a) that the service will be provided by means of the proposed

facility when constructed;

(b) that it is not satisfied of at least one of the matters referred to

in subsection 44G(2) in relation to the service to be provided

by means of the proposed facility.

(4) If the applicant is a person other than the designated Minister, the

Council may recommend that the designated Minister decide that

the service is not ineligible to be a declared service if the Council

thinks that the application was not made in good faith. This

subsection does not limit the grounds on which the Council may

decide to recommend that the designated Minister decide that the

service is not ineligible to be a declared service.

Relationship between ineligibility recommendations, access

undertakings and competitive tender processes

(5) The Council may recommend that the designated Minister decide

that the service is ineligible to be a declared service even if the

service is the subject of an access undertaking in operation under

Division 6.

(6) The Council may recommend that the designated Minister decide

that the service is ineligible to be a declared service even if:

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Section 44LC

122 Competition and Consumer Act 2010

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(a) the service is proposed to be provided by means of a facility

specified under paragraph 44PA(2)(a); and

(b) a decision of the Commission is in force under

subsection 44PA(3) approving a tender process, for the

construction and operation of the facility, as a competitive

tender process.

Applicant may withdraw application

(7) The applicant may withdraw the application at any time before the

Council makes a recommendation relating to it.

44LC Council may request information

(1) The Council may give a person a written notice requesting the

person give to the Council, within a specified period, information

of a kind specified in the notice that the Council considers may be

relevant to deciding what recommendation to make on an

application under section 44LB.

(2) The Council must:

(a) give a copy of the notice to:

(i) if the person is not the applicant—the applicant; and

(ii) if the person is not the provider, or the person who

expects to be the provider—that person; and

(b) publish, by electronic or other means, the notice.

(3) In deciding what recommendation to make on the application, the

Council:

(a) must have regard to any information given in compliance

with a notice under subsection (1) within the specified

period; and

(b) may disregard any information of the kind specified in the

notice that is given after the specified period has ended.

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Section 44LD

Competition and Consumer Act 2010 123

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44LD Time limit for Council recommendations

Council to make recommendation within the consideration period

(1) The Council must make a recommendation on an application under

section 44LB within the consideration period.

(2) The consideration period is a period of 180 days (the expected

period), starting at the start of the day the application is received,

unless the consideration period is extended under subsection (7).

Stopping the clock

(3) In working out the expected period in relation to a recommendation

on an application under section 44LB, in a situation referred to in

column 1 of an item of the following table, disregard any day in a

period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Stopping the clock

Item Column 1

Situation

Column 2

Start day

Column 3

End day

1 An agreement is

made in relation to

the application

under

subsection (5)

The first day of

the period

specified in the

agreement

The last day of the period

specified in the agreement

2 A notice is given

under

subsection 44LC(1)

requesting

information in

relation to the

application

The day on

which the notice

is given

The last day of the period

specified in the notice for the

giving of the information

(4) Despite subsection (3):

(a) do not disregard any day more than once; and

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(b) the total period that is disregarded under that subsection must

not exceed 60 days.

Stopping the clock by agreement

(5) The Council and the applicant may agree in writing that a specified

period is to be disregarded in working out the expected period.

(6) The Council must publish, by electronic or other means, the

agreement.

Extension of time for making decision

(7) If the Council is unable to make a recommendation within the

consideration period (whether it is the expected period or it has

been previously extended under this subsection), it must, by notice

in writing to the designated Minister, extend the consideration

period by a specified period.

(8) The notice must:

(a) specify when the Council must now make a recommendation

on the application; and

(b) include a statement explaining why the Council has been

unable to make a decision on the recommendation within the

consideration period.

(9) The Council must give a copy of the notice to:

(a) the applicant; and

(b) if the applicant is not the person who is, or expects to be, the

provider—that person.

Publication

(10) If the Council extends the consideration period under

subsection (7), it must publish a notice in a national newspaper:

(a) stating that it has done so; and

(b) specifying the day by which it must now make a

recommendation on the application.

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Section 44LE

Competition and Consumer Act 2010 125

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Failure to comply with time limit does not affect validity

(11) Failure by the Council to comply with a time limit set in this

section does not affect the validity of a recommendation made

under this section.

44LE Council may invite public submissions on the application

Invitation

(1) The Council may publish, by electronic or other means, a notice

inviting public submissions on an application under section 44LB

if it considers that it is appropriate and practicable to do so.

(2) The notice must specify how submissions may be made and the

day by which submissions may be made (which must be at least 14

days after the day the notice is published).

Consideration of submissions

(3) Subject to subsection (6), in deciding what recommendation to

make on the application, the Council:

(a) must have regard to any submission made on or before the

day specified in the notice; and

(b) may disregard any submission made after the day specified in

the notice.

Council may make submissions publicly available

(4) The Council may make any written submission, or a written record

(which may be a summary) of any oral submission, publicly

available.

Confidentiality

(5) A person may, at the time of making a submission, request that the

Council:

(a) not make the whole or a part of the submission available

under subsection (4); and

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Section 44LF

126 Competition and Consumer Act 2010

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(b) not publish or make available the whole or a part of the

submission under section 44LF;

because of the confidential commercial information contained in

the submission.

(6) If the Council refuses such a request:

(a) for a written submission—the Council must, if the person

who made it so requires, return the whole or the part of it to

the person; and

(b) for an oral submission—the person who made it may inform

the Council that the person withdraws the whole or the part

of it; and

(c) if the Council returns the whole or the part of the submission,

or the person withdraws the whole or the part of the

submission, the Council must not:

(i) make the whole or the part of the submission available

under subsection (4); and

(ii) publish or make available the whole or the part of the

submission under section 44LF; and

(iii) have regard to the whole or the part of the submission in

making its recommendation on the application.

44LF Council must publish its recommendation

Council must publish its recommendation

(1) The Council must publish, by electronic or other means, a

recommendation under section 44LB and its reasons for the

recommendation.

(2) The Council must give a copy of the publication to:

(a) the person who made the application under section 44LB;

and

(b) if the applicant is not the person who is, or expects to be, the

provider—that person.

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Section 44LG

Competition and Consumer Act 2010 127

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Timing

(3) The Council must do the things under subsections (1) and (2) on

the day the designated Minister publishes his or her decision on the

recommendation or as soon as practicable after that day.

Consultation

(4) Before publishing under subsection (1), the Council may give any

one or more of the following persons:

(a) the person who made the application under section 44LB;

(b) any other person the Council considers appropriate;

a notice in writing:

(c) specifying what the Council is proposing to publish; and

(d) inviting the person to make a written submission to the

Council within 14 days after the day the notice is given

identifying any information the person considers should not

be published because of its confidential commercial nature.

(5) The Council must have regard to any submission so made in

deciding what to publish. It may have regard to any other matter it

considers relevant.

Subdivision C—Designated Minister’s decision on ineligibility

44LG Designated Minister’s decision on ineligibility

(1) On receiving an ineligibility recommendation, the designated

Minister must:

(a) decide:

(i) that the service is ineligible to be a declared service; and

(ii) the period for which the decision is in force (which must

be at least 20 years); or

(b) decide that the service is not ineligible to be a declared

service.

Note: The designated Minister must publish his or her decision: see

section 44LH.

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Section 44LG

128 Competition and Consumer Act 2010

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(2) The designated Minister must have regard to the objects of this

Part in making his or her decision.

(3) The designated Minister may decide that the service is ineligible to

be a declared service even if the service is the subject of an access

undertaking in operation under Division 6.

(4) The designated Minister may decide that the service is ineligible to

be a declared service even if:

(a) the service is proposed to be provided by means of a facility

specified under paragraph 44PA(2)(a); and

(b) a decision of the Commission is in force under

subsection 44PA(3) approving a tender process, for the

construction and operation of the facility, as a competitive

tender process.

(5) The designated Minister must not decide that the service is

ineligible to be a declared service unless he or she is satisfied of

both of the following matters:

(a) that the service is to be provided by means of the proposed

facility when constructed;

(b) that he or she is not satisfied of at least one of the matters

referred to in subsection 44H(4) in relation to the service to

be provided by means of the proposed facility.

(6) If the designated Minister does not publish under section 44LH his

or her decision on the ineligibility recommendation within the

period starting at the start of the day the recommendation is

received and ending at the end of 60 days after that day:

(a) the designated Minister is taken, immediately after the end of

that 60-day period, to have made a decision under

subsection (1) in accordance with the ineligibility

recommendation and to have published that decision under

section 44LH; and

(b) if the Council recommended that the designated Minister

decide that the service be ineligible to be a declared

service—the period for which the decision is in force is taken

to be the period recommended by the Council.

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Section 44LH

Competition and Consumer Act 2010 129

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(7) A decision of the designated Minister under subsection (1) is not a

legislative instrument.

44LH Designated Minister must publish his or her decision

(1) The designated Minister must publish, by electronic or other

means, his or her decision on an ineligibility recommendation and

his or her reasons for the decision.

(2) The designated Minister must give a copy of the publication to the

person who made the application under section 44LB.

Consultation

(3) Before publishing under subsection (1), the designated Minister

may give any one or more of the following persons:

(a) the person who made the application under section 44LB;

(b) any other person the designated Minister considers

appropriate;

a notice in writing:

(c) specifying what the designated Minister is proposing to

publish; and

(d) inviting the person to make a written submission to the

designated Minister within 14 days after the day the notice is

given identifying any information the person considers

should not be published because of its confidential

commercial nature.

(4) The designated Minister must have regard to any submission so

made in deciding what to publish. He or she may have regard to

any other matter he or she considers relevant.

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Section 44LI

130 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision D—Revocation of ineligibility decision

44LI Revocation of ineligibility decision

Council may recommend revocation if facility materially different

or upon request

(1) The Council may recommend to the designated Minister that the

designated Minister revoke his or her decision (the ineligibility

decision) that a service is ineligible to be a declared service. The

Council must have regard to the objects of this Part in making its

recommendation.

(2) The Council cannot recommend that a decision be revoked unless:

(a) it is satisfied that, at the time of the recommendation, the

facility that is (or will be) used to provide the service

concerned is so materially different from the proposed

facility described in the application made under section 44LB

that the Council is satisfied of all of the matters mentioned in

subsection 44G(2) in relation to the service; or

(b) the person who is, or expects to be, the provider of the

service that is provided, or that is proposed to be provided,

by means of the facility requests that it be revoked.

Minister must decide whether to revoke

(3) On receiving a recommendation that the designated Minister

revoke the ineligibility decision, the designated Minister must

either revoke the ineligibility decision or decide not to revoke the

ineligibility decision.

(4) The designated Minister must have regard to the objects of this

Part in making his or her decision.

Minister must publish decision

(5) The designated Minister must publish, by electronic or other

means, the decision to revoke or not to revoke the ineligibility

decision.

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Section 44LI

Competition and Consumer Act 2010 131

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(6) If the designated Minister decides not to revoke the ineligibility

decision, the designated Minister must give reasons for the

decision to the person who is, or expects to be, the provider of the

service concerned when the designated Minister publishes the

decision.

Deemed decision of Minister

(7) If the designated Minister does not publish his or her decision to

revoke or not to revoke the ineligibility decision within the period

starting at the start of the day the recommendation to revoke the

ineligibility decision is received and ending at the end of 60 days

after that day, the designated Minister is taken, immediately after

the end of that 60-day period:

(a) to have made a decision (the deemed decision) under

subsection (3) that the ineligibility decision be revoked; and

(b) to have published the deemed decision under subsection (5).

Limits on when a revocation can be made

(8) The designated Minister cannot revoke the ineligibility decision

without receiving a recommendation from the Council that the

ineligibility decision be revoked.

When a revocation comes into operation

(9) If the designated Minister revokes the ineligibility decision, the

revocation comes into operation at:

(a) if, within 21 days after the designated Minister publishes his

or her decision, no person has applied to the Tribunal for

review of the decision—the end of that period; or

(b) if a person applies to the Tribunal within that period for

review of the decision and the Tribunal affirms the

decision—the time of the Tribunal’s decision.

Decision is not a legislative instrument

(10) A decision of the designated Minister under subsection (3) is not a

legislative instrument.

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Section 44LJ

132 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision E—Review of decisions

44LJ Review of ineligibility decisions

Application for review

(1) A person whose interests are affected by a decision of the

designated Minister under subsection 44LG(1) may apply in

writing to the Tribunal for a review of the decision.

(2) An application for review must be made within 21 days after

publication of the designated Minister’s decision.

(3) The review by the Tribunal is a reconsideration of the matter based

on the information, reports and things referred to in

section 44ZZOAA.

Note: There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal’s decision on the review (see section 44ZZOA).

(4) For the purposes of the review, the Tribunal has the same powers

as the designated Minister.

Council to provide assistance

(5) The member of the Tribunal presiding at the review may require

the Council to give assistance for the purposes of the review.

(6) Without limiting subsection (5), the member may, by written

notice, require the Council to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(7) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the person who is, or expects to be, the provider of the

service; and

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(iii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

Tribunal’s decision

(8) If the designated Minister decided that a service is ineligible to be a

declared service, the Tribunal may affirm, vary or set aside the

decision.

Note: If the Tribunal sets aside a decision of the designated Minister that a

service is ineligible to be a declared service, the designated Minister’s

decision is no longer in force. This means the designated Minister is

no longer prevented by subsection 44H(6C) from declaring the

service.

(9) If the designated Minister decided that a service is not ineligible to

be a declared service, the Tribunal may either:

(a) affirm the designated Minister’s decision; or

(b) set aside the designated Minister’s decision and decide that

the service is ineligible to be a declared service for a

specified period (which must be at least 20 years).

Effect of Tribunal’s decision

(10) The Tribunal’s decision is taken to be a decision by the designated

Minister for all purposes of this Part (except this section).

44LK Review of decision to revoke or not revoke an ineligibility

decision

Application for review

(1) A person whose interests are affected by a decision of the

designated Minister under subsection 44LI(3) may apply in writing

to the Tribunal for a review of the decision.

(2) An application for review must be made within 21 days after

publication of the designated Minister’s decision.

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Section 44LK

134 Competition and Consumer Act 2010

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(3) The review by the Tribunal is a reconsideration of the matter based

on the information, reports and things referred to in

section 44ZZOAA.

Note: There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal’s decision on the review (see section 44ZZOA).

(4) For the purposes of the review, the Tribunal has the same powers

as the designated Minister.

Council to give assistance

(5) The member of the Tribunal presiding at the review may require

the Council to give assistance for the purposes of the review.

(6) Without limiting subsection (5), the member may, by written

notice, require the Council to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(7) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the person who is, or expects to be, the provider of the

service; and

(iii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

Tribunal’s decision

(8) If the designated Minister decided to revoke his or her decision

(the ineligibility decision) that the service is ineligible to be a

declared service, the Tribunal may either:

(a) affirm the designated Minister’s decision; or

(b) set aside the designated Minister’s decision to revoke the

ineligibility decision.

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Section 44LL

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(9) If the designated Minister decided not to revoke his or her

ineligibility decision, the Tribunal may either:

(a) affirm the designated Minister’s decision; or

(b) set aside the designated Minister’s decision and revoke the

ineligibility decision.

Effect of Tribunal’s decision

(10) If the Tribunal sets aside the designated Minister’s decision to

revoke his or her ineligibility decision, the ineligibility decision is

taken never to have been revoked.

(11) If the Tribunal sets aside the designated Minister’s decision and

revokes the ineligibility decision, the Tribunal’s decision is, for the

purposes of this Part other than this section, taken to be a decision

by the Minister to revoke his or her decision that the service is

ineligible to be a declared service.

Subdivision F—Other matters

44LL Ineligibility decisions subject to alteration, cancellation etc.

(1) A decision of the designated Minister under section 44LG that a

service is ineligible to be a declared service is made on the basis

that:

(a) the decision may be revoked under section 44LI; and

(b) the decision may be cancelled, revoked, terminated or varied

by or under later legislation; and

(c) no compensation is payable if the decision is cancelled,

revoked, terminated or varied as mentioned in any of the

above paragraphs.

(2) Subsection (1) does not, by implication, affect the interpretation of

any other provision of this Act.

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Division 2A Effective access regimes

Section 44M

136 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2A—Effective access regimes

Subdivision A—Recommendation by Council

44M Recommendation for a Ministerial decision on effectiveness of

access regime

(1) This section applies if a State or Territory that is a party to the

Competition Principles Agreement has established at any time a

regime for access to a service or a proposed service.

(2) The responsible Minister for the State or Territory may make a

written application to the Council asking the Council to

recommend that the Commonwealth Minister decide that the

regime for access to the service or proposed service is an effective

access regime.

(3) The Council must recommend to the Commonwealth Minister:

(a) that he or she decide that the access regime is an effective

access regime for the service, or proposed service; or

(b) that he or she decide that the access regime is not an effective

access regime for the service, or proposed service.

Note 1: There are time limits that apply to the Council’s recommendation: see

section 44NC.

Note 2: The Council may request information and invite public submissions

on the application: see sections 44MA and 44NE.

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

(4) In deciding what recommendation it should make, the Council:

(a) must, subject to subsection (4A), assess whether the access

regime is an effective access regime by applying the relevant

principles set out in the Competition Principles Agreement;

and

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

(b) must, subject to section 44DA, not consider any other

matters.

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Section 44MA

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(4A) In deciding what recommendation it should make, the Council

must disregard Chapter 5 of a National Gas Law.

(5) When the Council recommends that the Commonwealth Minister

make a particular decision, the Council must also recommend the

period for which the decision should be in force.

44MA Council may request information

(1) The Council may give a person a written notice requesting the

person give to the Council, within a specified period, information

of the kind specified in the notice that the Council considers may

be relevant to deciding what recommendation to make on an

application under section 44M.

(2) The Council must:

(a) give a copy of the notice to:

(i) if the person is not the applicant—the applicant; and

(ii) if the person is not the provider of the service—the

provider; and

(b) publish, by electronic or other means, the notice.

(3) In deciding what recommendation to make on the application, the

Council:

(a) must have regard to any information given in compliance

with a notice under subsection (1) within the specified

period; and

(b) may disregard any information of the kind specified in the

notice that is given after the specified period has ended.

Subdivision B—Decision by Commonwealth Minister

44N Ministerial decision on effectiveness of access regime

(1) On receiving a recommendation under section 44M, the

Commonwealth Minister must:

(a) decide that the access regime is an effective access regime

for the service or proposed service; or

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(b) decide that the access regime is not an effective access

regime for the service or proposed service.

Note: The Commonwealth Minister must publish his or her decision: see

section 44NG.

(2) In making a decision, the Commonwealth Minister:

(a) must, subject to subsection (2A), apply the relevant

principles set out in the Competition Principles Agreement;

and

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

(b) must, subject to section 44DA, not consider any other

matters.

(2A) In making a decision, the Commonwealth Minister must disregard

Chapter 5 of a National Gas Law.

(3) The decision must specify the period for which it is in force.

Note: The period for which the decision is in force may be extended: see

section 44NB.

(4) If the Commonwealth Minister does not publish under

section 44NG his or her decision on a recommendation under

section 44M within the period starting at the start of the day the

recommendation is received and ending at the end of 60 days after

that day:

(a) the Commonwealth Minister is taken, immediately after the

end of that 60-day period:

(i) to have made a decision under subsection (1) in

accordance with the recommendation made by the

Council under section 44M; and

(ii) to have published that decision under section 44NG; and

(b) if the Council recommended that the Commonwealth

Minister decide that the access regime is an effective access

regime for the service, or proposed service—the decision is

taken to be in force for the period recommended by the

Council under subsection 44M(5).

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Section 44NA

Competition and Consumer Act 2010 139

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Subdivision C—Extensions of Commonwealth Minister’s

decision

44NA Recommendation by Council

(1) This section applies if a decision of the Commonwealth Minister is

in force under section 44N (including as a result of an extension

under section 44NB) that a regime established by a State or

Territory for access to a service is an effective access regime.

Application to Council

(2) The responsible Minister for the State or Territory may make a

written application to the Council asking it to recommend that the

Commonwealth Minister decide to extend the period for which the

decision is in force.

Note: The Commonwealth Minister may extend the period for which the

decision is in force more than once: see section 44NB. This means

there may be multiple applications under this subsection.

(3) The responsible Minister for the State or Territory may specify in

the application proposed variations to the access regime.

Assessment by Council

(4) The Council must assess whether the access regime (including any

proposed variations) is an effective access regime. It must do this

in accordance with subsection 44M(4).

(5) If the Council is satisfied that it is an effective access regime, the

Council must, in writing, recommend to the Commonwealth

Minister that he or she extend the period for which the decision

under section 44N is in force. The Council must also recommend

an extension period.

(6) If the Council is satisfied that it is not an effective access regime,

the Council must, in writing, recommend to the Commonwealth

Minister that he or she not extend the period for which the decision

under section 44N is in force.

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Section 44NAA

140 Competition and Consumer Act 2010

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Note 1: There are time limits that apply to the Council’s recommendation: see

section 44NC.

Note 2: The Council may request information and invite public submissions

on the application: see sections 44NAA and 44NE.

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

44NAA Council may request information

(1) The Council may give a person a written notice requesting the

person give to the Council, within a specified period, information

of the kind specified in the notice that the Council considers may

be relevant to deciding what recommendation to make on an

application under section 44NA.

(2) The Council must:

(a) give a copy of the notice to:

(i) if the person is not the applicant—the applicant; and

(ii) if the person is not the provider of the service—the

provider; and

(b) publish, by electronic or other means, the notice.

(3) In deciding what recommendation to make on the application, the

Council:

(a) must have regard to any information given in compliance

with a notice under subsection (1) within the specified

period; and

(b) may disregard any information of the kind specified in the

notice that is given after the specified period has ended.

44NB Decision by the Commonwealth Minister

(1) On receiving a recommendation under section 44NA, the

Commonwealth Minister must assess whether the access regime

(including any proposed variations) is an effective access regime.

He or she must do this in accordance with subsection 44N(2).

Note: The Commonwealth Minister must publish his or her decision: see

section 44NG.

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Section 44NB

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(2) If the Commonwealth Minister is satisfied that it is, he or she must,

by notice in writing, decide to extend the period for which the

decision under section 44N is in force. The notice must specify the

extension period.

(3) If the Commonwealth Minister is satisfied that it is not, he or she

must, by notice in writing, decide not to extend the period for

which the decision under section 44N is in force.

(3A) If the Commonwealth Minister does not publish under

section 44NG his or her decision on a recommendation under

section 44NA within the period starting at the start of the day the

recommendation is received and ending at the end of 60 days after

that day:

(a) the Commonwealth Minister is taken, immediately after the

end of that 60-day period:

(i) to have made a decision under this section in

accordance with the recommendation made by the

Council under section 44NA; and

(ii) to have published that decision under section 44NG; and

(b) if the Council recommended that the Commonwealth

Minister extend the period for which the decision under

section 44N is in force—the extension period is taken to be

the extension period recommended by the Council under

subsection 44NA(5).

Multiple extensions

(4) The Commonwealth Minister may extend the period for which a

decision is in force under section 44N more than once.

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Section 44NC

142 Competition and Consumer Act 2010

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Subdivision D—Procedural provisions

44NC Time limit for Council recommendations

Council to make recommendation within the consideration period

(1) The Council must make a recommendation on an application under

section 44M or 44NA within the consideration period.

(2) The consideration period is a period of 180 days (the expected

period), starting at the start of the day the application is received,

unless the consideration period is extended under subsection (7).

Stopping the clock

(3) In working out the expected period in relation to a recommendation

on an application under section 44M or 44NA, in a situation

referred to in column 1 of an item of the following table, disregard

any day in a period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Stopping the clock

Item Column 1

Situation

Column 2

Start day

Column 3

End day

1 An agreement is made

in relation to the

application under

subsection (5)

The first day of the

period specified in

the agreement

The last day of the period

specified in the agreement

2 A notice is given under

subsection 44MA(1)

requesting information

in relation to the

application

The day on which

the notice is given

The last day of the period

specified in the notice for

the giving of the

information

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Stopping the clock

Item Column 1

Situation

Column 2

Start day

Column 3

End day

3 A notice is given under

subsection 44NAA(1)

requesting information

in relation to the

application

The day on which

the notice is given

The last day of the period

specified in the notice for

the giving of the

information

(4) Despite subsection (3):

(a) do not disregard any day more than once; and

(b) the total period that is disregarded under that subsection must

not exceed 60 days.

Stopping the clock by agreement

(5) The Council, the applicant and the provider of the service (if the

provider is not the applicant) may agree in writing that a specified

period is to be disregarded in working out the expected period.

(6) The Council must publish, by electronic or other means, the

agreement.

Council may extend time for making recommendation

(7) If the Council is unable to make a recommendation within the

consideration period (whether it is the expected period or the

consideration period as previously extended under this subsection),

it must, by notice in writing to the Commonwealth Minister, extend

the consideration period by a specified period.

(8) The notice must:

(a) specify when the Council must now make its

recommendation on the application; and

(b) include a statement explaining why the Council has been

unable to make a decision on the recommendation within the

consideration period.

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Section 44NE

144 Competition and Consumer Act 2010

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(9) The Council must give a copy of the notice to:

(a) the applicant; and

(b) if the applicant is not the provider of the service—the

provider.

Publication

(10) If the Council extends the consideration period under

subsection (7), it must publish a notice in a national newspaper:

(a) stating that it has done so; and

(b) specifying the day by which it must now make a

recommendation on the application.

Failure to comply with time limit does not affect validity

(11) Failure by the Council to comply with a time limit set in this

section does not affect the validity of a recommendation made

under this section.

44NE Council may invite public submissions

Invitation

(1) The Council may publish, by electronic or other means, a notice

inviting public submissions on an application under section 44M or

44NA if it considers that it is appropriate and practicable to do so.

(2) The notice must specify how submissions may be made and the

day by which submissions may be made (which must be at least 14

days after the day the notice is published).

Consideration of submissions

(3) Subject to subsection (6), in deciding what recommendation to

make on the application, the Council:

(a) must have regard to any submission made on or before the

day specified in the notice; and

(b) may disregard any submission made after the day specified in

the notice.

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Council may make submissions publicly available

(4) The Council may make any written submission, or a written record

(which may be a summary) of any oral submission, publicly

available.

Confidentiality

(5) A person may, at the time of making a submission, request that the

Council:

(a) not make the whole or a part of the submission available

under subsection (4); and

(b) not publish or make available the whole or a part of the

submission under section 44NF;

because of the confidential commercial information contained in

the submission.

(6) If the Council refuses such a request:

(a) for a written submission—the Council must, if the person

who made it so requires, return the whole or the part of it to

the person; and

(b) for an oral submission—the person who made it may inform

the Council that the person withdraws the whole or the part

of it; and

(c) if the Council returns the whole or the part of the submission,

or the person withdraws the whole or the part of the

submission, the Council must not:

(i) make the whole or the part of the submission available

under subsection (4); and

(ii) publish or make available the whole or the part of the

submission under section 44NF; and

(iii) have regard to the whole or the part of the submission in

making its recommendation on the application.

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Section 44NF

146 Competition and Consumer Act 2010

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44NF Publication—Council

(1) The Council must publish, by electronic or other means, a

recommendation under section 44M or 44NA and its reasons for

the recommendation.

(2) The Council must give a copy of the publication to:

(a) the applicant under section 44M or 44NA; and

(b) the provider of the service.

Timing

(3) The Council must do the things under subsections (1) and (2) on

the day the Commonwealth Minister publishes his or her decision

on the recommendation or as soon as practicable after that day.

Consultation

(4) Before publishing under subsection (1), the Council may give any

one or more of the following persons:

(a) the applicant under section 44M or 44NA;

(b) the provider of the service;

(c) any other person the Council considers appropriate;

a notice in writing:

(d) specifying what the Council is proposing to publish; and

(e) inviting the person to make a written submission to the

Council within 14 days after the notice is given identifying

any information the person considers should not be published

because of its confidential commercial nature.

(5) The Council must have regard to any submission so made in

deciding what to publish. It may have regard to any other matter it

considers relevant.

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Section 44NG

Competition and Consumer Act 2010 147

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44NG Publication—Commonwealth Minister

(1) The Commonwealth Minister must publish, by electronic or other

means, his or her decision on a recommendation under

section 44M or 44NA and his or her reasons for the decision.

(2) The Commonwealth Minister must give a copy of the publication

to:

(a) the applicant under section 44M or 44NA; and

(b) the provider of the service.

Consultation

(3) Before publishing under subsection (1), the Commonwealth

Minister may give any one or more of the following persons:

(a) the applicant under section 44M or 44NA;

(b) the provider of the service;

(c) any other person the Minister considers appropriate;

a notice in writing:

(d) specifying what the Minister is proposing to publish; and

(e) inviting the person to make a written submission to the

Minister within 14 days after the notice is given identifying

any information the person considers should not be published

because of its confidential commercial nature.

(4) The Commonwealth Minister must have regard to any submission

so made in deciding what to publish. He or she may have regard to

any other matter he or she considers relevant.

Subdivision E—Review of decisions

44O Review of Ministerial decision on effectiveness of access regime

(1) The responsible Minister of the State or Territory:

(a) who applied for a recommendation under section 44M that

the Commonwealth Minister decide that the access regime is

an effective access regime; or

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(b) who applied for a recommendation under section 44NA that

the Commonwealth Minister decide to extend the period for

which the decision under section 44N is in force;

may apply to the Tribunal for review of the Commonwealth

Minister’s decision.

(2) An application for review must be made within 21 days after

publication of the Commonwealth Minister’s decision.

(3) The review by the Tribunal is a reconsideration of the matter based

on the information, reports and things referred to in

section 44ZZOAA.

Note: There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal’s decision on the review (see section 44ZZOA).

(4) For the purposes of the review, the Tribunal has the same powers

as the Commonwealth Minister.

(5) The member of the Tribunal presiding at the review may require

the Council to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Council to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for the review; and

(ii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

(6) The Tribunal may affirm, vary or reverse the Commonwealth

Minister’s decision.

(7) A decision made by the Tribunal is to be taken to be a decision of

the Commonwealth Minister for all purposes of this Part (except

this section).

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Section 44P

Competition and Consumer Act 2010 149

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Subdivision F—State or Territory ceasing to be a party to

Competition Principles Agreement

44P State or Territory ceasing to be a party to Competition

Principles Agreement

If a State or Territory that has established a regime for access to a

service or proposed service ceases to be a party to the Competition

Principles Agreement:

(a) a decision by the Commonwealth Minister that the regime is

an effective access regime ceases to be in force; and

(b) the Council, the Commonwealth Minister and the Tribunal

need not take any further action relating to an application for

a decision by the Commonwealth Minister that the regime is

an effective access regime.

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Part IIIA Access to services

Division 2B Competitive tender processes for government owned facilities

Section 44PA

150 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2B—Competitive tender processes for government

owned facilities

44PA Approval of competitive tender process

Application to Commission

(1) The Commonwealth Minister, or the responsible Minister of a

State or Territory, may make a written application to the

Commission asking it to approve a tender process, for the

construction and operation of a facility that is to be owned by the

Commonwealth, State or Territory, as a competitive tender

process.

(2) The application must:

(a) specify the service or services proposed to be provided by

means of the facility; and

(b) be in accordance with the regulations.

Decision of Commission

(3) The Commission must, by notice in writing, approve or refuse to

approve the tender process as a competitive tender process.

Note 1: While a decision is in force approving a tender process as a

competitive tender process, the designated Minister cannot declare

any service provided by means of the facility that was specified under

paragraph (2)(a): see subsection 44H(3A).

Note 2: There are time limits that apply to the Commission’s decision: see

section 44PD.

Note 3: The Commission may request information and invite public

submissions on the application: see sections 44PAA and 44PE.

Note 4: The Commission must publish its decision: see section 44PF.

(4) The Commission must not approve a tender process as a

competitive tender process unless:

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(a) it is satisfied that reasonable terms and conditions of access

to any service specified under paragraph (2)(a) will be the

result of the process; and

(b) it is satisfied that the tender process meets the requirements

prescribed by the regulations.

(4A) The Commission may approve the tender process as a competitive

tender process even if the service proposed to be provided by

means of the facility is the subject of a decision by the designated

Minister under section 44LG that the service is ineligible to be a

declared service.

Period for which decision in force

(5) If the Commission approves the tender process as a competitive

tender process, it may specify in the notice the period for which the

decision is in force.

Note: Section 44PC provides for revocation of the decision.

(6) The Commission may, by writing, extend that period by a specified

period. The Commission may do so more than once.

Legislation Act 2003

(7) A notice under subsection (3) is not a legislative instrument.

44PAA Commission may request information

(1) The Commission may give a person a written notice requesting the

person give to the Commission, within a specified period,

information of the kind specified in the notice that the Commission

considers may be relevant to deciding whether to approve or refuse

to approve a tender process under section 44PA.

(2) The Commission must:

(a) if the person is not the applicant—give a copy of the notice to

the applicant; and

(b) publish, by electronic or other means, the notice.

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Section 44PB

152 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) In deciding whether to approve or refuse to approve the tender

process, the Commission:

(a) must have regard to any information given in compliance

with a notice under subsection (1) within the specified

period; and

(b) may disregard any information of the kind specified in the

notice that is given after the specified period has ended.

44PB Report on conduct of tender process

Report

(1) If the Commission approves a tender process as a competitive

tender process, it must, after a tenderer is chosen, ask the applicant

under subsection 44PA(1), by notice in writing, to give the

Commission a written report on the conduct of the tender process.

(2) The report must be in accordance with the regulations.

Commission may ask for further information

(3) After the Commission receives the report, it may ask the applicant

under subsection 44PA(1), by notice in writing, to give the

Commission further information in relation to the conduct of the

tender process.

Legislation Act 2003

(4) A report under subsection (1) is not a legislative instrument.

44PC Revocation of approval decision

Discretionary revocation

(1) The Commission may, by writing, revoke a decision to approve a

tender process as a competitive tender process if it is satisfied that

the assessment of the tenders was not in accordance with that

process.

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Competition and Consumer Act 2010 153

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Note 1: The Commission may invite public submissions on any proposed

revocation decision: see section 44PE.

Note 2: The Commission must publish its decision: see section 44PF.

(2) The Commission may, by writing, revoke a decision to approve a

tender process as a competitive tender process if it is satisfied that

the provider of a service:

(a) specified under paragraph 44PA(2)(a); and

(b) being provided by means of the facility concerned;

is not complying with the terms and conditions of access to the

service.

Note 1: The Commission may invite public submissions on any proposed

revocation decision: see section 44PE.

Note 2: The Commission must publish its decision: see section 44PF.

(3) Before making a decision under subsection (2), the Commission

must give the applicant under subsection 44PA(1), and the provider

of the service, a written notice:

(a) stating that the Commission is proposing to make such a

decision and the reasons for it; and

(b) inviting the person to make a written submission to the

Commission on the proposal; and

(c) stating that any submission must be made within the period

of 40 business days after the notice is given.

(4) The Commission must consider any written submission received

within that period.

Mandatory revocation

(5) If:

(a) the Commission approves a tender process as a competitive

tender process; and

(b) the Commission gives the applicant a notice under

subsection 44PB(1) or (3); and

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Section 44PD

154 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) the applicant does not comply with the notice within the

period of 40 business days beginning on the day on which the

notice is given;

the Commission must, by writing, revoke the approval decision at

the end of that period. The Commission must give notice of the

revocation to the applicant.

Definition

(6) In this section:

business day means a day that is not a Saturday, a Sunday, or a

public holiday in the Australian Capital Territory.

44PD Time limit for Commission decisions

Commission to make decision within 90 days

(1) The Commission must make a decision on an application under

subsection 44PA(1) within the period of 90 days (the expected

period) starting at the start of the day the application is received.

Stopping the clock

(2) In working out the expected period in relation to a decision on an

application under subsection 44PA(1), in a situation referred to in

column 1 of an item of the following table, disregard any day in a

period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Stopping the clock

Item Column 1

Situation

Column 2

Start day

Column 3

End day

1 An agreement is

made in relation to

the application under

subsection (4)

The first day

of the period

specified in

the agreement

The last day of the period

specified in the agreement

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Stopping the clock

Item Column 1

Situation

Column 2

Start day

Column 3

End day

2 A notice is given

under

subsection 44PAA(1)

requesting

information in

relation to the

application

The day on

which the

notice is given

The last day of the period

specified in the notice for the

giving of the information

3 A notice is published

under

subsection 44PE(1)

inviting public

submissions in

relation to the

application

The day on

which the

notice is

published

The day specified in the notice as

the day by which submissions

may be made

(3) Despite subsection (2), do not disregard any day more than once.

Stopping the clock by agreement

(4) The Commission and the applicant may agree in writing that a

specified period is to be disregarded in working out the expected

period.

(5) The Commission must publish, by electronic or other means, the

agreement.

Deemed approval as a competitive tender process

(6) If the Commission does not publish under subsection 44PF(1) its

decision on the application within the expected period, it is taken,

immediately after the end of the expected period, to have:

(a) approved the tender process as a competitive tender process;

and

(b) published the decision to approve the process and its reasons

for that decision; and

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Section 44PE

156 Competition and Consumer Act 2010

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(c) specified that the decision is in force for a period of 20 years,

starting 21 days after the start of the day the decision is taken

to have been published.

44PE Commission may invite public submissions

Invitation

(1) The Commission may publish, by electronic or other means, a

notice inviting public submissions:

(a) on an application under subsection 44PA(1); or

(b) on any proposed decision under subsection 44PC(1) or (2) to

revoke a decision under subsection 44PA(3) to approve a

tender process as a competitive tender process;

if it considers that it is appropriate and practicable to do so.

(2) The notice must specify how submissions may be made and the

day by which submissions may be made (which must be at least 14

days after the day the notice is published).

Consideration of submissions

(3) Subject to subsection (6), in making its decision, the Commission:

(a) must have regard to any submission made on or before the

day specified in the notice; and

(b) may disregard any submission made after the day specified in

the notice.

Commission may make submissions publicly available

(4) The Commission may make any written submission, or a written

record (which may be a summary) of any oral submission, publicly

available.

Confidentiality

(5) A person may, at the time of making a submission, request that the

Commission:

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(a) not make the whole or a part of the submission available

under subsection (4); and

(b) not publish or make available the whole or a part of the

submission under section 44PF;

because of the confidential commercial information contained in

the submission.

(6) If the Commission refuses such a request:

(a) for a written submission—the Commission must, if the

person who made it so requires, return the whole or the part

of it to the person; and

(b) for an oral submission—the person who made it may inform

the Commission that the person withdraws the whole or the

part of it; and

(c) if the Commission returns the whole or the part of the

submission, or the person withdraws the whole or the part of

the submission, the Commission must not:

(i) make the whole or the part of the submission available

under subsection (4); and

(ii) publish or make available the whole or the part of the

submission under section 44PF; and

(iii) have regard to the whole or the part of the submission in

making its decision.

44PF Commission must publish its decisions

(1) The Commission must publish, by electronic or other means, a

decision under subsection 44PA(3) or 44PC(1) or (2) and its

reasons for the decision.

(2) The Commission must give a copy of the publication to:

(a) for any decision—the applicant under subsection 44PA(1);

and

(b) for a decision under subsection 44PC(2)—the provider of the

service.

It may also give a copy to any other person the Commission

considers appropriate.

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Section 44PG

158 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Consultation

(3) Before publishing under subsection (1), the Commission may give

the following persons:

(a) for any decision—the applicant under subsection 44PA(1) or

any other person the Commission considers appropriate;

(b) for a decision under subsection 44PC(2)—the provider of the

service;

a notice in writing:

(c) specifying what the Commission is proposing to publish; and

(d) inviting the person to make a written submission to the

Commission within 14 days after the notice is given

identifying any information the person considers should not

be published because of its confidential commercial nature.

(4) The Commission must have regard to any submission so made in

deciding what to publish. It may have regard to any other matter it

considers relevant.

44PG Review of Commission’s initial decision

Application

(1) A person whose interests are affected by a decision of the

Commission under subsection 44PA(3) may apply in writing to the

Tribunal for review of the decision.

(2) The person must apply for review within 21 days after the

Commission publishes its decision.

Review

(3) The review by the Tribunal is a reconsideration of the matter based

on the information, reports and things referred to in

section 44ZZOAA.

Note: There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal’s decision on the review (see section 44ZZOA).

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(4) For the purposes of the review, the Tribunal has the same powers

as the Commission.

(5) The member of the Tribunal presiding at the review may require

the Commission to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Commission to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the person who made the application under

subsection 44PA(1) requesting approval of a tender

process as a competitive tender process; and

(iii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

Tribunal’s decision

(6) If the Commission refused to approve a tender process as a

competitive tender process, the Tribunal must, by writing:

(a) affirm the Commission’s decision; or

(b) set aside the Commission’s decision and approve the process

as a competitive tender process.

(7) A decision of the Tribunal to approve a process as a competitive

tender process is taken to be a decision by the Commission for all

purposes of this Part (except this section).

(8) If the Commission approved a tender process as a competitive

tender process, the Tribunal must, by writing, affirm or set aside

the Commission’s decision.

Note: If the Tribunal sets aside a decision of the Commission to approve a

tender process as a competitive tender process, the Commission’s

decision is no longer in force. This means the designated Minister is

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Section 44PH

160 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

no longer prevented by subsection 44H(3A) from declaring a service

provided by means of the facility concerned.

44PH Review of decision to revoke an approval

Application

(1) If the Commission makes a decision under subsection 44PC(1) or

(2), the following persons may apply in writing to the Tribunal for

review of the decision:

(a) for either decision—the applicant under subsection 44PA(1)

or any other person whose interests are affected by the

decision;

(b) for a decision under subsection 44PC(2)—the provider of the

service.

(2) The person must apply for review within 21 days after the

Commission publishes its decision.

Review

(3) The review by the Tribunal is a reconsideration of the matter based

on the information, reports and things referred to in

section 44ZZOAA.

Note: There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal’s decision on the review (see section 44ZZOA).

(4) For the purposes of the review, the Tribunal has the same powers

as the Commission.

(5) The member of the Tribunal presiding at the review may require

the Commission to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Commission to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

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(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the person who made the application under

subsection 44PA(1) requesting approval of a tender

process as a competitive tender process; and

(iii) for a review of a decision under subsection 44PC(2)—

the provider of the service; and

(iv) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

Tribunal’s decision

(6) The Tribunal must, by writing, affirm or set aside the

Commission’s decision.

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Division 2C Register of decisions and declarations

Section 44Q

162 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2C—Register of decisions and declarations

44Q Register of decisions, declarations and ineligibility decisions

The Commission must maintain a public register that includes:

(a) each decision of the Commonwealth Minister that a regime

established by a State or Territory for access to a service is an

effective access regime for the service or proposed service;

and

(aa) each decision of the Commonwealth Minister to extend the

period for which a decision under section 44N is in force;

and

(b) each declaration (including a declaration that is no longer in

force); and

(ba) each decision of a designated Minister under section 44LG

that a service is ineligible to be a declared service; and

(bb) each decision of a designated Minister under section 44LI to

revoke his or her decision that a service is ineligible to be a

declared service; and

(c) each decision of the Commission under subsection 44PA(3)

to approve a tender process as a competitive tender process;

and

(d) each decision of the Commission under section 44PC to

revoke a decision under subsection 44PA(3).

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Section 44R

Competition and Consumer Act 2010 163

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Access to declared services

Subdivision A—Scope of Division

44R Constitutional limits on operation of this Division

This Division does not apply in relation to a third party’s access to

a service unless:

(a) the provider is a corporation (or a partnership or joint venture

consisting wholly of corporations); or

(b) the third party is a corporation; or

(c) the access is (or would be) in the course of, or for the

purposes of, constitutional trade or commerce.

Subdivision B—Notification of access disputes

44S Notification of access disputes

(1) If a third party is unable to agree with the provider on one or more

aspects of access to a declared service, either the provider or the

third party may notify the Commission in writing that an access

dispute exists, but only to the extent that those aspects of access are

not the subject of an access undertaking that is in operation in

relation to the service.

Note: An example of one of the things on which a provider and third party

might disagree is whether a previous determination ought to be varied.

(2) On receiving the notification, the Commission must give notice in

writing of the access dispute to:

(a) the provider, if the third party notified the access dispute;

(b) the third party, if the provider notified the access dispute;

(c) any other person whom the Commission thinks might want to

become a party to the arbitration.

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Section 44T

164 Competition and Consumer Act 2010

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44T Withdrawal of notifications

(1) A notification may be withdrawn as follows (and not otherwise):

(a) if the provider notified the dispute:

(i) the provider may withdraw the notification at any time

before the Commission makes its final determination;

(ii) the third party may withdraw the provider’s notification

at any time after the Commission issues a draft final

determination, but before it makes its final

determination;

(b) if the third party notified the dispute, the third party may

withdraw the notification at any time before the Commission

makes its determination.

(2) Despite subparagraph (1)(a)(ii), if the provider notified a dispute

over variation of a final determination, the third party may not

withdraw the provider’s notification.

(3) If the notification is withdrawn, it is taken for the purposes of this

Part never to have been given.

Subdivision C—Arbitration of access disputes

44U Parties to the arbitration

The parties to the arbitration of an access dispute are:

(a) the provider;

(b) the third party;

(c) any other person who applies in writing to be made a party

and is accepted by the Commission as having a sufficient

interest.

44V Determination by Commission

(1) Unless it terminates the arbitration under section 44Y, 44YA,

44ZZCB or 44ZZCBA, the Commission:

(a) must make a written final determination; and

(b) may make a written interim determination;

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Section 44W

Competition and Consumer Act 2010 165

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

on access by the third party to the service.

Note 1: There are time limits that apply to the Commission’s final

determination: see section 44XA.

Note 2: The Commission may defer arbitration of the access dispute if it is

also considering an access undertaking: see section 44ZZCB.

(2) A determination may deal with any matter relating to access by the

third party to the service, including matters that were not the basis

for notification of the dispute. By way of example, the

determination may:

(a) require the provider to provide access to the service by the

third party;

(b) require the third party to accept, and pay for, access to the

service;

(c) specify the terms and conditions of the third party’s access to

the service;

(d) require the provider to extend the facility;

(da) require the provider to permit interconnection to the facility

by the third party;

(e) specify the extent to which the determination overrides an

earlier determination relating to access to the service by the

third party.

(3) A determination does not have to require the provider to provide

access to the service by the third party.

(4) Before making a determination, the Commission must give a draft

determination to the parties.

(5) When the Commission makes a determination, it must give the

parties to the arbitration its reasons for making the determination.

(6) A determination is not a legislative instrument.

44W Restrictions on access determinations

(1) The Commission must not make a determination that would have

any of the following effects:

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(a) preventing an existing user obtaining a sufficient amount of

the service to be able to meet the user’s reasonably

anticipated requirements, measured at the time when the

dispute was notified;

(b) preventing a person from obtaining, by the exercise of a

pre-notification right, a sufficient amount of the service to be

able to meet the person’s actual requirements;

(c) depriving any person of a protected contractual right;

(d) resulting in the third party becoming the owner (or one of the

owners) of any part of the facility, or of extensions of the

facility, without the consent of the provider;

(e) requiring the provider to bear some or all of the costs of

extending the facility or maintaining extensions of the

facility;

(f) requiring the provider to bear some or all of the costs of

interconnections to the facility or maintaining

interconnections to the facility.

(2) Paragraphs (1)(a) and (b) do not apply in relation to the

requirements and rights of the third party and the provider when

the Commission is making a determination in arbitration of an

access dispute relating to an earlier determination of an access

dispute between the third party and the provider.

(3) A determination is of no effect if it is made in contravention of

subsection (1).

(4) If the Commission makes a determination that has the effect of

depriving a person (the second person) of a pre-notification right

to require the provider to supply the service to the second person,

the determination must also require the third party:

(a) to pay to the second person such amount (if any) as the

Commission considers is fair compensation for the

deprivation; and

(b) to reimburse the provider and the Commonwealth for any

compensation that the provider or the Commonwealth agrees,

or is required by a court order, to pay to the second party as

compensation for the deprivation.

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Section 44X

Competition and Consumer Act 2010 167

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note: Without infringing paragraph (1)(b), a determination may deprive a

second person of the right to be supplied with an amount of service

equal to the difference between the total amount of service the person

was entitled to under a pre-notification right and the amount that the

person actually needs to meet his or her actual requirements.

(4A) If an application for review of a declaration of a service has been

made under subsection 44K(1), the Commission must not make a

determination in relation to the service until the Tribunal has made

its decision on the review.

(5) In this section:

existing user means a person (including the provider) who was

using the service at the time when the dispute was notified.

pre-notification right means a right under a contract, or under a

determination, that was in force at the time when the dispute was

notified.

protected contractual right means a right under a contract that was

in force at the beginning of 30 March 1995.

44X Matters that the Commission must take into account

Final determinations

(1) The Commission must take the following matters into account in

making a final determination:

(aa) the objects of this Part;

(a) the legitimate business interests of the provider, and the

provider’s investment in the facility;

(b) the public interest, including the public interest in having

competition in markets (whether or not in Australia);

(c) the interests of all persons who have rights to use the service;

(d) the direct costs of providing access to the service;

(e) the value to the provider of extensions whose cost is borne by

someone else;

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(ea) the value to the provider of interconnections to the facility

whose cost is borne by someone else;

(f) the operational and technical requirements necessary for the

safe and reliable operation of the facility;

(g) the economically efficient operation of the facility;

(h) the pricing principles specified in section 44ZZCA.

(2) The Commission may take into account any other matters that it

thinks are relevant.

Interim determinations

(3) The Commission may take the following matters into account in

making an interim determination:

(a) a matter referred to in subsection (1);

(b) any other matter it considers relevant.

(4) In making an interim determination, the Commission does not have

a duty to consider whether to take into account a matter referred to

in subsection (1).

44XA Time limit for Commission’s final determination

Commission to make final determination within 180 days

(1) The Commission must make a final determination within the

period of 180 days (the expected period) starting at the start of the

day the application is received.

Stopping the clock

(2) In working out the expected period in relation to a final

determination, in a situation referred to in column 1 of an item of

the following table, disregard any day in a period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

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Section 44XA

Competition and Consumer Act 2010 169

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Stopping the clock

Item Column 1

Situation

Column 2

Start day

Column 3

End day

1 An agreement is made in

relation to the arbitration

under subsection (4)

The first day of

the period

specified in the

agreement

The last day of the period

specified in the agreement

2 A direction is given

under

subsection 44ZG(1) to

give information or make

a submission within a

specified period

The first day of

the period

specified for the

giving of the

information or

the making of

the submission

The last day of the period

specified for the giving of

the information or the

making of the submission

3 A decision is published

under

subsection 44ZZCB(4)

deferring consideration

of the dispute while the

Commission considers

an access undertaking

The day on

which the

decision is

published

The day on which the

Commission makes its

decision on the access

undertaking under

subsection 44ZZA(3)

4 The Commission, under

subsection 44ZZCBA(1)

or (2), defers arbitrating

the dispute while a

declaration is under

review by the Tribunal

The day on

which the

Commission

gives the notice

to defer

arbitrating the

dispute

The day the Tribunal makes

its decision under

section 44K on the review

(3) Despite subsection (2), do not disregard any day more than once.

Stopping the clock by agreement

(4) The Commission and the parties to the access dispute may agree in

writing that a specified period is to be disregarded in working out

the expected period.

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Section 44Y

170 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(5) The Commission must publish, by electronic or other means, the

agreement.

Deemed final determination

(6) If the Commission does not publish under section 44ZNB a written

report about a final determination within the expected period, it is

taken, immediately after the end of the expected period, to have:

(a) made a final determination that does not impose any

obligations on the parties or alter any obligations (if any) that

exist at that time between the parties; and

(b) published a written report about the final determination under

section 44ZNB.

44Y Commission may terminate arbitration in certain cases

(1) The Commission may at any time terminate an arbitration (without

making a final determination) if it thinks that:

(a) the notification of the dispute was vexatious; or

(b) the subject matter of the dispute is trivial, misconceived or

lacking in substance; or

(c) the party who notified the dispute has not engaged in

negotiations in good faith; or

(d) access to the service should continue to be governed by an

existing contract between the provider and the third party.

(2) In addition, if the dispute is about varying an existing

determination, the Commission may terminate the arbitration if it

thinks there is no sufficient reason why the previous determination

should not continue to have effect in its present form.

44YA Commission must terminate arbitration if declaration varied

or set aside by Tribunal

If the Commission is arbitrating a dispute in relation to a declared

service and the Tribunal sets aside or varies the declaration in

relation to the service under section 44K, the Commission must

terminate the arbitration.

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Section 44Z

Competition and Consumer Act 2010 171

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision D—Procedure in arbitrations

44Z Constitution of Commission for conduct of arbitration

For the purposes of a particular arbitration, the Commission is to

be constituted by 2 or more members of the Commission

nominated in writing by the Chairperson.

44ZA Member of the Commission presiding at an arbitration

(1) Subject to subsection (2), the Chairperson is to preside at an

arbitration.

(2) If the Chairperson is not a member of the Commission as

constituted under section 44Z in relation to a particular arbitration,

the Chairperson must nominate a member of the Commission to

preside at the arbitration.

44ZB Reconstitution of Commission

(1) This section applies if a member of the Commission who is one of

the members who constitute the Commission for the purposes of a

particular arbitration:

(a) stops being a member of the Commission; or

(b) for any reason, is not available for the purpose of the

arbitration.

(2) The Chairperson must either:

(a) direct that the Commission is to be constituted for the

purposes of finishing the arbitration by the remaining

member or members; or

(b) direct that the Commission is to be constituted for that

purpose by the remaining member or members together with

one or more other members of the Commission.

(3) If a direction under subsection (2) is given, the Commission as

constituted in accordance with the direction must continue and

finish the arbitration and may, for that purpose, have regard to any

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Section 44ZC

172 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

record of the proceedings of the arbitration made by the

Commission as previously constituted.

44ZC Determination of questions

If the Commission is constituted for an arbitration by 2 or more

members of the Commission, any question before the Commission

is to be decided:

(a) unless paragraph (b) applies—according to the opinion of the

majority of those members; or

(b) if the members are evenly divided on the question—

according to the opinion of the member who is presiding.

44ZD Hearing to be in private

(1) Subject to subsection (2), an arbitration hearing for an access

dispute is to be in private.

(2) If the parties agree, an arbitration hearing or part of an arbitration

hearing may be conducted in public.

(3) The member of the Commission who is presiding at an arbitration

hearing that is conducted in private may give written directions as

to the persons who may be present.

(4) In giving directions under subsection (3), the member presiding

must have regard to the wishes of the parties and the need for

commercial confidentiality.

44ZE Right to representation

In an arbitration hearing before the Commission under this Part, a

party may appear in person or be represented by someone else.

44ZF Procedure of Commission

(1) In an arbitration hearing about an access dispute, the Commission:

(a) is not bound by technicalities, legal forms or rules of

evidence; and

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Section 44ZG

Competition and Consumer Act 2010 173

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) must act as speedily as a proper consideration of the dispute

allows, having regard to the need to carefully and quickly

inquire into and investigate the dispute and all matters

affecting the merits, and fair settlement, of the dispute; and

(c) may inform itself of any matter relevant to the dispute in any

way it thinks appropriate.

(2) The Commission may determine the periods that are reasonably

necessary for the fair and adequate presentation of the respective

cases of the parties to an access dispute, and may require that the

cases be presented within those periods.

(3) The Commission may require evidence or argument to be

presented in writing, and may decide the matters on which it will

hear oral evidence or argument.

(4) The Commission may determine that an arbitration hearing is to be

conducted by:

(a) telephone; or

(b) closed circuit television; or

(c) any other means of communication.

44ZG Particular powers of Commission

(1) The Commission may do any of the following things for the

purpose of arbitrating an access dispute:

(a) give a direction in the course of, or for the purposes of, an

arbitration hearing;

(b) hear and determine the arbitration in the absence of a person

who has been summoned or served with a notice to appear;

(c) sit at any place;

(d) adjourn to any time and place;

(e) refer any matter to an expert and accept the expert’s report as

evidence;

(f) generally give all such directions, and do all such things, as

are necessary or expedient for the speedy hearing and

determination of the access dispute.

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Section 44ZH

174 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) A person must not do any act or thing in relation to the arbitration

of an access dispute that would be a contempt of court if the

Commission were a court of record.

Penalty: Imprisonment for 6 months.

(3) Subsection (1) has effect subject to any other provision of this Part

and subject to the regulations.

(4) The Commission may give an oral or written order to a person not

to divulge or communicate to anyone else specified information

that was given to the person in the course of an arbitration unless

the person has the Commission’s permission.

(5) A person who contravenes an order under subsection (4) is guilty

of an offence, punishable on conviction by imprisonment for a

term not exceeding 6 months.

44ZH Power to take evidence on oath or affirmation

(1) The Commission may take evidence on oath or affirmation and for

that purpose a member of the Commission may administer an oath

or affirmation.

(2) The member of the Commission who is presiding may summon a

person to appear before the Commission to give evidence and to

produce such documents (if any) as are referred to in the summons.

(3) The powers in this section may be exercised only for the purposes

of arbitrating an access dispute.

44ZI Failing to attend as a witness

A person who is served, as prescribed, with a summons to appear

as a witness before the Commission must not, without reasonable

excuse:

(a) fail to attend as required by the summons; or

(b) fail to appear and report himself or herself from day to day

unless excused, or released from further attendance, by a

member of the Commission.

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Section 44ZJ

Competition and Consumer Act 2010 175

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Penalty: Imprisonment for 6 months.

44ZJ Failing to answer questions etc.

(1) A person appearing as a witness before the Commission must not,

without reasonable excuse:

(a) refuse or fail to be sworn or to make an affirmation; or

(b) refuse or fail to answer a question that the person is required

to answer by the Commission; or

(c) refuse or fail to produce a document that he or she was

required to produce by a summons under this Part served on

him or her as prescribed.

Penalty: Imprisonment for 6 months.

(2) It is a reasonable excuse for the purposes of subsection (1) for an

individual to refuse or fail to answer a question or produce a

document on the ground that the answer or the production of the

document might tend to incriminate the individual or to expose the

individual to a penalty. This subsection does not limit what is a

reasonable excuse for the purposes of subsection (1).

44ZK Intimidation etc.

A person must not:

(a) threaten, intimidate or coerce another person; or

(b) cause or procure damage, loss or disadvantage to another

person;

because that other person:

(c) proposes to produce, or has produced, documents to the

Commission; or

(d) proposes to appear or has appeared as a witness before the

Commission.

Penalty: Imprisonment for 12 months.

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Section 44ZL

176 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

44ZL Party may request Commission to treat material as

confidential

(1) A party to an arbitration hearing may:

(a) inform the Commission that, in the party’s opinion, a

specified part of a document contains confidential

commercial information; and

(b) request the Commission not to give a copy of that part to

another party.

(2) On receiving a request, the Commission must:

(a) inform the other party or parties that the request has been

made and of the general nature of the matters to which the

relevant part of the document relates; and

(b) ask the other party or parties whether there is any objection

to the Commission complying with the request.

(3) If there is an objection to the Commission complying with a

request, the party objecting may inform the Commission of its

objection and of the reasons for it.

(4) After considering:

(a) a request; and

(b) any objection; and

(c) any further submissions that any party has made in relation to

the request;

the Commission may decide not to give to the other party or parties

a copy of so much of the document as contains confidential

commercial information that the Commission thinks should not be

so given.

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

arbitration

Sections 18 and 19 do not apply to the Commission, as constituted

for an arbitration.

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Section 44ZN

Competition and Consumer Act 2010 177

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

44ZN Parties to pay costs of an arbitration

The regulations may provide for the Commission to:

(a) charge the parties to an arbitration for its costs in conducting

the arbitration; and

(b) apportion the charge between the parties.

44ZNA Joint arbitration hearings

Joint arbitration hearing

(1) If:

(a) the Commission is arbitrating 2 or more access disputes at a

particular time; and

(b) one or more matters are common to those disputes;

the Chairperson may, by notice in writing, decide that the

Commission must hold a joint arbitration hearing in respect of such

of those disputes (the nominated disputes) as are specified in the

notice.

(2) The Chairperson may do so only if he or she considers this would

be likely to result in the nominated disputes being resolved in a

more efficient and timely manner.

Consulting the parties

(3) Before doing so, the Chairperson must give each party to the

arbitration of each nominated dispute a notice in writing:

(a) specifying what the Chairperson is proposing to do; and

(b) inviting the party to make a written submission on the

proposal to the Chairperson within 14 days after the notice is

given.

(4) The Chairperson must have regard to any submission so made in

deciding whether to do so. He or she may have regard to any other

matter he or she considers relevant.

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Section 44ZNA

178 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Directions to presiding member

(5) The Chairperson may, for the purposes of the conduct of the joint

arbitration hearing, give written directions to the member of the

Commission presiding at the hearing.

Constitution and procedure of Commission

(6) Sections 44Z to 44ZN apply to the joint arbitration hearing in a

corresponding way to the way in which they apply to a particular

arbitration.

Note: For example, the Chairperson would be required to nominate in

writing 1 or more members of the Commission to constitute the

Commission for the purposes of the joint arbitration hearing.

Record of proceedings etc.

(7) The Commission as constituted for the purposes of the joint

arbitration hearing may have regard to any record of the

proceedings of the arbitration of any nominated dispute.

(8) The Commission as constituted for the purposes of the arbitration

of each nominated dispute may, for the purposes of making a

determination in relation to that arbitration:

(a) have regard to any record of the proceedings of the joint

arbitration hearing; and

(b) adopt any findings of fact made by the Commission as

constituted for the purposes of the joint arbitration hearing.

Legislation Act 2003

(9) The following are not legislative instruments:

(a) a notice made under subsection (1);

(b) a direction given under subsection (5).

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Section 44ZNB

Competition and Consumer Act 2010 179

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision DA—Arbitration reports

44ZNB Arbitration reports

(1) The Commission must prepare a written report about a final

determination it makes. It must publish, by electronic or other

means, the report.

(2) The report may include the whole or a part of the determination

and the reasons for the determination or the part of the

determination.

Report must include certain matters

(3) The report must set out the following matters:

(a) the principles the Commission applied in making the

determination;

(b) the methodologies the Commission applied in making the

determination and the reasons for the choice of the asset

valuation methodology;

(c) how the Commission took into account the matters

mentioned in subsection 44X(1) in making the determination;

(d) any matter the Commission took into account under

subsection 44X(2) in making the determination and the

reasons for doing so;

(e) any information provided by the parties to the arbitration that

was relevant to those principles or methodologies;

Note: Confidentiality issues are dealt with in subsections (5) to (7).

(f) any implications the Commission considers the determination

has for persons seeking access to the service or to similar

services in the future;

(g) if applicable—the reasons for the determination dealing with

matters that were already agreed between the parties to the

arbitration at the time the access dispute was notified;

(h) if applicable—the reasons for the access dispute being the

subject of a joint arbitration hearing under section 44ZNA

despite the objection of a party to the arbitration.

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Section 44ZO

180 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Report may include other matters

(4) The report may include any other matter that the Commission

considers relevant.

Confidentiality

(5) The Commission must not include in the report any information the

Commission decided not to give to a party to the arbitration under

section 44ZL.

(6) Before publishing the report, the Commission must give each party

to the arbitration a notice in writing:

(a) specifying what the Commission is proposing to publish; and

(b) inviting the party to make a written submission to the

Commission within 14 days after the notice is given

identifying any information the party considers should not be

published because of its confidential commercial nature.

(7) The Commission must have regard to any submission so made in

deciding what to publish. It may have regard to any other matter it

considers relevant.

Legislation Act 2003

(8) A report prepared under subsection (1) is not a legislative

instrument.

Subdivision E—Effect of determinations

44ZO Operation of final determinations

(1) If none of the parties to the arbitration applies to the Tribunal under

section 44ZP for a review of the Commission’s final determination,

the determination has effect 21 days after the determination is

made.

(2) If a party to the arbitration applies to the Tribunal under

section 44ZP for a review of the Commission’s final determination,

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Section 44ZO

Competition and Consumer Act 2010 181

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the determination is of no effect until the Tribunal makes its

determination on the review.

Backdating

(3) Any or all of the provisions of a final determination may be

expressed to apply from a specified day that is earlier than the day

on which it takes effect under subsection (1) or (2).

Example: The Commission makes a final determination on 1 August. It takes

effect under subsection (1) on 22 August, but it is expressed to apply

from 1 July.

(4) The specified day must not be earlier than the following day:

(a) if the third party and provider commenced negotiations on

access to the service after the service became a declared

service—the day on which the negotiations commenced;

(b) if the third party and provider commenced negotiations on

access to the service before the service became a declared

service—the day on which the declaration began to operate.

However, the specified day cannot be a day on which the third

party did not have access to the service.

Operation of interim determination

(5) If a provision of a final determination is expressed to apply from a

day when an interim determination was in effect, the provision of

the final determination prevails over the interim determination to

the extent set out in the final determination.

Interest

(6) If:

(a) a provision of a final determination is covered by

subsection (3); and

(b) the provision requires a party to the determination (the first

party) to pay money to another party;

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Section 44ZOA

182 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the determination may require the first party to pay interest to the

other party, at the rate specified in the determination, on the whole

or a part of the money, for the whole or a part of the period:

(c) beginning on the day specified under subsection (3); and

(d) ending on the day on which the determination takes effect

under subsection (1) or (2).

Guidelines

(7) In exercising the power conferred by subsection (3) or (6), the

Commission must have regard to any guidelines in force under

subsection (8). It may have regard to any other matter it considers

relevant.

(8) The Commission must, by legislative instrument, determine

guidelines for the purposes of subsection (7).

(9) The Commission must take all reasonable steps to ensure that the

first set of guidelines under subsection (8) is made within 6 months

after the commencement of this subsection.

44ZOA Effect and duration of interim determinations

(1) An interim determination takes effect on the day specified in the

determination.

(2) Unless sooner revoked, an interim determination continues in

effect until the earliest of the following:

(a) the notification of the access dispute is withdrawn under

section 44T;

(b) a final determination relating to the access dispute takes

effect;

Note: A backdated final determination may prevail over an interim determination: see subsection 44ZO(5).

(c) an interim determination made by the Tribunal (while

reviewing a final determination relating to the access dispute)

takes effect.

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Section 44ZP

Competition and Consumer Act 2010 183

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision F—Review of final determinations

44ZP Review by Tribunal

(1) A party to a final determination may apply in writing to the

Tribunal for a review of the determination.

(2) The application must be made within 21 days after the Commission

made the final determination.

(3) A review by the Tribunal is a re-arbitration of the access dispute

based on the information, reports and things referred to in

section 44ZZOAA.

Note: There are time limits that apply to the Tribunal’s decision on the

review: see section 44ZZOA.

(4) For the purposes of the review, the Tribunal has the same powers

as the Commission.

(5) The member of the Tribunal presiding at the review may require

the Commission to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Commission to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the other party or parties to the final determination; and

(iii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

(6) The Tribunal may either affirm or vary the Commission’s

determination.

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Section 44ZQ

184 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(7) The determination, as affirmed or varied by the Tribunal, is to be

taken to be a determination of the Commission for all purposes of

this Part (except this section).

(8) The decision of the Tribunal takes effect from when it is made.

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

Sections 37, 39 to 43 (inclusive) and 103 to 110 (inclusive) do not

apply in relation to a review by the Tribunal of a final

determination made by the Commission.

44ZR Appeals to Federal Court from determinations of the

Tribunal

(1) A party to an arbitration may appeal to the Federal Court, on a

question of law, from the decision of the Tribunal under

section 44ZP.

(2) An appeal by a person under subsection (1) must be instituted:

(a) not later than the 28th day after the day on which the decision

of the Tribunal is made or within such further period as the

Federal Court (whether before or after the end of that day)

allows; and

(b) in accordance with the Rules of Court made under the

Federal Court of Australia Act 1976.

(3) The Federal Court must hear and determine the appeal and may

make any order that it thinks appropriate.

(4) The orders that may be made by the Federal Court on appeal

include (but are not limited to):

(a) an order affirming or setting aside the decision of the

Tribunal; and

(b) an order remitting the matter to be decided again by the

Tribunal in accordance with the directions of the Federal

Court.

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Section 44ZS

Competition and Consumer Act 2010 185

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

44ZS Operation and implementation of a determination that is

subject to appeal

(1) Subject to this section, the fact that an appeal is instituted in the

Federal Court from a decision of the Tribunal does not affect the

operation of the decision or prevent action being taken to

implement the decision.

(2) If an appeal is instituted in the Federal Court from a decision of the

Tribunal, the Federal Court or a judge of the Federal Court may

make any orders staying or otherwise affecting the operation or

implementation of the decision of the Tribunal that the Federal

Court or judge thinks appropriate to secure the effectiveness of the

hearing and determination of the appeal.

(3) If an order is in force under subsection (2) (including an order

previously varied under this subsection), the Federal Court or a

judge of the Federal Court may make an order varying or revoking

the first-mentioned order.

(4) An order in force under subsection (2) (including an order

previously varied under subsection (3)):

(a) is subject to any conditions that are specified in the order;

and

(b) has effect until:

(i) the end of any period for the operation of the order that

is specified in the order; or

(ii) the giving of a decision on the appeal;

whichever is earlier.

44ZT Transmission of documents

If an appeal is instituted in the Federal Court:

(a) the Tribunal must send to the Federal Court all documents

that were before the Tribunal in connection with the matter to

which the appeal relates; and

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Section 44ZU

186 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) at the conclusion of the proceedings before the Federal Court

in relation to the appeal, the Federal Court must return the

documents to the Tribunal.

Subdivision G—Variation and revocation of determinations

44ZU Variation of final determinations

(1) The Commission may vary a final determination on the application

of any party to the determination. However, it cannot vary the final

determination if any other party objects.

Note: If the parties cannot agree on a variation, a new access dispute can be

notified under section 44S.

(2) Sections 44W and 44X apply to a variation under this section as if:

(a) an access dispute arising out of the final determination had

been notified when the application was made to the

Commission for the variation of the determination; and

(b) the variation were the making of a final determination in the

terms of the varied determination.

44ZUA Variation and revocation of interim determinations

(1) The Commission may, by writing, vary or revoke an interim

determination.

(2) The Commission must, by writing, revoke an interim determination

if requested to do so by the parties to the determination.

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Section 44ZV

Competition and Consumer Act 2010 187

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4—Registered contracts for access to declared

services

44ZV Constitutional limits on operation of this Division

This Division does not apply to a contract unless:

(a) the contract provides for access to a declared service; and

(b) the contract was made after the service was declared; and

(c) the parties to the contract are the provider of the service and a

third party; and

(d) at least one of the following conditions is met:

(i) the provider is a corporation (or a partnership or joint

venture consisting wholly of corporations);

(ii) the third party is a corporation;

(iii) the access is (or would be) in the course of, or for the

purposes of, constitutional trade or commerce.

44ZW Registration of contract

(1) On application by all the parties to a contract, the Commission

must:

(a) register the contract by entering the following details on a

public register:

(i) the names of the parties to the contract;

(ii) the service to which the contract relates;

(iii) the date on which the contract was made; or

(b) decide not to register the contract.

(2) In deciding whether to register a contract, the Commission must

take into account:

(aa) the objects of this Part; and

(a) the public interest, including the public interest in having

competition in markets (whether or not in Australia); and

(b) the interests of all persons who have rights to use the service

to which the contract relates.

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Section 44ZX

188 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2A) The Commission must not register a contract if it deals with a

matter or matters relating to access to the service that are dealt with

in an access undertaking that is in operation.

(3) The Commission must publish a decision not to register a contract.

(4) If the Commission publishes a decision not to register a contract, it

must give the parties to the contract reasons for the decision when

it publishes the decision.

44ZX Review of decision not to register contract

(1) If the Commission decides not to register a contract, a party to the

contract may apply in writing to the Tribunal for review of the

decision.

(2) An application for review must be made within 21 days after

publication of the Commission’s decision.

(3) The review by the Tribunal is a re-consideration of the matter

based on the information, reports and things referred to in

section 44ZZOAA.

Note: There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal’s decision on the review (see section 44ZZOA).

(4) For the purposes of the review, the Tribunal has the same powers

as the Commission.

(5) The member of the Tribunal presiding at the review may require

the Commission to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Commission to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

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Section 44ZY

Competition and Consumer Act 2010 189

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(ii) the other party or parties to the contract; and

(iii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice; and

(6) The Tribunal may either:

(a) affirm the Commission’s decision; or

(b) register the contract.

44ZY Effect of registration of contract

The parties to a contract that has been registered:

(a) may enforce the contract under Division 7 as if the contract

were a determination of the Commission under section 44V

and they were parties to the determination; and

(b) cannot enforce the contract by any other means.

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Part IIIA Access to services

Division 5 Hindering access to declared services

Section 44ZZ

190 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 5—Hindering access to declared services

44ZZ Prohibition on hindering access to declared services

(1) The provider or a user of a service to which a third party has access

under a determination, or a body corporate related to the provider

or a user of the service, must not engage in conduct for the purpose

of preventing or hindering the third party’s access to the service

under the determination.

(2) A person may be taken to have engaged in conduct for the purpose

referred to in subsection (1) even though, after all the evidence has

been considered, the existence of that purpose is ascertainable only

by inference from the conduct of the person or from other relevant

circumstances. This subsection does not limit the manner in which

the purpose of a person may be established for the purposes of

subsection (1).

(3) In this section, a user of a service includes a person who has a right

to use the service.

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Access to services Part IIIA

Access undertakings and access codes for services Division 6

Section 44ZZA

Competition and Consumer Act 2010 191

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 6—Access undertakings and access codes for

services

Subdivision A—Giving of access undertakings and access codes

44ZZA Access undertakings by providers

(1) A person who is, or expects to be, the provider of a service may

give a written undertaking to the Commission in connection with

the provision of access to the service.

Note: The following are examples of the kinds of things that might be dealt

with in the undertaking:

(a) terms and conditions of access to the service;

(b) procedures for determining terms and conditions of access to the service;

(c) an obligation on the provider not to hinder access to the service;

(d) an obligation on the provider to implement a particular business structure;

(e) an obligation on the provider to provide information to the Commission or to another person;

(f) an obligation on the provider to comply with decisions of the Commission or another person in relation to matters specified in the undertaking;

(g) an obligation on the provider to seek a variation of the undertaking in specified circumstances.

(2) The undertaking must specify the expiry date of the undertaking.

(3) The Commission may accept the undertaking, if it thinks it

appropriate to do so having regard to the following matters:

(aa) the objects of this Part;

(ab) the pricing principles specified in section 44ZZCA;

(a) the legitimate business interests of the provider;

(b) the public interest, including the public interest in having

competition in markets (whether or not in Australia);

(c) the interests of persons who might want access to the service;

(da) whether the undertaking is in accordance with an access code

that applies to the service;

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Part IIIA Access to services

Division 6 Access undertakings and access codes for services

Section 44ZZA

192 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(e) any other matters that the Commission thinks are relevant.

Note 1: There are grounds on which the Commission may reject the

undertaking if it contains, or should contain, fixed principles: see

section 44ZZAAB.

Note 2: The Commission may defer consideration of the undertaking if it is

also arbitrating an access dispute: see section 44ZZCB.

(3AA) The Commission must not accept the undertaking if a decision of

the Commonwealth Minister is in force under section 44N that a

regime established by a State or Territory for access to the service

is an effective access regime.

(3AB) The Commission may reject the undertaking if it incorporates one

or more amendments (see subsection 44ZZAAA(5)) and the

Commission is satisfied that the amendment or amendments are of

a kind, are made at a time, or are made in a manner that:

(a) unduly prejudices anyone the Commission considers has a

material interest in the undertaking; or

(b) unduly delays the process for considering the undertaking.

(3A) The Commission must not accept the undertaking unless:

(a) the provider, or proposed provider, is a corporation (or a

partnership or joint venture consisting wholly of

corporations); or

(b) the undertaking provides for access only to third parties that

are corporations; or

(c) the undertaking provides for access that is (or would be) in

the course of, or for the purposes of, constitutional trade or

commerce.

(6) If the undertaking provides for disputes about the undertaking to be

resolved by the Commission, then the Commission may resolve the

disputes in accordance with the undertaking.

(6A) If the undertaking provides for the Commission to perform

functions or exercise powers in relation to the undertaking, the

Commission may perform those functions and exercise those

powers. If the Commission decides to do so, it must do so in

accordance with the undertaking.

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Access undertakings and access codes for services Division 6

Section 44ZZAAA

Competition and Consumer Act 2010 193

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(6B) The Commission may accept the undertaking even if the service is

the subject of a decision by the designated Minister under

section 44LG that the service is ineligible to be a declared service.

(7) The provider may:

(a) withdraw the application given under subsection (1) at any

time before the Commission makes a decision on whether to

accept the application; and

(b) withdraw or vary the undertaking at any time after it has been

accepted by the Commission, but only with the consent of the

Commission.

The Commission may consent to a variation of the undertaking if it

thinks it appropriate to do so having regard to the matters in

subsection (3).

Note 1: There are time limits that apply to a decision of the Commission under

this section: see section 44ZZBC.

Note 2: The Commission may request information and invite public

submissions in relation to its decision: see sections 44ZZBCA and

44ZZBD.

Note 3: The Commission must publish its decision: see section 44ZZBE.

44ZZAAA Proposed amendments to access undertakings

Commission may give an amendment notice in relation to an

undertaking

(1) Before deciding whether to accept an undertaking given to it under

subsection 44ZZA(1) by a person who is, or expects to be, the

provider of a service, the Commission may give the person an

amendment notice in relation to the undertaking.

(2) An amendment notice is a notice in writing that specifies:

(a) the nature of the amendment or amendments (the proposed

amendment or amendments) that the Commission proposes

be made to the undertaking; and

(b) the Commission’s reasons for the proposed amendment or

amendments; and

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Division 6 Access undertakings and access codes for services

Section 44ZZAAA

194 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) the period (the response period) within which the person

may respond to the notice, which must be at least 14 days

after the day the notice was given to the person.

(3) The Commission may publish, by electronic or other means, the

amendment notice.

(4) The Commission may give more than one amendment notice in

relation to an undertaking.

Person may give a revised undertaking in response to notice

(5) If a person receives an amendment notice, the person may, within

the response period, respond to the notice by giving a revised

undertaking to the Commission that incorporates one or more

amendments.

(6) If the revised undertaking incorporates one or more amendments

that the Commission considers are not of the nature proposed in the

amendment notice and do not address the reasons for the proposed

amendments given in the amendment notice, the Commission must

not accept the revised undertaking and must return it to the person

within 21 days of receiving it.

(7) If the person gives a revised undertaking under subsection (5) and

the revised undertaking is not returned to the person under

subsection (6), the revised undertaking is taken, after the time it is

given to the Commission, to be the undertaking given under

section 44ZZA for the purposes of this Part.

(8) The person is taken to have not agreed to the proposed amendment

or amendments if the person does not respond within the response

period.

Commission not required to accept revised undertaking

(9) The Commission is not required to accept the revised undertaking

under section 44ZZA.

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Access to services Part IIIA

Access undertakings and access codes for services Division 6

Section 44ZZAAB

Competition and Consumer Act 2010 195

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

No duty to propose amendments

(10) In considering whether to accept an undertaking, the Commission

does not have a duty to consider whether to propose one or more

amendments to the undertaking.

Notice of proposed amendment is not a legislative instrument

(11) A notice given under subsection (1) is not a legislative instrument.

44ZZAAB Access undertakings containing fixed principles

Access undertakings may contain fixed principles

(1) An access undertaking given to the Commission under

subsection 44ZZA(1) may include one or more terms that, under

the undertaking, are fixed for a specified period.

(2) Each of the terms is a fixed principle and the specified period is a

fixed period. Different periods may be specified for different fixed

principles.

(3) The fixed period must:

(a) start:

(i) when the access undertaking comes into operation; or

(ii) at a later time ascertained in accordance with the

undertaking; and

(b) extend beyond the expiry date of the undertaking.

Consideration of fixed principles

(4) The Commission may reject the undertaking if it:

(a) includes a term that is not a fixed principle and that the

Commission considers should be a fixed principle; or

(b) includes a fixed principle that the Commission considers

should not be fixed; or

(c) includes a fixed principle that the Commission considers

should be fixed for a period that is different from the period

specified in the undertaking.

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Division 6 Access undertakings and access codes for services

Section 44ZZAAB

196 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

However, the Commission must not reject the undertaking solely

on the basis that it is consistent with a fixed principle that is

included in the undertaking in compliance with subsection (6).

Fixed principles must be carried over to later undertakings

(5) Subsection (6) applies if:

(a) the Commission accepts an undertaking (the earlier

undertaking) in connection with the provision of access to a

service that includes a fixed principle; and

(b) an undertaking (the later undertaking) is given to the

Commission in connection with the provision of access to the

service within the fixed period for the fixed principle; and

(c) at the time the later undertaking is given:

(i) the fixed principle has not been revoked under

subsection (7); and

(ii) the earlier undertaking has not been varied under

subsection 44ZZA(7) so that the fixed principle is no

longer a term of the earlier undertaking.

(6) The Commission must not accept the later undertaking under

section 44ZZA unless the undertaking includes a term that is the

same as the fixed principle.

Variation or revocation of fixed principles when no undertaking is

in operation

(7) If there is no access undertaking in operation in connection with

the provision of access to a service, the provider may revoke or

vary a fixed principle that relates to the service (including the fixed

period for the principle), but only with the consent of the

Commission. The Commission may consent to the revocation or

variation of the fixed principle if it thinks it appropriate to do so

having regard to the matters in subsection 44ZZA(3).

Note: Subsection 44ZZA(7) contains provision for fixed principles to be

varied or revoked in the situation where there is an access undertaking

in operation. This may include a variation of the fixed period for the

fixed principle.

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Access undertakings and access codes for services Division 6

Section 44ZZAA

Competition and Consumer Act 2010 197

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Alteration of fixed principles

(8) If an undertaking that is accepted by the Commission contains one

or more fixed principles, the undertaking is accepted on the basis

that:

(a) the principle may be varied or revoked under subsection (7)

or 44ZZA(7); and

(b) the principle may be cancelled, revoked, terminated or varied

by or under later legislation; and

(c) no compensation is payable if the principle is cancelled,

revoked, terminated or varied as mentioned in any of the

above paragraphs.

(9) Subsection (8) does not, by implication, affect the interpretation of

any other provision of this Act.

44ZZAA Access codes prepared by industry bodies

(1) An industry body may give a written code to the Commission

setting out rules for access to a service.

(2) The code must specify the expiry date of the code.

(3) The Commission may accept the code, if it thinks it appropriate to

do so having regard to the following matters:

(aa) the objects of this Part;

(ab) the pricing principles specified in section 44ZZCA;

(a) the legitimate business interests of providers who might give

undertakings in accordance with the code;

(b) the public interest, including the public interest in having

competition in markets (whether or not in Australia);

(c) the interests of persons who might want access to the service

covered by the code;

(e) any matters specified in regulations made for the purposes of

this subsection;

(f) any other matters that the Commission thinks are relevant.

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Division 6 Access undertakings and access codes for services

Section 44ZZAA

198 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3A) The Commission must not accept the code if a decision of the

Commonwealth Minister is in force under section 44N that a

regime established by a State or Territory for access to the service

is an effective access regime.

(6) The industry body may:

(a) withdraw the code given under subsection (1) at any time

before the Commission makes a decision whether to accept

the code; and

(b) withdraw or vary the code at any time after it has been

accepted by the Commission, but only with the consent of the

Commission.

The Commission may consent to a variation of the code if it thinks

it appropriate to do so having regard to the matters in

subsection (3).

Note: The Commission may rely on industry body consultations before

giving its consent: see section 44ZZAB.

(7) If the industry body that gave the code to the Commission has

ceased to exist, a withdrawal or variation under subsection (6) may

be made by a body or association prescribed by the regulations as a

replacement for the original industry body.

(8) In this section:

code means a set of rules (which may be in general terms or

detailed terms).

industry body means a body or association (including a body or

association established by a law of a State or Territory) prescribed

by the regulations for the purposes of this section.

Note 1: There are time limits that apply to a decision of the Commission under

this section: see section 44ZZBC.

Note 2: The Commission may request information and invite public

submissions in relation to its decision: see sections 44ZZBCA and

44ZZBD.

Note 3: The Commission must publish its decision: see section 44ZZBE.

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Access to services Part IIIA

Access undertakings and access codes for services Division 6

Section 44ZZAB

Competition and Consumer Act 2010 199

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

44ZZAB Commission may rely on industry body consultations

(1) The Commission may accept a code if the industry body has done

the following before giving the code to the Commission under

subsection 44ZZAA(1):

(a) published the code or a draft of the code and invited people

to make submissions to the industry body on the code or

draft;

(b) specified the effect of this subsection and subsection (2)

when it published the code or draft;

(c) considered any submissions that were received within the

time limit specified by the industry body when it published

the code or draft.

(2) In deciding whether to accept the code, the Commission may

consider any submission referred to in paragraph (1)(c).

(3) Before consenting to a variation or withdrawal of a code under

subsection 44ZZAA(6), the Commission may rely on:

(a) publication of the variation or notice of the withdrawal by the

industry body, including specification of the effect of this

subsection and subsection (4); and

(b) consideration by the industry body of any submissions that

were received within the time limit specified by the industry

body when it published the variation or notice.

(4) In deciding whether to consent to the variation or withdrawal, the

Commission may consider any submission referred to in

paragraph (3)(b).

(5) In this section:

code has the same meaning as it has in section 44ZZAA.

industry body has the same meaning as it has in section 44ZZAA.

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Division 6 Access undertakings and access codes for services

Section 44ZZBA

200 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision B—Effect of access undertakings and access codes

44ZZBA When access undertakings and access codes come into

operation

Acceptance of access undertakings or access codes

(1) If the Commission accepts an access undertaking or an access

code, it comes into operation at:

(a) if, within 21 days after the Commission publishes its

decision, no person has applied to the Tribunal for review of

the decision—the end of that period; or

(b) if a person applies to the Tribunal within that period for

review of the decision and the Tribunal affirms the

decision—the time of the Tribunal’s decision.

(2) If the Tribunal decides under paragraph 44ZZBF(7)(e) to accept an

access undertaking or access code, it comes into operation at the

time of the Tribunal’s decision.

(3) An access undertaking or access code continues in operation until

its expiry date, unless it is earlier withdrawn.

Note: The period for which an access undertaking or access code is in

operation may be extended: see section 44ZZBB.

Withdrawal or variation of access undertakings or access codes

(4) If the Commission consents to the withdrawal or variation of an

access undertaking or an access code, the withdrawal or variation

comes into operation at:

(a) if, within 21 days after the Commission publishes its

decision, no person has applied to the Tribunal for review of

the decision—the end of that period; or

(b) if a person applies to the Tribunal within that period for

review of the decision and the Tribunal affirms the

decision—the time of the Tribunal’s decision.

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Section 44ZZBB

Competition and Consumer Act 2010 201

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(5) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent

to the withdrawal or variation of an access undertaking or access

code, the withdrawal or variation comes into operation at the time

of the Tribunal’s decision.

Revocation or variation of fixed principles in access undertakings

(6) If the Commission consents to the revocation or variation of a

fixed principle that is included as a term of an access undertaking

under subsection 44ZZAAB(7), the revocation or variation comes

into operation at:

(a) if, within 21 days after the Commission publishes its

decision, no person has applied to the Tribunal for review of

the decision—the end of that period; or

(b) if a person applies to the Tribunal within that period for

review of the decision and the Tribunal affirms the

decision—the time of the Tribunal’s decision.

(7) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent

to the revocation or variation of a fixed principle that is included as

term of an access undertaking, the revocation or variation comes

into operation at the time of the Tribunal’s decision.

Subdivision C—Extensions of access undertakings and access

codes

44ZZBB Extensions of access undertakings and access codes

Access undertakings

(1) If an access undertaking is in operation under section 44ZZBA

(including as a result of an extension under this section), the

provider of the service may apply in writing to the Commission for

an extension of the period for which it is in operation.

Note: The Commission may extend the period for which the undertaking is

in operation more than once: see subsection (8). This means there may

be multiple applications under this subsection.

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Section 44ZZBB

202 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) The provider of the service must specify in the application a

proposed extension period.

(3) The Commission may, by notice in writing, extend the period for

which the undertaking is in operation if it thinks it appropriate to

do so having regard to the matters mentioned in

subsection 44ZZA(3). The notice must specify the extension

period.

Access codes

(4) If an access code is in operation under section 44ZZBA (including

as a result of an extension under this section), the industry body

may apply in writing to the Commission for an extension of the

period for which it is in operation.

Note: The Commission may extend the period for which the code is in

operation more than once: see subsection (8). This means there may

be multiple applications under this subsection.

(5) The industry body must specify in the application a proposed

extension period.

(6) The Commission may, by notice in writing, extend the period for

which the code is in operation if it thinks it appropriate to do so

having regard to the matters mentioned in subsection 44ZZAA(3).

The notice must specify the extension period.

(7) If the industry body that gave the code to the Commission has

ceased to exist, an application under subsection (4) may be made

by a body or association referred to in subsection 44ZZAA(7).

Multiple extensions

(8) The Commission may extend the period for which an access

undertaking or an access code is in operation more than once.

Note 1: There are time limits that apply to a decision of the Commission under

this section: see section 44ZZBC.

Note 2: The Commission may request information and invite public

submissions in relation to its decision: see sections 44ZZBCA and

44ZZBD.

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Access undertakings and access codes for services Division 6

Section 44ZZBC

Competition and Consumer Act 2010 203

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note 3: The Commission must publish its decision: see section 44ZZBE.

Subdivision D—Procedural provisions

44ZZBC Time limit for Commission decisions

Commission to make decision on application within 180 days

(1) The Commission must make a decision on an access undertaking

application or an access code application within the period of 180

days (the expected period) starting at the start of the day the

application is received.

Stopping the clock

(2) In working out the expected period in relation to an access

undertaking application or an access code application, in a situation

referred to in column 1 of an item of the following table, disregard

any day in a period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Stopping the clock

Item Column 1

Situation

Column 2

Start day

Column 3

End day

1 An agreement is made in

relation to the

application under

subsection (4)

The first day of

the period

specified in the

agreement

The last day of the period

specified in the agreement

2 A notice is given under

subsection 44ZZBCA(1)

requesting information in

relation to the

application

The day on

which the notice

is given

The last day of the period

specified in the notice for the

giving of the information

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Section 44ZZBC

204 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Stopping the clock

Item Column 1

Situation

Column 2

Start day

Column 3

End day

3 A notice is published

under

subsection 44ZZBD(1)

inviting public

submissions in relation

to the application

The day on

which the notice

is published

The day specified in the

notice as the day by which

submissions may be made

4 A decision is published

under

subsection 44ZZCB(4)

deferring consideration

of whether to accept the

access undertaking, in

whole or in part, while

the Commission

arbitrates an access

dispute

The day on

which the

decision is

published

The day on which the final

determination in relation to

the arbitration of the access

dispute is made

(3) Despite subsection (2), do not disregard any day more than once.

Stopping the clock by agreement

(4) The Commission and:

(a) for an access undertaking application—the provider of the

service; and

(b) for an access code application—the industry body or its

replacement;

may agree in writing that a specified period is to be disregarded in

working out the expected period.

(5) The Commission must publish, by electronic or other means, the

agreement.

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Section 44ZZBCA

Competition and Consumer Act 2010 205

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Deemed final determination

(6) If the Commission does not publish under section 44ZZBE an

access undertaking decision or an access code decision within the

expected period, it is taken, immediately after the end of the

expected period, to have:

(a) made a decision to not accept the application; and

(b) published its decision under section 44ZZBE and its reasons

for that decision.

44ZZBCA Commission may request information

(1) The Commission may give a person a written notice requesting the

person give to the Commission, within a specified period,

information of a kind specified in the notice that the Commission

considers may be relevant to making a decision on an access

undertaking application or an access code application.

(2) The Commission must:

(a) give a copy of the notice to:

(i) in the case of an access undertaking application—the

provider of the service (unless the provider is the

person); and

(ii) in the case of an access code application—the industry

body that gave the application to the Commission

(unless the body is the person); and

(b) publish, by electronic or other means, the notice.

(3) In making a determination, the Commission:

(a) must have regard to any information given in compliance

with a notice under subsection (1) within the specified

period; and

(b) may disregard any information of the kind specified in the

notice that is given after the specified period has ended.

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Section 44ZZBD

206 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

44ZZBD Commission may invite public submissions

Invitation

(1) The Commission may publish, by electronic or other means, a

notice inviting public submissions on an access undertaking

application or an access code application if it considers that it is

appropriate and practicable to do so.

(2) The notice must specify how submissions may be made and the

day by which submissions may be made (which must be at least 14

days after the day the notice is published).

Consideration of submissions

(3) Subject to subsection (6), in making its decision on the application,

the Commission:

(a) must have regard to any submission made on or before the

day specified in the notice; and

(b) may disregard any submission made after the day specified in

the notice.

Commission may make submissions publicly available

(4) The Commission may make any written submission, or a written

record (which may be a summary) of any oral submission, publicly

available.

Confidentiality

(5) A person may, at the time of making a submission, request that the

Commission:

(a) not make the whole or a part of the submission available

under subsection (4); and

(b) not publish or make available the whole or a part of the

submission under section 44ZZBE;

because of the confidential commercial information contained in

the submission.

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Section 44ZZBE

Competition and Consumer Act 2010 207

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(6) If the Commission refuses such a request:

(a) for a written submission—the Commission must, if the

person who made it so requires, return the whole or the part

of it to the person; and

(b) for an oral submission—the person who made it may inform

the Commission that the person withdraws the whole or the

part of it; and

(c) if the Commission returns the whole or the part of the

submission, or the person withdraws the whole or the part of

the submission, the Commission must not:

(i) make the whole or the part of the submission available

under subsection (4); and

(ii) publish or make available the whole or the part of the

submission under section 44ZZBE; and

(iii) have regard to the whole or the part of the submission in

making its decision on the application.

44ZZBE Commission must publish its decisions

(1) The Commission must publish, by electronic or other means, an

access undertaking decision or an access code decision and its

reasons for the decision.

(2) The Commission must give a copy of the publication to:

(a) for an access undertaking decision—the provider of the

service; or

(b) for an access code decision—the industry body or its

replacement.

Consultation

(3) Before publishing under subsection (1), the Commission may give

any one or more of the following persons:

(a) for an access undertaking decision—the provider of the

service;

(b) for an access code decision—the industry body or its

replacement;

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Section 44ZZBF

208 Competition and Consumer Act 2010

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(c) in any case—any other person the Commission considers

appropriate;

a notice in writing:

(d) specifying what the Commission is proposing to publish; and

(e) inviting the person to make a written submission to the

Commission within 14 days after the notice is given

identifying any information the person considers should not

be published because of its confidential commercial nature.

(4) The Commission must have regard to any submission so made in

deciding what to publish. It may have regard to any other matter it

considers relevant.

Subdivision E—Review of decisions

44ZZBF Review of decisions

Application

(1) A person whose interests are affected by an access undertaking

decision or an access code decision may apply in writing to the

Tribunal for review of the decision.

(2) The person must apply for review within 21 days after the

Commission publishes its decision.

Review

(3) The review by the Tribunal is a reconsideration of the matter based

on the information, reports and things referred to in

section 44ZZOAA.

Note: There are limits on the information to which the Tribunal may have

regard (see section 44ZZOAA) and time limits that apply to the

Tribunal’s decision on the review (see section 44ZZOA).

(4) For the purposes of the review, the Tribunal has the same powers

as the Commission (other than the power to propose amendments

under section 44ZZAAA).

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Section 44ZZBF

Competition and Consumer Act 2010 209

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(5) The member of the Tribunal presiding at the review may require

the Commission to give assistance for the purposes of the review.

(5A) Without limiting subsection (5), the member may, by written

notice, require the Commission to give information, and to make

reports, of a kind specified in the notice, within the period

specified in the notice, for the purposes of the review.

(5B) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) the provider of the service; and

(iii) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

Tribunal’s decision

(6) If the Commission:

(a) accepted an access undertaking or access code; or

(b) consented to the withdrawal or variation of an access

undertaking or access code; or

(ba) consented to the revocation or variation of a fixed principle

under subsection 44ZZAAB(7); or

(c) extended the period for which an access undertaking or

access code is in operation;

the Tribunal must, by writing, affirm or set aside the Commission’s

decision.

(7) If the Commission:

(a) rejected an access undertaking or access code; or

(b) refused to consent to the withdrawal or variation of an access

undertaking or access code; or

(ba) refused to consent to the revocation or variation of a fixed

principle under subsection 44ZZAAB(7); or

(c) refused to extend the period for which an access undertaking

or access code is in operation;

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Section 44ZZC

210 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the Tribunal must, by writing:

(d) affirm the Commission’s decision; or

(e) set aside the Commission’s decision and accept the

undertaking or code, consent to the withdrawal or variation

of the undertaking or code, consent to the revocation or

variation of the fixed principle or extend the period for which

the undertaking or code is in operation.

Subdivision F—Register of access undertakings and access

codes

44ZZC Register of access undertakings and access codes

(1) The Commission must maintain a public register that includes all

access undertakings and access codes that have been accepted by

the Commission, including those that are no longer in operation.

(1A) For the purposes of subsection (1), if an access undertaking

includes one or more fixed principles, the register must also

include details of the fixed principles, including their fixed periods.

(2) The register must include all variations of access undertakings and

access codes.

(3) The register must also include details of all extensions of the

period for which an access undertaking or an access code is in

operation.

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

Section 44ZZCA

Competition and Consumer Act 2010 211

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 6A—Pricing principles for access disputes and

access undertakings or codes

44ZZCA Pricing principles for access disputes and access

undertakings or codes

The pricing principles relating to the price of access to a service

are:

(a) that regulated access prices should:

(i) be set so as to generate expected revenue for a regulated

service or services that is at least sufficient to meet the

efficient costs of providing access to the regulated

service or services; and

(ii) include a return on investment commensurate with the

regulatory and commercial risks involved; and

(b) that the access price structures should:

(i) allow multi-part pricing and price discrimination when

it aids efficiency; and

(ii) not allow a vertically integrated access provider to set

terms and conditions that discriminate in favour of its

downstream operations, except to the extent that the

cost of providing access to other operators is higher; and

(c) that access pricing regimes should provide incentives to

reduce costs or otherwise improve productivity.

Note: The Commission must have regard to the principles in making a final

determination under Division 3 and in deciding whether or not to

accept an access undertaking or access code under Division 6.

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Division 6B Overlap among determinations, registered contracts, access undertakings

and Tribunal review

Section 44ZZCB

212 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 6B—Overlap among determinations, registered

contracts, access undertakings and Tribunal

review

44ZZCB Deferring access disputes or access undertakings

(1) If, at a particular time, the Commission is:

(a) arbitrating an access dispute under Division 3 relating to one

or more matters of access to a declared service; and

(b) considering whether to accept an access undertaking relating

to the service and to one or more of those matters;

then the Commission may, by notice in writing, decide to:

(c) defer arbitrating the access dispute, in whole or in part, while

it considers the access undertaking; or

(d) defer considering whether to accept the access undertaking,

in whole or in part, while it arbitrates the access dispute.

Deferral of arbitration of access dispute

(2) If:

(a) the Commission defers arbitrating the access dispute; and

(b) the Commission then accepts the access undertaking and it

comes into operation;

then the Commission must terminate the arbitration when the

undertaking comes into operation, but only to the extent of the

matters relating to access to the service that are dealt with in the

undertaking.

Note: The third party’s access to the service is determined under the access

undertaking to the extent of the matters it deals with. If the access

dispute deals with other matters, the third party’s access to the service

in relation to those other matters is determined under any

determination the Commission makes.

Deferral of consideration of access undertaking

(3) If:

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Section 44ZZCB

Competition and Consumer Act 2010 213

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) the Commission defers considering whether to accept the

access undertaking; and

(b) the Commission then makes a final determination in relation

to the arbitration of the access dispute;

then the Commission must resume considering whether to accept

the access undertaking.

Publication

(4) The Commission must publish, by electronic or other means, any

decision it makes under subsection (1) and its reasons for the

decision. The Commission must give a copy of the decision

(including the reasons for the decision) to each party to the

arbitration.

Guidelines

(5) In exercising the power conferred by subsection (1), the

Commission must have regard to:

(a) the fact that the access undertaking will, if accepted, apply

generally to access seekers and a final determination relating

to the access dispute will only apply to the parties to the

arbitration; and

(b) any guidelines in force under subsection (6).

It may have regard to any other matter it considers relevant.

(6) The Commission must, by legislative instrument, determine

guidelines for the purposes of subsection (5).

(7) The Commission must take all reasonable steps to ensure that the

first set of guidelines under subsection (6) is made within 6 months

after the commencement of this subsection.

Legislation Act 2003

(8) A notice made under subsection (1) is not a legislative instrument.

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and Tribunal review

Section 44ZZCBA

214 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

44ZZCBA Deferral of arbitration if review is underway

Commission may defer arbitration if declaration not stayed

(1) If:

(a) the Commission is arbitrating an access dispute relating to

one or more matters of access to a declared service; and

(b) an application for review of the declaration of the service has

been made under subsection 44K(1); and

(c) the Tribunal does not make an order under section 44KA

staying the operation of the declaration;

then the Commission may, by notice in writing to each party to the

arbitration, decide to defer arbitrating the access dispute until the

Tribunal has made its decision on the review if it considers it

appropriate to do so.

Commission must defer arbitration if declaration stayed

(2) If:

(a) the Commission is arbitrating an access dispute relating to

one or more matters of access to a declared service; and

(b) an application for review of the declaration of the service has

been made under subsection 44K(1); and

(c) the Tribunal makes an order under section 44KA staying the

operation of the declaration;

then the Commission must, by notice in writing to each party to the

arbitration, defer arbitrating the access dispute until the Tribunal

has made its decision on the review.

Resumption of arbitration if declaration affirmed

(3) If the Commission defers arbitrating the access dispute and the

Tribunal affirms the declaration, the Commission must resume

arbitrating the dispute.

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review Division 6B

Section 44ZZCC

Competition and Consumer Act 2010 215

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Termination of arbitration if declaration varied or set aside

(4) If the Commission defers arbitrating the access dispute and the

Tribunal sets aside or varies the declaration, the Commission must

terminate the arbitration.

(5) If:

(a) an arbitration is terminated under subsection (4) or

section 44YA; and

(b) an access dispute is notified under section 44S in relation to

access to the same declared service; and

(c) the parties to the dispute are the same parties to the

terminated arbitration;

then the Commission may have regard to any record made in the

course of the terminated arbitration if it considers it appropriate to

do so.

Notices are not legislative instruments

(6) A notice given under subsection (1) or (2) is not a legislative

instrument.

44ZZCC Overlap between determinations and access undertakings

If, at a particular time:

(a) a final determination is in operation in relation to a declared

service; and

(b) an access undertaking is in operation in relation to the

service;

the third party’s access to the service at that time is to be

determined under the undertaking to the extent that it deals with a

matter or matters relating to access to the service that are not dealt

with in the determination.

44ZZCD Overlap between registered contracts and access

undertakings

If, at a particular time:

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Section 44ZZCD

216 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) a contract is registered under Division 4 in relation to a

declared service; and

(b) an access undertaking is in operation in relation to the

service;

the third party’s access to the service at that time is to be

determined under the undertaking to the extent that it deals with a

matter or matters relating to access to the service that are not dealt

with in the contract.

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Section 44ZZD

Competition and Consumer Act 2010 217

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 7—Enforcement and remedies

44ZZD Enforcement of determinations

(1) If the Federal Court is satisfied, on the application of a party to a

determination, that another party to the determination has engaged,

is engaging, or is proposing to engage in conduct that constitutes a

contravention of the determination, the Court may make all or any

of the following orders:

(a) an order granting an injunction on such terms as the Court

thinks appropriate:

(i) restraining the other party from engaging in the conduct;

or

(ii) if the conduct involves refusing or failing to do

something—requiring the other party to do that thing;

(b) an order directing the other party to compensate the applicant

for loss or damage suffered as a result of the contravention;

(c) any other order that the Court thinks appropriate.

(2) If the Federal Court has power under subsection (1) to grant an

injunction restraining a person from engaging in particular

conduct, or requiring a person to do anything, the Court may make

any other orders (including granting an injunction) that it thinks

appropriate against any other person who was involved in the

contravention concerned.

(3) A reference in this section to a person involved in the

contravention is a reference to a person who has:

(a) aided, abetted, counselled or procured the contravention; or

(b) induced the contravention, whether through threats or

promises or otherwise; or

(c) been in any way (directly or indirectly) knowingly concerned

in or a party to the contravention; or

(d) conspired with others to effect the contravention.

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Division 7 Enforcement and remedies

Section 44ZZE

218 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

44ZZE Enforcement of prohibition on hindering access

(1) If the Federal Court is satisfied, on the application of any person,

that another person (the obstructor) has engaged, is engaging, or is

proposing to engage in conduct constituting a contravention of

section 44ZZ, the Court may make all or any of the following

orders:

(a) an order granting an injunction on such terms as the Court

thinks appropriate:

(i) restraining the obstructor from engaging in the conduct;

or

(ii) if the conduct involves refusing or failing to do

something—requiring the obstructor to do that thing;

(b) an order directing the obstructor to compensate a person who

has suffered loss or damage as a result of the contravention;

(c) any other order that the Court thinks appropriate.

(2) If the Federal Court has power under subsection (1) to grant an

injunction restraining a person from engaging in particular

conduct, or requiring a person to do anything, the Court may make

any other orders (including granting an injunction) that it thinks

appropriate against any other person who was involved in the

contravention concerned.

(3) The grounds on which the Court may decide not to make an order

under this section include the ground that Divisions 2 and 3

provide a more appropriate way of dealing with the issue of the

applicant’s access to the service concerned.

(4) A reference in this section to a person involved in the

contravention is a reference to a person who has:

(a) aided, abetted, counselled or procured the contravention; or

(b) induced the contravention, whether through threats or

promises or otherwise; or

(c) been in any way (directly or indirectly) knowingly concerned

in or a party to the contravention; or

(d) conspired with others to effect the contravention.

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Section 44ZZF

Competition and Consumer Act 2010 219

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

44ZZF Consent injunctions

On an application for an injunction under section 44ZZD or

44ZZE, the Federal Court may grant an injunction by consent of all

of the parties to the proceedings, whether or not the Court is

satisfied that the section applies.

44ZZG Interim injunctions

(1) The Federal Court may grant an interim injunction pending

determination of an application under section 44ZZD or 44ZZE.

(2) If the Commission makes an application under section 44ZZE to

the Federal Court for an injunction, the Court must not require the

Commission or any other person, as a condition of granting an

interim injunction, to give any undertakings as to damages.

44ZZH Factors relevant to granting a restraining injunction

The power of the Federal Court to grant an injunction under

section 44ZZD or 44ZZE restraining a person from engaging in

conduct may be exercised whether or not:

(a) it appears to the Court that the person intends to engage

again, or to continue to engage, in conduct of that kind; or

(b) the person has previously engaged in conduct of that kind; or

(c) there is an imminent danger of substantial damage to any

person if the first-mentioned person engages in conduct of

that kind.

44ZZI Factors relevant to granting a mandatory injunction

The power of the Federal Court to grant an injunction under

section 44ZZD or 44ZZE requiring a person to do a thing may be

exercised whether or not:

(a) it appears to the Court that the person intends to refuse or fail

again, or to continue to refuse or fail, to do that thing; or

(b) the person has previously refused or failed to do that thing; or

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Section 44ZZJ

220 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) there is an imminent danger of substantial damage to any

person if the first-mentioned person refuses or fails to do that

thing.

44ZZJ Enforcement of access undertakings

(1) If the Commission thinks that the provider of an access

undertaking in operation under Division 6 has breached any of its

terms, the Commission may apply to the Federal Court for an order

under subsection (2).

(2) If the Federal Court is satisfied that the provider has breached a

term of the undertaking, the Court may make all or any of the

following orders:

(a) an order directing the provider to comply with that term of

the undertaking;

(b) an order directing the provider to compensate any other

person who has suffered loss or damage as a result of the

breach;

(c) any other order that the Court thinks appropriate.

44ZZK Discharge or variation of injunction or other order

The Federal Court may discharge or vary an injunction or order

granted under this Division.

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Miscellaneous Division 8

Section 44ZZL

Competition and Consumer Act 2010 221

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Division 8—Miscellaneous

44ZZL Register of determinations

The Commission must maintain a public register that specifies the

following information for each determination:

(a) the names of the parties to the determination;

(b) the service to which the determination relates;

(c) the date on which the determination was made.

44ZZM Commonwealth consent to conferral of functions etc. on the

Commission or Tribunal by State or Territory laws

(1) A State or Territory access regime law may confer functions or

powers, or impose duties, on the Commission or Tribunal.

Note: Section 44ZZMB sets out when such a law imposes a duty on the

Commission or Tribunal.

(2) Subsection (1) does not authorise the conferral of a function or

power, or the imposition of a duty, by a law of a State or Territory

to the extent to which:

(a) the conferral or imposition, or the authorisation, would

contravene any constitutional doctrines restricting the duties

that may be imposed on the Commission or Tribunal; or

(b) the authorisation would otherwise exceed the legislative

power of the Commonwealth.

(3) The Commission or Tribunal cannot perform a duty or function, or

exercise a power, under a State or Territory access regime law

unless the conferral of the function or power, or the imposition of

the duty, is in accordance with an agreement between the

Commonwealth and the State or Territory concerned.

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Section 44ZZMA

222 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

44ZZMA How duty is imposed

Application

(1) This section applies if a State or Territory access regime law

purports to impose a duty on the Commission or Tribunal.

Note 1: Section 44ZZMB sets out when such a law imposes a duty on the

Commission or Tribunal.

Note 2: Section 320 of the South Australian Energy Retail Legislation, as it

applies as a law of a State or Territory, deals with the case where a

duty purportedly imposed on a Commonwealth body under that

applied law cannot be imposed by the State or Territory or the

Commonwealth due to constitutional doctrines restricting such duties.

State or Territory legislative power sufficient to support duty

(2) The duty is taken not to be imposed by this Act (or any other law

of the Commonwealth) to the extent to which:

(a) imposing the duty is within the legislative powers of the State

or Territory concerned; and

(b) imposing the duty by the law of the State or Territory is

consistent with the constitutional doctrines restricting the

duties that may be imposed on the Commission or Tribunal.

Note: If this subsection applies, the duty will be taken to be imposed by

force of the law of the State or Territory (the Commonwealth having

consented under section 44ZZM to the imposition of the duty by that

law).

Commonwealth legislative power sufficient to support duty but

State or Territory legislative powers are not

(3) If, to ensure the validity of the purported imposition of the duty, it

is necessary that the duty be imposed by a law of the

Commonwealth (rather than by the law of the State or Territory),

the duty is taken to be imposed by this Act to the extent necessary

to ensure that validity.

(4) If, because of subsection (3), this Act is taken to impose the duty, it

is the intention of the Parliament to rely on all powers available to

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Section 44ZZMB

Competition and Consumer Act 2010 223

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it under the Constitution to support the imposition of the duty by

this Act.

(5) The duty is taken to be imposed by this Act in accordance with

subsection (3) only to the extent to which imposing the duty:

(a) is within the legislative powers of the Commonwealth; and

(b) is consistent with the constitutional doctrines restricting the

duties that may be imposed on the Commission or Tribunal.

(6) Subsections (1) to (5) do not limit section 44ZZM.

44ZZMB When a law of a State or Territory imposes a duty

For the purposes of sections 44ZZM and 44ZZMA, a State or

Territory access regime law imposes a duty on the Commission or

Tribunal if:

(a) the law confers a function or power on the Commission or

Tribunal; and

(b) the circumstances in which the function or power is

conferred give rise to an obligation on the Commission or

Tribunal to perform the function or to exercise the power.

44ZZN Compensation for acquisition of property

(1) If:

(a) a determination would result in an acquisition of property;

and

(b) the determination would not be valid, apart from this section,

because a particular person has not been sufficiently

compensated;

the Commonwealth must pay that person:

(c) a reasonable amount of compensation agreed on between the

person and the Commonwealth; or

(d) failing agreement—a reasonable amount of compensation

determined by a court of competent jurisdiction.

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Section 44ZZNA

224 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) In assessing compensation payable in a proceeding begun under

this section, the following must be taken into account if they arise

out of the same event or transaction:

(a) any damages or compensation recovered, or other remedy, in

a proceeding begun otherwise than under this section;

(b) compensation awarded under a determination.

(3) In this section, acquisition of property has the same meaning as in

paragraph 51(xxxi) of the Constitution.

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

This Part does not affect the operation of Parts IV and VII.

44ZZO Conduct by directors, servants or agents

(1) If, in a proceeding under this Part in respect of conduct engaged in

by a body corporate, it is necessary to establish the state of mind of

the body corporate in relation to particular conduct, it is sufficient

to show:

(a) that the conduct was engaged in by a director, servant or

agent of the body corporate within the scope of his or her

actual or apparent authority; and

(b) that the director, servant or agent had the state of mind.

(2) Any conduct engaged in on behalf of a body corporate:

(a) by a director, servant or agent of the body corporate within

the scope of the person’s actual or apparent authority; or

(b) by any other person at the direction or with the consent or

agreement (whether express or implied) of a director, servant

or agent of the body corporate, if the giving of the direction,

consent or agreement is within the scope of the actual or

apparent authority of the director, servant or agent;

is taken for the purposes of this Part to have been engaged in also

by the body corporate, unless the body corporate establishes that

the body corporate took reasonable precautions and exercised due

diligence to avoid the conduct.

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Section 44ZZO

Competition and Consumer Act 2010 225

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) If, in a proceeding under this Part in respect of conduct engaged in

by an individual, it is necessary to establish the state of mind of the

individual, it is sufficient to show:

(a) that the conduct was engaged in by a servant or agent of the

individual within the scope of his or her actual or apparent

authority; and

(b) that the servant or agent had the relevant state of mind.

(4) Conduct engaged in on behalf of an individual:

(a) by a servant or agent of the individual within the scope of the

actual or apparent authority of the servant or agent; or

(b) by any other person at the direction or with the consent or

agreement (whether express or implied) of a servant or agent

of the individual, if the giving of the direction, consent or

agreement is within the scope of the actual or apparent

authority of the servant or agent;

is taken, for the purposes of this Part, to have been engaged in also

by that individual, unless that individual establishes that he or she

took reasonable precautions and exercised due diligence to avoid

the conduct.

(5) If:

(a) an individual is convicted of an offence; and

(b) the individual would not have been convicted of the offence

if subsections (3) and (4) had not been enacted;

the individual is not liable to be punished by imprisonment for that

offence.

(6) A reference in subsection (1) or (3) to the state of mind of a person

includes a reference to:

(a) the knowledge, intention, opinion, belief or purpose of the

person; and

(b) the person’s reasons for the intention, opinion, belief or

purpose.

(7) A reference in this section to a director of a body corporate

includes a reference to a constituent member of a body corporate

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Division 8 Miscellaneous

Section 44ZZOAAA

226 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

incorporated for a public purpose by a law of the Commonwealth,

of a State or of a Territory.

44ZZOAAA Information to be given to Tribunal

Tribunal to notify decision maker

(1) If an application for review of a decision (however described) is

made under this Part, the Tribunal must notify the decision maker

of the application.

(2) If the application is made under section 44K, 44L, 44LJ, 44LK or

44O, the Tribunal must also notify the Council of the application.

Decision maker to give material to Tribunal

(3) The decision maker must give the following information to the

Tribunal within the period specified by the Tribunal:

(a) if the decision is taken to have been made because of the

operation of subsection 44H(9), 44J(7), 44LG(6), 44LI(7),

44N(4) or 44NB(3A)—all of the information that the Council

took into account in connection with making the

recommendation to which the decision under review relates;

(b) if the decision is taken to have been made because of the

operation of subsection 44PD(6), 44XA(6) or 44ZZBC(6)—

any information or documents given to the Commission in

connection with the decision to which the review relates,

other than information or documents in relation to which the

Commission could not have regard because of

subparagraph 44PE(6)(c)(iii) or 44ZZBD(6)(c)(iii);

(c) otherwise—all of the information that the decision maker

took into account in connection with the making of the

decision to which the review relates.

Tribunal may request further information

(4) The Tribunal may request such information that the Tribunal

considers reasonable and appropriate for the purposes of making its

decision on a review under this Part.

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(5) A request under subsection (4) must be made by written notice

given to a person specifying the information requested and the

period within which the information must be given to the Tribunal.

(6) The Tribunal must:

(a) give a copy of the notice to:

(i) the person who applied for review; and

(ii) if the application is made under section 44K, 44L, 44LJ,

44LK or 44O—the Council; and

(iii) if the application is made under section 44PG, 44PH,

44ZP, 44ZX or 44ZZBF—the Commission; and

(iv) any other person who has been made a party to the

proceedings for review by the Tribunal; and

(b) publish, by electronic or other means, the notice.

(7) Without limiting the information that may be given in accordance

with the notice, information may include information that could not

have reasonably been made available to the decision maker at the

time the decision under review was made.

Certain material before the Tribunal not to be disclosed

(8) The Tribunal may, on the application of a person, prohibit or

restrict the disclosure of the contents of a document or other

information given to the Tribunal under this section if the Tribunal

is satisfied that it is desirable to do so because of the confidential

nature of the document or other information, or for any other

reason.

(9) In this section:

decision maker, in relation to an application for review under this

Part, means:

(a) if the application was made under section 44K, 44L, 44LJ or

44LK—the designated Minister; or

(b) if the application was made under section 44O—the

Commonwealth Minister; or

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(c) if the application was made under section 44PG, 44PH,

44ZP, 44ZX, or 44ZZBF—the Commission.

44ZZOAA Tribunal only to consider particular material

For the purposes of a review under this Part, the Tribunal:

(a) subject to paragraph (b), must have regard to:

(i) information that was given to the Tribunal under

subsection 44ZZOAAA(3); and

(ii) any information given to the Tribunal in accordance

with a notice given under subsection 44ZZOAAA(5);

and

(iii) any thing done as mentioned in subsection 44K(6),

44L(5), 44LJ(5), 44LK(5), 44O(5), 44PG(5), 44PH(5),

44ZP(5), 44ZX(5) or 44ZZBF(5); and

(iv) any information or report given to the Tribunal in

relation to the review under subsection 44K(6A),

44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A),

44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A)

within the specified period; and

(b) may disregard:

(i) any information given to the Tribunal in response to a

notice given under subsection 44ZZOAAA(5) after the

period specified in the notice has ended; and

(ii) any information or report of the kind specified in a

notice under subsection 44K(6A), 44L(5A), 44LJ(6),

44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A),

44ZX(5A) or 44ZZBF(5A) that is given to the Tribunal

after the specified period has ended.

44ZZOA Time limit for Tribunal decisions

(1) The Tribunal must make a decision on a review under this Part

within the consideration period.

(2) The consideration period is a period of 180 days (the expected

period), starting at the start of the day the application for review is

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Competition and Consumer Act 2010 229

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received, unless the consideration period is extended under

subsection (7).

Stopping the clock

(3) In working out the expected period in relation to an application for

review, in a situation referred to in column 1 of an item of the

following table, disregard any day in a period:

(a) starting on the day referred to in column 2 of the item; and

(b) ending on the day referred to in column 3 of the item.

Stopping the clock

Item Column 1

Situation

Column 2

Start day

Column 3

End day

1 An agreement is made in

relation to the application

under subsection (5)

The first day of

the period

specified in the

agreement

The last day of the period

specified in the

agreement

2 A notice is given under

subsection 44ZZOAAA(5)

requesting information in

relation to the decision to

which the application

relates

The day on which

the notice is given

The last day of the period

specified in the notice for

the giving of the

information

3 A notice is given under

subsection 44K(6A),

44L(5A), 44LJ(6),

44LK(6), 44O(5A),

44PG(5A), 44PH(5A),

44ZP(5A), 44ZX(5A) or

44ZZBF(5A) requiring

information or a report to

be given in relation to the

review

The day on which

the notice is given

The last day of the period

specified in the notice for

the giving of the

information or the report

(4) Despite subsection (3), do not disregard any day more than once.

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Section 44ZZOA

230 Competition and Consumer Act 2010

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Stopping the clock by agreement

(5) The following may agree in writing that a specified period is to be

disregarded in working out the expected period:

(a) the Tribunal;

(b) the person who applied for review;

(c) if the application is made under section 44K, 44L, 44LJ,

44LK or 44O—the Council;

(d) if the application is made under section 44PG, 44PH, 44ZP,

44ZX or 44ZZBF—the Commission;

(e) any other person who has been made a party to the

proceedings for review by the Tribunal.

(6) The Tribunal must publish, by electronic or other means, the

agreement.

Extension of time for making decision

(7) If the Tribunal is unable to make a decision on an application for

review within the consideration period (whether it is the expected

period or the consideration period as previously extended under

this subsection), it must, by notice in writing to the designated

Minister, extend the consideration period by a specified period.

(8) The notice must:

(a) specify when the Tribunal must now make its decision on the

application for review; and

(b) include a statement explaining why the Tribunal has been

unable to make a decision on the review within the

consideration period.

(9) The Tribunal must give a copy of the notice to:

(a) the person who applied for review; and

(b) if the application for review is made under section 44K, 44L,

44LJ, 44LK or 44O—the Council; and

(c) if the application for review is made under section 44PG,

44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and

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Section 44ZZP

Competition and Consumer Act 2010 231

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(d) any other person who has been made a party to the

proceedings for review by the Tribunal.

Publication

(10) If the Tribunal extends the consideration period under

subsection (7), it must publish a notice in a national newspaper:

(a) stating that it has done so; and

(b) specifying the day by which it must now make a decision on

the application for review.

Failure to comply with time limit does not affect validity

(11) Failure by the Tribunal to comply with a time limit set in this

section does not affect the validity of a decision made by the

Tribunal under this Part.

44ZZP Regulations about review by the Tribunal

(1) The regulations may make provision about the following matters in

relation to the functions of the Tribunal under this Part:

(a) the constitution of the Tribunal;

(b) the arrangement of the business of the Tribunal;

(c) the disclosure of interests by members of the Tribunal;

(d) determining questions before the Tribunal and questions that

arise during a review;

(e) procedure and evidence, including the appointment of

persons to assist the Tribunal by giving evidence (whether

personally or by means of a written report).

(2) Regulations made for the purposes of subsection (1) do not apply

in relation to the functions of the Tribunal under a State/Territory

energy law or a designated Commonwealth energy law.

Note: See section 44ZZR.

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Section 44ZZQ

232 Competition and Consumer Act 2010

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44ZZQ Regulations about fees for inspection etc. of registers

The regulations may make provision about the inspection of

registers maintained under this Part (including provision about

fees).

44ZZR Procedure of the Tribunal when performing functions under

a State/Territory energy law or a designated

Commonwealth energy law

(1) Sections 103, 105, 106, 107, 108 and 110 of this Act apply to the

Tribunal when performing functions under a State/Territory energy

law or a designated Commonwealth energy law.

(2) The regulations may make provision about the following matters in

relation to the functions of the Tribunal under a State/Territory

energy law or a designated Commonwealth energy law:

(a) the constitution of the Tribunal;

(b) the arrangement of the business of the Tribunal;

(c) the disclosure of interests by members of the Tribunal;

(d) determining questions before the Tribunal and questions that

arise during a review;

(e) procedure and evidence, including the appointment of

persons to assist the Tribunal by giving evidence (whether

personally or by means of a written report);

(f) the fees and expenses of witnesses in proceedings before the

Tribunal.

(3) Subsection (1), and regulations made for the purposes of

subsection (2), have no effect to the extent (if any) to which they

are inconsistent with the State/Territory energy law, or the

designated Commonwealth energy law, concerned.

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Cartel conduct Division 1

Section 44ZZRA

Competition and Consumer Act 2010 233

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part IV—Restrictive trade practices

Division 1—Cartel conduct

Subdivision A—Introduction

44ZZRA Simplified outline

The following is a simplified outline of this Division:

• This Division sets out parallel offences and civil penalty

provisions relating to cartel conduct.

• A corporation must not make, or give effect to, a contract,

arrangement or understanding that contains a cartel provision.

• A cartel provision is a provision relating to:

(a) price-fixing; or

(b) restricting outputs in the production and supply

chain; or

(c) allocating customers, suppliers or territories; or

(d) bid-rigging;

by parties that are, or would otherwise be, in competition with

each other.

44ZZRB Definitions

In this Division:

annual turnover, of a body corporate during a 12-month period,

means the sum of the values of all the supplies that the body

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corporate, and any body corporate related to the body corporate,

have made, or are likely to make, during the 12-month period,

other than:

(a) supplies made from any of those bodies corporate to any

other of those bodies corporate; or

(b) supplies that are input taxed; or

(c) supplies that are not for consideration (and are not taxable

supplies under section 72-5 of the A New Tax System (Goods

and Services Tax) Act 1999); or

(d) supplies that are not made in connection with an enterprise

that the body corporate carries on; or

(e) supplies that are not connected with Australia.

Expressions used in this definition that are also used in the A New

Tax System (Goods and Services Tax) Act 1999 have the same

meaning as in that Act.

benefit includes any advantage and is not limited to property.

bid includes:

(a) tender; and

(b) the taking, by a potential bidder or tenderer, of a preliminary

step in a bidding or tendering process.

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

likely, in relation to any of the following:

(a) a supply of goods or services;

(b) an acquisition of goods or services;

(c) the production of goods;

(d) the capacity to supply services;

includes a possibility that is not remote.

obtaining includes:

(a) obtaining for another person; and

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(b) inducing a third person to do something that results in

another person obtaining.

party has a meaning affected by section 44ZZRC.

production includes manufacture, processing, treatment, assembly,

disassembly, renovation, restoration, growing, raising, mining,

extraction, harvesting, fishing, capturing and gathering.

44ZZRC Extended meaning of party

For the purposes of this Division, if a body corporate is a party to a

contract, arrangement or understanding (otherwise than because of

this section), each body corporate related to that body corporate is

taken to be a party to that contract, arrangement or understanding.

44ZZRD Cartel provisions

(1) For the purposes of this Act, a provision of a contract, arrangement

or understanding is a cartel provision if:

(a) either of the following conditions is satisfied in relation to the

provision:

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

(ii) the purpose condition set out in subsection (3); and

(b) the competition condition set out in subsection (4) is satisfied

in relation to the provision.

Purpose/effect condition

(2) The purpose/effect condition is satisfied if the provision has the

purpose, or has or is likely to have the effect, of directly or

indirectly:

(a) fixing, controlling or maintaining; or

(b) providing for the fixing, controlling or maintaining of;

the price for, or a discount, allowance, rebate or credit in relation

to:

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(c) goods or services supplied, or likely to be supplied, by any or

all of the parties to the contract, arrangement or

understanding; or

(d) goods or services acquired, or likely to be acquired, by any or

all of the parties to the contract, arrangement or

understanding; or

(e) goods or services re-supplied, or likely to be re-supplied, by

persons or classes of persons to whom those goods or

services were supplied by any or all of the parties to the

contract, arrangement or understanding; or

(f) goods or services likely to be re-supplied by persons or

classes of persons to whom those goods or services are likely

to be supplied by any or all of the parties to the contract,

arrangement or understanding.

Note 1: The purpose/effect condition can be satisfied when a provision is

considered with related provisions—see subsection (8).

Note 2: Party has an extended meaning—see section 44ZZRC.

Purpose condition

(3) The purpose condition is satisfied if the provision has the purpose

of directly or indirectly:

(a) preventing, restricting or limiting:

(i) the production, or likely production, of goods by any or

all of the parties to the contract, arrangement or

understanding; or

(ii) the capacity, or likely capacity, of any or all of the

parties to the contract, arrangement or understanding to

supply services; or

(iii) the supply, or likely supply, of goods or services to

persons or classes of persons by any or all of the parties

to the contract, arrangement or understanding; or

(b) allocating between any or all of the parties to the contract,

arrangement or understanding:

(i) the persons or classes of persons who have acquired, or

who are likely to acquire, goods or services from any or

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all of the parties to the contract, arrangement or

understanding; or

(ii) the persons or classes of persons who have supplied, or

who are likely to supply, goods or services to any or all

of the parties to the contract, arrangement or

understanding; or

(iii) the geographical areas in which goods or services are

supplied, or likely to be supplied, by any or all of the

parties to the contract, arrangement or understanding; or

(iv) the geographical areas in which goods or services are

acquired, or likely to be acquired, by any or all of the

parties to the contract, arrangement or understanding; or

(c) ensuring that in the event of a request for bids in relation to

the supply or acquisition of goods or services:

(i) one or more parties to the contract, arrangement or

understanding bid, but one or more other parties do not;

or

(ii) 2 or more parties to the contract, arrangement or

understanding bid, but at least 2 of them do so on the

basis that one of those bids is more likely to be

successful than the others; or

(iii) 2 or more parties to the contract, arrangement or

understanding bid, but not all of those parties proceed

with their bids until the suspension or finalisation of the

request for bids process; or

(iv) 2 or more parties to the contract, arrangement or

understanding bid and proceed with their bids, but at

least 2 of them proceed with their bids on the basis that

one of those bids is more likely to be successful than the

others; or

(v) 2 or more parties to the contract, arrangement or

understanding bid, but a material component of at least

one of those bids is worked out in accordance with the

contract, arrangement or understanding.

Note 1: For example, subparagraph (3)(a)(iii) will not apply in relation to a

roster for the supply of after-hours medical services if the roster does

not prevent, restrict or limit the supply of services.

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Section 44ZZRD

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Note 2: The purpose condition can be satisfied when a provision is considered

with related provisions—see subsection (9).

Note 3: Party has an extended meaning—see section 44ZZRC.

Competition condition

(4) The competition condition is satisfied if at least 2 of the parties to

the contract, arrangement or understanding:

(a) are or are likely to be; or

(b) but for any contract, arrangement or understanding, would be

or would be likely to be;

in competition with each other in relation to:

(c) if paragraph (2)(c) or (3)(b) applies in relation to a supply, or

likely supply, of goods or services—the supply of those

goods or services; or

(d) if paragraph (2)(d) or (3)(b) applies in relation to an

acquisition, or likely acquisition, of goods or services—the

acquisition of those goods or services; or

(e) if paragraph (2)(e) or (f) applies in relation to a re-supply, or

likely re-supply, of goods or services—the supply of those

goods or services to that re-supplier; or

(f) if subparagraph (3)(a)(i) applies in relation to preventing,

restricting or limiting the production, or likely production, of

goods—the production of those goods; or

(g) if subparagraph (3)(a)(ii) applies in relation to preventing,

restricting or limiting the capacity, or likely capacity, to

supply services—the supply of those services; or

(h) if subparagraph (3)(a)(iii) applies in relation to preventing,

restricting or limiting the supply, or likely supply, of goods

or services—the supply of those goods or services; or

(i) if paragraph (3)(c) applies in relation to a supply of goods or

services—the supply of those goods or services; or

(j) if paragraph (3)(c) applies in relation to an acquisition of

goods or services—the acquisition of those goods or services.

Note: Party has an extended meaning—see section 44ZZRC.

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Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Immaterial whether identities of persons can be ascertained

(5) It is immaterial whether the identities of the persons referred to in

paragraph (2)(e) or (f) or subparagraph (3)(a)(iii), (b)(i) or (ii) can

be ascertained.

Recommending prices etc.

(6) For the purposes of this Division, a provision of a contract,

arrangement or understanding is not taken:

(a) to have the purpose mentioned in subsection (2); or

(b) to have, or be likely to have, the effect mentioned in

subsection (2);

by reason only that it recommends, or provides for the

recommending of, a price, discount, allowance, rebate or credit.

Immaterial whether particular circumstances or particular

conditions

(7) It is immaterial whether:

(a) for the purposes of subsection (2), subparagraph (3)(a)(iii)

and paragraphs (3)(b) and (c)—a supply or acquisition

happens, or a likely supply or likely acquisition is to happen,

in particular circumstances or on particular conditions; and

(b) for the purposes of subparagraph (3)(a)(i)—the production

happens, or the likely production is to happen, in particular

circumstances or on particular conditions; and

(c) for the purposes of subparagraph (3)(a)(ii)—the capacity

exists, or the likely capacity is to exist, in particular

circumstances or on particular conditions.

Considering related provisions—purpose/effect condition

(8) For the purposes of this Division, a provision of a contract,

arrangement or understanding is taken to have the purpose, or to

have or be likely to have the effect, mentioned in subsection (2) if

the provision, when considered together with any or all of the

following provisions:

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Section 44ZZRD

240 Competition and Consumer Act 2010

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(a) the other provisions of the contract, arrangement or

understanding;

(b) the provisions of another contract, arrangement or

understanding, if the parties to that other contract,

arrangement or understanding consist of or include at least

one of the parties to the first-mentioned contract,

arrangement or understanding;

has that purpose, or has or is likely to have that effect.

Considering related provisions—purpose condition

(9) For the purposes of this Division, a provision of a contract,

arrangement or understanding is taken to have the purpose

mentioned in a paragraph of subsection (3) if the provision, when

considered together with any or all of the following provisions:

(a) the other provisions of the contract, arrangement or

understanding;

(b) the provisions of another contract, arrangement or

understanding, if the parties to that other contract,

arrangement or understanding consist of or include at least

one of the parties to the first-mentioned contract,

arrangement or understanding;

has that purpose.

Purpose/effect of a provision

(10) For the purposes of this Division, a provision of a contract,

arrangement or understanding is not to be taken not to have the

purpose, or not to have or to be likely to have the effect, mentioned

in subsection (2) by reason only of:

(a) the form of the provision; or

(b) the form of the contract, arrangement or understanding; or

(c) any description given to the provision, or to the contract,

arrangement or understanding, by the parties.

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Section 44ZZRE

Competition and Consumer Act 2010 241

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Purpose of a provision

(11) For the purposes of this Division, a provision of a contract,

arrangement or understanding is not to be taken not to have the

purpose mentioned in a paragraph of subsection (3) by reason only

of:

(a) the form of the provision; or

(b) the form of the contract, arrangement or understanding; or

(c) any description given to the provision, or to the contract,

arrangement or understanding, by the parties.

44ZZRE Meaning of expressions in other provisions of this Act

In determining the meaning of an expression used in a provision of

this Act (other than this Division, subsection 6(2C),

paragraph 76(1A)(aa) or subsection 93AB(1A)), this Division is to

be disregarded.

Subdivision B—Offences etc.

44ZZRF Making a contract etc. containing a cartel provision

Offence

(1) A corporation commits an offence if:

(a) the corporation makes a contract or arrangement, or arrives at

an understanding; and

(b) the contract, arrangement or understanding contains a cartel

provision.

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

criminal responsibility.

(2) The fault element for paragraph (1)(b) is knowledge or belief.

Penalty

(3) An offence against subsection (1) is punishable on conviction by a

fine not exceeding the greater of the following:

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Section 44ZZRG

242 Competition and Consumer Act 2010

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(a) $10,000,000;

(b) if the court can determine the total value of the benefits that:

(i) have been obtained by one or more persons; and

(ii) are reasonably attributable to the commission of the

offence;

3 times that total value;

(c) if the court cannot determine the total value of those

benefits—10% of the corporation’s annual turnover during

the 12-month period ending at the end of the month in which

the corporation committed, or began committing, the offence.

Indictable offence

(4) An offence against subsection (1) is an indictable offence.

44ZZRG Giving effect to a cartel provision

Offence

(1) A corporation commits an offence if:

(a) a contract, arrangement or understanding contains a cartel

provision; and

(b) the corporation gives effect to the cartel provision.

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

criminal responsibility.

(2) The fault element for paragraph (1)(a) is knowledge or belief.

Penalty

(3) An offence against subsection (1) is punishable on conviction by a

fine not exceeding the greater of the following:

(a) $10,000,000;

(b) if the court can determine the total value of the benefits that:

(i) have been obtained by one or more persons; and

(ii) are reasonably attributable to the commission of the

offence;

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3 times that total value;

(c) if the court cannot determine the total value of those

benefits—10% of the corporation’s annual turnover during

the 12-month period ending at the end of the month in which

the corporation committed, or began committing, the offence.

Pre-commencement contracts etc.

(4) Paragraph (1)(a) applies to contracts or arrangements made, or

understandings arrived at, before, at or after the commencement of

this section.

Indictable offence

(5) An offence against subsection (1) is an indictable offence.

44ZZRH Determining guilt

(1) A corporation may be found guilty of an offence against

section 44ZZRF or 44ZZRG even if:

(a) each other party to the contract, arrangement or

understanding is a person who is not criminally responsible;

or

(b) subject to subsection (2), all other parties to the contract,

arrangement or understanding have been acquitted of the

offence.

Note: Party has an extended meaning—see section 44ZZRC.

(2) A corporation cannot be found guilty of an offence against

section 44ZZRF or 44ZZRG if:

(a) all other parties to the contract, arrangement or understanding

have been acquitted of such an offence; and

(b) a finding of guilt would be inconsistent with their acquittal.

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Section 44ZZRI

244 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

44ZZRI Court may make related civil orders

If a prosecution against a person for an offence against

section 44ZZRF or 44ZZRG is being, or has been, heard by a

court, the court may:

(a) grant an injunction under section 80 against the person in

relation to:

(i) the conduct that constitutes, or is alleged to constitute,

the offence; or

(ii) other conduct of that kind; or

(b) make an order under section 86C, 86D, 86E or 87 in relation

to the offence.

Subdivision C—Civil penalty provisions

44ZZRJ Making a contract etc. containing a cartel provision

A corporation contravenes this section if:

(a) the corporation makes a contract or arrangement, or arrives at

an understanding; and

(b) the contract, arrangement or understanding contains a cartel

provision.

Note: For enforcement, see Part VI.

44ZZRK Giving effect to a cartel provision

(1) A corporation contravenes this section if:

(a) a contract, arrangement or understanding contains a cartel

provision; and

(b) the corporation gives effect to the cartel provision.

Note: For enforcement, see Part VI.

(2) Paragraph (1)(a) applies to contracts or arrangements made, or

understandings arrived at, before, at or after the commencement of

this section.

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Restrictive trade practices Part IV

Cartel conduct Division 1

Section 44ZZRL

Competition and Consumer Act 2010 245

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision D—Exceptions

44ZZRL Conduct notified

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply to

a corporation in relation to a contract, arrangement or

understanding containing a cartel provision, in so far as:

(a) the cartel provision:

(i) has the purpose, or has or is likely to have the effect,

mentioned in subsection 44ZZRD(2); or

(ii) has the purpose mentioned in a paragraph of

subsection 44ZZRD(3) other than paragraph (c); and

(b) the corporation has given the Commission a collective

bargaining notice under subsection 93AB(1A) setting out

particulars of the contract, arrangement or understanding; and

(c) the notice is in force under section 93AD.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRM Cartel provision subject to grant of authorisation

(1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the

making of a contract that contains a cartel provision if:

(a) the contract is subject to a condition that the provision will

not come into force unless and until the corporation is

granted an authorisation to give effect to the provision; and

(b) the corporation applies for the grant of such an authorisation

within 14 days after the contract is made.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

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Part IV Restrictive trade practices

Division 1 Cartel conduct

Section 44ZZRN

246 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ bears an evidential burden in

relation to that matter.

44ZZRN Contracts, arrangements or understandings between

related bodies corporate

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding if the only

parties to the contract, arrangement or understanding are bodies

corporate that are related to each other.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRO Joint ventures—prosecution

(1) Sections 44ZZRF and 44ZZRG do not apply in relation to a

contract containing a cartel provision if:

(a) the cartel provision is for the purposes of a joint venture; and

(b) the joint venture is for the production and/or supply of goods

or services; and

(c) in a case where subparagraph 4J(a)(i) applies to the joint

venture—the joint venture is carried on jointly by the parties

to the contract; and

(d) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate

formed by the parties to the contract for the purpose of

enabling those parties to carry on the activity mentioned in

paragraph (b) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

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Restrictive trade practices Part IV

Cartel conduct Division 1

Section 44ZZRO

Competition and Consumer Act 2010 247

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note 1: A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code).

Note 2: For example, if a joint venture formed for the purpose of research and

development provides the results of its research and development to

participants in the joint venture, it may be a joint venture for the

supply of services.

(1A) Section 44ZZRF does not apply in relation to an arrangement or

understanding containing a cartel provision if:

(a) the arrangement or understanding is not a contract; and

(b) when the arrangement was made, or the understanding was

arrived at, each party to the arrangement or understanding:

(i) intended the arrangement or understanding to be a

contract; and

(ii) reasonably believed that the arrangement or

understanding was a contract; and

(c) the cartel provision is for the purposes of a joint venture; and

(d) the joint venture is for the production and/or supply of goods

or services; and

(e) in a case where subparagraph 4J(a)(i) applies to the joint

venture—the joint venture is carried on jointly by the parties

to the arrangement or understanding; and

(f) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate

formed by the parties to the arrangement or understanding for

the purpose of enabling those parties to carry on the activity

mentioned in paragraph (d) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

Note 1: A defendant bears an evidential burden in relation to the matter in

subsection (1A) (see subsection 13.3(3) of the Criminal Code).

Note 2: For example, if a joint venture formed for the purpose of research and

development provides the results of its research and development to

participants in the joint venture, it may be a joint venture for the

supply of services.

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Part IV Restrictive trade practices

Division 1 Cartel conduct

Section 44ZZRO

248 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(1B) Section 44ZZRG does not apply in relation to giving effect to a

cartel provision contained in an arrangement or understanding if:

(a) the arrangement or understanding is not a contract; and

(b) when the arrangement was made, or the understanding was

arrived at, each party to the arrangement or understanding:

(i) intended the arrangement or understanding to be a

contract; and

(ii) reasonably believed that the arrangement or

understanding was a contract; and

(c) when the cartel provision was given effect to, each party to

the arrangement or understanding reasonably believed that

the arrangement or understanding was a contract; and

(d) the cartel provision is for the purposes of a joint venture; and

(e) the joint venture is for the production and/or supply of goods

or services; and

(f) in a case where subparagraph 4J(a)(i) applies to the joint

venture—the joint venture is carried on jointly by the parties

to the arrangement or understanding; and

(g) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate

formed by the parties to the arrangement or understanding for

the purpose of enabling those parties to carry on the activity

mentioned in paragraph (e) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

Note 1: A defendant bears an evidential burden in relation to the matter in

subsection (1B) (see subsection 13.3(3) of the Criminal Code).

Note 2: For example, if a joint venture formed for the purpose of research and

development provides the results of its research and development to

participants in the joint venture, it may be a joint venture for the

supply of services.

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Restrictive trade practices Part IV

Cartel conduct Division 1

Section 44ZZRP

Competition and Consumer Act 2010 249

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Notice to prosecutor

(2) A person is not entitled to rely on subsection (1), (1A) or (1B) in a

trial for an offence unless, within 28 days after the day on which

the person is committed for trial, the person gives the prosecutor:

(a) a written notice setting out:

(i) the facts on which the person proposes to rely for the

purpose of discharging the evidential burden borne by

the person in relation to the matter in subsection (1),

(1A) or (1B), as the case may be; and

(ii) the names and address of any witnesses whom the

person proposes to call for the purpose of discharging

the evidential burden borne by the person in relation to

the matter in subsection (1), (1A) or (1B), as the case

may be; and

(b) certified copies of any documents which the person proposes

to adduce or point to for the purpose of discharging the

evidential burden borne by the person in relation to the

matter in subsection (1), (1A) or (1B), as the case may be.

(3) If the trial of a person for an offence is being, or is to be, held in a

court, the court may, by order:

(a) exempt the person from compliance with subsection (2); or

(b) extend the time within which the person is required to

comply with subsection (2).

(4) For the purposes of paragraph (2)(b), a certified copy of a

document is a copy of the document certified to be a true copy by:

(a) a Justice of the Peace; or

(b) a commissioner for taking affidavits.

44ZZRP Joint ventures—civil penalty proceedings

(1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a

contract containing a cartel provision if:

(a) the cartel provision is for the purposes of a joint venture; and

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Division 1 Cartel conduct

Section 44ZZRP

250 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the joint venture is for the production and/or supply of goods

or services; and

(c) in a case where subparagraph 4J(a)(i) applies to the joint

venture—the joint venture is carried on jointly by the parties

to the contract; and

(d) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate

formed by the parties to the contract for the purpose of

enabling those parties to carry on the activity mentioned in

paragraph (b) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

Note: For example, if a joint venture formed for the purpose of research and

development provides the results of its research and development to

participants in the joint venture, it may be a joint venture for the

supply of services.

(1A) Section 44ZZRJ does not apply in relation to an arrangement or

understanding containing a cartel provision if:

(a) the arrangement or understanding is not a contract; and

(b) when the arrangement was made, or the understanding was

arrived at, each party to the arrangement or understanding:

(i) intended the arrangement or understanding to be a

contract; and

(ii) reasonably believed that the arrangement or

understanding was a contract; and

(c) the cartel provision is for the purposes of a joint venture; and

(d) the joint venture is for the production and/or supply of goods

or services; and

(e) in a case where subparagraph 4J(a)(i) applies to the joint

venture—the joint venture is carried on jointly by the parties

to the arrangement or understanding; and

(f) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate

formed by the parties to the arrangement or understanding for

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Restrictive trade practices Part IV

Cartel conduct Division 1

Section 44ZZRP

Competition and Consumer Act 2010 251

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the purpose of enabling those parties to carry on the activity

mentioned in paragraph (d) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

Note: For example, if a joint venture formed for the purpose of research and

development provides the results of its research and development to

participants in the joint venture, it may be a joint venture for the

supply of services.

(1B) Section 44ZZRK does not apply in relation to giving effect to a

cartel provision contained in an arrangement or understanding if:

(a) the arrangement or understanding is not a contract; and

(b) when the arrangement was made, or the understanding was

arrived at, each party to the arrangement or understanding:

(i) intended the arrangement or understanding to be a

contract; and

(ii) reasonably believed that the arrangement or

understanding was a contract; and

(c) when the cartel provision was given effect to, each party to

the arrangement or understanding reasonably believed that

the arrangement or understanding was a contract; and

(d) the cartel provision is for the purposes of a joint venture; and

(e) the joint venture is for the production and/or supply of goods

or services; and

(f) in a case where subparagraph 4J(a)(i) applies to the joint

venture—the joint venture is carried on jointly by the parties

to the arrangement or understanding; and

(g) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate

formed by the parties to the arrangement or understanding for

the purpose of enabling those parties to carry on the activity

mentioned in paragraph (e) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

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Part IV Restrictive trade practices

Division 1 Cartel conduct

Section 44ZZRQ

252 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note: For example, if a joint venture formed for the purpose of research and

development provides the results of its research and development to

participants in the joint venture, it may be a joint venture for the

supply of services.

(2) A person who wishes to rely on subsection (1), (1A) or (1B) bears

an evidential burden in relation to that matter.

44ZZRQ Covenants affecting competition

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract containing a cartel provision, in so far as the

cartel provision constitutes a covenant to which section 45B

applies or, but for subsection 45B(9), would apply.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRR Resale price maintenance

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding containing a

cartel provision, in so far as the cartel provision relates to:

(a) conduct that contravenes section 48; or

(b) conduct that would contravene section 48 but for the

operation of subsection 88(8A); or

(c) conduct that would contravene section 48 if this Act defined

the acts constituting the practice of resale price maintenance

by reference to the maximum price at which goods or

services are to be sold or supplied or are to be advertised,

displayed or offered for sale or supply.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

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Restrictive trade practices Part IV

Cartel conduct Division 1

Section 44ZZRS

Competition and Consumer Act 2010 253

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRS Exclusive dealing

(1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the

making of a contract, arrangement or understanding that contains a

cartel provision, in so far as giving effect to the cartel provision

would, or would but for the operation of subsection 47(10) or 88(8)

or section 93, constitute a contravention of section 47.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (3) of this section).

(2) Sections 44ZZRG and 44ZZRK do not apply in relation to the

giving effect to a cartel provision by way of:

(a) engaging in conduct that contravenes, or would but for the

operation of subsection 47(10) or 88(8) or section 93

contravene, section 47; or

(b) doing an act by reason of a breach or threatened breach of a

condition referred to in subsection 47(2), (4), (6) or (8), being

an act done by a person at a time when:

(i) an authorisation under subsection 88(8) is in force in

relation to conduct engaged in by that person on that

condition; or

(ii) by reason of subsection 93(7), conduct engaged in by

that person on that condition is not to be taken to have

the effect of substantially lessening competition within

the meaning of section 47; or

(iii) a notice under subsection 93(1) is in force in relation to

conduct engaged in by that person on that condition.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code and

subsection (3) of this section).

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Part IV Restrictive trade practices

Division 1 Cartel conduct

Section 44ZZRT

254 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) A person who wishes to rely on subsection (1) or (2) in relation to

a contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRT Dual listed company arrangement

(1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the

making of a contract, arrangement or understanding that contains a

cartel provision, in so far as:

(a) the contract, arrangement or understanding is a dual listed

company arrangement; and

(b) the making of the contract, arrangement or understanding

would, or would apart from subsection 88(8B), contravene

section 49.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (3) of this section).

(2) Sections 44ZZRG and 44ZZRK do not apply in relation to the

giving effect to a cartel provision, in so far as:

(a) the cartel provision is a provision of a dual listed company

arrangement; and

(b) the giving effect to the cartel provision would, or would apart

from subsection 88(8B), contravene section 49.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code and

subsection (3) of this section).

(3) A person who wishes to rely on subsection (1) or (2) in relation to

a contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRU Acquisition of shares or assets

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding containing a

cartel provision, in so far as the cartel provision provides directly

or indirectly for the acquisition of:

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Restrictive trade practices Part IV

Cartel conduct Division 1

Section 44ZZRV

Competition and Consumer Act 2010 255

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) any shares in the capital of a body corporate; or

(b) any assets of a person.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

44ZZRV Collective acquisition of goods or services by the parties to

a contract, arrangement or understanding

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding containing a

cartel provision, in so far as:

(a) the cartel provision has the purpose, or has or is likely to

have the effect, mentioned in subsection 44ZZRD(2); and

(b) either:

(i) the cartel provision relates to the price for goods or

services to be collectively acquired, whether directly or

indirectly, by the parties to the contract, arrangement or

understanding; or

(ii) the cartel provision is for the joint advertising of the

price for the re-supply of goods or services so acquired.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (1) (see subsection 13.3(3) of the Criminal Code and

subsection (2) of this section).

(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 44ZZRJ or 44ZZRK bears an evidential

burden in relation to that matter.

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Part IV Restrictive trade practices

Division 1A Anti-competitive disclosure of pricing and other information

Section 44ZZS

256 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 1A—Anti-competitive disclosure of pricing and

other information

44ZZS Definitions

In this Division:

disclose has a meaning affected by section 44ZZU.

Division 1A goods or services means goods or services to which

this Division applies (see section 44ZZT).

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

intermediary: see subsection 44ZZU(3).

private disclosure to competitors: see section 44ZZV.

44ZZT Goods and services to which this Division applies

(1) This Division applies to goods and services of the classes (however

described) that are prescribed by the regulations for the purpose of

this section.

(2) Without limiting subsection (1), the regulations may limit the

description of a class of goods or services by reference to any

matters including (for example) any one or more of the following:

(a) a kind of supplier of goods or services;

(b) a kind of industry or business in which goods or services are

supplied;

(c) the circumstances in which goods or services are supplied.

(3) The regulations must prescribe a process to be gone through before

regulations are made, for the purpose of subsection (1), prescribing

a class of goods or services. Before the Governor-General makes

regulations, for the purpose of subsection (1), prescribing a class of

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Restrictive trade practices Part IV

Anti-competitive disclosure of pricing and other information Division 1A

Section 44ZZU

Competition and Consumer Act 2010 257

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

goods or services, the Minister must be satisfied that the prescribed

process has been complied with.

(4) Subsection (3) does not apply in relation to the first regulations

made for the purpose of subsection (1).

44ZZU Provisions affecting whether a corporation has disclosed

information to a person

Disclosure to director, employee or agent etc. of another person

(1) For the purpose of this Division:

(a) if a corporation makes a disclosure of information to a person

in the person’s capacity as a director, employee or agent of

another body corporate, the disclosure is taken to have been

made by the corporation to that body corporate; and

(b) if a corporation makes a disclosure of information to a person

in the person’s capacity as an employee or agent of another

person (not being a body corporate), the disclosure is taken to

have been made by the corporation to that other person.

Disclosure to discloser’s own agent

(2) For the purpose of this Division, the disclosure of information by a

corporation to another person is to be disregarded if:

(a) the disclosure is made to the person in the person’s capacity

as an agent of the corporation; and

(b) subsection (3) does not apply to the disclosure.

Disclosure through intermediary

(3) If:

(a) a corporation makes a disclosure of information to a person

(the intermediary); and

(b) the corporation makes the disclosure to the intermediary for

the purpose of the intermediary disclosing (or arranging for

the disclosure of) the information to one or more other

persons; and

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Part IV Restrictive trade practices

Division 1A Anti-competitive disclosure of pricing and other information

Section 44ZZV

258 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) the information is so disclosed to one or more of those other

persons (the recipients);

then, for the purpose of this Division:

(d) the disclosure of the information to the recipients is taken to

have been made by the corporation; and

(e) the disclosure of the information to the intermediary is to be

disregarded (unless the intermediary is a competitor or

potential competitor of the corporation in a market).

Accidental disclosure

(4) For the purpose of this Division, the disclosure of information by a

corporation to a person (the recipient) is to be disregarded if the

disclosure to the recipient is due to:

(a) an accident; or

(b) the default of a person other than the corporation; or

(c) some other cause beyond the control of the corporation.

Note: This subsection does not apply to a disclosure of information covered

by subsection (3).

Section 84 not limited

(5) This section does not limit section 84.

44ZZV Meaning of private disclosure to competitors

Main definition

(1) A disclosure of information by a corporation is a private disclosure

to competitors, in relation to a particular market, if the disclosure is

to one or more competitors or potential competitors of the

corporation in that market, and is not to any other person.

Note: The effect of section 44ZZU must be taken into account in working

out whether the disclosure is to one or more competitors or potential

competitors, and is not to any other person.

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Restrictive trade practices Part IV

Anti-competitive disclosure of pricing and other information Division 1A

Section 44ZZW

Competition and Consumer Act 2010 259

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Anti-avoidance

(2) For the purpose of determining whether a corporation has made a

private disclosure to competitors in relation to a particular market,

the fact that the disclosure is also made to a person who is not a

competitor or potential competitor of the corporation in that market

is to be disregarded if:

(a) for a disclosure that is not made through an intermediary—

the corporation made the disclosure to the person for the

purpose of avoiding the application of section 44ZZW to the

disclosure; or

(b) for a disclosure that is made through an intermediary—either:

(i) the corporation directed or requested the intermediary to

disclose the information to the person for the purpose of

avoiding the application of section 44ZZW to the

disclosure; or

(ii) the intermediary disclosed the information to the person

for the purpose of avoiding the application of

section 44ZZW to the disclosure.

Fact that the information is otherwise available is not relevant

(3) The question whether a disclosure of information by a corporation

is a private disclosure to competitors is not affected by the

information otherwise being or becoming available to competitors

or potential competitors of the corporation in the market, or to

other persons.

44ZZW Corporation must not make private disclosure of pricing

information etc. to competitors

A corporation must not make a disclosure of information if:

(a) the information relates to a price for, or a discount,

allowance, rebate or credit in relation to, Division 1A goods

or services supplied or likely to be supplied, or acquired or

likely to be acquired, by the corporation in a market (whether

or not the information also relates to other matters); and

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Part IV Restrictive trade practices

Division 1A Anti-competitive disclosure of pricing and other information

Section 44ZZX

260 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the disclosure is a private disclosure to competitors in

relation to that market; and

(c) the disclosure is not in the ordinary course of business.

Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(6A).

44ZZX Corporation must not make disclosure of pricing

information etc. for purpose of substantially lessening

competition

The prohibition

(1) A corporation must not make a disclosure of information if:

(a) the information relates to one or more of the following

(whether or not it also relates to other matters):

(i) a price for, or a discount, allowance, rebate or credit in

relation to, Division 1A goods or services supplied or

likely to be supplied, or acquired or likely to be

acquired, by the corporation;

(ii) the capacity, or likely capacity, of the corporation to

supply or acquire Division 1A goods or services;

(iii) any aspect of the commercial strategy of the corporation

that relates to Division 1A goods or services; and

(b) the corporation makes the disclosure for the purpose of

substantially lessening competition in a market.

Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(6A) or notified under

subsection 93(1).

Determining whether disclosure made for purpose of substantially

lessening competition

(2) In determining, for the purpose of this section, if a corporation has

made a disclosure for the purpose of substantially lessening

competition in a market, the matters to which the court may have

regard include (but are not limited to):

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(a) whether the disclosure was a private disclosure to

competitors in relation to that market; and

(b) the degree of specificity of the information; and

(c) whether the information relates to past, current or future

activities; and

(d) how readily available the information is to the public; and

(e) whether the disclosure is part of a pattern of similar

disclosures by the corporation.

(3) Without limiting the manner in which the purpose of a person may

be established for the purposes of any other provision of this Act, a

corporation may be taken to have made a disclosure of information

for the purpose of substantially lessening competition in a market

even though, after all the evidence has been considered, the

existence of that purpose is ascertainable only by inference from

the conduct of the corporation or of any other person or from other

relevant circumstances.

44ZZY Exceptions that apply to sections 44ZZW and 44ZZX

Disclosure authorised by law: general exception for 10 years

(1) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a corporation if:

(a) the disclosure is authorised by or under a law of the

Commonwealth, a State or a Territory; and

(b) the disclosure occurs before the end of 10 years after the day

on which the Competition and Consumer Amendment Act

(No. 1) 2011 receives the Royal Assent.

Note: This subsection has effect in addition to:

(a) subsection (6) (which covers compliance with continuous disclosure requirements of the Corporations Act 2001); and

(b) subsection 51(1) (which covers things authorised by certain laws).

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Section 44ZZY

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Disclosure to related bodies corporate

(2) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a corporation if the disclosure is to one or more

bodies corporate that are related to the corporation, and is not to

any other person.

Note: The effect of section 44ZZU must be taken into account in working

out whether the disclosure is to one or more bodies corporate that are

related to the corporation, and is not to any other person.

Disclosure for collective bargaining

(3) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a corporation if:

(a) the corporation has given the Commission a collective

bargaining notice under subsection 93AB(1A) or (1) setting

out particulars of a contract or proposed contract; and

(b) the notice is in force; and

(c) the disclosure is to one or more of the other contracting

parties, and is not to any other person; and

(d) the disclosure of the information:

(i) if the notice relates to a contract—is required by the

contract; or

(ii) if the notice relates to a proposed contract—is made in

the course of negotiations for the proposed contract or,

if the proposed contract is entered into, is required by

the contract.

Note: The effect of section 44ZZU must be taken into account in working

out whether the disclosure is to one or more of the other contracting

parties, and is not to any other person.

Disclosure in course of authorised conduct

(4) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a corporation if:

(a) an authorisation under section 88 (other than

subsection 88(6A)) applies to or in relation to the

corporation; and

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(b) the authorisation is in force; and

(c) the disclosure of the information is made in the course of

engaging in conduct that is covered by the authorisation.

Note: A disclosure that would otherwise contravene section 44ZZW or

44ZZX can also be directly authorised under subsection 88(6A).

Disclosure covered by notification under section 93

(5) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a corporation if:

(a) the corporation has given the Commission a notice under

subsection 93(1) describing conduct; and

(b) the disclosure is conduct described in the notice; and

(c) the notice is in force under section 93.

Compliance with continuous disclosure requirements of the

Corporations Act 2001

(6) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a corporation if the disclosure is made for the

purpose of complying with Chapter 6CA of the Corporations Act

2001.

44ZZZ Additional exceptions that only apply to section 44ZZW

Disclosure of information to acquirer or supplier of goods or

services

(1) Section 44ZZW does not apply to the disclosure of information by

a corporation to a person (the recipient) if:

(a) the information relates to goods or services supplied or likely

to be supplied, by the corporation to the recipient; or

(b) the information relates to goods or services acquired or likely

to be acquired, by the corporation from the recipient.

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Section 44ZZZ

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Disclosure to unknown competitor

(2) Section 44ZZW does not apply to the disclosure of information by

a corporation to a person if:

(a) the person is a competitor or potential competitor of the

corporation in the market referred to in that section; and

(b) the corporation did not know, and could not reasonably be

expected to have known, that the person was such a

competitor or potential competitor.

Disclosure to participants in joint venture

(3) Section 44ZZW does not apply to the disclosure of information by

a corporation if:

(a) either:

(i) the corporation is a participant in a joint venture for the

production and/or supply of goods or services; or

(ii) the corporation proposes to enter into a joint venture

with one or more other persons (the proposed

participants); and

(b) the disclosure is to one or more participants or proposed

participants in the joint venture, and is not to any other

person; and

(c) the disclosure is made for the purposes of the joint venture or

in the course of negotiations for the joint venture.

Note: The effect of section 44ZZU must be taken into account in working

out whether the disclosure is to one or more participants in the joint

venture, and is not to any other person.

Disclosure relating to provision of loans etc. to same person

(3A) Section 44ZZW does not apply to the disclosure of information

between 2 or more corporations (the relevant corporations) if:

(a) the information relates to services, being loans or credit,

supplied, or likely to be supplied, by one or more of the

relevant corporations; and

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(b) 2 or more of the relevant corporations are, in relation to the

same person (the borrower), doing either or both of the

following:

(i) providing such services to the borrower;

(ii) considering whether to provide such services to the

borrower;

(c) the disclosure is for the purpose of, or related to, providing

services, or considering whether to provide services, to the

borrower as mentioned in paragraph (b).

Disclosure between credit provider and provider of credit service

(3B) Section 44ZZW does not apply to the disclosure of information by

a corporation to another person if:

(a) either:

(i) the corporation is a credit provider, and the other person

provides a credit service, within the meaning of the

National Consumer Credit Protection Act 2009; or

(ii) the corporation provides a credit service, and the other

person is a credit provider, within the meaning of that

Act; and

(b) the disclosure is made in the course of the relationship

between the corporation and the other person in their

capacities as credit provider and provider of a credit service.

Disclosure relating to acquisition of shares or assets

(4) Section 44ZZW does not apply to the disclosure of information by

a corporation in so far as the information is disclosed in connection

with a contract, arrangement or understanding that provides, or a

proposed contract, arrangement or understanding that would

provide, for the acquisition of any shares in the capital of a body

corporate, or any assets of a person, by or from the corporation.

Note: For the meaning of acquisition of shares, and acquisition of assets, see

subsection 4(4).

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Section 44ZZZA

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Disclosure if borrower insolvent etc.

(5) Section 44ZZW does not apply to the disclosure of information

between 2 or more corporations (the relevant corporations) if:

(a) at least one of the relevant corporations:

(i) has provided a loan or credit to another corporation (the

borrower); and

(ii) has been notified of a borrower insolvency situation (see

subsection (6)); and

(b) the information relates to services, being loans or credit,

supplied, or likely to be supplied, by one or more of the

relevant corporations; and

(c) the disclosure is for the purpose of one or more of the

relevant corporations considering whether to take measures

to return the borrower to solvency, or to avoid or reduce the

risk of the borrower becoming insolvent.

(6) For the purpose of subsection (5), a relevant corporation is notified

of a borrower insolvency situation if:

(a) the corporation is notified that there are reasonable grounds

for suspecting that one or more of the following may be or

become insolvent:

(i) the borrower;

(ii) a person who has given a guarantee or indemnity in

respect of loans or credit provided to the borrower by

one or more of the relevant corporations; and

(b) the notification is given by the borrower, or by a person

referred to in subparagraph (a)(ii).

44ZZZA Burden of proof

If:

(a) proceedings are brought against a person in relation to

section 44ZZW or 44ZZX; and

(b) the person seeks to rely on subsection 44ZZU(2) or (4), or on

a subsection of section 44ZZY or 44ZZZ;

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the person bears an evidential burden in relation to the matters set

out in that subsection on which the person seeks to rely.

44ZZZB Mere receipt of information does not constitute being

knowingly involved in contravention

For the purpose of paragraph 76(1)(e), a person is not taken to be

directly or indirectly knowingly concerned in, or party to, a

contravention of section 44ZZW or 44ZZX merely because the

person is a recipient of information disclosed in contravention of

that section.

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Section 45

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Division 2—Other provisions

45 Contracts, arrangements or understandings that restrict dealings

or affect competition

(1) If a provision of a contract made before the commencement of the

Trade Practices Amendment Act 1977:

(a) is an exclusionary provision; or

(b) has the purpose, or has or is likely to have the effect, of

substantially lessening competition;

that provision is unenforceable in so far as it confers rights or

benefits or imposes duties or obligations on a corporation.

(2) A corporation shall not:

(a) make a contract or arrangement, or arrive at an

understanding, if:

(i) the proposed contract, arrangement or understanding

contains an exclusionary provision; or

(ii) a provision of the proposed contract, arrangement or

understanding has the purpose, or would have or be

likely to have the effect, of substantially lessening

competition; or

(b) give effect to a provision of a contract, arrangement or

understanding, whether the contract or arrangement was

made, or the understanding was arrived at, before or after the

commencement of this section, if that provision:

(i) is an exclusionary provision; or

(ii) has the purpose, or has or is likely to have the effect, of

substantially lessening competition.

(3) For the purposes of this section, competition, in relation to a

provision of a contract, arrangement or understanding or of a

proposed contract, arrangement or understanding, means

competition in any market in which a corporation that is a party to

the contract, arrangement or understanding or would be a party to

the proposed contract, arrangement or understanding, or any body

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corporate related to such a corporation, supplies or acquires, or is

likely to supply or acquire, goods or services or would, but for the

provision, supply or acquire, or be likely to supply or acquire,

goods or services.

(4) For the purposes of the application of this section in relation to a

particular corporation, a provision of a contract, arrangement or

understanding or of a proposed contract, arrangement or

understanding shall be deemed to have or to be likely to have the

effect of substantially lessening competition if that provision and

any one or more of the following provisions, namely:

(a) the other provisions of that contract, arrangement or

understanding or proposed contract, arrangement or

understanding; and

(b) the provisions of any other contract, arrangement or

understanding or proposed contract, arrangement or

understanding to which the corporation or a body corporate

related to the corporation is or would be a party;

together have or are likely to have that effect.

(5) This section does not apply to or in relation to:

(a) a provision of a contract where the provision constitutes a

covenant to which section 45B applies or, but for

subsection 45B(9), would apply;

(b) a provision of a proposed contract where the provision would

constitute a covenant to which section 45B would apply or,

but for subsection 45B(9), would apply; or

(c) a provision of a contract, arrangement or understanding or of

a proposed contract, arrangement or understanding in so far

as the provision relates to:

(i) conduct that contravenes section 48; or

(ii) conduct that would contravene section 48 but for the

operation of subsection 88(8A); or

(iii) conduct that would contravene section 48 if this Act

defined the acts constituting the practice of resale price

maintenance by reference to the maximum price at

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Section 45

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which goods or services are to be sold or supplied or are

to be advertised, displayed or offered for sale or supply.

(6) The making of a contract, arrangement or understanding does not

constitute a contravention of this section by reason that the

contract, arrangement or understanding contains a provision the

giving effect to which would, or would but for the operation of

subsection 47(10) or 88(8) or section 93, constitute a contravention

of section 47 and this section does not apply to or in relation to the

giving effect to a provision of a contract, arrangement or

understanding by way of:

(a) engaging in conduct that contravenes, or would but for the

operation of subsection 47(10) or 88(8) or section 93

contravene, section 47; or

(b) doing an act by reason of a breach or threatened breach of a

condition referred to in subsection 47(2), (4), (6) or (8), being

an act done by a person at a time when:

(i) an authorization under subsection 88(8) is in force in

relation to conduct engaged in by that person on that

condition; or

(ii) by reason of subsection 93(7) conduct engaged in by

that person on that condition is not to be taken to have

the effect of substantially lessening competition within

the meaning of section 47; or

(iii) a notice under subsection 93(1) is in force in relation to

conduct engaged in by that person on that condition.

(6A) The following conduct:

(a) the making of a dual listed company arrangement;

(b) the giving effect to a provision of a dual listed company

arrangement;

does not contravene this section if the conduct would, or would

apart from subsection 88(8B), contravene section 49.

(7) This section does not apply to or in relation to a contract,

arrangement or understanding in so far as the contract, arrangement

or understanding provides, or to or in relation to a proposed

contract, arrangement or understanding in so far as the proposed

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contract, arrangement or understanding would provide, directly or

indirectly for the acquisition of any shares in the capital of a body

corporate or any assets of a person.

(8) This section does not apply to or in relation to a contract,

arrangement or understanding, or a proposed contract, arrangement

or understanding, the only parties to which are or would be bodies

corporate that are related to each other.

(8A) Subsection (2) does not apply to a corporation engaging in conduct

described in that subsection if:

(a) the corporation has given the Commission a collective

bargaining notice under subsection 93AB(1) describing the

conduct; and

(b) the notice is in force under section 93AD.

(9) The making by a corporation of a contract that contains a provision

in relation to which subsection 88(1) applies is not a contravention

of subsection (2) of this section if:

(a) the contract is subject to a condition that the provision will

not come into force unless and until the corporation is

granted an authorization to give effect to the provision; and

(b) the corporation applies for the grant of such an authorization

within 14 days after the contract is made;

but nothing in this subsection prevents the giving effect by a

corporation to such a provision from constituting a contravention

of subsection (2).

45B Covenants affecting competition

(1) A covenant, whether the covenant was given before or after the

commencement of this section, is unenforceable in so far as it

confers rights or benefits or imposes duties or obligations on a

corporation or on a person associated with a corporation if the

covenant has, or is likely to have, the effect of substantially

lessening competition in any market in which the corporation or

any person associated with the corporation supplies or acquires, or

is likely to supply or acquire, goods or services or would, but for

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Section 45B

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the covenant, supply or acquire, or be likely to supply or acquire,

goods or services.

(2) A corporation or a person associated with a corporation shall not:

(a) require the giving of a covenant, or give a covenant, if the

proposed covenant has the purpose, or would have or be

likely to have the effect, of substantially lessening

competition in any market in which:

(i) the corporation, or any person associated with the

corporation by virtue of paragraph (7)(b), supplies or

acquires, is likely to supply or acquire, or would, but for

the covenant, supply or acquire, or be likely to supply or

acquire, goods or services; or

(ii) any person associated with the corporation by virtue of

the operation of paragraph (7)(a) supplies or acquires, is

likely to supply or acquire, or would, but for the

covenant, supply or acquire, or be likely to supply or

acquire, goods or services, being a supply or acquisition

in relation to which that person is, or would be, under an

obligation to act in accordance with directions,

instructions or wishes of the corporation;

(b) threaten to engage in particular conduct if a person who, but

for subsection (1), would be bound by a covenant does not

comply with the terms of the covenant; or

(c) engage in particular conduct by reason that a person who, but

for subsection (1), would be bound by a covenant has failed

to comply, or proposes or threatens to fail to comply, with

the terms of the covenant.

(3) Where a person:

(a) issues an invitation to another person to enter into a contract

containing a covenant;

(b) makes an offer to another person to enter into a contract

containing a covenant; or

(c) makes it known that the person will not enter into a contract

of a particular kind unless the contract contains a covenant of

a particular kind or in particular terms;

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the first-mentioned person shall, by issuing that invitation, making

that offer or making that fact known, be deemed to require the

giving of the covenant.

(4) For the purposes of this section, a covenant or proposed covenant

shall be deemed to have, or to be likely to have, the effect of

substantially lessening competition in a market if the covenant or

proposed covenant, as the case may be, would have, or be likely to

have, that effect when taken together with the effect or likely effect

on competition in that market of any other covenant or proposed

covenant to the benefit of which:

(a) a corporation that, or person who, is or would be, or but for

subsection (1) would be, entitled to the benefit of the

first-mentioned covenant or proposed covenant; or

(b) a person associated with the corporation referred to in

paragraph (a) or a corporation associated with the person

referred to in that paragraph;

is or would be, or but for subsection (1) would be, entitled.

(5) The requiring of the giving of, or the giving of, a covenant does not

constitute a contravention of this section by reason that giving

effect to the covenant would, or would but for the operation of

subsection 88(8) or section 93, constitute a contravention of

section 47 and this section does not apply to or in relation to

engaging in conduct in relation to a covenant by way of:

(a) conduct that contravenes, or would but for the operation of

subsection 88(8) or section 93 contravene, section 47; or

(b) doing an act by reason of a breach or threatened breach of a

condition referred to in subsection 47(2), (4), (6) or (8), being

an act done by a person at a time when:

(i) an authorization under subsection 88(8) is in force in

relation to conduct engaged in by that person on that

condition; or

(ii) by reason of subsection 93(7) conduct engaged in by

that person on that condition is not to be taken to have

the effect of substantially lessening competition within

the meaning of section 47; or

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(iii) a notice under subsection 93(1) is in force in relation to

conduct engaged in by that person on that condition.

(6) This section does not apply to or in relation to a covenant or

proposed covenant where the only persons who are or would be

respectively bound by, or entitled to the benefit of, the covenant or

proposed covenant are persons who are associated with each other

or are bodies corporate that are related to each other.

(7) For the purposes of this section, section 45C and

subparagraph 87(3)(a)(ii), a person and a corporation shall be taken

to be associated with each other in relation to a covenant or

proposed covenant if, and only if:

(a) the person is under an obligation (otherwise than in

pursuance of the covenant or proposed covenant), whether

formal or informal, to act in accordance with directions,

instructions or wishes of the corporation in relation to the

covenant or proposed covenant; or

(b) the person is a body corporate in relation to which the

corporation is in the position mentioned in

subparagraph 4A(1)(a)(ii).

(8) The requiring by a person of the giving of, or the giving by a

person of, a covenant in relation to which subsection 88(5) applies

is not a contravention of subsection (2) of this section if:

(a) the covenant is subject to a condition that the covenant will

not come into force unless and until the person is granted an

authorization to require the giving of, or to give, the

covenant; and

(b) the person applies for the grant of such an authorization

within 14 days after the covenant is given;

but nothing in this subsection affects the application of

paragraph (2)(b) or (c) in relation to the covenant.

(9) This section does not apply to or in relation to a covenant or

proposed covenant if:

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(a) the sole or principal purpose for which the covenant was or is

required to be given was or is to prevent the relevant land

from being used otherwise than for residential purposes; or

(b) both of the following subparagraphs apply:

(i) the person who required or requires the covenant to be

given was or is, at that time, a registered charity;

(ii) the covenant was or is required to be given for or in

accordance with the purposes or objects of that

registered charity; or

(c) both of the following subparagraphs apply:

(i) the covenant was or is required to be given in pursuance

of a legally enforceable requirement made by a

registered charity;

(ii) that legally enforceable requirement was or is made for

or in accordance with the purposes or objects of that

registered charity.

45C Covenants in relation to prices

(1) In the application of subsection 45B(1) in relation to a covenant

that has, or is likely to have, the effect of fixing, controlling or

maintaining, or providing for the fixing, controlling or maintaining

of, the price for, or a discount, allowance, rebate or credit in

relation to, goods or services supplied or acquired by the persons

who are, or but for that subsection would be, bound by or entitled

to the benefit of the covenant, or by any of them, or by any persons

associated with any of them, in competition with each other, that

subsection has effect as if the words “if the covenant has, or is

likely to have, the effect of substantially lessening competition in

any market in which the corporation or any person associated with

the corporation supplies or acquires, or is likely to supply or

acquire, goods or services or would, but for the covenant, supply or

acquire, or be likely to supply or acquire, goods or services” were

omitted.

(2) In the application of subsection 45B(2) in relation to a proposed

covenant that has the purpose, or would have or be likely to have

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Section 45C

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the effect, of fixing, controlling or maintaining, or providing for

the fixing, controlling or maintaining of, the price for, or a

discount, allowance, rebate or credit in relation to, goods or

services supplied or acquired by the persons who would, or would

but for subsection 45B(1), be bound by or entitled to the benefit of

the proposed covenant, or by any of them, or by any persons

associated with any of them, in competition with each other,

paragraph 45B(2)(a) has effect as if all the words after the words

“require the giving of a covenant, or give a covenant” were

omitted.

(3) For the purposes of this Act, a covenant shall not be taken not to

have, or not to be likely to have, the effect, or a proposed covenant

shall not be taken not to have the purpose, or not to have, or not to

be likely to have, the effect, of fixing, controlling or maintaining,

or providing for the fixing, controlling or maintaining of, the price

for, or a discount, allowance, rebate or credit in relation to, goods

or services by reason only of:

(a) the form of the covenant or proposed covenant; or

(b) any description given to the covenant by any of the persons

who are, or but for subsection 45B(1) would be, bound by or

entitled to the benefit of the covenant or any description

given to the proposed covenant by any of the persons who

would, or would but for subsection 45B(1), be bound by or

entitled to the benefit of the proposed covenant.

(4) For the purposes of the preceding provisions of this section, but

without limiting the generality of those provisions:

(a) a covenant shall be deemed to have, or to be likely to have,

the effect of fixing, controlling or maintaining, or providing

for the fixing, controlling or maintaining of, the price for, or

a discount, allowance, rebate or credit in relation to, goods or

services supplied as mentioned in subsection (1) if the

covenant has, or is likely to have, the effect of fixing,

controlling or maintaining, or providing for the fixing,

controlling or maintaining of, such a price, discount,

allowance, rebate or credit in relation to a re-supply of the

goods or services by persons to whom the goods or services

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are supplied by the persons who are, or but for

subsection 45B(1) would be, bound by or entitled to the

benefit of the covenant, or by any of them, or by any persons

associated with any of them; and

(b) a proposed covenant shall be deemed to have the purpose, or

to have, or to be likely to have, the effect, of fixing,

controlling or maintaining, or providing for the fixing,

controlling or maintaining of, the price for, or a discount,

allowance, rebate or credit in relation to, goods or services

supplied as mentioned in subsection (2) if the proposed

covenant has the purpose, or would have or be likely to have

the effect, as the case may be, of fixing, controlling or

maintaining, or providing for the fixing, controlling or

maintaining of, such a price, discount, allowance, rebate or

credit in relation to a re-supply of the goods or services by

persons to whom the goods or services are supplied by the

persons who would, or would but for subsection 45B(1), be

bound by or entitled to the benefit of the proposed covenant,

or by any of them, or by any persons associated with any of

them.

(5) The reference in subsection (1) to the supply or acquisition of

goods or services by persons in competition with each other

includes a reference to the supply or acquisition of goods or

services by persons who, but for a provision of any contract,

arrangement or understanding or of any proposed contract,

arrangement or understanding, would be, or would be likely to be,

in competition with each other in relation to the supply or

acquisition of the goods or services.

45D Secondary boycotts for the purpose of causing substantial loss

or damage

(1) In the circumstances specified in subsection (3) or (4), a person

must not, in concert with a second person, engage in conduct:

(a) that hinders or prevents:

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(i) a third person supplying goods or services to a fourth

person (who is not an employer of the first person or the

second person); or

(ii) a third person acquiring goods or services from a fourth

person (who is not an employer of the first person or the

second person); and

(b) that is engaged in for the purpose, and would have or be

likely to have the effect, of causing substantial loss or

damage to the business of the fourth person.

Note 1: Conduct that would otherwise contravene this section can be

authorised under subsection 88(7).

Note 2: This section also has effect subject to section 45DD, which deals with

permitted boycotts.

(2) A person is taken to engage in conduct for a purpose mentioned in

subsection (1) if the person engages in the conduct for purposes

that include that purpose.

(3) Subsection (1) applies if the fourth person is a corporation.

(4) Subsection (1) also applies if:

(a) the third person is a corporation and the fourth person is not a

corporation; and

(b) the conduct would have or be likely to have the effect of

causing substantial loss or damage to the business of the third

person.

45DA Secondary boycotts for the purpose of causing substantial

lessening of competition

(1) In the circumstances specified in subsection (3), a person must not,

in concert with a second person, engage in conduct:

(a) that hinders or prevents:

(i) a third person supplying goods or services to a fourth

person (who is not an employer of the first person or the

second person); or

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(ii) a third person acquiring goods or services from a fourth

person (who is not an employer of the first person or the

second person); and

(b) that is engaged in for the purpose, and would have or be

likely to have the effect, of causing a substantial lessening of

competition in any market in which the fourth person

supplies or acquires goods or services.

Note 1: Conduct that would otherwise contravene this section can be

authorised under subsection 88(7).

Note 2: This section also has effect subject to section 45DD, which deals with

permitted boycotts.

(2) A person is taken to engage in conduct for a purpose mentioned in

subsection (1) if the person engages in the conduct for purposes

that include that purpose.

(3) Subsection (1) applies if:

(a) the third person or the fourth person is a corporation, or both

of them are corporations; and

(b) the conduct would have or be likely to have the effect of

causing substantial loss or damage to the business of one of

those persons who is a corporation.

45DB Boycotts affecting trade or commerce

(1) A person must not, in concert with another person, engage in

conduct for the purpose, and having or likely to have the effect, of

preventing or substantially hindering a third person (who is not an

employer of the first person) from engaging in trade or commerce

involving the movement of goods between Australia and places

outside Australia.

Note 1: Conduct that would otherwise contravene this section can be

authorised under subsection 88(7).

Note 2: This section also has effect subject to section 45DD, which deals with

permitted boycotts.

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(2) A person is taken to engage in conduct for a purpose mentioned in

subsection (1) if the person engages in the conduct for purposes

that include that purpose.

45DC Involvement and liability of employee organisations

Certain organisations taken to be acting in concert

(1) If 2 or more persons (the participants), each of whom is a member

or officer of the same organisation of employees, engage in

conduct in concert with one another, whether or not the conduct is

also engaged in in concert with another person, then, unless the

organisation proves otherwise, the organisation is taken for the

purposes of sections 45D, 45DA and 45DB:

(a) to engage in that conduct in concert with the participants; and

(b) to have engaged in that conduct for the purposes for which

the participants engaged in it.

Consequences of organisation contravening subsection 45D(1),

45DA(1) or 45DB(1)

(2) The consequences of an organisation of employees engaging, or

being taken by subsection (1) to engage, in conduct in concert with

any of its members or officers in contravention of

subsection 45D(1), 45DA(1) or 45DB(1) are as set out in

subsections (3), (4) and (5).

Loss or damage taken to have been caused by organisation’s

conduct

(3) Any loss or damage suffered by a person as a result of the conduct

is taken, for the purposes of this Act, to have been caused by the

conduct of the organisation.

Taking proceedings if organisation is a body corporate

(4) If the organisation is a body corporate, no action under section 82

to recover the amount of the loss or damage may be brought

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against any of the members or officers of the organisation in

respect of the conduct.

Taking proceedings if organisation is not a body corporate

(5) If the organisation is not a body corporate:

(a) a proceeding in respect of the conduct may be brought under

section 77, 80 or 82 against an officer of the organisation as a

representative of the organisation’s members and the

proceeding is taken to be a proceeding against all the persons

who were members of the organisation at the time when the

conduct was engaged in; and

(b) subsection 76(2) does not prevent an order being made in a

proceeding mentioned in paragraph (a) that was brought

under section 77; and

(c) the maximum pecuniary penalty that may be imposed in a

proceeding mentioned in paragraph (a) that was brought

under section 77 is the penalty applicable under section 76 in

relation to a body corporate; and

(d) except as provided by paragraph (a), a proceeding in respect

of the conduct must not be brought under section 77 or 82

against any of the members or officers of the organisation;

and

(e) for the purpose of enforcing any judgment or order given or

made in a proceeding mentioned in paragraph (a) that was

brought under section 77 or 82, process may be issued and

executed against the following property or interests as if the

organisation were a body corporate and the absolute owner of

the property or interests:

(i) any property of the organisation or of any branch or part

of the organisation, whether vested in trustees or

however otherwise held;

(ii) any property in which the organisation or any branch or

part of the organisation has a beneficial interest,

whether vested in trustees or however otherwise held;

(iii) any property in which any members of the organisation

or of a branch or part of the organisation have a

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beneficial interest in their capacity as members, whether

vested in trustees or however otherwise held; and

(f) if paragraph (e) applies, no process is to be issued or

executed against any property of members or officers of the

organisation or of a branch or part of the organisation except

as provided in that paragraph.

45DD Situations in which boycotts permitted

Dominant purpose of conduct relates to employment matters—

conduct by a person

(1) A person does not contravene, and is not involved in a

contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by

engaging in conduct if the dominant purpose for which the conduct

is engaged in is substantially related to the remuneration,

conditions of employment, hours of work or working conditions of

that person or of another person employed by an employer of that

person.

Dominant purpose of conduct relates to employment matters—

conduct by employee organisation and employees

(2) If:

(a) an employee, or 2 or more employees who are employed by

the same employer, engage in conduct in concert with

another person who is, or with other persons each of whom

is:

(i) an organisation of employees; or

(ii) an officer of an organisation of employees; and

(b) the conduct is only engaged in by the persons covered by

paragraph (a); and

(c) the dominant purpose for which the conduct is engaged in is

substantially related to the remuneration, conditions of

employment, hours of work or working conditions of the

employee, or any of the employees, covered by

paragraph (a);

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the persons covered by paragraph (a) do not contravene, and are

not involved in a contravention of, subsection 45D(1), 45DA(1) or

45DB(1) by engaging in the conduct.

Dominant purpose of conduct relates to environmental protection

or consumer protection

(3) A person does not contravene, and is not involved in a

contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by

engaging in conduct if:

(a) the dominant purpose for which the conduct is engaged in is

substantially related to environmental protection or consumer

protection; and

(b) engaging in the conduct is not industrial action.

Note 1: If an environmental organisation or a consumer organisation is a body

corporate:

(a) it is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption; and

(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.

Note 2: If an environmental organisation or a consumer organisation is not a

body corporate:

(a) it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) (consequently, this exemption does not cover the organisation as such); but

(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.

Meaning of industrial action—basic definition

(4) In subsection (3), industrial action means:

(a) the performance of work in a manner different from that in

which it is customarily performed, or the adoption of a

practice in relation to work, the result of which is a restriction

or limitation on, or a delay in, the performance of the work,

where:

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(i) the terms and conditions of the work are prescribed,

wholly or partly, by a workplace instrument or an order

of an industrial body; or

(ii) the work is performed, or the practice is adopted, in

connection with an industrial dispute; or

(b) a ban, limitation or restriction on the performance of work, or

on acceptance of or offering for work, in accordance with the

terms and conditions prescribed by a workplace instrument or

by an order of an industrial body; or

(c) a ban, limitation or restriction on the performance of work, or

on acceptance of or offering for work, that is adopted in

connection with an industrial dispute; or

(d) a failure or refusal by persons to attend for work or a failure

or refusal to perform any work at all by persons who attend

for work.

For this purpose, industrial body and workplace instrument have

the same meanings as in the Fair Work Act 2009.

Meaning of industrial action—further clarification

(5) For the purposes of subsection (3):

(a) conduct is capable of constituting industrial action even if the

conduct relates to part only of the duties that persons are

required to perform in the course of their employment; and

(b) a reference to industrial action includes a reference to a

course of conduct consisting of a series of industrial actions.

Subsections (1), (2) and (3) do not protect people not covered by

them

(6) In applying subsection 45D(1), 45DA(1) or 45DB(1) to a person

who is not covered by subsection (1), (2) or (3) in respect of certain

conduct, disregard the fact that other persons may be covered by

one of those subsections in respect of the same conduct.

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Defences to contravention of subsection 45DB(1)

(7) In a proceeding under this Act in relation to a contravention of

subsection 45DB(1), it is a defence if the defendant proves:

(a) that a notice in respect of the conduct concerned has been

duly given to the Commission under subsection 93(1) and the

Commission has not given a notice in respect of the conduct

under subsection 93(3) or (3A); or

(b) that the dominant purpose for which the defendant engaged

in the conduct concerned was to preserve or further a

business carried on by him or her.

Each person to prove defence

(8) If:

(a) a person engages in conduct in concert with another person;

and

(b) the other person proves a matter specified in paragraph (7)(a)

or (b) in respect of that conduct;

in applying subsection 45DB(1) to the first person, ignore the fact

that the other person has proved that matter.

Note: Section 415 of the Fair Work Act 2009 limits the right to bring actions

under this Act in respect of industrial action that is protected action for

the purposes of that section.

45E Prohibition of contracts, arrangements or understandings

affecting the supply or acquisition of goods or services

Situations to which section applies

(1) This section applies in the following situations:

(a) a supply situation—in this situation, a person (the first

person) has been accustomed, or is under an obligation, to

supply goods or services to another person (the second

person); or

(b) an acquisition situation—in this situation, a person (the first

person) has been accustomed, or is under an obligation, to

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acquire goods or services from another person (the second

person).

Despite paragraphs (a) and (b), this section does not apply unless

the first or second person is a corporation or both of them are

corporations.

Note : For the meanings of accustomed to supply and accustomed to

acquire, see subsections (5) and (7).

Prohibition in a supply situation

(2) In a supply situation, the first person must not make a contract or

arrangement, or arrive at an understanding, with an organisation of

employees, an officer of such an organisation or a person acting for

and on behalf of such an officer or organisation, if the proposed

contract, arrangement or understanding contains a provision

included for the purpose, or for purposes including the purpose, of:

(a) preventing or hindering the first person from supplying or

continuing to supply such goods or services to the second

person; or

(b) preventing or hindering the first person from supplying or

continuing to supply such goods or services to the second

person, except subject to a condition:

(i) that is not a condition to which the supply of such goods

or services by the first person to the second person has

previously been subject because of a provision in a

contract between those persons; and

(ii) that is about the persons to whom, the manner in which

or the terms on which the second person may supply

any goods or services.

Prohibition in an acquisition situation

(3) In an acquisition situation, the first person must not make a

contract or arrangement, or arrive at an understanding, with an

organisation of employees, an officer of such an organisation or a

person acting for and on behalf of such an officer or organisation,

if the proposed contract, arrangement or understanding contains a

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provision included for the purpose, or for purposes including the

purpose, of:

(a) preventing or hindering the first person from acquiring or

continuing to acquire such goods or services from the second

person; or

(b) preventing or hindering the first person from acquiring or

continuing to acquire such goods or services from the second

person, except subject to a condition:

(i) that is not a condition to which the acquisition of such

goods or services by the first person from the second

person has previously been subject because of a

provision in a contract between those persons; and

(ii) that is about the persons to whom, the manner in which

or the terms on which the second person may supply

any goods or services.

No contravention if second person gives written consent to written

contract etc.

(4) Subsections (2) and (3) do not apply to a contract, arrangement or

understanding if it is in writing and was made or arrived at with the

written consent of the second person.

Meaning of accustomed to supply

(5) In this section, a reference to a person who has been accustomed to

supply goods or services to a second person includes (subject to

subsection (6)):

(a) a regular supplier of such goods or services to the second

person; or

(b) the latest supplier of such goods or services to the second

person; or

(c) a person who, at any time during the immediately preceding

3 months, supplied such goods or services to the second

person.

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Exception to subsection (5)

(6) If:

(a) goods or services have been supplied by a person to a second

person under a contract between them that required the first

person to supply such goods or services over a period; and

(b) the period has ended; and

(c) after the end of the period, the second person has been

supplied with such goods or services by another person and

has not also been supplied with such goods or services by the

first person;

then, for the purposes of the application of this section in relation

to anything done after the second person has been supplied with

goods or services as mentioned in paragraph (c), the first person is

not to be taken to be a person who has been accustomed to supply

such goods or services to the second person.

Meaning of accustomed to acquire

(7) In this section, a reference to a person who has been accustomed to

acquire goods or services from a second person includes (subject

to subsection (8)):

(a) a regular acquirer of such goods or services from the second

person; or

(b) a person who, when last acquiring such goods or services,

acquired them from the second person; or

(c) a person who, at any time during the immediately preceding

3 months, acquired such goods or services from the second

person.

Exception to subsection (7)

(8) If:

(a) goods or services have been acquired by a person from a

second person under a contract between them that required

the first person to acquire such goods or services over a

period; and

(b) the period has ended; and

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(c) after the end of the period, the second person has refused to

supply such goods or services to the first person;

then, for the purposes of the application of this section in relation

to anything done after the second person has refused to supply

goods or services as mentioned in paragraph (c), the first person is

not to be taken to be a person who has been accustomed to acquire

such goods or services from the second person.

Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(7A).

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

A person must not give effect to a provision of a contract,

arrangement or understanding if, because of the provision, the

making of the contract or arrangement, or the arriving at the

understanding, by the person:

(a) contravened subsection 45E(2) or (3); or

(b) would have contravened subsection 45E(2) or (3) if:

(i) section 45E had been in force when the contract or

arrangement was made, or the understanding was

arrived at; and

(ii) the words “is in writing and” and “written” were not

included in subsection 45E(4).

Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(7A).

45EB Sections 45D to 45EA do not affect operation of other

provisions of Part

Nothing in section 45D, 45DA, 45DB, 45DC, 45DD, 45E or 45EA

affects the operation of any other provision of this Part.

46 Misuse of market power

(1) A corporation that has a substantial degree of power in a market

shall not take advantage of that power in that or any other market

for the purpose of:

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(a) eliminating or substantially damaging a competitor of the

corporation or of a body corporate that is related to the

corporation in that or any other market;

(b) preventing the entry of a person into that or any other market;

or

(c) deterring or preventing a person from engaging in

competitive conduct in that or any other market.

(1AAA) If a corporation supplies goods or services for a sustained period at

a price that is less than the relevant cost to the corporation of

supplying the goods or services, the corporation may contravene

subsection (1) even if the corporation cannot, and might not ever

be able to, recoup losses incurred by supplying the goods or

services.

(1AA) A corporation that has a substantial share of a market must not

supply, or offer to supply, goods or services for a sustained period

at a price that is less than the relevant cost to the corporation of

supplying such goods or services, for the purpose of:

(a) eliminating or substantially damaging a competitor of the

corporation or of a body corporate that is related to the

corporation in that or any other market; or

(b) preventing the entry of a person into that or any other market;

or

(c) deterring or preventing a person from engaging in

competitive conduct in that or any other market.

(1AB) For the purposes of subsection (1AA), without limiting the matters

to which the Court may have regard for the purpose of determining

whether a corporation has a substantial share of a market, the Court

may have regard to the number and size of the competitors of the

corporation in the market.

(1A) For the purposes of subsections (1) and (1AA):

(a) the reference in paragraphs (1)(a) and (1AA)(a) to a

competitor includes a reference to competitors generally, or

to a particular class or classes of competitors; and

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(b) the reference in paragraphs (1)(b) and (c) and (1AA)(b) and

(c) to a person includes a reference to persons generally, or to

a particular class or classes of persons.

(2) If:

(a) a body corporate that is related to a corporation has, or 2 or

more bodies corporate each of which is related to the one

corporation together have, a substantial degree of power in a

market; or

(b) a corporation and a body corporate that is, or a corporation

and 2 or more bodies corporate each of which is, related to

that corporation, together have a substantial degree of power

in a market;

the corporation shall be taken for the purposes of this section to

have a substantial degree of power in that market.

(3) In determining for the purposes of this section the degree of power

that a body corporate or bodies corporate has or have in a market,

the court shall have regard to the extent to which the conduct of the

body corporate or of any of those bodies corporate in that market is

constrained by the conduct of:

(a) competitors, or potential competitors, of the body corporate

or of any of those bodies corporate in that market; or

(b) persons to whom or from whom the body corporate or any of

those bodies corporate supplies or acquires goods or services

in that market.

(3A) In determining for the purposes of this section the degree of power

that a body corporate or bodies corporate has or have in a market,

the court may have regard to the power the body corporate or

bodies corporate has or have in that market that results from:

(a) any contracts, arrangements or understandings, or proposed

contracts, arrangements or understandings, that the body

corporate or bodies corporate has or have, or may have, with

another party or other parties; and

(b) any covenants, or proposed covenants, that the body

corporate or bodies corporate is or are, or would be, bound

by or entitled to the benefit of.

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(3B) Subsections (3) and (3A) do not, by implication, limit the matters

to which regard may be had in determining, for the purposes of this

section, the degree of power that a body corporate or bodies

corporate has or have in a market.

(3C) For the purposes of this section, without limiting the matters to

which the court may have regard for the purpose of determining

whether a body corporate has a substantial degree of power in a

market, a body corporate may have a substantial degree of power

in a market even though:

(a) the body corporate does not substantially control the market;

or

(b) the body corporate does not have absolute freedom from

constraint by the conduct of:

(i) competitors, or potential competitors, of the body

corporate in that market; or

(ii) persons to whom or from whom the body corporate

supplies or acquires goods or services in that market.

(3D) To avoid doubt, for the purposes of this section, more than 1

corporation may have a substantial degree of power in a market.

(4) In this section:

(a) a reference to power is a reference to market power;

(b) a reference to a market is a reference to a market for goods or

services; and

(c) a reference to power in relation to, or to conduct in, a 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.

(4A) Without limiting the matters to which the court may have regard

for the purpose of determining whether a corporation has

contravened subsection (1), the court may have regard to:

(a) any conduct of the corporation that consisted of supplying

goods or services for a sustained period at a price that was

less than the relevant cost to the corporation of supplying

such goods or services; and

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(b) the reasons for that conduct.

(5) Without extending by implication the meaning of subsection (1), a

corporation shall not be taken to contravene that subsection by

reason only that it acquires plant or equipment.

(6) This section does not prevent a corporation from engaging in

conduct that does not constitute a contravention of any of the

following sections, namely, sections 45, 45B, 47, 49 and 50, by

reason that an authorization or clearance is in force or by reason of

the operation of subsection 45(8A) or section 93.

(6A) In determining for the purposes of this section whether, by

engaging in conduct, a corporation has taken advantage of its

substantial degree of power in a market, the court may have regard

to any or all of the following:

(a) whether the conduct was materially facilitated by the

corporation’s substantial degree of power in the market;

(b) whether the corporation engaged in the conduct in reliance on

its substantial degree of power in the market;

(c) whether it is likely that the corporation would have engaged

in the conduct if it did not have a substantial degree of power

in the market;

(d) whether the conduct is otherwise related to the corporation’s

substantial degree of power in the market.

This subsection does not limit the matters to which the court may

have regard.

(7) Without in any way limiting the manner in which the purpose of a

person may be established for the purposes of any other provision

of this Act, a corporation may be taken to have taken advantage of

its power for a purpose referred to in subsection (1)

notwithstanding that, after all the evidence has been considered,

the existence of that purpose is ascertainable only by inference

from the conduct of the corporation or of any other person or from

other relevant circumstances.

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46A Misuse of market power—corporation with substantial degree

of power in trans-Tasman market

(1) In this section:

conduct, in relation to a market, means conduct in the market

either as a supplier or acquirer of goods or services in the market.

impact market means a market in Australia that is not a market

exclusively for services.

market power, in relation to a market, means market power in the

market either as a supplier or acquirer of goods or services in the

market.

trans-Tasman market means a market in Australia, New Zealand

or Australia and New Zealand for goods or services.

(2) A corporation that has a substantial degree of market power in a

trans-Tasman market must not take advantage of that power for the

purpose of:

(a) eliminating or substantially damaging a competitor of the

corporation, or of a body corporate that is related to the

corporation, in an impact market; or

(b) preventing the entry of a person into an impact market; or

(c) deterring or preventing a person from engaging in

competitive conduct in an impact market.

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

(a) the reference in paragraph (2)(a) to a competitor includes a

reference to competitors generally, or to a particular class or

classes of competitors; and

(b) the reference in paragraphs (2)(b) and (c) to a person includes

a reference to persons generally, or to a particular class or

classes of persons.

(3) If:

(a) a body corporate that is related to a corporation has, or 2 or

more bodies corporate each of which is related to the one

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corporation together have, a substantial degree of market

power in a trans-Tasman market; or

(b) a corporation and a body corporate that is, or a corporation

and 2 or more bodies corporate each of which is, related to

the corporation, together have a substantial degree of market

power in a trans-Tasman market;

the corporation is taken, for the purposes of this section, to have a

substantial degree of market power in the trans-Tasman market.

(4) In determining for the purposes of this section the degree of market

power that a body corporate or bodies corporate has or have in a

trans-Tasman market, the Federal Court is to have regard to the

extent to which the conduct of the body corporate or of any of

those bodies corporate, in the trans-Tasman market is constrained

by the conduct of:

(a) competitors, or potential competitors, of the body corporate,

or of any of those bodies corporate, in the trans-Tasman

market; or

(b) persons to whom or from whom the body corporate, or any of

those bodies corporate, supplies or acquires goods or services

in the trans-Tasman market.

(5) Without extending by implication the meaning of subsection (2), a

corporation is not taken to contravene that subsection merely

because it acquires plant or equipment.

(6) This section does not prevent a corporation from engaging in

conduct that does not constitute a contravention of any of the

following sections, namely, sections 45, 45B, 47, 49 and 50,

because an authorisation or clearance is in force or because of the

operation of subsection 45(8A) or section 93.

(7) Without limiting the manner in which the purpose of a person may

be established for the purposes of any other provision of this Act, a

corporation may be taken to have taken advantage of its market

power for a purpose referred to in subsection (2) even though, after

all the evidence has been considered, the existence of that purpose

is ascertainable only by inference from the conduct of the

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corporation or of any other person or from other relevant

circumstances.

(8) It is the intention of the Parliament that this section, and the

provisions of Parts VI and XII so far as they relate to a

contravention of this section, should apply to New Zealand and

New Zealand Crown corporations to the same extent, and in the

same way, as they respectively apply under section 2A to the

Commonwealth and authorities of the Commonwealth.

(9) Subsection (8) has effect despite section 9 of the Foreign States

Immunities Act 1985.

46B No immunity from jurisdiction in relation to certain New

Zealand laws

(1) It is hereby declared, for the avoidance of doubt, that the

Commonwealth, the States, the Australian Capital Territory and the

Northern Territory, and their authorities, are not immune, and may

not claim immunity, from the jurisdiction of the courts of Australia

and New Zealand in relation to matters arising under sections 36A,

98H and 99A of the Commerce Act 1986 of New Zealand.

(2) This section applies in and outside Australia.

47 Exclusive dealing

(1) Subject to this section, a corporation shall not, in trade or

commerce, engage in the practice of exclusive dealing.

(2) A corporation engages in the practice of exclusive dealing if the

corporation:

(a) supplies, or offers to supply, goods or services;

(b) supplies, or offers to supply, goods or services at a particular

price; or

(c) gives or allows, or offers to give or allow, a discount,

allowance, rebate or credit in relation to the supply or

proposed supply of goods or services by the corporation;

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on the condition that the person to whom the corporation supplies,

or offers or proposes to supply, the goods or services or, if that

person is a body corporate, a body corporate related to that body

corporate:

(d) will not, or will not except to a limited extent, acquire goods

or services, or goods or services of a particular kind or

description, directly or indirectly from a competitor of the

corporation or from a competitor of a body corporate related

to the corporation;

(e) will not, or will not except to a limited extent, re-supply

goods or services, or goods or services of a particular kind or

description, acquired directly or indirectly from a competitor

of the corporation or from a competitor of a body corporate

related to the corporation; or

(f) in the case where the corporation supplies or would supply

goods or services, will not re-supply the goods or services to

any person, or will not, or will not except to a limited extent,

re-supply the goods or services:

(i) to particular persons or classes of persons or to persons

other than particular persons or classes of persons; or

(ii) in particular places or classes of places or in places

other than particular places or classes of places.

(3) A corporation also engages in the practice of exclusive dealing if

the corporation refuses:

(a) to supply goods or services to a person;

(b) to supply goods or services to a person at a particular price;

or

(c) to give or allow a discount, allowance, rebate or credit in

relation to the supply or proposed supply of goods or services

to a person;

for the reason that the person or, if the person is a body corporate, a

body corporate related to that body corporate:

(d) has acquired, or has not agreed not to acquire, goods or

services, or goods or services of a particular kind or

description, directly or indirectly from a competitor of the

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corporation or from a competitor of a body corporate related

to the corporation;

(e) has re-supplied, or has not agreed not to re-supply, goods or

services, or goods or services of a particular kind or

description, acquired directly or indirectly from a competitor

of the corporation or from a competitor of a body corporate

related to the corporation; or

(f) has re-supplied, or has not agreed not to re-supply, goods or

services, or goods or services of a particular kind or

description, acquired from the corporation to any person, or

has re-supplied, or has not agreed not to re-supply, goods or

services, or goods or services of a particular kind or

description, acquired from the corporation:

(i) to particular persons or classes of persons or to persons

other than particular persons or classes of persons; or

(ii) in particular places or classes of places or in places

other than particular places or classes of places.

(4) A corporation also engages in the practice of exclusive dealing if

the corporation:

(a) acquires, or offers to acquire, goods or services; or

(b) acquires, or offers to acquire, goods or services at a particular

price;

on the condition that the person from whom the corporation

acquires or offers to acquire the goods or services or, if that person

is a body corporate, a body corporate related to that body corporate

will not supply goods or services, or goods or services of a

particular kind or description, to any person, or will not, or will not

except to a limited extent, supply goods or services, or goods or

services of a particular kind or description:

(c) to particular persons or classes of persons or to persons other

than particular persons or classes of persons; or

(d) in particular places or classes of places or in places other than

particular places or classes of places.

(5) A corporation also engages in the practice of exclusive dealing if

the corporation refuses:

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(a) to acquire goods or services from a person; or

(b) to acquire goods or services at a particular price from a

person;

for the reason that the person or, if the person is a body corporate, a

body corporate related to that body corporate has supplied, or has

not agreed not to supply, goods or services, or goods or services of

a particular kind or description:

(c) to particular persons or classes of persons or to persons other

than particular persons or classes of persons; or

(d) in particular places or classes of places or in places other than

particular places or classes of places.

(6) A corporation also engages in the practice of exclusive dealing if

the corporation:

(a) supplies, or offers to supply, goods or services;

(b) supplies, or offers to supply, goods or services at a particular

price; or

(c) gives or allows, or offers to give or allow, a discount,

allowance, rebate or credit in relation to the supply or

proposed supply of goods or services by the corporation;

on the condition that the person to whom the corporation supplies

or offers or proposes to supply the goods or services or, if that

person is a body corporate, a body corporate related to that body

corporate will acquire goods or services of a particular kind or

description directly or indirectly from another person not being a

body corporate related to the corporation.

(7) A corporation also engages in the practice of exclusive dealing if

the corporation refuses:

(a) to supply goods or services to a person;

(b) to supply goods or services at a particular price to a person;

or

(c) to give or allow a discount, allowance, rebate or credit in

relation to the supply of goods or services to a person;

for the reason that the person or, if the person is a body corporate, a

body corporate related to that body corporate has not acquired, or

has not agreed to acquire, goods or services of a particular kind or

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description directly or indirectly from another person not being a

body corporate related to the corporation.

(8) A corporation also engages in the practice of exclusive dealing if

the corporation grants or renews, or makes it known that it will not

exercise a power or right to terminate, a lease of, or a licence in

respect of, land or a building or part of a building on the condition

that another party to the lease or licence or, if that other party is a

body corporate, a body corporate related to that body corporate:

(a) will not, or will not except to a limited extent:

(i) acquire goods or services, or goods or services of a

particular kind or description, directly or indirectly from

a competitor of the corporation or from a competitor of

a body corporate related to the corporation; or

(ii) re-supply goods or services, or goods or services of a

particular kind or description, acquired directly or

indirectly from a competitor of the corporation or from

a competitor of a body corporate related to the

corporation;

(b) will not supply goods or services, or goods or services of a

particular kind or description, to any person, or will not, or

will not except to a limited extent, supply goods or services,

or goods or services of a particular kind or description:

(i) to particular persons or classes of persons or to persons

other than particular persons or classes of persons; or

(ii) in particular places or classes of places or in places

other than particular places or classes of places; or

(c) will acquire goods or services of a particular kind or

description directly or indirectly from another person not

being a body corporate related to the corporation.

(9) A corporation also engages in the practice of exclusive dealing if

the corporation refuses to grant or renew, or exercises a power or

right to terminate, a lease of, or a licence in respect of, land or a

building or part of a building for the reason that another party to

the lease or licence or, if that other party is a body corporate, a

body corporate related to that body corporate:

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(a) has acquired, or has not agreed not to acquire, goods or

services, or goods or services of a particular kind or

description, directly or indirectly from a competitor of the

corporation or from a competitor of a body corporate related

to the corporation;

(b) has re-supplied, or has not agreed not to re-supply, goods or

services, or goods or services of a particular kind or

description, acquired directly or indirectly from a competitor

of the corporation or from a competitor of a body corporate

related to the corporation;

(c) has supplied goods or services, or goods or services of a

particular kind or description:

(i) to particular persons or classes of persons or to persons

other than particular persons or classes of persons; or

(ii) in particular places or classes of places or in places

other than particular places or classes of places; or

(d) has not acquired, or has not agreed to acquire, goods or

services of a particular kind or description directly or

indirectly from another person not being a body corporate

related to the corporation.

(10) Subsection (1) does not apply to the practice of exclusive dealing

constituted by a corporation engaging in conduct of a kind referred

to in subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or

(9)(a), (b) or (c) unless:

(a) the engaging by the corporation in that conduct has the

purpose, or has or is likely to have the effect, of substantially

lessening competition; or

(b) the engaging by the corporation in that conduct, and the

engaging by the corporation, or by a body corporate related

to the corporation, in other conduct of the same or a similar

kind, together have or are likely to have the effect of

substantially lessening competition.

(10A) Subsection (1) does not apply to a corporation engaging in conduct

described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if:

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(a) the corporation has given the Commission a notice under

subsection 93(1) describing the conduct; and

(b) the notice is in force under section 93.

(11) Subsections (8) and (9) do not apply with respect to:

(a) conduct engaged in:

(i) by a registered charity; and

(ii) for or in accordance with the purposes or objects of that

registered charity; or

(b) conduct engaged in in pursuance of a legally enforceable

requirement made by a registered charity, being a

requirement made for or in accordance with the purposes or

objects of that registered charity.

(12) Subsection (1) does not apply with respect to any conduct engaged

in by a body corporate by way of restricting dealings by another

body corporate if those bodies corporate are related to each other.

(13) In this section:

(a) a reference to a condition shall be read as a reference to any

condition, whether direct or indirect and whether having

legal or equitable force or not, and includes a reference to a

condition the existence or nature of which is ascertainable

only by inference from the conduct of persons or from other

relevant circumstances;

(b) a reference to competition, in relation to conduct to which a

provision of this section other than subsection (8) or (9)

applies, shall be read as a reference to competition in any

market in which:

(i) the corporation engaging in the conduct or any body

corporate related to that corporation; or

(ii) any person whose business dealings are restricted,

limited or otherwise circumscribed by the conduct or, if

that person is a body corporate, any body corporate

related to that body corporate;

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supplies or acquires, or is likely to supply or acquire, goods

or services or would, but for the conduct, supply or acquire,

or be likely to supply or acquire, goods or services; and

(c) a reference to competition, in relation to conduct to which

subsection (8) or (9) applies, shall be read as a reference to

competition in any market in which the corporation engaging

in the conduct or any other corporation the business dealings

of which are restricted, limited or otherwise circumscribed by

the conduct, or any body corporate related to either of those

corporations, supplies or acquires, or is likely to supply or

acquire, goods or services or would, but for the conduct,

supply or acquire, or be likely to supply or acquire, goods or

services.

48 Resale price maintenance

A corporation or other person shall not engage in the practice of

resale price maintenance.

49 Dual listed company arrangements that affect competition

(1) A corporation must not:

(a) make a dual listed company arrangement if a provision of the

proposed arrangement has the purpose, or would have or be

likely to have the effect, of substantially lessening

competition; or

(b) give effect to a provision of a dual listed company

arrangement if that provision has the purpose, or has or is

likely to have the effect, of substantially lessening

competition.

Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(8B).

Exception

(2) The making by a corporation of a dual listed company arrangement

that contains a provision that has the purpose, or would have or be

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likely to have the effect, of substantially lessening competition

does not contravene this section if:

(a) the arrangement is subject to a condition that the provision

will not come into force unless and until the corporation is

granted an authorisation to give effect to the provision; and

(b) the corporation applies for the grant of such an authorisation

within 14 days after the arrangement is made.

However, this subsection does not permit the corporation to give

effect to such a provision.

Meaning of competition

(3) For the purposes of this section, competition, in relation to a

provision of a dual listed company arrangement or of a proposed

dual listed company arrangement, means competition in any

market in which:

(a) a corporation that is a party to the arrangement or would be a

party to the proposed arrangement; or

(b) any body corporate related to such a corporation;

supplies or acquires, or is likely to supply or acquire, goods or

services or would, apart from the provision, supply or acquire, or

be likely to supply or acquire, goods or services.

(4) For the purposes of the application of this section in relation to a

particular corporation, a provision of a dual listed company

arrangement or of a proposed dual listed company arrangement is

taken to have, or to be likely to have, the effect of substantially

lessening competition if that provision and any one or more of the

following provisions:

(a) the other provisions of that arrangement or proposed

arrangement;

(b) the provisions of any other contract, arrangement or

understanding or proposed contract, arrangement or

understanding to which the corporation or a body corporate

related to the corporation is or would be a party;

together have or are likely to have that effect.

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50 Prohibition of acquisitions that would result in a substantial

lessening of competition

(1) A corporation must not directly or indirectly:

(a) acquire shares in the capital of a body corporate; or

(b) acquire any assets of a person;

if the acquisition would have the effect, or be likely to have the

effect, of substantially lessening competition in any market.

Note: The corporation will not be prevented from making the acquisition if

the corporation is granted a clearance or an authorisation for the

acquisition under Division 3 of Part VII: see subsections 95AC(2) and

95AT(2).

(2) A person must not directly or indirectly:

(a) acquire shares in the capital of a corporation; or

(b) acquire any assets of a corporation;

if the acquisition would have the effect, or be likely to have the

effect, of substantially lessening competition in any market.

Note: The person will not be prevented from making the acquisition if the

person is granted a clearance or an authorisation for the acquisition

under Division 3 of Part VII: see subsections 95AC(2) and 95AT(2).

(3) Without limiting the matters that may be taken into account for the

purposes of subsections (1) and (2) in determining whether the

acquisition would have the effect, or be likely to have the effect, of

substantially lessening competition in a market, the following

matters must be taken into account:

(a) the actual and potential level of import competition in the

market;

(b) the height of barriers to entry to the market;

(c) the level of concentration in the market;

(d) the degree of countervailing power in the market;

(e) the likelihood that the acquisition would result in the acquirer

being able to significantly and sustainably increase prices or

profit margins;

(f) the extent to which substitutes are available in the market or

are likely to be available in the market;

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(g) the dynamic characteristics of the market, including growth,

innovation and product differentiation;

(h) the likelihood that the acquisition would result in the removal

from the market of a vigorous and effective competitor;

(i) the nature and extent of vertical integration in the market.

(4) Where:

(a) a person has entered into a contract to acquire shares in the

capital of a body corporate or assets of a person;

(b) the contract is subject to a condition that the provisions of the

contract relating to the acquisition will not come into force

unless and until the person has been granted a clearance or an

authorization to acquire the shares or assets; and

(c) the person applied for the grant of such a clearance or an

authorization before the expiration of 14 days after the

contract was entered into;

the acquisition of the shares or assets shall not be regarded for the

purposes of this Act as having taken place in pursuance of the

contract before:

(d) the application for the clearance or authorization is disposed

of; or

(e) the contract ceases to be subject to the condition;

whichever first happens.

(5) For the purposes of subsection (4), an application for a clearance

shall be taken to be disposed of:

(a) in a case to which paragraph (b) of this subsection does not

apply—at the expiration of 14 days after the period in which

an application may be made to the Tribunal for a review of

the determination by the Commission of the application for

the clearance; or

(b) if an application is made to the Tribunal for a review of the

determination by the Commission of the application for the

clearance—at the expiration of 14 days after the date of the

making by the Tribunal of a determination on the review.

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(5A) For the purposes of subsection (4), an application for an

authorisation is taken to be disposed of 14 days after the day the

Tribunal makes a determination on the application.

(6) In this section:

market means a market for goods or services in:

(a) Australia; or

(b) a State; or

(c) a Territory; or

(d) a region of Australia.

50A Acquisitions that occur outside Australia

(1) Where a person acquires, outside Australia, otherwise than by

reason of the application of paragraph (8)(b), a controlling interest

(the first controlling interest) in any body corporate and, by

reason, but not necessarily by reason only, of the application of

paragraph (8)(b) in relation to the first controlling interest, obtains

a controlling interest (the second controlling interest) in a

corporation or each of 2 or more corporations, the Tribunal may,

on the application of the Minister, the Commission or any other

person, if the Tribunal is satisfied that:

(a) the person’s obtaining the second controlling interest would

have the effect, or be likely to have the effect, of substantially

lessening competition in a market; and

(b) the person’s obtaining the second controlling interest would

not, in all the circumstances, result, or be likely to result, in

such a benefit to the public that the obtaining should be

disregarded for the purposes of this section;

make a declaration accordingly.

(1A) Without limiting the matters that may be taken into account in

determining whether the obtaining of the second controlling

interest would have the effect, or be likely to have the effect, of

substantially lessening competition in a market, the matters

mentioned in subsection 50(3) must be taken into account for that

purpose.

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(1B) In determining whether the obtaining of the second controlling

interest would result, or be likely to result, in such a benefit to the

public that it should be disregarded for the purposes of this section:

(a) the Tribunal must regard the following as benefits to the

public (in addition to any other benefits to the public that

may exist apart from this paragraph):

(i) a significant increase in the real value of exports;

(ii) a significant substitution of domestic products for

imported goods; and

(b) without limiting the matters that may be taken into account,

the Tribunal must take into account all other relevant matters

that relate to the international competitiveness of any

Australian industry.

(2) Where an application under subsection (1) is made:

(a) the Tribunal shall give to:

(i) each corporation in relation to which the application

relates; and

(ii) the Minister and the Commission;

a notice in writing stating that the application has been made;

and

(b) the persons referred to in paragraph (a) and, if the application

was made by another person, that other person are entitled to

appear, or be represented, at the proceedings following the

application.

(3) An application under subsection (1) may be made at any time

within 12 months after the date of the acquisition referred to in that

subsection in relation to which the application is made.

(4) The Tribunal may, on the application of the Minister, the

Commission or any other person, or of its own motion, revoke a

declaration made under subsection (1).

(5) The Tribunal shall state in writing its reasons for making, refusing

to make or revoking a declaration under subsection (1).

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(6) After the end of 6 months after a declaration is made under

subsection (1) in relation to the obtaining of a controlling interest

in a corporation or 2 or more corporations by a person or, if the

person, before the end of that period of 6 months, makes an

application to a presidential member for an extension of that

period, after the end of such further period (not exceeding 6

months) as the presidential member allows, the corporation or each

of the corporations, as the case may be, shall not, while the

declaration remains in force, carry on business in the market to

which the declaration relates.

(7) Subsection (1) does not apply in relation to an acquisition referred

to in that subsection if section 50 applies in relation to that

acquisition.

(8) For the purposes of this section:

(a) a person shall be taken to hold a controlling interest in a body

corporate if the body corporate is, or, if the person were a

body corporate, would be, a subsidiary of the person

(otherwise than by reason of the application of

paragraph 4A(1)(b)); and

(b) where a person holds a controlling interest (including a

controlling interest held by virtue of another application or

other applications of this paragraph) in a body corporate and

that body corporate:

(i) controls the composition of the board of directors of

another body corporate;

(ii) is in a position to cast, or control the casting of, any

votes that might be cast at a general meeting of another

body corporate; or

(iii) holds shares in the capital of another body corporate;

the person shall be deemed (but not to the exclusion of any

other person) to control the composition of that board, to be

in a position to cast, or control the casting of, those votes or

to hold those shares, as the case may be.

(9) In this section:

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Section 51

310 Competition and Consumer Act 2010

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market means a substantial market for goods or services in

Australia, in a State or in a Territory.

51 Exceptions

(1) In deciding whether a person has contravened this Part, the

following must be disregarded:

(a) anything specified in, and specifically authorised by:

(i) an Act (not including an Act relating to patents, trade

marks, designs or copyrights); or

(ii) regulations made under such an Act;

(b) anything done in a State, if the thing is specified in, and

specifically authorised by:

(i) an Act passed by the Parliament of that State; or

(ii) regulations made under such an Act;

(c) anything done in the Australian Capital Territory, if the thing

is specified in, and specifically authorised by:

(i) an enactment as defined in section 3 of the Australian

Capital Territory (Self-Government) Act 1988; or

(ii) regulations made under such an enactment;

(d) anything done in the Northern Territory, if the thing is

specified in, and specifically authorised by:

(i) an enactment as defined in section 4 of the Northern

Territory (Self-Government) Act 1978; or

(ii) regulations made under such an enactment;

(e) anything done in another Territory, if the thing is specified

in, and specifically authorised by:

(i) an Ordinance of that Territory; or

(ii) regulations made under such an Ordinance.

(1A) Without limiting subsection (1), conduct is taken to be specified in,

and authorised by, a law for the purposes of that subsection if:

(a) a licence or other instrument issued or made under the law

specifies one or both of the following:

(i) the person authorised to engage in the conduct;

(ii) the place where the conduct is to occur; and

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(b) the law specifies the attributes of the conduct except those

mentioned in paragraph (a).

For this purpose, law means an Act, State Act, enactment or

Ordinance.

(1B) Subsections (1) and (1A) apply regardless of when the Acts, State

Acts, enactments, Ordinances, regulations or instruments referred

to in those subsections were passed, made or issued.

(1C) The operation of subsection (1) is subject to the following

limitations:

(a) in order for something to be regarded as specifically

authorised for the purposes of subsection (1), the authorising

provision must expressly refer to this Act;

(b) subparagraph (1)(a)(ii) and paragraphs (1)(b), (c), (d) and (e)

do not apply in deciding whether a person has contravened

section 50 or 50A;

(c) regulations referred to in subparagraph (1)(a)(ii), (b)(ii),

(c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a

particular thing to be disregarded if the thing happens more

than 2 years after those regulations came into operation;

(d) regulations referred to in subparagraph (1)(a)(ii), (b)(ii),

(c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a

particular thing to be disregarded to the extent that the

regulations are the same in substance as other regulations:

(i) referred to in the subparagraph concerned; and

(ii) that came into operation more than 2 years before the

particular thing happened;

(e) paragraphs (1)(b) to (d) have no effect in relation to things

authorised by a law of a State or Territory unless:

(i) at the time of the alleged contravention referred to in

subsection (1) the State or Territory was a

fully-participating jurisdiction and a party to the

Competition Principles Agreement; or

(ii) all of the following conditions are met:

(A) the Minister published a notice in the Gazette

under subsection 150K(1) in relation to the

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Section 51

312 Competition and Consumer Act 2010

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State or Territory, or the State or Territory

ceased to be a party to the Competition

Principles Agreement, within 12 months before

the alleged contravention referred to in

subsection (1);

(B) the thing authorised was the making of a

contract, or an action under a contract, that

existed immediately before the Minister

published the notice or the State or Territory

ceased to be a party;

(C) the law authorising the thing was in force

immediately before the Minister published the

notice or the State or Territory ceased to be a

party;

(f) subsection (1) does not apply to things that are covered by

paragraph (1)(b), (c), (d) or (e) to the extent that those things

are prescribed by regulations made under this Act for the

purposes of this paragraph.

(2) In determining whether a contravention of a provision of this Part

other than section 45D, 45DA, 45DB, 45E, 45EA or 48 has been

committed, regard shall not be had:

(a) to any act done in relation to, or to the making of a contract

or arrangement or the entering into of an understanding, or to

any provision of a contract, arrangement or understanding, to

the extent that the contract, arrangement or understanding, or

the provision, relates to, the remuneration, conditions of

employment, hours of work or working conditions of

employees;

(b) to any provision of a contract of service or of a contract for

the provision of services, being a provision under which a

person, not being a body corporate, agrees to accept

restrictions as to the work, whether as an employee or

otherwise, in which he or she may engage during, or after the

termination of, the contract;

(c) to any provision of a contract, arrangement or understanding,

being a provision obliging a person to comply with or apply

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Section 51

Competition and Consumer Act 2010 313

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standards of dimension, design, quality or performance

prepared or approved by Standards Australia or by a

prescribed association or body;

(d) to any provision of a contract, arrangement or understanding

between partners none of whom is a body corporate, being a

provision in relation to the terms of the partnership or the

conduct of the partnership business or in relation to

competition between the partnership and a party to the

contract, arrangement or understanding while he or she is, or

after he or she ceases to be, a partner;

(e) in the case of a contract for the sale of a business or of shares

in the capital of a body corporate carrying on a business—to

any provision of the contract that is solely for the protection

of the purchaser in respect of the goodwill of the business; or

(g) to any provision of a contract, arrangement or understanding,

being a provision that relates exclusively to the export of

goods from Australia or to the supply of services outside

Australia, if full and accurate particulars of the provision (not

including particulars of prices for goods or services but

including particulars of any method of fixing, controlling or

maintaining such prices) were furnished to the Commission

before the expiration of 14 days after the date on which the

contract or arrangement was made or the understanding was

arrived at, or before 8 September 1976, whichever was the

later.

(2A) In determining whether a contravention of a provision of this Part

other than section 48 has been committed, regard shall not be had

to any acts done, otherwise than in the course of trade or

commerce, in concert by ultimate users or consumers of goods or

services against the suppliers of those goods or services.

(3) A contravention of a provision of this Part other than section 46,

46A or 48 shall not be taken to have been committed by reason of:

(a) the imposing of, or giving effect to, a condition of:

(i) a licence granted by the proprietor, licensee or owner of

a patent, of a registered design, of a copyright or of EL

rights within the meaning of the Circuit Layouts Act

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Division 2 Other provisions

Section 51

314 Competition and Consumer Act 2010

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1989, or by a person who has applied for a patent or for

the registration of a design; or

(ii) an assignment of a patent, of a registered design, of a

copyright or of such EL rights, or of the right to apply

for a patent or for the registration of a design;

to the extent that the condition relates to:

(iii) the invention to which the patent or application for a

patent relates or articles made by the use of that

invention;

(iv) goods in respect of which the design is, or is proposed

to be, registered and to which it is applied;

(v) the work or other subject matter in which the copyright

subsists; or

(vi) the eligible layout in which the EL rights subsist;

(b) the inclusion in a contract, arrangement or understanding

authorizing the use of a certification trade mark of a

provision in accordance with rules applicable under Part XI

of the Trade Marks Act 1955, or the giving effect to such a

provision; or

(c) the inclusion in a contract, arrangement or understanding

between:

(i) the registered proprietor of a trade mark other than a

certification trade mark; and

(ii) a person registered as a registered user of that trade

mark under Part IX of the Trade Marks Act 1955 or a

person authorized by the contract to use the trade mark

subject to his or her becoming registered as such a

registered user;

of a provision to the extent that it relates to the kinds,

qualities or standards of goods bearing the mark that may be

produced or supplied, or the giving effect to the provision to

that extent.

(4) This section applies in determining whether a provision of a

contract is unenforceable by reason of subsection 45(1), or whether

a covenant is unenforceable by reason of subsection 45B(1), in like

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Section 51AAA

Competition and Consumer Act 2010 315

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manner as it applies in determining whether a contravention of a

provision of this Part has been committed.

(5) In the application of subsection (2A) to section 46A, the reference

in that subsection to trade or commerce includes trade or

commerce within New Zealand.

51AAA Concurrent operation of State and Territory laws

It is the Parliament’s intention that a law of a State or Territory

should be able to operate concurrently with this Part unless the law

is directly inconsistent with this Part.

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Part IVB Industry codes

Division 1 Preliminary

Section 51ACA

316 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part IVB—Industry codes

Division 1—Preliminary

51ACA Definitions

(1) In this Part:

applicable industry code, in relation to a corporation that is a

participant in an industry, means:

(a) the prescribed provisions of any mandatory industry code

relating to the industry; and

(b) the prescribed provisions of any voluntary industry code that

binds the corporation.

consumer, in relation to an industry, means a person to whom

goods or services are or may be supplied by participants in the

industry.

industry code means a code regulating the conduct of participants

in an industry towards other participants in the industry or towards

consumers in the industry.

infringement notice means an infringement notice issued under

subsection 51ACD(1).

infringement notice compliance period: see subsection 51ACI(1).

mandatory industry code means an industry code that is declared

by regulations under section 51AE to be mandatory.

related contravention: a person engages in conduct that constitutes

a related contravention of an applicable industry code, if the

person:

(a) aids, abets, counsels or procures a corporation to contravene

the applicable industry code; or

(b) induces, whether by threats or promises or otherwise, a

corporation to contravene the applicable industry code; or

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Section 51ACA

Competition and Consumer Act 2010 317

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(c) is in any way, directly or indirectly, knowingly concerned in,

or party to, a contravention by a corporation of the applicable

industry code; or

(d) conspires with others to effect a contravention by a

corporation of the applicable industry code.

voluntary industry code means an industry code that is declared by

regulations under section 51AE to be voluntary.

(2) For the purposes of this Part, a voluntary industry code binds a

person who has agreed, as prescribed, to be bound by the code and

who has not subsequently ceased, as prescribed, to be bound by it.

(3) To avoid doubt, it is declared that:

(a) franchising is an industry for the purposes of this Part; and

(b) franchisors and franchisees are participants in the industry of

franchising, whether or not they are also participants in

another industry.

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Division 2 Contravention of industry codes

Section 51ACB

318 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Contravention of industry codes

51ACB Contravention of industry codes

A corporation must not, in trade or commerce, contravene an

applicable industry code.

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Infringement notices Division 2A

Section 51ACC

Competition and Consumer Act 2010 319

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Division 2A—Infringement notices

51ACC 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 a

civil penalty provision of an industry code as an alternative to

proceedings for an order under section 76 for the payment of a

pecuniary penalty.

(2) This Division does not:

(a) require an infringement notice to be issued to a person for an

alleged contravention of a civil penalty provision of an

industry code; or

(b) affect the liability of a person to proceedings under

section 76 in relation to an alleged contravention of a civil

penalty provision of an industry code if:

(i) an infringement notice is not issued to the person for the

contravention; or

(ii) an infringement notice issued to the person for the

contravention is withdrawn under section 51ACJ; 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.

51ACD Issuing an infringement notice

(1) If the Commission has reasonable grounds to believe that a person

has contravened a civil penalty provision of an industry code, the

Commission may issue an infringement notice to the person.

(2) The Commission must not issue more than one infringement notice

to the person for the same alleged contravention of the civil penalty

provision of the industry code.

(3) The infringement notice does not have any effect if the notice:

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Division 2A Infringement notices

Section 51ACE

320 Competition and Consumer Act 2010

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(a) is issued more than 12 months after the day that the

contravention of the civil penalty provision of the industry

code is alleged to have occurred; or

(b) relates to more than one alleged contravention of a civil

penalty provision of the industry code by the person.

51ACE Matters to be included in an infringement notice

(1) 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 state how it may be contacted;

and

(e) give details of the alleged contravention, including:

(i) the day of the alleged contravention; and

(ii) the civil penalty provision of the industry code that was

allegedly contravened; and

(f) state the maximum pecuniary penalty that the court could

order the person to pay under section 76 for the alleged

contravention; and

(g) specify the penalty that is payable in relation to the alleged

contravention; and

(h) state that the penalty is payable within the infringement

notice compliance period for the notice; and

(i) state that the penalty is payable to the Commission on behalf

of the Commonwealth; and

(j) explain how payment of the penalty is to be made; and

(k) explain the effect of sections 51ACG, 51ACH, 51ACI and

51ACJ.

51ACF 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 civil

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Section 51ACG

Competition and Consumer Act 2010 321

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penalty provision of an industry code, must be a penalty equal to

the following amount:

(a) if the person is a body corporate—50 penalty units;

(b) otherwise—10 penalty units.

51ACG Effect of compliance with an infringement notice

(1) This section applies if:

(a) an infringement notice for an alleged contravention of a civil

penalty provision of an industry code 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 51ACJ.

(2) The person is not, merely because of the payment, regarded as

having contravened the civil penalty provision of the industry code.

(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 the alleged contravention of the civil

penalty provision of the industry code.

51ACH Effect of failure to comply with an infringement notice

If:

(a) an infringement notice for an alleged contravention of a civil

penalty provision of an industry code 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 51ACJ;

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Division 2A Infringement notices

Section 51ACI

322 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the person is liable to proceedings under section 76 in relation to

the alleged contravention of the civil penalty provision of the

industry code.

51ACI 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 that the infringement notice is issued by the

Commission.

(2) The Commission may extend, by notice in writing, the

infringement notice compliance period for the infringement 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.

51ACJ Withdrawal of an infringement notice

Representations to the Commission

(1) A person to whom an infringement notice has been issued for an

alleged contravention of a civil penalty provision of an industry

code may make written representations to the Commission seeking

the withdrawal of the infringement notice.

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Section 51ACJ

Competition and Consumer Act 2010 323

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(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 section 76 may be started or

continued against the person in relation to the alleged

contravention of the civil penalty provision of the industry

code.

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.

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Division 2A Infringement notices

Section 51ACJ

324 Competition and Consumer Act 2010

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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.

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Public warning notices Division 3

Section 51ADA

Competition and Consumer Act 2010 325

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Division 3—Public warning notices

51ADA Commission may issue a public warning notice

Commission may issue a public warning notice

(1) The Commission may issue to the public a written notice

containing a warning about the conduct of a person if:

(a) the Commission has reasonable grounds to suspect that the

conduct may constitute:

(i) if the person is a corporation—a contravention of an

applicable industry code by the corporation; or

(ii) in any case—a related contravention of an applicable

industry code by the person; and

(b) the Commission is satisfied that one or more persons has

suffered, or is likely to suffer, detriment as a result of the

conduct; and

(c) the Commission is satisfied that it is in the public interest to

issue the notice.

Notice is not a legislative instrument

(2) A notice issued under subsection (1) is not a legislative instrument.

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Division 4 Orders to redress loss or damage suffered by non-parties etc.

Section 51ADB

326 Competition and Consumer Act 2010

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Division 4—Orders to redress loss or damage suffered by

non-parties etc.

51ADB Orders to redress loss or damage suffered by non-parties

etc.

Orders

(1) If:

(a) a person engaged in conduct (the contravening conduct)

that:

(i) if the person was a corporation—constituted a

contravention of an applicable industry code; or

(ii) in any case—constituted a related contravention of an

applicable industry code; and

(b) the contravening conduct caused, or is likely to cause, a class

of persons to suffer loss or damage; and

(c) the class includes persons (non-parties) who are not, or have

not been, parties to a proceeding (an enforcement

proceeding) instituted under Part VI in relation to the

contravening conduct;

any court having jurisdiction in the matter may, on the application

of the Commission, make such order or orders (other than an award

of damages) as the court thinks appropriate against a person

referred to in subsection (2) of this section.

Note: The orders that the court may make include all or any of the orders set

out in section 51ADC.

(2) An order under subsection (1) may be made against:

(a) the person mentioned in paragraph (1)(a); or

(b) a person involved in the contravening conduct.

(3) A court must not make an order under subsection (1) unless the

court considers that the order will:

(a) redress, in whole or in part, the loss or damage suffered by

the non-parties in relation to the contravening conduct; or

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Section 51ADB

Competition and Consumer Act 2010 327

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(b) prevent or reduce the loss or damage suffered, or likely to be

suffered, by the non-parties in relation to the contravening

conduct.

Application for orders

(4) An application may be made under subsection (1) even if an

enforcement proceeding in relation to the contravening conduct has

not been instituted.

(5) An application under subsection (1) may be made at any time

within 6 years after the day on which the cause of action that

relates to the contravening conduct accrues.

Determining whether to make an order

(6) In determining whether to make an order under subsection (1)

against a person referred to in subsection (2), a court may have

regard to the conduct of:

(a) the person; and

(b) the non-parties;

in relation to the contravening conduct, since the contravention

occurred.

(7) In determining whether to make an order under subsection (1), a

court need not make a finding about either of the following

matters:

(a) which persons are non-parties in relation to the contravening

conduct;

(b) the nature of the loss or damage suffered, or likely to be

suffered, by such persons.

When a non-party is bound by an order etc.

(8) If:

(a) an order is made under subsection (1) against a person; and

(b) the loss or damage suffered, or likely to be suffered, by a

non-party in relation to the contravening conduct to which

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Division 4 Orders to redress loss or damage suffered by non-parties etc.

Section 51ADC

328 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the order relates has been redressed, prevented or reduced in

accordance with the order; and

(c) the non-party has accepted the redress, prevention or

reduction;

then:

(d) the non-party is bound by the order; and

(e) any other order made under subsection (1) that relates to that

loss or damage has no effect in relation to the non-party; and

(f) despite any other provision of this Act or any other law of the

Commonwealth, or a State or Territory, no claim, action or

demand may be made or taken against the person by the

non-party in relation to that loss or damage.

51ADC Kinds of orders that may be made to redress loss or damage

suffered by non-parties etc.

Without limiting subsection 51ADB(1), the orders that a court may

make under that subsection against a person (the respondent)

include all or any of the following:

(a) an order declaring the whole or any part of a contract made

between the respondent and a non-party referred to in that

subsection, or a collateral arrangement relating to such a

contract:

(i) to be void; and

(ii) if the court thinks fit—to have been void ab initio or

void at all times on and after such date as is specified in

the order (which may be a date that is before the date on

which the order is made);

(b) an order:

(i) varying such a contract or arrangement in such manner

as is specified in the order; and

(ii) if the court thinks fit—declaring the contract or

arrangement to have had effect as so varied on and after

such date as is specified in the order (which may be a

date that is before the date on which the order is made);

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Industry codes Part IVB

Orders to redress loss or damage suffered by non-parties etc. Division 4

Section 51ADC

Competition and Consumer Act 2010 329

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) an order refusing to enforce any or all of the provisions of

such a contract or arrangement;

(d) an order directing the respondent to refund money or return

property to a non-party referred to in that subsection;

(e) an order directing the respondent, at his or her own expense,

to repair, or provide parts for, goods that have been supplied

under the contract or arrangement to a non-party referred to

in that subsection;

(f) an order directing the respondent, at his or her own expense,

to supply specified services to a non-party referred to in that

subsection;

(g) an order, in relation to an instrument creating or transferring

an interest in land (within the meaning of section 53A),

directing the respondent to execute an instrument that:

(i) varies, or has the effect of varying, the first-mentioned

instrument; or

(ii) terminates or otherwise affects, or has the effect of

terminating or otherwise affecting, the operation or

effect of the first-mentioned instrument.

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Part IVB Industry codes

Division 5 Investigation power

Section 51ADD

330 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 5—Investigation power

51ADD Commission may require corporation to provide

information

(1) This section applies if a corporation is required to keep, to generate

or to publish information or a document under an applicable

industry code.

(2) The Commission may give the corporation a written notice that

requires the corporation to give the information, or to produce the

document, to the Commission within 21 days after the notice is

given to the corporation.

(3) The notice must:

(a) name the corporation to which it is given; and

(b) specify:

(i) the information or document to which it relates; and

(ii) the provisions of the applicable industry code which

require the corporation to keep, to generate or to publish

the information or document; and

(c) explain the effect of sections 51ADE, 51ADF and 51ADG.

(4) The notice may relate to more than one piece of information or

more than one document.

51ADE Extending periods for complying with notices

(1) A corporation that has been given a notice under section 51ADD

may, at any time within 21 days after the notice was given to the

corporation, apply in writing to the Commission for an extension

of the period for complying with the notice.

(2) The Commission may, by written notice given to the corporation,

extend the period within which the corporation must comply with

the notice.

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Industry codes Part IVB

Investigation power Division 5

Section 51ADF

Competition and Consumer Act 2010 331

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

51ADF Compliance with notices

A corporation that is given a notice under section 51ADD must

comply with it within:

(a) the period of 21 days specified in the notice; or

(b) if the period for complying with the notice has been extended

under section 51ADE—the period as so extended.

51ADG False or misleading information etc.

(1) A corporation must not, in compliance or purported compliance

with a notice given under section 51ADD:

(a) give to the Commission false or misleading information; or

(b) produce to the Commission documents that contain false or

misleading information.

(2) This section does not apply to:

(a) information that the corporation could not have known was

false or misleading; or

(b) the production to the Commission of a document containing

false or misleading information if the document is

accompanied by a statement of the corporation that the

information is false or misleading.

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Division 6 Miscellaneous

Section 51AE

332 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 6—Miscellaneous

51AE Regulations relating to industry codes

(1) The regulations may:

(a) prescribe an industry code, or specified provisions of an

industry code, for the purposes of this Part; and

(b) declare the industry code to be a mandatory industry code or

a voluntary industry code; and

(c) for a voluntary industry code, specify the method by which a

corporation agrees to be bound by the code and the method

by which it ceases to be so bound (by reference to provisions

of the code or otherwise).

(2) If regulations prescribe an industry code, the industry code may

prescribe pecuniary penalties not exceeding 300 penalty units for

civil penalty provisions of the industry code.

51AEA Concurrent operation of State and Territory laws

It is the Parliament’s intention that a law of a State or Territory

should be able to operate concurrently with this Part unless the law

is directly inconsistent with this Part.

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Payment surcharges Part IVC

Preliminary Division 1

Section 55

Competition and Consumer Act 2010 333

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part IVC—Payment surcharges

Division 1—Preliminary

55 Object of this Part

The object of this Part is to ensure that payment surcharges:

(a) are not excessive; and

(b) reflect the cost of using the payment methods for which they

are charged.

55A Definitions

In this Part:

excessive, in relation to a payment surcharge, has the meaning

given by subsection 55B(2).

infringement notice compliance period has the meaning given by

subsection 55M(1).

listed corporation has the meaning given by section 9 of the

Corporations Act 2001.

payment surcharge means:

(a) an amount charged, in addition to the price of goods or

services, for processing payment for the goods or services; or

(b) an amount (however described) charged for using one

payment method rather than another.

Reserve Bank standard means a standard determined under

section 18 of the Payment Systems (Regulation) Act 1998 after the

commencement of this definition.

surcharge information notice has the meaning given by

subsection 55C(3).

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Part IVC Payment surcharges

Division 1 Preliminary

Section 55A

334 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

surcharge participant has the meaning given by

subsection 55C(2).

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Payment surcharges Part IVC

Limit on payment surcharges Division 2

Section 55B

Competition and Consumer Act 2010 335

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Limit on payment surcharges

55B Payment surcharges must not be excessive

(1) A corporation must not, in trade or commerce, charge a payment

surcharge that is excessive.

(2) A payment surcharge is excessive if:

(a) the surcharge is for a kind of payment covered by:

(i) a Reserve Bank standard; or

(ii) regulations made for the purposes of this subparagraph;

and

(b) the amount of the surcharge exceeds the permitted surcharge

referred to in the Reserve Bank standard or the regulations.

(3) Subsection (1) does not apply to a corporation who is exempted

from its operation by the regulations.

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Part IVC Payment surcharges

Division 3 Information about payment surcharges

Section 55C

336 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Information about payment surcharges

55C Surcharge information notices

(1) The Commission may, by written notice given to a surcharge

participant, require the participant to give to the Commission

information or documents evidencing either or both of the

following:

(a) the amount of a payment surcharge;

(b) the cost of processing a payment in relation to which a

payment surcharge was paid.

(2) A corporation is a surcharge participant if, in trade or commerce,

the corporation:

(a) charges a payment surcharge; or

(b) processes a payment for which a payment surcharge is

charged.

(3) The notice given by the Commission to the surcharge participant is

a surcharge information notice.

(4) The surcharge information notice must specify:

(a) the kinds of information or documents to be given to the

Commission; and

(b) the period for giving the information or documents.

55D Extending periods for complying with notices

(1) A surcharge participant that has been given a notice under

section 55C may, at any time within 21 days after the notice was

given to the participant, apply in writing to the Commission for an

extension of the period for complying with the notice.

(2) The Commission may, by written notice given to the surcharge

participant, extend the period within which the participant must

comply with the notice.

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Payment surcharges Part IVC

Information about payment surcharges Division 3

Section 55E

Competition and Consumer Act 2010 337

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

55E Participant must comply with notice

(1) A surcharge participant commits an offence if:

(a) the surcharge participant is given a surcharge information

notice; and

(b) the surcharge participant fails to comply with the notice

within the period for so complying.

Penalty: 30 penalty units.

(2) Subsection (1) is an offence of strict liability.

Note: Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

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Part IVC Payment surcharges

Division 4 Infringement notices

Section 55F

338 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4—Infringement notices

55F 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

section 55B as an alternative to proceedings for an order under

section 76 for the payment of a pecuniary penalty.

(2) This Division does not:

(a) require an infringement notice to be issued to a person for an

alleged contravention of section 55B; or

(b) affect the liability of a person to proceedings under

section 76 in relation to an alleged contravention of

section 55B if:

(i) an infringement notice is not issued to the person for the

contravention; or

(ii) an infringement notice issued to the person for the

contravention is withdrawn under section 55N; 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.

55G Issuing an infringement notice

(1) If the Commission has reasonable grounds to believe that a person

has contravened section 55B, the Commission may issue an

infringement notice to the person.

(2) The Commission must not issue more than one infringement notice

to the person for the same alleged contravention of section 55B.

(3) The infringement notice does not have any effect if the notice:

(a) is issued more than 12 months after the day that the

contravention of section 55B is alleged to have occurred; or

(b) relates to more than one alleged contravention of section 55B

by the person.

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Infringement notices Division 4

Section 55H

Competition and Consumer Act 2010 339

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

55H Matters to be included in an infringement notice

(1) 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 state how it may be contacted;

and

(e) give details of the alleged contravention, including the day of

the alleged contravention; and

(f) state the maximum pecuniary penalty that the court could

order the person to pay under section 76 for the alleged

contravention; and

(g) specify the penalty that is payable in relation to the alleged

contravention; and

(h) state that the penalty is payable within the infringement

notice compliance period for the notice; and

(i) state that the penalty is payable to the Commission on behalf

of the Commonwealth; and

(j) explain how payment of the penalty is to be made; and

(k) explain the effect of sections 55K, 55L, 55M and 55N.

55J 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

section 55B must be:

(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.

55K Effect of compliance with an infringement notice

(1) This section applies if:

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Part IVC Payment surcharges

Division 4 Infringement notices

Section 55L

340 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) an infringement notice for an alleged contravention of

section 55B 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 55N.

(2) The person is not, merely because of the payment, regarded as

having contravened section 55B.

(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 the alleged contravention of

section 55B.

55L Effect of failure to comply with an infringement notice

If:

(a) an infringement notice for an alleged contravention of

section 55B 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 55N;

the person is liable to proceedings under section 76 in relation to

the alleged contravention of section 55B.

55M 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 that the infringement notice is issued by the

Commission.

(2) The Commission may extend, by notice in writing, the

infringement notice compliance period for the infringement notice

if the Commission is satisfied that it is appropriate to do so.

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Payment surcharges Part IVC

Infringement notices Division 4

Section 55N

Competition and Consumer Act 2010 341

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

55N Withdrawal of an infringement notice

Representations to the Commission

(1) A person to whom an infringement notice has been issued for an

alleged contravention of section 55B 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.

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Part IVC Payment surcharges

Division 4 Infringement notices

Section 55N

342 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 section 76 may be started or

continued against the person in relation to the alleged

contravention of section 55B.

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.

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Carbon tax price reduction obligation Part V

Preliminary Division 1

Section 60

Competition and Consumer Act 2010 343

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part V—Carbon tax price reduction obligation

Division 1—Preliminary

60 Simplified outline of this Part

• An entity must not engage in price exploitation in relation to the carbon tax repeal.

• The Commission may monitor prices in relation to the carbon tax repeal and the carbon tax scheme.

• An entity must not make false or misleading representations about the effect of the carbon tax repeal, or the carbon tax

scheme, on the price for the supply of goods or services.

• An entity that sells electricity or natural gas, or an entity that is a bulk SGG importer and sells synthetic greenhouse gas,

will be required to explain and substantiate:

(a) how the carbon tax repeal has affected, or is affecting,

the entity’s regulated supply input costs; and

(b) how reductions in the entity’s regulated supply input

costs that are directly or indirectly attributable to the

carbon tax repeal are reflected in the prices charged by

the entity for regulated supplies of electricity, natural

gas or synthetic greenhouse gas.

• An entity that sells electricity or natural gas to customers, or an entity that is a bulk SGG importer and sells synthetic

greenhouse gas to customers, must:

(a) give a carbon tax removal substantiation statement to the

Commission; and

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Division 1 Preliminary

Section 60AA

344 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) include in the statement the entity’s estimate, on an

average annual percentage price basis, or an average

annual dollar price basis, of the entity’s cost savings that

have been, are, or will be, attributable to the carbon tax

repeal and that have been, are being, or will be, passed

on to customers during the financial year that began on

1 July 2014; and

(c) provide information with the statement that substantiates

such an estimate; and

(d) in a case where the entity sells electricity or natural gas

to customers—communicate to customers a statement

that identifies, on an average annual percentage price

basis, or an average annual dollar price basis, the

estimated cost savings to customers that are for the

financial year that began on 1 July 2014.

• Infringement notices may be issued for certain contraventions of this Part.

60AA Objects etc.

(1) The main objects of this Part are:

(a) to deter price exploitation in relation to the carbon tax repeal

at each point in the supply chain for regulated goods; and

(b) to ensure that all cost savings attributable to the carbon tax

repeal are passed through the supply chain for regulated

goods.

(2) The intention of the Parliament in enacting this Part is to ensure

that all cost savings attributable to the carbon tax repeal are passed

on to consumers of regulated goods through lower prices.

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Preliminary Division 1

Section 60A

Competition and Consumer Act 2010 345

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

60A Definitions

In this Part:

applicable compliance period, for a carbon tax removal

substantiation notice, has the meaning given by

subsection 60FC(2).

bulk SGG importer means an entity that:

(a) holds a controlled substances licence under the Ozone

Protection and Synthetic Greenhouse Gas Management Act

1989 that allows the entity to import synthetic greenhouse

gases; and

(b) supplies synthetic greenhouse gas to SGG customers.

carbon charge component of levy means so much of the amount

of the levy as is calculated by multiplying the number of tonnes of

carbon dioxide equivalence by a per unit charge applicable under

subsection 100(1) of the Clean Energy Act 2011 for the issue of a

carbon unit.

carbon tax removal substantiation notice has the meaning given

by subsection 60FA(3).

carbon tax removal substantiation statement has the meaning

given by subsection 60FD(3).

carbon tax repeal means:

(a) the repeal of the following Acts by the Clean Energy

Legislation (Carbon Tax Repeal) Act 2014:

(i) the Clean Energy Act 2011;

(ii) the Clean Energy (Charges—Customs) Act 2011;

(iii) the Clean Energy (Charges—Excise) Act 2011;

(iv) the Clean Energy (Unit Issue Charge—Auctions) Act

2011;

(v) the Clean Energy (Unit Issue Charge—Fixed Charge)

Act 2011;

(vi) the Clean Energy (Unit Shortfall Charge—General) Act

2011; and

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Part V Carbon tax price reduction obligation

Division 1 Preliminary

Section 60A

346 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the amendments of the following Acts made by the Clean

Energy Legislation (Carbon Tax Repeal) Act 2014:

(i) the Fuel Tax Act 2006;

(ii) the Fuel Tax (Consequential and Transitional

Provisions) Act 2006; and

(c) the amendments made by the following Acts:

(i) the Customs Tariff Amendment (Carbon Tax Repeal)

Act 2014;

(ii) the Excise Tariff Amendment (Carbon Tax Repeal) Act

2014;

(iii) the Ozone Protection and Synthetic Greenhouse Gas

(Import Levy) Amendment (Carbon Tax Repeal) Act

2014;

(iv) the Ozone Protection and Synthetic Greenhouse Gas

(Manufacture Levy) Amendment (Carbon Tax Repeal)

Act 2014.

carbon tax repeal transition period means the period:

(a) beginning at the start of 1 July 2014; and

(b) ending at the end of 30 June 2015.

carbon tax scheme means the scheme embodied in the following:

(a) the Clean Energy Act 2011, as in force at the start of

1 January 2014;

(b) the associated provisions (within the meaning of that Act as

in force at that time);

(c) the following provisions of the Fuel Tax Act 2006, as in force

at the start of 1 January 2014:

(i) Division 42A;

(ii) section 43-5, so far as that section relates to a carbon

reduction;

(iii) section 43-8;

(iv) section 43-11;

(d) section 3A of the Ozone Protection and Synthetic

Greenhouse Gas (Import Levy) Act 1995, as in force at the

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Competition and Consumer Act 2010 347

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start of 1 January 2014, so far as that section relates to carbon

charge component;

(e) section 4A of the Ozone Protection and Synthetic

Greenhouse Gas (Import Levy) Act 1995, as in force at the

start of 1 January 2014, so far as that section relates to carbon

charge component;

(f) section 3A of the Ozone Protection and Synthetic

Greenhouse Gas (Manufacture Levy) Act 1995, as in force at

the start of 1 January 2014, so far as that section relates to

carbon charge component;

(g) sections 6FA, 6FB and 6FC of the Excise Tariff Act 1921, as

in force at the start of 1 January 2014;

(h) section 19A of the Customs Tariff Act 1995, as in force at the

start of 1 January 2014.

electricity customer means an entity that purchases electricity.

electricity retailer means:

(a) an entity who:

(i) is a retailer within the meaning of the National Energy

Retail Law as it applies in a State or a Territory; and

(ii) sells electricity to electricity customers; or

(b) an entity who is a retailer within the meaning of the

Electricity Industry Act 2000 (Vic.); or

(c) an entity who is a retail entity within the meaning of the

Electricity Act 1994 (Qld); or

(d) an entity who:

(i) holds a retail licence within the meaning of the

Electricity Industry Act 2004 (WA); or

(ii) holds an integrated regional licence within the meaning

of the Electricity Industry Act 2004 (WA) that

authorises the entity to sell electricity; or

(e) an entity who is an electricity entity within the meaning of

the Electricity Reform Act (NT) and whose licence under that

Act authorises the entity to sell electricity; or

(f) any other entity who produces electricity in Australia.

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Part V Carbon tax price reduction obligation

Division 1 Preliminary

Section 60A

348 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

engages in price exploitation in relation to the carbon tax repeal:

see section 60C.

entity means any of the following:

(a) a corporation (as defined by section 4);

(b) an individual;

(c) a body corporate;

(d) a corporation sole;

(e) a body politic;

(f) a partnership;

(g) any other unincorporated association or body of entities;

(h) a trust;

(i) any party or entity which can or does buy or sell electricity,

natural gas or synthetic greenhouse gas.

infringement notice means an infringement notice issued under

subsection 60L(1).

infringement notice compliance period: see section 60P.

infringement notice provision means section 60C or 60K.

listed corporation has the meaning given by section 9 of the

Corporations Act 2001.

National Energy Retail Law means the National Energy Retail

Law set out in the Schedule to the National Energy Retail Law

(South Australia) Act 2011 (SA).

natural gas has the same meaning as in the National Gas

(Commonwealth) Law (as defined by the Australian Energy

Market Act 2004).

natural gas customer means an entity that purchases natural gas.

natural gas retailer means:

(a) an entity who:

(i) is a retailer within the meaning of the National Energy

Retail Law as it applies in a State or a Territory; and

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Carbon tax price reduction obligation Part V

Preliminary Division 1

Section 60A

Competition and Consumer Act 2010 349

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(ii) sells natural gas to natural gas customers; or

(b) an entity who is a gas retailer within the meaning of the Gas

Industry Act 2001 (Vic.); or

(c) an entity who is a retailer within the meaning of the Gas

Supply Act 2003 (Qld); or

(d) an entity who holds a trading licence under the Energy

Coordination Act 1994 (WA); or

(e) an entity who holds a licence under the Gas Act 2000 (Tas.)

to sell gas by retail.

price, in relation to a supply, includes:

(a) a charge of any description for the supply; and

(b) any pecuniary or other benefit, whether direct or indirect,

received or to be received by a person for or in connection

with the supply.

regulated goods: see section 60B.

regulated supply means a supply that:

(a) occurs during the carbon tax repeal transition period; and

(b) is of regulated goods.

regulated supply input costs of an entity means the entity’s input

costs in relation to the making by the entity of regulated supplies of

electricity, natural gas or synthetic greenhouse gas.

Royal Assent day means the day on which the Act that inserted this

Part receives the Royal Assent.

SGG customer means an entity that purchases synthetic

greenhouse gas.

SGG equipment has the same meaning as in the Ozone Protection

and Synthetic Greenhouse Gas Management Act 1989.

synthetic greenhouse gas has the same meaning as in the Ozone

Protection and Synthetic Greenhouse Gas Management Act 1989.

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Part V Carbon tax price reduction obligation

Division 1 Preliminary

Section 60B

350 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

60B Regulated goods

(1) For the purposes of this Part, regulated goods means:

(a) natural gas; or

(b) electricity; or

(c) synthetic greenhouse gas; or

(d) SGG equipment; or

(e) other goods of a kind specified in a legislative instrument

under subsection (2).

(2) The Minister may, by legislative instrument, specify one or more

kinds of goods for the purposes of paragraph (1)(e).

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Carbon tax price reduction obligation Part V

Carbon tax price reduction obligation Division 2

Section 60C

Competition and Consumer Act 2010 351

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Carbon tax price reduction obligation

60C Price exploitation in relation to the carbon tax repeal

(1) An entity must not engage in price exploitation in relation to the

carbon tax repeal.

(2) For the purposes of this Part, an entity engages in price

exploitation in relation to the carbon tax repeal if, and only if:

(a) it makes a regulated supply; and

(b) the price for the supply does not pass through all of the

entity’s cost savings relating to the supply that are directly or

indirectly attributable to the carbon tax repeal.

(3) For the purposes of this Part, in determining whether the price for a

supply made by an entity does not pass through all of the entity’s

cost savings relating to the supply that are directly or indirectly

attributable to the carbon tax repeal, have regard to the following

matters:

(a) the entity’s cost savings that are directly or indirectly

attributable to the carbon tax repeal;

(b) how the cost savings mentioned in paragraph (a) can

reasonably be attributed to the different supplies that the

entity makes;

(c) the entity’s costs;

(d) any other relevant matter that may reasonably influence the

price.

60CA Failure to pass on cost savings—250% penalty

(1) If:

(a) either:

(i) an entity contravenes subsection 60C(1) in relation to a

particular supply of electricity or natural gas; or

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Division 2 Carbon tax price reduction obligation

Section 60CA

352 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(ii) an entity that is a bulk SGG importer contravenes

subsection 60C(1) in relation to a particular supply of

synthetic greenhouse gas; and

(b) the contravention involved a failure to pass through all of the

entity’s cost savings relating to the supply that are directly or

indirectly attributable to the carbon tax repeal;

there is payable by the entity to the Commonwealth, and the entity

shall pay to the Commonwealth, by way of penalty, an amount

equal to 250% of those cost savings that were not passed through.

When penalty becomes due and payable

(2) An amount payable by an entity under subsection (1) is due and

payable on 1 July 2015.

Late payment penalty

(3) If an amount payable by an entity under subsection (1) remains

unpaid after the time when it became due for payment, there is

payable by the entity to the Commonwealth, and the entity shall

pay to the Commonwealth, by way of penalty, an amount

calculated at the rate of 6% per annum on the amount unpaid,

computed from that time.

Recovery of penalties

(4) An amount payable by an entity under subsection (1) or (3):

(a) is a debt due to the Commonwealth; and

(b) shall be recovered by the Commission, on behalf of the

Commonwealth, by action in a court of competent

jurisdiction, unless the cost of doing so exceeds the amount.

Report to Parliament

(5) Within 13 months after the Royal Assent day, the Commission

must report to Parliament in respect of penalties payable by

entities.

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Carbon tax price reduction obligation Division 2

Section 60D

Competition and Consumer Act 2010 353

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

60D Notice to entity that is considered to have engaged in price

exploitation in relation to the carbon tax repeal

(1) The Commission may give an entity a written notice under this

section if the Commission considers that the entity has engaged in

price exploitation in relation to the carbon tax repeal.

(2) The notice must:

(a) be expressed to be given under this section; and

(b) identify:

(i) the entity that made the supply; and

(ii) the kind of supply made; and

(iii) the circumstances in which the supply was made; and

(c) state that, in the Commission’s opinion, the price for the

supply did not pass through all of the entity’s cost savings

relating to the supply that were directly or indirectly

attributable to the carbon tax repeal.

(3) In any proceedings:

(aa) under section 60CA; or

(a) under section 76 for a pecuniary penalty order relating to

section 60C; or

(b) under section 80 for an injunction relating to section 60C; or

(c) under section 80A, 82, 86C, 86D or 87 for an order relating

to section 60C;

the notice is prima facie evidence that the price for the supply did

not pass through all of the entity’s cost savings relating to the

supply that were directly or indirectly attributable to the carbon tax

repeal.

(4) The Commission may vary or revoke the notice on its own

initiative or on application made by the entity. The Commission

must give the entity written notice of the variation or revocation.

(5) A notice under this section is not a legislative instrument.

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Part V Carbon tax price reduction obligation

Division 2 Carbon tax price reduction obligation

Section 60E

354 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

60E Commission may issue notice to aid prevention of price

exploitation in relation to the carbon tax repeal

(1) The Commission may give an entity a written notice under this

section if the Commission considers that doing so will aid the

prevention of the entity engaging in price exploitation in relation to

the carbon tax repeal.

(2) The notice must:

(a) be expressed to be given under this section; and

(b) be expressed to relate to any supply that the entity makes that

is:

(i) of a kind specified in the notice; and

(ii) made in circumstances specified in the notice; and

(iii) made during the period specified in the notice (which

must not be a period ending after the end of the carbon

tax repeal transition period); and

(c) specify the maximum price that, in the Commission’s

opinion, may be charged for a supply to which the notice is

expressed to relate.

(3) The Commission may, on its own initiative or on application made

by the entity:

(a) vary the notice to:

(i) change the period specified as required by

subparagraph (2)(b)(iii); or

(ii) change the price specified in the notice as required by

paragraph (2)(c); or

(b) revoke the notice.

The Commission must give the entity written notice of the

variation or revocation.

(4) The Commission may publish the notice, or particulars of any

variation or revocation of the notice, in such manner as the

Commission considers appropriate.

(5) A notice under this section is not a legislative instrument.

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Carbon tax price reduction obligation Division 2

Section 60F

Competition and Consumer Act 2010 355

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

60F Acquisition of property

Scope

(1) This section applies to the following provisions of this Act:

(a) section 60C;

(b) any other provision to the extent to which it relates to

section 60C.

Effect of provision

(2) The provision has no effect to the extent (if any) to which its

operation would result in the acquisition of property (within the

meaning of paragraph 51(xxxi) of the Constitution) otherwise than

on just terms (within the meaning of that paragraph).

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Part V Carbon tax price reduction obligation

Division 2A Carbon tax removal substantiation notices

Section 60FA

356 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2A—Carbon tax removal substantiation notices

60FA Carbon tax removal substantiation notices

Scope

(1) This section applies to an entity if the entity:

(a) is an electricity retailer that sells electricity to electricity

customers; or

(b) is a natural gas retailer that sells natural gas to natural gas

customers; or

(c) is a bulk SGG importer that sells synthetic greenhouse gas to

SGG customers.

Carbon tax removal substantiation notice

(2) The Commission must, within 30 days after the Royal Assent day,

by written notice given to the entity, require the entity:

(a) to give to the Commission, within the period specified in the

notice, a written statement that explains:

(i) how the carbon tax repeal has affected, or is affecting,

the entity’s regulated supply input costs; and

(ii) how reductions in the entity’s regulated supply input

costs that are directly or indirectly attributable to the

carbon tax repeal are reflected in the prices charged by

the entity for regulated supplies of electricity, natural

gas or synthetic greenhouse gas; and

(b) to do either or both of the following:

(i) give to the Commission, within the period and in the

manner and form specified in the notice, information

that substantiates the explanation set out in the

statement;

(ii) produce to the Commission, within the period and in the

manner specified in the notice, documents that

substantiate the explanation set out in the statement.

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Carbon tax removal substantiation notices Division 2A

Section 60FB

Competition and Consumer Act 2010 357

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) A notice under subsection (2) is to be known as a carbon tax

removal substantiation notice.

(4) A period specified in a carbon tax removal substantiation notice

must be 21 days after the notice is given.

(5) A carbon tax removal substantiation notice must explain the effect

of:

(a) section 60FB; and

(b) section 60FC; and

(c) sections 137.1 and 137.2 of the Criminal Code.

Section does not limit section 60H

(6) This section does not limit section 60H (which is about the

price-related information-gathering powers of the Commission).

Section does not limit section 155

(7) This section does not limit section 155 (which is about the general

information-gathering powers of the Commission).

60FB Extending periods for complying with carbon tax removal

substantiation notices

(1) An entity that has been given a carbon tax removal substantiation

notice may, at any time within 14 days after the notice was given to

the entity by the Commission, apply in writing to the Commission

for an extension of the period for complying with the notice.

(2) The Commission may, by written notice given to the entity, extend

the period within which the entity must comply with the notice, so

long as the extension is for a period of not more than 28 days.

60FC Compliance with carbon tax removal substantiation notices

(1) An entity that is given a carbon tax removal substantiation notice

must comply with it within the applicable compliance period for

the notice.

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Part V Carbon tax price reduction obligation

Division 2A Carbon tax removal substantiation notices

Section 60FC

358 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) The applicable compliance period for a carbon tax removal

substantiation notice is:

(a) the period of 21 days specified in the notice; or

(b) if the period for complying with the notice has been extended

under section 60FB—the period as so extended;

and includes (if an application has been made under section 60FB

for an extension of the period for complying with the notice) the

period up until the time when the applicant is given notice of the

Commission’s decision on the application.

(3) An entity commits an offence if:

(a) the entity is subject to a requirement under subsection (1);

and

(b) the entity is capable of complying with the requirement; and

(c) the entity omits to do an act; and

(d) the omission breaches the requirement.

Penalty: 200 penalty units.

(4) Subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(5) If subsection (3) of this section applies to an individual (whether or

not because of subsection 6(2)), subsection (3) of this section has

effect, in relation to the individual, as if the reference to 200

penalty units were a reference to 40 penalty units.

(6) If subsection (1) of this section applies to an individual (whether or

not because of subsection 6(2)), the individual is excused from

giving information or producing a document in accordance with a

carbon tax removal substantiation notice on the ground that the

information or the production of the document might tend to

incriminate the individual or expose the individual to a penalty.

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Carbon tax price reduction obligation Part V

Carbon tax removal substantiation statements Division 2B

Section 60FD

Competition and Consumer Act 2010 359

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2B—Carbon tax removal substantiation

statements

60FD Carbon tax removal substantiation statements

Scope

(1) This section applies to an entity if the entity:

(a) is an electricity retailer that sells electricity to electricity

customers; or

(b) is a natural gas retailer that sells natural gas to natural gas

customers; or

(c) is a bulk SGG importer that sells synthetic greenhouse gas to

SGG customers.

Carbon tax removal substantiation statement

(2) Within 30 days after the Royal Assent day, the entity must give to

the Commission:

(a) a written statement that sets out:

(i) if the entity has electricity customers—the entity’s

estimate, on an average annual percentage price basis,

or an average annual dollar price basis, of the entity’s

cost savings that have been, are, or will be, directly or

indirectly attributable to the carbon tax repeal and that

have been, are being, or will be, passed on to each class

of electricity customers during the financial year that

began on 1 July 2014; and

(ii) if the entity has natural gas customers—the entity’s

estimate, on an average annual percentage price basis,

or an average annual dollar price basis, of the entity’s

cost savings that have been, are, or will be, directly or

indirectly attributable to the carbon tax repeal and that

have been, are being, or will be, passed on to each class

of natural gas customers during the financial year that

began on 1 July 2014; and

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Part V Carbon tax price reduction obligation

Division 2B Carbon tax removal substantiation statements

Section 60FD

360 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(iii) if the entity has SGG customers—the entity’s estimate,

on an average annual percentage price basis, or an

average annual dollar price basis, of the entity’s cost

savings that have been, are, or will be, directly or

indirectly attributable to the carbon tax repeal and that

have been, are being, or will be, passed on to each class

of SGG customers during the financial year that began

on 1 July 2014; and

(b) information that substantiates the estimate or estimates set

out in the statement.

Note: Section 137.1 of the Criminal Code creates an offence of providing

false or misleading information.

(3) A statement under paragraph (2)(a) is to be known as a carbon tax

removal substantiation statement.

(4) If the entity has given a carbon tax removal substantiation

statement to the Commission, the entity must ensure that a copy of

the statement is available on the entity’s website, in a way that is

readily accessible by the public, until the end of 30 June 2015.

Compliance

(5) An entity commits an offence if:

(a) the entity is subject to a requirement under subsection (2) or

(4); and

(b) the entity is capable of complying with the requirement; and

(c) the entity omits to do an act; and

(d) the omission breaches the requirement.

Penalty: 500 penalty units.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(7) If subsection (5) of this section applies to an individual (whether or

not because of subsection 6(2)), subsection (5) of this section has

effect, in relation to the individual, as if the reference to 500

penalty units were a reference to 40 penalty units.

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Carbon tax price reduction obligation Part V

Carbon tax removal substantiation statements Division 2B

Section 60FD

Competition and Consumer Act 2010 361

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(8) If subsection (2) of this section applies to an individual (whether or

not because of subsection 6(2)), the individual is excused from

giving an estimate or information under subsection (2) of this

section on the ground that the estimate or information might tend

to incriminate the individual or expose the individual to a penalty.

Section does not limit section 60H

(9) This section does not limit section 60H (which is about the

price-related information-gathering powers of the Commission).

Section does not limit section 155

(10) This section does not limit section 155 (which is about the general

information-gathering powers of the Commission).

Report to Parliament

(11) Within 13 months after the Royal Assent day, the Commission

must report to Parliament in respect of compliance by all entities.

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Part V Carbon tax price reduction obligation

Division 2C Statements for customers

Section 60FE

362 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2C—Statements for customers

60FE Statements for customers

Scope

(1) This section applies to an entity if the entity:

(a) is an electricity retailer that sells electricity to electricity

customers; or

(b) is a natural gas retailer that sells natural gas to natural gas

customers.

Preparation of statement

(2) Within 30 days after the Royal Assent day, the entity must prepare

a statement that:

(a) if the entity has electricity customers—identifies, on an

average annual percentage price basis, or an average annual

dollar price basis, the estimated cost savings, to each class of

electricity customers, that:

(i) have been, are, or will be, directly or indirectly

attributable to the carbon tax repeal; and

(ii) are for the financial year that began on 1 July 2014; and

(b) if the entity has natural gas customers—identifies, on an

average annual percentage price basis, or an average annual

dollar price basis, the estimated cost savings, to each class of

natural gas customers, that:

(i) have been, are, or will be, directly or indirectly

attributable to the carbon tax repeal; and

(ii) are for the financial year that began on 1 July 2014.

Communication of contents of statement to customers

(3) During the period:

(a) beginning 30 days after the Royal Assent day; and

(b) ending 60 days after the Royal Assent day;

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Statements for customers Division 2C

Section 60FE

Competition and Consumer Act 2010 363

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the entity must ensure that the contents of the statement prepared

by it under subsection (2) that relates to a class of electricity

customers or natural gas customers is communicated to each

customer of that class.

Note: Section 137.1 of the Criminal Code creates an offence of providing

false or misleading information.

Compliance

(4) An entity commits an offence if:

(a) the entity is subject to a requirement under subsection (2) or

(3); and

(b) the entity is capable of complying with the requirement; and

(c) the entity omits to do an act; and

(d) the omission breaches the requirement.

Penalty: 400 penalty units.

(5) Subsection (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(6) If subsection (4) of this section applies to an individual (whether or

not because of subsection 6(2)), subsection (4) of this section has

effect, in relation to the individual, as if the reference to 400

penalty units were a reference to 40 penalty units.

(7) If subsection (2) or (3) of this section applies to an individual

(whether or not because of subsection 6(2)), the individual is

excused from:

(a) preparing a statement under subsection (2) of this section; or

(b) communicating the contents of a statement under

subsection (3) of this section;

on the ground that the information in the statement might tend to

incriminate the individual or expose the individual to a penalty.

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Part V Carbon tax price reduction obligation

Division 3 Price monitoring in relation to the carbon tax repeal etc.

Section 60G

364 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Price monitoring in relation to the carbon tax

repeal etc.

60G Commission may monitor prices in relation to the carbon tax

repeal etc.

Price monitoring—carbon tax repeal transition period

(1) The Commission may monitor prices to assess the general effect of

the carbon tax repeal on prices charged by entities for supplies, in

the carbon tax repeal transition period, of relevant goods.

Note: For relevant goods, see subsection (11).

(2) The Commission may monitor prices to assess the general effect of

the carbon tax repeal on prices:

(a) advertised; or

(b) displayed; or

(c) offered;

for supplies, in the carbon tax repeal transition period, of relevant

goods by entities.

Note: For relevant goods, see subsection (11).

(3) The Commission may monitor prices to assess the general effect of

the carbon tax repeal on prices charged for supplies, in the carbon

tax repeal transition period, of goods by an entity for which there is

an entry in the Information Database (within the meaning of the

Clean Energy Act 2011).

(4) The Commission may monitor prices to assess the general effect of

the carbon tax repeal on prices:

(a) advertised; or

(b) displayed; or

(c) offered;

for supplies, in the carbon tax repeal transition period, of goods by

an entity for which there is an entry in the Information Database

(within the meaning of the Clean Energy Act 2011).

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Price monitoring in relation to the carbon tax repeal etc. Division 3

Section 60G

Competition and Consumer Act 2010 365

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Price monitoring—price exploitation

(5) The Commission may monitor prices to assist the Commission’s

consideration of whether an entity has engaged, is engaging, or

may in the future engage, in price exploitation in relation to the

carbon tax repeal.

Price monitoring—pre-repeal transition period

(6) The Commission may monitor prices to assess the general effect of

the carbon tax scheme on prices charged by entities for supplies, in

the pre-repeal transition period, of relevant goods.

Note 1: For pre-repeal transition period, see subsection (13).

Note 2: For relevant goods, see subsection (11).

(7) The Commission may monitor prices to assess the general effect of

the carbon tax scheme on prices:

(a) advertised; or

(b) displayed; or

(c) offered;

for supplies, in the pre-repeal transition period, of relevant goods

by entities.

Note 1: For pre-repeal transition period, see subsection (13).

Note 2: For relevant goods, see subsection (11).

(8) The Commission may monitor prices to assess the general effect of

the carbon tax scheme on prices charged for supplies, in the

pre-repeal transition period, of goods by an entity for which there

is an entry in the Information Database (within the meaning of the

Clean Energy Act 2011).

Note: For pre-repeal transition period, see subsection (13).

(9) The Commission may monitor prices to assess the general effect of

the carbon tax scheme on prices:

(a) advertised; or

(b) displayed; or

(c) offered;

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Part V Carbon tax price reduction obligation

Division 3 Price monitoring in relation to the carbon tax repeal etc.

Section 60H

366 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

for supplies, in the pre-repeal transition period, of goods by an

entity for which there is an entry in the Information Database

(within the meaning of the Clean Energy Act 2011).

Note: For pre-repeal transition period, see subsection (13).

Section does not limit Part VIIA

(10) This section does not limit Part VIIA (which is about prices

surveillance).

Relevant goods

(11) For the purposes of this section, the following are relevant goods:

(a) regulated goods;

(b) other goods of a kind specified in a legislative instrument

under subsection (12).

(12) The Minister may, by legislative instrument, specify one or more

kinds of goods for the purposes of paragraph (11)(b).

Pre-repeal transition period

(13) For the purposes of this section, pre-repeal transition period

means the period:

(a) beginning at the commencement of this section; and

(b) ending at the end of 30 June 2014.

60H Information-gathering powers

(1) A member of the Commission may, by written notice given to a

person, require the person:

(a) to give the Commission specified information in writing

signed by:

(i) the person; or

(ii) if the person is a body corporate—a competent officer

of the body corporate; or

(b) to produce to the Commission specified documents;

if:

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Price monitoring in relation to the carbon tax repeal etc. Division 3

Section 60H

Competition and Consumer Act 2010 367

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) the information, or information contained in the documents,

relates to prices or the setting of prices; and

(d) the member reasonably believes that the information, or

information contained in the documents, will or may be

useful to the Commission in monitoring prices as mentioned

in any of subsections 60G(1) to (9).

Note: Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

(2) Information or documents that may be required under

subsection (1) may relate to prices, or the setting of prices:

(a) before or after the carbon tax repeal; and

(b) before or after the start of the carbon tax repeal transition

period; and

(c) in a situation, or during a period, specified in the notice.

(3) Subsection (2) does not limit subsection (1).

(4) A person commits an offence if:

(a) the person is subject to a requirement under subsection (1);

and

(b) the person is capable of complying with the requirement; and

(c) the person omits to do an act; and

(d) the omission breaches the requirement.

Penalty: 20 penalty units.

(5) An individual is excused from giving information or producing a

document in accordance with a requirement under subsection (1)

on the ground that the information or the production of the

document might tend to incriminate the individual or expose the

individual to a penalty.

Section does not limit section 60FA

(5A) This section does not limit section 60FA (which is about carbon

tax removal substantiation notices).

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Part V Carbon tax price reduction obligation

Division 3 Price monitoring in relation to the carbon tax repeal etc.

Section 60J

368 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Section does not limit section 155

(6) This section does not limit section 155 (which is about the general

information-gathering powers of the Commission).

60J Reporting

(1) The Commission must, within 28 days after the end of each

quarter, give the Minister a written report about the operations of

the Commission under this Part during the quarter.

(2) A report under subsection (1) must include particulars of:

(a) all notices given under section 60E during the quarter; and

(b) all variations or revocations during the quarter of notices

given under section 60E.

(3) Subsection (2) does not limit subsection (1).

(4) For the purposes of this section, a quarter is a period of 3 months:

(a) that occurs wholly or partly during the carbon tax repeal

transition period; and

(b) that starts on any of the following days in a year:

(i) 1 January;

(ii) 1 April;

(iii) 1 July;

(iv) 1 October.

(5) As soon as practicable after the Minister receives a report under

subsection (1), the Minister must make the report public by such

means as the Minister considers appropriate.

(6) If this section commences during a quarter (but not on the first day

of a quarter):

(a) no report is to be made at the end of the quarter; but

(b) the report made at the end of the next quarter is also to

include the information required by subsections (1) and (2) in

relation to the previous quarter.

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Carbon tax price reduction obligation Part V

False or misleading representations about the effect of the carbon tax repeal etc. on

prices Division 4

Section 60K

Competition and Consumer Act 2010 369

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4—False or misleading representations about the

effect of the carbon tax repeal etc. on prices

60K False or misleading representations about the effect of the

carbon tax repeal etc. on prices

An entity must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services; or

(b) the promotion by any means of the supply or use of goods or

services;

make a false or misleading representation, during the carbon tax

repeal transition period, concerning the effect of:

(c) the carbon tax repeal or a part of the carbon tax repeal; or

(d) the carbon tax scheme or a part of the carbon tax scheme;

on the price for the supply of the goods or services.

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Part V Carbon tax price reduction obligation

Division 5 Infringement notices

Section 60L

370 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 5—Infringement notices

60L Issuing an infringement notice

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) The Commission must not issue more than one infringement notice

to the person for the same alleged contravention of the

infringement notice provision.

(3) 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.

Matters to be included in an infringement notice

(4) 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

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(g) state the maximum pecuniary penalty that the court could

order the person to pay under section 76 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 60M, 60N, 60P and 60Q.

Amount of penalty

(5) The penalty to be specified in an infringement notice that is to be

issued to a person in relation to an alleged contravention of an

infringement notice provision must be:

(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.

60M Effect of compliance with an infringement notice

Scope

(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 60Q.

Effect

(2) The person is not, merely because of the payment, regarded as:

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(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.

60N 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 60Q;

the person is liable to proceedings under Part VI in relation to the

alleged contravention of the infringement notice provision.

60P Infringement notice compliance period for infringement notice

(1) 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) Subsection (1) has effect subject to subsection (7).

(3) 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.

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(4) Only one extension may be given, and the extension must not be

for longer than 28 days.

(5) Notice of the extension must be given to the person who was

issued the infringement notice.

(6) A failure to comply with subsection (5) does not affect the validity

of the extension.

(7) 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.

60Q Withdrawal of an infringement notice

Representations to the Commission

(1) A 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.

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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 Part VI may be started or continued

against the person in relation to:

(i) the alleged contravention 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, on behalf of the Commonwealth, refund to the person an

amount equal to the amount paid.

Note: For appropriation, see section 28 of the Financial Management and

Accountability Act 1997.

60R Effect of this Division

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 Part VI in

relation to an alleged contravention of an infringement notice

provision if:

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(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 60Q; 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.

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Part VI—Enforcement and remedies

75B Interpretation

(1) A reference in this Part to a person involved in a contravention of a

provision of Part IV or IVB, or of section 55B, 60C, 60K or

95AZN, shall be read as a reference to a person who:

(a) has aided, abetted, counselled or procured the contravention;

(b) has induced, whether by threats or promises or otherwise, the

contravention;

(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.

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

(a) a reference to the Court in relation to a matter is a reference

to any court having jurisdiction in the matter;

(b) a reference to the Federal Court is a reference to the Federal

Court of Australia; and

(c) a reference to a judgment is a reference to a judgment, decree

or order, whether final or interlocutory.

76 Pecuniary penalties

(1) If the Court is satisfied that a person:

(a) has contravened any of the following provisions:

(i) a provision of Part IV (other than section 44ZZRF or

44ZZRG);

(ia) section 55B;

(ii) section 60C;

(iia) section 60K;

(iii) section 95AZN;

(iv) a civil penalty provision of an industry code; or

(b) has attempted to contravene such a provision; or

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(c) has aided, abetted, counselled or procured a person to

contravene such a provision; or

(d) has induced, or attempted to induce, a person, whether by

threats or promises or otherwise, to contravene such a

provision; or

(e) has been in any way, directly or indirectly, knowingly

concerned in, or party to, the contravention by a person of

such a provision; or

(f) has conspired with others to contravene such a provision;

the Court may order the person to pay to the Commonwealth such

pecuniary penalty, in respect of each act or omission by the person

to which this section applies, as the Court determines to be

appropriate having regard to all relevant matters including the

nature and extent of the act or omission and of any loss or damage

suffered as a result of the act or omission, the circumstances in

which the act or omission took place and whether the person has

previously been found by the Court in proceedings under this Part

or Part XIB to have engaged in any similar conduct.

Note: Section 87AA provides that, if boycott conduct is involved in

proceedings, the Court must have regard to certain matters in

exercising its powers under this Part. (Boycott conduct is defined in

subsection 87AA(2).)

(1A) The pecuniary penalty payable under subsection (1) by a body

corporate is not to exceed:

(aa) for each act or omission to which this section applies that

relates to section 44ZZRJ or 44ZZRK—the greatest of the

following:

(i) $10,000,000;

(ii) if the court can determine the total value of the benefits

that have been obtained (within the meaning of

Division 1 of Part IV) by one or more persons and that

are reasonably attributable to the act or omission—3

times that total value;

(iii) if the Court cannot determine the total value of those

benefits—10% of the annual turnover (within the

meaning of Division 1 of Part IV) of the body corporate

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during the period (the turnover period) of 12 months

ending at the end of the month in which the act or

omission occurred; and

(a) for each act or omission to which this section applies that

relates to section 45D, 45DB, 45E or 45EA—$750,000; and

(b) for each act or omission to which this section applies that

relates to any other provision of Part IV—the greatest of the

following:

(i) $10,000,000;

(ii) if the Court can determine the value of the benefit that

the body corporate, and any body corporate related to

the body corporate, have obtained directly or indirectly

and that is reasonably attributable to the act or

omission—3 times the value of that benefit;

(iii) if the Court cannot determine the value of that benefit—

10% of the annual turnover of the body corporate during

the period (the turnover period) of 12 months ending at

the end of the month in which the act or omission

occurred; and

(ba) for each act or omission to which this section applies that

relates to section 55B, 60C or 60K—6,471 penalty units; and

(c) for each act or omission to which this section applies that

relates to section 95AZN—$33,000; and

(ca) for each act or omission to which this section applies that

relates to a civil penalty provision of an industry code—the

amount set out in the civil penalty provision of the industry

code; and

(d) for each other act or omission to which this section applies—

$10,000,000.

Note: For annual turnover, see subsection (5).

(1B) The pecuniary penalty payable under subsection (1) by a person

other than a body corporate is not to exceed:

(aa) for each act or omission to which this section applies that

relates to section 55B, 60C or 60K—1,295 penalty units; and

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(a) for each act or omission to which this section applies that

relates to section 95AZN—$6,600; and

(aaa) for each act or omission to which this section applies that

relates to a civil penalty provision of an industry code—the

amount set out in the civil penalty provision of the industry

code; and

(b) for each other act or omission to which this section applies—

$500,000.

(2) Nothing in subsection (1) authorises the making of an order against

an individual because the individual has contravened or attempted

to contravene, or been involved in a contravention of, section 45D,

45DA, 45DB, 45E or 45EA.

(3) If conduct constitutes a contravention of two or more provisions of

Part IV (other than section 44ZZRF or 44ZZRG), a proceeding

may be instituted under this Act against a person in relation to the

contravention of any one or more of the provisions but a person is

not liable to more than one pecuniary penalty under this section in

respect of the same conduct.

(4) The single pecuniary penalty that may be imposed in accordance

with subsection (3) in respect of conduct that contravenes

provisions to which 2 or more of the limits in paragraphs (1A)(aa),

(a) and (b) apply is an amount up to the highest of those limits.

Annual turnover

(5) For the purposes of this section, the annual turnover of a body

corporate, during the turnover period, is the sum of the values of all

the supplies that the body corporate, and any body corporate

related to the body corporate, have made, or are likely to make,

during that period, other than:

(a) supplies made from any of those bodies corporate to any

other of those bodies corporate; or

(b) supplies that are input taxed; or

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(c) supplies that are not for consideration (and are not taxable

supplies under section 72-5 of the A New Tax System (Goods

and Services Tax) Act 1999); or

(d) supplies that are not made in connection with an enterprise

that the body corporate carries on; or

(e) supplies that are not connected with Australia.

(6) Expressions used in subsection (5) that are also used in the A New

Tax System (Goods and Services Tax) Act 1999 have the same

meaning as in that Act.

76A Defence to proceedings under section 76 relating to a

contravention of section 95AZN

(1) In this section:

contravention, in relation to a section, includes conduct referred to

in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a

contravention of the section.

(2) In proceedings against a person (the respondent) under section 76

in relation to an alleged contravention of section 95AZN, it is a

defence if the respondent establishes:

(a) that the contravention in respect of which the proceedings

were instituted was due to reasonable mistake; or

(b) that the contravention in respect of which the proceedings

were instituted was due to reasonable reliance on information

supplied by another person; or

(c) that:

(i) the contravention in respect of which the proceedings

were instituted was due to the act or default of another

person, to an accident or to some other cause beyond the

respondent’s control; and

(ii) the respondent took reasonable precautions and

exercised due diligence to avoid the contravention.

(3) In paragraphs (2)(b) and (c), another person does not include a

person who was:

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(a) a servant or agent of the respondent; or

(b) if the respondent is a body corporate—a director, servant or

agent of the respondent;

at the time when the alleged contravention occurred.

76B What happens if substantially the same conduct is a

contravention of Part IV or section 95AZN and an

offence?

(1) In this section:

contravention, in relation to a section or Part, includes conduct

referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a

contravention of the section or Part.

pecuniary penalty order means an order under section 76 for the

payment of a pecuniary penalty.

(2) The Court must not make a pecuniary penalty order against a

person in relation to a contravention of Part IV or section 95AZN if

the person has been convicted of an offence constituted by conduct

that is substantially the same as the conduct constituting the

contravention.

(3) Proceedings for a pecuniary penalty order against a person in

relation to a contravention of Part IV or section 95AZN are stayed

if:

(a) criminal proceedings are started or have already been started

against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the

same as the conduct alleged to constitute the contravention.

The proceedings for the pecuniary penalty order may be resumed if

the person is not convicted of the offence. Otherwise, the

proceedings are dismissed.

(4) Criminal proceedings may be started against a person for conduct

that is substantially the same as conduct constituting a

contravention of Part IV or section 95AZN regardless of whether a

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pecuniary penalty order has been made against the person in

respect of the contravention.

(5) Evidence of information given, or evidence of production of

documents, by an individual is not admissible in criminal

proceedings against the individual if:

(a) the individual previously gave the evidence or produced the

documents in proceedings for a pecuniary penalty order

against the individual for a contravention of Part IV or

section 95AZN (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is substantially

the same as the conduct that was claimed to constitute the

contravention.

However, this does not apply to a criminal proceeding in respect of

the falsity of the evidence given by the individual in the

proceedings for the pecuniary penalty order.

(6) In this section:

offence means an offence against a law of the Commonwealth, a

State or a Territory.

76C Defence to proceedings relating to exclusionary provisions

Defence

(1) In proceedings against a person in relation to a contravention of

subparagraph 45(2)(a)(i) or (b)(i) in relation to an exclusionary

provision, it is a defence if the person establishes that the

provision:

(a) is for the purposes of a joint venture; and

(b) does not have the purpose, and does not have and is not

likely to have the effect, of substantially lessening

competition.

Application of subsections 45(3) and (4)

(2) Subsections 45(3) and (4) apply for the purposes of subsection (1)

in the same way as they apply for the purposes of section 45.

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Definitions

(3) In this section:

contravention of subparagraph 45(2)(a)(i) or (b)(i) includes

conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that

relates to a contravention of subparagraph 45(2)(a)(i) or (b)(i).

proceedings means proceedings instituted under:

(a) this Part or section 163A; or

(b) section 21 or 23 of the Federal Court of Australia Act 1976;

or

(c) section 39B of the Judiciary Act 1903.

77 Civil action for recovery of pecuniary penalties

(1) The Commission may institute a proceeding in the Court for the

recovery on behalf of the Commonwealth of a pecuniary penalty

referred to in section 76.

(2) A proceeding under subsection (1) may be commenced within 6

years after the contravention.

77A Indemnification of officers

(1) A body corporate (the first body), or a body corporate related to the

first body, must not indemnify a person (whether by agreement or

by making a payment and whether directly or through an

interposed entity) against any of the following liabilities incurred

as an officer of the first body:

(a) a civil liability;

(b) legal costs incurred in defending or resisting proceedings in

which the person is found to have such a liability.

Penalty: 25 penalty units.

(2) For the purposes of subsection (1), the outcome of proceedings is

the outcome of the proceedings and any appeal in relation to the

proceedings.

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Definitions

(3) In this section:

civil liability means a liability to pay a pecuniary penalty under

section 76 for a contravention of a provision of Part IV or Part V.

officer has the same meaning as in the Corporations Act 2001.

77B Certain indemnities not authorised and certain documents void

(1) Section 77A does not authorise anything that would otherwise be

unlawful.

(2) Anything that purports to indemnify a person against a liability is

void to the extent that it contravenes section 77A.

77C Application of section 77A 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 77A(1) of this Act; 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 77A(1) of this Act;

the relevant offence is taken to be punishable on conviction by a

fine not exceeding 5 penalty units.

78 Criminal proceedings not to be brought for contraventions of

Part IV

Criminal proceedings do not lie against a person by reason only

that the person:

(a) has contravened a provision of Part IV (other than

section 44ZZRF or 44ZZRG); or

(b) has attempted to contravene such a provision;

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(c) has aided, abetted, counselled or procured a person to

contravene such a provision;

(d) has induced, or attempted to induce, a person, whether by

threats or promises or otherwise, to contravene such a

provision;

(e) has been in any way, directly or indirectly, knowingly

concerned in, or party to, the contravention by a person of

such a provision; or

(f) has conspired with others to contravene such a provision.

79 Offences against section 44ZZRF or 44ZZRG

(1) A person who:

(aa) attempts to contravene; or

(a) aids, abets, counsels or procures a person to contravene; or

(b) induces, or attempts to induce, a person (whether by threats

or promises or otherwise) to contravene; or

(c) is in any way, directly or indirectly, knowingly concerned in,

or party to, the contravention by a person of; or

(d) conspires with others to contravene;

a cartel offence provision is taken to have contravened that

provision and is punishable:

(e) in a case where:

(i) the provision is a cartel offence provision; and

(ii) the person is not a body corporate;

by a term of imprisonment not exceeding 10 years or a fine

not exceeding 2,000 penalty units, or both; or

(f) in any other case—accordingly.

(1AA) For the purposes of the application of subsection (1) to a case

where:

(a) the provision is a cartel offence provision; and

(b) the person is a body corporate other than a corporation;

assume that each reference in paragraph 44ZZRF(3)(c) or

44ZZRG(3)(c) to a corporation were read as a reference to a body

corporate.

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(1AB) Subsections 11.1(2) to (6) (inclusive) of the Criminal Code apply

in relation to paragraph (1)(aa) in the same way that they apply in

relation to the offence of attempt under subsection 11.1(1) of the

Criminal Code.

(1A) Subsections 11.2(2) to (5) (inclusive) of the Criminal Code apply

in relation to paragraph (1)(a) in the same way that they apply in

relation to subsection 11.2(1) of the Criminal Code.

(1B) Subsections 11.5(2) to (5) (inclusive) of the Criminal Code apply

in relation to paragraph (1)(d) in the same way that they apply in

relation to the offence of conspiracy under subsection 11.5(1) of

the Criminal Code.

(5) Subsections 11.1(1), 11.2(1), 11.2A(1), and 11.4(1) of the Criminal

Code do not apply in relation to an offence against a cartel offence

provision.

(7) In this section:

cartel offence provision means section 44ZZRF or 44ZZRG.

79A Enforcement and recovery of certain fines

(1) If:

(a) a fine has been imposed on a person for:

(i) an offence against section 44ZZRF, 44ZZRG, 154Q or

155; or

(ii) an offence against section 149.1 of the Criminal Code

that relates to Part XID; and

(b) the person defaults in payment of the fine;

a Court may:

(c) exercise any power that the Court has apart from this section

with respect to the enforcement and recovery of fines

imposed by the Court; or

(d) make an order, on the application of the Minister or the

Commission, declaring that the fine is to have effect, and

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may be enforced, as if it were a judgment debt under a

judgment of the Court.

(2) Where a person in relation to whom an order is made under

subsection (1) in respect of a fine gives security for the payment of

the fine, the Court shall cancel the order in respect of the fine.

(3) Where the Court makes an order in relation to a person in respect

of a fine, the Court may, at any time before the order is executed in

respect of the fine, allow the person a specified time in which to

pay the fine or allow the person to pay the fine by specified

instalments, and, in that case:

(a) the order shall not be executed unless the person fails to pay

the fine within that time or fails to pay an instalment at or

before the time when it becomes payable, as the case may be;

and

(b) if the person pays the fine within that time or pays all the

instalments, as the case may be, the order shall be deemed to

have been discharged in respect of the fine.

(4) Subject to subsection (7), an order under subsection (1) in respect

of 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 order.

(5) The term of a sentence of imprisonment imposed by an order under

a law of a State or 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 shall 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.

(6) Subject to subsection (7), where a person is required to serve

periods of imprisonment by virtue of an order or orders under

subsection (1) in respect of 2 or more fines, those periods of

imprisonment shall be served consecutively.

(7) Subject to subsection (8), where:

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(a) a person would, but for this subsection, be required by virtue

of an order or orders under subsection (1) in respect of 3 or

more fines to serve periods of imprisonment in respect of

those fines exceeding in the aggregate 3 years; and

(b) those fines were imposed (whether or not in the same

proceedings) for offences constituted by contraventions that

occurred within a period of 2 years, being contraventions that

appear to the Court to have been of the same nature or a

substantially similar nature;

the Court shall, by order, declare that the order or orders shall

cease to have effect in respect of those fines after the person has

served an aggregate of 3 years’ imprisonment in respect of those

fines.

(8) Where subsection (7) 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 shall make an

order under that subsection with respect to one only of those

periods, being whichever period would give the person the

maximum benefit from the application of that subsection.

(9) For the purposes of subsection (8), the Court may vary or revoke

an order made under subsection (7).

(11) This section applies only in relation to fines imposed for offences

committed after the commencement of this section.

79B Preference must be given to compensation for victims

If the Court considers that:

(a) it is appropriate to order a person (the defendant):

(i) to pay a pecuniary penalty under section 76; or

(ii) to impose a fine under section 44ZZRF or 44ZZRG;

in respect of a contravention, or an involvement in a

contravention, of this Act; and

(b) it is appropriate to order the defendant to pay compensation

to a person who has suffered loss or damage in respect of the

contravention or the involvement; and

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(c) the defendant does not have sufficient financial resources to

pay both the pecuniary penalty or fine and the compensation;

the Court must give preference to making an order for

compensation.

80 Injunctions

(1) Subject to subsections (1A), (1AAA) and (1B), where, on the

application of the Commission or any other person, the Court is

satisfied that a person has engaged, or is proposing to engage, in

conduct that constitutes or would constitute:

(a) a contravention of any of the following provisions:

(i) a provision of Part IV;

(ii) a provision of Division 2 or 5 of Part IVB;

(iia) section 55B;

(iii) section 60C;

(iv) section 60K; or

(b) attempting to contravene such a provision; or

(c) aiding, abetting, counselling or procuring a person to

contravene such a provision; or

(d) inducing, or attempting to induce, whether by threats,

promises or otherwise, a person to contravene such a

provision; or

(e) being in any way, directly or indirectly, knowingly concerned

in, or party to, the contravention by a person of such a

provision; or

(f) conspiring with others to contravene such a provision;

the Court may grant an injunction in such terms as the Court

determines to be appropriate.

Note: Section 87AA provides that, if boycott conduct is involved in

proceedings, the Court must have regard to certain matters in

exercising its powers under this Part. (Boycott conduct is defined in

subsection 87AA(2).)

(1AA) Where an application for an injunction under subsection (1) has

been made, whether before or after the commencement of this

subsection, the Court may, if the Court determines it to be

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appropriate, grant an injunction by consent of all the parties to the

proceedings, whether or not the Court is satisfied that a person has

engaged, or is proposing to engage, in conduct of a kind mentioned

in subsection (1).

(1A) A person other than the Commission is not entitled to make an

application under subsection (1) for an injunction by reason that a

person has contravened or attempted to contravene or is proposing

to contravene, or has been or is proposing to be involved in a

contravention of, section 50, 60C or 60K.

(1AAA) Subject to subsection (1B), a person other than the Minister or the

Commission may not apply for an injunction on the ground of:

(a) a person’s actual, attempted or proposed contravention of

section 50A; or

(b) a person’s actual or proposed involvement in a contravention

of section 50A.

(1B) Where the Tribunal has, on the application of a person (in this

subsection referred to as the applicant) other than the Minister or

the Commission, made a declaration under subsection 50A(1) in

relation to the acquisition by a person of a controlling interest in a

corporation, the applicant is entitled to make an application under

subsection (1) for an injunction by reason that the corporation has

contravened or attempted to contravene or is proposing to

contravene subsection 50A(6) in relation to that declaration.

(2) Where in the opinion of the Court it is desirable to do so, the Court

may grant an interim injunction pending determination of an

application under subsection (1).

(3) The Court may rescind or vary an injunction granted under

subsection (1) or (2).

(4) The power of the Court to grant an injunction restraining a person

from engaging in conduct may be exercised:

(a) whether or not it appears to the Court that the person intends

to engage again, or to continue to engage, in conduct of that

kind;

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(b) whether or not the person has previously engaged in conduct

of that kind; and

(c) whether or not there is an imminent danger of substantial

damage to any person if the first-mentioned person engages

in conduct of that kind.

(5) The power of the Court to grant an injunction requiring a person to

do an act or thing may be exercised:

(a) whether or not it appears to the Court that the person intends

to refuse or fail again, or to continue to refuse or fail, to do

that act or thing;

(b) whether or not the person has previously refused or failed to

do that act or thing; and

(c) whether or not there is an imminent danger of substantial

damage to any person if the first-mentioned person refuses or

fails to do that act or thing.

(6) Where the Minister or the Commission makes an application to the

Court for the grant of an injunction under this section, the Court

shall not require the applicant or any other person, as a condition of

granting an interim injunction, to give any undertakings as to

damages.

(6A) Subsection (6) does not apply to an application by the Minister for

an injunction relating to Part IV.

(7) Where:

(a) in a case to which subsection (6) does not apply the Court

would, but for this subsection, require a person to give an

undertaking as to damages or costs; and

(b) the Minister gives the undertaking;

the Court shall accept the undertaking by the Minister and shall not

require a further undertaking from any other person.

(8) Subsection (7) does not apply in relation to an application for an

injunction relating to Part IV.

(9) If the Director of Public Prosecutions makes an application to the

Court for the grant of an injunction under this section in relation to:

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(a) a person’s contravention, or proposed contravention, of

section 44ZZRF or 44ZZRG; or

(b) a person’s involvement, or proposed involvement, in a

contravention of section 44ZZRF or 44ZZRG;

the Court must not require the Director of Public Prosecutions or

any other person, as a condition of granting an interim injunction,

to give any undertakings as to damages.

80A Price exploitation in relation to the carbon tax repeal—orders

limiting prices or requiring refunds of money

(1) If, on the application of the Commission, the Court is satisfied that

a person has engaged in conduct constituting a contravention of

section 60C, the Court may make either or both of the following

orders:

(a) an order requiring that person, or a person involved in the

contravention, not to make a regulated supply of a kind

specified in the order for a price in excess of the price

specified in the order while the order remains in force;

(b) an order requiring that person, or a person involved in the

contravention, to refund money to a person specified in the

order.

Note: Section 60C is about price exploitation in relation to the carbon tax

repeal.

(2) This section does not limit section 80.

(3) In this section:

price has the same meaning as in Part V.

regulated supply has the same meaning as in Part V.

80AB Stay of injunctions

(1) The Court may stay the operation of an injunction granted under

section 80 if:

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(a) the injunction is in respect of conduct that constitutes or

would constitute a contravention of subsection 45D(1),

45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA or an

associated contravention; and

(b) there is a proceeding in respect of a dispute relating to the

conduct pending before a court, tribunal or authority of a

State or Territory under a prescribed provision of a law of the

State or Territory; and

(c) the conduct relates to the supply of goods or services to, or

the acquisition of goods or services from, a person who is or

becomes a party to the proceeding referred to in

paragraph (b); and

(d) any of the following has applied for the stay:

(i) a Minister of the Commonwealth;

(ii) if subparagraph (b)(ii) applies—a Minister of the State

or Territory concerned;

(iii) a party to the proceeding for the injunction; and

(e) the Court considers that granting the stay:

(i) would be likely to facilitate the settlement of the dispute

by conciliation; and

(ii) would, in all the circumstances, be just.

(2) An order staying the operation of the injunction may be expressed

to have effect for a specified period and may be varied or rescinded

by the Court at any time.

(3) If the proceeding referred to in paragraph (1)(b) is terminated

because the State or Territory court, tribunal or authority has

settled the dispute to which the conduct relates by conciliation, the

Court must not make any order in relation to the costs of the

proceedings in respect of the granting of the injunction or in

relation to the costs of any proceedings for the rescission of the

injunction.

(4) Nothing in this section affects other powers of the Court.

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(5) In this section:

associated contravention means:

(a) attempting to contravene subsection 45D(1), 45DA(1),

45DB(1), 45E(2) or 45E(3) or section 45EA; or

(b) aiding, abetting, counselling or procuring a person to

contravene any of those provisions; or

(c) inducing, or attempting to induce, a person (whether by

threats, promises or otherwise) to contravene any of those

provisions; or

(d) being in any way, directly or indirectly, knowingly concerned

in, or party to, the contravention by a person of any of those

provisions; or

(e) conspiring with others to contravene any of those provisions.

injunction includes an interim injunction.

80AC Injunctions to prevent mergers if clearance or authorisation

granted on the basis of false or misleading information

(1) If, on the application of the Commission, the Court is satisfied that:

(a) a person is proposing to acquire shares in the capital of a

body corporate or assets of a person; and

(b) the person was granted, under Division 3 of Part VII

(mergers), a clearance or an authorisation for the proposed

acquisition on the basis of information that was false or

misleading in a material particular; and

(c) that information was given by the person or a body corporate

that was related to the person; and

(d) if that information had not been given, the clearance or

authorisation would not have been granted; and

(e) apart from the clearance or authorisation, the acquisition

would contravene section 50 if it occurred;

then the Court may grant an injunction in such terms as the Court

determines to be appropriate.

(2) However, the Court must not grant the injunction if:

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(a) the person was granted both a clearance and an authorisation

for the acquisition under Division 3 of Part VII; and

(b) the Court could not grant an injunction under this section in

relation to both the clearance and the authorisation.

Example: If a clearance for an acquisition was granted by the Commission on

the basis of false or misleading information, and an authorisation for

the acquisition was granted by the Tribunal on the basis of true

information, then the Court cannot grant an injunction under this

section because it would not be able to grant the injunction in relation

to the authorisation.

81 Divestiture where merger contravenes section 50 or 50A

(1) The Court may, on the application of the Commission or any other

person, if it finds, or has in another proceeding instituted under this

Part found, that a person has contravened section 50, by order, give

directions for the purpose of securing the disposal by the person of

all or any of the shares or assets acquired in contravention of that

section.

(1A) Where:

(a) the Court finds, in a proceeding instituted under this Part, that

a person (in this subsection referred to as the acquirer) has

acquired shares in the capital of a body corporate or any

assets of a person in contravention of section 50;

(b) the Court finds, whether in that proceeding or any other

proceeding instituted under this Part, that the person (in this

section referred to as the vendor) from whom the acquirer

acquired those shares or those assets, as the case may be, was

involved in the contravention; and

(c) at the time when the finding referred to in paragraph (b) is

made, any of those shares or those assets, as the case may be,

are vested in the acquirer or, if the acquirer is a body

corporate, in any body corporate that is related to the

acquirer;

the Court may, on the application of the Commission, declare that

the acquisition, in so far as it relates to the shares or assets referred

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to in paragraph (c), is void as from the day on which it took place

and, where the Court makes such a declaration:

(d) the shares or the assets to which the declaration relates shall

be deemed not to have been disposed of by the vendor; and

(e) the vendor shall refund to the acquirer any amount paid to the

vendor in respect of the acquisition of the shares or assets to

which the declaration relates.

(1B) Where a declaration has been made under subsection 50A(1) in

relation to the obtaining of a controlling interest in a corporation,

or in each of 2 or more corporations, the Court may, on the

application of the Minister or the Commission, if it finds, or has in

a proceeding instituted under section 80 found, that that

corporation, or any of those corporations, as the case may be (in

this subsection referred to as the relevant corporation), has

contravened subsection 50A(6), by order, for the purpose of

ensuring that the obtaining of that controlling interest ceases to

have the result referred to in paragraph 50A(1)(a), direct the

relevant corporation to dispose of such of its assets as are specified

in the order within such period as is so specified.

(1C) Where an application is made to the Court for an order under

subsection (1) or a declaration under subsection (1A), the Court

may, instead of making an order under subsection (1) for the

purpose of securing the disposal by a person of shares or assets or

an order under subsection (1A) that the acquisition by a person of

shares or assets is void, accept, upon such conditions (if any) as the

Court thinks fit, an undertaking by the person to dispose of other

shares or assets owned by the person.

(2) An application under subsection (1), (1A) or (1B) may be made at

any time within 3 years after the date on which the contravention

occurred.

(3) Where an application for directions under subsection (1) or for a

declaration under subsection (1A) has been made, whether before

or after the commencement of this subsection, the Court may, if the

Court determines it to be appropriate, give directions or make a

declaration by consent of all the parties to the proceedings, whether

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or not the Court has made the findings referred to in

subsections (1) and (1A).

81A Divestiture where merger done under clearance or

authorisation granted on false etc. information

Circumstances when this section applies

(1) This section applies if the Court is satisfied that:

(a) a person (the acquirer) has acquired shares in the capital of a

body corporate or assets of another person; and

(b) before the acquisition, the acquirer was granted, under

Division 3 of Part VII (mergers), a clearance or an

authorisation for the acquisition on the basis of information

that was false or misleading in a material particular; and

(c) that information was provided by the acquirer or a body

corporate that was related to the acquirer; and

(d) the Court or another court has found that the acquirer or

related body corporate has contravened section 95AZN or

Part 7.4 of the Criminal Code by giving that information; and

(e) if that information had not been given, the clearance or

authorisation would not have been granted; and

(f) apart from the clearance or authorisation, the acquisition

would have contravened section 50; and

(g) any or all of those shares or assets are vested in the acquirer,

the related body corporate or any other body corporate that is

related to the acquirer.

Divestiture by the acquirer and related bodies corporate

(2) The Court may, on the application of the Commission, by order,

give directions for the purpose of securing the disposal of all or any

of those shares or assets by the acquirer, the related body corporate

or any other body corporate that is related to the acquirer.

(3) However, the Court must not make an order under subsection (2)

if:

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(a) the acquirer was granted, under Division 3 of Part VII, both a

clearance and an authorisation for the acquisition; and

(b) the matters in subsection (1) are not satisfied in relation to

both the clearance and the authorisation.

Example: If a clearance for an acquisition was granted by the Commission on

the basis of false or misleading information, and an authorisation for

the acquisition was granted by the Tribunal on the basis of true

information, then the Court cannot make an order under subsection (2)

because subsection (1) would not be satisfied in relation to the

authorisation.

Declaration that acquisition void—when vendor involved

(4) In addition to being satisfied of the matters in subsection (1), if the

Court, or another court, has found that the person (the vendor)

from whom the acquirer acquired the shares or assets was involved

in the contravention referred to in paragraph (1)(d), then the Court

may, on the application of the Commission, by order, declare that

the acquisition, in so far as it relates to those shares or assets, is

void as from the day on which it occurred.

(5) If the Court makes an order under subsection (4), then:

(a) the shares or assets to which the declaration relates are taken

not to have been disposed of by the vendor; and

(b) the vendor must refund to the acquirer any amount paid to

the vendor for acquiring the shares or assets.

(6) However, the Court must not make an order under subsection (4)

if:

(a) the acquirer was granted, under Division 3 of Part VII, both a

clearance and an authorisation for the acquisition; and

(b) the matters in subsections (1) and (4) are not satisfied in

relation to both the clearance and the authorisation.

Alternative to orders under subsections (2) and (4)

(7) If an application is made to the Court for an order under

subsection (2) or (4) against a person, the Court may, instead of

making an order of the kind mentioned in that subsection, accept,

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upon such conditions (if any) as the Court thinks fit, an

undertaking by the person to dispose of other shares or assets

owned by the person.

When application for orders under this section must be made

(8) An application under subsection (2) or (4) may be made at any

time within 3 years after the day on which the acquisition occurred.

Court may make orders even if not satisfied of all matters

(9) If an application for an order under subsection (2) or (4) is made,

the Court may, if the Court determines it to be appropriate, make

an order by consent of all the parties to the proceedings, whether or

not the Court is satisfied of:

(a) for an order under subsection (2)—the matters in

subsection (1); and

(b) for an order under subsection (4)—the matters in

subsections (1) and (4).

82 Actions for damages

(1) A person who suffers loss or damage by conduct of another person

that was done in contravention of a provision of Part IV or IVB, or

of section 55B, 60C or 60K, may recover the amount of the loss or

damage by action against that other person or against any person

involved in the contravention.

(2) An action under subsection (1) may be commenced at any time

within 6 years after the day on which the cause of action that

relates to the conduct accrued.

83 Finding in proceedings to be evidence

In a proceeding against a person under section 82 or in an

application under subsection 51ADB(1) or 87(1A) for an order

against a person, a finding of any fact by a court made in

proceedings under section 77, 80, 81, 86C, 86D or 86E, or for an

offence against section 44ZZRF or 44ZZRG, in which that person

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has been found to have contravened, or to have been involved in a

contravention of, a provision of Part IV or IVB, or of section 55B,

60C or 60K, is prima facie evidence of that fact and the finding

may be proved by production of a document under the seal of the

court from which the finding appears.

84 Conduct by directors, employees or agents

(1) If, in:

(a) a prosecution for an offence against section 44ZZRF or

44ZZRG in respect of conduct engaged in by a body

corporate; or

(b) a proceeding under this Part in respect of conduct engaged in

by a body corporate, being conduct in relation to which

section 44ZZRJ or 44ZZRK, Division 1A of Part IV,

section 46 or 46A Part IVB, section 55B or Part V applies;

it is necessary to establish the state of mind of the body corporate,

it is sufficient to show that:

(c) a director, employee or agent of the body corporate engaged

in that conduct; and

(d) the director, employee or agent was, in engaging in that

conduct, acting within the scope of his or her actual or

apparent authority; and

(e) 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 person’s actual or apparent authority; or

(b) by any other person at the direction or with the consent or

agreement (whether express or implied) of a director,

employee or agent of the body corporate, where the giving of

the direction, consent or agreement is within the scope of the

actual or apparent authority of the director, employee or

agent;

shall be deemed, for the purposes of this Act, to have been engaged

in also by the body corporate.

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(3) If, in:

(a) a prosecution for an offence against section 44ZZRF or

44ZZRG in respect of conduct engaged in by a person other

than a body corporate; or

(b) a proceeding under this Part in respect of conduct engaged in

by a person other than a body corporate, being conduct in

relation to which section 44ZZRJ or 44ZZRK, Division 1A

of Part IV, Part IVB, section 55B or Part V applies;

it is necessary to establish the state of mind of the person, it is

sufficient to show that:

(c) an employee or agent of the person engaged in that conduct;

and

(d) the employee or agent was, in engaging in that conduct,

acting within the scope of his or her actual or apparent

authority; and

(e) the employee or agent had that state of mind.

(4) Conduct engaged in on behalf of a person other than a body

corporate:

(a) by an employee or agent of the person within the scope of the

actual or apparent authority of the employee or agent; or

(b) by any other person at the direction or with the consent or

agreement (whether express or implied) of an employee or

agent of the first-mentioned person, where the giving of the

direction, consent or agreement is within the scope of the

actual or apparent authority of the employee or agent;

shall be deemed, for the purposes of this Act, to have been engaged

in also by the first-mentioned person.

(4A) If:

(a) a person other than a body corporate is convicted of an

offence; and

(b) subsection (3) or (4) applied in relation to the conviction on

the basis that the person was the person first mentioned in

that subsection; and

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(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.

(5) A reference in this section to the state of mind of a person includes

a reference to the knowledge, intention, opinion, belief or purpose

of the person and the person’s reasons for the person’s intention,

opinion, belief or purpose.

85 Defences

If, in any proceedings under this Part against a person other than a

body corporate, it appears to the Court that the person has or may

have:

(a) engaged in conduct in contravention of a provision of

Part IV; or

(aa) engaged in conduct in contravention of section 60C or 60K;

or

(b) engaged in conduct referred to in paragraph 76(1)(b), (c), (d),

(e) or (f);

but that the person acted honestly and reasonably and, having

regard to all the circumstances of the case, ought fairly to be

excused, the Court may relieve the person either wholly or partly

from liability to any penalty or damages on such terms as the Court

thinks fit.

86 Jurisdiction of courts

(1AA) A reference in this section to this Act, or to a Part, Division or

section of this Act, is a reference to this Act, or to that Part,

Division or section, as it has effect as a law of the Commonwealth.

(1) Jurisdiction is conferred on the Federal Court in any matter arising

under this Act in respect of which a civil proceeding has, whether

before or after the commencement of this section, been instituted

under this Part.

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(1A) Jurisdiction is conferred on the Federal Circuit Court in any matter

arising under section 46, Part IVB or section 55B in respect of

which a civil proceeding is instituted by a person other than the

Minister.

(2) The several courts of the States are invested with federal

jurisdiction within the limits of their several jurisdictions, whether

those limits are as to locality, subject-matter or otherwise, and,

subject to the Constitution, jurisdiction is conferred on the several

courts of the Territories, with respect to any matter arising under

Part IVB or section 55B in respect of which a civil proceeding is

instituted by a person other than the Minister or the Commission.

(3) Nothing in subsection (2) shall be taken to enable an inferior court

of a State or 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.

(3A) The Supreme Court of a State is invested with federal jurisdiction

with respect to any matter in respect of which a civil proceeding

covered by section 44ZZRI is instituted in that Court.

(3B) Subject to the Constitution, the Supreme Court of a Territory is

conferred with jurisdiction with respect to any matter in respect of

which a civil proceeding covered by section 44ZZRI is instituted in

that Court.

(4) 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

subsection (1A); and

(b) the jurisdiction of the several courts of the States and

Territories under subsection (2); and

(ba) the jurisdiction of the Supreme Courts of the States under

subsection (3A); and

(bb) the jurisdiction of the Supreme Courts of the Territories

under subsection (3B); and

(c) the jurisdiction of the High Court under section 75 of the

Constitution.

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86AA Limit on jurisdiction of Federal Circuit Court

If proceedings under section 82 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. For

transfers from the Federal Circuit Court to the Federal Court, see

section 39 of the Federal Circuit Court of Australia Act 1999.

86A Transfer of matters

(1) Where:

(a) a civil proceeding instituted (whether before or after the

commencement of this section) by a person other than the

Minister or the Commission is pending in the Federal Court;

and

(b) a matter for determination in the proceeding arose under

Part IVB or section 55B;

the Federal Court may, subject to subsection (2), upon the

application of a party or of the Federal Court’s own motion,

transfer to a court of a State or Territory the matter referred to in

paragraph (b) and may also transfer to that court any other matter

for determination in the proceeding.

(2) The Federal Court shall not transfer a matter to another court under

subsection (1) unless the other court has power to grant the

remedies sought before the Federal Court in the matter and it

appears to the Federal Court that:

(a) the matter arises out of or is related to a proceeding that is

pending in the other court; or

(b) it is otherwise in the interests of justice that the matter be

determined by the other court.

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(3) Where the Federal Court transfers a matter to another court under

subsection (1):

(a) further proceedings in the matter shall 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.

86C Non-punitive orders

(1) The Court may, on application by the Commission, make one or

more of the orders mentioned in subsection (2) in relation to a

person who has engaged in contravening conduct.

(1A) The Court may, on application by the Director of Public

Prosecutions, make one or more of the orders mentioned in

subsection (2) in relation to a person who has engaged in

contravening conduct that is:

(a) a contravention of section 44ZZRF or 44ZZRG; or

(b) an involvement in a contravention of section 44ZZRF or

44ZZRG.

(2) The orders that the Court may make in relation to the person are:

(a) except in the case of contravening conduct that relates to

section 60C or 60K—a community service order; and

(b) except in the case of contravening conduct that relates to

section 60C or 60K—a probation order for a period of no

longer than 3 years; and

(c) an order requiring the person to disclose, in the way and to

the persons specified in the order, such information as is so

specified, being information that the person has possession of

or access to; and

(d) an order requiring the person to publish, at the person’s

expense and in the way specified in the order, an

advertisement in the terms specified in, or determined in

accordance with, the order.

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(3) This section does not limit the Court’s powers under any other

provision of this Act.

(4) In this section:

community service order, in relation to a person who has engaged

in contravening conduct, means an order directing the person to

perform a service that:

(a) is specified in the order; and

(b) relates to the conduct;

for the benefit of the community or a section of the community.

Example: The following are examples of community service orders:

(a) an order requiring a person who has made false representations to make available a training video which explains advertising obligations under this Act; and

(b) an order requiring a person who has engaged in misleading or deceptive conduct in relation to a product to carry out a community awareness program to address the needs of consumers when purchasing the product.

contravening conduct means conduct that:

(a) contravenes Part IV or IVB or section 55B, 60C, 60K or

95AZN; or

(b) constitutes an involvement in a contravention of any of those

provisions.

probation order, in relation to a person who has engaged in

contravening conduct, means an order that is made by the Court for

the purpose of ensuring that the person does not engage in the

contravening conduct, similar conduct or related conduct during

the period of the order, and includes:

(a) an order directing the person to establish a compliance

program for employees or other persons involved in the

person’s business, being a program designed to ensure their

awareness of the responsibilities and obligations in relation to

the contravening conduct, similar conduct or related conduct;

and

(b) an order directing the person to establish an education and

training program for employees or other persons involved in

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the person’s business, being a program designed to ensure

their awareness of the responsibilities and obligations in

relation to the contravening conduct, similar conduct or

related conduct; and

(c) an order directing the person to revise the internal operations

of the person’s business which lead to the person engaging in

the contravening conduct.

86D Punitive orders—adverse publicity

(1) The Court may, on application by the Commission, make an

adverse publicity order in relation to a person who:

(a) has been ordered to pay a pecuniary penalty under section 76;

or

(b) is guilty of an offence against section 44ZZRF or 44ZZRG.

(1A) The Court may, on application by the Director of Public

Prosecutions, make an adverse publicity order in relation to a

person who is guilty of an offence against section 44ZZRF or

44ZZRG.

(2) In this section, an adverse publicity order, in relation to a person,

means an order that:

(a) requires the person to disclose, in the way and to the persons

specified in the order, such information as is so specified,

being information that the person has possession of or access

to; and

(b) requires the person to publish, at the person’s expense and in

the way specified in the order, an advertisement in the terms

specified in, or determined in accordance with, the order.

(3) This section does not limit the Court’s powers under any other

provision of this Act.

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86E Order disqualifying a person from managing corporations

(1) On application by the Commission, the Court may make an order

disqualifying a person from managing corporations for a period

that the Court considers appropriate if:

(a) the Court is satisfied that the person has contravened, has

attempted to contravene or has been involved in a

contravention of Part IV; and

(b) the Court is satisfied that the disqualification is justified.

Note: Section 206EA of the Corporations Act 2001 provides that a person is

disqualified from managing corporations if a court order is in force

under this section. That Act contains various consequences for persons

so disqualified.

(1A) On application by the Director of Public Prosecutions, the Court

may make an order disqualifying a person from managing

corporations for a period that the Court considers appropriate if:

(a) the Court is satisfied that the person has contravened or has

been involved in a contravention of section 44ZZRF or

44ZZRG; and

(b) the Court is satisfied that the disqualification is justified.

Note: Section 206EA of the Corporations Act 2001 provides that a person is

disqualified from managing corporations if a court order is in force

under this section. That Act contains various consequences for persons

so disqualified.

(2) In determining under subsection (1) or (1A) whether the

disqualification is justified, the Court may have regard to:

(a) the person’s conduct in relation to the management, business

or property of any corporation; and

(b) any other matters that the Court considers appropriate.

(3) The Commission must notify ASIC if the Court makes an order

under subsection (1). The Commission must give ASIC a copy of

the order.

Note: ASIC must keep a register of persons who have been disqualified

from managing corporations: see section 1274AA of the Corporations

Act 2001.

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(3A) The Director of Public Prosecutions must notify ASIC if the Court

makes an order under subsection (1A). The Director of Public

Prosecutions must give ASIC a copy of the order.

Note: ASIC must keep a register of persons who have been disqualified

from managing corporations—see section 1274AA of the

Corporations Act 2001.

(3B) For the purposes of this Act (other than this section or

section 86F), an order under this section is not a penalty.

(4) In this section:

ASIC means the Australian Securities and Investments

Commission.

86F Privilege against exposure to penalty—disqualification from

managing corporations

Court proceeding

(1) In a civil or criminal proceeding under, or arising out of, this Act, a

person is not entitled to refuse or fail to comply with a

requirement:

(a) to answer a question or give information; or

(b) to produce a document or any other thing; or

(c) to do any other act;

on the ground that the answer or information, production of the

document or other thing, or doing that other act, as the case may

be, might tend to expose the person to a penalty by way of an order

under section 86E.

(2) Subsection (1) applies whether or not the person is a defendant in

the proceeding or in any other proceeding.

Statutory requirement

(3) A person is not entitled to refuse or fail to comply with a

requirement under this Act:

(a) to answer a question or give information; or

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Section 87

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(b) to produce a document or any other thing; or

(c) to do any other act;

on the ground that the answer or information, production of the

document or other thing, or doing that other act, as the case may

be, might tend to expose the person to a penalty by way of an order

under section 86E.

Definition

(4) In this section:

penalty includes forfeiture.

87 Other orders

(1) Without limiting the generality of section 80, where, in a

proceeding instituted under this Part, or for an offence against

section 44ZZRF or 44ZZRG, the Court finds that a person who is a

party to the proceeding has suffered, or is likely to suffer, loss or

damage by conduct of another person that was engaged in (whether

before or after the commencement of this subsection) in

contravention of a provision of Part IV or Division 2 of Part IVB,

or of section 55B, 60C or 60K, the Court may, whether or not it

grants an injunction under section 80 or makes an order under

section 82, 86C, 86D or 86E, make such order or orders as it thinks

appropriate against the person who engaged in the conduct or a

person who was involved in the contravention (including all or any

of the orders mentioned in subsection (2) of this section) if the

Court considers that the order or orders concerned will compensate

the first-mentioned person in whole or in part for the loss or

damage or will prevent or reduce the loss or damage.

(1A) Without limiting the generality of sections 51ADB and 80, the

Court may:

(a) on the application of a person who has suffered, or is likely

to suffer, loss or damage by conduct of another person that

was engaged in in contravention of Division 2 of Part IVB or

section 60C or 60K; or

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(b) on the application of the Commission in accordance with

subsection (1B) on behalf of one or more persons who have

suffered, or who are likely to suffer, loss or damage by

conduct of another person that was engaged in in

contravention of Part IV (other than section 45D or 45E),

Division 2 of Part IVB or section 60C or 60K; or

(baa) on the application of the Commission in accordance with

subsection (1BAA) on behalf of a class of persons who have

suffered, or who are likely to suffer, loss or damage by

conduct of another person that was engaged in in

contravention of section 55B; or

(ba) on the application of the Director of Public Prosecutions in

accordance with subsection (1BA) on behalf of one or more

persons who have suffered, or who are likely to suffer, loss

or damage by conduct of another person that was engaged in

in contravention of section 44ZZRF or 44ZZRG;

make such order or orders as the Court thinks appropriate against

the person who engaged in the conduct or a person who was

involved in the contravention (including all or any of the orders

mentioned in subsection (2)) if the Court considers that the order or

orders concerned will:

(c) compensate the person who made the application, or the

person or any of the persons on whose behalf the application

was made, in whole or in part for the loss or damage; or

(d) prevent or reduce the loss or damage suffered, or likely to be

suffered, by such a person.

(1B) The Commission may make an application under

paragraph (1A)(b) on behalf of one or more persons identified in

the application who:

(a) have suffered, or are likely to suffer, loss or damage by

conduct of another person that was engaged in in

contravention of Part IV (other than section 45D or 45E),

Division 2 of Part IVB or section 60C or 60K; and

(b) have, before the application is made, consented in writing to

the making of the application.

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(1BAA) The Commission may make an application under

paragraph (1A)(b) on behalf of a class of persons identified in the

application who have suffered, or are likely to suffer, loss or

damage by conduct of another person that was engaged in in

contravention of section 55B.

(1BA) The Director of Public Prosecutions may make an application

under paragraph (1A)(ba) on behalf of one or more persons

identified in the application who:

(a) have suffered, or are likely to suffer, loss or damage by

conduct of another person that was engaged in in

contravention of section 44ZZRF or 44ZZRG; and

(b) have, before the application is made, consented in writing to

the making of the application.

(1C) An application may be made under subsection (1A) in relation to a

contravention of Part IV, Division 2 of Part IVB or section 60C or

60K even if a proceeding has not been instituted under another

provision in relation to that contravention.

(1CA) An application under subsection (1A) may be made at any time

within 6 years after the day on which the cause of action that

relates to the conduct accrued.

(2) The orders referred to in subsection (1) and (1A) are:

(a) an order declaring the whole or any part of a contract made

between the person who suffered, or is likely to suffer, the

loss or damage and the person who engaged in the conduct or

a person who was involved in the contravention constituted

by the conduct, or of a collateral arrangement relating to such

a contract, to be void and, if the Court thinks fit, to have been

void ab initio or at all times on and after such date before the

date on which the order is made as is specified in the order;

(b) an order varying such a contract or arrangement in such

manner as is specified in the order and, if the Court thinks fit,

declaring the contract or arrangement to have had effect as so

varied on and after such date before the date on which the

order is made as is so specified;

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(ba) an order refusing to enforce any or all of the provisions of

such a contract;

(c) an order directing the person who engaged in the conduct or

a person who was involved in the contravention constituted

by the conduct to refund money or return property to the

person who suffered the loss or damage;

(d) an order directing the person who engaged in the conduct or

a person who was involved in the contravention constituted

by the conduct to pay to the person who suffered the loss or

damage the amount of the loss or damage;

(e) an order directing the person who engaged in the conduct or

a person who was involved in the contravention constituted

by the conduct, at his or her own expense, to repair, or

provide parts for, goods that had been supplied by the person

who engaged in the conduct to the person who suffered, or is

likely to suffer, the loss or damage;

(f) an order directing the person who engaged in the conduct or

a person who was involved in the contravention constituted

by the conduct, at his or her own expense, to supply specified

services to the person who suffered, or is likely to suffer, the

loss or damage; and

(g) an order, in relation to an instrument creating or transferring

an interest in land, directing the person who engaged in the

conduct or a person who was involved in the contravention

constituted by the conduct to execute an instrument that:

(i) varies, or has the effect of varying, the first-mentioned

instrument; or

(ii) terminates or otherwise affects, or has the effect of

terminating or otherwise affecting, the operation or

effect of the first-mentioned instrument.

(3) Where:

(a) a provision of a contract made, or a covenant given, whether

before or after the commencement of the Trade Practices

Amendment Act 1977:

(i) in the case of a provision of a contract, is unenforceable

by reason of section 45 in so far as it confers rights or

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benefits or imposes duties or obligations on a

corporation; or

(ii) in the case of a covenant, is unenforceable by reason of

section 45B in so far as it confers rights or benefits or

imposes duties or obligations on a corporation or on a

person associated with a corporation; or

(b) the engaging in conduct by a corporation in pursuance of or

in accordance with a contract made before the

commencement of the Trade Practices Amendment Act 1977

would constitute a contravention of section 47;

the Court may, on the application of a party to the contract or of a

person who would, but for subsection 45B(1), be bound by, or

entitled to the benefit of, the covenant, as the case may be, make an

order:

(c) varying the contract or covenant, or a collateral arrangement

relating to the contract or covenant, in such manner as the

Court considers just and equitable; or

(d) directing another party to the contract, or another person who

would, but for subsection 45B(1), be bound by, or entitled to

the benefit of, the covenant, to do any act in relation to the

first-mentioned party or person that the Court considers just

and equitable.

(4) The orders that may be made under subsection (3) include an order

directing the termination of a lease or the increase or reduction of

any rent or premium payable under a lease.

(5) The powers conferred on the Court under this section in relation to

a contract or covenant do not affect any powers that any other court

may have in relation to the contract or covenant in proceedings

instituted in that other court in respect of the contract or covenant.

(6) In subsection (2), interest, in relation to land, means:

(a) a legal or equitable estate or interest in the land; or

(b) a right of occupancy of the land, or of a building or part of a

building erected on the land, arising by virtue of the holding

of shares, or by virtue of a contract to purchase shares, in an

incorporated company that owns the land or building; or

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(c) a right, power or privilege over, or in connection with, the

land.

87AA Special provision relating to Court’s exercise of powers under

this Part in relation to boycott conduct

(1) In exercising its powers in proceedings under this Part in relation

to boycott conduct, the Court is to have regard to any action the

applicant in the proceedings has taken, or could take, before an

industrial authority in relation to the boycott conduct. In particular,

the Court is to have regard to any application for conciliation that

the applicant has made or could make.

(2) In this section:

boycott conduct means conduct that constitutes or would

constitute:

(a) a contravention of subsection 45D(1), 45DA(1), 45DB(1),

45E(2) or 45E(3) or section 45EA; or

(b) attempting to contravene one of those provisions; or

(c) aiding, abetting, counselling or procuring a person to

contravene one of those provisions; or

(d) inducing, or attempting to induce, a person (whether by

threats, promises or otherwise) to contravene one of those

provisions; or

(e) being in any way, directly or indirectly, knowingly concerned

in, or party to, a contravention of one of those provisions; or

(f) conspiring with others to contravene one of those provisions.

industrial authority means:

(a) a board or court of conciliation or arbitration, or tribunal,

body or persons, having authority under a law of a State to

exercise any power of conciliation or arbitration in relation to

industrial disputes within the limits of the State; or

(b) a special board constituted under a law of a State relating to

factories; or

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(c) any other State board, court, tribunal, body or official

prescribed by the regulations for the purposes of this

definition.

87B Enforcement of undertakings

(1) The Commission may accept a written undertaking given by a

person for the purposes of this section in connection with a matter

in relation to which the Commission has a power or function under

this Act (other than Part X).

(1A) The Commission may accept a written undertaking given by a

person for the purposes of this section in connection with a

clearance or an authorisation under Division 3 of Part VII.

(2) The person may withdraw or vary the undertaking at any time, but

only with the consent of the Commission.

(3) If the Commission considers that the person who gave the

undertaking has breached any of its terms, the Commission may

apply to the Court for an order under subsection (4).

(4) If the Court is satisfied that the person has breached a term of the

undertaking, the Court may make all or any of the following

orders:

(a) an order directing the person to comply with that term of the

undertaking;

(b) an order directing the person to pay to the Commonwealth an

amount up to the amount of any financial benefit that the

person has obtained directly or indirectly and that is

reasonably attributable to the breach;

(c) any order that the Court considers appropriate directing the

person to compensate any other person who has suffered loss

or damage as a result of the breach;

(d) any other order that the Court considers appropriate.

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87C Enforcement of undertakings—Secretary of the Department

(1) The Secretary of the Department may accept a written undertaking

given by a person for the purposes of this section in connection

with a matter in relation to which the Secretary has a power or

function under this Act.

(2) The person may withdraw or vary the undertaking at any time, but

only with the consent of the Secretary of the Department.

(3) If the Secretary of the Department considers that the person who

gave the undertaking has breached any of its terms, the Secretary

may apply to the Court for an order under subsection (4).

(4) If the Court is satisfied that the person has breached a term of the

undertaking, the Court may make all or any of the following

orders:

(a) an order directing the person to comply with that term of the

undertaking;

(b) an order directing the person to pay to the Commonwealth an

amount up to the amount of any financial benefit that the

person has obtained directly or indirectly and that is

reasonably attributable to the breach;

(c) any order that the court considers appropriate directing the

person to compensate any other person who has suffered loss

or damage as a result of the breach;

(d) any other order that the Court considers appropriate.

87CA Intervention by Commission

(1) The Commission may, with the leave of the Court and subject to

any conditions imposed by the Court, intervene in any proceeding

instituted under this Act.

(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.

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Section 87CB

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Part VIA—Proportionate liability for misleading

and deceptive conduct

87CB Application of Part

(1) This Part applies to a claim (an apportionable claim) if the claim is

a claim for damages made under section 236 of the Australian

Consumer Law for:

(a) economic loss; or

(b) damage to property;

caused by conduct that was done in a contravention of section 18

of the Australian Consumer Law.

(2) For the purposes of this Part, there is a single apportionable claim

in proceedings in respect of the same loss or damage even if the

claim for the loss or damage is based on more than one cause of

action (whether or not of the same or a different kind).

(3) In this Part, a concurrent wrongdoer, in relation to a claim, is a

person who is one of 2 or more persons whose acts or omissions

(or act or omission) caused, independently of each other or jointly,

the damage or loss that is the subject of the claim.

(4) For the purposes of this Part, apportionable claims are limited to

those claims specified in subsection (1).

(5) For the purposes of this Part, it does not matter that a concurrent

wrongdoer is insolvent, is being wound up or has ceased to exist or

died.

87CC Certain concurrent wrongdoers not to have benefit of

apportionment

(1) Nothing in this Part operates to exclude the liability of a concurrent

wrongdoer (an excluded concurrent wrongdoer) in proceedings

involving an apportionable claim if:

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(a) the concurrent wrongdoer intended to cause the economic

loss or damage to property that is the subject of the claim; or

(b) the concurrent wrongdoer fraudulently caused the economic

loss or damage to property that is the subject of the claim.

(2) The liability of an excluded concurrent wrongdoer is to be

determined in accordance with the legal rules (if any) that (apart

from this Part) are relevant.

(3) The liability of any other concurrent wrongdoer who is not an

excluded concurrent wrongdoer is to be determined in accordance

with the provisions of this Part.

87CD Proportionate liability for apportionable claims

(1) In any proceedings involving an apportionable claim:

(a) the liability of a defendant who is a concurrent wrongdoer in

relation to that claim is limited to an amount reflecting that

proportion of the damage or loss claimed that the court

considers just having regard to the extent of the defendant’s

responsibility for the damage or loss; and

(b) the court may give judgment against the defendant for not

more than that amount.

(2) If the proceedings involve both an apportionable claim and a claim

that is not an apportionable claim:

(a) liability for the apportionable claim is to be determined in

accordance with the provisions of this Part; and

(b) liability for the other claim is to be determined in accordance

with the legal rules, if any, that (apart from this Part) are

relevant.

(3) In apportioning responsibility between defendants in the

proceedings:

(a) the court is to exclude that proportion of the damage or loss

in relation to which the plaintiff is contributorily negligent

under any relevant law; and

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(b) the court may have regard to the comparative responsibility

of any concurrent wrongdoer who is not a party to the

proceedings.

(4) This section applies in proceedings involving an apportionable

claim whether or not all concurrent wrongdoers are parties to the

proceedings.

(5) A reference in this Part to a defendant in proceedings includes any

person joined as a defendant or other party in the proceedings

(except as a plaintiff) whether joined under this Part, under rules of

court or otherwise.

87CE Defendant to notify plaintiff of concurrent wrongdoer of

whom defendant aware

(1) If:

(a) a defendant in proceedings involving an apportionable claim

has reasonable grounds to believe that a particular person (the

other person) may be a concurrent wrongdoer in relation to

the claim; and

(b) the defendant fails to give the plaintiff, as soon as

practicable, written notice of the information that the

defendant has about:

(i) the identity of the other person; and

(ii) the circumstances that may make the other person a

concurrent wrongdoer in relation to the claim; and

(c) the plaintiff unnecessarily incurs costs in the proceedings

because the plaintiff was not aware that the other person may

be a concurrent wrongdoer in relation to the claim;

the court hearing the proceedings may order that the defendant pay

all or any of those costs of the plaintiff.

(2) The court may order that the costs to be paid by the defendant be

assessed on an indemnity basis or otherwise.

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Section 87CF

Competition and Consumer Act 2010 421

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

87CF Contribution not recoverable from defendant

A defendant against whom judgment is given under this Part as a

concurrent wrongdoer in relation to an apportionable claim:

(a) cannot be required to contribute to any damages or

contribution recovered from another concurrent wrongdoer in

respect of the apportionable claim (whether or not the

damages or contribution are recovered in the same

proceedings in which judgment is given against the

defendant); and

(b) cannot be required to indemnify any such wrongdoer.

87CG Subsequent actions

(1) In relation to an apportionable claim, nothing in this Part or any

other law prevents a plaintiff who has previously recovered

judgment against a concurrent wrongdoer for an apportionable part

of any damage or loss from bringing another action against any

other concurrent wrongdoer for that damage or loss.

(2) However, in any proceedings in respect of any such action, the

plaintiff cannot recover an amount of damages that, having regard

to any damages previously recovered by the plaintiff in respect of

the damage or loss, would result in the plaintiff receiving

compensation for damage or loss that is greater than the damage or

loss actually sustained by the plaintiff.

87CH Joining non-party concurrent wrongdoer in the action

(1) The court may give leave for any one or more persons to be joined

as defendants in proceedings involving an apportionable claim.

(2) The court is not to give leave for the joinder of any person who

was a party to any previously concluded proceedings in respect of

the apportionable claim.

87CI Application of Part

Nothing in this Part:

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Section 87CI

422 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) prevents a person being held vicariously liable for a

proportion of an apportionable claim for which another

person is liable; or

(b) prevents a partner from being held severally liable with

another partner for that proportion of an apportionable claim

for which the other partner is liable; or

(c) affects the operation of any other Act to the extent that it

imposes several liability on any person in respect of what

would otherwise be an apportionable claim.

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Introduction Division 1

Section 87D

Competition and Consumer Act 2010 423

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part VIB—Claims for damages or compensation

for death or personal injury

Division 1—Introduction

87D Definitions

In this Part, unless the contrary intention appears:

applicable percentage has the meaning given by

subsection 87Q(2).

average weekly earnings has the meaning given by section 87V.

capable parent or guardian, of a minor, means a person who is a

parent or guardian of the minor, and who is not under a disability.

date of discoverability has the meaning given by section 87G.

gratuitous attendant care services has the meaning given by

subsection 87W(5).

incapacitated person means a person who is incapable of, or

substantially impeded in, the management of his or her affairs in

relation to a proceeding under this Act because of:

(a) any disease, or any impairment of his or her mental

condition; or

(b) restraint of his or her person, lawful or unlawful, including

detention or custody under a law of a State or Territory

relating to mental health; or

(c) war or warlike operations, or circumstances arising out of

war or warlike operations.

index number has the meaning given by section 87N.

long-stop period has the meaning given by section 87H.

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Division 1 Introduction

Section 87D

424 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

maximum amount of damages for non-economic loss has the

meaning given by section 87M.

minor means a person under 18.

most extreme case has the meaning given by subsection 87P(2).

non-economic loss means any one or more of the following:

(a) pain and suffering;

(b) loss of amenities of life;

(c) loss of expectation of life;

(d) disfigurement.

personal injury damages means damages or compensation for loss

or damage that is, or results from, the death of or personal injury to

a person.

plaintiff, in relation to a proceeding, means:

(a) if the proceeding is a proceeding that the Commission

commences under paragraph 87(1A)(b), or under section 149

or paragraph 237(1)(b) of the Australian Consumer Law—a

person on whose behalf the Commission commences the

proceeding; or

(aa) if the proceeding is a proceeding that the Director of Public

Prosecutions commences under paragraph 87(1A)(ba)—a

person on whose behalf the Director of Public Prosecutions

commences the proceeding; or

(b) in any other case—the person by whom the proceeding is

brought (however described).

proceeding to which this Part applies means a proceeding referred

to in section 87E.

quarter means a period of 3 months ending on 31 March, 30 June,

30 September or 31 December.

smoking has the same meaning as in the Tobacco Advertising

Prohibition Act 1992.

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Introduction Division 1

Section 87E

Competition and Consumer Act 2010 425

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

tobacco product has the same meaning as in the Tobacco

Advertising Prohibition Act 1992.

87E Proceedings to which this Part applies

(1) This Part applies to proceedings taken under the Australian

Consumer Law:

(a) that relate to Part 2-2, 3-3, 3-4 or 3-5, or Division 2 of

Part 5-4, of the Australian Consumer Law; and

(b) in which the plaintiff is seeking an award of personal injury

damages; and

(c) that are not proceedings in respect of the death of or personal

injury to a person resulting from smoking or other use of

tobacco products.

(2) However, for the purposes of Divisions 2 and 7, paragraph (1)(c)

does not apply.

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Division 2 Limitation periods

Section 87F

426 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Limitation periods

87F Basic rule

(1) A court must not award personal injury damages in a proceeding to

which this Part applies if the proceeding was commenced:

(a) after the end of the period of 3 years after the date of

discoverability for the death or injury to which the personal

injury damages would relate; or

(b) after the end of the long-stop period for that death or injury.

(1A) However, paragraph (1)(b) does not apply in relation to a

proceeding in respect of the death of or personal injury to a person

resulting from smoking or other use of tobacco products.

(2) This diagram shows when this Division prevents an award of

personal injury damages.

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Limitation periods Division 2

Section 87G

Competition and Consumer Act 2010 427

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

87G Date of discoverability

Definition

(1) The date of discoverability for the death or injury is the first date

when the plaintiff in the proceeding knows or ought to know each

of the following:

(a) that the death or personal injury has occurred;

(b) that the death or personal injury was attributable to a

contravention of this Act;

(c) that in the case of a personal injury—the injury was

significant enough to justify bringing an action.

Have 3 years elapsed since the date of discoverability?

Has the long-stop period expired?

Personal injury damages

may be awarded

No

Did the death or personal injury result

from smoking or other use of tobacco

products?

Yes

No

Personal injury damages

cannot be awarded

Yes

Yes

No

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Section 87G

428 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Constructive knowledge

(2) For the purposes of subsection (1), the plaintiff ought to know a

fact if the plaintiff would have ascertained the fact had the plaintiff

taken all reasonable steps before the date in question to ascertain

the fact.

Use of the plaintiff’s conduct and statements

(3) In determining what the plaintiff knows or ought to have known,

the court may have regard to the plaintiff’s conduct, and to the

plaintiff’s oral or written statements.

Minors

(4) If the plaintiff is a minor, facts that a capable parent or guardian of

the plaintiff knows or ought to know are taken for the purposes of

subsection (1) to be facts that the plaintiff knows or ought to know.

Incapacitated persons

(5) If:

(a) the plaintiff is an incapacitated person; and

(b) there is a guardian of the plaintiff, or other person to manage

all or part of the plaintiff’s estate, under a law of a State or

Territory relating to the protection of incapacitated persons;

facts that the guardian or other person knows or ought to know are

taken for the purposes of subsection (1) to be facts that the plaintiff

knows or ought to know.

Proceedings by personal representatives

(6) Despite subsection (1), if the plaintiff brings the proceeding in the

capacity of the personal representative of a deceased person, the

date of discoverability for the death or injury is the earliest of:

(a) if, had the deceased person commenced a proceeding, in

relation to the contravention to which the death or injury

relates, before his or her death, the date of discoverability

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Section 87H

Competition and Consumer Act 2010 429

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

under subsection (1) would have occurred more than 3 years

before the death—that date; or

(b) if, at the time of the plaintiff’s appointment as personal

representative, the plaintiff knew, or ought to have known, all

of the matters referred to in paragraphs (1)(a), (b) and (c)—

the date of the appointment; or

(c) if the first time at which the plaintiff knew, or ought to have

known, all of the matters referred to in paragraphs (1)(a), (b)

and (c) was after the date of appointment—the date of that

first time.

87H Long-stop period

(1) The long-stop period for the death or injury of a person is:

(a) the period of 12 years following the act or omission alleged

to have caused the death or injury; or

(b) that period as extended by the court.

(2) The court must not extend the period by more than 3 years beyond

the date of discoverability for the death or injury.

(3) In considering whether to extend the period, the court must have

regard to the justice of the case, and, in particular, must have

regard to:

(a) whether the passage of time has prejudiced a fair trial; and

(b) the nature and extent of the person’s loss or damage; and

(c) the nature of the defendant’s conduct alleged to have caused

the death or injury; and

(d) the nature of the defendant’s conduct since the alleged act or

omission.

87J The effect of minority or incapacity

In working out whether the period of 3 years after the date of

discoverability, or the long-stop period, has expired, disregard any

period during which the plaintiff has been:

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Section 87K

430 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) a minor who is not in the custody of a capable parent or

guardian; or

(b) an incapacitated person in respect of whom there is no

guardian, and no other person to manage all or part of the

person’s estate, under a law of a State or Territory relating to

the protection of incapacitated persons.

87K The effect of close relationships

(1) If:

(a) a cause of action to which the proceeding relates is founded

on the death or injury to a person (the victim) who was a

minor at the time of the act or omission alleged to have

caused the death or injury; and

(b) the proceeding is taken against a person who was at that

time:

(i) a parent or guardian of the victim; or

(ii) a person in a close relationship with a parent or guardian

of the victim;

in working out whether the period of 3 years after the date of

discoverability, or the long-stop period, has expired, disregard any

period:

(c) before the victim turns 25; or

(d) if the victim dies before turning 25—before the victim’s

death.

(2) For the purposes of subparagraph (1)(b)(ii), a person is taken to be

in a close relationship with a parent or guardian of the victim if the

person’s relationship with the parent or guardian is such that:

(a) the person might influence the parent or guardian not to bring

a claim on behalf of the victim against the person; or

(b) the victim might be unwilling to disclose to the parent or

guardian the acts, omissions or events in respect of which the

cause of action is founded.

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

Section 87L

Competition and Consumer Act 2010 431

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Limits on personal injury damages for

non-economic loss

87L Limits on damages for non-economic loss

A court must not, in a proceeding to which this Part applies, award

as personal injury damages for non-economic loss an amount that

exceeds the amount (if any) permitted under this Division.

87M Maximum amount of damages for non-economic loss

(1) The maximum amount of damages for non-economic loss is:

(a) during the year in which this Part commences—$250,000; or

(b) during a later year—the amount worked out (to the nearest

multiple of $10) as follows:

where:

current September CPI number is the index number for the

quarter ending on 30 September in the year immediately

preceding that later year.

previous maximum amount is the maximum amount of

damages for non-economic loss during the year immediately

preceding that later year.

previous September CPI number is the index number for the

quarter ending on the 30 September immediately preceding

the 30 September referred to in the definition of current

September CPI number.

(2) If an amount worked out under paragraph (1)(b) is a multiple of $5

(but not a multiple of $10), round the amount up to the nearest

multiple of $10.

(3) This section does not affect the operation of section 86AA.

Current September CPI number Previous maximum amount

Previous September CPI number 

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

Section 87N

432 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

87N Index numbers

(1) The index number for a quarter is the All Groups Consumer Price

Index number, being the weighted average of the 8 capital cities,

published by the Australian Statistician in respect of that quarter.

(2) Subject to subsection (3), if, at any time before or after the

commencement of this Act:

(a) the Australian Statistician has published or publishes an

index number in respect of a quarter; and

(b) that index number is in substitution for an index number

previously published by the Australian Statistician in respect

of that quarter;

disregard the publication of the later index number for the purposes

of this section.

(3) If, at any time, the Australian Statistician has changed or changes

the index reference period for the Consumer Price Index, then, in

applying this section after the change took place or takes place,

have regard only to index numbers published in terms of the new

index reference period.

(4) In this section:

Australian Statistician means the Australian Statistician referred

to in subsection 5(2) of the Australian Bureau of Statistics Act

1975.

87P Most extreme cases

(1) The court must not award as personal injury damages for

non-economic loss the maximum amount of damages for

non-economic loss except in a most extreme case.

(2) A most extreme case is a case in which the plaintiff suffers

non-economic loss of the gravest conceivable kind.

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Section 87Q

Competition and Consumer Act 2010 433

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

(1) If the non-economic loss the plaintiff suffers is at least 33%, but

less than 100%, of a most extreme case, the court must not award

as personal injury damages for non-economic loss an amount that

exceeds the applicable percentage of the maximum amount of

damages for non-economic loss.

(2) The applicable percentage is the extent of the non-economic loss

the plaintiff suffers, expressed as a percentage of a most extreme

case.

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

case

If the non-economic loss the plaintiff suffers is at least 15%, but

less than 33%, of a most extreme case, the court must not award as

personal injury damages for non-economic loss an amount that

exceeds the amount set out in the following table:

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

Item Severity of the non-economic

loss (as a proportion of a most

extreme case)

Damages for non-economic loss (as a

proportion of the maximum amount

of damages for non-economic loss)

1 15% 1%

2 16% 1.5%

3 17% 2%

4 18% 2.5%

5 19% 3%

6 20% 3.5%

7 21% 4%

8 22% 4.5%

9 23% 5%

10 24% 5.5%

11 25% 6.5%

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Section 87S

434 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

Item Severity of the non-economic

loss (as a proportion of a most

extreme case)

Damages for non-economic loss (as a

proportion of the maximum amount

of damages for non-economic loss)

12 26% 8%

13 27% 10%

14 28% 14%

15 29% 18%

16 30% 23%

17 31% 26%

18 32% 30%

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

If the non-economic loss the plaintiff suffers is less than 15% of a

most extreme case, the court must not award personal injury

damages for non-economic loss.

87T Referring to earlier decisions on non-economic loss

(1) In determining personal injury damages for non-economic loss, the

court may refer to earlier decisions of the court or of other courts

for the purpose of establishing the appropriate award in the

proceeding.

(2) For that purpose, the parties to the proceeding or their counsel may

bring the court’s attention to awards of personal injury damages for

non-economic loss in those earlier decisions.

(3) This section does not affect the rules for determination of other

damages or compensation.

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

Section 87U

Competition and Consumer Act 2010 435

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4—Limits on personal injury damages for loss of

earning capacity

87U Personal injury damages for loss of earning capacity

In determining, in a proceeding to which this Part applies, personal

injury damages for:

(a) past economic loss due to loss of earnings or the deprivation

or impairment of earning capacity; or

(b) future economic loss due to the deprivation or impairment of

earning capacity; or

(c) the loss of expectation of financial support;

a court must disregard the amount by which the plaintiff’s gross

weekly earnings during any quarter would (but for the personal

injury or death in question) have exceeded:

(d) if, at the time the award was made, the amount of average

weekly earnings for the quarter was ascertainable—an

amount that is twice the amount of average weekly earnings

for the quarter; or

(e) if:

(i) at the time the award was made, the amount of average

weekly earnings for the quarter was not ascertainable; or

(ii) the award was made during, or before the start of, the

quarter;

an amount that is twice the amount of average weekly

earnings for the quarter that, at the time the award was made,

was the most recent quarter for which the amount of average

weekly earnings was ascertainable.

87V Average weekly earnings

(1) Average weekly earnings, for a quarter, means the amount:

(a) published by the Australian Statistician as the average

weekly earnings for all employees (total earnings, seasonally

adjusted) for the reference period in that quarter; or

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Section 87V

436 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) if the Australian Statistician fails or ceases to publish the

amount referred to in paragraph (a)—the amount determined

in the manner specified in the regulations.

(2) Regulations made for the purposes of paragraph (1)(b) may specify

matters by reference to which an amount is to be determined.

(3) In this section:

reference period, in a quarter, is the period described by the

Australian Statistician as the pay period ending on or before a

specified day that is the third Friday of the middle month of that

quarter.

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

Section 87W

Competition and Consumer Act 2010 437

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 5—Limits on personal injury damages for

gratuitous attendant care services

87W Personal injury damages for gratuitous attendant care services

for plaintiff

(1) A court must not, in a proceeding to which this Part applies, award

personal injury damages for gratuitous attendant care services for

the plaintiff, except in accordance with this section.

(2) The court must be satisfied that:

(a) there is (or was) a reasonable need for the services to be

provided; and

(b) the need has arisen (or arose) solely because of personal

injury to which the personal injury damages relate; and

(c) the services would not be (or would not have been) provided

to the plaintiff but for the injury; and

(d) the services are provided (or are to be provided) for at least 6

hours per week; and

(e) the services are provided (or are to be provided) over a period

of at least 6 months.

(3) If the services were provided during a quarter for which, at the

time the award was made, the amount of average weekly earnings

was ascertainable, the court must not award as personal injury

damages for the services:

(a) if the services were provided for at least 40 hours per week—

an amount per week that exceeds average weekly earnings

for that quarter; or

(b) if the services were provided for less than 40 hours per

week—an amount per hour that exceeds 1/40 of average

weekly earnings for that quarter.

(4) If the services:

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Section 87X

438 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) were provided during a quarter for which, at the time the

award was made, the amount of average weekly earnings was

not ascertainable; or

(b) are to be provided after the time the award was made;

the court must not award as personal injury damages for the

services:

(c) if the services were provided for at least 40 hours per week—

an amount per week that exceeds average weekly earnings

for the quarter that, at the time the award was made, was the

most recent quarter for which the amount of average weekly

earnings was ascertainable; or

(d) if the services were provided for less than 40 hours per

week—an amount per hour that exceeds 1/40 of average

weekly earnings for that quarter.

(5) Gratuitous attendant care services are services that one person

provides to another person:

(a) that:

(i) are of a domestic nature; or

(ii) relate to nursing; or

(iii) aim to alleviate the consequences of a personal injury;

and

(b) for which the other person has not paid or is not liable to pay.

87X Personal injury damages for loss of plaintiff’s capacity to

provide gratuitous attendant care services

(1) A court must not, in a proceeding to which this Part applies, award

personal injury damages for loss of the plaintiff’s capacity to

provide gratuitous attendant care services to other persons, except

in accordance with this section.

(2) The court must be satisfied that:

(a) prior to his or her loss of capacity to provide the services, the

plaintiff had provided the services:

(i) for at least 6 hours per week; and

(ii) over a period of at least 6 months; and

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Section 87X

Competition and Consumer Act 2010 439

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the other person would have been entitled, if the plaintiff had

died as a result of the contravention of this Act to which the

award relates, to recover damages under a law of a State or

Territory for loss of the plaintiff’s services.

(3) If the plaintiff would have provided the services during a quarter

for which, at the time the award was made, the amount of average

weekly earnings was ascertainable, the court must not award as

personal injury damages for the services:

(a) if the services would have been provided for at least 40 hours

per week—an amount per week that exceeds average weekly

earnings for that quarter; and

(b) if the services would have been provided for less than 40

hours per week—an amount per hour that exceeds 1/40 of

average weekly earnings for that quarter.

(4) If the plaintiff:

(a) would have provided the services during a quarter for which,

at the time the award was made, the amount of average

weekly earnings was not ascertainable; or

(b) would have provided the services after the time the award

was made;

the court must not award as personal injury damages for the

services:

(c) if the services were provided for at least 40 hours per week—

an amount per week that exceeds average weekly earnings

for the quarter that, at the time the award was made, was the

most recent quarter for which the amount of average weekly

earnings was ascertainable; or

(d) if the services were provided for less than 40 hours per

week—an amount per hour that exceeds 1/40 of average

weekly earnings for that quarter.

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Division 6 Other limits on personal injury damages

Section 87Y

440 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 6—Other limits on personal injury damages

87Y Damages for future economic loss—discount rate

(1) If an award of personal injury damages in a proceeding to which

this Part applies is to include any component, assessed as a lump

sum, for future economic loss of any kind, the present value of that

future economic loss is to be determined by applying:

(a) a discount rate of the percentage prescribed by the

regulations; or

(b) if no percentage is prescribed—a discount rate of 5%.

(2) A regulation made for the purposes of paragraph (1)(a) does not

commence before the end of the period of 6 months starting:

(a) if the regulation is laid before each House of the Parliament

under section 38 of the Legislation Act 2003 on the same

day—on that day; or

(b) if it is laid before each House of the Parliament under that

section on different days—on the later of those days.

(3) Except as provided by this section, this section does not affect any

other law relating to the discounting of sums awarded as damages

or compensation.

87Z Damages for loss of superannuation entitlements

A court must not, in a proceeding to which this Part applies, award

personal injury damages for economic loss due to the loss of

employer superannuation contributions an amount that exceeds the

following amount:

where:

damages for earnings loss are the personal injury damages

payable (in accordance with this Part) for:

Superannuation percentage Damages for earnings loss

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Other limits on personal injury damages Division 6

Section 87ZA

Competition and Consumer Act 2010 441

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(a) any past economic loss due to loss of earnings, or the

deprivation or impairment of earning capacity, on which the

entitlement to those contributions is based; and

(b) any future economic loss due to the deprivation or

impairment of earning capacity on which the entitlement to

those contributions would be based.

superannuation percentage is the highest employer’s charge

percentage for a quarter under section 19 of the Superannuation

Guarantee (Administration) Act 1992.

87ZA Interest on damages

(1) A court must not, in a proceeding to which this Part applies, order

the payment of interest on personal injury damages for:

(a) non-economic loss; or

(b) gratuitous attendant care services for the plaintiff; or

(c) loss of the plaintiff’s capacity to provide gratuitous attendant

care services to other persons.

(2) If, in a proceeding to which this Part applies, a court is satisfied

that interest is payable on personal injury damages of another kind,

the rate of interest to be used in working out the interest is:

(a) the rate of interest prescribed by the regulations; or

(b) if no rate is prescribed—the 10-year benchmark bond rate on

the day on which the court determines the personal injury

damages.

(3) This section does not affect the payment of interest on a debt under

a judgment or order of a court.

(4) In this section:

10-year benchmark bond rate, on a day, means:

(a) if the day occurs on or after 1 March in a particular year and

before 1 September in that year—the Commonwealth

Government 10-year benchmark bond rate:

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Division 6 Other limits on personal injury damages

Section 87ZB

442 Competition and Consumer Act 2010

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(i) as published by the Reserve Bank of Australia in the

Reserve Bank of Australia Bulletin (however

described); and

(ii) applying on the first business day of January in that

year; or

(b) otherwise—the Commonwealth Government 10-year

benchmark bond rate, as so published, applying on the first

business day of July in the preceding year.

business day means a day other than a Saturday, a Sunday or a

public or bank holiday in any State, the Australian Capital

Territory or the Northern Territory.

87ZB Exemplary and aggravated damages

(1) A court must not, in a proceeding to which this Part applies, award

exemplary damages or aggravated damages in respect of death or

personal injury.

(2) This section does not affect whether a court has power to award

exemplary damages or aggravated damages:

(a) otherwise than in respect of death or personal injury; or

(b) in a proceeding other than a proceeding to which this Part

applies.

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Structured settlements Division 7

Section 87ZC

Competition and Consumer Act 2010 443

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Division 7—Structured settlements

87ZC Court may make orders under section 87 for structured

settlements

(1) In a proceeding to which this Part applies, a court may, on the

application of the parties, make an order under section 87

approving a structured settlement, or the terms of a structured

settlement, even though the payment of damages is not in the form

of a lump sum award of damages.

(2) This section does not limit the powers of a court to make an order

under section 87 in a proceeding that is not a proceeding to which

this Part applies.

(3) In this section:

structured settlement means an agreement that provides for the

payment of all or part of an award of damages in the form of

periodic payments funded by an annuity or other agreed means.

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

practices

Division 1 Authorisations (other than section 50 merger authorisations)

Section 87ZP

444 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part VII—Authorisations, notifications and

clearances in respect of restrictive trade

practices

Division 1—Authorisations (other than section 50 merger

authorisations)

87ZP Definitions

(1) In this Division:

authorisation means an authorisation under this Division.

industry code of practice means a code regulating the conduct of

participants in an industry towards other participants in the

industry or towards consumers in the industry.

minor variation, in relation to an authorization, is a single

variation that does not involve a material change in the effect of the

authorization.

(2) A reference in this Division to a proposal of the Commission is a

reference to a notice of the Commission:

(a) so far as the revocation of an authorization is concerned—

under subsection 91B(3); and

(b) so far as the revocation of an authorization and the

substitution of another—under subsection 91C(3).

88 Power of Commission to grant authorisations

(1A) Subject to this Part, the Commission may, upon application by or

on behalf of a corporation, grant an authorisation to the

corporation:

(a) to make a contract or arrangement, or arrive at an

understanding, if a provision of the proposed contract,

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arrangement or understanding would be, or might be, a cartel

provision; or

(b) to give effect to a provision of a contract, arrangement or

understanding if the provision is, or may be, a cartel

provision;

and, while such an authorisation remains in force:

(c) in the case of an authorisation to make a contract or

arrangement, or to arrive at an understanding—

sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not

prevent the corporation from making the contract or

arrangement, or arriving at the understanding, in accordance

with the authorisation; or

(d) in the case of an authorisation to give effect to a provision of

a contract, arrangement or understanding—sections 44ZZRG

and 44ZZRK do not prevent the corporation from giving

effect to the provision in accordance with the authorisation.

(1) Subject to this Part, the Commission may, upon application by or

on behalf of a corporation, grant an authorization to the

corporation:

(a) to make a contract or arrangement, or arrive at an

understanding, where a provision of the proposed contract,

arrangement or understanding would be, or might be, an

exclusionary provision or would have the purpose, or would

have or might have the effect, of substantially lessening

competition within the meaning of section 45; or

(b) to give effect to a provision of a contract, arrangement or

understanding where the provision is, or may be, an

exclusionary provision or has the purpose, or has or may

have the effect, of substantially lessening competition within

the meaning of section 45;

and, while such an authorization remains in force:

(c) in the case of an authorization to make a contract or

arrangement or to arrive at an understanding—

subsection 45(2) does not prevent the corporation from

making the contract or arrangement or arriving at the

understanding in accordance with the authorization and

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Section 88

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giving effect in accordance with the authorization to any

provision of the contract or arrangement so made or of the

understanding so arrived at;

(d) in the case of an authorization to give effect to a provision of

a contract:

(i) the provision is not unenforceable by reason of

subsection 45(1); and

(ii) subsection 45(2) does not prevent the corporation from

giving effect to the provision in accordance with the

authorization; or

(e) in the case of an authorization to give effect to a provision of

an arrangement or understanding—subsection 45(2) does not

prevent the corporation from giving effect to the provision in

accordance with the authorization.

(5) Subject to this Part, the Commission may, upon application by or

on behalf of a person, grant an authorization to the person:

(a) to require the giving of, or to give, a covenant where the

proposed covenant would have the purpose, or would have or

might have the effect, of substantially lessening competition

in a market referred to in paragraph 45B(2)(a); or

(b) to enforce the terms of a covenant;

and, while such an authorization remains in force:

(c) in the case of an authorization to require the giving of, or to

give, a covenant:

(i) the covenant is not unenforceable by reason of

subsection 45B(1); and

(ii) subsection 45B(2) does not apply in relation to the

covenant; or

(d) in the case of an authorization to enforce the terms of a

covenant:

(i) the covenant is not unenforceable by reason of

subsection 45B(1); and

(ii) paragraphs 45B(2)(b) and (c) do not apply in relation to

the covenant.

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(6) An authorization granted by the Commission to a person under any

of the preceding provisions of this section to:

(a) make a contract or arrangement or arrive at an understanding;

(b) give effect to a provision of a contract, arrangement or

understanding;

(c) require the giving of, or give, a covenant; or

(d) enforce the terms of a covenant;

has effect as if it were also an authorization in the same terms to

every other person named or referred to in the application for the

authorization as a party to the contract, arrangement or

understanding or as a proposed party to the proposed contract,

arrangement or understanding, or as a person who is or would be

bound by, or entitled to the benefit of, the covenant or the proposed

covenant, as the case may be.

(6A) Subject to this Part, the Commission may, on application by or on

behalf of a corporation, grant an authorisation to the corporation to

make a particular disclosure of information to which

section 44ZZW or 44ZZX would or might apply. While the

authorisation remains in force, that section does not apply in

relation to the corporation making the disclosure.

(6B) The Commission does not have power to grant an authorisation

under subsection (6A) to a corporation to make a particular

disclosure of information if the disclosure occurred before the

Commission makes a determination in respect of the application.

(6C) An application made to the Commission under subsection (6A) for

an authorisation in relation to a particular disclosure of information

may be expressed to be made also in relation to one or more other

similar disclosures of information. If an application is so

expressed, the Commission may grant a single authorisation in

respect of all the disclosures or may grant separate authorisations

in respect of any one or more of the disclosures.

(7) Subject to this Part, the Commission may, upon application by or

on behalf of a person, grant an authorization to the person, and to

any other person acting in concert with the first-mentioned person,

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to engage in conduct to which section 45D, 45DA or 45DB would

or might apply and, while such an authorization remains in force,

that section does not apply in relation to the engaging in that

conduct by the applicant and by any person acting in concert with

the applicant.

(7A) Subject to this Part, the Commission may, on application by or on

behalf of a person, grant an authorisation to the person to engage in

conduct to which section 45E or 45EA would or might apply.

While the authorisation remains in force, that section does not

apply in relation to the person engaging in that conduct.

(8) Subject to this Part, the Commission may, upon application by or

on behalf of a corporation, grant an authorization to the corporation

to engage in conduct that constitutes or may constitute the practice

of exclusive dealing and, while such an authorization remains in

force, section 47 does not prevent the corporation from engaging in

that conduct in accordance with the authorization.

(8AA) If:

(a) the Commission grants an authorization to a corporation to

engage in particular conduct under subsection (8); and

(b) the particular conduct referred to in the authorization is

conduct expressly required or permitted under a contract, an

arrangement, an understanding or an industry code of

practice;

then:

(c) the authorization has effect as if it were also an authorization

in the same terms to every other person named or referred to

in the application for the authorization as a party or proposed

party to the contract, arrangement, understanding or code;

and

(d) the authorization may be expressed so as to apply to or in

relation to another person who becomes a party to the

contract, arrangement, understanding or code at a time after

the authorization is granted.

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(8AB) For the purposes of subsection (8AA), a reference in that

subsection to a contract, an arrangement, an understanding or an

industry code of practice includes a reference to a proposed

contract, a proposed arrangement, a proposed understanding or a

proposed industry code of practice (as the case requires).

(8A) Subject to this Part, the Commission may, upon application by or

on behalf of a person, grant an authorisation to the person to

engage in conduct that constitutes (or may constitute) the practice

of resale price maintenance. While the authorisation remains in

force, section 48 does not prevent the person from engaging in that

conduct in accordance with the authorisation.

(8B) Subject to this Part, the Commission may, upon application by or

on behalf of a corporation, grant it an authorisation:

(a) to make a dual listed company arrangement; or

(b) to give effect to a provision of a dual listed company

arrangement;

and, while such an authorisation remains in force:

(c) for an authorisation to make a dual listed company

arrangement—section 49 does not prevent the corporation

from:

(i) making the arrangement in accordance with the

authorisation; and

(ii) giving effect, in accordance with the authorisation, to

any provision of the arrangement so made; and

(d) for an authorisation to give effect to a provision of a dual

listed company arrangement—section 49 does not prevent

the corporation from giving effect to the provision in

accordance with the authorisation.

(8C) An authorisation granted by the Commission to a corporation

under subsection (8B) has effect as if it were also an authorisation

in the same terms to the other corporation named or referred to in

the application for the authorisation as a party to the arrangement

or proposed arrangement.

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(8D) Subject to subsection 49(2), the Commission does not have power

to grant an authorisation to a corporation to make a dual listed

company arrangement if the arrangement has been made before the

Commission makes a determination in respect of the application.

(9) Subject to this Part, the Commission may, upon application by or

on behalf of a person, grant an authorisation to the person to

acquire a controlling interest in a body corporate (within the

meaning of section 50A) and, while such an authorisation remains

in force, section 50A does not, to the extent specified in the

authorisation, apply in relation to the acquisition of that controlling

interest.

(10) An authorization to a corporation under subsection (1A) or (1) may

be expressed so as to apply to or in relation to another person who:

(a) in the case of an authorization to make a contract or

arrangement or arrive at an understanding—becomes a party

to the proposed contract or arrangement at a time after it is

made or becomes a party to the proposed understanding at a

time after it is arrived at; or

(b) in the case of an authorization to give effect to a provision of

a contract, arrangement or understanding—becomes a party

to the contract, arrangement or understanding at a time after

the authorization is granted.

(11) An authorization under subsection (5) may be expressed so as to

apply to or in relation to another person who:

(a) in the case of an authorization to require the giving of, or to

give, a covenant—becomes bound by, or entitled to the

benefit of, the proposed covenant at a time after the covenant

is given; or

(b) in the case of an authorization to enforce the terms of a

covenant—becomes bound by, or entitled to the benefit of,

the covenant at a time after the authorization is granted.

(12) The Commission does not have power to grant an authorization to

a corporation to make a contract or arrangement, to arrive at an

understanding or to require the giving of, or to give, a covenant if

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the contract or arrangement has been made, the understanding has

been arrived at or the covenant has been given before the

Commission makes a determination in respect of the application.

(13) An application made to the Commission under this section for an

authorization in relation to a particular contract or proposed

contract (including an application mentioned in subsection (8AA))

may be expressed to be made also in relation to another contract or

proposed contract that is or will be, or in relation to two or more

other contracts or proposed contracts that are or will be, in similar

terms to the first-mentioned contract or proposed contract and,

where an application is so expressed, the Commission may grant a

single authorization in respect of all the contracts or proposed

contracts or may grant separate authorizations in respect of any one

or more of the contracts or proposed contracts.

(14) Where an application made to the Commission under this section

for an authorization in relation to a particular contract or proposed

contract is expressed in accordance with subsection (13) to be

made also in relation to another contract or contracts or proposed

contract or proposed contracts:

(a) the application shall set out:

(i) the names of the parties to each other contract; and

(ii) the names of the parties to each other proposed contract

where those names are known to the applicant at the

time when the application is made; and

(b) if an authorization is granted in respect of a proposed

contract the names of the parties to which were not so known

to the applicant, the authorization shall, by force of this

subsection, be deemed to be expressed to be subject to a

condition that any party to the contract will, when so required

by the Commission, furnish to the Commission the names of

all the parties to the contract.

(15) In subsections (13) and (14):

(a) contract includes an arrangement, understanding, industry

code of practice or covenant and proposed contract has a

corresponding meaning; and

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(b) the reference to the parties to a contract or proposed contract

shall, for the purposes of the application of those subsections

in relation to a covenant or proposed covenant by reason of

paragraph (a) of this subsection, be read as a reference to the

persons who are or will be, or but for subsection 45B(1)

would be, respectively bound by, or entitled to the benefit of,

the covenant or proposed covenant.

(16) A corporation that has made an application to the Commission for

an authorisation, or a person other than a corporation who has

made an application to the Commission for an authorisation under

subsection (9), may at any time, by notice in writing to the

Commission, withdraw the application.

89 Procedure for applications and the keeping of a register

(1) To be valid, an application for an authorisation, a minor variation

of an authorisation, a revocation of an authorisation, or a

revocation of an authorisation and the substitution of another

authorisation, must:

(a) be in a form prescribed by the regulations and contain the

information required by the form; and

(b) be accompanied by any other information or documents

prescribed by the regulations; and

(c) be accompanied by the fee (if any) prescribed by the

regulations.

(1A) If the Commission receives a purported application that it

considers is not a valid application, it must, within 5 business days

of receiving the purported application, give the person who made

the purported application a written notice:

(a) stating that the person has not made a valid application; and

(b) giving reasons why the purported application does not

comply with this Division.

(1B) For the purposes of subsection (1A), business day means a day that

is not a Saturday, a Sunday or a public holiday in the Australian

Capital Territory.

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(2) If the Commission receives an application referred to in

subsection (1), the Commission must cause notice of the receipt of

that application to be made public in such manner as it thinks fit.

(3) The Commission must keep a register of:

(a) applications for authorizations; and

(b) applications for minor variations of authorizations; and

(c) applications for, or the Commission’s proposals for, the

revocation of authorizations; and

(d) applications for, or the Commission’s proposals for, the

revocation of authorizations and the substitution of other

authorizations;

including applications that have been withdrawn or proposals that

have been abandoned.

(4) Subject to this section, the register kept under subsection (3) shall

include:

(a) any document furnished to the Commission in relation to an

application or proposal referred to in subsection (3);

(aa) any draft determination, and any summary of reasons, by the

Commission that is furnished to a person under section 90A,

or under that section as applied by section 91C;

(ab) any record of a conference made in accordance with

subsection 90A(8), or with that subsection as applied by

section 91C, and any certificate in relation to a conference

given under subsection 90A(9), or under that subsection as so

applied;

(b) particulars of any oral submission made to the Commission

in relation to such an application or proposal; and

(c) the determination of the Commission on such an application

or proposal and the statement of the reasons given by the

Commission for that determination.

(5) Where a person furnishes a document to the Commission in

relation to an application or proposal referred to in subsection (3)

or makes an oral submission to the Commission in relation to such

an application or proposal, he or she may, at the time when the

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document is furnished or the submission is made, request that the

document or a part of the document, or that particulars of the

submission or of part of the submission, be excluded from the

register kept under subsection (3) by reason of the confidential

nature of any of the matters contained in the document or

submission.

(5A) Where such a request is made:

(a) if the document or the part of the document, or the

submission or the part of the submission, to which the

request relates contains particulars of:

(i) a secret formula or process;

(ii) the cash consideration offered for the acquisition of

shares in the capital of a body corporate or assets of a

person; or

(iii) the current costs of manufacturing, producing or

marketing goods or services;

the Commission shall exclude the document or the part of the

document, or particulars of the submission or of the part of

the submission, as the case may be, from the register kept

under subsection (3); and

(b) in any other case—the Commission may, if it is satisfied that

it is desirable to do so by reason of the confidential nature of

the matters contained in the document or the part of the

document, or in the submission or the part of the submission,

exclude the document or the part of the document, or

particulars of the submission or of the part of the submission,

as the case may be, from that register.

(5B) If the Commission refuses a request to exclude a document or a

part of a document from the register kept under subsection (3), the

Commission shall, if the person who furnished the document to the

Commission so requires, return the document or part of the

document to him or her and, in that case, paragraph (4)(a) does not

apply in relation to the document or part of the document.

(5C) If the Commission refuses a request to exclude particulars of an

oral submission or of part of an oral submission from the register

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kept under subsection (3), the person who made the submission

may inform the Commission that he or she withdraws the

submission or that part of the submission and, in that case,

paragraph (4)(b) does not apply in relation to the submission or

that part of the submission, as the case may be.

(5D) Where the Commission is satisfied that it is desirable to do so for

any reason other than the confidential nature of matters contained

in a document or submission, the Commission may exclude a

document or part of a document referred to in paragraph (4)(a) or

particulars referred to in paragraph (4)(b) from the register kept

under subsection (3).

(5E) If a person requests, in accordance with subsection (5) that a

document or a part of a document, or that particulars of a

submission or of part of a submission, be excluded from the

register kept under subsection (3), the document or part of the

document, or particulars of the submission or of the part of the

submission, shall not be included in that register until the

Commission has made a determination in relation to the request.

(6) A document shall not be included in the register kept under

subsection (3) if a direction in relation to that document was in

force under paragraph 22(1)(b) of this Act immediately before the

commencement of the Trade Practices Amendment Act 1977.

90 Determination of applications for authorisations

(1) The Commission shall, in respect of an application for an

authorization:

(a) make a determination in writing granting such authorization

as it considers appropriate; or

(b) make a determination in writing dismissing the application.

(2) The Commission shall take into account any submissions in

relation to the application made to it by the applicant, by the

Commonwealth, by a State or by any other person.

Note: Alternatively, the Commission may rely on consultations undertaken

by the AEMC: see section 90B.

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(4) The Commission shall state in writing its reasons for a

determination made by it.

(5) Before making a determination in respect of an application for an

authorization the Commission shall comply with the requirements

of section 90A.

Note: Alternatively, the Commission may rely on consultations undertaken

by the AEMC: see section 90B.

(5A) The Commission must not make a determination granting an

authorisation under subsection 88(1A) in respect of a provision of a

proposed contract, arrangement or understanding that would be, or

might be, a cartel provision, unless the Commission is satisfied in

all the circumstances:

(a) that the provision would result, or be likely to result, in a

benefit to the public; and

(b) that the benefit would outweigh the detriment to the public

constituted by any lessening of competition that would result,

or be likely to result, if:

(i) the proposed contract or arrangement were made, or the

proposed understanding were arrived at; and

(ii) the provision were given effect to.

(5B) The Commission must not make a determination granting an

authorisation under subsection 88(1A) in respect of a provision of a

contract, arrangement or understanding that is or may be a cartel

provision, unless the Commission is satisfied in all the

circumstances:

(a) that the provision has resulted, or is likely to result, in a

benefit to the public; and

(b) that the benefit outweighs or would outweigh the detriment

to the public constituted by any lessening of competition that

has resulted, or is likely to result, from giving effect to the

provision.

(5C) The Commission must not make a determination granting an

authorisation under subsection 88(6A) in respect of a proposed

disclosure of information to which section 44ZZW would or might

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apply, unless the Commission is satisfied in all the circumstances

that the proposed disclosure would result, or be likely to result, in

such a benefit to the public that the proposed disclosure should be

allowed to be made.

(5D) The Commission must not make a determination granting an

authorisation under subsection 88(6A) in respect of a proposed

disclosure of information to which section 44ZZX would or might

apply, unless the Commission is satisfied in all the circumstances:

(a) that the proposed disclosure would result, or be likely to

result, in a benefit to the public; and

(b) that the benefit would outweigh the detriment to the public

constituted by any lessening of competition that would result,

or be likely to result, if the corporation so disclosed the

information.

(6) The Commission shall not make a determination granting an

authorization under subsection 88(1), (5) or (8) in respect of a

provision (not being a provision that is or may be an exclusionary

provision) of a proposed contract, arrangement or understanding, in

respect of a proposed covenant, or in respect of proposed conduct

(other than conduct to which subsection 47(6) or (7) applies),

unless it is satisfied in all the circumstances that the provision of

the proposed contract, arrangement or understanding, the proposed

covenant, or the proposed conduct, as the case may be, would

result, or be likely to result, in a benefit to the public and that that

benefit would outweigh the detriment to the public constituted by

any lessening of competition that would result, or be likely to

result, if:

(a) the proposed contract or arrangement were made, or the

proposed understanding were arrived at, and the provision

concerned were given effect to;

(b) the proposed covenant were given, and were complied with;

or

(c) the proposed conduct were engaged in;

as the case may be.

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(7) The Commission shall not make a determination granting an

authorization under subsection 88(1) or (5) in respect of a

provision (not being a provision that is or may be an exclusionary

provision) of a contract, arrangement or understanding or, in

respect of a covenant, unless it is satisfied in all the circumstances

that the provision of the contract, arrangement or understanding, or

the covenant, as the case may be, has resulted, or is likely to result,

in a benefit to the public and that that benefit outweighs or would

outweigh the detriment to the public constituted by any lessening

of competition that has resulted, or is likely to result, from giving

effect to the provision or complying with the covenant.

(8) The Commission shall not:

(a) make a determination granting:

(i) an authorization under subsection 88(1) in respect of a

provision of a proposed contract, arrangement or

understanding that is or may be an exclusionary

provision; or

(ii) an authorization under subsection 88(7) or (7A) in

respect of proposed conduct; or

(iii) an authorization under subsection 88(8) in respect of

proposed conduct to which subsection 47(6) or (7)

applies; or

(iv) an authorisation under subsection 88(8A) for proposed

conduct to which section 48 applies;

unless it is satisfied in all the circumstances that the proposed

provision or the proposed conduct would result, or be likely

to result, in such a benefit to the public that the proposed

contract or arrangement should be allowed to be made, the

proposed understanding should be allowed to be arrived at, or

the proposed conduct should be allowed to take place, as the

case may be; or

(b) make a determination granting an authorization under

subsection 88(1) in respect of a provision of a contract,

arrangement or understanding that is or may be an

exclusionary provision unless it is satisfied in all the

circumstances that the provision has resulted, or is likely to

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result, in such a benefit to the public that the contract,

arrangement or understanding should be allowed to be given

effect to.

(8A) The Commission must not make a determination granting an

authorisation under subsection 88(8B) to make a dual listed

company arrangement unless it is satisfied in all the circumstances

that the making of the arrangement would result, or be likely to

result, in such a benefit to the public (see subsection (9A)) that the

arrangement should be allowed to be made.

(8B) The Commission must not make a determination granting an

authorisation under subsection 88(8B) to give effect to a provision

of a dual listed company arrangement unless it is satisfied in all the

circumstances that the giving effect to the provision would result,

or be likely to result, in such a benefit to the public (see

subsection (9A)) that the provision should be allowed to be given

effect to.

(9) The Commission shall not make a determination granting an

authorization under subsection 88(9) in respect of the acquisition

of a controlling interest in a body corporate within the meaning of

section 50A unless it is satisfied in all the circumstances that the

proposed acquisition would result, or be likely to result, in such a

benefit to the public (see subsection (9A)) that the acquisition

should be allowed to take place.

(9A) In determining what amounts to a benefit to the public for the

purposes of subsections (8A), (8B) and (9):

(a) the Commission must regard the following as benefits to the

public (in addition to any other benefits to the public that

may exist apart from this paragraph):

(i) a significant increase in the real value of exports;

(ii) a significant substitution of domestic products for

imported goods; and

(b) without limiting the matters that may be taken into account,

the Commission must take into account all other relevant

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matters that relate to the international competitiveness of any

Australian industry.

(10) If the Commission does not determine an application for an

authorisation (other than an application for an authorisation under

subsection 88(9)) within the relevant period, then it is taken to have

granted the application at the end of that period.

(10A) For the purposes of subsection (10), the relevant period is the

period of 6 months beginning on the day the Commission received

the application. However, if, before the end of that 6 month period:

(a) the Commission has prepared a draft determination under

subsection 90A(1) in relation to the application; and

(b) the Commission determines in writing that that period is

extended by a specified period of not more than 6 months;

and

(c) the applicant agrees to that period being so extended;

the relevant period is that period as so extended.

(11) Subject to subsections (12) and (13), if the Commission does not

determine an application for an authorisation under

subsection 88(9) within:

(a) 30 days from the day on which the application is received by

the Commission; or

(b) if the Commission, before the end of that period of 30 days,

gives to the applicant a notice in writing requesting the

applicant to give to the Commission additional information

relevant to the determination of the application—the period

consisting of 30 days from the day on which the application

is received by the Commission increased by the number of

days in the period commencing on the day on which the

notice is given to the applicant and ending on the day on

which the applicant gives to the Commission such of the

additional information as the applicant is able to provide;

the Commission shall be deemed to have granted, at the end of that

period, the authorisation applied for.

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(11A) The Commission may, within the 30 day period mentioned in

subsection (11), notify the applicant in writing that the

Commission considers that the period should be extended to 45

days due to the complexity of the issues involved. If the

Commission so notifies the applicant, the references in

subsection (11) to 30 days are to be treated as references to 45

days.

(12) If the applicant for an authorization informs the Commission in

writing before the expiration of the period referred to in

subsection (11) (in this subsection and in subsection (13) referred

to as the base period) that the applicant agrees to the Commission

taking a specified longer period for the determination of the

application, a reference to that longer period shall be deemed for

the purposes of that application to be substituted in subsection (11)

for the reference in that subsection to the base period.

(13) For the purposes of any application of subsection (12), a reference

in that subsection to the base period shall, if a reference to another

period is deemed by any other application or applications of that

subsection to have been substituted in subsection (11) for the

reference in subsection (11) to the base period, be construed as a

reference to that other period.

(14) If a person to whom a notice has been sent under

subsection 90A(2) in relation to a draft determination in respect of

an application for an authorization notifies the Commission in

accordance with subsection 90A(6) that he or she wishes the

Commission to hold a conference in relation to the draft

determination, the relevant period (worked out under

subsection (10A) of this section) shall be deemed to be increased

by a period equal to the period commencing on the day on which

the first notification in relation to the draft determination was

received by the Commission and ending on the seventh day after

the day specified in the certificate given by a member of the

Commission in pursuance of subsection 90A(9) as the day on

which the conference terminated.

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(15) Where a party to a joint venture makes at the one time two or more

applications for authorizations (other than an application for an

authorisation under subsection 88(9)), being applications each of

which deals with a matter relating to the joint venture:

(a) the Commission shall not make a determination in respect of

any one of those applications unless it also makes a

determination or determinations at the same time in respect

of the other application or other applications; and

(b) if the Commission does not make a determination in respect

of any one of the applications within the relevant period

(worked out under subsection (10A)) in relation to that

application, the Commission shall be deemed to have

granted, at the expiration of that period, all the authorizations

applied for.

90A Commission to afford opportunity for conference before

determining application for authorisation

(1) Before determining an application for an authorization (other than

an application for an authorisation under subsection 88(9)), the

Commission shall prepare a draft determination in relation to the

application.

(2) The Commission shall, by notice in writing sent to the applicant

and to each other interested person, invite the applicant or other

person to notify the Commission, within 14 days after a date fixed

by the Commission being not earlier than the day on which the

notice is sent, whether the applicant or other person wishes the

Commission to hold a conference in relation to the draft

determination.

(3) If:

(a) the draft determination provides for the granting of the

application unconditionally; and

(b) no person has made a written submission to the Commission

opposing the application;

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each notice by the Commission under subsection (2) shall inform

the person to whom the notice is sent that the draft determination

so provides.

(4) If:

(a) the draft determination does not provide for the granting of

the application or provides for the granting of the application

subject to conditions; or

(b) the draft determination provides for the granting of the

application unconditionally but a written submission has, or

written submissions have, been made to the Commission

opposing the application;

the Commission shall send with each notice under subsection (2) a

copy of the draft determination and:

(c) in a case to which paragraph (a) applies—a summary of the

reasons why the Commission is not satisfied that the

application should be granted or why it is not satisfied that

the application should be granted unconditionally; or

(d) in a case to which paragraph (b) applies—a summary of the

reasons why it is satisfied that the application should be

granted unconditionally.

(5) If each of the persons to whom a notice was sent under

subsection (2):

(a) notifies the Commission within the period of 14 days

mentioned in that subsection that he or she does not wish the

Commission to hold a conference in relation to the draft

determination; or

(b) does not notify the Commission within that period that he or

she wishes the Commission to hold such a conference;

the Commission may make the determination at any time after the

expiration of that period.

(6) If any of the persons to whom a notice was sent under

subsection (2) notifies the Commission in writing within the period

of 14 days mentioned in that subsection that he or she wishes the

Commission to hold a conference in relation to the draft

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determination, the Commission shall appoint a date (being not later

than 30 days after the expiration of that period), time and place for

the holding of the conference and give notice of the date, time and

place so appointed to each of the persons to whom a notice was

sent under subsection (2).

(7) At the conference:

(a) the Commission shall be represented by a member or

members of the Commission (being a member or members

who participated in the preparation of the draft

determination) nominated by the Chairperson; and

(b) each person to whom a notice was sent under subsection (2)

and any other interested person whose presence at the

conference is considered by the Commission to be

appropriate is entitled to attend and participate personally or,

in the case of a body corporate, may be represented by a

person who, or by persons each of whom, is a director,

officer or employee of the body corporate; and

(c) a person participating in the conference in accordance with

paragraph (a) or (b) is entitled to have another person or other

persons present to assist him or her but a person who so

assists another person at the conference is not entitled to

participate in the discussion; and

(e) no other person is entitled to be present.

(8) A member of the Commission participating in the conference shall

make such record of the discussions as is sufficient to set out the

matters raised by the persons participating in the conference.

(9) The member of the Commission who represents the Commission at

the conference, or, if the Commission is represented by more than

one member of the Commission, one of those members appointed

by the Chairperson:

(a) may exclude from the conference any person who uses

insulting language at the conference, creates, or takes part in

creating or continuing, a disturbance at the conference or

repeatedly interrupts the conference;

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(b) may terminate the conference when he or she is of the

opinion that a reasonable opportunity has been given for the

expression of the views of persons participating in the

conference (other than persons excluded from the conference

under paragraph (a)); and

(c) shall give a certificate certifying the day on which the first

notification under subsection (6) in relation to the draft

determination was received by the Commission and the day

on which the conference terminated;

and any such certificate shall be received in all courts as prima

facie evidence of the matters certified.

(10) A document purporting to be a certificate referred to in

subsection (9) shall, unless the contrary is established, be deemed

to be such a certificate and to have been duly given.

(11) The Commission shall take account of all matters raised at the

conference and may at any time after the termination of the

conference make a determination in respect of the application.

(12) For the purposes of this section, interested person means a person

who has notified the Commission in writing that he or she, or a

specified unincorporated association of which he or she is a

member, claims to have an interest in the application, being an

interest that, in the opinion of the Commission, is real and

substantial.

(13) Where the Commission is of the opinion that two or more

applications for authorizations that are made by the same person,

or by persons being bodies corporate that are related to each other,

involve the same or substantially similar issues, the Commission

may treat the applications as if they constitute a single application

and may prepare one draft determination in relation to the

applications and hold one conference in relation to that draft

determination.

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90B Commission may rely on consultations undertaken by the

AEMC

(1) This section applies if:

(a) an application under section 88, 91A, 91B or 91C is made in

relation to the National Electricity Rules or a provision of the

Rules; and

(b) the AEMC has done the following:

(i) published the Rules or the provision and invited people

to make submissions to it on the Rules or the provision;

(ii) specified the effect of subsection (2) when it published

the Rules or the provision;

(iii) considered any submissions that were received within

the time limit specified by it when it published the Rules

or the provision.

(2) In making a determination under section 90, 91A, 91B or 91C:

(a) the Commission may rely on the process mentioned in

paragraph (1)(b), instead of undertaking the process

mentioned in section 90A, subsection 91A(2), 91B(2) or

91C(2) or (5); and

(b) the Commission may take into account:

(i) any submissions mentioned in subparagraph (1)(b)(iii);

and

(ii) any submissions, in respect of the application, made by

the AEMC; and

(c) despite subsection 90(2), the Commission may disregard any

submissions, in relation to the application, made by the

Commonwealth, by a State, or by any other person (other

than the AEMC).

(3) In this section:

National Electricity Rules means:

(a) the National Electricity Rules, as in force from time to time,

made under the National Electricity Law set out in the

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Schedule to the National Electricity (South Australia) Act

1996 of South Australia; or

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

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

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

91 Grant and variation of authorisations

(1) An authorization may be expressed to be in force for a period

specified in the authorization and, if so expressed, remains in force

for that period only.

(1A) An authorisation, other than an authorisation deemed to have been

granted under subsection 90(10) or (11), comes into force on the

day specified for the purpose in the authorisation, not being a day

earlier than, and an authorisation deemed to have been granted

under subsection 90(10) or (11) comes into force on:

(a) where paragraph (b) or (c) does not apply—the end of the

period in which an application may be made to the Tribunal

for a review of the determination by the Commission of the

application for the authorisation;

(b) if such an application is made to the Tribunal and the

application is not withdrawn—the day on which the Tribunal

makes a determination on the review;

(c) if such an application is made to the Tribunal and the

application is withdrawn—the day on which the application

is withdrawn.

(1B) A minor variation of an authorization comes into force on a day

specified by the Commission in the determination making the

variation, not being a day earlier than:

(a) if neither paragraph (b) nor (c) applies—the end of the period

in which an application may be made to the Tribunal for a

review of the determination of the Commission in respect of

the application for the minor variation; or

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(b) if such an application is made to the Tribunal and the

application is not withdrawn—the day on which the Tribunal

makes a determination on the review; or

(c) if such an application is made to the Tribunal and the

application is withdrawn—the day on which the application

is withdrawn.

(1C) If an authorization (the prior authorization) is revoked and another

authorization is made in substitution for it, that other authorization

comes into force on the day specified for the purpose in that other

authorization, not being a day earlier than:

(a) if neither paragraph (b) nor (c) applies—the end of the period

in which an application may be made to the Tribunal for a

review of an application, or the Commission’s proposal, for

the revocation of the prior authorization and the substitution

of that other authorization; or

(b) if such an application is made to the Tribunal and the

application is not withdrawn—the day on which the Tribunal

makes a determination on the review; or

(c) if such an application is made to the Tribunal and the

application is withdrawn—the day on which the application

is withdrawn.

(2) If the Commission considers that it is appropriate to do so:

(a) for the purpose of enabling due consideration to be given to:

(i) an application for an authorization; or

(ii) an application for a minor variation of an authorization;

or

(iii) an application for the revocation of an authorization and

the substitution of a new one; or

(b) pending the expiration of the time allowed for the making of

an application to the Tribunal for review of a determination

by the Commission of an application referred to in

paragraph (a) and, if such an application for a review is

made, pending the making of a determination by the Tribunal

on the review; or

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(c) for any other reason;

the Commission may at any time:

(d) in the case of an application for an authorization—grant an

authorization that is expressed to be an interim authorization;

and

(e) in the case of an application for a minor variation of an

authorization—grant an authorization that is expressed to be

an interim authorization dealing only with the matter the

subject of the application for a variation; and

(f) in the case of an application for the revocation of an

authorization and the substitution of another—suspend the

operation of the authorization sought to be revoked and grant

an authorization that is expressed to be an interim

authorization in substitution for the authorization suspended.

(2AA) An authorization granted under paragraph 91(2)(d), (e) or (f) and

expressed to be an interim authorization comes into force on such a

date, not being a date before the grant of the interim authorization,

as is specified by the Commission in the interim authorization.

(2AB) The Commission may, at any time, revoke an authorization that is

expressed to be an interim authorization and, where that interim

authorization is in substitution for an authorization the operation of

which has been suspended, the revocation of the interim

authorization has the effect of reviving the operation of the

suspended authorization.

(2A) Subsections 90(4) to (9), inclusive, do not apply in relation to an

authorization that is expressed to be an interim authorization.

(3) An authorization may be expressed to be subject to such conditions

as are specified in the authorization.

91A Minor variations of authorizations

(1) A person to whom an authorization was granted, or another person

on behalf of such a person, may apply to the Commission for a

minor variation of the authorization.

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(2) On receipt of an application, the Commission must, if it is satisfied

that the variation sought in the application is a minor variation, by

notice in writing given to any persons who appear to the

Commission to be interested:

(a) indicate the nature of the variation applied for; and

(b) invite submissions in respect of the variation within a period

specified by the Commission.

Note: Alternatively, the Commission may rely on consultations undertaken

by the AEMC: see section 90B.

(3) After considering the application and any submissions received

within the period specified, the Commission may make a

determination in writing varying the authorization or dismissing

the application.

(4) The Commission must not make a determination varying an

authorization to which, if it were a new authorization,

subsection 90(5A), (5B), (5D), (6) or (7) would apply, unless the

Commission is satisfied that, in all the circumstances, the variation

would not result, or would be likely not to result, in a reduction in

the extent to which the benefit to the public of the authorization

outweighs any detriment to the public caused by the authorization.

(5) The Commission must not make a determination varying an

authorization to which, if it were a new authorization,

subsection 90(5C), (8), (8A), (8B) or (9) would apply, unless the

Commission is satisfied that, in all the circumstances, the variation

would not result, or would be likely not to result, in a reduction in

the benefit to the public that arose from the original authorization.

(6) Nothing in this section prevents a person from applying for 2 or

more variations in the same application.

(7) If:

(a) a person applies for 2 or more variations:

(i) at the same time; or

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(ii) in such close succession that the variations could

conveniently be dealt with by the Commission at the

same time; and

(b) the Commission is satisfied that the combined effect of those

variations, if all were granted, would not involve a material

change in the effect of the authorization;

the Commission may deal with all of those variations together as if

they were a single minor variation.

(8) An application for a minor variation may be withdrawn by notice

in writing to the Commission at any time.

91B Revocation of an authorization

(1) A person to whom an authorization was granted, or another person

on behalf of such a person, may apply to the Commission for a

revocation of the authorization.

(2) On receipt of such an application, the Commission must, by notice

in writing given to any persons who appear to the Commission to

be interested:

(a) indicate that the revocation of the authorization has been

applied for; and

(b) indicate the basis on which the revocation has been applied

for; and

(c) invite submissions in respect of the revocation within a

period specified by the Commission.

Note: Alternatively, the Commission may rely on consultations undertaken

by the AEMC: see section 90B.

(3) If, at any time after granting an authorization, it appears to the

Commission that:

(a) the authorization was granted on the basis of evidence or

information that was false or misleading in a material

particular; or

(b) a condition to which the authorization was expressed to be

subject has not been complied with; or

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(c) there has been a material change of circumstances since the

authorization was granted;

the Commission may, by notice in writing given to any persons

who appear to the Commission to be interested:

(d) inform those persons that it is considering the revocation of

the authorization; and

(e) indicate the basis on which the revocation is being proposed;

and

(f) invite submissions in respect of the revocation within a

period specified by the Commission.

(4) After considering any submissions invited under subsection (2) or

(3) that are received within the period specified by the Commission

under that subsection, the Commission may make a determination

in writing:

(a) revoking the authorization; or

(b) deciding not to revoke the authorization.

(5) If an objection to the revocation is included in any submission

(a) that was invited under subsection (2) or (3); and

(b) that is received within the period specified by the

Commission under that subsection;

the Commission must not make a determination revoking the

authorization unless the Commission is satisfied that it would, if

the authorization had not already been granted, be prevented under

subsection 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) or (9)

from making a determination granting the authorization in respect

of which the revocation is sought.

(6) An application for revocation may be withdrawn by notice in

writing to the Commission at any time.

(7) The Commission may disregard any objection that, in its opinion,

is either vexatious or frivolous.

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Authorisations (other than section 50 merger authorisations) Division 1

Section 91C

Competition and Consumer Act 2010 473

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

91C Revocation of an authorization and substitution of a

replacement

(1) A person to whom an authorization was granted, or another person

on behalf of such a person, may apply to the Commission for a

revocation of the authorization and the substitution of a new

authorization for the one revoked.

(2) On receipt of such an application, the Commission must, by notice

in writing given to any persons who appear to the Commission to

be interested:

(a) indicate that the revocation of the authorization, and the

substitution of another authorization for it, has been applied

for; and

(b) indicate the basis upon which the revocation and substitution

has been applied for and the nature of the substituted

authorization so applied for; and

(c) invite submissions in respect of the revocation and

substitution within a period specified by the Commission.

Note: Alternatively, the Commission may rely on consultations undertaken

by the AEMC: see section 90B.

(3) If, at any time after granting an authorization, it appears to the

Commission that:

(a) the authorization was granted on the basis of evidence or

information that was false or misleading in a material

particular; or

(b) a condition to which the authorization was expressed to be

subject has not been complied with; or

(c) there has been a material change of circumstances since the

authorization was granted;

the Commission may, by notice in writing given to any persons

who appear to be interested:

(d) inform those persons that it is considering the revocation of

the authorization and the substitution of a new authorization;

and

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Division 1 Authorisations (other than section 50 merger authorisations)

Section 91C

474 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(e) indicate the basis on which the revocation and substitution is

being proposed and the nature of the substituted authorization

proposed; and

(f) invite submissions in respect of the proposed action within a

period specified by the Commission.

(4) After considering any submissions invited under subsection (2) or

(3) in relation to an authorization that are received within the

period specified by the Commission under that subsection and after

compliance with the requirements of section 90A in accordance

with subsection (5), the Commission may make a determination in

writing:

(a) revoking the authorization and granting another such

authorization that it considers appropriate, in substitution for

it; or

(b) deciding not to revoke the authorization.

(5) Before making a determination under subsection (4) in relation to

an application, or a proposal, for the revocation of an authorization

and the substitution of another, the Commission must comply with

the requirements of section 90A.

Note: Alternatively, the Commission may rely on consultations undertaken

by the AEMC: see section 90B.

(6) For the purposes of complying with section 90A in accordance

with subsection (5), section 90A has effect:

(a) as if the reference in subsection (1) to an application for an

authorization (other than an application for an authorization

under subsection 88(9)) were a reference to an application, or

to a proposal, for the revocation of an authorization (other

than an authorization granted on an application granted under

subsection 88(9)) and the substitution of another

authorization; and

(b) as if references in other provisions of that section to an

application, or to an application for an authorization, were

references either to an application, or to a proposal, for the

revocation of an authorization and the substitution of another;

and

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Section 91C

Competition and Consumer Act 2010 475

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(c) as if subsection 90A(2) had provided, in its operation in

relation to a proposal for the revocation of an authorization

and the substitution of another, that:

(i) the reference to the applicant and to each other

interested person were a reference only to each

interested person; and

(ii) each reference to the applicant or other person were a

reference only to the other person.

(7) The Commission must not make a determination revoking an

authorization and substituting another authorization unless the

Commission is satisfied that it would not be prevented under

subsection 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) or (9)

from making a determination granting the substituted

authorization, if it were a new authorization sought under

section 88.

(8) An application for the revocation of an authorization and the

substitution of another authorization may be withdrawn by notice

in writing to the Commission at any time.

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Division 2 Notifications

Section 93

476 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Notifications

Subdivision A—Exclusive dealing and private disclosure of

pricing information

93 Notification of exclusive dealing or private disclosure of pricing

information

(1) Subject to subsection (2), a corporation that engages, or proposes

to engage, in conduct of a kind referred to in section 44ZZW or

subsection 47(2), (3), (4), (5), (6), (7), (8) or (9) may give to the

Commission a notice setting out particulars of the conduct or

proposed conduct.

(1A) To be valid, a notice under subsection (1) must:

(a) be in a form prescribed by the regulations and contain the

information required by the form; and

(b) be accompanied by any other information or documents

prescribed by the regulations; and

(c) be accompanied by the fee (if any) prescribed by the

regulations.

(2) A corporation may not give a notice for conduct or proposed

conduct if:

(a) the corporation applied for an authorisation for the conduct

or proposed conduct; and

(b) the Commission or the Trade Practices Commission made a

determination dismissing the application; and

(c) either:

(i) the Tribunal or the Trade Practices Tribunal made a

determination on an application for a review of a

determination described in paragraph (b); or

(ii) the time for making such an application for review has

ended without the making of an application.

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Notifications Division 2

Section 93

Competition and Consumer Act 2010 477

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2A) In subsection (2):

Trade Practices Commission means the Trade Practices

Commission established by section 6A of this Act as in force

immediately before this subsection commenced.

Trade Practices Tribunal means the Trade Practices Tribunal

continued in existence by section 30 of this Act as in force

immediately before this subsection commenced.

(2B) If the Commission receives a purported notice under subsection (1)

that it considers is not a valid notice, it must, within 5 business

days of receiving the purported notice, give the person who made

the purported notice a written notice:

(a) stating that the person has not given a valid notice; and

(b) giving reasons why the purported notice does not comply

with this Division.

Definition

(2C) In subsection (2B):

business day means a day that is not a Saturday, a Sunday or a

public holiday in the Australian Capital Territory.

(3) If the Commission is satisfied that the engaging by a corporation in

conduct or proposed conduct of a kind described in

subsection 47(2), (3), (4) or (5) or paragraph 47(8)(a) or (b) or

(9)(a), (b) or (c) and referred to in a notice given by the corporation

to the Commission under subsection (1) has or would have the

purpose or has or is likely to have, or would have or be likely to

have, the effect of substantially lessening competition within the

meaning of section 47 and that in all the circumstances:

(a) the conduct has not resulted or is not likely to result, or the

proposed conduct would not result or be likely to result, in a

benefit to the public; or

(b) any benefit to the public that has resulted or is likely to result

from the conduct, or would result or be likely to result from

the proposed conduct, would not outweigh the detriment to

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Section 93

478 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the public constituted by any lessening of competition that

has resulted or is likely to result from the conduct or would

result or be likely to result from the proposed conduct;

the Commission may at any time give notice in writing to the

corporation stating that the Commission is so satisfied and

accompanied by a statement setting out its reasons for being so

satisfied.

(3A) If:

(a) a corporation has notified the Commission under

subsection (1) of conduct or proposed conduct described in

section 44ZZW, subsection 47(6) or (7) or

paragraph 47(8)(c) or (9)(d); and

(b) the Commission is satisfied that the likely benefit to the

public from the conduct or proposed conduct will not

outweigh the likely detriment to the public from the conduct

or proposed conduct;

the Commission may give the corporation a written notice stating

that the Commission is so satisfied.

(3B) The Commission must also give the corporation a written

statement of its reasons for giving notice when the Commission

gives the notice.

(4) Before giving a notice under subsection (3) or (3A) the

Commission shall comply with the requirements of section 93A.

(5) In satisfying itself for the purposes of subsection (3) or (3A) in

relation to any conduct or proposed conduct referred to in a notice

given to the Commission by a corporation under subsection (1), the

Commission shall seek such relevant information as it considers

reasonable and appropriate and may make a decision on the basis

of any information so obtained and any other information furnished

to it by the corporation or any other person or otherwise in its

possession.

(6) A corporation that has given a notice to the Commission under this

section in relation to any conduct or proposed conduct may, at any

time before the Commission has given to the corporation a notice

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Notifications Division 2

Section 93

Competition and Consumer Act 2010 479

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

under subsection (3) or (3A) in relation to the conduct or proposed

conduct, by notice in writing to the Commission, withdraw the

first-mentioned notice.

(7) Where a corporation has given notice to the Commission under

subsection (1):

(a) in the case of a notice given before the expiration of the

period of 3 months commencing on the date of

commencement of the Trade Practices Amendment Act 1977,

the engaging by the corporation in the conduct referred to in

the notice on or after that date and before the giving of the

notice shall not be taken, for the purposes of section 47, to

have had the effect of substantially lessening competition

within the meaning of that section; and

(b) in any case, the engaging by the corporation in the conduct

referred to in the notice after the giving of the notice shall not

be taken, for the purposes of section 47, to have the purpose,

or to have or be likely to have the effect, of substantially

lessening competition within the meaning of that section

unless:

(i) the Commission has given notice to the corporation

under subsection (3) of this section in relation to the

conduct and the conduct takes place more than 30 days

(or such longer period as the Commission by writing

permits) after the day on which the Commission gave

the notice; or

(ii) the notice has been, or is deemed to have been,

withdrawn and the conduct takes place after the day on

which the notice was, or is deemed to have been,

withdrawn.

(7A) A notice under subsection (1) describing conduct or proposed

conduct referred to in section 44ZZW, subsection 47(6) or (7) or

paragraph 47(8)(c) or (9)(d) comes into force:

(a) at the end of a prescribed period that started on the day when

the corporation gave the Commission the notice; or

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Section 93

480 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) if the Commission gives notice to the corporation under

subsection 93A(2) during that period—when the Commission

decides not to give the corporation a notice under

subsection (3A) of this section.

(7B) A notice under subsection (1) describing conduct or proposed

conduct referred to in section 44ZZW, subsection 47(6) or (7) or

paragraph 47(8)(c) or (9)(d) does not come into force:

(a) if the notice is withdrawn, or deemed to be withdrawn, before

it would come into force under subsection (7A); or

(b) if the Commission:

(i) gives notice to the corporation under subsection 93A(2)

during the period described in paragraph (7A)(a); and

(ii) gives notice to the corporation under subsection (3A).

(7C) A notice under subsection (1) describing conduct referred to in

section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or

(9)(d) ceases to be in force:

(a) when the notice is withdrawn or deemed to be withdrawn; or

(b) if the Commission gives the corporation a notice under

subsection (3A)—on the 31st day after the Commission gave

the notice under subsection (3A) or on a later day specified in

writing by the Commission.

(8) Where:

(a) a corporation gives a notice to the Commission under

subsection (1) in relation to any conduct or proposed

conduct;

(b) before or after the notice is given the corporation makes an

application to the Commission for an authorization to engage

in that conduct;

(c) the Commission:

(i) makes a determination dismissing the application; or

(ii) makes a determination granting an authorization in

respect of the application; and

(d) the Tribunal makes a determination on an application for a

review of the determination of the Commission or the time

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Section 93

Competition and Consumer Act 2010 481

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for making such an application for review expires without an

application for review having been made;

the notice shall thereupon be deemed to be withdrawn.

(9) If an application is made to the Tribunal for a review of the giving

of a notice by the Commission under subsection (3) or (3A), a

reference in subsection (7) or paragraph (7C)(b) to the day on

which the Commission gave the notice shall be read as a reference

to:

(a) if the application is withdrawn—the day on which the

application is withdrawn;

(b) if the Tribunal, on the application of the Commission or of

any other person who the Tribunal is satisfied has an interest

in the subject matter of the review, declares that the

application for the review is not being proceeded with by the

applicant with due diligence—the day on which the Tribunal

makes the declaration; or

(c) in any other case—the day on which the Tribunal makes a

determination on the review.

(10) Where:

(a) a corporation has given a notice to the Commission under

subsection (1) in relation to conduct or proposed conduct and

the Commission has given notice to the corporation in

writing under subsection (3) or (3A) in relation to the

conduct or the proposed conduct; or

(b) a notice given by a corporation to the Commission under

subsection (1) in relation to conduct or proposed conduct is

withdrawn or deemed to be withdrawn;

the corporation is not entitled to give a further notice under

subsection (1) to the Commission in relation to the same conduct

or proposed conduct or in relation to conduct or proposed conduct

to the like effect.

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Division 2 Notifications

Section 93AA

482 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision B—Collective bargaining

93AA Definitions

In this Subdivision:

collective bargaining notice means a notice under

subsection 93AB(1A) or (1).

conference notice means a notice under subsection 93A(2).

contract means a contract, arrangement or understanding.

objection notice means a notice under subsection 93AC(1) or (2).

93AB Notification of collective bargaining

Notice to Commission—cartel provisions

(1A) A corporation that:

(a) has made, or proposes to make, a contract (the initial

contract) that contains a cartel provision that:

(i) has the purpose; or

(ii) has or is likely to have the effect;

mentioned in subsection 44ZZRD(2); or

(b) has made, or proposes to make, a contract (the initial

contract) that contains a cartel provision that has the purpose

mentioned in a paragraph of subsection 44ZZRD(3) other

than paragraph (c); or

(c) proposes to give effect to a provision of a contract (the initial

contract) where the provision is a cartel provision that:

(i) has the purpose; or

(ii) has or is likely to have the effect;

mentioned in subsection 44ZZRD(2); or

(d) proposes to give effect to a provision of a contract (the initial

contract) where the provision is a cartel provision that has

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Section 93AB

Competition and Consumer Act 2010 483

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the purpose mentioned in a paragraph of

subsection 44ZZRD(3) other than paragraph (c);

may give the Commission a notice (the collective bargaining

notice) setting out particulars of the contract or proposed contract,

but only if the 3 requirements set out in subsections (2), (3) and (4)

are satisfied.

Note 1: Subsection (6) deals with the form etc. of a collective bargaining

notice.

Note 2: Section 93AD sets out when a collective bargaining notice comes into

force.

Notice to Commission—per se and competition provisions

(1) A corporation that:

(a) has made, or proposes to make, a contract (the initial

contract) containing a provision of the kind referred to in

paragraph 45(2)(a); or

(b) proposes to give effect to a provision of a contract (the initial

contract) where the provision is of the kind referred to in

paragraph 45(2)(b);

may give the Commission a notice (the collective bargaining

notice) setting out particulars of the contract or proposed contract,

but only if the 3 requirements set out in subsections (2), (3) and (4)

are satisfied.

Note 1: Subsection (6) deals with the form etc. of a collective bargaining

notice.

Note 2: Section 93AD sets out when a collective bargaining notice comes into

force.

First—making of initial contract

(2) First, the corporation must have made, or propose to make, the

initial contract with 1 or more persons (the contracting parties)

about:

(a) the supply of particular goods or services to; or

(b) the acquisition of particular goods or services from;

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Section 93AB

484 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

another person (the target) by the corporation and the contracting

parties.

Second—making of contracts with target

(3) Second, the corporation must reasonably expect that it will make 1

or more contracts with the target about:

(a) the supply of 1 or more of those goods or services to; or

(b) the acquisition of 1 or more of those goods or services from;

the target by the corporation.

Third—price of contracts with target

(4) Third, the corporation must reasonably expect that:

(a) in the case where the corporation reasonably expects to make

only 1 contract with the target—the price for the supply or

acquisition of those goods or services under that contract; or

(b) in the case where the corporation reasonably expects to make

2 or more contracts with the target—the sum of the prices for

the supply or acquisition of those goods or services under

those contracts;

will not exceed $3,000,000, or such other amount as is prescribed

by the regulations, in any 12 month period. The regulations may

prescribe different amounts in relation to different industries.

Timing of reasonable expectation

(5) The corporation must have the reasonable expectation referred to

in subsections (3) and (4):

(a) at the time of giving the collective bargaining notice; and

(b) if the initial contract has been made—at the time it was

made.

Form of notice etc.

(6) To be valid, a collective bargaining notice must:

(a) be in a form prescribed by the regulations and contain the

information required by the form; and

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Section 93AB

Competition and Consumer Act 2010 485

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(b) be accompanied by any other information or documents

prescribed by the regulations; and

(c) be accompanied by the fee (if any) prescribed by the

regulations.

Notice given by, or on behalf of, contracting persons

(7) A collective bargaining notice may be expressed to be given on

behalf of one or more of the contracting parties, but only if those

parties could have given the notice on their own behalf. If the

notice is so expressed, then it is also taken to have been given by

those parties.

When a notice may not be given

(8) A corporation may not give a collective bargaining notice in

relation to a contract or proposed contract if:

(a) it has applied for an authorisation in relation to the contract

or proposed contract; and

(b) the Commission has made a determination dismissing the

application; and

(c) either:

(i) the Tribunal has made a determination on an application

for a review of the Commission’s determination; or

(ii) the time for making such an application for review has

ended without the making of an application.

Notice is invalid if given by union etc. on behalf of the corporation

(9) A notice given by a corporation under subsection (1) is not a valid

collective bargaining notice if it is given, on behalf of the

corporation, by:

(a) a trade union; or

(b) an officer of a trade union; or

(c) a person acting on the direction of a trade union.

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Section 93AB

486 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Invalid collective bargaining notice

(10) If the Commission receives a purported collective bargaining

notice that it considers is not a valid collective bargaining notice, it

must, within 5 business days of receiving the purported notice, give

the person who made the purported notice a written notice:

(a) stating that the person has not given a valid collective

bargaining notice; and

(b) giving reasons why the purported collective bargaining

notice does not comply with this Division.

(10A) The Commission must, as soon as practicable after receiving a

valid collective bargaining notice, give a copy of the notice to the

target.

Purpose/effect of a provision

(10B) Subsections 44ZZRD(6), (7), (8) and (10) apply for the purposes of

paragraphs (1A)(a) and (c) in a corresponding way to the way in

which they apply for the purposes of Division 1 of Part IV.

Purpose of a provision

(10C) Subsections 44ZZRD(7), (9) and (11) apply for the purposes of

paragraphs (1A)(b) and (d) in a corresponding way to the way in

which they apply for the purposes of Division 1 of Part IV.

Definition

(11) In this section:

business day means a day that is not a Saturday, a Sunday or a

public holiday in the Australian Capital Territory.

trade union means the following:

(a) an association of employees that is registered as an

organisation, or recognised, under the Fair Work (Registered

Organisations) Act 2009;

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Section 93AC

Competition and Consumer Act 2010 487

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(b) an association of employees that is registered or recognised

as a trade union (however described) under the law of a State

or Territory;

(c) an association of employees a principal purpose of which is

the protection and promotion of the employees’ interests in

matters concerning their employment.

93AC Commission’s objection notice

Commission’s objection notice—cartel provisions or per se

provisions

(1) If a corporation gives the Commission:

(aa) a collective bargaining notice under subsection 93AB(1A) in

relation to a contract, or proposed contract, containing a

cartel provision of the kind referred to in that subsection; or

(a) a collective bargaining notice under subsection 93AB(1) in

relation to a contract, or proposed contract, containing a

provision of the kind referred to in subparagraph 45(2)(a)(i)

or (b)(i) (exclusionary provisions);

then the Commission may, if it is satisfied that any benefit to the

public that has resulted or is likely to result or would result or be

likely to result from the provision does not or would not outweigh

the detriment to the public that has resulted or is likely to result or

would result or be likely to result from the provision, give the

corporation a written notice (the objection notice) stating that it is

so satisfied.

Commission’s objection notice—competition provisions

(2) If a corporation gives the Commission a collective bargaining

notice under subsection 93AB(1) in relation to a contract, or

proposed contract, containing a provision of the kind referred to in

subparagraph 45(2)(a)(ii) or (b)(ii), then the Commission may, if it

is satisfied that:

(a) the provision has or would have the purpose, or has or is

likely to have or would have or be likely to have the effect, of

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Section 93AC

488 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

substantially lessening competition (within the meaning of

section 45); and

(b) in all the circumstances, either:

(i) the provision has not resulted or is not likely to result, or

would not result or be likely to result, in a benefit to the

public; or

(ii) any benefit to the public that has resulted or is likely to

result, or would result or be likely to result, from the

provision does not or would not outweigh the detriment

to the public constituted by any lessening of competition

that has resulted or is likely to result, or would result or

be likely to result, from the provision;

give the corporation a written notice (the objection notice) stating

that it is so satisfied.

Reasons for objection notice

(3) The Commission must, at the time it gives a corporation an

objection notice, give the corporation a written statement of its

reasons for giving the notice.

Conference before objection notice

(4) The Commission must comply with section 93A (conferences

about draft objection notices) before giving an objection notice.

Commission to seek additional information

(5) For the purposes of deciding whether or not to give an objection

notice:

(a) the Commission must seek such relevant information as it

considers reasonable and appropriate; and

(b) the Commission may make a decision on the basis of:

(i) any information so obtained; or

(ii) any other information given to it by the corporation or

any other person; or

(iii) any other information in its possession.

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Section 93AD

Competition and Consumer Act 2010 489

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

93AD When collective bargaining notice comes into force and ceases

to be in force

When collective bargaining notice comes into force

(1) A collective bargaining notice comes into force:

(a) at the end of the period which is 14 days or such longer

period as is prescribed by the regulations, starting on the day

the corporation gave the Commission the notice; or

(b) if the Commission gives the corporation a conference notice

during the period referred to in paragraph (a) and then

decides not to give the corporation an objection notice—

when the Commission makes that decision.

(2) However, a collective bargaining notice does not come into force

if:

(a) it is withdrawn, or taken to be withdrawn, before it would

come into force under subsection (1); or

(b) the Commission gives the corporation a conference notice

during the period referred to in paragraph (1)(a) and then

gives the corporation an objection notice.

Note: Section 93AE deals with the withdrawal of a collective bargaining

notice.

When collective bargaining notice ceases to be in force

(3) A collective bargaining notice ceases to be in force at the earliest

of the following times:

(a) when it is withdrawn or taken to be withdrawn;

(b) if the Commission gives the corporation an objection

notice—on the 31st day after the relevant day or on a later

day specified in writing by the Commission;

(c) at the end of the period of 3 years beginning on the day the

corporation gave the collective bargaining notice.

Note: Section 93AE deals with the withdrawal of a collective bargaining

notice.

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Section 93AE

490 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(4) For the purposes of subsection (3), the relevant day is worked out

in accordance with this table:

Relevant day

In this situation: the relevant day is:

1 If an application is not made to the

Tribunal for a review of the

Commission’s decision to give the

objection notice

the day the Commission gave the notice.

2 If an application is made to the

Tribunal for a review of the

Commission’s decision to give the

objection notice

(a) if the review application is

withdrawn—the day of the

withdrawal; or

(b) if, on the application of the

Commission or any other person who

the Tribunal is satisfied has an

interest in the subject matter of the

review, the Tribunal declares that the

applicant is not proceeding with the

review application with due

diligence—the day of the declaration;

or

(c) in any other case—the day on which

the Tribunal makes a determination

on the review.

93AE Withdrawal of collective bargaining notice

Withdrawal by corporation

(1) A corporation may, by written notice given to the Commission,

withdraw a collective bargaining notice it has given the

Commission.

(2) The corporation may do so at any time before the Commission

gives it an objection notice in relation to the collective bargaining

notice.

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Section 93AEA

Competition and Consumer Act 2010 491

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Deemed withdrawal

(3) If:

(a) a corporation gives the Commission a collective bargaining

notice in relation to a contract or proposed contract; and

(b) before or after the corporation gave the notice, it applies to

the Commission for an authorisation for that contract or

proposed contract; and

(c) the Commission makes a determination either dismissing the

application or granting an authorisation in respect of the

application; and

(d) either:

(i) the Tribunal makes a determination on an application

for a review of the Commission’s determination; or

(ii) the time for making such an application for review ends

without the making of an application;

then the collective bargaining notice is taken to be withdrawn.

93AEA Only 1 collective bargaining notice under

subsection 93AB(1A) may be given

If:

(a) a corporation gives the Commission a collective bargaining

notice under subsection 93AB(1A) in relation to a contract or

proposed contract; and

(b) either:

(i) the Commission gives the corporation an objection

notice in relation to the contract or proposed contract; or

(ii) the collective bargaining notice is taken to be withdrawn

under subsection 93AE(3);

then a further collective bargaining notice under

subsection 93AB(1A) cannot be given by any person in relation to

the same contract or proposed contract or in relation to a contract

or proposed contract to the like effect.

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Section 93AF

492 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

93AF Only 1 collective bargaining notice under subsection 93AB(1)

may be given

If:

(a) a corporation gives the Commission a collective bargaining

notice under subsection 93AB(1) in relation to a contract or

proposed contract; and

(b) either:

(i) the Commission gives the corporation an objection

notice in relation to the contract or proposed contract; or

(ii) the collective bargaining notice is taken to be withdrawn

under subsection 93AE(3);

then the corporation may not give the Commission a further

collective bargaining notice under subsection 93AB(1) in relation

to the same contract or proposed contract or in relation to a

contract or proposed contract to the like effect.

Subdivision C—Conferences

93A Commission to afford opportunity for conference before giving

notice

(1) Before giving a notice under subsection 93(3) or (3A) or 93AC(1)

or (2) in relation to any conduct or proposed conduct, the

Commission shall prepare a draft notice in relation to that conduct

or proposed conduct.

(2) The Commission shall, by notice in writing sent to the corporation

to the conduct or proposed conduct of which the draft notice relates

and to each other interested person, invite the corporation or other

person to notify the Commission, within 14 days after a date fixed

by the Commission being not earlier than the day on which the

notice is sent, whether the corporation or other person wishes the

Commission to hold a conference in relation to the draft notice.

(3) The Commission shall send with each notice under subsection (2) a

copy of the draft notice and a summary of the reasons why it

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Section 93A

Competition and Consumer Act 2010 493

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

proposes to give the notice under subsection 93(3) or (3A) or

93AC(1) or (2).

(4) If each of the persons to whom a notice was sent under

subsection (2):

(a) notifies the Commission in writing within the period of

14 days mentioned in that subsection that the person does not

wish the Commission to hold a conference in relation to the

draft notice; or

(b) does not notify the Commission within that period that he or

she wishes the Commission to hold such a conference;

the Commission must decide after the end of that period whether or

not to give the notice under subsection 93(3) or (3A) or 93AC(1) or

(2).

(5) If any of the persons to whom a notice was sent under

subsection (2) notifies the Commission in writing within the period

of 14 days mentioned in that subsection that he or she wishes the

Commission to hold a conference in relation to the draft notice, the

Commission shall appoint a date (being not later than 30 days after

the expiration of that period), time and place for the holding of the

conference and give notice of the date, time and place so appointed

to each of the persons to whom a notice was sent under

subsection (2).

(6) At the conference:

(a) the Commission shall be represented by a member or

members of the Commission (being a member or members

who participated in the preparation of the draft notice)

nominated by the Chairperson; and

(b) each person to whom a notice was sent under subsection (2)

and any other interested person whose presence at the

conference is considered by the Commission to be

appropriate is entitled to attend and participate personally or,

in the case of a body corporate, may be represented by a

person who, or by persons each of whom, is a director,

officer or employee of the body corporate; and

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494 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) a person participating in the conference in accordance with

paragraph (a) or (b) is entitled to have another person or other

persons present to assist him or her but a person who so

assists another person at the conference is not entitled to

participate in the discussion; and

(e) no other person is entitled to be present.

(7) A member of the Commission participating in the conference shall

make such record of the discussions as is sufficient to set out the

matters raised by the persons participating in the conference.

(8) The member of the Commission who represents the Commission at

the conference, or, if the Commission is represented by more than

one member of the Commission, one of those members appointed

by the Chairperson:

(a) may exclude from the conference any person who uses

insulting language at the conference, creates, or takes part in

creating or continuing, a disturbance at the conference or

repeatedly interrupts the conference;

(b) may terminate the conference when he or she is of the

opinion that a reasonable opportunity has been given for the

expression of the views of persons participating in the

conference (other than persons excluded from the conference

under paragraph (a)); and

(c) shall give a certificate certifying the day on which the first

notification under subsection (5) in relation to the draft notice

was received by the Commission and the day on which the

conference terminated;

and any such certificate shall be received in all courts as prima

facie evidence of the matters certified.

(9) A document purporting to be a certificate referred to in

subsection (8) shall, unless the contrary is established, be deemed

to be such a certificate and to have been duly given.

(10) The Commission must take account of all matters raised at the

conference.

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Section 95

Competition and Consumer Act 2010 495

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(10A) After the conference, the Commission must decide whether or not

to give a notice under subsection 93(3) or (3A) or 93AC(1) or (2).

(11) For the purposes of this section, interested person means a person

who has notified the Commission in writing that he or she, or a

specified unincorporated association of which he or she is a

member, claims to have an interest in the matter, being an interest

that, in the opinion of the Commission, is real and substantial.

(12) Where the Commission is of the opinion that two or more notices

given to the Commission under subsection 93(1) or 93AB(1A) or

(1) by the same person, or by persons being bodies corporate that

are related to each other, deal with substantially similar conduct or

proposed conduct, the Commission may treat the notices as if they

constituted a single notice and may prepare one draft notice in

relation to the notices so given to the Commission and hold one

conference in relation to that draft notice.

Subdivision D—Register of notifications

95 Register of notifications

(1) The Commission shall keep a register containing:

(aa) notices relating to voluntary industry codes given to the

Commission pursuant to regulations made under

section 51AE (including notices that have been withdrawn

pursuant to those regulations); and

(a) draft notices, and summaries of reasons, by the Commission

furnished to any person under section 93A; and

(b) records of conferences made in accordance with

subsection 93A(7) and certificates in relation to conferences

given under subsection 93A(8); and

(c) notices (including notices that have been withdrawn) given to

the Commission under section 93 or 93AB; and

(d) documents furnished to the Commission in relation to such

notices; and

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Section 95

496 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(e) particulars of any oral submissions made to the Commission

in relation to such notices; and

(f) particulars of notices given by the Commission to

corporations in relation to notices given by corporations

under section 93 or 93AB; and

(g) particulars of any permits given by the Commission under

subparagraph 93(7)(b)(i); and

(ga) details of the specification of any day by the Commission

under paragraph 93(7C)(b); and

(gb) details of the specification of any day by the Commission

under paragraph 93AD(3)(b); and

(h) records of proceedings at conferences held under section 65J

or 65M; and

(j) particulars of recommendations made to the Minister by the

Commission under section 65K or 65N.

(2) Where a person furnishes a document to the Commission:

(a) in relation to a notice given to the Commission under

section 93 or 93AB; or

(b) in relation to a conference held under Division 3 of Part XI;

or makes an oral submission to the Commission in relation to the

notice or the conference, he or she may, at the time when the

document is furnished or the submission is made, request that the

document or a part of the document, or that particulars of the

submission or of part of the submission, be excluded from the

register kept under subsection (1) by reason of the confidential

nature of any of the matters contained in the document or

submission.

(3) Where such a request is made:

(a) if the document or part of the document, or the submission or

part of the submission, to which the request relates contains

particulars of:

(i) a secret formula or process;

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Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(ii) the cash consideration offered for the acquisition of

shares in the capital of a body corporate or of assets of a

person; or

(iii) the current costs of manufacturing, producing or

marketing goods or services;

the Commission shall exclude the document or the part of the

document, or particulars of the submission or of the part of

the submission, as the case may be, from the register kept

under subsection (1); and

(b) in any other case—the Commission may, if it is satisfied that

it is desirable to do so by reason of the confidential nature of

matters contained in the document or the part of the

document, or in the submission or the part of the submission,

exclude the document or the part of the document, or

particulars of the submission or of the part of the submission,

as the case may be, from that register.

(4) If the Commission refuses a request to exclude a document or a

part of a document from the register kept under subsection (1), the

Commission shall, if the person who furnished the document to the

Commission so requires, return the document or part of the

document to him or her and, in that case, paragraph (1)(d) does not

apply in relation to the document or part of the document.

(5) Subsection (4) does not apply in relation to a document that was

produced to the Minister or the Commission in pursuance of a

notice under section 65Q or 155.

(6) If the Commission refuses a request to exclude particulars of an

oral submission or of part of an oral submission from the register

kept under subsection (1), the person who made the submission

may inform the Commission that he or she withdraws the

submission or that part of the submission and, in that case,

paragraph (1)(e) does not apply in relation to the submission or that

part of the submission, as the case may be.

(7) Where the Commission is satisfied that it is desirable to do so for

any reason other than the confidential nature of matters contained

in a document or submission, the Commission may exclude a

document or part of a document referred to in paragraph (1)(d) or

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Section 95

498 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

particulars referred to in paragraph (1)(e) from the register kept

under subsection (1).

(8) If a person requests in accordance with subsection (2) that a

document or part of a document, or that particulars of a submission

or of part of a submission, be excluded from the register kept under

subsection (1), the document or the part of the document, or

particulars of the submission or of the part of the submission, shall

not be included in that register until the Commission has made a

determination in relation to the request.

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Merger clearances and authorisations Division 3

Section 95AA

Competition and Consumer Act 2010 499

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Merger clearances and authorisations

Subdivision A—Preliminary

95AA Simplified outline of this Division

This Division is about merger clearances and merger

authorisations.

It relates to section 50: that section prohibits a person acquiring

shares in the capital of a body corporate or assets of another person

if the acquisition would have, or be likely to have, the effect of

substantially lessening competition in a market. If a person has a

clearance or authorisation for the acquisition, section 50 will not

prevent the person from making the acquisition.

The main differences between merger clearances and

authorisations are:

• different bodies decide whether they should be granted;

• different timeframes apply for when the body must make its

decision;

• they have different tests that need to be satisfied for them to

be granted;

• merits review is not available for decisions on authorisations.

For merger clearances (see Subdivision B):

• the Commission grants them;

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Section 95AB

500 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

• it must make its decision whether to grant within 40 business

days (which can be extended if the applicant agrees or the

Commission so decides), and if it does not, the application is

taken to be refused;

• it cannot grant the clearance unless it is satisfied that the

acquisition would not have the effect, or be likely to have the

effect, of substantially lessening competition in a market;

• if it refuses to grant a clearance, or grants a clearance subject

to conditions, then the person who applied for the clearance

may apply to the Tribunal under Division 3 of Part IX for

review of the Commission’s decision.

For merger authorisations (see Subdivision C):

• the Tribunal grants them;

• it must make its decision whether to grant within 3 months

(which can be extended to 6 months in special circumstances),

and if it does not, the application is taken to be refused;

• it cannot grant the authorisation unless it is satisfied that the

acquisition would result, or be likely to result, in such a

benefit to the public that the acquisition should be allowed to

take place.

Subdivision D contains a prohibition on providing false or

misleading information to the Commission or Tribunal under this

Division or Division 3 of Part IX.

95AB Definitions

In this Division:

authorisation means an authorisation granted under this Division.

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Section 95AC

Competition and Consumer Act 2010 501

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

business day means a day that is not a Saturday, a Sunday, or a

public holiday in the Australian Capital Territory.

clearance means a clearance granted under this Division.

merger authorisation register means the register kept under

section 95AZ.

merger clearance register means the register kept under

section 95AH.

minor variation, in relation to a clearance or an authorisation, is a

single variation that does not involve a material change in the

effect of the clearance or authorisation.

Subdivision B—Merger clearances

95AC Commission may grant clearance for a merger

(1) The Commission may grant a clearance to a person:

(a) to acquire shares in the capital of a body corporate; or

(b) to acquire assets of another person.

Note: Section 95AN prohibits the Commission from granting a clearance for

an acquisition unless the Commission is satisfied that the acquisition

would not have the effect, or be likely to have the effect, of

substantially lessening competition.

(2) If the Commission does so, then section 50 does not prevent the

person from acquiring the shares or assets in accordance with the

clearance.

Note: The acquisition will only be protected from the operation of section 50

if it takes place in accordance with the clearance. If it does not, then

section 50 will apply to the acquisition. If the acquisition contravenes

section 50, then the remedies in Part VI will apply (see, for example,

penalties under section 76 and divestiture under section 81).

(3) Without limiting subsection (2), an acquisition will not be in

accordance with a clearance if any conditions of the clearance are

not complied with (whether the conditions are to be complied with

before, during or after the acquisition).

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Section 95AD

502 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

95AD Application for clearance

A person who wants a clearance to acquire shares or assets must

apply to the Commission for it.

95AE Requirements for valid clearance application

(1) To be valid, the application must:

(a) be in a form prescribed by the regulations and contain the

information required by the form; and

(b) be accompanied by such other information or documents as

are prescribed by the regulations; and

(c) be accompanied by the fee (if any) prescribed by the

regulations.

(2) The regulations may prescribe that the application form contain a

requirement that the applicant give an undertaking under

section 87B that the applicant will not make the acquisition while

the application is being considered by the Commission.

95AF Commission to notify if clearance application is invalid

If the Commission receives a purported application that it

considers is not a valid application, it must, within 5 business days

of receiving the purported application, give the person who made

the purported application a written notice:

(a) stating that the person has not made a valid application; and

(b) giving reasons why the purported application does not

comply with this Division.

95AG Application to be published on the internet

After receiving an application for a clearance, the Commission

must:

(a) subject to section 95AI (confidentiality), put a copy of the

application, and accompanying information or documents, on

its website; and

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Section 95AH

Competition and Consumer Act 2010 503

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) by notice on its website, invite submissions in respect of the

application within the period specified by it.

95AH Merger clearance register

(1) The Commission must keep a register (the merger clearance

register) of:

(a) applications for clearances; and

(b) applications for minor variations of clearances; and

(c) applications for, or the Commission’s proposals under

section 95AS for, the revocation of clearances or for the

revocation of clearances and the substitution of other

clearances;

including applications that have been withdrawn or proposals that

have been abandoned.

(2) The register must include:

(a) any document given to the Commission in relation to an

application or proposal referred to in subsection (1); and

(b) particulars of any oral submission made to the Commission

in relation to such an application or proposal; and

(c) the determination of the Commission on such an application

or proposal and the statement of the reasons given by the

Commission for that determination;

unless section 95AI (confidentiality) prevents the inclusion.

95AI Confidentiality claims etc.

Requests for confidential treatment

(1) If a person gives information to the Commission in relation to an

application or proposal referred to in subsection 95AH(1), the

person may, at the time of giving the information, request that the

information be excluded from the merger clearance register and the

Commission’s website because of its confidential nature.

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Section 95AI

504 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Confidentiality claims to be determined first

(2) If such a request is made, the Commission must exclude the

information from the register and its website until it has made a

determination on the request.

When Commission must exclude information—request made

(3) If such a request is made, the Commission must exclude the

information from the register and its website if the information

contains particulars of:

(a) a secret formula or process; or

(b) the cash consideration offered for the acquisition of shares in

the capital of a body corporate or assets of a person; or

(c) the current costs of manufacturing, producing or marketing

goods or services.

When Commission may exclude information—request made

(4) If such a request is made, the Commission may, if it is satisfied

that it is desirable to do so because of the confidential nature of the

information, exclude the information from the register and its

website.

If request refused, document may be withdrawn

(5) If the Commission refuses such a request and the information is

contained in a document, the Commission must, if the person who

gave the document to it so requires, return the document or part of

the document to the person. In that case, it must exclude the

document or the part of the document (as the case requires) from

the register and its website.

If request refused, oral submission may be withdrawn

(6) If the Commission refuses such a request and the information was

given by way of oral submission, the person who made the

submission may withdraw all or part of the submission. In that

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Section 95AJ

Competition and Consumer Act 2010 505

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

case, the Commission must exclude the submission or part of the

submission (as the case requires) from the register and its website.

When Commission may exclude information—no request made

(7) The Commission may exclude information from the register and its

website if it is satisfied that it is desirable to do so for any reason

other than the confidential nature of the information.

95AJ Commission may seek additional information from applicant

The Commission may give the applicant a written notice

requesting the applicant to give the Commission, within a specified

period, additional information relevant to making its determination

on the application.

95AK Commission may seek further information and consult others

(1) The Commission may give a person a written notice requesting the

person to give the Commission, within a specified period,

particular information relevant to making its determination on the

application.

(2) The Commission may consult with such persons as it considers

reasonable and appropriate for the purposes of making its

determination on the application.

95AL Applicant may withdraw application

The applicant may, by notice in writing to the Commission,

withdraw the application at any time.

95AM Commission to make determination on application

(1) The Commission must make a determination in writing:

(a) granting the clearance; or

(b) refusing to grant the clearance.

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Section 95AN

506 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note: The Commission must make its determination within the time limit set

out in section 95AO. If it does not, then it is taken to have refused to

grant the clearance.

(2) In making its determination, the Commission must take into

account:

(a) any submissions in relation to the application made to it by

the applicant, the Commonwealth, a State, a Territory or any

other person that are received within the period specified

under paragraph 95AG(b); and

(b) any information received under section 95AJ within the

period specified in the relevant notice under that section; and

(c) any information received under subsection 95AK(1) within

the period specified in the relevant notice under that

subsection; and

(d) any information obtained from consultations under

subsection 95AK(2).

(2A) In making its determination, the Commission may disregard:

(a) any submissions in relation to the application made to it by

the applicant, the Commonwealth, a State, a Territory or any

other person that are received after the period specified under

paragraph 95AG(b); and

(b) any information received under section 95AJ after the period

specified in the relevant notice under that section; and

(c) any information received under subsection 95AK(1) after the

period specified in the relevant notice under that subsection.

(3) The Commission must notify the applicant in writing of its

determination and give written reasons for it.

95AN When clearance must not be granted

(1) The Commission must not grant a clearance in relation to a

proposed acquisition of shares or assets unless it is satisfied that

the acquisition would not have the effect, or be likely to have the

effect, of substantially lessening competition (within the meaning

of section 50).

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Section 95AO

Competition and Consumer Act 2010 507

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) To avoid doubt, a clearance cannot be granted for an acquisition

that has occurred.

95AO Time limits for determining application

(1) If the Commission has not made a determination on the application

within the period that begins on the day the application was given

to the Commission and ends on the 40th business day after that

day, the Commission is, subject to subsection (3), taken to have

made a determination refusing to grant the clearance.

(2) The applicant may, before the end of the period referred to in

subsection (1) (including any period that is taken to be substituted

for that period by any other application or applications of this

subsection), agree to the Commission taking a specified longer

period to make its determination. If the applicant does, the longer

period is taken to be substituted for the period referred to in

subsection (1).

(3) However, if before the end of the period referred to in

subsection (1) (including any period that is taken to be substituted

for that period by any other application or applications of

subsection (2)), the Commission decides that the matter cannot be

dealt with properly within that period, either because of its

complexity or because of other special circumstances, which must

be notified in writing by the Commission to the applicant, the

period is extended by a further 20 business days and the longer

period is taken to be substituted for the period referred to in

subsection (1) (or any other period that is taken to be substituted

for that period by any other application or applications of

subsection (2)).

95AP Clearance subject to conditions

(1) The Commission may grant a clearance subject to such conditions

as are specified in the clearance.

Note 1: Under subsection 95AS(5), the Commission may revoke a clearance if

a condition of the clearance has not been complied with.

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Section 95AQ

508 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note 2: If an acquisition takes place without complying with a condition of the

clearance (whether the condition is to be complied with before, during

or after the acquisition), the acquisition will not be in accordance with

the clearance and so might contravene section 50 (see

subsections 95AC(2) and (3)). If the acquisition contravenes

section 50, then the remedies in Part VI will apply (see, for example,

penalties under section 76 and divestiture under section 81).

(2) Without limiting subsection (1), the Commission may grant a

clearance subject to the condition that the person to whom the

clearance is granted must make, and comply with, an undertaking

to the Commission under section 87B.

95AQ When clearance is in force

(1) A clearance that is not subject to conditions comes into force on

the day on which the determination granting the clearance is made.

(2) A clearance that is subject to conditions comes into force:

(a) if an application is made to the Tribunal for a review of the

Commission’s determination and the application is not

withdrawn—on the day on which the Tribunal makes a

determination on the review; or

(b) if an application is made to the Tribunal for a review of the

Commission’s determination and the application is

withdrawn—on the day on which the application is

withdrawn; or

(c) if the person to whom the clearance was given gives a notice

in writing to the Commission stating that the person will not

make an application to the Tribunal for review—on the day

on which the notice is given; or

(d) in any other case—at the end of the period in which an

application may be made to the Tribunal for review of the

determination.

(3) A clearance may be expressed to be in force for a period specified

in the clearance and, if so expressed, remains in force for that

period only.

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Section 95AR

Competition and Consumer Act 2010 509

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

95AR Minor variations of clearances

Application for variation

(1) A person to whom a clearance was granted may apply to the

Commission for a minor variation of the clearance.

Requirements for valid application

(2) To be valid, the application must:

(a) be in a form prescribed by the regulations and contain the

information required by the form; and

(b) be accompanied by such other information or documents as

are prescribed by the regulations; and

(c) be accompanied by the fee (if any) prescribed by the

regulations.

(2A) The regulations may prescribe that the application form contain a

requirement that the applicant give an undertaking under

section 87B that the applicant will not make the acquisition while

the application is being considered by the Commission.

Commission to notify if application is invalid

(3) If the Commission receives a purported application that it

considers is not a valid application, it must, within 5 business days

of receiving the purported application, give the person who made

the purported application a written notice:

(a) stating that the person has not made a valid application; and

(b) giving reasons why the purported application does not

comply with this Division.

Application to be published on the internet

(4) The Commission must, if it is satisfied that the variation sought in

the application is a minor variation:

(a) subject to section 95AI (confidentiality), put a copy of the

application on its website; and

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Section 95AR

510 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) by notice on its website, invite submissions in respect of the

application within a period specified by it.

Commission must make a determination on the application

(5) The Commission must make a determination in writing:

(a) varying the clearance; or

(b) refusing to vary the clearance.

The Commission must notify the applicant in writing of its

determination and give written reasons for it.

(5A) In making its determination, the Commission must take into

account:

(a) any submissions received within the period specified under

subsection (4); and

(b) any information received under section 95AJ within the

period specified in the relevant notice under that section (as

that section applies because of subsection (11) of this

section); and

(c) any information received under subsection 95AK(1) within

the period specified in the relevant notice under that

subsection (as that subsection applies because of

subsection (11) of this section); and

(d) any information obtained from consultations under

subsection 95AK(2) (as that subsection applies because of

subsection (11) of this section).

(5B) In making its determination, the Commission may disregard:

(a) any submissions received after the period specified under

subsection (4); and

(b) any information received under section 95AJ after the period

specified in the relevant notice under that section (as that

section applies because of subsection (11) of this section);

and

(c) any information received under subsection 95AK(1) after the

period specified in the relevant notice under that

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Section 95AR

Competition and Consumer Act 2010 511

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

subsection (as that subsection applies because of

subsection (11) of this section).

When variation must not be granted

(6) The Commission must not make a determination varying a

clearance unless it is satisfied that the acquisition to which the

clearance (as varied) would apply would not have the effect, or be

likely to have the effect, of substantially lessening competition

(within the meaning of section 50).

Determination varying clearance may also vary clearance

conditions

(6A) A determination varying a clearance may also vary the conditions

(if any) of the clearance to take account of the variation of the

clearance.

Time limits for determining application

(7) If the Commission has not made a determination on the application

within the period that begins on the day the application was given

to the Commission and ends on the 40th business day after that

day, the Commission is, subject to subsection (8A), taken to have

made a determination refusing to vary the clearance.

(8) The applicant may, before the end of the period referred to in

subsection (7) (including any period that is taken to be substituted

for that period by any other application or applications of this

subsection), agree to the Commission taking a specified longer

period to make its determination. If the applicant does, the longer

period is taken to be substituted for the period referred to in

subsection (7).

(8A) However, if before the end of the period referred to in

subsection (7) (including any period that is taken to be substituted

for that period by any other application or applications of

subsection (8)), the Commission decides that the matter cannot be

dealt with properly within that period, either because of its

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Section 95AR

512 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

complexity or because of other special circumstances, which must

be notified in writing by the Commission to the applicant, the

period is extended by a further 20 business days and the longer

period is taken to be substituted for the period referred to in

subsection (7) (or any other period that is taken to be substituted

for that period by any other application or applications of

subsection (8)).

2 or more variations at the same time

(9) If:

(a) a person applies for 2 or more variations:

(i) at the same time; or

(ii) in such close succession that the variations could

conveniently be dealt with by the Commission at the

same time; and

(b) the Commission is satisfied that the combined effect of those

variations, if all were granted, would not involve a material

change in the effect of the clearance;

the Commission may deal with all of those variations together as if

they were a single minor variation.

Applicant may withdraw application

(10) The applicant may, by notice in writing to the Commission,

withdraw the application at any time.

Powers of Commission

(11) The following sections apply in relation to an application for a

minor variation of a clearance in the same way as they apply in

relation to an application for a clearance:

(a) section 95AJ (Commission may seek additional information

from applicant);

(b) section 95AK (Commission may seek further information

and consult others).

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Section 95AS

Competition and Consumer Act 2010 513

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

95AS Revocation of clearance or revocation of clearance and

substitution of a new clearance

Application for revocation etc.

(1) The Commission may revoke a clearance, or revoke a clearance

and substitute a new clearance, if the person to whom the clearance

was granted applies to the Commission for this to occur.

Requirements for valid application

(2) To be valid, the application must:

(a) be in a form prescribed by the regulations and contain the

information required by the form; and

(b) be accompanied by such other information or documents as

are prescribed by the regulations; and

(c) be accompanied by the fee (if any) prescribed by the

regulations.

(2A) The regulations may prescribe that the application form contain a

requirement that the applicant give an undertaking under

section 87B that the applicant will not make the acquisition while

the application is being considered by the Commission.

Commission to notify if application is invalid

(3) If the Commission receives a purported application that it

considers is not a valid application, it must, within 5 business days

of receiving the purported application, give the person who made

the purported application a written notice:

(a) stating that the person has not made a valid application; and

(b) giving reasons why the purported application does not

comply with this Division.

Application to be published on the internet

(4) The Commission must:

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Section 95AS

514 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) subject to section 95AI (confidentiality), put a copy of the

application on its website; and

(b) by notice on its website, invite submissions in respect of the

application within a period specified by it.

Commission’s power to revoke etc. where no application

(5) The Commission may also revoke a clearance, or revoke a

clearance and substitute a new clearance, if it is satisfied that:

(a) the clearance was granted on the basis of information that

was false or misleading in a material particular; or

(b) a condition of the clearance has not been complied with; or

(c) there has been a material change of circumstances since the

clearance was granted.

Commission to give notice

(6) If the Commission is considering making a determination under

subsection (5), it must give a notice to the person to whom the

clearance was granted and put a notice on its website:

(a) stating that it is considering making the determination; and

(b) indicating the basis on which the determination is being

proposed; and

(c) inviting submissions in respect of the determination within

the period specified by it.

Commission must make a determination

(7) The Commission must make a determination in writing:

(a) revoking the clearance, or revoking the clearance and

substituting a new clearance for the one revoked; or

(b) refusing to revoke the clearance.

The Commission must notify, in writing, the person to whom the

clearance was granted of its determination and give written reasons

for it.

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Section 95AS

Competition and Consumer Act 2010 515

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(7A) In making its determination, the Commission must take into

account:

(a) any submissions invited under subsection (4) or (6) that are

received within the period specified under that subsection;

and

(b) any information received under section 95AJ within the

period specified in the relevant notice under that section (as

that section applies because of subsection (13) of this

section); and

(c) any information received under subsection 95AK(1) within

the period specified in the relevant notice under that

subsection (as that subsection applies because of

subsection (13) of this section); and

(d) any information obtained from consultations under

subsection 95AK(2) (as that subsection applies because of

subsection (13) of this section).

(7B) In making its determination, the Commission may disregard:

(a) any submissions invited under subsection (4) or (6) that are

received after the period specified under that subsection; and

(b) any information received under section 95AJ after the period

specified in the relevant notice under that section (as that

section applies because of subsection (13) of this section);

and

(c) any information received under subsection 95AK(1) after the

period specified in the relevant notice under that

subsection (as that subsection applies because of

subsection (13) of this section).

When revocation etc. must not be granted

(8) If an objection (other than an objection that, in the Commission’s

opinion, is vexatious or frivolous) to a revocation of a clearance is

made in a submission:

(a) that was invited under subsection (4) or (6); and

(b) that is received within the period specified;

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Section 95AS

516 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the Commission must not make a determination revoking the

clearance unless it is satisfied that it would, if the clearance had not

already been granted, be prevented under section 95AN from

granting the clearance.

(9) The Commission must not make a determination revoking a

clearance and substituting another clearance unless it is satisfied

that it would not be prevented under section 95AN from granting

the substituted clearance, if it were a new clearance sought under

section 95AD.

Time limits for determining application

(10) If the Commission has not made a determination on an application

made under subsection (1) within the period that begins on the day

the application was given to the Commission and ends on the 40th

business day after that day, the Commission is, subject to

subsection (11A), taken to have made a determination refusing to

revoke the clearance.

(11) The applicant may, before the end of the period referred to in

subsection (10) (including any period that is taken to be substituted

for that period by any other application or applications of this

subsection), agree to the Commission taking a specified longer

period to make its determination. If the applicant does, the longer

period is taken to be substituted for the period referred to in

subsection (10).

(11A) However, if before the end of the period referred to in

subsection (10) (including any period that is taken to be substituted

for that period by any other application or applications of

subsection (11)), the Commission decides that the matter cannot be

dealt with properly within that period, either because of its

complexity or because of other special circumstances, which must

be notified in writing by the Commission to the applicant, the

period is extended by a further 20 business days and the longer

period is taken to be substituted for the period referred to in

subsection (10) (or any other period that is taken to be substituted

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Section 95AT

Competition and Consumer Act 2010 517

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

for that period by any other application or applications of

subsection (11)).

Withdrawal of application

(12) The applicant may, by notice in writing to the Commission,

withdraw the application at any time.

Powers of Commission

(13) The following sections apply in relation to an application for a

revocation, or a revocation and substitution, of a clearance in the

same way as they apply in relation to an application for a

clearance:

(a) section 95AJ (Commission may seek additional information

from applicant);

(b) section 95AK (Commission may seek further information

and consult others).

Substituted clearances

(14) The following sections apply in relation to a clearance substituted

under this section in the same way as they apply in relation to a

clearance granted under section 95AM:

(a) section 95AP (Clearance subject to conditions);

(b) section 95AQ (When clearance is in force).

Subdivision C—Merger authorisations

95AT Tribunal may grant authorisation for a merger

(1) The Tribunal may grant an authorisation to a person:

(a) to acquire shares in the capital of a body corporate; or

(b) to acquire assets of another person.

Note 1: Section 95AZH prohibits the Tribunal from granting an authorisation

for an acquisition unless the Tribunal is satisfied the acquisition would

result, or be likely to result, in such a benefit to the public that the

acquisition should be allowed to take place.

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Section 95AU

518 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note 2: Division 2 of Part IX contains provisions about procedure and

evidence that relate to proceedings before the Tribunal.

(2) If the Tribunal does so, then section 50 does not prevent the person

from acquiring the shares or assets in accordance with the

authorisation.

Note: The acquisition will only be protected from the operation of section 50

if it takes place in accordance with the authorisation. If it does not,

then section 50 will apply to the acquisition. If the acquisition

contravenes section 50, then the remedies in Part VI will apply (see,

for example, penalties under section 76 and divestiture under

section 81).

(3) Without limiting subsection (2), an acquisition will not be in

accordance with an authorisation if any conditions of the

authorisation are not complied with (whether the conditions are to

be complied with before, during or after the acquisition).

95AU Application for authorisation

A person who wants an authorisation to acquire shares or assets

must apply to the Tribunal for it.

95AV Requirements for valid authorisation application

(1) To be valid, the application must:

(a) be in a form prescribed by the regulations and contain the

information required by the form; and

(b) be accompanied by such other information or documents as

are prescribed by the regulations; and

(c) be accompanied by the fee (if any) prescribed by the

regulations.

(2) The regulations may prescribe that the application form contain a

requirement that the applicant give an undertaking under

section 87B that the applicant will not make the acquisition while

the application is being considered by the Tribunal.

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Section 95AW

Competition and Consumer Act 2010 519

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

95AW Tribunal to notify if authorisation application is invalid

If the Tribunal receives a purported application that it considers is

not a valid application, it must, within 5 business days of receiving

the purported application, give the person who made the purported

application a written notice:

(a) stating that the person has not made a valid application; and

(b) giving reasons why the purported application does not

comply with this Division.

95AX Tribunal to notify Commission of authorisation application

The Tribunal must, within 3 business days of receiving an

application for an authorisation, give a copy of it to the

Commission.

95AY Application to be published on the internet

After receiving a copy of an application for an authorisation, the

Commission must:

(a) subject to section 95AZA (confidentiality), put a copy of the

application, and accompanying information or documents, on

its website; and

(b) by notice on its website, invite submissions in respect of the

application to be made to the Tribunal within a period

specified by the Tribunal.

95AZ Merger authorisation register

(1) The Tribunal must keep a register (the merger authorisation

register) of:

(a) applications for authorisations; and

(b) applications for minor variations of authorisations; and

(c) applications for the revocation of authorisations or for the

revocation of authorisations and the substitution of other

authorisations;

including applications that have been withdrawn.

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Section 95AZA

520 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) The register must include:

(a) any document given to the Tribunal in relation to an

application referred to in subsection (1); and

(b) particulars of any oral submission made to the Tribunal in

relation to such an application; and

(c) the determination of the Tribunal on such an application and

the statement of the reasons given by the Tribunal for that

determination;

unless section 95AZA (confidentiality) prevents the inclusion.

95AZA Confidentiality claims etc.

Requests for confidential treatment

(1) If a person gives information to the Tribunal in relation to an

application or proposal referred to in subsection 95AZ(1), the

person may, at the time of giving the information, request that the

information be excluded from the merger authorisation register and

the Commission’s website because of its confidential nature.

Confidentiality claims to be determined first

(2) If such a request is made, the information must be excluded from

the register and the Commission’s website until the Tribunal has

made a determination on the request.

When Tribunal must exclude information—request made

(3) If such a request is made, the Tribunal must exclude the

information from the register and the Commission’s website if the

information contains particulars of:

(a) a secret formula or process; or

(b) the cash consideration offered for the acquisition of shares in

the capital of a body corporate or assets of a person; or

(c) the current costs of manufacturing, producing or marketing

goods or services.

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Section 95AZC

Competition and Consumer Act 2010 521

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

When Tribunal may exclude information—request made

(4) If such a request is made, the Tribunal may, if it is satisfied that it

is desirable to do so because of the confidential nature of the

information, exclude the information from the register and the

Commission’s website.

If request refused, document may be withdrawn

(5) If the Tribunal refuses such a request and the information is

contained in a document, the Tribunal must, if the person who gave

the document to it so requires, return the document or part of the

document to the person. In that case, it must exclude the document

or the part of the document (as the case requires) from the register

and the Commission’s website.

If request refused, oral submission may be withdrawn

(6) If the Tribunal refuses such a request and the information was

given by way of oral submission, the person who made the

submission may withdraw all or part of the submission. In that

case, the Tribunal must exclude the submission or part of the

submission (as the case requires) from the register and the

Commission’s website.

When Tribunal may exclude information—no request made

(7) The Tribunal may exclude information from the register and the

Commission’s website if it is satisfied that it is desirable to do so

for any reason other than the confidential nature of the information.

95AZC Tribunal may seek additional information from applicant

The Tribunal may give the applicant a written notice requesting the

applicant to give the Tribunal, within a specified period, additional

information relevant to making its determination on the

application.

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Section 95AZD

522 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

95AZD Tribunal may seek further information and consult others

etc.

(1) The Tribunal may give a person a written notice requesting the

person to give the Tribunal, within a specified period, particular

information relevant to making its determination on the

application.

(2) The Tribunal may consult with such persons as it considers

reasonable and appropriate for the purposes of making its

determination on the application.

(3) The Tribunal may disclose information excluded from the merger

authorisation register under subsection 95AZA(3), (4) or (7) to

such persons and on such terms as it considers reasonable and

appropriate for the purposes of making its determination on the

application.

95AZE Applicant may withdraw application

The applicant may, by notice in writing to the Tribunal, withdraw

the application at any time.

95AZEA Tribunal must require Commission to give report

(1) For the purposes of determining the application, the member of the

Tribunal presiding on the application must require the Commission

to give a report to the Tribunal. The report must be:

(a) in relation to the matters specified by that member; and

(b) given within the period specified by that member.

(2) The Commission may also include in the report any matter it

considers relevant to the application.

95AZF Commission to assist Tribunal

(1) For the purposes of determining the application:

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Section 95AZFA

Competition and Consumer Act 2010 523

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) the Commission may call a witness to appear before the

Tribunal and to give evidence in relation to the application;

and

(b) the Commission may report on statements of fact put before

the Tribunal in relation to the application; and

(c) the Commission may examine or cross-examine any

witnesses appearing before the Tribunal in relation to the

application; and

Note: The Commission may be represented by a lawyer: see paragraph 110(d).

(d) the Commission may make submissions to the Tribunal on

any issue the Commission considers relevant to the

application.

(2) For the purposes of determining the application, the member of the

Tribunal presiding on the application may require the Commission

to give such information, make such reports and provide such other

assistance to the Tribunal, as the member specifies.

95AZFA Commission may make enquiries

The Commission may, for the purposes of section 95AZEA or

95AZF, make such enquiries as it considers reasonable and

appropriate.

95AZG Tribunal to make determination on application

(1) The Tribunal must make a determination in writing:

(a) granting the authorisation; or

(b) refusing to grant the authorisation.

Note: The Tribunal must make its determination within the time limit set out

in section 95AZI. If it does not, then it is taken to have refused to

grant the authorisation.

(2) In making its determination, the Tribunal must take into account:

(a) any submissions in relation to the application made to it by

the applicant, the Commonwealth, a State, a Territory or any

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Section 95AZH

524 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

other person that are received within the period specified

under paragraph 95AY(b); and

(b) any information received under section 95AZC within the

period specified in the relevant notice under that section; and

(c) any information received under subsection 95AZD(1) within

the period specified in the relevant notice under that

subsection; and

(d) any information obtained from consultations under

subsection 95AZD(2); and

(e) the report given to it under section 95AZEA; and

(f) any thing done as mentioned in section 95AZF.

(2A) In making its determination, the Tribunal may disregard:

(a) any submissions in relation to the application made to it by

the applicant, the Commonwealth, a State, a Territory or any

other person that are received after the period specified under

paragraph 95AY(b); and

(b) any information received under section 95AZC after the

period specified in the relevant notice under that section; and

(c) any information received under subsection 95AZD(1) after

the period specified in the relevant notice under that

subsection.

(3) The Tribunal must notify the applicant in writing of its

determination and give written reasons for it.

95AZH When authorisation must not be granted

(1) The Tribunal must not grant an authorisation in relation to a

proposed acquisition of shares or assets unless it is satisfied in all

the circumstances that the proposed acquisition would result, or be

likely to result, in such a benefit to the public that the acquisition

should be allowed to occur.

(2) In determining what amounts to a benefit to the public for the

purposes of subsection (1):

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Section 95AZI

Competition and Consumer Act 2010 525

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) the Tribunal must regard the following as benefits to the

public (in addition to any other benefits to the public that

may exist apart from this paragraph):

(i) a significant increase in the real value of exports;

(ii) a significant substitution of domestic products for

imported goods; and

(b) without limiting the matters that may be taken into account,

the Tribunal must take into account all other relevant matters

that relate to the international competitiveness of any

Australian industry.

(3) To avoid doubt, an authorisation cannot be granted for an

acquisition that has occurred.

95AZI Time limits for determining application

(1) If the Tribunal has not made a determination on the application

within the relevant period, the Tribunal is taken to have refused to

grant the authorisation.

(2) The relevant period is the period of 3 months beginning on the day

the application was given to the Tribunal. However, if before the

end of that 3 month period the Tribunal determines in writing that:

(a) the matter cannot be dealt with properly within that period,

either because of its complexity or because of other special

circumstances; and

(b) that period is extended by a specified period of not more than

3 months;

the relevant period is that period as so extended.

(3) If the Tribunal makes a determination under subsection (2), it must

notify the applicant in writing of its determination before the end

of that 3 month period.

95AZJ Authorisation subject to conditions

(1) The Tribunal may grant an authorisation subject to such conditions

as are specified in the authorisation.

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Division 3 Merger clearances and authorisations

Section 95AZK

526 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note 1: Under subsection 95AZM(6), the Commission may apply to the

Tribunal to revoke an authorisation if a condition of the authorisation

has not been complied with.

Note 2: If an acquisition takes place without complying with a condition of the

authorisation (whether the condition is to be complied with before,

during or after the acquisition), the acquisition will not be in

accordance with the authorisation and so might contravene section 50

(see subsections 95AT(2) and (3)). If the acquisition contravenes

section 50, then the remedies in Part VI will apply (see, for example,

penalties under section 76 and divestiture under section 81).

(2) Without limiting subsection (1), the Tribunal may grant an

authorisation subject to the condition that the person to whom the

authorisation is granted must make, and comply with, an

undertaking to the Commission under section 87B.

95AZK When authorisation is in force

(1) An authorisation comes into force on the day on which the

determination granting the authorisation is made.

(2) An authorisation may be expressed to be in force for a period

specified in the authorisation and, if so expressed, remains in force

for that period only.

95AZL Minor variations of authorisations

Application for variation

(1) The person to whom an authorisation was granted may apply to the

Tribunal for a minor variation of the authorisation.

Requirements for valid application

(2) To be valid, the application must:

(a) be in a form prescribed by the regulations and contain the

information required by the form; and

(b) be accompanied by such other information or documents as

are prescribed by the regulations; and

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Section 95AZL

Competition and Consumer Act 2010 527

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) be accompanied by the fee (if any) prescribed by the

regulations.

(2A) The regulations may prescribe that the application form contain a

requirement that the applicant give an undertaking under

section 87B that the applicant will not make the acquisition while

the application is being considered by the Tribunal.

Tribunal to notify if application is invalid

(3) If the Tribunal receives a purported application that it considers is

not a valid application, it must, within 5 business days of receiving

the purported application, give the person who made the purported

application a written notice:

(a) stating that the person has not made a valid application; and

(b) giving reasons why the purported application does not

comply with this Division.

Tribunal to give the Commission a copy of the application

(4) The Tribunal must, if it is satisfied that the variation sought in the

application is a minor variation, give a copy of it to the

Commission within 3 business days of receiving it.

Application to be published on the internet

(5) After receiving a copy of the application, the Commission must:

(a) subject to section 95AZA (confidentiality), put a copy of the

application on its website; and

(b) by notice on its website, invite submissions in respect of the

application to be made to the Tribunal within a period

specified by the Tribunal.

Tribunal must make a determination on the application

(6) The Tribunal must make a determination in writing:

(a) varying the authorisation; or

(b) refusing to vary the authorisation.

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Section 95AZL

528 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

The Tribunal must notify the applicant in writing of its

determination and give written reasons for it.

(6A) In making its determination, the Tribunal must take into account:

(a) any submissions received within the period specified under

subsection (5); and

(b) any information received under section 95AZC within the

period specified in the relevant notice under that section (as

that section applies because of subsection (13) of this

section); and

(c) any information received under subsection 95AZD(1) within

the period specified in the relevant notice under that

subsection (as that subsection applies because of

subsection (13) of this section); and

(d) any information obtained from consultations under

subsection 95AZD(2) (as that subsection applies because of

subsection (13) of this section); and

(e) the report given to it under section 95AZEA (as that section

applies because of subsection (13) of this section); and

(f) any thing done as mentioned in section 95AZF (as that

section applies because of subsection (13) of this section).

(6B) In making its determination, the Tribunal may disregard:

(a) any submissions received after the period specified under

subsection (5); and

(b) any information received under section 95AZC after the

period specified in the relevant notice under that section (as

that section applies because of subsection (13) of this

section); and

(c) any information received under subsection 95AZD(1) after

the period specified in the relevant notice under that

subsection (as that subsection applies because of

subsection (13) of this section).

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Section 95AZL

Competition and Consumer Act 2010 529

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

When variation must not be granted

(7) The Tribunal must not make a determination varying an

authorisation unless the Tribunal is satisfied that, in all the

circumstances, the variation would not result, or would be likely

not to result, in a reduction in the benefit to the public that arose

from the original authorisation.

Determination varying authorisation may also vary authorisation

conditions

(7A) A determination varying an authorisation may also vary the

conditions (if any) of the authorisation to take account of the

variation of the authorisation.

Time limits for determining application

(8) If the Tribunal has not made a determination on the application

within the relevant period, the Tribunal is taken to have refused to

vary the authorisation.

(9) For the purposes of subsection (8), the relevant period is the period

of 3 months beginning on the day the application was given to the

Tribunal. However, if before the end of that 3 month period the

Tribunal determines in writing that:

(a) the matter cannot be dealt with properly within that period,

either because of its complexity or because of other special

circumstances; and

(b) that period is extended by a specified period of not more than

3 months;

the relevant period is that period as so extended.

(10) If the Tribunal makes a determination under subsection (9), it must

notify the applicant in writing of its determination before the end

of that 3 month period.

2 or more variations at the same time

(11) If:

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Section 95AZM

530 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) a person applies for 2 or more variations:

(i) at the same time; or

(ii) in such close succession that the variations could

conveniently be dealt with by the Tribunal at the same

time; and

(b) the Tribunal is satisfied that the combined effect of those

variations, if all were granted, would not involve a material

change in the effect of the authorisation;

the Tribunal may deal with all of those variations together as if

they were a single minor variation.

Applicant may withdraw application

(12) The applicant may, by notice in writing to the Tribunal, withdraw

the application at any time.

Powers and procedures of the Tribunal

(13) The following sections apply in relation to an application for a

minor variation of an authorisation in the same way as they apply

in relation to an application for an authorisation:

(b) section 95AZC (Tribunal may seek additional information

from applicant);

(c) section 95AZD (Tribunal may seek further information and

consult others etc.);

(ca) section 95AZEA (Tribunal must require Commission to give

report);

(d) section 95AZF (Commission to assist Tribunan( �

(e) section 95AZFA (Commission may make enquiries).

95AZM Revocation of authorisation or revocation of authorisation

and substitution of a new authorisation

Application for revocation

(1) The Tribunal may revoke an authorisation, or revoke an

authorisation and substitute a new authorisation, if the person to

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Section 95AZM

Competition and Consumer Act 2010 531

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

whom the authorisation was granted applies to the Tribunal for this

to occur.

Requirements for valid application

(2) To be valid, the application must:

(a) be in a form prescribed by the regulations and contain the

information required by the form; and

(b) be accompanied by such other information or documents as

are prescribed by the regulations; and

(c) be accompanied by the fee (if any) prescribed by the

regulations.

(2A) The regulations may prescribe that the application form contain a

requirement that the applicant give an undertaking under

section 87B that the applicant will not make the acquisition while

the application is being considered by the Tribunal.

Tribunal to notify if application is invalid

(3) If the Tribunal receives a purported application that it considers is

not a valid application, it must, within 5 business days of receiving

the purported application, give the person who made the purported

application a written notice:

(a) stating that the person has not made a valid application; and

(b) giving reasons why the purported application does not

comply with this Division.

Tribunal to give the Commission a copy of the application

(4) The Tribunal must give a copy of the application to the

Commission within 3 business days of receiving it.

Application to be published on the internet

(5) After receiving a copy of the application, the Commission must:

(a) subject to section 95AZA (confidentiality), put a copy of the

application on its website; and

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Section 95AZM

532 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) by notice on its website, invite submissions in respect of the

application to be made to the Tribunal within a period

specified by the Tribunal.

Commission may apply for revocation

(6) The Commission may apply to the Tribunal for an authorisation to

be revoked, or for an authorisation to be revoked and a new

authorisation substituted for it, if the Commission is satisfied that:

(a) the authorisation was granted on the basis of information that

was false or misleading in a material particular; or

(b) a condition of the authorisation has not been complied with;

or

(c) there has been a material change of circumstances since the

authorisation was granted.

Tribunal to give notice

(7) If the Tribunal is considering making a determination under

subsection (6), the Tribunal must give a notice to the person to

whom the authorisation was granted and cause a notice to be put on

the Commission’s website:

(a) stating that it is considering making the determination; and

(b) indicating the basis on which the determination is being

proposed; and

(c) inviting submissions in respect of the determination within a

period specified by the Tribunal.

Tribunal must make a determination

(8) The Tribunal must make a determination in writing:

(a) revoking the authorisation, or revoking the authorisation and

substituting a new authorisation; or

(b) refusing to revoke the authorisation.

The Tribunal must notify, in writing, the person to whom the

authorisation was granted of its determination and give written

reasons for it.

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Section 95AZM

Competition and Consumer Act 2010 533

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(8A) In making its determination, the Tribunal must take into account:

(a) any submissions invited under subsection (5) or (7) that are

received within the period specified under that subsection;

and

(b) any information received under section 95AZC within the

period specified in the relevant notice under that section (as

that section applies because of subsection (15) of this

section); and

(c) any information received under subsection 95AZD(1) within

the period specified in the relevant notice under that

subsection (as that subsection applies because of

subsection (15) of this section); and

(d) any information obtained from consultations under

subsection 95AZD(2) (as that subsection applies because of

subsection (15) of this section); and

(e) the report given to it under section 95AZEA (as that section

applies because of subsection (15) of this section); and

(f) any thing done as mentioned in section 95AZF (as that

section applies because of subsection (15) of this section).

(8B) In making its determination, the Tribunal may disregard:

(a) any submissions invited under subsection (5) or (7) that are

received after the period specified under that subsection; and

(b) any information received under section 95AZC after the

period specified in the relevant notice under that section (as

that section applies because of subsection (15) of this

section); and

(c) any information received under subsection 95AZD(1) after

the period specified in the relevant notice under that

subsection (as that subsection applies because of

subsection (15) of this section).

When revocation etc. must not be granted

(9) If an objection (other than an objection that, in the Tribunal’s

opinion, is vexatious or frivolous) to a revocation of an

authorisation is made in a submission:

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Section 95AZM

534 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) that was invited under subsection (5) or (7); and

(b) that is received within the period specified;

the Tribunal must not make a determination revoking the

authorisation unless the Tribunal is satisfied that it would, if the

authorisation had not already been granted, be prevented under

section 95AZH from granting the authorisation.

(10) The Tribunal must not make a determination revoking an

authorisation and substituting another authorisation unless it is

satisfied that it would not be prevented under section 95AZH from

making a determination granting the substituted authorisation, if it

were a new authorisation sought under section 95AU.

Time limits for determining application

(11) If the Tribunal has not made a determination on an application

under subsection (1) or (6) within the relevant period, the Tribunal

is taken to have refused to revoke the authorisation.

(12) For the purposes of subsection (11), the relevant period is the

period of 3 months beginning on the day the application was given

to the Tribunal. However, if before the end of that 3 month period

the Tribunal determines in writing that:

(a) the matter cannot be dealt with properly within that period,

either because of its complexity or because of other special

circumstances; and

(b) that period is extended by a specified period of not more than

3 months;

the relevant period is that period as so extended.

(13) If the Tribunal makes a determination under subsection (12), it

must notify the applicant in writing of its determination before the

end of that 3 month period.

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Section 95AZN

Competition and Consumer Act 2010 535

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Withdrawal of application

(14) The applicant may withdraw an application under subsection (1),

and the Commission may withdraw an application under

subsection (6), by notice in writing to the Tribunal at any time.

Powers and procedures of the Tribunal

(15) The following sections apply in relation to an application for a

revocation, or a revocation and substitution, of an authorisation in

the same way as they apply in relation to an application for an

authorisation:

(b) section 95AZC (Tribunal may seek additional information

from applicant);

(c) section 95AZD (Tribunal may seek further information and

consult others etc.);

(ca) section 95AZEA (Tribunal must require Commission to give

report);

(d) section 95AZF (Commission to assist Tribunan( �

(e) section 95AZFA (Commission may make enquiries).

Substituted authorisations

(16) The following sections apply in relation to an authorisation

substituted under this section in the same way as they apply in

relation to an authorisation granted under section 95AZG:

(a) section 95AZJ (Authorisation subject to conditions);

(b) section 95AZK (When authorisation is in force).

Subdivision D—Miscellaneous

95AZN Providing false or misleading information

(1) A person must not give information to the Commission or Tribunal

under this Division or Division 3 of Part IX if the person is

negligent as to whether the information is false or misleading in a

material particular.

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Section 95AZN

536 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note: Under section 76, the Court may order a person who contravenes this

section to pay a pecuniary penalty. See also sections 80AC, 81A and

86C for other related remedies.

(2) For the purposes of subsection (1), proof that the person knew, or

was reckless as to whether, the information was false or misleading

in a material particular is taken to be proof that the person was

negligent as to whether the information was false or misleading in

a material particular.

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Preliminary Division 1

Section 95A

Competition and Consumer Act 2010 537

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part VIIA—Prices surveillance

Division 1—Preliminary

95A Interpretation

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

applicable period, in relation to a locality notice, has the meaning

given by section 95ZB.

body means any organisation or body, whether incorporated or

unincorporated, and includes a group of 2 or more individuals.

business notice means a notice under subsection 95L(3).

Commonwealth authority means:

(a) the Commonwealth; or

(b) an authority, institution or other body (other than a society,

association or incorporated company) established for a public

purpose by or under a law of the Commonwealth; or

(c) a society, association or incorporated company in which the

Commonwealth, or an authority, institution or other body of

the kind referred to in paragraph (b), has a controlling

interest.

declared person, in relation to goods or services of a particular

description, means a person in relation to whom a declaration

under subsection 95X(2) in relation to goods or services of that

description is in force.

exempt supply, in relation to goods or services of a particular

description, means a supply of goods or services of that description

in relation to which a declaration under section 95B is in force.

external inquiry means an inquiry by a body other than the

Commission.

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Section 95A

538 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

goods includes:

(a) ships, aircraft and other vehicles; and

(b) animals, including fish; and

(c) minerals, trees and crops, whether on, under or attached to

land or not; and

(d) water; and

(e) gas and electricity.

inquiry means an inquiry held in accordance with this Part into a

matter or matters relating to prices for the supply of goods or

services.

inquiry body means:

(a) in relation to an inquiry to be held, or being held, by the

Commission—the Commission; or

(b) in relation to an inquiry to be held, or being held, by a body

other than the Commission—the other body.

inquiry Chair means:

(a) in relation to an inquiry to be held, or being held, by the

Commission—the member of the Commission presiding at

the inquiry; or

(b) in relation to an inquiry to be held, or being held, by a body

other than the Commission—the person presiding at the

inquiry.

inquiry notice means a notice under section 95H.

law of the Commonwealth does not include:

(a) the Northern Territory (Self-Government) Act 1978; or

(b) the Norfolk Island Act 1979; or

(c) a law made under, or continued in force by, an Act referred

to in paragraph (a) or (b).

locality notice means a notice under subsection 95Z(5).

member of the staff of the Commission means a person referred to

in subsection 27(1) or a person engaged under section 27A.

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Section 95A

Competition and Consumer Act 2010 539

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

notified goods or services means goods or services of a particular

description in relation to which a declaration under

subsection 95X(1) is in force.

person includes a Commonwealth authority and a State or

Territory authority.

price includes:

(a) a charge of any description; and

(b) in relation to goods or services—any pecuniary benefit,

whether direct or indirect, received or to be received by a

person for or in connection with the supply by the person of

the goods or services.

response notice means a notice under subparagraph 95Z(6)(c)(i).

services includes any rights (including rights in relation to, and

interests in, real or personal property), benefits, privileges or

facilities that are, or are to be, provided, granted or conferred in

trade or commerce, and includes, but is not limited to, the rights,

benefits, privileges or facilities that are, or are to be, provided,

granted or conferred under:

(a) a contract for or in relation to:

(i) the performance of work (including work of a

professional nature), whether with or without the supply

of goods; or

(ii) the provision of, or the use or enjoyment of facilities

for, amusement, entertainment, recreation or instruction;

or

(iii) the conferring of rights, benefits or privileges for which

remuneration is payable in the form of a royalty, tribute,

levy or similar exaction; or

(b) a contract of insurance; or

(c) a contract between a banker and a customer of the banker

entered into in the course of the carrying on by the banker of

the business of banking; or

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Section 95A

540 Competition and Consumer Act 2010

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

but does not include rights or benefits being the supply of goods or

the performance of work under a contract of service.

State or Territory authority means:

(a) a State, the Australian Capital Territory or the Northern

Territory; or

(b) an authority, institution or other body (except a society,

association or incorporated company) established for a public

purpose by or under a law of a State, the Australian Capital

Territory or the Northern Territory; or

(c) a society, association or incorporated company in which a

State, the Australian Capital Territory or the Northern

Territory, or an authority, institution or other body of the

kind referred to in paragraph (b), has a controlling interest.

supply includes:

(a) in relation to goods—supply (including re-supply) by way of

sale, exchange, lease, hire or hire-purchase; and

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

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

(a) a reference to the supply of goods or services includes a

reference to agreeing to supply goods or services; and

(b) a reference to the supply of goods includes a reference to the

supply of goods together with other property or services, or

both; and

(c) a reference to the supply of services includes a reference to

the supply of services together with property or other

services, or both; and

(d) a reference to the supply of goods does not include a

reference to:

(i) a supply for use outside Australia; or

(ii) a supply for which a price is not charged; or

(iii) any other supply prescribed by the regulations; and

(e) a reference to the supply of services does not include a

reference to:

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Section 95B

Competition and Consumer Act 2010 541

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(i) a supply outside Australia; or

(ii) a supply for which a price is not charged; or

(iii) any other supply prescribed by the regulations.

(3) For the purposes of this Part, a supply by way of retail sale is taken

not to be a supply on terms and conditions that are the same as, or

substantially similar to, the terms and conditions of a supply by

way of wholesale sale.

95B Exempt supplies

(1) The Minister, or the Commission with the approval of the Minister,

may by notice published in the Gazette declare a supply of goods

or services of a specified description, that is a supply in a specified

manner, of a specified kind or in specified circumstances, to be an

exempt supply for the purposes of this Part.

(2) The Minister, or the Commission with the approval of the Minister,

may by notice published in the Gazette vary or revoke a

declaration under subsection (1).

95C Application of Part

(1) This Part applies in relation to the supply of goods or services:

(a) by a Commonwealth authority; or

(b) by a foreign corporation; or

(c) by a trading corporation in the course of, or for the purposes

of, its trading operations; or

(d) by a financial corporation in the course of, or for the

purposes of, its business operations; or

(e) by a body corporate incorporated in a Territory (other than

the Northern Territory or Norfolk Island); or

(f) in an internal Territory (other than the Northern Territory),

the Territory of Christmas Island or the Territory of Cocos

(Keeling) Islands; or

(g) in the course of, or in connection with, trade or commerce:

(i) among the States; or

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Section 95D

542 Competition and Consumer Act 2010

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(ii) between a State and an internal Territory; or

(iii) between a State and the Territory of Christmas Island or

the Territory of Cocos (Keeling) Islands; or

(iv) between an internal Territory and the Territory of

Christmas Island or the Territory of Cocos (Keeling)

Islands; or

(v) between the Territory of Christmas Island and the

Territory of Cocos (Keeling) Islands; or

(vi) between 2 internal Territories;

and not otherwise.

(2) However, this Part does not apply in relation to the supply of goods

or services by:

(a) an authority, institution or other body (except a society,

association or incorporated company) established for a public

purpose by or under a law of Norfolk Island; or

(b) a society, association or incorporated company in which a

controlling interest is held by Norfolk Island, or an authority,

institution or other body covered by paragraph (a).

95D Crown to be bound

(1) This Part binds the Crown in right of the Commonwealth, of each

of the States, of the Australian Capital Territory and of the

Northern Territory.

(2) Nothing in this Part makes the Crown liable to be prosecuted for an

offence.

(3) The protection in subsection (2) does not apply to an incorporated

Commonwealth authority or an incorporated State or Territory

authority.

95E Object of this Part

The object of this Part is to have prices surveillance applied only in

those markets where, in the view of the Minister, competitive

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Section 95F

Competition and Consumer Act 2010 543

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

pressures are not sufficient to achieve efficient prices and protect

consumers.

95F Simplified overview of this Part

(1) This Part deals with 3 main things.

Price inquiries

(2) First, it provides for the Commission or another body to hold price

inquiries in relation to the supply of goods or services.

(3) These inquiries may relate to the supply of goods or services by a

particular person. If so, the person’s ability to increase the prices of

those goods or services during a particular period is restricted.

However, there is a way for the person to increase prices during

that period.

Price notifications

(4) Second, this Part allows the Minister or the Commission to declare

goods or services to be notified goods or services and to declare a

person to be a declared person in relation to such goods or services.

(5) If this happens, the person’s ability to increase the prices of such

goods or services during a particular period is restricted. However,

there is a way for the person to increase prices during that period.

Price monitoring

(6) Third, this Part allows the Minister to direct the Commission to

undertake price monitoring.

(7) This may be in relation to supplies of goods or services in a

particular industry or in relation to supplies of goods or services by

particular persons.

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Division 2 Commission’s functions under this Part

Section 95G

544 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Commission’s functions under this Part

95G Commission’s functions under this Part

(1) The Commission’s functions under this Part are set out in this

section.

Price inquiries

(2) The Commission is to hold such inquiries as it is required to hold

under section 95H.

(3) The Commission may, with the Minister’s approval under

section 95H, hold such other inquiries as it thinks fit.

(4) The Commission is to give the Minister a report on the results of

each inquiry it holds.

Price notifications

(5) The Commission is to consider locality notices and to take, in

relation to such notices, such action in accordance with this Part as

it considers appropriate.

Price monitoring

(6) The Commission is to monitor prices, costs and profits in any

industry or business that the Minister directs it to monitor and is to

give the Minister a report on the results of such monitoring.

General

(7) In exercising its powers and performing its functions under this

Part, the Commission must, subject to any directions given under

section 95ZH, have particular regard to the following:

(a) the need to maintain investment and employment, including

the influence of profitability on investment and employment;

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Section 95G

Competition and Consumer Act 2010 545

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the need to discourage a person who is in a position to

substantially influence a market for goods or services from

taking advantage of that power in setting prices;

(c) the need to discourage cost increases arising from increases

in wages and changes in conditions of employment

inconsistent with principles established by relevant industrial

tribunals.

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Section 95H

546 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Price inquiries

Subdivision A—Holding of inquiries

95H Price inquiries

Inquiries by Commission

(1) The Minister may, by notice in writing given to the Chairperson,

require the Commission to hold an inquiry into a specified matter

or specified matters.

(2) The Minister may, by notice in writing given to the Chairperson,

approve the Commission holding an inquiry into a specified matter

or specified matters.

Inquiries by other bodies

(3) The Minister may, by notice in writing, request a body other than

the Commission to hold an inquiry into a specified matter or

specified matters.

(4) The other body must, if it agrees to hold the inquiry, appoint a

person to preside at the inquiry. The appointment must be in

writing.

(5) However, if the other body is a group of 2 or more individuals, the

Minister must, by writing, appoint one of those individuals to

preside at the inquiry.

(5A) The Minister must, as soon as practicable after confirmation that

the other body will hold the inquiry, table a statement in each

House of the Parliament:

(a) specifying that the body will hold the inquiry; and

(b) giving the Minister’s reasons for requesting the body, rather

than the Commission, to hold the inquiry.

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Section 95J

Competition and Consumer Act 2010 547

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

No inquiry in relation to exempt supply

(6) A notice under this section must not authorise the holding of an

inquiry into a supply of goods or services of a particular

description that is an exempt supply in relation to goods or services

of that description.

No inquiry in relation to a State or Territory authority

(7) A notice under this section must not authorise the holding of an

inquiry into the supply by a State or Territory authority of goods or

services.

95J Content of inquiry notices

Description of goods or services

(1) An inquiry notice must specify the description of the goods or

services in relation to which the inquiry is to be held.

Supply of goods or services by particular persons

(2) An inquiry notice must also specify whether the inquiry is to be

held in relation to the supply of goods or services of that

description by a particular person or persons.

(3) If such an inquiry is to be held, the notice may also specify that

person or persons. If it does not, the inquiry body must, by writing,

determine that person or persons.

(4) The inquiry Chair must give the Minister notice in writing of the

determination.

No inquiry in relation to a State or Territory authority

(5) The inquiry body must not determine a State or Territory authority

as a person in relation to whom an inquiry will be held.

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Section 95K

548 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Ministerial directions

(6) The Minister may, in an inquiry notice, give such directions as he

or she thinks fit as to the holding of the inquiry and the matters to

be taken into consideration in the inquiry.

(7) The inquiry body must comply with any such directions.

95K Period for completing inquiry

Inquiry period

(1) An inquiry notice must specify the period within which the inquiry

is to be completed and a report on the inquiry is to be given to the

Minister.

(2) The inquiry body must complete the inquiry and give the report to

the Minister within that period.

Extensions

(3) The Minister may, before the end of the completion period, extend

or further extend that period by notice in writing given to the

inquiry Chair.

Example: A notice under subsection (1) specifies that an inquiry is to be

completed and a report given by 1 August.

On 30 July the Minister gives a notice under subsection (3) extending

the deadline to 8 August.

On 6 August the Minister gives another notice under subsection (3)

further extending the deadline to 12 August.

(4) If the Minister does so, the inquiry body must complete the inquiry

and give its report within the completion period as so extended or

further extended.

(5) In this section:

completion period means the period within which the inquiry body

is required by this section to complete an inquiry and to give its

report on the inquiry.

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Section 95L

Competition and Consumer Act 2010 549

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

95L Notice of holding of inquiry

General notice

(1) An inquiry body must, as soon as practicable, give notice of an

inquiry it is to hold.

(2) The notice must be given in each State, the Australian Capital

Territory and the Northern Territory by advertisement published in

the Gazette and in a newspaper circulating in that State or

Territory.

Notice to particular person or persons

(3) If the inquiry is to be held in relation to the supply of goods or

services by a particular person or persons, the inquiry body must,

as soon as practicable, give the person, or each of the persons, a

notice in writing.

Content of notice

(4) A notice under this section must:

(a) state that the inquiry body is to hold the inquiry; and

(b) specify the matter or matters in relation to which the inquiry

is to be held; and

(c) specify the time and place at which the inquiry is to start; and

(d) in the case of a notice under subsection (3)—set out the effect

of section 95N; and

(e) specify any other matter prescribed by the regulations.

95M Notice of extension of period for completing inquiry

If:

(a) an inquiry is being held in relation to the supply of goods or

services of a particular description by a particular person or

persons; and

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Section 95N

550 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the Minister extends, or further extends, the period within

which the inquiry is required to be completed and a report on

the inquiry given to the Minister;

the inquiry body must, as soon as possible, give the person, or each

of the persons, a notice in writing giving details of the extension or

further extension.

95N Price restrictions

(1) This section applies if an inquiry body gives a person a business

notice stating that it is to hold an inquiry in relation to the supply

by the person of goods or services of a particular description.

Offence: previous local supply

(2) The person commits an offence if:

(a) before the applicable day in relation to the business notice,

the person supplies (the current supply) goods or services of

that description in a locality on particular terms and

conditions; and

(b) the person has supplied goods or services of that description

in that locality on the same or substantially similar terms and

conditions in the period of 12 months before the current

supply; and

(c) the current supply is at a price that exceeds the highest price

at which the person has supplied goods or services of that

description in that locality on the same or substantially

similar terms and conditions in that period; and

(d) in a case where a notice has been given to the person under

subsection (5)—the current supply is not in accordance with

the notice.

Penalty: 100 penalty units.

Offence: no previous local supply

(3) The person commits an offence if:

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Section 95N

Competition and Consumer Act 2010 551

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) before the applicable day in relation to the business notice,

the person supplies (the current supply) goods or services of

that description in a locality on particular terms and

conditions; and

(b) the person has not supplied goods or services of that

description in that locality on the same or substantially

similar terms and conditions in the period of 12 months

before the current supply, but has supplied goods or services

of that description elsewhere in Australia on the same or

substantially similar terms and conditions in that period; and

(c) the current supply is at a price that exceeds the highest price

at which the person has supplied goods or services of that

description in Australia on the same or substantially similar

terms and conditions in that period; and

(d) in a case where a notice has been given to the person under

subsection (5)—the current supply is not in accordance with

the notice.

Penalty: 100 penalty units.

Offence: no previous supply in Australia

(4) The person commits an offence if:

(a) before the applicable day in relation to the business notice,

the person supplies (the current supply) goods or services of

that description in a locality on particular terms and

conditions; and

(b) the person has not supplied goods or services of that

description in Australia on the same or substantially similar

terms and conditions in the period of 12 months before the

current supply; and

(c) in a case where a notice has been given to the person under

subsection (5)—the current supply is not in accordance with

the notice.

Penalty: 100 penalty units.

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Section 95N

552 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Approval to increase prices

(5) The Commission may give the person a notice in writing stating

that the person is permitted, during the period:

(a) beginning on a specified day; and

(b) ending at the beginning of the applicable day in relation to

the business notice;

to supply goods or services of a specified description in a specified

locality on specified terms and conditions at a price not exceeding

a specified price.

(6) The Commission may give a notice under subsection (5) on its own

initiative or on the application of the person.

Consultation

(7) In an external inquiry, the Commission must consult the body

holding the inquiry before giving a notice under subsection (5).

Definition

(8) In this section:

applicable day, in relation to a business notice, means the 14th day

after whichever is the earlier of the following days:

(a) the day on which the person given the notice receives a copy

of the report by the inquiry body on the inquiry to which the

notice relates;

(b) the last day of the period within which the inquiry body is

required to complete the inquiry to which the notice relates

and to give the Minister a report on the inquiry.

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Section 95P

Competition and Consumer Act 2010 553

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision B—Reports on inquiries

95P Copies of report to be made available

Inquiry into supply of goods or services by particular persons

(1) For an inquiry held in relation to the supply of goods or services by

a particular person or persons, the inquiry body must send the

person, or each of the persons, a copy of the report on the inquiry

on the day on which it gives the Minister the report.

(2) A copy of a report sent to a person must be accompanied by a

notice in writing setting out the effect of section 95Q.

All inquiries

(3) For any inquiry, the inquiry body must, unless the Minister directs

otherwise, make copies of the report on the inquiry available for

public inspection as soon as practicable after the period of 28 days

beginning on the day on which it gives the Minister the report.

95Q Notification of proposed prices after receipt of report

(1) This section applies if a person receives a copy of a report on an

inquiry held in relation to the supply by the person of goods or

services of a particular description.

Price notification

(2) The person must, within 14 days after receiving the copy, give the

Commission a notice in writing specifying the price or prices at

which the person is supplying, or proposing to supply, goods or

services of that description.

Offence

(3) A person commits an offence if the person contravenes

subsection (2).

Penalty: 10 penalty units.

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Section 95R

554 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Public notification

(4) The Commission must, within 14 days after it receives the notice

under subsection (2), make publicly available details of the price or

prices specified in the notice.

Subdivision C—Procedure at inquiries

95R Public inquiries etc.

Public inquiries

(1) An inquiry body must hold an inquiry in public, unless the Minister

directs otherwise.

Taking of evidence

(2) The inquiry body may take evidence in private at an inquiry held in

public if:

(a) a witness objects to giving, in public, evidence that the

inquiry body is satisfied is of a confidential nature; and

(b) the inquiry body considers that it is desirable to do so.

(3) The inquiry body may permit a person appearing as a witness at the

inquiry to give evidence by giving, and verifying by oath or

affirmation, a written statement.

(4) If a statement is so given in an inquiry held in public, the inquiry

body must make available to the public in such manner as it thinks

fit the contents of the statement other than any matter:

(a) that the person who gave the evidence objects to being made

public; and

(b) the evidence of which the body is satisfied would have been

taken in private if that evidence had been given orally and the

person had objected to giving it in public.

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Section 95S

Competition and Consumer Act 2010 555

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Written submissions

(5) The inquiry body may require or permit a person desiring to make

a submission to the body to make the submission in writing.

(6) If a submission is so made in an inquiry held in public, the inquiry

body must make available to the public in such manner as it thinks

fit the contents of the submission.

Procedure

(7) The procedure to be followed at an inquiry is within the discretion

of the inquiry Chair. The inquiry body is not bound by the rules of

evidence.

(8) Subsection (7) operates:

(a) subject to this Part; and

(b) in any case—subject to any direction given to the inquiry

body by the Minister; and

(c) in an inquiry held by the Commission and at which the

inquiry Chair is not the Chairperson—subject to any

direction given to the inquiry Chair by the Chairperson.

Note: See also section 95ZN (about confidentiality of information).

95S Taking of evidence on oath or affirmation

Evidence on oath or affirmation

(1) An inquiry body may take evidence at an inquiry on oath or

affirmation.

(2) An oath or affirmation may be administered by:

(a) in an inquiry by the Commission—a member of the

Commission; or

(b) in an external inquiry—the person presiding at the inquiry.

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Section 95T

556 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Summons

(3) The inquiry Chair may, by writing signed by him or her, summon a

person to appear at an inquiry to give evidence and to produce such

documents (if any) as are specified in the summons.

(4) In an inquiry by the Commission, the power conferred on the

inquiry Chair by subsection (3) may, at his or her discretion, be

exercised on the application of another person.

95T Failure of witness to attend

(1) A person commits an offence if:

(a) the person is given a summons to appear as a witness at an

inquiry; and

(b) the person fails to attend as required by the summons or fails

to appear and report himself or herself from day to day; and

(c) the person has not been excused, or released from further

attendance, by:

(i) in an inquiry by the Commission—a member of the

Commission; or

(ii) in an external inquiry—the person presiding at the

inquiry.

Penalty: 10 penalty units.

(2) Subsection (1) does not apply if the person has a reasonable

excuse.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

95U Refusal to be sworn or to answer question

(1) A person appearing as a witness at an inquiry must not:

(a) refuse or fail to swear an oath or to make an affirmation if

required to do so by:

(i) in an inquiry by the Commission—a member of the

Commission; or

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Section 95V

Competition and Consumer Act 2010 557

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(ii) in an external inquiry—the person presiding at the

inquiry; or

(b) refuse or fail to answer a question that he or she is required to

answer by the inquiry Chair; or

(c) refuse or fail to produce a document that he or she was

required to produce by a summons under this Part given to

him or her.

Penalty: 10 penalty units.

(2) Subsection (1) does not apply if the person has a reasonable

excuse.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) It is a reasonable excuse for the purposes of subsection (2) for a

person to refuse or fail to answer a question on the ground that the

answer might tend to incriminate the person or to expose the

person to a penalty.

(4) It is a reasonable excuse for the purposes of subsection (2) for a

person to refuse or fail to produce a document on the ground that

the production of the document might tend to incriminate the

person or to expose the person to a penalty.

(5) Subsections (3) and (4) do not limit what is a reasonable excuse for

the purposes of subsection (2).

95V Protection of witnesses

Subject to this Part, a person summoned to attend or appearing as a

witness at an inquiry has the same protection, and is, in addition to

the penalties provided by this Part, subject to the same liabilities, in

any civil or criminal proceedings as a witness in proceedings in the

High Court.

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Section 95W

558 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

95W Allowances to witnesses

(1) A witness summoned under this Part to appear at an inquiry is

entitled to be paid such allowances for his or her travelling, and

such other expenses, as are prescribed by the regulations.

(2) The witness is entitled to be paid by:

(a) if the witness was summoned by the inquiry Chair—the

Commonwealth; or

(b) if the witness was summoned on the application of a

person—that person.

(3) The regulations may provide for those allowances and expenses by

reference to a scale of expenses for witnesses who attend before a

court specified in the regulations.

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Section 95X

Competition and Consumer Act 2010 559

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4—Price notifications

95X Declarations by Minister or Commission

Notified goods or services

(1) The Minister, or the Commission with the approval of the Minister,

may by notice published in the Gazette declare goods or services of

a specified description to be notified goods or services for the

purposes of this Part.

Declared persons

(2) The Minister, or the Commission with the approval of the Minister,

may by notice published in the Gazette declare a person to be, in

relation to goods or services of a specified description, a declared

person for the purposes of this Part.

(3) The Commission must give the person notice in writing of a

declaration under subsection (2). The notice must set out the effect

of section 95Z.

(4) A declaration under subsection (2) must specify the time when it is

to cease to have effect. Such a declaration ceases to have effect at

the time specified, unless it is revoked sooner.

Variation or revocation

(5) The Minister, or the Commission with the approval of the Minister,

may by notice published in the Gazette vary or revoke a

declaration under this section.

95Y Declarations in relation to State or Territory authorities

(1) The Minister must not make or approve a declaration of a State or

Territory authority under section 95X unless:

(a) the appropriate Minister of the State or Territory concerned

has agreed to the declaration being made; or

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Section 95Y

560 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the Council has, on the request (the current request) of an

Australian government, recommended the declaration and the

Minister has consulted the appropriate Minister of the State

or Territory concerned.

Role of Council

(2) The Council must not recommend a declaration of a State or

Territory authority in relation to goods or services unless it is

satisfied that:

(a) at least one Australian government has notified the State or

Territory concerned that the government is not satisfied that

there is effective supervision of the prices charged by the

authority for the supply of those goods or services; and

(b) there is not such effective supervision; and

(c) the supply of those goods or services by the authority has a

significant direct or indirect impact on qualifying trade or

commerce.

(3) The Council must also not recommend a declaration of a State or

Territory authority in relation to goods or services if:

(a) in the 5 year period before it received the current request, it

was satisfied (when considering a previous request) that there

was effective supervision of prices charged by the authority

for the supply of those goods or services; and

(b) it is satisfied that there has not been a substantial change in

the mechanism for that supervision since it was satisfied as

mentioned in paragraph (a).

(4) In deciding whether there is effective supervision of prices charged

by a State or Territory authority, if the State or Territory concerned

is a party to the Competition Principles Agreement, the Council

must apply the relevant principles set out in the agreement.

Definitions

(5) In this section:

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Section 95Z

Competition and Consumer Act 2010 561

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Australian government means the Commonwealth, a State, the

Australian Capital Territory or the Northern Territory.

qualifying trade or commerce means trade or commerce described

in paragraph 95C(1)(g) or trade and commerce between Australia

and another place.

95Z Price restrictions

Offence: previous local supply

(1) A person commits an offence if:

(a) the person is a declared person in relation to notified goods

or services; and

(b) the person supplies (the current supply) goods or services of

that description in a locality on particular terms and

conditions (the actual terms) at a particular price (the actual

price); and

(c) the person has supplied goods or services of that description

in that locality on the same or substantially similar terms and

conditions in the period of 12 months before the current

supply; and

(d) the actual price exceeds the highest price at which the person

has supplied goods or services of that description in that

locality on the same or substantially similar terms and

conditions in that period; and

(e) the current supply is not an exempt supply.

Penalty: 100 penalty units.

Note: Subsection (4) contains a defence to this offence.

Offence: no previous local supply

(2) A person commits an offence if:

(a) the person is a declared person in relation to notified goods

or services; and

(b) the person supplies (the current supply) goods or services of

that description in a locality on particular terms and

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Section 95Z

562 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

conditions (the actual terms) at a particular price (the actual

price); and

(c) the person has not supplied goods or services of that

description in that locality on the same or substantially

similar terms and conditions in the period of 12 months

before the current supply, but has supplied goods or services

of that description elsewhere in Australia on the same or

substantially similar terms and conditions in that period; and

(d) the actual price exceeds the highest price at which the person

has supplied goods or services of that description in Australia

on the same or substantially similar terms and conditions in

that period; and

(e) the current supply is not an exempt supply.

Penalty: 100 penalty units.

Note: Subsection (4) contains a defence to this offence.

Offence: no previous supply in Australia

(3) A person commits an offence if:

(a) the person is a declared person in relation to notified goods

or services; and

(b) the person supplies (the current supply) goods or services of

that description in a locality on particular terms and

conditions (the actual terms) at a particular price (the actual

price); and

(c) the person has not supplied goods or services of that

description in Australia on the same or substantially similar

terms and conditions in the period of 12 months before the

current supply; and

(d) the current supply is not an exempt supply.

Penalty: 100 penalty units.

Note: Subsection (4) contains a defence to this offence.

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Section 95Z

Competition and Consumer Act 2010 563

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Defence

(4) Subsection (1), (2) or (3) does not apply if the following 4

requirements are satisfied.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (4) (see subsection 13.3(3) of the Criminal Code).

Locality notice

(5) The first requirement is that the person has given the Commission

a notice (a locality notice) in writing stating that the person

proposes to supply goods or services of that description in that

locality on specified terms and conditions (the proposed terms) at a

specified price (the proposed price).

Note: The person may give further notices modifying the locality notice: see

section 95ZA.

Response to locality notice

(6) The second requirement is that:

(a) the applicable period in relation to the locality notice has

ended; or

(b) the Commission has given the person a notice in writing

stating that it has no objection to the person supplying goods

or services of that description in that locality on the proposed

terms at the proposed price; or

(c) both of the following apply:

(i) the Commission has given the person a notice (the

response notice) in writing stating that it would have no

objection to the person supplying goods or services of

that description in that locality on the proposed terms at

a specified price (the approved price) that is less than

the proposed price;

(ii) the person has, not later than 7 days after being given

the response notice, given the Commission a notice in

writing stating that the person proposes to supply goods

or services of that description in that locality on the

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Section 95ZA

564 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

proposed terms at a price not exceeding the approved

price.

Actual terms

(7) The third requirement is that the actual terms are the same as, or

substantially similar to, the proposed terms.

Actual price

(8) The fourth requirement is that the actual price does not exceed:

(a) if paragraph (6)(a) or (b) applies—the proposed price; or

(b) if paragraph (6)(c) applies—the approved price.

95ZA Later notices modifying a locality notice

(1) If a person gives the Commission a locality notice, the person may

give the Commission one or more further notices in writing stating

that the locality notice is to have effect as if there were substituted

for the proposed price another specified price.

(2) A price specified in a notice under subsection (1) must be:

(a) less than the proposed price; and

(b) less than the price specified in any previous notice under that

subsection in relation to the locality notice.

(3) If a notice is given under subsection (1), the locality notice has

effect accordingly.

(4) In this section:

proposed price has the meaning given by subsection 95Z(5).

95ZB Applicable period in relation to a locality notice

(1) The applicable period in relation to a locality notice is the period

(the price-freeze period) of 21 days starting on the day on which

the notice was given.

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Section 95ZC

Competition and Consumer Act 2010 565

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) However, the Commission may, with the consent of the person

who gave the locality notice, determine, before the end of the

price-freeze period, that the applicable period in relation to the

notice for the purposes of this section is a specified longer period.

(3) If the Commission so determines, that longer period is taken to

become the applicable period in relation to the locality notice.

(4) Also, if the Commission has given a response notice, the period

that is the applicable period (worked out under subsections (1) to

(3)) in relation to the locality notice is taken to be increased by a

period of 14 days.

Example: On 1 May the person gives the Commission a locality notice.

Under subsection (1), the applicable period ends on 21 May.

On 9 May the Commission, with the consent of the person,

determines, under subsection (2), that the applicable period ends on

31 May.

If the Commission also gives the person a response notice, under

subsection (4), the applicable period instead of ending on 31 May ends

on 14 June.

95ZC Register of price notifications

Keeping of register

(1) The Commission must keep, at such place as it thinks fit, a register

for the purposes of this section.

Information on the register

(2) If a person has given the Commission a locality notice, the

Commission must, as soon as practicable after the end of the

applicable period in relation to the notice, include in the register:

(a) a copy of the notice, on which has been endorsed, or to which

has been attached, a statement indicating the outcome of the

Commission’s consideration of the notice (including any

action taken by it in relation to the notice and the outcome of

any such action); and

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Section 95ZC

566 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) a copy of each notice given under this Part to, or by, the

Commission in relation to the locality notice; and

(c) a statement of the reasons for the outcome of the

Commission’s consideration of the locality notice.

Gazette notice

(3) The Commission must, within 3 months after the end of the

applicable period in relation to the locality notice, cause to be

published in the Gazette a notice:

(a) stating that the Commission received the locality notice and

specifying the date it received the notice; and

(b) setting out such particulars (if any) relating to the outcome of

the Commission’s consideration of the locality notice as it

considers appropriate.

Exclusion of confidential information

(4) A person who gives the Commission a document in relation to a

locality notice, or who makes an oral submission to the

Commission in relation to such a notice, may ask it to exclude

from a document to be placed in the register any information:

(a) that was in the document given by the person or in the

submission made by the person; and

(b) that the person claims is confidential.

(5) The Commission may exclude the information if it is satisfied that

the claim is justified and is not of the opinion that disclosure of the

information is necessary in the public interest.

(6) An application may be made to the Administrative Appeals

Tribunal for the review of a decision under subsection (5) to refuse

to exclude the information.

Inspection of register

(7) A person may, at any time during ordinary office hours in the place

where the register is kept, inspect or make copies of, or take

extracts from, the register.

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Section 95ZD

Competition and Consumer Act 2010 567

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Validity of acts done

(8) The validity of an act done by the Commission in relation to a

locality notice is not affected by a failure of the Commission to

comply with this section.

95ZD Delegation by Commission

(1) The Commission may, by writing, delegate to a member of the

Commission:

(a) the Commission’s price notification powers in relation to

specified locality notices; and

(b) the Commission’s power under section 95ZJ relating to a

notice given by the member exercising (as a delegate) the

Commission’s price notification powers.

(2) In this section:

price notification powers means the Commission’s powers under

paragraph 95Z(6)(b) or (c).

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Division 5 Price monitoring

Section 95ZE

568 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 5—Price monitoring

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

(1) The Minister may give the Commission a written direction:

(a) to monitor prices, costs and profits relating to the supply of

goods or services by persons in a specified industry; and

(b) to give the Minister a report on the monitoring at a specified

time or at specified intervals within a specified period.

Commercial confidentiality

(2) The Commission must, in preparing such a report, have regard to

the need for commercial confidentiality.

Public inspection

(3) The Commission must make copies of the report available for

public inspection as soon as practicable after it gives the Minister

the report.

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

(1) The Minister may give the Commission a written direction:

(a) to monitor prices, costs and profits relating to the supply of

goods or services by a specified person; and

(b) to give the Minister a report on the monitoring at a specified

time or at specified intervals within a specified period.

Commercial confidentiality

(2) The Commission must, in preparing such a report, have regard to

the need for commercial confidentiality.

Commission to send person a copy of the report

(3) The Commission must send the person a copy of the report on the

day it gives the Minister the report.

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Section 95ZG

Competition and Consumer Act 2010 569

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Public inspection

(4) The Commission must also make copies of the report available for

public inspection as soon as practicable after the person has

received a copy of the report.

95ZG Exceptions to price monitoring

Exempt supplies

(1) The Minister must not direct the Commission under this Division

to monitor prices, costs and profits relating to a supply of goods or

services of a particular description that is an exempt supply in

relation to goods or services of that description.

State or Territory authorities

(2) The Minister must not direct the Commission under this Division

to monitor prices, costs and profits of a State or Territory authority

that supplies goods or services unless the State or Territory

concerned has agreed to the direction being given.

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Division 6 Other provisions

Section 95ZH

570 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 6—Other provisions

95ZH Ministerial directions

Commission

(1) The Minister may, by notice in writing give to the Chairperson,

direct the Commission to give special consideration to a specified

matter or matters in exercising its powers and performing its

functions under this Part.

(2) The Commission must comply with any such directions.

Other bodies

(3) The Minister may, by notice in writing given to the person

presiding at an external inquiry, direct the body holding the inquiry

to give special consideration to a specified matter or matters in

holding the inquiry.

(4) The body must comply with any such directions.

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

individuals

(1) This section applies to inquiries by an unincorporated body or a

group of 2 or more individuals.

(2) The regulations may make provision for and in relation to the

manner in which the unincorporated body or group of individuals

is to:

(a) give a notice, report or other document to a person under this

Part; or

(b) do any other thing under this Part.

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Section 95ZJ

Competition and Consumer Act 2010 571

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

95ZJ Withdrawal of notices

Commission

(1) The Commission may give a person a notice (the withdrawal

notice) in writing withdrawing a notice it previously gave the

person under this Part (other than this section).

(2) If the Commission does so, this Part has effect, from the time at

which the withdrawal notice is given to the person, as if the other

notice had not been given to the person.

Other bodies

(3) The body holding an external inquiry may give a person a notice

(the withdrawal notice) in writing withdrawing a notice it

previously gave the person under this Part (other than this section).

(4) If the body does so, this Part has effect, from the time at which the

withdrawal notice is given to the person, as if the other notice had

not been given to the person.

95ZK Power to obtain information or documents

Notice by Commission

(1) If the Chairperson has reason to believe that a person is capable of

giving information or producing documents relevant to:

(a) the Commission considering the matters contained in a

locality notice that the person has given it; or

(b) an inquiry that is being held in relation to the person; or

(c) a supply of goods or services by the person that is of a kind

in relation to which the Commission is carrying out an

inquiry; or

(d) a supply of goods or services by the person that is of a kind

in relation to which the Commission is monitoring under

section 95ZE or 95ZF;

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Section 95ZK

572 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the Chairperson may, by notice in writing signed by him or her and

given to the person, require the person to do one or more of the

following:

(e) give the Commission, by writing signed by the person or his

or her agent or, in the case of a Commonwealth authority or a

body corporate, by a competent officer of the authority or

body, within the specified period and in the specified

manner, specified information relating to the affairs of the

person;

(f) produce to the Commission, within the specified period and

in the specified manner, specified documents relating to the

affairs of the person;

(g) if the person is a body corporate and the notice relates to the

matter in paragraph (d)—give the Commission, together with

the information or documents concerned, a declaration in a

form approved by the Chairperson and signed by:

(i) the Chief Executive Officer (however described) of the

body corporate; or

(ii) a person nominated by the Chief Executive Officer;

stating that the information or documents are true and

correct.

Notice by other bodies

(2) If:

(a) an external inquiry is being held in relation to a person; and

(b) the inquiry Chair has reason to believe that the person is

capable of giving information or producing documents

relevant to the inquiry;

the inquiry Chair may, by notice in writing signed by him or her

and given to the person, require the person:

(c) to give the body, by writing signed by the person or his or her

agent or, in the case of a Commonwealth authority or a body

corporate, by a competent officer of the authority or body,

within the specified period and in the specified manner,

specified information relating to the affairs of the person; or

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Section 95ZK

Competition and Consumer Act 2010 573

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(d) to produce to the body, within the specified period and in the

specified manner, specified documents relating to the affairs

of the person.

Period specified in notice

(3) A period specified in a notice under subsection (1) or (2) must end

at least 14 days after the notice was given.

Offence: refusal or failure to comply with notice

(4) A person commits an offence if the person refuses or fails to

comply with a notice given to the person under this section.

Penalty: 20 penalty units.

(5) Subsection (4) does not apply if the person has a reasonable

excuse.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (5) (see subsection 13.3(3) of the Criminal Code).

(6) It is a reasonable excuse for the purposes of subsection (4) for an

individual to refuse or fail to give information or produce a

document on the ground that the information or production of the

document might tend to incriminate the individual or to expose the

individual to a penalty.

(7) Subsection (6) does not limit what is a reasonable excuse for the

purposes of subsection (5).

Offence: false or misleading declarations

(8) A person must not, in a declaration made for the purposes of

paragraph (1)(g), make a statement if the person knows, or is

reckless as to whether, the statement is false or misleading.

Penalty: 20 penalty units.

Making information or documents publicly available

(9) If:

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Section 95ZL

574 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) a notice is given to a person under this section relating to an

inquiry that is being held in public in relation to the person;

and

(b) the person gives the information concerned or produces the

documents concerned to the inquiry body in connection with

the inquiry;

the inquiry body must make the information or documents

available to the public in such manner as it thinks fit.

Note: See also section 95ZN (about confidentiality of information).

95ZL Inspection of documents etc.

Members or staff members

(1) A member of the Commission, or a member of the staff of the

Commission, may inspect documents:

(a) given to the Commission for the purposes of the exercise of

its powers or the performance of its functions under this Part;

or

(b) produced at an inquiry.

(2) A member of the Commission, or a member of the staff of the

Commission, may also make copies of, or take extracts from, those

documents.

Associate members

(3) An associate member of the Commission may inspect documents:

(a) given to the Commission for the purposes of the exercise of

its powers or the performance of its functions under this Part

in relation to an inquiry for the purposes of which the

Chairperson has directed that the associate member be taken

to be a member of the Commission; or

(b) produced at that inquiry.

(4) An associate member of the Commission may also make copies of,

or take extracts from, those documents.

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Section 95ZM

Competition and Consumer Act 2010 575

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

External inquiries

(5) In an external inquiry, the person presiding at the inquiry, or a

person providing assistance in the inquiry to the body holding the

inquiry, may:

(a) inspect documents given to the body for the purposes of the

inquiry; and

(b) make copies of, or take extracts from, those documents.

95ZM Retention of documents

(1) The Commission, or a body other than the Commission, may retain

a document given or produced to it as mentioned in section 95ZL.

It may retain the document for such reasonable period as it thinks

fit.

(2) The person otherwise entitled to possession of the document is

entitled to be supplied, as soon as practicable, with a copy certified

by the Commission or other body, as the case may be, to be a true

copy.

(3) The certified copy must be received in all courts and tribunals as

evidence as if it were the original.

(4) Until a certified copy is supplied, the Commission or other body,

as the case may be, must, at such times and places as it thinks

appropriate, permit the person otherwise entitled to possession of

the document, or a person authorised by that person, to inspect and

make copies of, or take extracts from, the document.

95ZN Confidential information

(1) This section applies if a person claims that disclosure of the

following information would damage the competitive position of

the person:

(a) information made available, or to be made available, by or on

behalf of the person (whether in oral evidence or in a written

statement, submission or other document) at the hearing of an

inquiry by the Commission or another body;

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Section 95ZO

576 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) information given, or contained in a document produced, by

the person under section 95ZK to the Commission or another

body.

Commission or other body to take confidentiality steps

(2) If the Commission or other body, as the case may be:

(a) is satisfied that the claim is justified; and

(b) is not of the opinion that disclosure of the information is

necessary in the public interest;

it must take all reasonable steps to ensure that the information is

not disclosed, without the consent of the person, in the proceedings

or by it, to a person other than:

(c) in relation to the Commission:

(i) a member of the Commission or an associate member of

the Commission; or

(ii) a member of the staff of the Commission who receives

the information in the course of his or her duties; or

(d) in relation to the other body:

(i) the person presiding at the inquiry concerned; or

(ii) a person providing assistance in the inquiry to the other

body.

Interpretation

(3) This section has effect despite anything in sections 95R and 95ZK.

95ZO Immunity

Members or associate members of the Commission

(1) A member of the Commission, or an associate member of the

Commission, has, in the performance of his or her functions or the

exercise of his or her powers under this Part as a member or

associate member, the same protection and immunity as a Justice

of the High Court.

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Section 95ZP

Competition and Consumer Act 2010 577

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Person presiding at an external inquiry

(2) In an external inquiry, the person presiding at the inquiry has, in

the performance of his or her functions or the exercise of his or her

powers under this Part in that capacity, the same protection and

immunity as a Justice of the High Court.

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

Offence

(1) An entrusted person commits an offence if:

(a) the person:

(i) makes a copy or other record of any protected

information or of all or part of any protected document;

or

(ii) discloses any protected information to another person or

to a court; or

(iii) produces all or part of a protected document to another

person or to a court; and

(b) in doing so, the person is not acting in the course of

performing or exercising functions, powers or duties under or

in relation to this Act.

Penalty: Imprisonment for 2 years.

Courts

(2) An entrusted person cannot be required to:

(a) disclose any protected information to a court; or

(b) produce all or part of a protected document to a court;

unless that disclosure or production is necessary for the purpose of

carrying into effect the provisions of this Act.

Definitions

(3) In this section:

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Section 95ZQ

578 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

court includes any tribunal, authority or person having power to

require the production of documents or the answering of questions.

entrusted person means a person who is or was:

(a) a member of the Commission or an associate member of the

Commission; or

(b) a member of the staff of the Commission; or

(c) appointed or engaged under the Public Service Act 1999.

produce includes permit access to.

protected document means a document that:

(a) is given to or otherwise acquired by the Commission for the

purposes of this Part; and

(b) has not been made available to the public by the Commission

under this Part.

protected information means information that:

(a) is disclosed to, or obtained by, an entrusted person for the

purposes of this Part or as permitted by the repealed Part; and

(b) has not been made available to the public under this Part by

the Commission and is not contained in oral evidence given

in public at the hearing of an inquiry.

repealed Part means Part V of the Prices Surveillance Act 1983, as

continued in operation by Schedule 2 to the Trade Practices

Legislation Amendment Act 2003.

95ZQ Secrecy: persons involved in inquiries by bodies other than

the Commission

Offence

(1) An external person commits an offence if:

(a) the person:

(i) makes a copy or other record of any protected

information or of all or part of any protected document;

or

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Section 95ZQ

Competition and Consumer Act 2010 579

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(ii) discloses any protected information to another person or

to a court; or

(iii) produces all or part of a protected document to another

person or to a court; and

(b) in doing so, the person is not acting in the course of

performing or exercising functions, powers or duties under or

in relation to this Act.

Penalty: Imprisonment for 2 years.

Courts

(2) An external person cannot be required to:

(a) disclose any protected information to a court; or

(b) produce all or part of a protected document to a court;

unless that disclosure or production is necessary for the purpose of

carrying into effect the provisions of this Act.

Definitions

(3) In this section:

court includes any tribunal, authority or person having power to

require the production of documents or the answering of questions.

external person means a person who is or was:

(a) the person presiding at an external inquiry; or

(b) a person providing assistance in such an inquiry to the body

holding the inquiry.

produce includes permit access to.

protected document means a document that:

(a) is given to or otherwise acquired by the body holding the

external inquiry concerned for the purposes of that inquiry;

and

(b) has not been made available to the public by that body under

this Part.

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Division 6 Other provisions

Section 95ZQ

580 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

protected information means information that:

(a) is disclosed to, or obtained by, an external person for the

purposes of the inquiry concerned; and

(b) has not been made available to the public under this Part by

the body holding that inquiry and is not contained in oral

evidence given in public at the hearing of that inquiry.

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Resale price maintenance Part VIII

Section 96

Competition and Consumer Act 2010 581

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part VIII—Resale price maintenance

96 Acts constituting engaging in resale price maintenance

(1) Subject to this Part, a corporation (in this section called the

supplier) engages in the practice of resale price maintenance if that

corporation does an act referred to in any of the paragraphs of

subsection (3).

(2) Subject to this Part, a person (not being a corporation and also in

this section called the supplier) engages in the practice of resale

price maintenance if that person does an act referred to in any of

the paragraphs of subsection (3) where the second person

mentioned in that paragraph is a corporation.

(3) The acts referred to in subsections (1) and (2) are the following:

(a) the supplier making it known to a second person that the

supplier will not supply goods to the second person unless

the second person agrees not to sell those goods at a price

less than a price specified by the supplier;

(b) the supplier inducing, or attempting to induce, a second

person not to sell, at a price less than a price specified by the

supplier, goods supplied to the second person by the supplier

or by a third person who, directly or indirectly, has obtained

the goods from the supplier;

(c) the supplier entering into an agreement, or offering to enter

into an agreement, for the supply of goods to a second

person, being an agreement one of the terms of which is, or

would be, that the second person will not sell the goods at a

price less than a price specified, or that would be specified,

by the supplier;

(d) the supplier withholding the supply of goods to a second

person for the reason that the second person:

(i) has not agreed as mentioned in paragraph (a); or

(ii) has sold, or is likely to sell, goods supplied to him or her

by the supplier, or goods supplied to him or her by a

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Section 96

582 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

third person who, directly or indirectly, has obtained the

goods from the supplier, at a price less than a price

specified by the supplier as the price below which the

goods are not to be sold;

(e) the supplier withholding the supply of goods to a second

person for the reason that a third person who, directly or

indirectly, has obtained, or wishes to obtain, goods from the

second person:

(i) has not agreed not to sell those goods at a price less than

a price specified by the supplier; or

(ii) has sold, or is likely to sell, goods supplied to him or

her, or to be supplied to him or her, by the second

person, at a price less than a price specified by the

supplier as the price below which the goods are not to

be sold; and

(f) the supplier using, in relation to any goods supplied, or that

may be supplied, by the supplier to a second person, a

statement of a price that is likely to be understood by that

person as the price below which the goods are not to be sold.

(4) For the purposes of subsection (3):

(a) where a price is specified by another person on behalf of the

supplier, it shall be deemed to have been specified by the

supplier;

(b) where the supplier makes it known, in respect of goods, that

the price below which those goods are not to be sold is a

price specified by another person in respect of those goods,

or in respect of goods of a like description, that price shall be

deemed to have been specified, in respect of the

first-mentioned goods, by the supplier;

(c) where a formula is specified by or on behalf of the supplier

and a price may be ascertained by calculation from, or by

reference to, that formula, that price shall be deemed to have

been specified by the supplier; and

(d) where the supplier makes it known, in respect of goods, that

the price below which those goods are not to be sold is a

price ascertained by calculation from, or by reference to, a

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Section 96A

Competition and Consumer Act 2010 583

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

formula specified by another person in respect of those goods

or in respect of goods of a like description, that price shall be

deemed to have been specified, in respect of the

first-mentioned goods, by the supplier.

(5) In subsection (4), formula includes a set form or method.

(6) For the purposes of subsection (3), anything done by a person

acting on behalf of, or by arrangement with, the supplier shall be

deemed to have been done by the supplier.

(7) A reference in any of paragraphs (3)(a) to (e), inclusive, including

a reference in negative form, to the selling of goods at a price less

than a price specified by the supplier shall be construed as

including references to:

(a) the advertising of goods for sale at a price less than a price

specified by the supplier as the price below which the goods

are not to be advertised for sale;

(b) the displaying of goods for sale at a price less than a price

specified by the supplier as the price below which the goods

are not to be displayed for sale; and

(c) the offering of goods for sale at a price less than a price

specified by the supplier as the price below which the goods

are not to be offered for sale;

and a reference in paragraph (3)(d), (e) or (f) to a price below

which the goods are not to be sold shall be construed as including a

reference to the price below which the goods are not to be

advertised for sale, to the price below which the goods are not to be

displayed for sale and to the price below which the goods are not to

be offered for sale.

96A Resale price maintenance in relation to services

(1) This Part applies to conduct in relation to services in a way that

corresponds to the way it applies to conduct in relation to goods.

(2) For the purposes of subsection (1), this Part is to be read with

appropriate modifications, including the following modifications:

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Part VIII Resale price maintenance

Section 97

584 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) references in this Part to goods are to be read as references to

services;

(b) references to the sale of goods are to be read as references to

the re-supply of services.

97 Recommended prices

For the purposes of paragraph 96(3)(b), the supplier is not to be

taken as inducing, or attempting to induce, a second person as

mentioned in that paragraph in relation to any goods:

(a) by reason only of a statement of a price being applied to the

goods as mentioned in paragraph 99(1)(a) or being applied to

a covering, label, reel or thing as mentioned in

paragraph 99(1)(b), provided that the statement is preceded

by the words “recommended price”; or

(b) by reason only of his or her having given notification in

writing to the second person (not being a notification by way

of a statement being applied as mentioned in paragraph (a))

of the price that he or she recommends as appropriate for the

sale of those goods, provided that there is included in the

notification, and in each writing that refers, whether

expressly or by implication, to the notification, a statement to

the following effect:

“The price set out or referred to herein is a recommended

price only and there is no obligation to comply with the

recommendation.”.

98 Withholding the supply of goods

(1) For the purposes of paragraph 96(3)(d) or (e), the supplier shall be

deemed to withhold the supply of goods to another person if:

(a) the supplier refuses or fails to supply those goods to, or as

requested by, the other person;

(b) the supplier refuses to supply those goods except on terms

that are disadvantageous to the other person;

(c) in supplying goods to the other person, the supplier treats that

person less favourably, whether in respect of time, method or

place of delivery or otherwise, than the supplier treats other

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persons to whom the supplier supplies the same or similar

goods; or

(d) the supplier causes or procures a person to withhold the

supply of goods to the other person as mentioned in

paragraph (a), (b) or (c) of this subsection.

(2) Paragraph 96(3)(d) does not apply in relation to the withholding by

the supplier of the supply of goods to another person who, within

the preceding year, has sold goods obtained, directly or indirectly,

from the supplier at less than their cost to that other person:

(a) for the purpose of attracting to the establishment at which the

goods were sold persons likely to purchase other goods; or

(b) otherwise for the purpose of promoting the business of that

other person.

(3) For the purposes of subsection (2), there shall be disregarded:

(a) a genuine seasonal or clearance sale of goods that were not

acquired for the purpose of being sold at that sale; or

(b) a sale of goods that took place with the consent of the

supplier.

99 Statements as to the minimum price of goods

(1) For the purposes of paragraph 96(3)(f), if:

(a) a statement is applied to goods, whether by being woven in,

impressed on, worked into or annexed or affixed to the goods

or otherwise;

(b) a statement is applied to a covering, label, reel or thing in or

with which goods are supplied; or

(c) a statement is used in a sign, advertisement, invoice,

catalogue, business letter, business paper, price list or other

document or otherwise in a manner likely to lead to the belief

that it refers to goods;

the statement shall be deemed to have been used in relation to

those goods.

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(2) For the purposes of subsection (1), covering includes a stopper,

glass, bottle, vessel, box, capsule, case, frame or wrapper and label

includes a band or ticket.

100 Evidentiary provisions

(1) Where, in proceedings under this Act by a person (in this section

referred to as the plaintiff) against another person (in this section

referred to as the defendant), it is claimed that the defendant has

engaged in the practice of resale price maintenance and it is

established that:

(a) the defendant has acted, in relation to the plaintiff, as

mentioned in paragraph 98(1)(a), (b), (c) or (d);

(b) during a period ending immediately before the time when the

defendant so acted, the defendant had been supplying goods

of the kind withheld to the plaintiff or to another person

carrying on a business similar to that of the plaintiff; and

(c) during the period of 6 months immediately before the time

when the defendant so acted, the defendant became aware of

a matter or circumstance capable of constituting a reason

referred to in paragraph 96(3)(d) or (e) for the defendant’s so

acting;

then, subject to subsection (2), it shall be presumed, unless the

contrary is established, that that matter or circumstance was the

reason for the defendant’s so acting.

(2) Subsection (1) does not apply where the plaintiff establishes the

matter mentioned in paragraph 98(1)(b) or (c) but the terms

disadvantageous to the plaintiff, or the less favourable treatment of

the plaintiff, consisted only of a requirement by the defendant as to

the time at which, or the form in which, payment was to be made

or as to the giving of security to secure payment.

(3) In the application of this section in proceedings by the Commission

for an injunction, references to the plaintiff shall be construed as

references to a person specified in the application for the injunction

as the person in relation to whom the defendant is claimed to have

acted as mentioned in paragraph (1)(a).

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Part IX—Review by Tribunal of Determinations of

Commission

Division 1—Applications for review (other than for merger

clearances)

101 Applications for review

(1) A person dissatisfied with a determination by the Commission

under Division 1 of Part VII:

(a) in relation to an application for an authorization or a minor

variation of an authorization; or

(b) in relation to the revocation of an authorization, or the

revocation of an authorization and the substitution of another

authorization;

may, as prescribed and within the time allowed by or under the

regulations or under subsection (1B), as the case may be, apply to

the Tribunal for a review of the determination.

(1AAA) Subsection (1) does not apply to a determination under

subsection 89(1A).

(1AA) If:

(a) the person applying under subsection (1) for review of a

determination was the applicant for an authorization, or for

the minor variation of an authorization, for the revocation of

an authorization or for the revocation of an authorization and

the substitution of another authorization; or

(b) the Tribunal is satisfied that the person has a sufficient

interest;

the Tribunal must review the determination.

(1A) Where a person has, whether before or after the commencement of

this subsection, made an application under subsection (1) for a

review of a determination, the Tribunal may, if the Tribunal

determines it to be appropriate, make a determination by consent of

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the applicant, the Commission, and all persons who have been

permitted under subsection 109(2) to intervene in the proceedings

for review, whether or not the Tribunal is satisfied of the matters

referred to in subsection 90(5A), (5B), (5C), (5D), (6), (7), (8),

(8A), (8B) or (9).

(1B) A presidential member may, on the application of a person

concerned:

(a) in an application for an authorization under subsection 88(9);

or

(b) in an application for a minor variation or a revocation of such

an authorization; or

(c) in an application for the revocation of such an authorization

and the substitution of another authorization;

shorten the time allowed by or under the regulations within which

an application under subsection (1) may be made for a review of

the determination by the Commission of the application referred to

in paragraph (a), (b) or (c) if the member is satisfied that special

circumstances exist and that, in all the circumstances, it would not

be unfair to do so.

(2) A review by the Tribunal is a re-hearing of the matter and

subsections 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) and

(9), 91A(4), 91A(5), 91B(5) and 91C(7) apply in relation to the

Tribunal in like manner as they apply in relation to the

Commission.

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

or 93AC(1) or (2)

A person dissatisfied with the giving of a notice by the

Commission under subsection 93(3) or (3A) or 93AC(1) or (2)

may, as prescribed and within the time allowed by or under the

regulations, apply to the Tribunal for a review of the giving of the

notice and, if the person was the person to whom the notice was

given or the Tribunal is satisfied that the person has a sufficient

interest, the Tribunal shall review the giving of the notice.

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102 Functions and powers of Tribunal

(1) On a review of a determination of the Commission under

Division 1 of Part VII in relation to:

(a) an application for an authorization; or

(b) an application for a minor variation of an authorization; or

(c) an application for, or the Commission’s proposal for, the

revocation of an authorization; or

(d) an application for, or the Commission’s proposal for, the

revocation of an authorization and the substitution of another

authorization;

the Tribunal may make a determination affirming, setting aside or

varying the determination of the Commission and, for the purposes

of the review, may perform all the functions and exercise all the

powers of the Commission.

(1A) If a person applies to the Tribunal for review of a determination of

the Commission relating to:

(a) the grant of an authorisation under subsection 88(9); or

(b) the minor variation, or the revocation, of an authorization

granted under that subsection; or

(c) the revocation of an authorization granted under that

subsection and the substitution of another authorization;

the Tribunal must make its determination on the review within 60

days after receiving the application for review.

(1B) The 60 day time limit in subsection (1A) does not apply if the

Tribunal considers that the matter cannot be dealt with properly

within that period of 60 days, either because of its complexity or

because of other special circumstances.

(1C) If subsection (1B) applies, the Tribunal must notify the applicant

before the end of the 60 day period that the matter cannot be dealt

with properly within that period.

(2) A determination by the Tribunal affirming, setting aside or varying

a determination of the Commission under Division 1 of Part VII in

relation to:

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(a) an application for an authorization; or

(b) an application for a minor variation of an authorization; or

(c) an application for, or the Commission’s proposal for, the

revocation of an authorization; or

(d) an application for, or the Commission’s proposal for, the

revocation of an authorization and the substitution of another

authorization;

is, for the purposes of this Act other than this Part, to be taken to be

a determination of the Commission.

(4) Upon a review of the giving of a notice by the Commission under

subsection 93(3):

(a) if the person who applied for the review satisfies the Tribunal

that:

(i) the conduct or proposed conduct does not and would not

have the purpose, and does not and is not likely to have

or would not have and would not be likely to have the

effect, of substantially lessening competition (within the

meaning of section 47); or

(ii) in all the circumstances:

(A) the conduct or proposed conduct has resulted or

is likely to result, or would result or be likely to

result, in a benefit to the public; and

(B) that benefit outweighs or would outweigh the

detriment to the public constituted by any

lessening of competition that has resulted or is

likely to result, or would result or be likely to

result, from the conduct or proposed conduct;

the Tribunal must make a determination setting aside the

notice; or

(b) if the person who applied for the review does not so satisfy

the Tribunal—the Tribunal must make a determination

affirming the notice.

(5) Where the Tribunal makes a determination setting aside a notice

given by the Commission under subsection 93(3), then, after the

setting aside of the notice, subsection 93(7) has effect in relation to

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the conduct referred to in the notice as if the Commission had not

given the notice.

(5AA) Upon a review of the giving of a notice by the Commission under

subsection 93AC(1):

(a) if the person who applied for the review satisfies the Tribunal

that any benefit to the public that has resulted or is likely to

result or would result or be likely to result from the provision

outweighs or would outweigh the detriment to the public that

has resulted or is likely to result or would result or be likely

to result from the provision—the Tribunal must make a

determination setting aside the notice; or

(b) if the person who applied for the review does not so satisfy

the Tribunal—the Tribunal must make a determination

affirming the notice.

(5AB) Upon a review of the giving of a notice by the Commission under

subsection 93AC(2):

(a) if the person who applied for the review satisfies the Tribunal

that:

(i) the provision does not and would not have the purpose,

and does not and is not likely to have or would not have

and would not be likely to have the effect, of

substantially lessening competition (within the meaning

of section 45); or

(ii) in all the circumstances:

(A) the provision has resulted or is likely to result,

or would result or be likely to result, in a

benefit to the public; and

(B) that benefit outweighs or would outweigh the

detriment to the public constituted by any

lessening of competition that has resulted or is

likely to result, or would result or be likely to

result, from the provision;

the Tribunal must make a determination setting aside the

notice; or

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(b) if the person who applied for the review does not so satisfy

the Tribunal—the Tribunal must make a determination

affirming the notice.

(5AC) If the Tribunal sets aside a notice (the objection notice) given by

the Commission under subsection 93AC(1) or (2), then:

(a) if the Commission gave the objection notice as part of a

process starting when the Commission gave a notice under

subsection 93A(2) (conference notice) during the period

described in paragraph 93AD(1)(a)—the Commission is

taken for the purposes of paragraph 93AD(1)(b) to have

decided not to give the objection notice at the time the

Tribunal set it aside; and

(b) for the purposes of subsections 93AD(2) and (3), the

objection notice is taken not to have been given.

(5A) The Tribunal must set aside a notice under subsection 93(3A) if the

person who applied for a review of the giving of the notice satisfies

the Tribunal that the likely benefit to the public from the conduct

or proposed conduct to which the notice relates will outweigh the

likely detriment to the public from the conduct or proposed

conduct.

(5B) The Tribunal must affirm the giving of a notice under

subsection 93(3A) if the person who applied for a review of the

giving of the notice does not satisfy the Tribunal as described in

subsection (5A).

(5C) If the Tribunal sets aside a notice given by the Commission under

subsection 93(3A), then:

(a) if the Commission gave the notice as part of a process

starting when the Commission gave a notice under

subsection 93A(2) during the period described in

paragraph 93(7A)(a)—the Commission is taken for the

purposes of paragraph 93(7A)(b) to have decided not to give

the notice under subsection 93(3A) at the time the Tribunal

set aside the notice given under subsection 93(3A); and

(b) for the purposes of subsections 93(7B) and (7C) the notice is

taken not to have been given.

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(6) For the purposes of a review by the Tribunal under this Division,

the member of the Tribunal presiding at the review may require the

Commission to furnish such information, make such reports and

provide such other assistance to the Tribunal as the member

specifies.

(7) For the purposes of a review under this Division, the Tribunal may

have regard to any information furnished, documents produced or

evidence given to the Commission in connexion with the making

of the determination, or the giving of the notice, to which the

review relates.

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Division 2—Procedure and Evidence

102A Definition

In this Part:

proceedings includes:

(a) applications made to the Tribunal under Subdivision C of

Division 3 of Part VII; and

(b) applications made to the Tribunal under section 111 (about

review of Commission’s decisions on merger clearances).

103 Procedure generally

(1) In proceedings before the Tribunal:

(a) the procedure of the Tribunal is, subject to this Act and the

regulations, within the discretion of the Tribunal;

(b) the proceedings shall be conducted with as little formality

and technicality, and with as much expedition, as the

requirements of this Act and a proper consideration of the

matters before the Tribunal permit; and

(c) the Tribunal is not bound by the rules of evidence.

(2) The powers of the Tribunal with respect to matters of procedure in

particular proceedings may be exercised by a presidential member.

(3) The powers mentioned in subsection (2) may be exercised by a

presidential member:

(a) whether or not the Tribunal has been constituted under

section 37 in relation to the proceedings; and

(b) once the Tribunal is so constituted—whether or not that

member is part of the Division of the Tribunal so constituted.

104 Regulations as to certain matters

The regulations may make provision:

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(a) for securing, by means of preliminary statements of facts and

contentions, and by the production of documents, that all

material facts and considerations are brought before the

Tribunal by all persons participating in any proceedings

before the Tribunal; and

(aa) with respect to evidence in proceedings before the Tribunal,

including the appointment of persons to assist the Tribunal

by giving evidence (whether personally or by means of a

written report); and

(b) with respect to the representation in any such proceedings of

persons having a common interest in the proceedings.

105 Power to take evidence on oath

(1) The Tribunal may take evidence on oath or affirmation and for that

purpose a member of the Tribunal may administer an oath or

affirmation.

(2) A member of the Tribunal may summon a person to appear before

the Tribunal to give evidence and to produce such documents (if

any) as are referred to in the summons.

106 Hearings to be in public except in special circumstances

(1) Subject to this section, the hearing of proceedings before the

Tribunal shall be in public.

(2) Where the Tribunal is satisfied that it is desirable to do so by

reason of the confidential nature of any evidence or matter or for

any other reason, the Tribunal may:

(a) direct that a hearing or part of a hearing shall take place in

private and give directions as to the persons who may be

present; or

(b) give directions prohibiting or restricting the publication of

evidence given before the Tribunal, whether in public or in

private, or of matters contained in documents filed or lodged

with the Registrar, received in evidence by the Tribunal or

placed in the records of the Tribunal.

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(3) The powers of the Tribunal under this section may be exercised by

the Tribunal as constituted for the purposes of the hearing or by the

Tribunal constituted by a presidential member.

107 Evidence in form of written statement

The Tribunal may permit a person appearing as a witness before

the Tribunal to give evidence by tendering, and, if the Tribunal

thinks fit, verifying by oath or affirmation, a written statement,

which shall be filed with the Registrar.

108 Taking of evidence by single member

The Tribunal as constituted for the purposes of any proceedings in

which evidence may be taken may authorize a presidential member

to take evidence for the purposes of the proceedings on its behalf,

with such limitations (if any) as the Tribunal so constituted directs,

and, where such an authority is given:

(a) that member may take evidence accordingly; and

(b) for the purposes of this Act, that member shall, in relation to

the taking of evidence in accordance with the authority, be

deemed to constitute the Tribunal.

109 Participants in proceedings before Tribunal

(1) A person to whom an authorization under Division 1 of Part VII

was granted is entitled to participate in any proceedings before the

Tribunal instituted by another person in relation to that

authorization.

(1A) A person to whom a notice was given by the Commission under

subsection 93(3) or (3A) or 93AC(1) or (2) is entitled to participate

in any proceedings before the Tribunal instituted by another person

in relation to that notice.

(2) The Tribunal may, upon such conditions as it thinks fit, permit a

person to intervene in proceedings before the Tribunal.

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110 Representation

In proceedings before the Tribunal:

(a) a natural person may appear in person;

(aa) a person other than a body corporate may be represented by

an employee of the person approved by the Tribunal;

(b) a body corporate may be represented by an employee, or a

director or other officer, of the body corporate approved by

the Tribunal;

(c) an unincorporated association of persons or a member of an

unincorporated association of persons may be represented by

a member or officer of the association approved by the

Tribunal; and

(d) any person may be represented by a barrister or a solicitor of

the Supreme Court of a State or Territory or of the High

Court.

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Division 3—Review of Commission’s determinations on

merger clearances

111 Applications for review

(1) A person who applied under Subdivision B of Division 3 of

Part VII for:

(a) a clearance; or

(b) a minor variation of a clearance; or

(c) a revocation of a clearance; or

(d) a revocation of a clearance and a substitution of another

clearance;

and who is dissatisfied with the determination by the Commission

in relation to the application may, as prescribed and within the time

allowed by or under the regulations or under subsection (5), apply

to the Tribunal for a review of the determination.

(2) A person who was granted a clearance under Subdivision B of

Division 3 of Part VII that was:

(a) revoked by a determination of the Commission under

section 95AS; or

(b) revoked and substituted with another clearance by a

determination of the Commission under section 95AS;

may, as prescribed and within the time allowed by or under the

regulations, apply to the Tribunal for a review of the determination.

(2A) The regulations may make it a requirement that an applicant under

subsection (1) or (2) give an undertaking under section 87B that

the applicant will not make the acquisition while the application is

being considered by the Tribunal.

(3) The Tribunal must review the determination after receiving the

application and the prescribed fee.

Note: Division 2 contains provisions about procedure and evidence that

relate to proceedings before the Tribunal.

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(4) If a person has made an application under subsection (1) or (2) for

a review of a determination, the Tribunal may, if the Tribunal

determines it to be appropriate, make a determination by consent of

the applicant and the Commission, whether or not the Tribunal is

satisfied of the matters referred to in section 95AN.

(5) A presidential member may, on the application by the applicant,

shorten the time allowed by or under the regulations within which

an application under subsection (1) may be made if the member is

satisfied that special circumstances exist and that, in all the

circumstances, it would not be unfair to do so.

112 Tribunal to notify Commission

The Tribunal must notify the Commission of the application for

review.

113 Commission to give material to Tribunal

(1) After being notified of the application for review, the Commission

must, within 2 business days, give to the Tribunal all the

information that the Commission took into account in connection

with the making of the determination to which the review relates.

(1A) The Commission must identify which of that information (if any)

the Commission excluded from the merger clearance register under

subsection 95AI(3), (4) or (7).

(2) In this section:

business day means a day that is not a Saturday, a Sunday, or a

public holiday in the Australian Capital Territory.

merger clearance register means the register kept under

section 95AH.

114 Tribunal may consult etc. to clarify information

(1) The Tribunal may seek such relevant information, and consult with

such persons, as it considers reasonable and appropriate for the

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purposes of clarifying the information given to it under

section 113.

(2) The Tribunal may disclose information identified under

subsection 113(1A) to such persons and on such terms as it

considers reasonable and appropriate for the purposes of clarifying

the information.

115 Commission to assist Tribunal

For the purposes of the review, 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.

116 Tribunal only to consider material before the Commission

For the purposes of the review, the Tribunal may have regard only

to:

(a) the information given to the Commission in connection with

the making of the determination to which the review relates

and that was given to the Tribunal under section 113; and

(b) any other information that was referred to in the

Commission’s reasons for making the determination to which

the review relates; and

(c) any information given to the Tribunal under section 114; and

(d) any information or report given to the Tribunal under

section 115.

117 Tribunal to make decision on review

On the review of the Commission’s determination, the Tribunal

must make a determination affirming, setting aside or varying the

Commission’s determination.

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118 Time limits for making review decision

(1) The Tribunal must make its decision on the review within 30

business days after receiving the application for review.

(2) However, if before the end of that period the Tribunal decides that

the matter cannot be dealt with properly within that period, either

because of its complexity or because of other special

circumstances, the period is extended by a further 60 business

days.

(3) If the Tribunal makes a decision under subsection (2), the Tribunal

must notify the applicant of it before the end of the 30 business day

period.

(3A) If the Tribunal has not made its decision on the review within the

period applicable under subsection (1) or (2), the Tribunal is taken

to have made a determination affirming the Commission’s

determination.

(4) In this section:

business day means a day that is not a Saturday, a Sunday, or a

public holiday in the Australian Capital Territory.

119 Tribunal’s decision taken to be Commission’s

The Tribunal’s decision affirming, setting aside or varying the

Commission’s determination is, for the purposes of this Act other

than this Part, taken to be the Commission’s determination.

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 Competition and Consumer Act 2010 (consolidated as of 23 February 2017)

Prepared by the Office of Parliamentary Counsel, Canberra

Competition and Consumer Act 2010

No. 51, 1974

Compilation No. 107

Compilation date: 23 February 2017

Includes amendments up to: Act No. 5, 2017

Registered: 3 March 2017

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

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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 23 February 2017 (the compilation

date).

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 the Legislation Register (www.legislation.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 the Legislation Register 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.

Editorial changes

For more information about any editorial changes made in this compilation, see

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 the Legislation

Register 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.

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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

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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

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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

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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

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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

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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 Legislation Act 2003 ..........................96

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

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

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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

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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

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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

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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 171 140 Definitions.....................................................................171

140A Object of this Part..........................................................172

140B The applied Australian Consumer Law .........................173

140C Federal Court may exercise jurisdiction under

application laws of Territories.......................................173

140D Exercise of jurisdiction under cross-vesting

provisions ......................................................................173

140E Commonwealth consent to conferral of functions

etc. on Commonwealth entities .....................................173

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140F How duty is imposed.....................................................174

140G When an application law imposes a duty.......................175

140H Application laws may operate concurrently with

this Act ..........................................................................175

140J No doubling-up of liabilities .........................................175

140K References in instruments to the Australian

Consumer Law ..............................................................176

Part XIA—The Competition Code 177 150A Definitions.....................................................................177

150B Objects of this Part ........................................................178

150C The Competition Code ..................................................178

150D Federal Court may exercise jurisdiction under

application laws of Territories.......................................179

150E Exercise of jurisdiction under cross-vesting

provisions ......................................................................179

150F Commonwealth consent to conferral of functions

etc. on Commonwealth entities .....................................179

150FA How duty is imposed.....................................................180

150FB When an application law imposes a duty.......................181

150G Application laws may operate concurrently with

this Act ..........................................................................181

150H No doubling-up of liabilities .........................................181

150I References in instruments to the Competition

Code ..............................................................................182

150J Authorisations etc. under this Act may relate also

to Competition Code .....................................................182

150K Gazettal of jurisdictions that excessively modify

the Code ........................................................................182

Part XIB—The Telecommunications Industry:

Anti-competitive conduct and record-keeping rules 183

Division 1—Introduction 183

151AA Simplified outline..........................................................183

151AB Definitions.....................................................................184

151AC Extension to external Territories ...................................186

151AD Continuity of partnerships .............................................186

151AE Additional operation of Part ..........................................186

151AF Telecommunications market .........................................187

151AG When a body corporate is related to a partnership.........188

151AH Degree of power in a telecommunications market ........188

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

Part ................................................................................190

Division 2—Anti-competitive conduct 191

151AJ Anti-competitive conduct ..............................................191

151AK The competition rule .....................................................194

Division 3—Competition notices and exemption orders 195

Subdivision A—Competition notices 195

151AKA Part A competition notices ............................................195

151AL Part B competition notices.............................................196

151AM Competition notice to be given to carrier or

carriage service provider ...............................................197

151AN Evidentiary effect of competition notice .......................197

151AO Duration of Part A competition notice...........................197

151AOA Variation of competition notice.....................................198

151AOB Revocation of competition notice..................................198

151AP Guidelines .....................................................................198

151AQ Commission to act expeditiously...................................199

151AQA Stay of proceedings relating to competition notices ......199

151AQB Advisory notices............................................................200

151AR Register of competition notices .....................................201

Subdivision B—Exemption orders 202

151AS Exemption orders ..........................................................202

151AT Form of application .......................................................202

151AU Further information .......................................................203

151AV Withdrawal of application .............................................203

151AW Commission must publicise receipt of applications.......203

151AX Commission may refuse to consider application if

it relates to the same conduct as an authorisation

application .....................................................................203

151AY Commission may refuse to consider application if

it relates to the same conduct as a Part VII

notification ....................................................................204

151AZ Commission may convene conference to discuss

application .....................................................................205

151BA Commission must grant or reject application ................205

151BB Commission to give opportunity for submissions .........205

151BC Criteria for making exemption order .............................205

151BD Notification of decision .................................................207

151BE Duration of exemption order may be limited.................207

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151BF Conditions of exemption order ......................................207

151BG Revocation of exemption order .....................................208

151BH Register of exemption orders.........................................208

Subdivision C—Miscellaneous 210

151BJ Conduct includes proposed conduct ..............................210

Division 4—Tariff filing 211

151BK Tariff filing directions ...................................................211

151BL Specification of goods and services...............................213

151BM Notification of reasons ..................................................213

151BN Duration of direction may be limited.............................214

151BO Revocation of direction .................................................214

151BP Variation of direction ....................................................214

151BQ Public access to tariff information.................................215

151BR Register of tariff filing directions ..................................215

151BT Meaning of terms and conditions ..................................216

Division 5—Tariff filing by Telstra 218

151BTA Tariff filing by Telstra ...................................................218

Division 6—Record-keeping rules and disclosure directions 220

151BU Commission may make record-keeping rules................220

151BUAA Minister may give directions to Commission ................221

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

151BUA Commission gives access to reports ..............................223

151BUB Carrier or carriage service provider gives access to

reports............................................................................226

151BUC Carrier or carriage service provider gives access to

periodic reports..............................................................229

151BUD Exemption of reports from access requirements............233

151BUDA Commission gives access to Ministerially-directed

reports............................................................................234

151BUDB Carrier or carriage service provider gives access to

Ministerially-directed reports ........................................236

151BUDC Carrier or carriage service provider gives access to

Ministerially-directed periodic reports ..........................238

151BUE Access via the internet...................................................241

151BUF Self-incrimination..........................................................241

151BV Incorrect records............................................................241

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Division 7—Enforcement of the competition rule, tariff filing

directions, record-keeping rules and disclosure

directions 243

151BW Person involved in a contravention of the

competition rule, a tariff filing direction, a

record-keeping rule or a disclosure direction ................243

151BX Pecuniary penalties for breach of the competition

rule, a tariff filing direction, a record-keeping rule

or a disclosure direction ................................................243

151BY Civil action for recovery of pecuniary penalties............245

151BZ Criminal proceedings not to be brought for

contraventions of the competition rule, tariff filing

directions, record-keeping rules or disclosure

directions.......................................................................246

151CA Injunctions.....................................................................247

151CB Orders to disclose information or publish an

advertisement—breach of the competition rule.............249

151CC Actions for damages—breach of the competition

rule ................................................................................249

151CD Finding of fact in proceedings to be evidence ...............250

151CE Other orders—compensation for breach of the

competition rule.............................................................250

151CF Conduct by directors, employees or agents ...................252

Division 8—Disclosure of documents by Commission 253

151CG Disclosure of documents by Commission .....................253

Division 9—Treatment of partnerships 255

151CH Treatment of partnerships..............................................255

Division 10—Review of decisions 256

151CI Review by Tribunal .......................................................256

151CJ Functions and powers of Tribunal .................................257

151CK Provisions that do not apply in relation to a

Tribunal review .............................................................258

Division 11—Reviews of competitive safeguards within the

telecommunications industry 259

151CL Reviews of competitive safeguards within the

telecommunications industry.........................................259

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Division 12—Monitoring of telecommunications charges paid by

consumers 260

151CM Monitoring of telecommunications charges paid by

consumers......................................................................260

Division 12A—Reports about competition in the

telecommunications industry 261

151CMA Public reports about competition in the

telecommunications industry.........................................261

151CMB Confidential reports about competition in the

telecommunications industry.........................................262

151CMC Examples of matters that may be specified in a

determination under section 151CMA or 151CMB.......262

Division 15—Voluntary undertakings given by Telstra 264

151CQ Voluntary undertakings given by Telstra.......................264

Division 16—NBN corporations 265

151DA Authorised conduct—subsection 51(1) .........................265

151DB Listed points of interconnection ....................................270

Part XIC—Telecommunications access regime 271

Division 1—Introduction 271

152AA Simplified outline..........................................................271

152AB Object of this Part..........................................................273

152AC Definitions.....................................................................275

152AD This Part binds the Crown .............................................279

152AE Extension to external Territories ...................................279

152AF Access ...........................................................................279

152AG Access seeker ................................................................280

152AGA Designated superfast telecommunications network.......280

152AH Reasonableness—terms and conditions.........................284

152AI When public inquiry commences ..................................285

152AJ Interpretation of Part IIIA not affected by this Part .......285

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

Part ................................................................................285

Division 2—Declared services 286

152AL Declared services...........................................................286

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

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

152AN Combined inquiries about proposals to declare

services..........................................................................295

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152AO Variation or revocation of declaration...........................296

152AQ Register of declared services .........................................296

152AQC Compensation for acquisition of property .....................297

Division 3—Standard access obligations 298

Subdivision A—Category A standard access obligations 298

152AR Category A standard access obligations ........................298

152ARA Layer 2 bitstream services to be supplied on a

non-discriminatory basis ...............................................302

152ARB Layer 2 bitstream services—carriers and carriage

service providers to carry on related activities on a

non-discriminatory basis ...............................................304

152ASA Anticipatory class exemptions from category A

standard access obligations............................................305

152ATA Anticipatory individual exemptions from category

A standard access obligations........................................307

152AU Individual exemptions—request for further

information....................................................................311

152AXA Statement of reasons for decision—specification

of documents .................................................................312

Subdivision B—Category B standard access obligations 312

152AXB Category B standard access obligations ........................312

152AXC NBN corporation to supply declared services on a

non-discriminatory basis ...............................................315

152AXD NBN corporation to carry on related activities on a

non-discriminatory basis ...............................................316

Subdivision C—Compliance with standard access obligations 317

152AY Compliance with standard access obligations................317

152AYA Ancillary obligations—confidential information...........318

152AZ Carrier licence condition ...............................................319

152BA Service provider rule .....................................................320

152BB Judicial enforcement of standard access

obligations .....................................................................320

152BBAA Judicial enforcement of conditions and limitations

of exemption determinations and orders........................322

152BBA Commission may give directions in relation to

negotiations ...................................................................322

152BBB Enforcement of directions .............................................324

152BBC Commission’s role in negotiations ................................325

152BBD Reaching agreement on terms and conditions of

access ............................................................................326

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Division 4—Access determinations 327

Subdivision A—Commission may make access determinations 327

152BC Access determinations...................................................327

152BCA Matters that the Commission must take into

account ..........................................................................329

152BCB Restrictions on access determinations ...........................330

152BCC Access agreements prevail over inconsistent

access determinations ....................................................334

152BCCA Final migration plan prevails over inconsistent

access determinations ....................................................334

152BCD Fixed principles provisions............................................335

152BCE Access determinations may be set out in the same

document .......................................................................337

152BCF Duration of access determination ..................................337

152BCG Interim access determinations .......................................341

152BCGA Stay of access determinations........................................342

Subdivision B—Public inquiries about proposals to make access

determinations 342

152BCH Access determination to be made after public

inquiry ...........................................................................342

152BCI When public inquiry must be held.................................342

152BCJ Combined inquiries about proposals to make

access determinations ....................................................345

152BCK Time limit for making an access determination.............346

Subdivision C—Variation or revocation of access determinations 347

152BCN Variation or revocation of access determinations ..........347

Subdivision D—Compliance with access determinations 349

152BCO Carrier licence condition ...............................................349

152BCP Service provider rule .....................................................349

Subdivision E—Private enforcement of access determinations 349

152BCQ Private enforcement of access determinations...............349

152BCR Consent injunctions .......................................................350

152BCS Interim injunctions ........................................................350

152BCT Factors relevant to granting a restraining

injunction.......................................................................350

152BCU Factors relevant to granting a mandatory

injunction.......................................................................351

152BCV Discharge or variation of injunction or other order .......351

Subdivision F—Register of Access Determinations 351

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152BCW Register of Access Determinations................................351

Division 4A—Binding rules of conduct 353

Subdivision A—Commission may make binding rules of conduct 353

152BD Binding rules of conduct ...............................................353

152BDAA Matters that the Commission must take into

account ..........................................................................354

152BDA Restrictions on binding rules of conduct .......................356

152BDB Access agreements prevail over inconsistent

binding rules of conduct ................................................360

152BDC Duration of binding rules of conduct.............................360

152BDCA Final migration plan prevails over inconsistent

binding rules of conduct ................................................360

152BDD Commission must give copy of binding rules of

conduct to carrier etc. ....................................................360

152BDE Access determinations that are inconsistent with

binding rules of conduct ................................................361

152BDEA Stay of binding rules of conduct....................................361

Subdivision B—Compliance with binding rules of conduct 361

152BDF Carrier licence condition ...............................................361

152BDG Service provider rule .....................................................361

Subdivision C—Private enforcement of binding rules of conduct 362

152BDH Private enforcement of binding rules of conduct ...........362

152BDI Consent injunctions .......................................................363

152BDJ Interim injunctions ........................................................363

152BDK Factors relevant to granting a restraining

injunction.......................................................................363

152BDL Factors relevant to granting a mandatory

injunction.......................................................................364

152BDM Discharge or variation of injunction or other order .......364

Subdivision D—Register of Binding Rules of Conduct 364

152BDN Register of Binding Rules of Conduct...........................364

Division 4B—Access agreements 366

152BE Access agreements ........................................................366

152BEA Quarterly reports about access agreements....................368

152BEB Commission may request copy of access

agreement or variation agreement .................................369

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152BEBA NBN corporation to give the Commission a

statement about the differences between an access

agreement and a standard form of access

agreement ......................................................................370

152BEBB NBN corporation to give the Commission a

statement about the differences between an access

agreement and a special access undertaking..................371

152BEBC NBN corporation to give the Commission a

statement about the differences between an access

agreement and an access determination.........................373

152BEBD Register of NBN Access Agreement Statements...........374

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..................375

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.........................377

152BEBG Register of Layer 2 Bitstream Access Agreement

Statements .....................................................................379

152BEC Carrier licence condition ...............................................379

152BED Service provider rule .....................................................380

Division 5—Access undertakings 381

Subdivision B—Special access undertakings 381

152CBA What is a special access undertaking? ..........................381

152CBAA Fixed principles terms and conditions ...........................384

152CBB Further information about undertaking..........................388

152CBC Commission to accept or reject access undertaking.......389

152CBCA Serial undertakings ........................................................392

152CBD Criteria for accepting access undertaking......................392

152CBDA Variation of special access undertaking ........................395

152CBE Extension of access undertaking....................................395

152CBF Duration of access undertaking .....................................397

152CBG Variation of access undertakings ...................................397

152CBH Further information about variation of access

undertaking....................................................................399

152CBI Voluntary withdrawal of undertaking............................400

152CBIA Special access undertakings prevail over

inconsistent access determinations ................................400

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152CBIB Special access undertakings prevail over

inconsistent binding rules of conduct ............................401

152CBIC Access agreements prevail over special access

undertakings ..................................................................401

152CBJ Proposed service............................................................401

Subdivision C—General provisions 401

152CC Register of access undertakings.....................................401

152CD Enforcement of access undertakings .............................402

152CDA Deferral of consideration of an access undertaking

etc. .................................................................................402

Division 6—Ministerial pricing determinations 403

152CH Ministerial pricing determinations.................................403

152CI Undertakings, access determinations and binding

rules of conduct that are inconsistent with

Ministerial pricing determinations.................................403

152CJ Register of Ministerial pricing determinations ..............404

Division 6A—Supply of services by NBN corporations 405

152CJA Supply of services by NBN corporations ......................405

152CJB Mandatory NBN services ..............................................406

152CJC Carrier licence condition ...............................................408

152CJD Service provider rule .....................................................408

152CJE Judicial enforcement of obligations...............................408

152CJF Standard form of access agreement ...............................409

152CJG When NBN corporation is not capable of

supplying a carriage service ..........................................409

Division 6B—Explanatory material relating to

anti-discrimination provisions 410

152CJH Explanatory material relating to

anti-discrimination provisions .......................................410

Division 7—Relationship between this Part and Part IIIA 411

152CK Relationship between this Part and Part IIIA.................411

Division 10—Hindering the fulfilment of a standard access

obligation etc. 412

152EF Prohibition on hindering the fulfilment of a

standard access obligation etc........................................412

152EG Enforcement of prohibition on hindering the

fulfilment of a standard access obligation etc................412

152EH Consent injunctions .......................................................413

152EI Interim injunctions ........................................................413

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152EJ Factors relevant to granting a restraining

injunction.......................................................................414

152EK Factors relevant to granting a mandatory

injunction.......................................................................414

152EL Discharge or variation of injunction or other order .......414

Division 10A—Procedural Rules 415

152ELA Procedural Rules ...........................................................415

152ELB Public consultation ........................................................416

152ELC Plan for the development of Procedural Rules ..............416

Division 11—Miscellaneous 417

152ELD Compensation for acquisition of property .....................417

152EM Continuity of partnerships .............................................417

152EN Treatment of partnerships..............................................417

152EO Conduct by directors, servants or agents .......................418

152EOA Review of operation of this Part etc. .............................419

152EP Regulations about fees for inspection etc. of

registers .........................................................................420

152EQ Assistance to independent telecommunications

adjudicator.....................................................................420

152ER Voluntary undertakings given by Telstra.......................421

Part XID—Search and seizure 422

Division 1—Preliminary 422

154 Simplified outline..........................................................422

154A Definitions.....................................................................422

Division 2—Appointment of inspectors and identity cards 425

154B Appointment of inspectors ............................................425

154C Identity cards .................................................................425

Division 3—Entry to premises with consent 427

154D Entry with consent.........................................................427

154E Powers in relation to premises.......................................427

154F Operation of electronic equipment at premises .............428

Division 4—Entry to premises under a search warrant 430

Subdivision A—Powers available under a search warrant 430

154G The things that are authorised by a search warrant ........430

154GA Removing things for examination or processing ...........431

154H Operation of electronic equipment at premises .............432

154J Securing electronic equipment for use by experts .........434

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Subdivision B—Availability of assistance and use of force in

executing a search warrant 435

154K Authorisation of officers assisting .................................435

154L Availability of assistance and use of force in

executing a search warrant ............................................435

Subdivision C—Obligations of executing officer and officers

assisting 436

154M Announcement before entry ..........................................436

154N Details of warrant to be given to occupier .....................436

Subdivision D—Occupier’s rights and responsibilities 436

154P Occupier entitled to observe search being

conducted ......................................................................436

154Q Occupier to provide reasonable facilities and

assistance.......................................................................437

154R Answering of questions or producing evidential

material..........................................................................437

154RA Person with computer knowledge to assist access

etc. .................................................................................438

Subdivision E—General provisions relating to seizure 439

154S Copies of seized things to be provided ..........................439

154T Receipts for things seized or moved under warrant .......439

154U Return of seized things ..................................................439

154V Magistrate may permit a thing to be retained ................440

154W Disposal of things if there is no owner or owner

cannot be located...........................................................441

Subdivision F—Search warrants 441

154X Issue of search warrants ................................................441

154Y Search warrants by telephone, fax etc. ..........................443

154Z Offences relating to warrants.........................................445

Subdivision G—Powers of magistrates 446

154ZA Powers conferred on magistrates ...................................446

Division 5—General provisions relating to electronic equipment 447

154ZB Operation of electronic equipment at premises .............447

154ZC Compensation for damage to electronic equipment.......447

Part XII—Miscellaneous 449 155 Power to obtain information, documents and

evidence ........................................................................449

155AAA Protection of certain information...................................452

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155AA Protection of Part VB information.................................459

155A Power to obtain information and documents in

New Zealand relating to trans-Tasman markets ............460

155B Australian Competition and Consumer

Commission may receive information and

documents on behalf of New Zealand Commerce

Commission...................................................................460

156 Inspection of documents by Commission......................462

157 Disclosure of documents by Commission .....................462

157AA Disclosure of documents by Tribunal in relation to

merger authorisations ....................................................465

157A Disclosure of information by Commission ....................466

157B Disclosure of protected cartel information to a

court or tribunal.............................................................467

157C Disclosure of protected cartel information to a

party to court proceedings etc........................................470

157D General powers of a court..............................................473

158 Protection of members of Tribunal, counsel and

witnesses .......................................................................474

159 Incriminating answers ...................................................474

160 Failure of witness to attend............................................474

161 Refusal to be sworn or to answer questions...................475

162 Contempt .......................................................................476

162A Intimidation etc. ............................................................476

163 Prosecutions ..................................................................477

163A Declarations and orders .................................................478

165 Inspection of, furnishing of copies of, and

evidence of, documents .................................................482

166 Certificates as to furnishing of particulars to

Commission...................................................................483

167 Judicial notice................................................................484

170 Legal and financial assistance .......................................485

171 Annual report by Commission.......................................486

171A Charges by the Commission ..........................................487

171B Division 3 of Part IIIA does not confer judicial

power on the Commission .............................................488

172 Regulations....................................................................488

173 Authorisation for the purposes of subsection 51(1).......490

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Part XIII—Application and transitional provisions relating to

the competition provisions 491

Division 1—Cartel conduct 491

174 Definitions.....................................................................491

175 Giving effect after the commencement time to a

cartel provision in existence before that time ................491

176 Proceedings relating to price-fixing contraventions

taking place before the commencement time.................491

177 Authorisations in force before the commencement

time................................................................................491

178 Notifications in force before the commencement

time................................................................................492

Division 2—Application of amendments made by the

Competition and Consumer Legislation

Amendment Act 2011 494

179 Amendments of section 50 ............................................494

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Part X—International liner cargo shipping

Division 1—Preliminary

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;

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(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.

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• 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:

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(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).

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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

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(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

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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

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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.

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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,

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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

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(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:

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(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.

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(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

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section 10.29, 10.41 or 10.52 in the register of designated shipper

bodies.

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Section 10.04

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Division 2—Additional 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.

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Section 10.06

16 Competition and Consumer Act 2010

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Division 3—Minimum 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:

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(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:

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Section 10.09

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(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).

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Section 10.10

Competition and Consumer Act 2010 19

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Division 4—Registers 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).

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Section 10.13

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(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.

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Section 10.14

Competition and Consumer Act 2010 21

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Division 5—Exemptions from certain restrictive trade

practice prohibitions

Subdivision A—Exemptions 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

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Section 10.16

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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.

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Section 10.17A

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(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

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Section 10.18

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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).

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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).

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Section 10.19

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Subdivision B—Exemptions 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.

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Section 10.24

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Subdivision D—Other 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.

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(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.

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Registration of conference agreements Division 6

Section 10.25

Competition and Consumer Act 2010 29

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Division 6—Registration of conference agreements

Subdivision A—Provisional 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:

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Section 10.27A

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(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:

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(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

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(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).

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Section 10.29

Competition and Consumer Act 2010 33

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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

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34 Competition and Consumer Act 2010

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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.

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Section 10.30

Competition and Consumer Act 2010 35

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Subdivision B—Final 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).

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Section 10.33

36 Competition and Consumer Act 2010

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(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;

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(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

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Section 10.34

38 Competition and Consumer Act 2010

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(b) the written memorandum referred to in

paragraph 10.32(1)(b).

Subdivision C—Confidentiality 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.

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Section 10.37

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(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

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Section 10.38

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(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 D—Miscellaneous

10.39 Application also to be made for registration of varying

conference agreements

(1) Subject to subsection (2), if:

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Section 10.40

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(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:

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(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.

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Section 10.41

Competition and Consumer Act 2010 43

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Division 7—Obligations 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.

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Section 10.41

44 Competition and Consumer Act 2010

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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 caln( � 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

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(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

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Section 10.43

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(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.

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Section 10.44

Competition and Consumer Act 2010 47

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Division 8—Powers 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.

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Division 8 Powers of Minister in relation to registered conference agreements

Section 10.45

48 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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);

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Section 10.45

Competition and Consumer Act 2010 49

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(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

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Section 10.45

50 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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;

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Section 10.45

Competition and Consumer Act 2010 51

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(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;

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Section 10.46

52 Competition and Consumer Act 2010

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(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.

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Section 10.47

Competition and Consumer Act 2010 53

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

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Section 10.48

54 Competition and Consumer Act 2010

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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.

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Section 10.49

Competition and Consumer Act 2010 55

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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Section 10.49A

56 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) Part VI applies in relation to subsection (1) as if that subsection

were a provision of Part IV.

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Obligations of non-conference ocean carriers with substantial market power Division 9

Section 10.50

Competition and Consumer Act 2010 57

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 9—Obligations 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.

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Section 10.52

58 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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:

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Section 10.52

Competition and Consumer Act 2010 59

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 caln( � 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

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Section 10.53

60 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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Section 10.54

Competition and Consumer Act 2010 61

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Division 10—Powers 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

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Section 10.56

62 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

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Section 10.57

Competition and Consumer Act 2010 63

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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.

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Section 10.59

64 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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;

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Section 10.60

Competition and Consumer Act 2010 65

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(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.

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Division 11 Unfair pricing practices

Section 10.61

66 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 11—Unfair 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

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Unfair pricing practices Division 11

Section 10.63

Competition and Consumer Act 2010 67

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

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Section 10.65

68 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

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Unfair pricing practices Division 11

Section 10.67

Competition and Consumer Act 2010 69

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

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Section 10.67

70 Competition and Consumer Act 2010

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(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.

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Registration of ocean carrier agents Division 12

Section 10.68

Competition and Consumer Act 2010 71

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 12—Registration 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) commits an offence punishable, on conviction, by a

fine not exceeding:

(a) in the case of a natural person—20 penalty units; and

(b) in the case of a body corporate—100 penalty units.

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

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Division 12 Registration of ocean carrier agents

Section 10.70

72 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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Registration of ocean carrier agents Division 12

Section 10.72

Competition and Consumer Act 2010 73

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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Division 12A Exemption orders for inwards conference agreements etc.

Section 10.72A

74 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 12A—Exemption 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 Legislation 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).

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Exemption orders for inwards conference agreements etc. Division 12A

Section 10.72B

Competition and Consumer Act 2010 75

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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Division 13 General provisions relating to registers and conference agreement files

Section 10.73

76 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 13—General 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.

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Administration Division 14

Section 10.77

Competition and Consumer Act 2010 77

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 14—Administration

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).

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Division 14 Administration

Section 10.82

78 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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Review of decisions of Commission Division 14A

Section 10.82A

Competition and Consumer Act 2010 79

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 14A—Review 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.

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Division 14A Review of decisions of Commission

Section 10.82C

80 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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Review of decisions of Minister Division 14B

Section 10.82D

Competition and Consumer Act 2010 81

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 14B—Review 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.

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Division 14B Review of decisions of Minister

Section 10.82E

82 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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;

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Review of decisions of Minister Division 14B

Section 10.82G

Competition and Consumer Act 2010 83

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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Division 15 Miscellaneous

Section 10.83

84 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 15—Miscellaneous

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.

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Miscellaneous Division 15

Section 10.86

Competition and Consumer Act 2010 85

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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86 Competition and Consumer Act 2010

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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

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(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;

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(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

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(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.

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

Division 1 Preliminary

Section 130

90 Competition and Consumer Act 2010

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Part XI—Application of the Australian Consumer

Law as a law of the Commonwealth

Division 1—Preliminary

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 Justice, the Deputy Chief Justice or a Senior Judge).

Federal Court means the Federal Court of Australia.

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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.

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Section 130A

92 Competition and Consumer Act 2010

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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.

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Section 131

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Division 2—Application of the Australian Consumer Law

as a law of the Commonwealth

Subdivision A—Application 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.

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Division 2 Application of the Australian Consumer Law as a law of the

Commonwealth

Section 131A

94 Competition and Consumer Act 2010

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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.

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Section 131C

Competition and Consumer Act 2010 95

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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 B—Effect 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.

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Section 131E

96 Competition and Consumer Act 2010

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131E Application of the Legislation 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.

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Section 131F

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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.

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Division 3 Conferences for proposed bans and recall notices

Section 132

98 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Conferences for proposed bans and recall

notices

Subdivision A—Conference 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):

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(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.

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Section 132B

100 Competition and Consumer Act 2010

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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:

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(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.

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Section 132E

102 Competition and Consumer Act 2010

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Subdivision B—Conference 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:

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(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 C—Conduct of conferences

132H Conduct of conferences

(1) At a conference held under Subdivision A or B of this Division:

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Section 132H

104 Competition and Consumer Act 2010

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(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.

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

Conferences for proposed bans and recall notices Division 3

Section 132J

Competition and Consumer Act 2010 105

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision D—Miscellaneous

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

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Division 3 Conferences for proposed bans and recall notices

Section 132K

106 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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Enforcement Division 4

Section 133

Competition and Consumer Act 2010 107

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4—Enforcement

Subdivision A—Inspectors

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

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Section 133B

108 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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 B—Premises 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:

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Section 133C

Competition and Consumer Act 2010 109

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(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.

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Division 4 Enforcement

Section 133D

110 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision C—Disclosure 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.

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Section 133E

Competition and Consumer Act 2010 111

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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:

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Section 133F

112 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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Enforcement Division 4

Section 133H

Competition and Consumer Act 2010 113

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision D—Court 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:

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Section 133J

114 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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

Infringement notices Division 5

Section 134

Competition and Consumer Act 2010 115

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 5—Infringement 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);

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Division 5 Infringement notices

Section 134B

116 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

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Section 134C

Competition and Consumer Act 2010 117

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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Section 134C

118 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 ...

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.

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Section 134C

Competition and Consumer Act 2010 119

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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 ...

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.

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Section 134C

120 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 ...

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.

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Section 134D

Competition and Consumer Act 2010 121

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 ...

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.

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Section 134E

122 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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Section 134G

Competition and Consumer Act 2010 123

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(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

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Section 134G

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(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.

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Search, seizure and entry Division 6

Section 135

Competition and Consumer Act 2010 125

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Division 6—Search, seizure and entry

Subdivision A—Powers 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

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Section 135A

126 Competition and Consumer Act 2010

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(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:

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(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).

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Section 135B

128 Competition and Consumer Act 2010

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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;

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Section 135D

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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.

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Section 135E

130 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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Section 135G

Competition and Consumer Act 2010 131

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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 B—Obligations 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);

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Section 135K

132 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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 C—Occupier’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

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Section 135M

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(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

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Section 135P

134 Competition and Consumer Act 2010

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(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;

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Section 135Q

Competition and Consumer Act 2010 135

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 D—Provisions 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

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Section 135S

136 Competition and Consumer Act 2010

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(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 E—Embargo 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

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Section 135S

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(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

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Section 135T

138 Competition and Consumer Act 2010

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(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.

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Section 135U

Competition and Consumer Act 2010 139

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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).

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Section 135X

140 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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:

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Section 135Z

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(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 F—Issue 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

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Section 136

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(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.

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Section 136

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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.

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Section 136A

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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

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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 G—Miscellaneous

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.

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Division 7 Remedies

Section 137

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Division 7—Remedies

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

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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;

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Section 137B

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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

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(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 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.

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Section 137E

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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

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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.

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Section 137F

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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 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 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

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(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.

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Section 137G

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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

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Section 137H

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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.

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Division 8 Jurisdictional matters

Section 138

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Division 8—Jurisdictional 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.

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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.

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Section 138D

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(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

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(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.

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(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

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(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.

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Section 139

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Division 9—Miscellaneous

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

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(b) a physical or mental injury of an individual (including the

aggravation, acceleration or recurrence of such an injury of

the individuan( � 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.

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(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

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(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.

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(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;

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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).

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(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

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

(aa) the detriment that a term of that kind would cause to

businesses employing fewer than 20 persons; and

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(b) the impact on business generally of prescribing that kind of

term or effect; and

(c) the public interest.

(2A) Before the Governor-General makes a regulation prescribing a law

for the purposes of subsection 28(4) of Schedule 2:

(a) the Commonwealth Minister must be satisfied that the law

provides enforceable protections for businesses employing

fewer than 20 persons that are equivalent to the protections

provided by Part 2-3, together with Parts 5-1 and 5-2, of

Schedule 2; and

(b) the Commonwealth Minister must take into consideration:

(i) any detriment to businesses of that kind resulting from

prescribing the law; and

(ii) the impact on business generally resulting from

prescribing the law; and

(iii) 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;

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(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.

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Section 140

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Part XIAA—Application 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.

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Section 140A

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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.

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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.

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Section 140F

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(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.

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(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.

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Section 140K

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(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.

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Part XIA—The 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;

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(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;

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(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

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(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),

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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

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(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).

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Section 151AA

Competition and Consumer Act 2010 183

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Anti-competitive conduct and

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Division 1—Introduction

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.

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Section 151AB

184 Competition and Consumer Act 2010

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• 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.

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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.

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Section 151AC

186 Competition and Consumer Act 2010

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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

(1) 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).

(2) The operation of this Part, and the other provisions of this Act so

far as they relate to this Part, in relation to Norfolk Island is not

affected by the amendments made by Division 1 of Part 1 of

Schedule 5 to the Territories Legislation Amendment Act 2016.

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.

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Competition and Consumer Act 2010 187

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(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.

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Section 151AG

188 Competition and Consumer Act 2010

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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;

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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

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Section 151AI

190 Competition and Consumer Act 2010

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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.

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Anti-competitive conduct Division 2

Section 151AJ

Competition and Consumer Act 2010 191

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Division 2—Anti-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.

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Section 151AJ

192 Competition and Consumer Act 2010

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(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;

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Section 151AJ

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(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

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Section 151AK

194 Competition and Consumer Act 2010

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(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.

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Section 151AKA

Competition and Consumer Act 2010 195

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Division 3—Competition notices and exemption orders

Subdivision A—Competition 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

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Section 151AL

196 Competition and Consumer Act 2010

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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.

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Section 151AM

Competition and Consumer Act 2010 197

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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:

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Section 151AOA

198 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

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Section 151AQ

Competition and Consumer Act 2010 199

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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:

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Section 151AQB

200 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

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Section 151AR

Competition and Consumer Act 2010 201

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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).

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Section 151AS

202 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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 B—Exemption 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.

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Section 151AU

Competition and Consumer Act 2010 203

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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:

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Section 151AY

204 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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Section 151AZ

Competition and Consumer Act 2010 205

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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:

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Section 151BC

206 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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Section 151BD

Competition and Consumer Act 2010 207

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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Section 151BG

208 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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Section 151BH

Competition and Consumer Act 2010 209

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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Section 151BJ

210 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision C—Miscellaneous

151BJ Conduct includes proposed conduct

A reference in this Division to conduct includes a reference to

proposed conduct.

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Section 151BK

Competition and Consumer Act 2010 211

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4—Tariff 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;

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Section 151BK

212 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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

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Section 151BL

Competition and Consumer Act 2010 213

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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Section 151BN

214 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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Section 151BQ

Competition and Consumer Act 2010 215

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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:

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Section 151BT

216 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

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Section 151BT

Competition and Consumer Act 2010 217

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(e) the making of payments for such other goods or services.

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Division 5 Tariff filing by Telstra

Section 151BTA

218 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 5—Tariff 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;

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Section 151BTA

Competition and Consumer Act 2010 219

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(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.

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Division 6 Record-keeping rules and disclosure directions

Section 151BU

220 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 6—Record-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).

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Section 151BUAA

Competition and Consumer Act 2010 221

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(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, by legislative instrument, give a direction 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

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Division 6 Record-keeping rules and disclosure directions

Section 151BUAB

222 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) requires the Commission to exercise its powers under

section 151BU, 151BUDA, 151BUDB or 151BUDC in a

particular way.

(1B) The Minister may, by legislative instrument, give a 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 Legislation Act

2003.

(1C) The Minister may, by legislative instrument, give a 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.

151BUAB Request for disclosure

(1) A person may request the Commission to exercise its powers

under:

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Competition and Consumer Act 2010 223

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(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);

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Section 151BUA

224 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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:

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Competition and Consumer Act 2010 225

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(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

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Division 6 Record-keeping rules and disclosure directions

Section 151BUB

226 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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) commits an offence

punishable on conviction by a fine not exceeding 20 penalty units.

(11) A person who contravenes subsection (9) commits 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

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Section 151BUB

Competition and Consumer Act 2010 227

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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:

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Section 151BUB

228 Competition and Consumer Act 2010

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(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).

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Section 151BUC

Competition and Consumer Act 2010 229

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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) commits an offence

punishable on conviction by a fine not exceeding 20 penalty units.

(13) A person who contravenes subsection (11) commits 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:

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Section 151BUC

230 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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.

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Section 151BUC

Competition and Consumer Act 2010 231

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

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Section 151BUC

232 Competition and Consumer Act 2010

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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) commits an offence

punishable on conviction by a fine not exceeding 20 penalty units.

(13) A person who contravenes subsection (11) commits an offence

punishable on conviction by a fine not exceeding 100 penalty units.

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Section 151BUD

Competition and Consumer Act 2010 233

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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 Legislation 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 Legislation 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.

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Section 151BUDA

234 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

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Section 151BUDA

Competition and Consumer Act 2010 235

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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 commits 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 commits 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.

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Division 6 Record-keeping rules and disclosure directions

Section 151BUDB

236 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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Section 151BUDB

Competition and Consumer Act 2010 237

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 commits 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 commits 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

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Division 6 Record-keeping rules and disclosure directions

Section 151BUDC

238 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(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

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Section 151BUDC

Competition and Consumer Act 2010 239

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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Division 6 Record-keeping rules and disclosure directions

Section 151BUDC

240 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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 commits 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 commits 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.

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Section 151BUE

Competition and Consumer Act 2010 241

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

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Division 6 Record-keeping rules and disclosure directions

Section 151BV

242 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) A person who contravenes subsection (1) commits 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.

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Section 151BW

Competition and Consumer Act 2010 243

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 7—Enforcement 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;

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Section 151BX

244 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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:

(i) if the contravention continued for more than 21 days—

the sum of $31 million and $3 million for each day in

excess of 21 that the contravention continued; or

(ii) otherwise—the sum of $10 million and $1 million for

each day that the contravention continued; or

(b) in the case of a contravention of a tariff filing direction—$10

million for each contravention; or

(c) in the case of a contravention of a record-keeping rule or of a

disclosure direction—$250,000 for each contravention.

(4) The pecuniary penalty payable under subsection (1) by a person

other than a body corporate is not to exceed:

(a) in the case of a contravention of a record-keeping rule or of a

disclosure direction—$50,000 for each contravention; or

(b) in any other case—$500,000 for each contravention.

(5) If conduct constitutes a contravention of:

(a) 2 or more tariff filing directions; or

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Section 151BY

Competition and Consumer Act 2010 245

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) 2 or more record-keeping rules; or

(c) 2 or more disclosure directions;

proceedings may be instituted under this Act against a person in

relation to the contravention of any one or more of the tariff filing

directions, record-keeping rules or disclosure directions. However,

the person is not liable to more than one pecuniary penalty under

this section in respect of the same conduct.

(6) If a person’s conduct gives rise to a liability to pay a pecuniary

penalty under:

(a) this Part; and

(b) Part VI;

proceedings relating to the conduct may be instituted against the

person under this Part or under Part VI. However, the person is not

liable to more than one pecuniary penalty in respect of the same

conduct.

151BY Civil action for recovery of pecuniary penalties

(1) The Commission may institute a proceeding in the Federal Court

for the recovery on behalf of the Commonwealth of a pecuniary

penalty referred to in section 151BX.

(2) A proceeding under subsection (1) may be commenced within 6

years after the contravention.

(3) A proceeding under subsection (1) must not be instituted in relation

to:

(a) a contravention of the competition rule; or

(b) attempting to contravene the competition rule; or

(c) aiding, abetting, counselling or procuring a person to

contravene the competition rule; or

(d) inducing, or attempting to induce, whether by threats,

promises or otherwise, a person to contravene the

competition rule; or

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Section 151BZ

246 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(e) being in any way, directly or indirectly, knowingly concerned

in, or party to, a contravention by a person of the competition

rule; or

(f) conspiring with others to contravene the competition rule;

unless:

(g) in a case where paragraph (a) applies—the alleged conduct is

of a kind dealt with in a Part A competition notice that was in

force in relation to the carrier or carriage service provider

concerned at the time when the alleged conduct occurred; or

(h) in any other case—the alleged conduct is related to conduct

of a kind dealt with in a Part A competition notice that was in

force in relation to the carrier or carriage service provider

concerned at the time when the alleged conduct occurred.

151BZ Criminal proceedings not to be brought for contraventions of

the competition rule, tariff filing directions,

record-keeping rules or disclosure directions

(1) Criminal proceedings do not lie against a person only because the

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.

(2) To avoid doubt, this section does not affect the operation of

Division 137 of the Criminal Code in respect of tariff information.

(3) To avoid doubt, subsection (1) does not apply in relation to

proceedings for an offence against section 44ZZRF or 44ZZRG.

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Section 151CA

Competition and Consumer Act 2010 247

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

151CA Injunctions

(1) Subject to subsection (3), if the Federal Court is satisfied that a

person has engaged, or is proposing to engage, in conduct that

constitutes or would constitute:

(a) a contravention of the competition rule, a tariff filing

direction, a record-keeping rule or a disclosure direction; or

(b) attempting to contravene the competition rule, a tariff filing

direction, a record-keeping rule or a disclosure direction; or

(c) aiding, abetting, counselling or procuring a person to

contravene the competition rule, a tariff filing direction, a

record-keeping rule or a disclosure direction; or

(d) inducing, or attempting to induce, whether by threats,

promises or otherwise, a person to contravene the

competition rule, a tariff filing direction, a record-keeping

rule or a disclosure direction; or

(e) being in any way, directly or indirectly, knowingly concerned

in, or party to, the contravention by a person of the

competition rule, a tariff filing direction, a record-keeping

rule or a disclosure direction; or

(f) conspiring with others to contravene the competition rule, a

tariff filing direction, a record-keeping rule or a disclosure

direction;

the Court may, on the application of the Commission or any other

person, grant an injunction in such terms as the Court determines to

be appropriate.

(2) If:

(a) an application for an injunction under subsection (1) has been

made; and

(b) the Court determines it to be appropriate to do so;

the Court may grant an injunction by consent of all the parties to

the proceedings, whether or not the Court is satisfied that a person

has engaged, or is proposing to engage, in conduct of a kind

mentioned in subsection (1).

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Section 151CA

248 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) If, in the opinion of the Court it is desirable to do so, the Court may

grant an interim injunction pending determination of an application

under subsection (1).

(4) The Court may rescind or vary an injunction granted under

subsection (1) or (3).

(5) The power of the Court to grant an injunction restraining a person

from engaging in conduct may be exercised:

(a) whether or not it appears to the Court that the person intends

to engage again, or to continue to engage, in conduct of that

kind; and

(b) whether or not the person has previously engaged in conduct

of that kind; and

(c) whether or not there is an imminent danger of substantial

damage to any person if the first-mentioned person engages

in conduct of that kind.

(6) The power of the Court to grant an injunction requiring a person to

do an act or thing may be exercised:

(a) whether or not it appears to the Court that the person intends

to refuse or fail again, or to continue to refuse or fail, to do

that act or thing; and

(b) whether or not the person has previously refused or failed to

do that act or thing; and

(c) whether or not there is an imminent danger of substantial

damage to any person if the first-mentioned person refuses or

fails to do that act or thing.

(7) If the Commission makes an application to the Court for the grant

of an injunction under this section, the Court must not require the

applicant or any other person, as a condition of granting an interim

injunction, to give any undertakings as to damages.

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Section 151CB

Competition and Consumer Act 2010 249

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

151CB Orders to disclose information or publish an

advertisement—breach of the competition rule

(1) If, on the application of the Commission, the Federal Court is

satisfied that a person (the first person) has engaged in conduct

constituting a contravention of the competition rule, the Court may

make either or both of the following orders:

(a) an order requiring the first person, or a person involved in the

contravention, to disclose to the public, or to one or more

specified persons, in such manner as is specified in the order,

specified information, where the information is:

(i) in the possession of the first person; or

(ii) information to which the first person has access;

(b) an order requiring the first person, or a person involved in the

contravention, to publish, at the person’s own expense, in a

manner and at times specified in the order, advertisements

the terms of which are specified in, or are to be determined in

accordance with, the order.

(2) Subsection (1) does not limit section 151CA.

(3) An application under subsection (1) must not be made in relation to

a contravention of the competition rule unless the alleged conduct

is of a kind dealt with in a Part A competition notice that was in

force in relation to the carrier or carriage service provider

concerned at the time when the alleged conduct occurred.

151CC Actions for damages—breach of the competition rule

(1) A person who suffers loss or damage by conduct of another person

that was done in contravention of the competition rule may recover

the amount of the loss or damage by action against:

(a) that other person; or

(b) any person involved in the contravention.

(2) An action under subsection (1) may be commenced at any time

within 3 years after the date on which the cause of action accrued.

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Section 151CD

250 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) An action under subsection (1) must not be brought in relation to a

contravention of the competition rule unless the alleged conduct is

of a kind dealt with in a Part A competition notice that was in force

in relation to the carrier or carriage service provider concerned at

the time when the alleged conduct occurred.

151CD Finding of fact in proceedings to be evidence

(1) This section applies to a finding of any fact by a court made in

proceedings under section 151BY, 151CA or 151CB in which a

person has been found to have contravened, or to have been

involved in a contravention of, the competition rule or a tariff filing

direction.

(2) In:

(a) a proceeding under section 151CC against the person; or

(b) an application under subsection 151CE(1) for an order

against the person;

the finding:

(c) is prima facie evidence of that fact; and

(d) may be proved by production of a document under the seal of

the court from which the finding appears.

151CE Other orders—compensation for breach of the competition

rule

(1) If, in a proceeding instituted under this Division in relation to a

contravention of the competition rule, the Federal Court finds that

a person who is a party to the proceeding has suffered, or is likely

to suffer, loss or damage by conduct of another person that was

engaged in in contravention of the competition rule, the Court may,

on the application of a party to the proceedings, make such orders

as it thinks appropriate against:

(a) the person who engaged in the conduct; or

(b) a person who was involved in the contravention;

if the Court considers that the orders concerned will:

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Section 151CE

Competition and Consumer Act 2010 251

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) compensate the first-mentioned person, in whole or in part,

for the loss or damage; or

(d) prevent or reduce the loss or damage.

(2) The Federal Court may make an order under subsection (1)

whether or not it:

(a) grants an injunction under section 151CA; or

(b) makes an order under section 151BX, 151CB or 151CC.

(3) Subsection (1) does not, by implication, limit section 151CA.

(4) The Federal Court’s orders include, but are not limited to, the

following:

(a) an order declaring the whole or any part of:

(i) a contract made between the person who suffered, or is

likely to suffer, the loss or damage and the person who

engaged in the conduct or a person who was involved in

the contravention constituted by the conduct; or

(ii) a collateral arrangement relating to such a contract;

to be void and, if the Court thinks fit, to have been void ab

initio or at all times on and after such date before the date on

which the order is made as is specified in the order;

(b) an order varying such a contract or arrangement in such

manner as is specified in the order and, if the Court thinks fit,

declaring the contract or arrangement to have had effect as so

varied on and after such date before the date on which the

order is made as is so specified;

(c) an order refusing to enforce any or all of the provisions of

such a contract or collateral arrangement;

(d) an order directing:

(i) the person who engaged in the conduct; or

(ii) a person who was involved in the contravention

constituted by the conduct;

to refund money or return property to the person who

suffered the loss or damage;

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Division 7 Enforcement of the competition rule, tariff filing directions, record-keeping

rules and disclosure directions

Section 151CF

252 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(e) an order directing:

(i) the person who engaged in the conduct; or

(ii) a person who was involved in the contravention

constituted by the conduct;

to pay to the person who suffered the loss or damage the

amount of the loss or damage;

(f) an order directing:

(i) the person who engaged in the conduct; or

(ii) a person who was involved in the contravention

constituted by the conduct;

at the person’s own expense, to supply specified goods or

services to the person who suffered, or is likely to suffer, the

loss or damage.

(5) An application under subsection (1) must not be made in relation to

a contravention of the competition rule unless the alleged conduct

is of a kind dealt with in a Part A competition notice that was in

force in relation to the carrier or carriage service provider

concerned at the time when the alleged conduct occurred.

(6) The powers conferred on the Federal Court by this section in

relation to a contract do not affect any powers that any other court

may have in relation to the contract in proceedings instituted in that

other court in respect of the contract.

151CF Conduct by directors, employees or agents

Part 32 of the Telecommunications Act 1997 applies in relation to

proceedings under this Division in a corresponding way to the way

in which it applies to proceedings under that Act (as defined by

section 574 of that Act).

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Disclosure of documents by Commission Division 8

Section 151CG

Competition and Consumer Act 2010 253

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 8—Disclosure of documents by Commission

151CG Disclosure of documents by Commission

(1) This section applies to a person if:

(a) the person makes an application to the Commission for an

exemption order; or

(b) under section 151BG, the Commission gives the person an

opportunity to make a submission to the Commission about a

proposal to revoke an exemption order; or

(c) the Commission institutes a proceeding against the person

under Division 7.

(2) The Commission must, at the request of the person and on payment

of the fee (if any) specified in the regulations, give to the person:

(a) a copy of each document that has been given to, or obtained

by, the Commission in connection with the matter to which

the application, proposal or proceeding relates and tends to

establish the person’s case; and

(b) a copy of any other document in the possession of the

Commission that comes to the attention of the Commission

in connection with the matter and to which the application,

proposal or proceeding relates and tends to establish the

person’s case;

so long as the document is not obtained from the person or

prepared by an officer or professional adviser of the Commission.

(3) If the Commission does not comply with a request under

subsection (2), the Federal Court must, upon application by the

person, make an order directing the Commission to comply with

the request. This rule has effect subject to subsection (4).

(4) The Federal Court may refuse to make an order under

subsection (3) about a document or a part of a document if the

Federal Court considers it inappropriate to make the order on the

grounds that the disclosure of the contents of the document or part

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Division 8 Disclosure of documents by Commission

Section 151CG

254 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

of the document would prejudice any person, or for any other

reason.

(5) Before the Federal Court gives a decision on an application under

subsection (3), the Federal Court may require any documents to be

produced to it for inspection.

(6) An order under this section may be expressed to be subject to such

conditions as are specified in the order.

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Treatment of partnerships Division 9

Section 151CH

Competition and Consumer Act 2010 255

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 9—Treatment of partnerships

151CH Treatment of partnerships

This Part applies to a partnership as if the partnership was a person,

but it applies with the following changes:

(a) obligations that would be imposed on the partnership are

imposed instead on each partner, but may be discharged by

any of the partners;

(b) any offence against this Part that would otherwise be

committed by the partnership is taken to have been

committed by each partner who:

(i) aided, abetted, counselled or procured the relevant act or

omission; or

(ii) was in any way knowingly concerned in, or party to, the

relevant act or omission (whether directly or indirectly

and whether by any act or omission of the partner).

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Division 10 Review of decisions

Section 151CI

256 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 10—Review of decisions

151CI Review by Tribunal

(1) If the Commission makes a decision under section 151BA to refuse

to make an exemption order relating to conduct of a person, the

person may apply to the Tribunal for a review of the decision.

(2) If the Commission makes a decision under section 151BG to

revoke an exemption order relating to conduct of a person, the

person may apply to the Tribunal for a review of the decision.

(3) If the Commission makes a decision under section 151BQ to make

information obtained from a person available for inspection and

purchase, the person may apply to the Tribunal for a review of the

decision.

(3A) If the Commission:

(a) makes a decision under section 151BUA to make a report

obtained from a person, or an extract from such a report,

available for inspection and purchase; or

(b) makes a decision under section 151BUB or 151BUC to give

a person a written direction to make a report or extract

available for inspection and purchase;

the person may apply to the Tribunal for a review of the decision.

(4) An application under this section for a review of a decision must

be:

(a) in writing; and

(b) in the case of an application under subsection (1) or (2)—

made within 21 days after the Commission made the

decision; and

(c) in the case of an application under subsection (3)—made

within 7 days after the Commission made the decision; and

(d) in the case of an application under subsection (3A)—made

within 28 days after the Commission made the decision.

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Review of decisions Division 10

Section 151CJ

Competition and Consumer Act 2010 257

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(5) If the Tribunal receives an application under this section for a

review of a decision, the Tribunal must review the decision.

151CJ Functions and powers of Tribunal

Decision on review

(1) On a review of a decision of the Commission of a kind mentioned

in section 151CI, the Tribunal may make a decision:

(a) in any case—affirming the Commission’s decision; or

(b) in the case of a review of a decision of the Commission under

section 151BA refusing to make an exemption order—both:

(i) setting aside the Commission’s decision; and

(ii) in substitution for the decision so set aside, making an

exemption order; or

(c) in the case of a review of a decision of the Commission under

section 151BG to revoke an exemption order—setting aside

the Commission’s decision; or

(d) in the case of a review of a decision of the Commission under

section 151BQ, 151BUA, 151BUB or 151BUC—setting

aside or varying the Commission’s decision;

and, for the purposes of the review, the Tribunal may perform all

the functions and exercise all the powers of the Commission.

(2) A decision by the Tribunal:

(a) affirming a decision of the Commission; or

(b) setting aside a decision of the Commission; or

(c) made in substitution for a decision of the Commission; or

(d) 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.

Conduct of review

(3) For the purposes of a review by the Tribunal, the member of the

Tribunal presiding at the review may require the Commission to

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Division 10 Review of decisions

Section 151CK

258 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

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.

151CK 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 151CI.

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Reviews of competitive safeguards within the telecommunications industry Division 11

Section 151CL

Competition and Consumer Act 2010 259

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 11—Reviews of competitive safeguards within the

telecommunications industry

151CL Reviews of competitive safeguards within the

telecommunications industry

(1) The Commission must review, and report each financial year to the

Minister on, competitive safeguards within the telecommunications

industry, including:

(a) matters relating to the operation of this Part and Part XIC;

and

(b) such other matters relating to competition in the

telecommunications industry as the Commission thinks

appropriate.

(2) The Commission must give a report under subsection (1) to the

Minister as soon as practicable after the end of the financial year

concerned.

(3) The Commission must, if directed in writing to do so by the

Minister, review, and report to the Minister on, specified matters

relating to competitive safeguards within the telecommunications

industry.

(4) The Commission must give a report under subsection (3) to the

Minister before the end of the period specified in the direction.

(5) The Minister must cause a copy of a report under this section to be

laid before each House of the Parliament within 15 sitting days of

that House after receiving the report.

(6) This section applies to a financial year ending on or after 30 June

1998.

(7) In this section:

telecommunications industry has the same meaning as in the

Telecommunications Act 1997.

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Division 12 Monitoring of telecommunications charges paid by consumers

Section 151CM

260 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 12—Monitoring of telecommunications charges

paid by consumers

151CM Monitoring of telecommunications charges paid by

consumers

(1) The Commission must monitor, and report each financial year to

the Minister on:

(a) charges paid by consumers for the following goods and

services:

(i) listed carriage services;

(ii) goods for use in connection with a listed carriage

service;

(iii) services for use in connection with a listed carriage

service; and

(b) the adequacy of Telstra’s compliance with Part 9 of the

Telecommunications (Consumer Protection and Service

Standards) Act 1999 (which deals with price control

arrangements for Telstra).

(2) The Commission must give a report under subsection (1) to the

Minister as soon as practicable after the end of the financial year

concerned.

(3) The Minister must cause a copy of a report under subsection (1) to

be laid before each House of the Parliament within 15 sitting days

of that House after receiving the report.

(4) This section applies to a financial year ending on or after 30 June

1998.

(5) In this section:

listed carriage service has the same meaning as in the

Telecommunications Act 1997.

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Reports about competition in the telecommunications industry Division 12A

Section 151CMA

Competition and Consumer Act 2010 261

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 12A—Reports about competition in the

telecommunications industry

151CMA Public reports about competition in the

telecommunications industry

(1) The Commission must monitor, and report to the Minister on, such

matters relating to competition in the telecommunications industry

as are specified in a determination made by the Minister for the

purposes of this subsection.

Note: For examples of matters that may be specified in a determination

under subsection (1), see section 151CMC.

(2) Reports under subsection (1) are to be given to the Minister in

respect of such regular intervals as are specified in a determination

made by the Minister for the purposes of this subsection.

(3) Reports under subsection (1) must comply with such requirements

in relation to the protection of confidential information as are

specified in a determination made by the Minister for the purposes

of this subsection. For this purpose, information is confidential

information if, and only if, the publication of the information

could reasonably be expected to prejudice substantially the

commercial interests of a person.

(4) The Commission must give a report under subsection (1) to the

Minister as soon as practicable after the end of the regular interval

to which the report relates.

(5) The Minister must cause a copy of a report under subsection (1) to

be laid before each House of the Parliament within 15 sitting days

of that House after receiving the report.

(6) The Minister may, by legislative instrument, make a determination

for the purposes of subsection (1), (2) or (3).

(7) In this section:

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Division 12A Reports about competition in the telecommunications industry

Section 151CMB

262 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

telecommunications industry has the same meaning as in the

Telecommunications Act 1997.

151CMB Confidential reports about competition in the

telecommunications industry

(1) The Commission must monitor, and report to the Minister on, such

matters relating to competition in the telecommunications industry

as are specified in a determination made by the Minister for the

purposes of this subsection.

Note: For examples of matters that may be specified in a determination

under subsection (1), see section 151CMC.

(2) Reports under subsection (1) are to be given to the Minister in

respect of such regular intervals as are specified in a determination

made by the Minister for the purposes of this subsection.

(3) The Commission must give a report under subsection (1) to the

Minister as soon as practicable after the end of the regular interval

to which the report relates.

(4) The Minister may, by legislative instrument, make a determination

for the purposes of subsection (1) or (2).

(5) In this section:

telecommunications industry has the same meaning as in the

Telecommunications Act 1997.

151CMC Examples of matters that may be specified in a

determination under section 151CMA or 151CMB

The following are examples of matters that may be specified in a

determination made for the purposes of subsection 151CMA(1) or

151CMB(1):

(a) charges for:

(i) carriage services; or

(ii) goods for use in connection with a carriage service; or

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Reports about competition in the telecommunications industry Division 12A

Section 151CMC

Competition and Consumer Act 2010 263

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(iii) services for use in connection with a carriage service;

(b) carriers’ and carriage service providers’ respective shares of

the total supply of:

(i) carriage services; or

(ii) goods for use in connection with a carriage service; or

(iii) services for use in connection with a carriage service;

(c) carriers’ and carriage service providers’ revenues relating to

their respective shares of the total supply of:

(i) carriage services; or

(ii) goods for use in connection with a carriage service; or

(iii) services for use in connection with a carriage service;

(d) other indicators (whether quantitative or qualitative) relating

to the supply of:

(i) carriage services; or

(ii) goods for use in connection with a carriage service; or

(iii) services for use in connection with a carriage service.

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Division 15 Voluntary undertakings given by Telstra

Section 151CQ

264 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 15—Voluntary undertakings given by Telstra

151CQ Voluntary undertakings given by Telstra

Scope

(1) This section applies if an undertaking given by Telstra is in force

under section 577A, 577C or 577E of the Telecommunications Act

1997.

Note 1: Section 577A of the Telecommunications Act 1997 deals with

undertakings about structural separation.

Note 2: Section 577C of the Telecommunications Act 1997 deals with

undertakings about hybrid fibre-coaxial networks.

Note 3: Section 577E of the Telecommunications Act 1997 deals with

undertakings about subscription television broadcasting licences.

Commission must have regard to Telstra’s conduct

(2) If Telstra has engaged, or is required to engage, in conduct in order

to comply with the undertaking, then, in performing a function, or

exercising a power, under this Part in relation to Telstra, the

Commission must have regard to the conduct to the extent that the

conduct is relevant.

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NBN corporations Division 16

Section 151DA

Competition and Consumer Act 2010 265

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 16—NBN corporations

151DA Authorised conduct—subsection 51(1)

Objects

(1) The objects of this section are:

(a) to promote the national interest in structural reform of the

telecommunications industry; and

(b) to promote uniform national pricing of eligible services

supplied by NBN corporations by authorising, for the

purposes of subsection 51(1), certain conduct engaged in by

NBN corporations.

Note 1: If conduct is authorised for the purposes of subsection 51(1), the

conduct is disregarded in deciding whether a person has contravened

Part IV.

Note 2: See also subsection 151AJ(10).

Authorised conduct—points of interconnection

(2) If:

(a) an NBN corporation is a carrier or carriage service provider;

and

(b) the NBN corporation:

(i) owns or controls one or more facilities; or

(ii) is a nominated carrier in relation to one or more

facilities; and

(c) the NBN corporation refuses to permit interconnection of

those facilities at a particular location with one or more

facilities of:

(i) a service provider; or

(ii) a utility; and

(d) the location is not a listed point of interconnection; and

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Section 151DA

266 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(e) the refusal is reasonably necessary to achieve uniform

national pricing of eligible services supplied by the NBN

corporation to service providers and utilities;

the refusal is authorised for the purposes of subsection 51(1).

Note: For listed point of interconnection, see section 151DB.

Authorised conduct—bundling of designated access services

(3) If:

(a) an NBN corporation is a carrier or carriage service provider;

and

(b) the NBN corporation:

(i) refuses to supply; or

(ii) refuses to offer to supply;

a designated access service to a service provider or utility

unless the service provider or utility acquires, or agrees to

acquire, one or more other designated access services (other

than voice telephony facilitation services) from the NBN

corporation; and

(c) the refusal is reasonably necessary to achieve uniform

national pricing of eligible services supplied by the NBN

corporation to service providers and utilities;

the refusal is authorised for the purposes of subsection 51(1).

Authorised conduct—uniform national pricing

(4) If an NBN corporation engages in conduct that is reasonably

necessary to achieve uniform national pricing of eligible services

supplied by the NBN corporation to service providers and utilities,

that conduct is authorised for the purposes of subsection 51(1).

Uniform national pricing

(5) For the purposes of this section, uniform national pricing of an

eligible service supplied, or offered to be supplied, by an NBN

corporation to service providers and utilities is achieved, if, and

only if, the price-related terms and conditions on which the NBN

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Section 151DA

Competition and Consumer Act 2010 267

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

corporation supplies, or offers to supply, the eligible service to

service providers and utilities are the same throughout Australia.

(6) For the purposes of this section, in determining whether there is

uniform national pricing of an eligible service supplied, or offered

to be supplied, by an NBN corporation, disregard any

discrimination by the NBN corporation against another person on

the grounds that the NBN corporation has reasonable grounds to

believe that the other person would fail, to a material extent, to

comply with the terms and conditions on which the NBN

corporation supplies, or on which the NBN corporation is

reasonably likely to supply, the eligible service.

(6A) Examples of grounds for believing as mentioned in subsection (6)

include:

(a) evidence that the other person is not creditworthy; and

(b) repeated failures by the other person to comply with the

terms and conditions on which the same or a similar eligible

service has been supplied (whether or not by the NBN

corporation).

(7) For the purposes of this section, in determining whether eligible

services are characterised as:

(a) the same eligible service; or

(b) different eligible services;

it is immaterial whether the services are supplied, or offered to be

supplied, using:

(c) the same facilities or kinds of facilities; or

(d) different facilities or kinds of facilities.

(8) For example, the same eligible service could be supplied, or

offered to be supplied, using:

(a) an optical fibre line; or

(b) terrestrial radiocommunications equipment; or

(c) a satellite.

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Section 151DA

268 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Definitions

(9) In this section:

access virtual circuit service means an eligible service that is

known as:

(a) an access virtual circuit service; or

(b) the access virtual circuit component of a fibre access service.

connectivity virtual circuit service means an eligible service that is

known as:

(a) a connectivity virtual circuit service; or

(b) the connectivity virtual circuit component of a fibre access

service.

designated access service means:

(a) an access virtual circuit service; or

(b) a connectivity virtual circuit service; or

(c) a network-network interface service; or

(d) a user network interface service; or

(e) a voice telephony facilitation service.

eligible service has the same meaning as in section 152AL.

listed point of interconnection has the meaning given by

section 151DB.

network-network interface service means an eligible service that is

known as:

(a) a network-network interface service; or

(b) the network-network interface component of a fibre access

service.

nominated carrier has the same meaning as in the

Telecommunications Act 1997.

point of interconnection means a location for the interconnection

of facilities.

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Section 151DA

Competition and Consumer Act 2010 269

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

price-related terms and conditions means terms and conditions

relating to price or a method of ascertaining price.

service provider has the same meaning as in the

Telecommunications Act 1997.

special access undertaking has the same meaning as in Part XIC.

telecommunications industry has the same meaning as in the

Telecommunications Act 1997.

uniform national pricing has the meaning given by subsections (5)

and (6).

use, in relation to a facility, means use:

(a) in isolation; or

(b) in conjunction with one or more other things.

user network interface service means an eligible service that is

known as:

(a) a user network interface service; or

(b) the user network interface service component of a fibre

access service.

utility means:

(a) Airservices Australia; or

(b) a State or Territory transport authority; or

(c) a rail corporation (within the meaning of the National

Broadband Network Companies Act 2011); or

(d) an electricity supply body (within the meaning of that Act);

or

(e) a gas supply body (within the meaning of that Act); or

(f) a water supply body (within the meaning of that Act); or

(g) a sewerage services body (within the meaning of that Act); or

(h) a storm water drainage services body (within the meaning of

that Act); or

(i) a State or Territory road authority (within the meaning of that

Act).

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Section 151DB

270 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

voice telephony facilitation service means a service that facilitates

the supply of a carriage service that is a carriage service for the

purpose of voice telephony.

151DB Listed points of interconnection

(1) The Commission:

(a) must prepare a written list setting out points of

interconnection; and

(b) may, by writing, vary that list.

(2) For the purposes of this Division, a point of interconnection

specified in a list in force under subsection (1) is a listed point of

interconnection.

(2A) The Commission must not vary a list under subsection (1) except

with the agreement of an NBN corporation.

(2B) Subsection (2A) ceases to have effect when the Communications

Minister makes a declaration under section 48 of the National

Broadband Network Companies Act 2011 that, in the

Communications Minister’s opinion, the national broadband

network should be treated as built and fully operational.

(2C) For the purposes of subsection (2B), Communications Minister

has the same meaning as in the National Broadband Network

Companies Act 2011.

(3) The Commission must publish on its website a copy of a list in

force under subsection (1).

(4) A list under subsection (1) is not a legislative instrument.

(5) A variation of a list under subsection (1) is not a legislative

instrument.

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Introduction Division 1

Section 152AA

Competition and Consumer Act 2010 271

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Part XIC—Telecommunications access regime

Division 1—Introduction

152AA Simplified outline

The following is a simplified outline of this Part:

• This Part sets out a telecommunications access regime.

• A carriage service, or a related service, supplied, or capable of being supplied, by a carrier (other than an NBN

corporation) or a carriage service provider (other than an

NBN corporation) is a declared service if:

(a) the Commission has declared the service to be a

declared service; or

(b) the service is supplied by the carrier or carriage

service provider, and a special access undertaking

given by the carrier or carriage service provider is

in operation in relation to the service.

• A carriage service, or a related service, supplied, or capable of being supplied, by an NBN corporation is a declared

service if:

(a) the Commission has declared the service to be a

declared service; or

(b) the NBN corporation has formulated a standard

form of access agreement that relates to access to

the service; or

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Division 1 Introduction

Section 152AA

272 Competition and Consumer Act 2010

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(c) the service is supplied by the NBN corporation,

and a special access undertaking given by the NBN

corporation is in operation in relation to the

service.

• Carriers and carriage service providers who provide declared services are required to comply with standard access

obligations in relation to those services.

• The standard access obligations facilitate the provision of access to declared services by service providers in order that

service providers can provide carriage services and/or

content services.

• The terms and conditions on which carriers and carriage service providers are required to comply with the standard

access obligations are subject to agreement.

• If agreement cannot be reached, but the carrier or carriage service provider has given an access undertaking, the terms

and conditions are as set out in the access undertaking.

• If agreement cannot be reached, no access undertaking is in operation, but the Commission has made binding rules of

conduct, the terms and conditions are as specified in the

binding rules of conduct.

• If agreement cannot be reached, no access undertaking is in operation, and no binding rules of conduct have been made,

the terms and conditions are as specified in an access

determination made by the Commission.

• A carrier, carriage service provider or related body must not prevent or hinder the fulfilment of a standard access

obligation.

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Competition and Consumer Act 2010 273

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Note: Even though this section mentions binding rules of conduct, binding

rules of conduct may only be made if the Commission considers that

there is an urgent need to do so.

152AB Object of this Part

Object

(1) The object of this Part is to promote the long-term interests of

end-users of carriage services or of services provided by means of

carriage services.

Promotion of the long-term interests of end-users

(2) For the purposes of this Part, in determining whether a particular

thing promotes the long-term interests of end-users of either of the

following services (the listed services):

(a) carriage services;

(b) services supplied by means of carriage services;

regard must be had to the extent to which the thing is likely to

result in the achievement of the following objectives:

(c) the objective of promoting competition in markets for listed

services;

(d) the objective of achieving any-to-any connectivity in relation

to carriage services that involve communication between

end-users;

(e) the objective of encouraging the economically efficient use

of, and the economically efficient investment in:

(i) the infrastructure by which listed services are supplied;

and

(ii) any other infrastructure by which listed services are, or

are likely to become, capable of being supplied.

Subsection (2) limits matters to which regard may be had

(3) Subsection (2) is intended to limit the matters to which regard may

be had.

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Promoting competition

(4) In determining the extent to which a particular thing is likely to

result in the achievement of the objective referred to in

paragraph (2)(c), regard must be had to the extent to which the

thing will remove obstacles to end-users of listed services gaining

access to listed services.

Subsection (4) does not limit matters to which regard may be had

(5) Subsection (4) does not, by implication, limit the matters to which

regard may be had.

Encouraging efficient use of infrastructure etc.

(6) In determining the extent to which a particular thing is likely to

result in the achievement of the objective referred to in

paragraph (2)(e), regard must be had to the following matters:

(a) whether it is, or is likely to become, technically feasible for

the services to be supplied and charged for, having regard to:

(i) the technology that is in use, available or likely to

become available; and

(ii) whether the costs that would be involved in supplying,

and charging for, the services are reasonable or likely to

become reasonable; and

(iii) the effects, or likely effects, that supplying, and

charging for, the services would have on the operation

or performance of telecommunications networks;

(b) the legitimate commercial interests of the supplier or

suppliers of the services, including the ability of the supplier

or suppliers to exploit economies of scale and scope;

(c) the incentives for investment in:

(i) the infrastructure by which the services are supplied;

and

(ii) any other infrastructure by which the services are, or are

likely to become, capable of being supplied.

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Subsection (6) does not limit matters to which regard may be had

(7) Subsection (6) does not, by implication, limit the matters to which

regard may be had.

Investment risks

(7A) For the purposes of paragraph (6)(c), in determining incentives for

investment, regard must be had to the risks involved in making the

investment.

(7B) Subsection (7A) does not, by implication, limit the matters to

which regard may be had.

Achieving any-to-any connectivity

(8) For the purposes of this section, the objective of any-to-any

connectivity is achieved if, and only if, each end-user who is

supplied with a carriage service that involves communication

between end-users is able to communicate, by means of that

service, with each other end-user who is supplied with the same

service or a similar service, whether or not the end-users are

connected to the same telecommunications network.

152AC Definitions

In this Part, unless the contrary intention appears:

access has the meaning given by section 152AF.

access agreement has the meaning given by section 152BE.

access determination means a determination under section 152BC.

access seeker has the meaning given by section 152AG.

access undertaking means a special access undertaking.

ACMA means the Australian Communications and Media

Authority.

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binding rules of conduct means rules made under

subsection 152BD(1).

carriage service has the same meaning as in the

Telecommunications Act 1997, and includes a proposed carriage

service.

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.

category A standard access obligation has the meaning given by

section 152AR.

category B standard access obligation has the meaning given by

section 152AXB.

conditional-access customer equipment means customer

equipment that:

(a) consists of or incorporates a conditional access system that

allows a service provider to determine whether an end-user is

able to receive a particular service; and

(b) either:

(i) is for use in connection with the supply of a content

service; or

(ii) is of a kind specified in the regulations.

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

content service has the same meaning as in the

Telecommunications Act 1997, and includes a proposed content

service.

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customer equipment 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.

declared service has the meaning given by section 152AL.

designated superfast telecommunications network has the

meaning given by section 152AGA.

facility has the same meaning as in the Telecommunications Act

1997.

Federal Court means the Federal Court of Australia.

final access determination means an access determination other

than an interim access determination.

final migration plan has the same meaning as in the

Telecommunications Act 1997.

fixed principles provision has the meaning given by

section 152BCD.

fixed principles term or condition has the meaning given by

section 152CBAA.

interim access determination means an access determination that

is expressed to be an interim access determination.

Layer 2 bitstream service has the same meaning as in the

Telecommunications Act 1997.

Ministerial pricing determination means a determination under

section 152CH.

modifications includes additions, omissions and substitutions.

national broadband network has the same meaning as in the

National Broadband Network Companies Act 2011.

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NBN Co has the same meaning as in the National Broadband

Network Companies Act 2011.

NBN corporation has the same meaning as in the National

Broadband Network Companies Act 2011.

nominated carrier has the same meaning as in the

Telecommunications Act 1997.

person includes a partnership.

Note: Section 152EN sets out additional rules about partnerships.

Procedural Rules means Procedural Rules made under

section 152ELA.

quarter means a period of 3 months ending on 31 March, 30 June,

30 September or 31 December.

service provider has the same meaning as in the

Telecommunications Act 1997.

special access undertaking means an undertaking under

Subdivision B of Division 5.

standard access obligation means:

(a) a category A standard access obligation; or

(b) a category B standard access obligation.

superfast carriage service has the same meaning as in section 141

of the Telecommunications Act 1997.

telecommunications network has the same meaning as in the

Telecommunications Act 1997.

variation agreement has the meaning given by

subsection 152BE(3).

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Competition and Consumer Act 2010 279

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152AD This Part binds the Crown

(1) The following provisions of this Act bind the Crown in right of the

Commonwealth, of each of the States, of the Australian Capital

Territory and of the Northern Territory:

(a) this Part;

(b) the other provisions of this Act so far as they relate to this

Part.

(2) This Part does not make the Crown liable to be prosecuted for an

offence.

(3) The protection in subsection (2) does not apply to an authority of

the Commonwealth or an authority of a State or Territory.

152AE Extension to external Territories

(1) 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).

(2) The operation of this Part, and the other provisions of this Act so

far as they relate to this Part, in relation to Norfolk Island is not

affected by the amendments made by Division 1 of Part 1 of

Schedule 5 to the Territories Legislation Amendment Act 2016.

152AF Access

(1) A reference in this Part to access, in relation to a declared service,

is a reference to access by a service provider in order that the

service provider can provide carriage services and/or content

services.

(2) For the purposes of this Part, anything done by a carrier or carriage

service provider in fulfilment of a standard access obligation is

taken to be an aspect of access to a declared service.

(3) For the purposes of this Part, if an access determination imposes a

requirement on a carrier or carriage service provider as mentioned

in paragraph 152BC(3)(e), anything done by the carrier or provider

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280 Competition and Consumer Act 2010

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in fulfilment of the requirement is taken to be an aspect of access

to a declared service.

152AG Access seeker

(1) This section sets out the circumstances in which a person is taken

to be an access seeker in relation to a declared service for the

purposes of this Part.

(2) A service provider is an access seeker in relation to a declared

service if the provider makes, or proposes to make, a request in

relation to that service under section 152AR (which deals with the

category A standard access obligations) or section 152AXB (which

deals with the category B standard access obligations), whether or

not:

(a) the request is refused; or

(b) the request is being complied with.

(3) A service provider is an access seeker in relation to a declared

service if:

(a) the provider wants access to the service; or

(b) the provider wants to change some aspect of the provider’s

existing access to the service; or

(c) the supplier of the service wants to change some aspect of the

provider’s existing access to the service.

152AGA Designated superfast telecommunications network

(1) For the purposes of this Part, if:

(a) a telecommunications network is used, or is proposed to be

used, to supply one or more Layer 2 bitstream services

wholly or principally to residential or small business

customers, or prospective residential or small business

customers, in Australia; and

(b) the network is used, or is proposed to be used, to supply a

superfast carriage service wholly or principally to residential

or small business customers, or prospective residential or

small business customers, in Australia; and

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(c) the network is not the national broadband network; and

(d) either:

(i) the network came into existence on or after 1 January

2011; or

(ii) the network was altered or upgraded on or after

1 January 2011 and, as a result of the alteration or

upgrade, the network became capable of being used to

supply a superfast carriage service to residential or

small business customers, or prospective residential or

small business customers, in Australia;

the network is a designated superfast telecommunications

network.

(2) A network is not a designated superfast telecommunications

network for the purposes of this Part if, under subsection 141A(1)

of the Telecommunications Act 1997, the network is exempt from

section 141 of that Act.

Note: Section 141 of the Telecommunications Act 1997 deals with the

supply of Layer 2 bitstream services.

Deemed networks

(3) For the purposes of this section, if:

(a) a telecommunications network is altered or upgraded on or

after 1 January 2011; and

(b) as a result of the alteration or upgrade, a part of the network

became capable of being used to supply a superfast carriage

service to residential or small business customers, or

prospective residential or small business customers, in

Australia;

then:

(c) that part is taken to be a network in its own right; and

(d) the network referred to in paragraph (c) is taken to have come

into existence on or after 1 January 2011.

(4) For the purposes of this section, if:

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(a) a telecommunications network is extended on or after

1 January 2011; and

(b) the extended part of the network is capable of being used to

supply a superfast carriage service to residential or small

business customers, or prospective residential or small

business customers, in Australia;

then:

(c) the extended part is taken to be a network in its own right;

and

(d) the network referred to in paragraph (c) is taken to have come

into existence on or after 1 January 2011.

(5) If:

(a) a part of the infrastructure of a telecommunications network

is situated in a particular area that is being or was developed

as a particular stage of a real estate development project

(within the ordinary meaning of that expression); and

(b) the network is extended to another area that is being, or is to

be, developed as another stage of the project;

subsection (4) does not apply to the extension.

(6) If:

(a) a telecommunications network was in existence immediately

before 1 January 2011; and

(b) the network is extended on or after 1 January 2011; and

(c) no point on the infrastructure of the extension is located more

than:

(i) 1 kilometre; or

(ii) if a longer distance is specified in the regulations—that

longer distance;

from a point on the infrastructure of the network as the

network stood immediately before 1 January 2011;

subsection (4) does not apply to the extension.

(7) The regulations may provide that subsection (4) does not apply to a

specified extension of a telecommunications network.

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Competition and Consumer Act 2010 283

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Note: For specification by class, see the Acts Interpretation Act 1901.

Certain installations and connections are not taken to be an

extension, alteration or upgrade

(8) For the purposes of this section, if:

(a) a line is or was installed for the purposes of connecting

particular premises to a telecommunications network; and

(b) the installation of the line enables or enabled the occupier of

the premises to become a customer in relation to carriage

services supplied using the network; and

(c) the premises are in close proximity to a line that forms part of

the infrastructure of the network; and

(d) the network is capable of being used to supply a superfast

carriage service; and

(e) the network came into existence before 1 January 2011;

neither the installation of the line mentioned in paragraph (a), nor

the connection of the premises, is taken to be an extension,

alteration or upgrade of the network.

Small business customer

(9) For the purposes of this section, small business customer means:

(a) a customer who is a small business employer (within the

meaning of the Fair Work Act 2009); or

(b) a customer who:

(i) carries on a business; and

(ii) does not have any employees.

For the purposes of paragraph (a), it is to be assumed that each

reference in section 23 of the Fair Work Act 2009 to a national

system employer were a reference to an employer (within the

ordinary meaning of that expression).

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284 Competition and Consumer Act 2010

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Alteration

(10) For the purposes of this section, an alteration of a

telecommunications network does not include an extension of the

network.

Upgrade

(11) For the purposes of this section, an upgrade of a

telecommunications network does not include an extension of the

network.

152AH Reasonableness—terms and conditions

(1) For the purposes of this Part, in determining whether particular

terms and conditions are reasonable, regard must be had to the

following matters:

(a) whether the terms and conditions promote the long-term

interests of end-users of carriage services or of services

supplied by means of carriage services;

(b) the legitimate business interests of the carrier or carriage

service provider concerned, and the carrier’s or provider’s

investment in facilities used to supply the declared service

concerned;

(c) the interests of persons who have rights to use the declared

service concerned;

(d) the direct costs of providing access to the declared service

concerned;

(e) the operational and technical requirements necessary for the

safe and reliable operation of a carriage service, a

telecommunications network or a facility;

(f) the economically efficient operation of a carriage service, a

telecommunications network or a facility.

(2) Subsection (1) does not, by implication, limit the matters to which

regard may be had.

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152AI When public inquiry commences

For the purposes of this Part, a public inquiry held by the

Commission under Part 25 of the Telecommunications Act 1997

commences when the Commission publishes the notice under

section 498 of that Act about the inquiry.

152AJ Interpretation of Part IIIA not affected by this Part

In determining the meaning of a provision of Part IIIA, the

provisions of this Part (other than section 152CK) are to be

ignored.

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

This Part does not affect the operation of Parts IV and VII.

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Section 152AL

286 Competition and Consumer Act 2010

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Division 2—Declared services

152AL Declared services

Eligible service

(1) For the purposes of this section, an eligible service is:

(a) a listed carriage service (within the meaning of the

Telecommunications Act 1997); or

(b) a service that facilitates the supply of a listed carriage service

(within the meaning of that Act);

where the service is supplied, or is capable of being supplied, by a

carrier or a carriage service provider (whether to itself or to other

persons).

Declaration made after public inquiry—services not supplied by an

NBN corporation

(3) The Commission may, by written instrument, declare that a

specified eligible service is a declared service if:

(a) the Commission has held a public inquiry under Part 25 of

the Telecommunications Act 1997 about a proposal to make

the declaration; and

(b) the Commission has prepared a report about the inquiry

under section 505 of the Telecommunications Act 1997; and

(c) the report was published during the 180-day period ending

when the declaration was made; and

(d) the Commission is satisfied that the making of the

declaration will promote the long-term interests of end-users

of carriage services or of services provided by means of

carriage services.

Note: Eligible services may be specified by name, by inclusion in a specified

class or in any other way.

(3A) A declaration under subsection (3) does not apply to an eligible

service to the extent to which the service is supplied, or is capable

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of being supplied, by an NBN corporation (whether to itself or to

other persons).

(3B) Before commencing to hold a public inquiry under Part 25 of the

Telecommunications Act 1997 about a proposal to make a

declaration under subsection (3) in relation to an eligible service,

the Commission must consider whether to hold a public inquiry

under that Part about a proposal to make a declaration under

subsection (8A) in relation to the service.

Note: For combined public inquiries, see section 152AN.

Mandatory declaration—Layer 2 bitstream service

(3C) As soon as practicable after the commencement of this subsection,

the Commission must declare under subsection (3) that a specified

Layer 2 bitstream service is a declared service.

(3D) A declaration mentioned in subsection (3C) has no effect except to

the extent (if any) to which the Layer 2 bitstream service is

supplied using a designated superfast telecommunications network.

Note: For designated superfast telecommunications network, see

section 152AGA.

(3E) Paragraphs (3)(a) to (d) do not apply to a declaration mentioned in

subsection (3C).

(3F) If a Layer 2 bitstream service is declared as mentioned in

subsection (3C), that subsection does not, by implication, prevent

the Commission from making a declaration under subsection (3) in

relation to another Layer 2 bitstream service.

(3G) If a Layer 2 bitstream service is declared as mentioned in

subsection (3C), that subsection does not, by implication, prevent

the Commission from making another declaration under

subsection (3) in relation to the same Layer 2 bitstream service.

(3H) The other declaration mentioned in subsection (3G) has no effect

except to the extent (if any) to which the Layer 2 bitstream service

is supplied otherwise than by using a designated superfast

telecommunications network.

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Section 152AL

288 Competition and Consumer Act 2010

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Note: For designated superfast telecommunications network, see

section 152AGA.

Declaration has effect

(4) A declaration under subsection (3) has effect accordingly.

Gazettal of declaration

(5) A copy of a declaration under subsection (3) is to be published in

the Gazette.

Related services

(6) A reference in paragraph (1)(b) to a service that facilitates the

supply of a carriage service does not include a reference to the use

of intellectual property except to the extent that it is an integral but

subsidiary part of the first-mentioned service.

Services covered by special access undertakings—services not

supplied by an NBN corporation

(7) If:

(a) a person (other than an NBN corporation) gives the

Commission a special access undertaking in relation to a

service or a proposed service; and

(b) the undertaking is in operation; and

(c) the person supplies the service or proposed service (whether

to itself or to other persons);

the service supplied by the person is a declared service. To avoid

doubt, if the undertaking is subject to limitations, the service

supplied by the person is a declared service only to the extent to

which the service falls within the scope of the limitations.

(8) The Commission may declare a service under subsection (3) even

if the service is, to any extent, covered by subsection (7).

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Declaration made after public inquiry—services supplied by an

NBN corporation

(8A) The Commission may, by written instrument, declare that a

specified eligible service, to the extent to which the service is

supplied, or is capable of being supplied, by a specified NBN

corporation (whether to itself or to other persons), is a declared

service if:

(a) the Commission has held a public inquiry under Part 25 of

the Telecommunications Act 1997 about a proposal to make

the declaration; and

(b) the Commission has prepared a report about the inquiry

under section 505 of the Telecommunications Act 1997; and

(c) the report was published during the 180-day period ending

when the declaration was made; and

(d) the Commission is satisfied that the making of the

declaration will promote the long-term interests of end-users

of carriage services or of services provided by means of

carriage services.

If the Commission does so, the declared service relates to the NBN

corporation for the purposes of subsections 152AXB(2) and

152AXC(7).

Note: Eligible services may be specified by name, by inclusion in a specified

class or in any other way.

(8B) A declaration under subsection (8A) has effect accordingly.

(8C) A copy of a declaration under section (8A) is to be published in the

Gazette.

(8CA) Subsection (3C) does not, by implication, prevent a Layer 2

bitstream service from being declared under subsection (8A).

Services supplied by an NBN corporation—standard form of

access agreement

(8D) If:

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(a) an eligible service is supplied, or is capable of being

supplied, by an NBN corporation (whether to itself or to

other persons); and

(b) the NBN corporation is a carrier or a carriage service

provider; and

(c) the NBN corporation has formulated a standard form of

access agreement that relates to access to the service; and

(d) the standard form of access agreement is available on the

NBN corporation’s website;

then:

(e) the service, to the extent to which it is supplied, or is capable

of being supplied, by the NBN corporation (whether to itself

or to other persons) is a declared service; and

(f) the declared service relates to the NBN corporation for the

purposes of subsections 152AXB(2) and 152AXC(7).

Services covered by special access undertakings—services

supplied by an NBN corporation

(8E) If:

(a) an NBN corporation gives the Commission a special access

undertaking in relation to a service or a proposed service; and

(b) the undertaking is in operation; and

(c) the NBN corporation supplies the service or proposed service

(whether to itself or to other persons);

then:

(d) the service supplied by the NBN corporation is a declared

service; and

(e) the declared service relates to the NBN corporation for the

purposes of subsections 152AXB(2) and 152AXC(7).

To avoid doubt, if the undertaking is subject to limitations, the

service supplied by the NBN corporation is a declared service only

to the extent to which the service falls within the scope of the

limitations.

(8F) The Commission may declare a service under subsection (8A) even

if the service is, to any extent, covered by subsection (8E).

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Declaration is not a legislative instrument

(9) A declaration under this section is not, and is taken never to have

been, a legislative instrument.

(10) A variation of a declaration made under this section is not, and is

taken never to have been, a legislative instrument.

(11) A revocation of a declaration made under this section is not, and is

taken never to have been, a legislative instrument.

(12) If:

(a) a declaration was made under this section before the

commencement of this subsection; and

(b) the declaration ceased to be in force before the

commencement of this subsection;

then:

(c) the declaration is taken never to have been a legislative

instrument; and

(d) if the declaration was varied or revoked before the

commencement of this subsection—the variation or

revocation is taken never to have been a legislative

instrument.

(13) For the purposes of paragraph (12)(b), assume that the Legislation

Act 2003 had never been enacted.

(14) Subsections (9) to (12) are enacted for the avoidance of doubt.

152ALA Duration of declaration

Expiry date

(1) A declaration under section 152AL (other than a declaration

mentioned in subsection 152AL(3C)) must specify an expiry date

for the declaration.

(2) In specifying an expiry date, the Commission must have regard to:

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(a) the principle that the expiry date for a declaration should

occur in the period:

(i) beginning 3 years after the declaration was made; and

(ii) ending 5 years after the declaration was made;

unless, in the Commission’s opinion, there are circumstances

that warrant the expiry date occurring in a shorter or longer

period; and

(b) such other matters (if any) as the Commission considers

relevant.

(3) Subsection (2) has effect subject to subsection (4).

Extension of expiry date

(4) The Commission may, by notice published in the Gazette, extend

or further extend the expiry date of a specified declaration under

section 152AL, so long as the extension or further extension is for

a period of not more than 5 years.

Duration of declaration

(5) Unless sooner revoked, a declaration under section 152AL (other

than a declaration mentioned in subsection 152AL(3C)) ceases to

be in force on the expiry date of the declaration.

(5A) A declaration mentioned in subsection 152AL(3C) remains in force

indefinitely.

Fresh declaration

(6) If a declaration under section 152AL expires, this Part does not

prevent the Commission from making a fresh declaration under

section 152AL in the same terms as the expired declaration.

(6A) If the fresh declaration comes into force immediately after the

expiry of the expired declaration, the fresh declaration is taken to

be a declaration that replaces the expired declaration.

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Public inquiry during 18-month period ending on the expiry date of

a declaration

(7) The Commission must:

(a) during the 18-month period ending on the expiry date of a

declaration, hold a public inquiry under Part 25 of the

Telecommunications Act 1997 about:

(i) whether to extend or further extend the expiry date of

the declaration; and

(ii) whether to revoke the declaration; and

(iii) whether to vary the declaration; and

(iv) whether to allow the declaration to expire without

making a new declaration under section 152AL; and

(v) whether to allow the declaration to expire and then to

make a new declaration under section 152AL; and

(vi) whether to extend or further extend the expiry date of a

declaration by a period of not more than 12 months and

then to allow the declaration to expire without making a

new declaration under section 152AL; and

(b) prepare a report about the inquiry under section 505 of the

Telecommunications Act 1997; and

(c) publish the report during the 180-day period ending on the

expiry date of the first-mentioned declaration.

(8) If:

(a) after holding a public inquiry under subsection (7) in relation

to a declaration, the Commission allows the declaration to

expire and then makes a new declaration under

section 152AL; and

(b) the report mentioned in paragraph (7)(b) was published

during the 180-day period ending when the new declaration

was made;

the Commission is taken to have complied with paragraphs

152AL(3)(a), (b) and (c), or paragraphs 152AL(8A)(a), (b) and (c),

as the case requires, in relation to the new declaration.

(9) If:

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(a) after holding a public inquiry under subsection (7) in relation

to a declaration, the Commission revokes or varies the

declaration; and

(b) the report mentioned in paragraph (7)(b) was published

during the 180-day period ending at the time of the

revocation or variation;

the Commission is taken to have complied with paragraphs

152AL(3)(a), (b) and (c), or paragraphs 152AL(8A)(a), (b) and (c),

as the case requires, in relation to the revocation or variation (as

those paragraphs apply to the power of revocation and variation

because of subsection 152AO(1)).

Extension notice is not a legislative instrument

(10) A notice under subsection (4) is not, and is taken never to have

been, a legislative instrument.

(11) If:

(a) a declaration was made under section 152AL before the

commencement of this subsection; and

(b) a notice relating to the declaration was published under

subsection (4) of this section before the commencement of

this subsection; and

(c) the declaration ceased to be in force before the

commencement of this subsection;

the notice is taken never to have been a legislative instrument.

(12) For the purposes of paragraph (11)(c), assume that the Legislation

Act 2003 had never been enacted.

(13) Subsections (10) and (11) are enacted for the avoidance of doubt.

152AM Inquiries about proposals to declare services

(1) This section applies to a public inquiry of a kind mentioned in

paragraph 152AL(3)(a) or (8A)(a) or 152ALA(7)(a).

(2) The Commission may hold the inquiry:

(a) on its own initiative; or

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(b) if requested in writing to do so by a person.

(3) The Commission does not have a duty to consider whether to hold

a public inquiry of a kind mentioned in paragraph 152AL(3)(a) or

(8A)(a) if the Commission is requested to do so by a person.

(4) The Commission must give the ACMA a copy of the report about

the inquiry prepared in accordance with section 505 of the

Telecommunications Act 1997.

(5) If the inquiry is held at the request of a person, the Commission

must give the person a copy of the report about the inquiry

prepared under section 505 of the Telecommunications Act 1997.

152AN Combined inquiries about proposals to declare services

(1) The Commission may decide to combine 2 or more public inquiries

of a kind mentioned in paragraph 152AL(3)(a), or (8A)(a) or

152ALA(7)(a).

(2) If the Commission makes such a decision:

(a) the Commission may publish a single notice relating to the

combined inquiry under section 498 of the

Telecommunications Act 1997; and

(b) the Commission may prepare a single discussion paper about

the combined inquiry under section 499 of that Act; and

(c) the Commission may hold hearings relating to the combined

inquiry under section 501 of that Act; and

(d) the Commission must ensure that each inquiry is covered by

a report under section 505 of that Act, whether the report

relates:

(i) to a single one of those inquiries; or

(ii) to any 2 or more of those inquiries.

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152AO Variation or revocation of declaration

(1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a

power conferred on the Commission by section 152AL, but it

applies with the following changes.

(1A) If:

(a) a declaration under section 152AL relates to a particular

service; and

(b) in the Commission’s opinion, the service is of minor

importance;

the Commission is not required to hold a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal to

revoke the declaration.

(3) If a variation of a declaration under subsection 152AL(3) or (8A) is

a variation that, under the Procedural Rules, is taken to be a

variation of a minor nature, the Commission is not required to hold

a public inquiry under Part 25 of the Telecommunications Act 1997

about the proposed variation.

(4) The Commission must not vary or revoke a declaration mentioned

in subsection 152AL(3C).

Note: Subsection 152AL(3C) deals with Layer 2 bitstream services.

152AQ Register of declared services

(1) The Commission must keep a Register in relation to declarations

under section 152AL.

(2) The Register must include the following:

(a) particulars of all such declarations (including declarations

that have been revoked);

(b) particulars of variations and revocations of such declarations;

(c) copies of reports prepared in accordance with section 505 of

the Telecommunications Act 1997 in relation to inquiries

mentioned in paragraph 152AL(3)(a) or (8A)(a) or

152ALA(7)(a) of this Act.

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(3) The Register is to be maintained by electronic means.

(4) The Register is to be made available for inspection on the

Commission’s website.

(5) The Register is not a legislative instrument.

152AQC Compensation for acquisition of property

(1) If the operation of any or all of the following provisions:

(a) subsection 152AL(9), (10), (11), (12), (13) or (14);

(b) subsection 152ALA(10), (11), (12) or (13);

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.

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Section 152AR

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Division 3—Standard access obligations

Subdivision A—Category A standard access obligations

152AR Category A standard access obligations

(1) This section sets out the category A standard access obligations.

Access provider and active declared services

(2) For the purposes of this section, if a carrier (other than an NBN

corporation) or a carriage service provider (other than an NBN

corporation) supplies declared services, whether to itself or to other

persons:

(a) the carrier or provider is an access provider; and

(b) the declared services are active declared services.

Supply of active declared service to service provider

(3) An access provider must, if requested to do so by a service

provider:

(a) supply an active declared service to the service provider in

order that the service provider can provide carriage services

and/or content services; and

(b) take all reasonable steps to ensure that the technical and

operational quality of the active declared service supplied to

the service provider is equivalent to that which the access

provider provides to itself; and

(c) take all reasonable steps to ensure that the service provider

receives, in relation to the active declared service supplied to

the service provider, fault detection, handling and

rectification of a technical and operational quality and timing

that is equivalent to that which the access provider provides

to itself.

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Limit on paragraph (3)(a) obligation

(4) Paragraph (3)(a) does not impose an obligation to the extent (if

any) to which the imposition of the obligation would have any of

the following effects:

(a) preventing a service provider who already has access to the

declared service from obtaining a sufficient amount of the

service to be able to meet the service provider’s reasonably

anticipated requirements, measured at the time when the

request was made;

(b) preventing the access provider from obtaining a sufficient

amount of the service to be able to meet the access provider’s

reasonably anticipated requirements, measured at the time

when the request was made;

(c) preventing a person from obtaining, by the exercise of a

pre-request right, a sufficient level of access to the declared

service to be able to meet the person’s actual requirements;

(d) depriving any person of a protected contractual right;

(e) preventing Telstra from complying with an undertaking in

force under section 577A, 577C or 577E of the

Telecommunications Act 1997; or

(f) if a final migration plan is in force—requiring Telstra to

engage in conduct in connection with matters covered by the

final migration plan.

Ordering and provisioning—paragraph (3)(b)

(4A) To avoid doubt, ordering and provisioning are taken to be aspects

of technical and operational quality referred to in paragraph (3)(b).

(4B) The regulations may provide that, for the purposes of

subsection (4A), a specified act or thing is taken to be ordering.

Note: For specification by class, see subsection 13(3) of the Legislation Act

2003.

(4C) The regulations may provide that, for the purposes of

subsection (4A), a specified act or thing is taken to be

provisioning.

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Note: For specification by class, see subsection 13(3) of the Legislation Act

2003.

Interconnection of facilities

(5) If an access provider:

(a) owns or controls one or more facilities; or

(b) is a nominated carrier in relation to one or more facilities;

the access provider must, if requested to do so by a service

provider:

(c) permit interconnection of those facilities with the facilities of

the service provider for the purpose of enabling the service

provider to be supplied with active declared services in order

that the service provider can provide carriage services and/or

content services; and

(d) take all reasonable steps to ensure that:

(i) the technical and operational quality and timing of the

interconnection is equivalent to that which the access

provider provides to itself; and

(ii) if a standard is in force under section 384 of the

Telecommunications Act 1997—the interconnection

complies with the standard; and

(e) take all reasonable steps to ensure that the service provider

receives, in relation to the interconnection, fault detection,

handling and rectification of a technical and operational

quality and timing that is equivalent to that which the access

provider provides to itself.

Provision of billing information

(6) If a service provider uses active declared services supplied by an

access provider in accordance with subsection (3), the access

provider must, if requested to do so by the service provider, give

the service provider billing information in connection with matters

associated with, or incidental to, the supply of those active declared

services.

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Timing and content of billing information

(7) The billing information referred to in subsection (6) must:

(a) be given at such times or intervals as are ascertained in

accordance with the regulations; and

(b) be given in a manner and form ascertained in accordance

with the regulations; and

(c) set out such particulars as are ascertained in accordance with

the regulations.

Conditional-access customer equipment

(8) If an access provider supplies an active declared service by means

of conditional-access customer equipment, the access provider

must, if requested to do so by a service provider who has made a

request referred to in subsection (3), supply to the service provider

any service that is necessary to enable the service provider to

supply carriage services and/or content services by means of the

active declared service and using the equipment.

Exceptions

(9) This section does not impose an obligation on an access provider if

there are reasonable grounds to believe that:

(a) the access seeker would fail, to a material extent, to comply

with the terms and conditions on which the access provider

complies, or on which the access provider is reasonably

likely to comply, with that obligation; or

(b) the access seeker would fail, in connection with that

obligation, to protect:

(i) the integrity of a telecommunications network; or

(ii) the safety of individuals working on, or using services

supplied by means of, a telecommunications network or

a facility.

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Examples—paragraph (9)(a) grounds

(10) Examples of grounds for believing as mentioned in

paragraph (9)(a) include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the access provider).

Starting date for obligations

(11) An obligation imposed by this section does not arise before 1 July

1997.

Definitions

(12) In this section:

pre-request right, in relation to a request made for the purposes of

paragraph (3)(a), means a right under a contract that was in force at

the time when the request was made.

protected contractual right means a right under a contract that was

in force at the beginning of 13 September 1996.

152ARA Layer 2 bitstream services to be supplied on a

non-discriminatory basis

No discrimination between access seekers

(1) If a Layer 2 bitstream service is:

(a) supplied using a designated superfast telecommunications

network; and

(b) a declared service;

a carrier (other than an NBN corporation) or carriage service

provider (other than an NBN corporation) must not, in complying

with any of its category A standard access obligations in relation to

the service, discriminate between access seekers.

Note: For explanatory material, see section 152CJH.

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(2) The rule in subsection (1) does not prevent discrimination against

an access seeker if the carrier or carriage service provider has

reasonable grounds to believe that the access seeker would fail, to a

material extent, to comply with the terms and conditions on which

the carrier or carriage service provider complies, or on which the

carrier or carriage service provider is reasonably likely to comply,

with the relevant obligation.

(3) Examples of grounds for believing as mentioned in subsection (2)

include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the carrier or carriage

service provider).

No discrimination by a carrier or carriage service provider in

favour of itself

(7) If:

(a) a Layer 2 bitstream service is:

(i) supplied using a designated superfast

telecommunications network; and

(ii) a declared service; and

(b) the carrier (other than an NBN corporation) or carriage

service provider (other than an NBN corporation) supplies, or

is capable of supplying, the service to itself and to other

persons; and

(c) the carrier or carriage service provider is subject to a

category A standard access obligation in relation to the

service;

the carrier or carriage service provider must not discriminate in

favour of itself in relation to the supply of the service.

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152ARB Layer 2 bitstream services—carriers and carriage service

providers to carry on related activities on a

non-discriminatory basis

Scope

(1) This section applies to a carrier or carriage service provider if:

(a) a Layer 2 bitstream service is:

(i) supplied using a designated superfast

telecommunications network; and

(ii) a declared service; and

(b) the carrier or provider is subject to a category A standard

access obligation in relation to the service.

No discrimination

(2) The carrier or provider must not, in carrying on any of the

following activities, discriminate between access seekers:

(a) developing a new eligible service;

(b) enhancing a declared service;

(c) extending or enhancing the capability of a facility or

telecommunications network by means of which a declared

service is, or is to be, supplied;

(d) planning for a facility or telecommunications network by

means of which a declared service is, or is to be, supplied;

(e) an activity that is preparatory to the supply of a declared

service;

(f) an activity that is ancillary or incidental to the supply of a

declared service;

(g) giving information to service providers about any of the

above activities.

Note: For explanatory material, see section 152CJH.

Definition

(6) In this section:

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eligible service has the same meaning as in section 152AL.

152ASA Anticipatory class exemptions from category A standard

access obligations

Determination providing for exemption

(1) The Commission may, by written instrument, determine that, in the

event that a specified service or proposed service becomes an

active declared service, each of the members of a specified class of

carrier or of a specified class of carriage service provider are

exempt from any or all of the obligations referred to in

section 152AR, to the extent to which the obligations relate to the

active declared service.

(1A) A service or a proposed service must not be specified in a

determination under this section if, at the time when the

determination is made, the service or proposed service is a declared

service.

(2) A determination under this section may be unconditional or subject

to such conditions or limitations as are specified in the

determination.

Note: For judicial enforcement of conditions and limitations, see

section 152BBAA.

(2A) A determination under this section may:

(a) provide that the determination must not be varied; or

(b) provide that the determination must not be varied except in

such circumstances as are specified in the determination.

(2B) A determination under this section may:

(a) provide that the determination must not be revoked; or

(b) provide that the determination must be revoked except in

such circumstances as are specified in the determination.

(3) A determination under this section has effect accordingly.

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Criteria for making determination

(4) The Commission must not make a determination under this section

unless the Commission is satisfied that the making of the

determination will promote the long-term interests of end-users of

carriage services or of services supplied by means of carriage

services.

Expiry time of determination

(8) A determination under this section must specify the expiry time of

the determination. If a determination expires, this Part does not

prevent the Commission from making a fresh determination under

this section in the same terms as the expired determination.

(9) The expiry time of the determination may be described by

reference to the end of a period beginning when the service or

proposed service becomes an active declared service.

(10) Subsection (9) does not, by implication, limit subsection (8).

Consultation

(11) If, in the Commission’s opinion, the making of a determination

under this section is likely to have a material effect on the interests

of a person, then, before making the determination, the

Commission must first:

(a) publish a draft of the determination and invite people to make

submissions to the Commission on the question of whether

the draft determination should be made; and

(b) consider any submissions that were received within the time

limit specified by the Commission when it published the

draft determination.

Variation or revocation of determination

(11A) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a

power conferred on the Commission by subsection (1), but it

applies with the following changes.

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(11B) A provision referred to in paragraph (2A)(a) or (b) or (2B)(a) or (b)

cannot be varied or removed.

(11C) A determination under this section must not be varied or revoked

in a manner that is inconsistent with a provision referred to in

paragraph (2A)(a) or (b) or (2B)(a) or (b).

Determination is not a legislative instrument

(12) A determination made under subsection (1) is not a legislative

instrument.

Definition

(13) In this section:

active declared service has the same meaning as in section 152AR.

152ATA Anticipatory individual exemptions from category A

standard access obligations

Application for exemption order

(1) A person who is, or expects to be, a carrier or a carriage service

provider may apply to the Commission for a written order that, in

the event that a specified service or proposed service becomes an

active declared service, the person is exempt from any or all of the

obligations referred to in section 152AR, to the extent to which the

obligations relate to the active declared service.

(2) An application under subsection (1) must be:

(a) in writing; and

(b) in a form approved in writing by the Commission for the

purposes of this paragraph.

(2A) Before the Commission makes a decision under subsection (3) in

relation to the application, the applicant may, by written notice

given to the Commission within the time allowed by the Procedural

Rules, modify the application, so long as the modification is a

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modification that, under the Procedural Rules, is taken to be a

modification of a minor nature.

Commission must make exemption order or refuse application

(3) After considering the application, the Commission must:

(a) make a written order that, in the event that the service or

proposed service becomes an active declared service, the

applicant is exempt from one or more of the obligations

referred to in section 152AR, to the extent to which the

obligations relate to the active declared service; or

(b) refuse the application.

(3A) A service or a proposed service must not be specified in an order

under paragraph (3)(a) if, at the time when the order is made, the

service or proposed service is a declared service.

(4) An order under paragraph (3)(a) may be unconditional or subject to

such conditions or limitations as are specified in the order.

Note: For judicial enforcement of conditions and limitations, see

section 152BBAA.

(4A) An order under paragraph (3)(a) may:

(a) provide that the order must not be varied; or

(b) provide that the order must not be varied except in such

circumstances as are specified in the order.

(4B) An order under paragraph (3)(a) may:

(a) provide that the order must not be revoked; or

(b) provide that the order must not be revoked except in such

circumstances as are specified in the order.

(5) An order under paragraph (3)(a) has effect accordingly.

Criteria for making exemption order

(6) The Commission must not make an order under paragraph (3)(a)

unless the Commission is satisfied that the making of the order will

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promote the long-term interests of end-users of carriage services or

of services provided by means of carriage services.

Serial applications

(7) If:

(a) a person makes an application (the first application) under

subsection (1) for an order in relation to a service or

proposed service; and

(b) the Commission refuses the first application; and

(c) the person subsequently makes another application under

subsection (1); and

(d) the Commission is satisfied that:

(i) the first application and the other application have

material similarities; or

(ii) the grounds on which the person made the first

application are materially similar to the grounds on

which the person has made the other application;

the Commission may refuse to consider the other application.

Expiry time for exemption order

(10) An order under paragraph (3)(a) must specify the expiry time for

the order. If an order expires, this Part does not prevent the

Commission from making a fresh order under paragraph (3)(a) in

the same terms as the expired order.

(10A) The expiry time for the order may be described by reference to the

end of a period beginning when the service or proposed service

becomes an active declared service.

(10B) Subsection (10A) does not, by implication, limit subsection (10).

Consultation

(11) If, in the Commission’s opinion, the making of an order under

paragraph (3)(a) is likely to have a material effect on the interests

of a person, then, before making the order, the Commission must

first:

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(a) publish the application for the order and invite people to

make submissions to the Commission on the question of

whether the order should be made; and

(b) consider any submissions that were received within the time

limit specified by the Commission when it published the

application.

Commission to make decision within 6 months

(12) If the Commission does not make a decision on an application

under this section within 6 months after receiving the application,

the Commission is taken to have made, at the end of that 6-month

period, an order under paragraph (3)(a) in accordance with the

terms of the application.

(13) In calculating the 6-month period referred to in subsection (12),

disregard:

(a) if the Commission has published the application under

subsection (11)—a day in the period:

(i) beginning on the date of publication; and

(ii) ending at the end of the time limit specified by the

Commission when it published the application; and

(b) if the Commission has requested further information under

section 152AU in relation to the application—a day during

any part of which the request, or any part of the request,

remains unfulfilled.

Extension of decision-making period

(14) The Commission may, by written notice given to the applicant,

extend or further extend the 6-month period referred to in

subsection (12), so long as:

(a) the extension or further extension is for a period of not more

than 3 months; and

(b) the notice includes a statement explaining why the

Commission has been unable to make a decision on the

application within that 6-month period or that 6-month period

as previously extended, as the case may be.

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(15) As soon as practicable after the Commission gives a notice under

subsection (14), the Commission must cause a copy of the notice to

be made available on the internet.

Notification of refusal of application

(16) If the Commission makes a decision refusing an application under

subsection (1), the Commission must give the applicant a written

statement setting out the reasons for the refusal.

(16A) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a

power conferred on the Commission by paragraph (3)(a), but it

applies with the following changes.

(16B) A provision referred to in paragraph (4A)(a) or (b) or (4B)(a) or (b)

cannot be varied or removed.

(16C) An order under paragraph (3)(a) must not be varied or revoked in a

manner that is inconsistent with a provision referred to in (4A)(a)

or (b) or (4B)(a) or (b).

Definition

(18) In this section:

active declared service has the same meaning as in section 152AR.

152AU Individual exemptions—request for further information

(1) This section applies to an application under

subsection 152ATA(1).

(2) The Commission may request the applicant to give the

Commission further information about the application.

(2A) If:

(a) the Procedural Rules make provision for or in relation to a

time limit for giving the information; and

(b) the applicant does not give the Commission the information

within the time limit allowed by the Procedural Rules;

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the Commission may, by written notice given to the applicant,

refuse the application.

(2B) Subsection (2A) has effect despite anything in this Division.

(3) If the Procedural Rules do not make provision for or in relation to a

time limit for giving the information, the Commission may refuse

to consider the application until the applicant gives the

Commission the information.

(4) The Commission may withdraw its request for further information,

in whole or in part.

152AXA Statement of reasons for decision—specification of

documents

If the Commission:

(a) makes a decision under section 152ATA; and

(b) gives a person a written statement setting out the reasons for

the decision;

the statement must specify the documents that the Commission

examined in the course of making the decision.

Subdivision B—Category B standard access obligations

152AXB Category B standard access obligations

(1) This section sets out the category B standard access obligations.

Supply of declared service to service provider

(2) If:

(a) an NBN corporation is a carrier or carriage service provider;

and

(b) under subsection 152AL(8A), (8D) or (8E), a declared

service relates to the NBN corporation;

the NBN corporation must, if requested to do so by a service

provider, supply the service to the service provider in order that the

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service provider can provide carriage services and/or content

services.

Note: For declared services, see subsections 152AL(8A), (8D) and (8E).

Limit on subsection (2) obligations

(3) Subsection (2) does not impose an obligation to the extent (if any)

to which the imposition of the obligation would have any of the

following effects:

(a) preventing a service provider who already has access to the

declared service from obtaining a sufficient amount of the

service to be able to meet the service provider’s reasonably

anticipated requirements, measured at the time when the

request was made;

(b) preventing the NBN corporation from obtaining a sufficient

amount of the service to be able to meet the NBN

corporation’s reasonably anticipated requirements, measured

at the time when the request was made;

(c) preventing a person from obtaining, by the exercise of a

pre-request right, a sufficient level of access to the declared

service to be able to meet the person’s actual requirements.

(3A) Subsection (2) does not impose an obligation on an NBN

corporation to supply a service in circumstances where a refusal by

the NBN corporation to supply the service is authorised under

section 151DA for the purposes of subsection 51(1).

Interconnection of facilities

(4) If:

(a) an NBN corporation is a carrier or carriage service provider;

and

(b) the NBN corporation:

(i) owns or controls one or more facilities; or

(ii) is a nominated carrier in relation to one or more

facilities;

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the NBN corporation must, if requested to do so by a service

provider:

(c) permit interconnection of those facilities with the facilities of

the service provider for the purpose of enabling the service

provider to be supplied with declared services in order that

the service provider can provide carriage services and/or

content services; and

(d) take all reasonable steps to ensure that, if a standard is in

force under section 384 of the Telecommunications Act 1997,

the interconnection complies with the standard.

(4A) Subsection (4) does not apply to an interconnection at a location

that is not a listed point of interconnection (within the meaning of

section 151DB).

Conditional-access customer equipment

(5) If:

(a) an NBN corporation is a carrier or carriage service provider;

and

(b) the NBN corporation supplies a declared service by means of

conditional-access customer equipment;

the NBN corporation must, if requested to do so by a service

provider who has made a request referred to in subsection (2),

supply to the service provider any service that is necessary to

enable the service provider to supply carriage services and/or

content services by means of the declared service and using the

equipment.

Exceptions

(6) This section does not impose an obligation on an NBN corporation

if there are reasonable grounds to believe that:

(a) the access seeker would fail, to a material extent, to comply

with the terms and conditions on which the NBN corporation

complies, or on which the NBN corporation is reasonably

likely to comply, with that obligation; or

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(b) the access seeker would fail, in connection with that

obligation, to protect:

(i) the integrity of a telecommunications network; or

(ii) the safety of individuals working on, or using services

supplied by means of, a telecommunications network or

a facility.

Examples—paragraph (6)(a) grounds

(7) Examples of grounds for believing as mentioned in

paragraph (6)(a) include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the NBN corporation).

Definition

(8) In this section:

pre-request right, in relation to a request made for the purposes of

subsection (2), means a right under a contract that was in force at

the time when the request was made.

152AXC NBN corporation to supply declared services on a

non-discriminatory basis

No discrimination between access seekers

(1) An NBN corporation must not, in complying with any of its

category B standard access obligations, discriminate between

access seekers.

Note: For explanatory material, see section 152CJH.

(2) The rule in subsection (1) does not prevent discrimination against

an access seeker if the NBN corporation has reasonable grounds to

believe that the access seeker would fail, to a material extent, to

comply with the terms and conditions on which the NBN

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corporation complies, or on which the NBN corporation is

reasonably likely to comply, with the relevant obligation.

(3) Examples of grounds for believing as mentioned in subsection (2)

include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the NBN corporation).

No discrimination by an NBN corporation in favour of itself

(7) If:

(a) an NBN corporation is a carrier or carriage service provider;

and

(b) under subsection 152AL(8A), (8D) or (8E), a declared

service relates to the NBN corporation; and

(c) the NBN corporation is subject to a category B standard

access obligation in relation to the service;

the NBN corporation must not discriminate in favour of itself in

relation to the supply of the service.

Authorised conduct

(12) If conduct is authorised under section 151DA for the purposes of

subsection 51(1), the conduct is taken not to be discrimination for

the purposes of this section.

152AXD NBN corporation to carry on related activities on a

non-discriminatory basis

(1) An NBN corporation must not, in carrying on any of the following

activities, discriminate between access seekers:

(a) developing a new eligible service;

(b) enhancing a declared service;

(c) extending or enhancing the capability of a facility or

telecommunications network by means of which a declared

service is, or is to be, supplied;

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(d) planning for a facility or telecommunications network by

means of which a declared service is, or is to be, supplied;

(e) an activity that is preparatory to the supply of a declared

service;

(f) an activity that is ancillary or incidental to the supply of a

declared service;

(g) giving information to service providers about any of the

above activities.

Note: For explanatory material, see section 152CJH.

(5A) If conduct is authorised under section 151DA for the purposes of

subsection 51(1), the conduct is taken not to be discrimination for

the purposes of this section.

Definition

(6) In this section:

eligible service has the same meaning as in section 152AL.

Subdivision C—Compliance with standard access obligations

152AY Compliance with standard access obligations

(1) This section applies if a carrier or carriage service provider is

required to comply with any or all of the standard access

obligations.

(2) The carrier or carriage service provider must comply with the

obligations:

(a) if an access agreement between:

(i) the carrier or carriage service provider, as the case

requires; and

(ii) the access seeker;

is in operation and specifies terms and conditions about a

particular matter—on such terms and conditions relating to

that matter as are set out in the agreement; or

(b) if:

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(i) paragraph (a) does not apply in relation to terms and

conditions about a particular matter; and

(ii) a special access undertaking given by the carrier or

carriage service provider is in operation, and the

undertaking specifies terms and conditions about that

matter—on such terms and conditions relating to that

matter as are set out in the undertaking; or

(c) if:

(i) neither paragraph (a) nor (b) applies to terms and

conditions about a particular matter; and

(ii) binding rules of conduct specify terms and conditions

about that matter;

on such terms and conditions relating to that matter as are set

out in the binding rules of conduct; or

(d) if:

(i) none of the above paragraphs applies to terms and

conditions about a particular matter; and

(ii) an access determination specifies terms and conditions

about that matter;

on such terms and conditions relating to that matter as are set

out in the access determination.

Note 1: Sections 152BCC, 152BDB, 152BDE, 152CBIA, 152CBIB and

152CBIC, which deal with inconsistency, should be read and applied

before this section is read and applied.

Note 2: Even though subsection (2) mentions binding rules of conduct,

binding rules of conduct may only be made if the Commission

considers that there is an urgent need to do so.

Note 3: For transitional provisions, see Division 2 of Part 2 of Schedule 1 to

the Telecommunications Legislation Amendment (Competition and

Consumer Safeguards) Act 2010.

152AYA Ancillary obligations—confidential information

If:

(a) a carrier or carriage service provider is required to comply

with a standard access obligation that arose because of a

request made by an access seeker; and

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(b) at or after the time when the request was made, the access

seeker gives particular information to the carrier or carriage

service provider to enable the carrier or carriage service

provider to comply with the standard access obligation; and

(c) at or before the time when the information was given, the

access seeker gave the carrier or carriage service provider a

written notice to the effect that:

(i) that information; or

(ii) a class of information that includes that information;

is to be regarded as having been given on a confidential basis

for the purpose of enabling the carrier or carriage service

provider to comply with the standard access obligation;

the carrier or carriage service provider must not, without the

written consent of the access seeker, use that information for a

purpose other than enabling the carrier or carriage service provider

to comply with:

(d) the standard access obligation; or

(e) any other standard access obligation that arose because of a

request made by the access seeker; or

(f) any other obligation imposed by a law.

152AZ Carrier licence condition

A carrier licence held by a carrier is subject to a condition that the

carrier must comply with:

(a) any standard access obligations that are applicable to the

carrier; and

(aa) any rule in section 152ARA, 152ARB, 152AXC or 152AXD

that is applicable to the carrier; and

(b) any obligations under section 152AYA that are applicable to

the carrier.

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152BA Service provider rule

(1) In addition to the rules mentioned in section 98 of the

Telecommunications Act 1997, the rule set out in subsection (2) of

this section is a service provider rule for the purposes of that Act.

(2) A carriage service provider must comply with:

(a) any standard access obligations that are applicable to the

provider; and

(aa) any rule in section 152ARA, 152ARB, 152AXC or 152AXD

that is applicable to the provider; and

(b) any obligations under section 152AYA that are applicable to

the provider.

152BB Judicial enforcement of standard access obligations

(1) If the Federal Court is satisfied that a carrier or carriage service

provider has contravened any of the standard access obligations

that are applicable to the carrier or provider, the Court may, on the

application of:

(a) the Commission; or

(b) any person whose interests are affected by the contravention;

make all or any of the following orders:

(c) an order directing the carrier or provider to comply with the

obligation;

(d) an order directing the carrier or provider to compensate any

other person who had suffered loss or damage as a result of

the contravention;

(e) any other order that the Court thinks appropriate.

(1AA) If the Federal Court is satisfied that a carrier or carriage service

provider has contravened the rule in subsection 152ARA(1) or (7)

or 152ARB(2), the Court may, on the application of:

(a) the Commission; or

(b) any person whose interests are affected by the contravention;

make all or any of the following orders:

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(c) an order directing the carrier or provider to comply with the

obligation;

(d) an order directing the carrier or provider to compensate any

other person who had suffered loss or damage as a result of

the contravention;

(e) any other order that the Court thinks appropriate.

(1AB) If the Federal Court is satisfied that an NBN corporation has

contravened the rule in subsection 152AXC(1) or (7) or

152AXD(1), the Court may, on the application of:

(a) the Commission; or

(b) any person whose interests are affected by the contravention;

make all or any of the following orders:

(c) an order directing the NBN corporation to comply with that

rule;

(d) an order directing the NBN corporation to compensate any

other person who had suffered loss or damage as a result of

the contravention;

(e) any other order that the Court thinks appropriate.

(1A) If the Federal Court is satisfied that a carrier or carriage service

provider has contravened an obligation imposed by

section 152AYA, the Court may, on the application of:

(a) the Commission; or

(b) the access seeker who gave the information concerned;

make all or any of the following orders:

(c) an order directing the carrier or carriage service provider to

comply with the obligation;

(d) an order directing the carrier or carriage service provider to

compensate any other person who has suffered loss or

damage as a result of the contravention;

(e) any other order that the Court thinks appropriate.

(2) The Federal Court may discharge or vary an order granted under

this section.

(3) This section does not limit section 152BBAA.

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152BBAA Judicial enforcement of conditions and limitations of

exemption determinations and orders

(1) If the Federal Court is satisfied that a person has contravened any

of the conditions or limitations of:

(a) a determination under section 152ASA; or

(b) an order under section 152ATA;

the Court may, on the application of:

(c) the Commission; or

(d) any person whose interests are affected by the contravention;

make all or any of the following orders:

(e) an order directing the person to comply with the condition or

limitation;

(f) an order directing the person to compensate any other person

who had suffered loss or damage as a result of the

contravention;

(g) any other order that the Court thinks appropriate.

(2) The Federal Court may discharge or vary an order granted under

this section.

(3) This section does not limit section 152BB.

152BBA Commission may give directions in relation to negotiations

(1) This section applies if a carrier or carriage service provider is

required to comply with any or all of the standard access

obligations.

(2) If the following parties:

(a) the carrier or carriage service provider, as the case requires;

(b) the access seeker;

propose to negotiate, or are negotiating, with a view to agreeing on

terms and conditions as mentioned in paragraph 152AY(2)(a), the

Commission may, for the purposes of facilitating those

negotiations, if requested in writing to do so by either party, give a

party a written procedural direction requiring the party to do, or

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refrain from doing, a specified act or thing relating to the conduct

of those negotiations.

(3) The following are examples of the kinds of procedural directions

that may be given under subsection (2):

(a) a direction requiring a party to give relevant information to

the other party;

(b) a direction requiring a party to carry out research or

investigations in order to obtain relevant information;

(c) a direction requiring a party not to impose unreasonable

procedural conditions on the party’s participation in

negotiations;

(d) a direction requiring a party to respond in writing to the other

party’s proposal or request in relation to the time and place of

a meeting;

(e) a direction requiring a party, or a representative of a party, to

attend a mediation conference;

(f) a direction requiring a party, or a representative of a party, to

attend a conciliation conference.

(4) For the purposes of paragraph (3)(c), if a party (the first party)

imposes, as a condition on the first party’s participation in

negotiations, a requirement that the other party must not disclose to

the Commission any or all information, or the contents of any or all

documents, provided in the course of negotiations, that condition is

taken to be an unreasonable procedural condition on the first

party’s participation in those negotiations.

(5) A person must not contravene a direction under subsection (2).

(6) A person must not:

(a) aid, abet, counsel or procure a contravention of

subsection (5); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (5); or

(c) be in any way, directly or indirectly, knowingly concerned in,

or party to, a contravention of subsection (5); or

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(d) conspire with others to effect a contravention of

subsection (5).

(7) In deciding whether to give a direction under subsection (2), the

Commission must have regard to:

(a) any guidelines in force under subsection (8); and

(b) such other matters as the Commission considers relevant.

(8) The Commission may, by written instrument, formulate guidelines

for the purposes of subsection (7).

(9) In addition to its effect apart from this subsection, this section also

has the effect it would have if:

(a) each reference to a carrier were, by express provision,

confined to a carrier that is a constitutional corporation; and

(b) each reference to a carriage service provider were, by express

provision, confined to a carriage service provider that is a

constitutional corporation; and

(c) each reference to an access seeker were, by express

provision, confined to an access seeker that is a constitutional

corporation.

152BBB Enforcement of directions

(1) If the Federal Court is satisfied that a person has contravened

subsection 152BBA(5) or (6), 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 the 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.

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(3) The pecuniary penalty payable under subsection (1) by a body

corporate is not to exceed $250,000 for each contravention.

(4) The pecuniary penalty payable under subsection (1) by a person

other than a body corporate is not to exceed $50,000 for each

contravention.

(5) The Commission may institute a proceeding in the Federal Court

for the recovery on behalf of the Commonwealth of a pecuniary

penalty referred to in subsection (1).

(6) A proceeding under subsection (5) may be commenced within

6 years after the contravention.

(7) Criminal proceedings do not lie against a person only because the

person has contravened subsection 152BBA(5) or (6).

152BBC Commission’s role in negotiations

(1) This section applies if a carrier or carriage service provider is

required to comply with any or all of the standard access

obligations.

(2) If the following parties:

(a) the carrier or carriage service provider, as the case requires;

(b) the access seeker;

propose to negotiate, or are negotiating, with a view to agreeing on

terms and conditions as mentioned in paragraph 152AY(2)(a), the

parties may jointly request the Commission in writing to arrange

for a representative of the Commission to attend, or mediate at,

those negotiations.

(3) The Commission may comply with the request if the Commission

considers that compliance with the request would be likely to

facilitate those negotiations.

(4) For the purposes of this section, each of the following persons may

be a representative of the Commission:

(a) a member, or associate member, of the Commission; or

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(b) a person referred to in subsection 27(1); or

(c) a person engaged under section 27A.

152BBD Reaching agreement on terms and conditions of access

(1) The Commission must, in exercising its powers under

sections 152BBA and 152BBC in relation to any of the category A

standard access obligations, have regard to the desirability of

access providers (within the meaning of section 152AR) and access

seekers agreeing on terms and conditions as mentioned in

paragraph 152AY(2)(a) in a timely manner.

(2) The Commission must, in exercising its powers under

sections 152BBA and 152BBC in relation to any of the category B

standard access obligations, have regard to the desirability of NBN

corporations and access seekers agreeing on terms and conditions

as mentioned in paragraph 152AY(2)(a) in a timely manner.

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Division 4—Access determinations

Subdivision A—Commission may make access determinations

152BC Access determinations

(1) The Commission may make a written determination relating to

access to a declared service.

(2) A determination under subsection (1) is to be known as an access

determination.

(3) An access determination may:

(a) specify any or all of the terms and conditions on which a

carrier or carriage service provider is to comply with any or

all of the standard access obligations applicable to the carrier

or provider; or

(b) specify any other terms and conditions of an access seeker’s

access to the declared service; or

(c) require a carrier or carriage service provider to comply with

any or all of the standard access obligations applicable to the

carrier or provider in a manner specified in the determination;

or

(d) require a carrier or carriage service provider to extend or

enhance the capability of a facility by means of which the

declared service is supplied; or

(e) impose other requirements on a carrier or carriage service

provider in relation to access to the declared service; or

(f) specify the terms and conditions on which a carrier or

carriage service provider is to comply with any or all of those

other requirements; or

(g) require access seekers to accept, and pay for, access to the

declared service; or

(h) provide that any or all of the obligations referred to in

section 152AR are not applicable to a carrier or carriage

service provider, either:

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(i) unconditionally; or

(ii) subject to such conditions or limitations as are specified

in the determination; or

(i) restrict or limit the application to a carrier or carriage service

provider of any or all of the obligations referred to in

section 152AR; or

(j) deal with any other matter relating to access to the declared

service.

(4) Subsection (3) does not limit subsection (1).

(4AA) Paragraphs (3)(h) and (i) do not apply to an access determination

that relates to a declared service that is a Layer 2 bitstream service

supplied using a designated superfast telecommunications network.

(4A) An access determination may be expressed to be an NBN-specific

access determination.

(4B) An access determination does not apply in relation to access to a

declared service to the extent to which the service is supplied, or is

capable of being supplied, by an NBN corporation unless the

access determination is expressed to be an NBN-specific access

determination.

(4C) If an access determination is expressed to be an NBN-specific

access determination, the access determination does not apply in

relation to access to a declared service to the extent to which the

service is supplied, or is capable of being supplied, by a person

other than an NBN corporation.

(5) An access determination may make different provision with respect

to:

(a) different carriers or carriage service providers; or

(b) different classes of carriers or carriage service providers; or

(c) different access seekers; or

(d) different classes of access seekers.

(6) Subsection (5) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

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(7) An access determination may provide for the Commission to

perform functions, and exercise powers, under the determination.

(8) Terms and conditions specified in an access determination as

mentioned in paragraph (3)(a), (b) or (f) must include terms and

conditions relating to price or a method of ascertaining price.

(9) An access determination is not a legislative instrument.

152BCA Matters that the Commission must take into account

(1) The Commission must take the following matters into account in

making an access determination:

(a) whether the determination will promote the long-term

interests of end-users of carriage services or of services

supplied by means of carriage services;

(b) the legitimate business interests of a carrier or carriage

service provider who supplies, or is capable of supplying, the

declared service, and the carrier’s or provider’s investment in

facilities used to supply the declared service;

(c) the interests of all persons who have rights to use the

declared service;

(d) the direct costs of providing access to the declared service;

(e) the value to a person of extensions, or enhancement of

capability, whose cost is borne by someone else;

(f) the operational and technical requirements necessary for the

safe and reliable operation of a carriage service, a

telecommunications network or a facility;

(g) the economically efficient operation of a carriage service, a

telecommunications network or a facility.

(2) If a carrier or carriage service provider who supplies, or is capable

of supplying, the declared service supplies one or more other

eligible services, then, in making an access determination that is

applicable to the carrier or provider, as the case may be, the

Commission may take into account:

(a) the characteristics of those other eligible services; and

(b) the costs associated with those other eligible services; and

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(c) the revenues associated with those other eligible services;

and

(d) the demand for those other eligible services.

(3) The Commission may take into account any other matters that it

thinks are relevant.

(4) This section does not apply to an interim access determination.

(5) In this section:

eligible service has the same meaning as in section 152AL.

152BCB Restrictions on access determinations

(1) The Commission must not make an access determination that

would have any of the following effects:

(a) preventing a service provider who already has access to the

declared service from obtaining a sufficient amount of the

service to be able to meet the service provider’s reasonably

anticipated requirements, measured at the time when the

access seeker made a request in relation to the service under

section 152AR or 152AXB;

(b) preventing a carrier or carriage service provider from

obtaining a sufficient amount of the service to be able to

meet the carrier’s or provider’s reasonably anticipated

requirements, measured at the time when the access seeker

made a request in relation to the service under section 152AR

or 152AXB;

(c) preventing a person from obtaining, by the exercise of a

pre-determination right, a sufficient level of access to the

declared service to be able to meet the person’s actual

requirements;

(d) depriving any person of a protected contractual right;

(e) resulting in an access seeker becoming the owner (or one of

the owners) of any part of a facility without the consent of

the owner of the facility;

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(f) requiring a person (other than an access seeker) to bear an

unreasonable amount of the costs of:

(i) extending or enhancing the capability of a facility; or

(ii) maintaining extensions to or enhancements of the

capability of a facility;

(g) requiring a carrier or carriage service provider to provide an

access seeker with access to a declared service if there are

reasonable grounds to believe that:

(i) the access seeker would fail, to a material extent, to

comply with the terms and conditions on which the

carrier or provider provides, or is reasonably likely to

provide, that access; or

(ii) the access seeker would fail, in connection with that

access, to protect the integrity of a telecommunications

network or to protect the safety of individuals working

on, or using services supplied by means of, a

telecommunications network or a facility.

(2) Examples of grounds for believing as mentioned in

subparagraph (1)(g)(i) include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the carrier or carriage

service provider).

(3) The Commission must not make an access determination that is

inconsistent with any of the standard access obligations that are, or

will be, applicable to a carrier or carriage service provider.

(3A) If a final migration plan is in force, the Commission must not make

an access determination that would have the effect of requiring

Telstra to engage in conduct in connection with matters covered by

the final migration plan.

(3B) The Commission must not make an access determination that

would have the effect of:

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(a) requiring an NBN corporation to engage in conduct that is

inconsistent with conduct authorised under

subsection 151DA(2) or (3) for the purposes of

subsection 51(1); or

(b) preventing an NBN corporation from giving a refusal that is

authorised under subsection 151DA(3) for the purposes of

subsection 51(1).

(3C) The Commission must not make an access determination that

would have the effect of preventing an NBN corporation from

engaging in conduct that is reasonably necessary to achieve

uniform national pricing of eligible services supplied by the NBN

corporation to service providers and utilities.

(3D) In subsection (3C), eligible services, uniform national pricing and

utilities have the same meaning as in section 151DA.

(4) If the Commission makes an access determination that has the

effect of depriving a person (the second person) of a

pre-determination right to require the carrier or provider to provide

access to the declared service to the second person, the

determination must also require the access seeker:

(a) to pay to the second person such amount (if any) as the

Commission considers is fair compensation for the

deprivation; and

(b) to reimburse the carrier or provider and the Commonwealth

for any compensation that the carrier or provider or the

Commonwealth agrees, or is required by a court order, to pay

to the second person as compensation for the deprivation.

(4A) The Commission must not make an access determination that:

(a) relates to any or all of the category B standard access

obligations applicable to an NBN corporation; and

(b) has the effect (whether direct or indirect) of discriminating

between access seekers.

Note: For explanatory material, see section 152CJH.

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(4B) Subsection (4A) does not prevent discrimination against an access

seeker if the Commission has reasonable grounds to believe that

the access seeker would fail, to a material extent, to comply with

the terms and conditions on which the NBN corporation complies,

or on which the NBN corporation is reasonably likely to comply,

with the relevant obligation.

(4C) Examples of grounds for believing as mentioned in subsection (4B)

include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the NBN corporation).

(4G) The Commission must not make an access determination that:

(a) relates to a declared service that is:

(i) a Layer 2 bitstream service; and

(ii) supplied using a designated superfast

telecommunications network; and

(iii) supplied by a carrier (other than an NBN corporation) or

a carriage service provider (other than an NBN

corporation); and

(b) has the effect (whether direct or indirect) of discriminating

between access seekers.

Note: For explanatory material, see section 152CJH.

(4H) Subsection (4G) does not prevent discrimination against an access

seeker if the Commission has reasonable grounds to believe that

the access seeker would fail, to a material extent, to comply with

the terms and conditions on which the carrier or carriage service

provider complies, or on which the carrier or carriage service

provider is reasonably likely to comply, with the relevant

obligation.

(4J) Examples of grounds for believing as mentioned in

subsection (4H) include:

(a) evidence that the access seeker is not creditworthy; and

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(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the carrier or carriage

service provider).

(5) An access determination is of no effect to the extent to which it

contravenes subsection (1), (3), (3A), (3B), (3C), (4A) or (4G).

(6) In this section:

pre-determination right means a right under a contract that was in

force:

(a) if the access determination is one of a series of 2 or more

successive access determinations—immediately before the

first access determination came into force; or

(b) otherwise—immediately before the access determination

came into force.

protected contractual right means a right under a contract that was

in force at the beginning of 13 September 1996.

152BCC Access agreements prevail over inconsistent access

determinations

If an access determination is applicable to the following parties:

(a) a carrier or carriage service provider;

(b) an access seeker;

the access determination has no effect to the extent to which it is

inconsistent with an access agreement that is applicable to those

parties.

152BCCA Final migration plan prevails over inconsistent access

determinations

If a final migration plan is in force, an access determination has no

effect to the extent to which it would have the effect of:

(a) preventing Telstra from complying with the final migration

plan; or

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(b) requiring Telstra to engage in conduct in connection with

matters covered by the final migration plan.

152BCD Fixed principles provisions

(1) An access determination may include a provision that is specified

in the determination to be a fixed principles provision.

(2) If a fixed principles provision is included in an access

determination, the determination must provide that a specified date

is the nominal termination date for the fixed principles provision.

The nominal termination date may be later than the expiry date for

the determination.

(3) If:

(a) an access determination (the replacement access

determination) is expressed to replace a previous access

determination; and

(b) the previous access determination included a fixed principles

provision; and

(c) the nominal termination date for the fixed principles

provision is later than the day on which the replacement

access determination comes into force;

then:

(d) the replacement access determination must include a

provision in the same terms as the fixed principles provision;

and

(e) the provision must be specified in the replacement access

determination to be a fixed principles provision; and

(f) the nominal termination date for the fixed principles

provision so included in the replacement access

determination must be the same as, or later than, the nominal

termination date for the fixed principles provision included in

the previous access determination; and

(g) if the previous access determination provided that the

previous access determination must not be varied so as to

alter or remove the fixed principles provision—the

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replacement access determination must provide that the

replacement access determination must not be varied so as to

alter or remove the fixed principles provision; and

(h) if the previous access determination provided that the

previous access determination must not be varied so as to

alter or remove the fixed principles provision except in such

circumstances as are specified in the previous access

determination:

(i) the replacement access determination must provide that

the replacement access determination must not be varied

so as to alter or remove the fixed principles provision

except in such circumstances as are specified in the

replacement access determination; and

(ii) those circumstances must be the same as the

circumstances specified in the previous access

determination.

(4) If:

(a) a fixed principles provision is included in an access

determination; and

(b) the access determination ceases to be in force before the

nominal termination date for the fixed principles provision;

the fixed principles provision ceases to be in force when the access

determination ceases to be in force.

Note: Even though a fixed principles provision ceases to be in force when

the access determination ceases to be in force, subsection (3) requires

that a replacement access determination include a provision in the

same terms as the fixed principles provision.

(5) If a fixed principles provision is included in an access

determination, the access determination must:

(a) provide that the access determination must not be varied so

as to alter or remove the fixed principles provision; or

(b) provide that the access determination must not be varied so

as to alter or remove the fixed principles provision except in

such circumstances as are specified in the access

determination.

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

Two or more access determinations may be set out in the same

document.

152BCF Duration of access determination

(1) An access determination relating to access to a declared service:

(a) comes into force on the day specified in the determination as

the day on which the determination is to come into force; and

(b) unless sooner revoked, ceases to be in force on the expiry

date for the determination.

(2) The specified day may be earlier than the day on which the

determination was made.

(2A) The specified day must not be earlier than the date of

commencement of this section.

(3) If the declared service is covered by a declaration under

section 152AL, and the declaration is not a fresh declaration that

replaces a previous declaration, the specified day must not be

earlier than the day on which the declaration came into force.

(3A) If the declared service is covered by subsection 152AL(7), the

specified day must not be earlier than the day on which the service

became a declared service under that subsection.

(3B) If the declared service is covered by subsection 152AL(8D), the

specified day must not be earlier than the day on which the service

became a declared service under that subsection.

(3C) If the declared service is covered by subsection 152AL(8E), the

specified day must not be earlier than the day on which the service

became a declared service under that subsection.

(4) If:

(a) an access determination is expressed to replace a previous

access determination relating to access to the declared

service; and

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(b) the previous access determination is not an interim access

determination;

the specified day must be the first day after the expiry of the

previous access determination.

(4A) If:

(a) an access determination is expressed to replace a previous

access determination relating to access to the declared

service; and

(b) the previous access determination is an interim access

determination; and

(c) the declared service is covered by a declaration under

section 152AL;

the specified day must not be earlier than the day on which the

declaration came into force.

Expiry date

(5) An access determination must specify an expiry date for the

determination.

(6) In specifying an expiry date for an access determination, the

Commission must have regard to:

(a) in a case where the declared service is covered by a

declaration under section 152AL—the principle that the

expiry date for the determination should be the same as the

expiry date for the declaration (as that declaration stood at

the time when the access determination was made) unless, in

the Commission’s opinion, there are circumstances that

warrant the specification of another date as the expiry date

for the access determination; and

(b) such other matters (if any) as the Commission considers

relevant.

(7) If an access determination expires, this Part does not prevent the

Commission from making a fresh access determination under

section 152BC in the same terms as the expired access

determination.

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Automatic revocation of access determination

(8) If:

(a) an access determination relating to access to a declared

service is in force; and

(b) the declared service is covered by a declaration under

section 152AL, and the declaration ceases to be in force; and

(c) the Commission does not make a fresh declaration under

section 152AL that replaces the declaration referred to in

paragraph (b) of this subsection;

the access determination is taken to be revoked at the time of the

cessation.

(9) If:

(a) an access determination relating to access to a declared

service is in force; and

(b) the declared service is covered by a declaration under

section 152AL, and the declaration is revoked; and

(c) the Commission does not make a fresh declaration under

section 152AL that replaces the declaration referred to in

paragraph (b) of this subsection;

the access determination is taken to be revoked at the time of the

revocation of the declaration.

(9A) If:

(a) an interim access determination relating to access to a

declared service is in force; and

(b) a final access determination relating to access to the declared

service comes into force;

the interim access determination is taken to be revoked at the time

when the final access determination comes into force.

Extension of access determination

(10) If:

(a) an access determination (the original access determination)

relating to access to a declared service is in force; and

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(b) the Commission has commenced to hold a public inquiry

under Part 25 of the Telecommunications Act 1997 about a

proposal to make another access determination in relation to

access to the service; and

(c) the Commission considers that it will make the other access

determination, but will not be in a position to do so before

the expiry date for the original access determination;

the Commission may, by writing, declare that the expiry date for

the original access determination is taken to be the day

immediately before the day on which the other access

determination comes into force.

(11) The Commission must publish a declaration under subsection (10)

on the Commission’s website.

(12) If:

(a) after holding a public inquiry under subsection 152ALA(7) in

relation to a section 152AL declaration, the Commission:

(i) extends or further extends the expiry date for the

declaration by a period of not more than 12 months; and

(ii) decides to allow the declaration to expire after the end

of that period; and

(b) an access determination is in force in relation to access to the

declared service;

the Commission may, by writing, extend the expiry date for the

access determination by the same period.

(13) The Commission must publish an instrument under subsection (12)

on the Commission’s website.

(14) The Commission is not required to observe any requirements of

procedural fairness in relation to a decision under subsection (10)

or (12).

(15) A declaration under subsection (10) is not a legislative instrument.

(16) An instrument under subsection (12) is not a legislative instrument.

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152BCG Interim access determinations

(1) If:

(a) the Commission makes a declaration under section 152AL

after the commencement of this section; and

(b) the declaration is not a fresh declaration that replaces a

previous declaration; and

(c) the Commission has commenced to hold a public inquiry

under Part 25 of the Telecommunications Act 1997 about a

proposal to make an access determination in relation to

access to the declared service; and

(d) either:

(i) the Commission considers that it is unlikely that a final

access determination in relation to access to the service

will be made within 6 months after the commencement

of the public inquiry; or

(ii) the Commission considers that there is an urgent need to

make an access determination in relation to access to the

service before the completion of the public inquiry;

the Commission must make an interim access determination in

relation to access to the service.

(2) If:

(a) a declaration is in force under section 152AL; and

(b) no access determination has previously been made in relation

to access to the declared service;

the Commission may make an interim access determination in

relation to access to the service.

(3) The day specified in an interim access determination as the day on

which the determination is to come into force must not be earlier

than the day on which the declaration mentioned in

paragraph (1)(a) or (2)(a), as the case may be, came into force.

(4) The Commission is not required to observe any requirements of

procedural fairness in relation to the making of an interim access

determination.

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(5) The Commission must not make an interim access determination

otherwise than in accordance with this section.

152BCGA Stay of access determinations

(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 of the Commission to make an access determination.

(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 of the Commission to make an access determination, the

Court must not make any orders staying or otherwise affecting the

operation or implementation of the decision pending the

finalisation of the application.

Subdivision B—Public inquiries about proposals to make access

determinations

152BCH Access determination to be made after public inquiry

(1) The Commission must not make an access determination unless:

(a) the Commission has held a public inquiry under Part 25 of

the Telecommunications Act 1997 about a proposal to make

the determination; and

(b) the Commission has prepared a report about the inquiry

under section 505 of the Telecommunications Act 1997; and

(c) the report was published during the 180-day period ending

when the determination was made.

(2) Subsection (1) does not apply to an interim access determination.

(3) Subsection (1) has effect subject to section 152BCI.

152BCI When public inquiry must be held

(1) If:

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(a) the Commission makes a declaration under section 152AL

after the commencement of this section; and

(b) no access determination has previously been made in relation

to access to the declared service;

the Commission must, within 30 days after the declaration is made,

commence to hold a public inquiry under Part 25 of the

Telecommunications Act 1997 about a proposal to make an access

determination relating to access to the declared service.

(2) If:

(a) a declaration is in force under section 152AL immediately

after the commencement of this section; and

(b) no access determination has previously been made in relation

to access to the declared service;

the Commission must, during the 12-month period beginning at the

commencement of this section, commence to hold a public inquiry

under Part 25 of the Telecommunications Act 1997 about a

proposal to make an access determination relating to access to the

declared service.

(3) If:

(a) a declaration is in force under section 152AL; and

(b) an access determination has previously been made in relation

to access to the declared service;

the Commission must, during the period:

(c) beginning 18 months before the expiry date for the access

determination; and

(d) ending 6 months before the expiry date for the access

determination;

commence to hold a public inquiry under Part 25 of the

Telecommunications Act 1997 about a proposal to make an access

determination relating to access to the declared service.

(4) Subsection (3) has effect subject to subsections (5), (6) and (7).

(5) If:

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(a) a declaration (the current declaration) is in force under

section 152AL; and

(b) an access determination has previously been made in relation

to access to the declared service; and

(c) the expiry date of the current declaration is extended or

further extended for a period of not more than 12 months;

and

(d) the Commission decides to allow the current declaration to

expire without making a new declaration under

section 152AL;

the Commission is not required to hold a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal to

make an access determination relating to access to the declared

service.

(6) If:

(a) a declaration is in force under section 152AL; and

(b) an access determination (the current determination) is in

force in relation to access to the declared service; and

(c) the Commission commences to hold a public inquiry under

subsection 152ALA(7) in relation to the declaration;

then:

(d) the Commission may defer holding a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal

to make an access determination relating to access to the

declared service until the Commission decides whether to

extend or further extend the expiry date for the declaration;

and

(e) if the Commission decides to extend or further extend the

expiry date for the declaration—the Commission must

commence to hold such a public inquiry before the expiry

date for the current access determination; and

(f) if the Commission decides not to extend or further extend the

expiry date for the declaration—the Commission is not

required to hold such a public inquiry.

(7) If:

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(a) a declaration is in force under section 152AL; and

(b) an access determination has previously been made in relation

to access to the declared service; and

(c) after holding a public inquiry under subsection 152ALA(7) in

relation to the declaration, the Commission decides to allow

the declaration to expire without making a new declaration

under section 152AL;

the Commission is not required to hold a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal to

make an access determination relating to access to the declared

service.

Note: If a service is a declared service under subsection 152AL(7) (which

deals with special access undertakings), there is no need for the

Commission to make a declaration of the service under

section 152AL.

(8) Despite anything else in this section, if:

(a) the Commission makes binding rules of conduct that relate to

access to a declared service; and

(b) no access determination is in force in relation to access to the

declared service;

the Commission must, within 30 days after the binding rules of

conduct are made, commence to hold a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal to

make an access determination relating to access to the declared

service.

152BCJ Combined inquiries about proposals to make access

determinations

(1) The Commission may decide to combine 2 or more public inquiries

of a kind mentioned in section 152BCH.

(2) If the Commission makes such a decision:

(a) the Commission may publish a single notice relating to the

combined inquiry under section 498 of the

Telecommunications Act 1997; and

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Section 152BCK

346 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the Commission may prepare a single discussion paper about

the combined inquiry under section 499 of that Act; and

(c) the Commission may hold hearings relating to the combined

inquiry under section 501 of that Act; and

(d) the Commission must ensure that each inquiry is covered by

a report under section 505 of that Act, whether the report

relates:

(i) to a single one of those inquiries; or

(ii) to any 2 or more of those inquiries.

152BCK Time limit for making an access determination

(1) This section applies if the Commission commences to hold a public

inquiry under Part 25 of the Telecommunications Act 1997 about a

proposal to make an access determination, and the declared service

to which the access determination relates is not covered by

subsection 152AL(8D).

(2) The Commission must make a final access determination within 6

months after that commencement.

Extension of decision-making period

(3) The Commission may, by written notice published on its website,

extend or further extend the 6-month period referred to in

subsection (2), so long as:

(a) the extension or further extension is for a period of not more

than 6 months; and

(b) the notice includes a statement explaining why the

Commission has been unable to make a final access

determination within that 6-month period or that 6-month

period as previously extended, as the case may be.

Note: The Commission may be required to make an interim access

determination—see section 152BCG.

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Section 152BCN

Competition and Consumer Act 2010 347

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision C—Variation or revocation of access

determinations

152BCN Variation or revocation of access determinations

(1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a

power conferred on the Commission by section 152BC, but it

applies with the following changes.

(2) The Commission is not required to hold a public inquiry under

Part 25 the Telecommunications Act 1997 about a proposal to vary

an access determination if:

(a) the variation is of a minor nature; or

(b) each:

(i) carrier or carriage service provider; and

(ii) access seeker;

whose interests are likely to be affected by the variation has

consented in writing to the variation.

(3) The Commission is not required to hold a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal to

revoke an access determination if the Commission is satisfied that

each:

(a) carrier or service provider; and

(b) access seeker;

whose interests are likely to be affected by the revocation has

consented in writing to the revocation.

(4) If a fixed principles provision is included in an access

determination:

(a) a provision referred to in paragraph 152BCD(5)(a) or (b)

cannot be varied or removed; and

(b) the access determination must not be varied in a manner that

is inconsistent with a provision referred to in

paragraph 152BCD(5)(a) or (b).

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Section 152BCN

348 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(5) The Commission does not have a duty to consider whether to

exercise the power to vary or revoke an access determination,

whether the Commission is requested to do so by another person,

or in any other circumstances.

(6) If the Commission has commenced to hold a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal to

vary an access determination, the Commission may alter the

proposed variation.

(7) Notice of the alteration is to be published in the same way in which

a notice relating to the public inquiry was published under

section 498 of the Telecommunications Act 1997.

(8) Subsection (7) does not apply in relation to an alteration if:

(a) the alteration is of a minor nature; or

(b) each:

(i) carrier or carriage service provider; and

(ii) access seeker;

whose interests are likely to be affected by the alteration has

consented in writing to the alteration.

(9) Despite anything else in this section, if:

(a) the Commission makes binding rules of conduct that relate to

access to a declared service; and

(b) an access determination is in force in relation to access to the

declared service;

the Commission must, within 30 days after the binding rules of

conduct are made, commence to hold a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal to

vary the access determination.

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Section 152BCO

Competition and Consumer Act 2010 349

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision D—Compliance with access determinations

152BCO Carrier licence condition

A carrier licence held by a carrier is subject to a condition that the

carrier must comply with any access determinations that are

applicable to the carrier.

152BCP Service provider rule

(1) In addition to the rules mentioned in section 98 of the

Telecommunications Act 1997, the rule set out in subsection (2) of

this section is a service provider rule for the purposes of that Act.

(2) A carriage service provider must comply with any access

determinations that are applicable to the provider.

Subdivision E—Private enforcement of access determinations

152BCQ Private enforcement of access determinations

(1) If the Federal Court is satisfied, on the application of:

(a) an access seeker; or

(b) a carrier; or

(c) a carriage service provider;

that a person has engaged, is engaging, or is proposing to engage in

conduct that constitutes a contravention of an access determination,

the Court may make any or all of the following orders:

(d) an order granting an injunction on such terms as the Court

thinks appropriate:

(i) restraining the person from engaging in the conduct; or

(ii) if the conduct involves refusing or failing to do

something—requiring the person to do that thing;

(e) an order directing the person to compensate the applicant for

loss or damage suffered as a result of the contravention;

(f) any other order that the Court thinks appropriate.

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Section 152BCR

350 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) The revocation or expiry of an access determination does not affect

any remedy under subsection (1) in respect of a contravention of

the access determination that occurred when the access

determination was in force.

(3) If the Federal Court has power under subsection (1) to grant an

injunction restraining a person from engaging in particular

conduct, or requiring a person to do anything, the Court may make

any other orders (including granting an injunction) that it thinks

appropriate against any other person who was involved in the

contravention concerned.

(4) A reference in this section to a person involved in the

contravention is a reference to a person who has:

(a) aided, abetted, counselled or procured the contravention; or

(b) induced the contravention, whether through threats or

promises or otherwise; or

(c) been in any way (directly or indirectly) knowingly concerned

in or a party to the contravention; or

(d) conspired with others to effect the contravention.

152BCR Consent injunctions

On an application for an injunction under section 152BCQ, the

Federal Court may grant an injunction by consent of all of the

parties to the proceedings, whether or not the Court is satisfied that

the section applies.

152BCS Interim injunctions

The Federal Court may grant an interim injunction pending

determination of an application under section 152BCQ.

152BCT Factors relevant to granting a restraining injunction

The power of the Federal Court to grant an injunction under

section 152BCQ restraining a person from engaging in conduct

may be exercised whether or not:

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Section 152BCU

Competition and Consumer Act 2010 351

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) it appears to the Court that the person intends to engage

again, or to continue to engage, in conduct of that kind; or

(b) the person has previously engaged in conduct of that kind; or

(c) there is an imminent danger of substantial damage to any

person if the first-mentioned person engages in conduct of

that kind.

152BCU Factors relevant to granting a mandatory injunction

The power of the Federal Court to grant an injunction under

section 152BCQ requiring a person to do a thing may be exercised

whether or not:

(a) it appears to the Court that the person intends to refuse or fail

again, or to continue to refuse or fail, to do that thing; or

(b) the person has previously refused or failed to do that thing; or

(c) there is an imminent danger of substantial damage to any

person if the first-mentioned person refuses or fails to do that

thing.

152BCV Discharge or variation of injunction or other order

The Federal Court may discharge or vary an injunction or order

granted under this Subdivision.

Subdivision F—Register of Access Determinations

152BCW Register of Access Determinations

(1) The Commission is to maintain a register, to be known as the

Register of Access Determinations, in which the Commission

includes all access determinations in force.

(2) The Register is to be maintained by electronic means.

(3) The Register is to be made available for inspection on the

Commission’s website.

(4) The Register is not a legislative instrument.

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Section 152BCW

352 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(5) If the Commission is satisfied that:

(a) publication of a particular provision of an access

determination could reasonably be expected to prejudice

substantially the commercial interests of a person; and

(b) the prejudice outweighs the public interest in the publication

of the provision;

the Commission may remove the provision from the version of the

access determination that is included in the Register.

(6) If the Commission does so, the Commission must include in the

Register an annotation to that effect.

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Binding rules of conduct Division 4A

Section 152BD

Competition and Consumer Act 2010 353

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4A—Binding rules of conduct

Subdivision A—Commission may make binding rules of

conduct

152BD Binding rules of conduct

(1) The Commission may make written rules that:

(a) specify any or all of the terms and conditions on which a

carrier or carriage service provider is to comply with any or

all of the standard access obligations applicable to the carrier

or provider in relation to a specified declared service; or

(b) require a carrier or carriage service provider to comply with

any or all of the standard access obligations applicable to the

carrier or provider in relation to a specified declared service

in a manner specified in the rules;

if the Commission considers that there is an urgent need to do so.

Note: For variation and revocation, see subsection 33(3) of the Acts

Interpretation Act 1901.

(2) Rules under subsection (1) are to be known as binding rules of

conduct.

(3) Binding rules of conduct may be of general application or may be

limited as provided in the rules.

(4) In particular, binding rules of conduct may be limited to:

(a) particular carriers or carriage service providers; or

(b) particular classes of carriers or carriage service providers; or

(c) particular access seekers; or

(d) particular classes of access seekers.

(4A) Binding rules of conduct may be expressed to be NBN-specific

binding rules of conduct.

(4B) Binding rules of conduct do not apply in relation to access to a

declared service to the extent to which the service is supplied, or is

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Division 4A Binding rules of conduct

Section 152BDAA

354 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

capable of being supplied, by an NBN corporation unless the

binding rules of conduct are expressed to be NBN-specific binding

rules of conduct.

(4C) If binding rules of conduct are expressed to be NBN-specific

binding rules of conduct, the binding rules of conduct do not apply

in relation to access to a declared service to the extent to which the

service is supplied, or is capable of being supplied, by a person

other than an NBN corporation.

(5) Subsection (4) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

(6) The Commission is not required to observe any requirements of

procedural fairness in relation to the making of binding rules of

conduct.

(7) The Commission does not have a duty to consider whether to make

binding rules of conduct, whether at the request of a person or in

any other circumstances.

(8) Binding rules of conduct may provide for the Commission to

perform functions, and exercise powers, under the rules.

(9) An instrument under subsection (1) is not a legislative instrument.

152BDAA Matters that the Commission must take into account

(1) The Commission must take the following matters into account in

making binding rules of conduct:

(a) whether the binding rules of conduct will promote the

long-term interests of end-users of carriage services or of

services supplied by means of carriage services;

(b) the legitimate business interests of a carrier or carriage

service provider who supplies, or is capable of supplying, the

declared service, and the carrier’s or provider’s investment in

facilities used to supply the declared service;

(c) the interests of all persons who have rights to use the

declared service;

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Section 152BDAA

Competition and Consumer Act 2010 355

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(d) the direct costs of providing access to the declared service;

(e) the value to a person of extensions, or enhancement of

capability, whose cost is borne by someone else;

(f) the operational and technical requirements necessary for the

safe and reliable operation of a carriage service, a

telecommunications network or a facility;

(g) the economically efficient operation of a carriage service, a

telecommunications network or a facility.

(2) If a carrier or carriage service provider who supplies, or is capable

of supplying, the declared service supplies one or more other

eligible services, then, in making binding rules of conduct that are

applicable to the carrier or provider, as the case may be, the

Commission may take into account:

(a) the characteristics of those other eligible services; and

(b) the costs associated with those other eligible services; and

(c) the revenues associated with those other eligible services;

and

(d) the demand for those other eligible services.

(3) The Commission may take into account any other matters that it

thinks are relevant.

(4) The Commission is not required by subsection (1) or (2) to take a

matter into account if it is not reasonably practicable for the

Commission to do so, having regard to the urgent need to make the

binding rules of conduct.

(5) For the purposes of taking a particular matter into account under

this section, the Commission is not required to obtain information,

or further information, that is not already in the possession of the

Commission if it is not reasonably practicable for the Commission

to do so, having regard to the urgent need to make the binding rules

of conduct.

(6) In this section:

eligible service has the same meaning as in section 152AL.

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Division 4A Binding rules of conduct

Section 152BDA

356 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

152BDA Restrictions on binding rules of conduct

(1) The Commission must not make binding rules of conduct that

would have any of the following effects:

(a) preventing a service provider who already has access to the

declared service from obtaining a sufficient amount of the

service to be able to meet the service provider’s reasonably

anticipated requirements, measured at the time when the

access seeker made a request in relation to the service under

section 152AR or 152AXB;

(b) preventing a carrier or carriage service provider from

obtaining a sufficient amount of the service to be able to

meet the carrier’s or provider’s reasonably anticipated

requirements, measured at the time when the access seeker

made a request in relation to the service under section 152AR

or 152AXB;

(c) preventing a person from obtaining, by the exercise of a

pre-rules right, a sufficient level of access to the declared

service to be able to meet the person’s actual requirements;

(d) depriving any person of a protected contractual right;

(e) resulting in an access seeker becoming the owner (or one of

the owners) of any part of a facility without the consent of

the owner of the facility;

(f) requiring a person (other than an access seeker) to bear an

unreasonable amount of the costs of:

(i) extending or enhancing the capability of a facility; or

(ii) maintaining extensions to or enhancements of the

capability of a facility;

(g) requiring a carrier or carriage service provider to provide an

access seeker with access to a declared service if there are

reasonable grounds to believe that:

(i) the access seeker would fail, to a material extent, to

comply with the terms and conditions on which the

carrier or provider provides, or is reasonably likely to

provide, that access; or

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Section 152BDA

Competition and Consumer Act 2010 357

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(ii) the access seeker would fail, in connection with that

access, to protect the integrity of a telecommunications

network or to protect the safety of individuals working

on, or using services supplied by means of, a

telecommunications network or a facility.

(2) Examples of grounds for believing as mentioned in

subparagraph (1)(g)(i) include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the carrier or carriage

service provider).

(3) The Commission must not make binding rules of conduct that are

inconsistent with any of the standard access obligations that are, or

will be, applicable to a carrier or carriage service provider.

(3A) If a final migration plan is in force, the Commission must not make

binding rules of conduct that would have the effect of requiring

Telstra to engage in conduct in connection with matters covered by

the final migration plan.

(3B) The Commission must not make binding rules of conduct that

would have the effect of:

(a) requiring an NBN corporation to engage in conduct that is

inconsistent with conduct authorised under

subsection 151DA(2) or (3) for the purposes of

subsection 51(1); or

(b) preventing an NBN corporation from giving a refusal that is

authorised under subsection 151DA(3) for the purposes of

subsection 51(1).

(3C) The Commission must not make binding rules of conduct that

would have the effect of preventing an NBN corporation from

engaging in conduct that is reasonably necessary to achieve

uniform national pricing of eligible services supplied by the NBN

corporation to service providers and utilities.

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Section 152BDA

358 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3D) In subsection (3C), eligible services, uniform national pricing and

utilities have the same meaning as in section 151DA.

(4) If the Commission makes binding rules of conduct that have the

effect of depriving a person (the second person) of a pre-rules right

to require the carrier or provider to provide access to the declared

service to the second person, the rules must also require the access

seeker:

(a) to pay to the second person such amount (if any) as the

Commission considers is fair compensation for the

deprivation; and

(b) to reimburse the carrier or provider and the Commonwealth

for any compensation that the carrier or provider or the

Commonwealth agrees, or is required by a court order, to pay

to the second person as compensation for the deprivation.

(4A) The Commission must not make binding rules of conduct that:

(a) relate to any or all of the category B standard access

obligations applicable to an NBN corporation; and

(b) have the effect (whether direct or indirect) of discriminating

between access seekers.

Note: For explanatory material, see section 152CJH.

(4B) Subsection (4A) does not prevent discrimination against an access

seeker if the Commission has reasonable grounds to believe that

the access seeker would fail, to a material extent, to comply with

the terms and conditions on which the NBN corporation complies,

or on which the NBN corporation is reasonably likely to comply,

with the relevant obligation.

(4C) Examples of grounds for believing as mentioned in subsection (4B)

include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the NBN corporation).

(4G) The Commission must not make binding rules of conduct that:

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Section 152BDA

Competition and Consumer Act 2010 359

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) relate to a declared service that is:

(i) a Layer 2 bitstream service; and

(ii) supplied using a designated superfast

telecommunications network; and

(iii) supplied by a carrier (other than an NBN corporation) or

a carriage service provider (other than an NBN

corporation); and

(b) have the effect (whether direct or indirect) of discriminating

between access seekers.

Note: For explanatory material, see section 152CJH.

(4H) Subsection (4G) does not prevent discrimination against an access

seeker if the Commission has reasonable grounds to believe that

the access seeker would fail, to a material extent, to comply with

the terms and conditions on which the carrier or carriage service

provider complies, or on which the carrier or carriage service

provider is reasonably likely to comply, with the relevant

obligation.

(4J) Examples of grounds for believing as mentioned in

subsection (4H) include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the carrier or carriage

service provider).

(5) Binding rules of conduct are of no effect to the extent to which

they contravene subsection (1), (3), (3A), (3B), (3C), (4A) or (4G).

(6) In this section:

pre-rules right means a right under a contract that was in force

immediately before the binding rules of conduct came into force.

protected contractual right means a right under a contract that was

in force at the beginning of 13 September 1996.

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Section 152BDB

360 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

152BDB Access agreements prevail over inconsistent binding rules

of conduct

If binding rules of conduct are applicable to the following parties:

(a) a carrier or carriage service provider;

(b) an access seeker;

the binding rules of conduct have no effect to the extent to which

they are inconsistent with an access agreement that is applicable to

those parties.

152BDC Duration of binding rules of conduct

(1) Binding rules of conduct come into force on the day specified in

the rules as the day on which the rules are to come into force.

(2) Binding rules of conduct must specify an expiry date for the rules.

(3) An expiry date must occur in the 12-month period beginning when

the rules were made.

(4) Unless sooner revoked, binding rules of conduct cease to be in

force on the expiry date for the rules.

152BDCA Final migration plan prevails over inconsistent binding

rules of conduct

If a final migration plan is in force, binding rules of conduct have

no effect to the extent to which they would have the effect of:

(a) preventing Telstra from complying with the final migration

plan; or

(b) requiring Telstra to engage in conduct in connection with

matters covered by the final migration plan.

152BDD Commission must give copy of binding rules of conduct to

carrier etc.

If binding rules of conduct are limited to a particular carrier,

carriage service provider or access seeker, as soon as practicable

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Section 152BDE

Competition and Consumer Act 2010 361

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

after making the rules, the Commission must give a copy of the

rules to the carrier, carriage service provider or access seeker, as

the case may be.

152BDE Access determinations that are inconsistent with binding

rules of conduct

If a provision of an access determination (other than a fixed

principles provision) is inconsistent with binding rules of conduct,

the provision has no effect to the extent of the inconsistency.

152BDEA Stay of binding rules of conduct

(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 of the Commission to make binding rules of conduct.

(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 of the Commission to make binding rules of conduct, the

Court must not make any orders staying or otherwise affecting the

operation or implementation of the decision pending the

finalisation of the application.

Subdivision B—Compliance with binding rules of conduct

152BDF Carrier licence condition

A carrier licence held by a carrier is subject to a condition that the

carrier must comply with any binding rules of conduct that are

applicable to the carrier.

152BDG Service provider rule

(1) In addition to the rules mentioned in section 98 of the

Telecommunications Act 1997, the rule set out in subsection (2) of

this section is a service provider rule for the purposes of that Act.

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Section 152BDH

362 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) A carriage service provider must comply with any binding rules of

conduct that are applicable to the provider.

Subdivision C—Private enforcement of binding rules of

conduct

152BDH Private enforcement of binding rules of conduct

(1) If the Federal Court is satisfied, on the application of:

(a) an access seeker; or

(b) a carrier; or

(c) a carriage service provider;

that a person has engaged, is engaging, or is proposing to engage in

conduct that constitutes a contravention of binding rules of

conduct, the Court may make any or all of the following orders:

(d) an order granting an injunction on such terms as the Court

thinks appropriate:

(i) restraining the person from engaging in the conduct; or

(ii) if the conduct involves refusing or failing to do

something—requiring the person to do that thing;

(e) an order directing the person to compensate the applicant for

loss or damage suffered as a result of the contravention;

(f) any other order that the Court thinks appropriate.

(2) The revocation or expiry of binding rules of conduct does not

affect any remedy under subsection (1) in respect of a

contravention of the rules that occurred when the rules were in

force.

(3) If the Federal Court has power under subsection (1) to grant an

injunction restraining a person from engaging in particular

conduct, or requiring a person to do anything, the Court may make

any other orders (including granting an injunction) that it thinks

appropriate against any other person who was involved in the

contravention concerned.

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Section 152BDI

Competition and Consumer Act 2010 363

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(4) A reference in this section to a person involved in the

contravention is a reference to a person who has:

(a) aided, abetted, counselled or procured the contravention; or

(b) induced the contravention, whether through threats or

promises or otherwise; or

(c) been in any way (directly or indirectly) knowingly concerned

in or a party to the contravention; or

(d) conspired with others to effect the contravention.

152BDI Consent injunctions

On an application for an injunction under section 152BDH, the

Federal Court may grant an injunction by consent of all of the

parties to the proceedings, whether or not the Court is satisfied that

the section applies.

152BDJ Interim injunctions

The Federal Court may grant an interim injunction pending

determination of an application under section 152BDH.

152BDK Factors relevant to granting a restraining injunction

The power of the Federal Court to grant an injunction under

section 152BDH restraining a person from engaging in conduct

may be exercised whether or not:

(a) it appears to the Court that the person intends to engage

again, or to continue to engage, in conduct of that kind; or

(b) the person has previously engaged in conduct of that kind; or

(c) there is an imminent danger of substantial damage to any

person if the first-mentioned person engages in conduct of

that kind.

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Section 152BDL

364 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

152BDL Factors relevant to granting a mandatory injunction

The power of the Federal Court to grant an injunction under

section 152BDH requiring a person to do a thing may be exercised

whether or not:

(a) it appears to the Court that the person intends to refuse or fail

again, or to continue to refuse or fail, to do that thing; or

(b) the person has previously refused or failed to do that thing; or

(c) there is an imminent danger of substantial damage to any

person if the first-mentioned person refuses or fails to do that

thing.

152BDM Discharge or variation of injunction or other order

The Federal Court may discharge or vary an injunction or order

granted under this Subdivision.

Subdivision D—Register of Binding Rules of Conduct

152BDN Register of Binding Rules of Conduct

(1) The Commission is to maintain a register, to be known as the

Register of Binding Rules of Conduct, in which the Commission

includes all binding rules of conduct in force.

(2) The Register is to be maintained by electronic means.

(3) The Register is to be made available for inspection on the

Commission’s website.

(4) The Register is not a legislative instrument.

(5) If the Commission is satisfied that:

(a) publication of a particular provision of binding rules of

conduct could reasonably be expected to prejudice

substantially the commercial interests of a person; and

(b) the prejudice outweighs the public interest in the publication

of the provision;

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Binding rules of conduct Division 4A

Section 152BDN

Competition and Consumer Act 2010 365

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the Commission may remove the provision from the version of the

rules that is included in the Register.

(6) If the Commission does so, the Commission must include in the

Register an annotation to that effect.

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Division 4B Access agreements

Section 152BE

366 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4B—Access agreements

152BE Access agreements

(1) For the purposes of this Part, an access agreement is an agreement,

where:

(a) the agreement is in writing; and

(b) the agreement is legally enforceable; and

(c) the agreement relates to access to a declared service; and

(d) the parties to the agreement are:

(i) an access seeker; and

(ii) the carrier or carriage service provider who supplies, or

proposes to supply, the declared service; and

(e) any of the following subparagraphs applies:

(i) the agreement embodies any or all of the terms and

conditions on which the carrier or carriage service

provider is to comply with any or all of the standard

access obligations applicable to the carrier or provider;

(ii) if an access determination imposes requirements on a

carrier or carriage service provider in relation to access

to the declared service, as mentioned in

paragraph 152BC(3)(e)—the agreement embodies any

or all of the terms and conditions on which the carrier or

carriage service provider is to comply with any or all of

those requirements;

(iii) the agreement embodies any other terms and conditions

of the access seeker’s access to the declared service;

(iv) the agreement requires the carrier or carriage service

provider to comply with any or all of the standard

access obligations applicable to the carrier or provider

in a manner specified in the agreement;

(v) the agreement requires the carrier or carriage service

provider to extend or enhance the capability of a facility

by means of which the declared service is supplied;

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Section 152BE

Competition and Consumer Act 2010 367

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(vi) the agreement imposes other requirements on the carrier

or carriage service provider in relation to access to the

declared service;

(vii) the agreement specifies the terms and conditions on

which the carrier or carriage service provider is to

comply with any or all of those other requirements;

(viii) the agreement requires the access seeker to accept, and

pay for, access to the declared service;

(ix) the agreement provides that any or all of the obligations

referred to in section 152AR are not applicable to the

carrier or carriage service provider, either

unconditionally or subject to such conditions or

limitations as are specified in the agreement;

(x) the agreement restricts or limits the application to the

carrier or carriage service provider of any or all of the

obligations referred to in section 152AR;

(xi) the agreement deals with any other matter relating to

access to the declared service.

(1A) Paragraph (1)(b) does not apply to the agreement to the extent (if

any) to which the agreement is covered by subparagraph (1)(e)(ix)

or (x).

(1B) Subparagraphs (1)(e)(ix) and (x) do not apply to an agreement that

relates to a declared service that is a Layer 2 bitstream service

supplied using a designated superfast telecommunications network.

(2) If:

(a) an agreement relates to access to an eligible service (within

the meaning of section 152AN( � and

(b) at the time the agreement was entered into to, the eligible

service was a not a declared service; and

(c) at a later time (the declaration time), the eligible service

becomes a declared service; and

(d) if the agreement had been entered into immediately after the

declaration time, the agreement would have been an access

agreement;

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Division 4B Access agreements

Section 152BEA

368 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the agreement becomes an access agreement immediately after the

declaration time.

(3) If:

(a) an access agreement is varied by another agreement (the

variation agreement); and

(b) the variation agreement is in writing; and

(c) the variation agreement is legally enforceable;

a reference in this Part to the access agreement is a reference to the

access agreement as varied by the variation agreement.

(4) It is immaterial whether an access agreement or variation

agreement was entered into before or after the commencement of

this section.

(5) An access agreement is not a legislative instrument.

(6) A variation agreement is not a legislative instrument.

152BEA Quarterly reports about access agreements

(1) Within 30 days after the end of each quarter, a carrier or carriage

service provider who supplies, or proposes to supply, a declared

service must give the Commission a written statement setting out

details of any access agreement in relation to the service in force at

any time during that quarter.

(2) The details that must be given under subsection (1) are:

(a) the parties to the agreement; and

(b) the service to which the agreement relates; and

(c) the date the agreement was entered into; and

(d) the period of the agreement; and

(e) if the agreement was varied during the quarter—the details

referred to in paragraphs (a) to (d) and (g) in relation to the

variation agreement; and

(f) if the agreement was terminated, rescinded or cancelled

before the expiry of the agreement—the date the agreement

was terminated, rescinded or cancelled; and

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Access agreements Division 4B

Section 152BEB

Competition and Consumer Act 2010 369

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(g) such information (if any) about the agreement as is specified

in an instrument in force under subsection (3).

(3) The Commission may, by writing, specify information for the

purposes of paragraph (2)(g).

(4) An instrument under subsection (3) (including the instrument as

amended) ceases to be in force 5 years after the day it is made

(unless it is revoked sooner).

(5) The Commission must publish an instrument under subsection (3)

on the Commission’s website.

(6) An instrument under subsection (3) is not a legislative instrument.

(7) The Commission may, by writing, require information in a

statement given to the Commission under this section to be verified

by statutory declaration.

(8) This section does not limit section 155.

152BEB Commission may request copy of access agreement or

variation agreement

(1) The Commission may, by writing, request a carrier or carriage

service provider who supplies, or proposes to supply, a declared

service to provide a copy of either or both of the following:

(a) an access agreement in relation to the service;

(b) a variation agreement for an access agreement in relation to

the service.

Note: The Procedural Rules may provide for the practice and procedure to

be followed by the Commission in making a request under this

subsection.

(2) The carrier or carriage service provider must provide a copy of the

document within 10 days after the day the request was made under

subsection (1).

(3) An instrument under subsection (1) is not a legislative instrument.

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Division 4B Access agreements

Section 152BEBA

370 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(4) This section does not limit section 155.

152BEBA NBN corporation to give the Commission a statement

about the differences between an access agreement and a

standard form of access agreement

Access agreement

(1) If:

(a) an access agreement is covered by subsection 152BE(1); and

(b) the carrier or carriage service provider who supplies, or

proposes to supply, the declared service is an NBN

corporation; and

(c) immediately before the access agreement was entered into, a

standard form of access agreement relating to access to the

service was available on the NBN corporation’s website; and

(d) the terms and conditions set out in the access agreement are

not the same as the terms and conditions set out in the

standard form of access agreement;

the NBN corporation must, within 7 days after the day on which

the access agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(e) identifying the parties to the access agreement; and

(f) describing the differences between the terms and conditions

set out in the access agreement and the terms and conditions

set out in the standard form of access agreement; and

(j) setting out such other information (if any) about the access

agreement as is required by the form.

Variation agreement

(2) If:

(a) a variation agreement is entered into after the commencement

of this section; and

(b) the carrier or carriage service provider who supplies, or

proposes to supply, the service to which the relevant access

agreement relates is an NBN corporation; and

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Access agreements Division 4B

Section 152BEBB

Competition and Consumer Act 2010 371

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) immediately before the variation agreement was entered into,

a standard form of access agreement relating to access to the

service was available on the NBN corporation’s website; and

(d) the terms and conditions set out in the relevant access

agreement (as varied by the variation agreement) are not the

same as the terms and conditions set out in the standard form

of access agreement;

the NBN corporation must, within 7 days after the day on which

the variation agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(e) identifying the parties to the relevant access agreement (as

varied by the variation agreement); and

(f) describing the differences between the terms and conditions

set out in the relevant access agreement (as varied by the

variation agreement) and the terms and conditions set out in

the standard form of access agreement; and

(j) setting out such other information (if any) about the relevant

access agreement (as varied by the variation agreement) as is

required by the form.

152BEBB NBN corporation to give the Commission a statement

about the differences between an access agreement and a

special access undertaking

Access agreement

(1) If:

(a) an access agreement is covered by subsection 152BE(1); and

(b) the carrier or carriage service provider who supplies, or

proposes to supply, the declared service is an NBN

corporation; and

(c) immediately before the access agreement was entered into, a

special access undertaking that:

(i) relates to access to the service; and

(ii) was given by the NBN corporation;

was in operation; and

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Section 152BEBB

372 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(d) the terms and conditions set out in the access agreement are

not the same as the terms and conditions set out in the special

access undertaking;

the NBN corporation must, within 7 days after the day on which

the access agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(e) identifying the parties to the access agreement; and

(f) describing the differences between the terms and conditions

set out in the access agreement and the terms and conditions

set out in the special access undertaking; and

(j) setting out such other information (if any) about the access

agreement as is required by the form.

Variation agreement

(2) If:

(a) a variation agreement is entered into after the commencement

of this section; and

(b) the carrier or carriage service provider who supplies, or

proposes to supply, the service to which the relevant access

agreement relates is an NBN corporation; and

(c) immediately before the variation agreement was entered into,

a special access undertaking that:

(i) relates to access to the service; and

(ii) was given by the NBN corporation;

was in operation; and

(d) the terms and conditions set out in the relevant access

agreement (as varied by the variation agreement) are not the

same as the terms and conditions set out in the special access

undertaking;

the NBN corporation must, within 7 days after the day on which

the variation agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(e) identifying the parties to the relevant access agreement (as

varied by the variation agreement); and

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Section 152BEBC

Competition and Consumer Act 2010 373

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(f) describing the differences between the terms and conditions

set out in the relevant access agreement (as varied by the

variation agreement) and the terms and conditions set out in

the special access undertaking; and

(j) setting out such other information (if any) about the relevant

access agreement (as varied by the variation agreement) as is

required by the form.

152BEBC NBN corporation to give the Commission a statement

about the differences between an access agreement and an

access determination

Access agreement

(1) If:

(a) an access agreement is covered by subsection 152BE(1); and

(b) the carrier or carriage service provider who supplies, or

proposes to supply, the declared service is an NBN

corporation; and

(c) immediately before the access agreement was entered into, an

access determination relating to access to the service was in

force; and

(d) the terms and conditions set out in the access agreement are

not the same as the terms and conditions set out in the access

determination;

the NBN corporation must, within 7 days after the day on which

the access agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(e) identifying the parties to the access agreement; and

(f) describing the differences between the terms and conditions

set out in the access agreement and the terms and conditions

set out in the access determination; and

(j) setting out such other information (if any) about the access

agreement as is required by the form.

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Section 152BEBD

374 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Variation agreement

(2) If:

(a) a variation agreement is entered into after the commencement

of this section; and

(b) the carrier or carriage service provider who supplies, or

proposes to supply, the service to which the relevant access

agreement relates is an NBN corporation; and

(c) immediately before the variation agreement was entered into,

an access determination relating to access to the service was

in force; and

(d) the terms and conditions set out in the relevant access

agreement (as varied by the variation agreement) are not the

same as the terms and conditions set out in the access

determination;

the NBN corporation must, within 7 days after the day on which

the variation agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(e) identifying the parties to the relevant access agreement (as

varied by the variation agreement); and

(f) describing the differences between the terms and conditions

set out in the relevant access agreement (as varied by the

variation agreement) and the terms and conditions set out in

the access determination; and

(j) setting out such other information (if any) about the relevant

access agreement (as varied by the variation agreement) as is

required by the form.

152BEBD Register of NBN Access Agreement Statements

(1) The Commission is to maintain a register, to be known as the

Register of NBN Access Agreement Statements, in which the

Commission includes all statements given to it under the following

provisions:

(a) section 152BEBA;

(b) section 152BEBB;

(c) section 152BEBC.

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Access agreements Division 4B

Section 152BEBE

Competition and Consumer Act 2010 375

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) The Register is to be maintained by electronic means.

(3) The Register is to be made available for inspection on the

Commission’s website.

(4) The Register is not a legislative instrument.

(5) If the Commission is satisfied that:

(a) publication of particular material contained in a statement

could reasonably be expected to prejudice substantially the

commercial interests of a person; and

(b) the prejudice outweighs the public interest in the publication

of the matter;

the Commission may remove the material from the version of the

statement that is included in the Register.

(6) If the Commission does so, the Commission must include in the

Register an annotation to that effect.

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

Access agreement

(1) If:

(a) an access agreement is covered by subsection 152BE(1); and

(b) the declared service to which the agreement relates is a Layer

2 bitstream service supplied using a designated superfast

telecommunications network; and

(c) the carrier or carriage service provider who supplies, or

proposes to supply, the declared service is not an NBN

corporation; and

(d) immediately before the access agreement was entered into, a

special access undertaking that:

(i) relates to access to the service; and

(ii) was given by the carrier or provider;

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Section 152BEBE

376 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

was in operation; and

(e) the terms and conditions set out in the access agreement are

not the same as the terms and conditions set out in the special

access undertaking;

the carrier or provider must, within 7 days after the day on which

the access agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(f) identifying the parties to the access agreement; and

(g) describing the differences between the terms and conditions

set out in the access agreement and the terms and conditions

set out in the special access undertaking; and

(k) setting out such other information (if any) about the access

agreement as is required by the form.

Variation agreement

(2) If:

(a) a variation agreement is entered into after the commencement

of this section; and

(b) the declared service to which the relevant access agreement

relates is a Layer 2 bitstream service supplied using a

designated superfast telecommunications network; and

(c) the carrier or carriage service provider who supplies, or

proposes to supply, the service to which the relevant access

agreement relates is not an NBN corporation; and

(d) immediately before the variation agreement was entered into,

a special access undertaking that:

(i) relates to access to the service; and

(ii) was given by the carrier or provider;

was in operation; and

(e) the terms and conditions set out in the relevant access

agreement (as varied by the variation agreement) are not the

same as the terms and conditions set out in the special access

undertaking;

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Section 152BEBF

Competition and Consumer Act 2010 377

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the carrier or provider must, within 7 days after the day on which

the variation agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(f) identifying the parties to the relevant access agreement (as

varied by the variation agreement); and

(g) describing the differences between the terms and conditions

set out in the relevant access agreement (as varied by the

variation agreement) and the terms and conditions set out in

the special access undertaking; and

(k) setting out such other information (if any) about the relevant

access agreement (as varied by the variation agreement) as is

required by the form.

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

Access agreement

(1) If:

(a) an access agreement is covered by subsection 152BE(1); and

(b) the declared service to which the agreement relates is a Layer

2 bitstream service supplied using a designated superfast

telecommunications network; and

(c) the carrier or carriage service provider who supplies, or

proposes to supply, the declared service is not an NBN

corporation; and

(d) immediately before the access agreement was entered into, an

access determination relating to access to the service was in

force; and

(e) the terms and conditions set out in the access agreement are

not the same as the terms and conditions set out in the access

determination;

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Section 152BEBF

378 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the carrier or provider must, within 7 days after the day on which

the access agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(f) identifying the parties to the access agreement; and

(g) describing the differences between the terms and conditions

set out in the access agreement and the terms and conditions

set out in the access determination; and

(k) setting out such other information (if any) about the access

agreement as is required by the form.

Variation agreement

(2) If:

(a) a variation agreement is entered into after the commencement

of this section; and

(b) the declared service to which the relevant access agreement

relates is a Layer 2 bitstream service supplied using a

designated superfast telecommunications network; and

(c) the carrier or carriage service provider who supplies, or

proposes to supply, the service to which the relevant access

agreement relates is not an NBN corporation; and

(d) immediately before the variation agreement was entered into,

an access determination relating to access to the service was

in force; and

(e) the terms and conditions set out in the relevant access

agreement (as varied by the variation agreement) are not the

same as the terms and conditions set out in the access

determination;

the carrier or provider must, within 7 days after the day on which

the variation agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(f) identifying the parties to the relevant access agreement (as

varied by the variation agreement); and

(g) describing the differences between the terms and conditions

set out in the relevant access agreement (as varied by the

variation agreement) and the terms and conditions set out in

the access determination; and

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Section 152BEBG

Competition and Consumer Act 2010 379

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(k) setting out such other information (if any) about the relevant

access agreement (as varied by the variation agreement) as is

required by the form.

152BEBG Register of Layer 2 Bitstream Access Agreement

Statements

(1) The Commission is to maintain a register, to be known as the

Register of Layer 2 Bitstream Access Agreement Statements, in

which the Commission includes all statements given to it under the

following provisions:

(a) section 152BEBE;

(b) section 152BEBF.

(2) The Register is to be maintained by electronic means.

(3) The Register is to be made available for inspection on the

Commission’s website.

(4) The Register is not a legislative instrument.

(5) If the Commission is satisfied that:

(a) publication of particular material contained in a statement

could reasonably be expected to prejudice substantially the

commercial interests of a person; and

(b) the prejudice outweighs the public interest in the publication

of the matter;

the Commission may remove the material from the version of the

statement that is included in the Register.

(6) If the Commission does so, the Commission must include in the

Register an annotation to that effect.

152BEC Carrier licence condition

A carrier licence held by a carrier is subject to a condition that the

carrier must comply with sections 152BEA, 152BEB, 152BEBA,

152BEBB, 152BEBC, 152BEBE and 152BEBF.

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Section 152BED

380 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

152BED Service provider rule

(1) In addition to the rules mentioned in section 98 of the

Telecommunications Act 1997, the rule set out in subsection (2) of

this section is a service provider rule for the purposes of that Act.

(2) A carriage service provider must comply with sections 152BEA,

152BEB, 152BEBA, 152BEBB, 152BEBC, 152BEBE and

152BEBF.

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Access undertakings Division 5

Section 152CBA

Competition and Consumer Act 2010 381

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 5—Access undertakings

Subdivision B—Special access undertakings

152CBA What is a special access undertaking?

Scope

(1) This section applies to:

(a) a person (other than an NBN corporation) who is, or expects

to be, a carrier or a carriage service provider supplying:

(i) a listed carriage service (within the meaning of the

Telecommunications Act 1997); or

(ii) a service that facilitates the supply of a listed carriage

service (within the meaning of that Act);

whether to itself or to other persons, so long as the service is

not a declared service; or

(b) a person who is an NBN corporation and who is, or expects

to be, a carrier or carriage service provider supplying or

capable of supplying:

(i) a listed carriage service (within the meaning of the

Telecommunications Act 1997); or

(ii) a service that facilitates the supply of a listed carriage

service (within the meaning of that Act);

whether to itself or to other persons, so long as:

(iii) the service is not a declared service under

subsection 152AL(8A); and

(iv) there is no access determination that applies in relation

to access to the service.

Undertaking

(2) The person may give a written undertaking (a special access

undertaking) to the Commission in connection with the provision

of access to the service.

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Section 152CBA

382 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) If paragraph (1)(a) applies, the undertaking must state that, in the

event that the person supplies the service (whether to itself or to

other persons), the person:

(a) agrees to be bound by the obligations referred to in

section 152AR, to the extent that those obligations would

apply to the person in relation to the service if the service

were treated as an active declared service; and

(b) undertakes to comply with the terms and conditions specified

in the undertaking in relation to the obligations referred to in

paragraph (a).

Note: The undertaking need not specify all terms and conditions—see

subparagraph 152AY(2)(b)(ii).

(3A) If paragraph (1)(b) applies, the undertaking must state that, in the

event that the person supplies, or becomes capable of supplying,

the service (whether to itself or to other persons), the person:

(a) agrees to be bound by the obligations referred to in

section 152AXB, to the extent that those obligations would

apply to the person in relation to the service if the service

were treated as a declared service; and

(b) undertakes to comply with the terms and conditions specified

in the undertaking in relation to the obligations referred to in

section 152AXB.

Note: The undertaking need not specify all terms and conditions—see

subparagraph 152AY(2)(b)(ii).

(3B) The undertaking may also state, in the event that the person

supplies the service (whether to itself or to other persons), the

person:

(a) will engage in specified conduct in relation to access to the

service; and

(b) will do so on such terms and conditions as are specified in

the undertaking.

(3C) If the person is an NBN corporation, the undertaking may also state

that the NBN corporation will engage in specified conduct in

relation to:

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Access undertakings Division 5

Section 152CBA

Competition and Consumer Act 2010 383

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) developing a new eligible service (within the meaning of

section 152AN( � or

(b) enhancing a declared service; or

(c) extending or enhancing the capability of a facility or

telecommunications network by means of which a declared

service is, or is to be, supplied; or

(d) planning for a facility or telecommunications network by

means of which a declared service is, or is to be, supplied; or

(e) an activity that is preparatory to the supply of a declared

service; or

(f) an activity that is ancillary or incidental to the supply of a

declared service; or

(g) giving information to service providers about any of the

above activities.

(3D) For the purposes of this Part, in determining whether the

undertaking relates to a particular service or proposed service,

disregard a statement included in the undertaking in accordance

with subsection (3C).

(4) The undertaking must be in a form approved in writing by the

Commission.

(5) The undertaking may be without limitations or may be subject to

such limitations as are specified in the undertaking.

Expiry time

(6) The undertaking must specify the expiry time of the undertaking.

(7) The expiry time of the undertaking may be described by reference

to the end of a period beginning:

(a) when the undertaking comes into operation; or

(b) when the person begins to supply the service (whether to

itself or to other persons).

(8) Subsection (7) does not, by implication, limit subsection (6).

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Section 152CBAA

384 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(9) The undertaking may provide for the person to extend, or further

extend, the expiry time of the undertaking, so long as:

(a) the extension or further extension is approved by the

Commission; and

(b) the undertaking sets out criteria that are to be applied by the

Commission in deciding whether to approve the extension or

further extension.

(10) If the undertaking expires, this Part does not prevent the person

from giving a fresh special access undertaking in the same terms as

the expired undertaking.

Commission may perform functions or exercise powers

(10A) If the undertaking provides for the Commission to perform

functions or exercise powers in relation to the undertaking, the

Commission may perform those functions, and exercise those

powers, in accordance with the undertaking.

Related services

(11) A reference in subparagraphs (1)(a)(ii) and (b)(ii) to a service that

facilitates the supply of a carriage service does not include a

reference to the use of intellectual property except to the extent that

it is an integral but subsidiary part of the first-mentioned service.

Definition

(12) In this section:

active declared service has the same meaning as in section 152AR

(disregarding subsection 152AL(7)).

Note: A service includes a proposed service—see section 152CBJ.

152CBAA Fixed principles terms and conditions

(1) A special access undertaking may provide that a term or condition

specified in the undertaking is a fixed principles term or condition

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Section 152CBAA

Competition and Consumer Act 2010 385

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

for a period that, under the undertaking, is expressed to be the

notional fixed period for the fixed principles term or condition.

(2) If the undertaking does so, the undertaking may also provide that

one or more specified circumstances are qualifying circumstances

in relation to the fixed principles term or condition.

(3) The notional fixed period for a fixed principles term or condition

must:

(a) begin when the undertaking comes into operation; and

(b) end:

(i) at the expiry time of the undertaking; or

(ii) if an earlier time is ascertained in accordance with the

undertaking—at that earlier time; or

(iii) if a later time is ascertained in accordance with the

undertaking—at that later time.

(4) If:

(a) a fixed principles term or condition is specified in a special

access undertaking; and

(b) the undertaking ceases to be in operation before the end of

the notional fixed period for the fixed principles term or

condition;

the fixed principles term or condition ceases to be in operation

when the undertaking ceases to be in operation.

Note: Even though the fixed principles term or condition ceases to be in

operation when the undertaking ceases to be in operation,

subsection (5) ensures that a fresh undertaking can include an identical

fixed principles term or condition.

Consequences—acceptance of other undertaking

(5) If:

(a) a special access undertaking (the original undertaking)

given by a person in relation to a particular service contained

a fixed principles term or condition (the original fixed

principles term or condition); and

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Section 152CBAA

386 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the original undertaking was accepted by the Commission;

and

(c) during the notional fixed period for the original fixed

principles term or condition, the person gives the

Commission another special access undertaking (the other

undertaking) in relation to the service; and

(d) the other undertaking contains a fixed principles term or

condition (the corresponding fixed principles term or

condition) that is identical to the original fixed principles

term or condition; and

(e) the notional fixed period for the corresponding fixed

principles term or condition ends at or before the end of the

notional fixed period for the original fixed principles term or

condition; and

(f) if there are qualifying circumstances in relation to the

original fixed principles term or condition:

(i) there are qualifying circumstances in relation to the

corresponding fixed principles term or condition; and

(ii) those qualifying circumstances are identical to the

qualifying circumstances in relation to the original fixed

principles term or condition; and

(g) if there are qualifying circumstances in relation to the

original fixed principles term or condition—none of those

circumstances exist;

then:

(h) the Commission must not reject the other undertaking for a

reason that concerns:

(i) the corresponding fixed principles term or condition; or

(ii) the notional fixed period for the corresponding fixed

principles term or condition; or

(iii) if there are qualifying circumstances in relation to the

corresponding fixed principles term or condition—the

specification of those circumstances; and

(i) paragraphs 152CBD(2)(a), (b), (c) and (ca) do not apply to:

(i) the corresponding fixed principles term or condition; or

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Section 152CBAA

Competition and Consumer Act 2010 387

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(ii) the notional fixed period for the corresponding fixed

principles term or condition; or

(iii) if there are qualifying circumstances in relation to the

corresponding fixed principles term or condition—those

circumstances; and

(j) if the corresponding fixed principles term or condition is the

only term or condition contained in the other undertaking—

paragraph 152CBD(2)(d) does not apply to the other

undertaking; and

(k) if the corresponding fixed principles term or condition is not

the only term or condition contained in the other

undertaking—subparagraph 152CBD(2)(d)(ii) does not

require the Commission to consider any submissions to the

extent to which they relate to:

(i) the corresponding fixed principles term or condition; or

(ii) the notional fixed period for the corresponding fixed

principles term or condition; or

(iii) if there are qualifying circumstances in relation to the

corresponding fixed principles term or condition—those

circumstances.

Consequences—variation of undertaking

(6) If:

(a) a special access undertaking given by a person in relation to a

particular service contains a fixed principles term or

condition (the original fixed principles term or condition);

and

(b) the undertaking has been accepted by the Commission; and

(c) during the notional fixed period for the original fixed

principles term or condition, the person gives the

Commission a variation of the undertaking; and

(d) the varied undertaking contains a fixed principles term or

condition (the corresponding fixed principles term or

condition) that is identical to the original fixed principles

term or condition; and

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Section 152CBB

388 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(e) the notional fixed period for the corresponding fixed

principles term or condition is identical to the notional fixed

period for the original fixed principles term or condition; and

(f) if there are qualifying circumstances in relation to the

original fixed principles term or condition:

(i) there are qualifying circumstances in relation to the

corresponding fixed principles term or condition; and

(ii) those qualifying circumstances are identical to the

qualifying circumstances in relation to the original fixed

principles term or condition; and

(g) if there are qualifying circumstances in relation to the

original fixed principles term or condition—none of those

circumstances exist;

the Commission must not reject the variation for a reason that

concerns:

(h) the corresponding fixed principles term or condition; or

(i) the notional fixed period for the corresponding fixed

principles term or condition; or

(j) if there are qualifying circumstances in relation to the

corresponding fixed principles term or condition—the

specification of those circumstances.

152CBB Further information about undertaking

(1) This section applies if a person gives a special access undertaking

to the Commission.

(2) The Commission may request the person to give the Commission

further information about the undertaking.

(2A) If:

(a) the Procedural Rules make provision for or in relation to a

time limit for giving the information; and

(b) the person does not give the Commission the information

within the time limit allowed by the Procedural Rules;

the Commission may, by written notice given to the person, reject

the undertaking.

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Section 152CBC

Competition and Consumer Act 2010 389

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2B) Subsection (2A) has effect despite anything in this Division.

(2C) If the Commission makes a decision under subsection (2A) to

reject the undertaking, subsection 152CBC(5) has effect as if the

decision had been made under subsection 152CBC(2).

(3) If the Procedural Rules do not make provision for or in relation to a

time limit for giving the information, the Commission may refuse

to consider the undertaking until the person gives the Commission

the information.

(4) The Commission may withdraw its request for further information,

in whole or in part.

152CBC Commission to accept or reject access undertaking

(1) This section applies if a person gives a special access undertaking

to the Commission.

(1A) Before the Commission makes a decision under subsection (2) in

relation to the undertaking, the person may, by written notice given

to the Commission within the time allowed by the Procedural

Rules, modify the undertaking, so long as the modification is a

modification that, under the Procedural Rules, is taken to be of a

minor nature.

Decision to accept or reject undertaking

(2) After considering the undertaking, the Commission must:

(a) accept the undertaking; or

(b) reject the undertaking.

Notice of decision

(3) If the Commission accepts the undertaking, the Commission must

give the person a written notice stating that the undertaking has

been accepted.

(4) If the Commission rejects the undertaking, the Commission must

give the person a written notice:

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Section 152CBC

390 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) stating that the undertaking has been rejected; and

(b) setting out the reasons for the rejection.

Commission to make decision within 6 months

(5) If the Commission does not make a decision under subsection (2)

about the undertaking within 6 months after receiving the

undertaking, the Commission is taken to have made, at the end of

that 6-month period, a decision under subsection (2) to accept the

undertaking.

(6) In calculating the 6-month period referred to in subsection (5),

disregard:

(aa) if:

(i) the Commission has given a notice under

section 152CBDA in relation to the undertaking; and

(ii) no varied undertaking was given to the Commission in

response to the notice;

a day in the period specified in the notice; and

(ab) if:

(i) the Commission has given a notice under

section 152CBDA in relation to the undertaking; and

(ii) a varied undertaking was given to the Commission in

response to the notice; and

(iii) the Commission did not publish the varied undertaking

under paragraph 152CBD(2)(d);

a day in the period:

(iv) beginning on the day in which the notice was given; and

(v) ending when the varied undertaking was given to the

Commission in response to the notice; and

(ac) if:

(i) the Commission has given a notice under

section 152CBDA in relation to the undertaking; and

(ii) a varied undertaking was given to the Commission in

response to the notice; and

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Section 152CBC

Competition and Consumer Act 2010 391

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(iii) the varied undertaking was published under

paragraph 152CBD(2)(d);

a day in the period:

(iv) beginning on the day on which the notice was given;

and

(v) ending at the end of the time specified by the

Commission when it published the varied undertaking;

and

(a) if paragraph (ac) does not apply and the Commission has

published the undertaking under paragraph 152CBD(2)(d)—

a day in the period:

(i) beginning on the date of publication; and

(ii) ending at the end of the time limit specified by the

Commission when it published the undertaking; and

(b) if the Commission has requested further information under

section 152CBB in relation to the undertaking—a day during

any part of which the request, or any part of the request,

remains unfulfilled.

Extension of decision-making period

(7) The Commission may, by written notice given to the person,

extend or further extend the 6-month period referred to in

subsection (5), so long as:

(a) the extension or further extension is for a period of not more

than 3 months; and

(b) the notice includes a statement explaining why the

Commission has been unable to make a decision on the

undertaking within that 6-month period or that 6-month

period as previously extended, as the case may be.

(8) As soon as practicable after the Commission gives a notice under

subsection (7), the Commission must cause a copy of the notice to

be made available on the internet.

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Section 152CBCA

392 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

152CBCA Serial undertakings

If:

(a) a person gives a special access undertaking (the first special

access undertaking) to the Commission; and

(b) the Commission rejects the first special access undertaking;

and

(c) the person subsequently gives another special access

undertaking to the Commission; and

(d) the Commission is satisfied that any or all of the provisions

of the first special access application are materially similar to

any or all of the provisions of the other special access

undertaking;

the Commission may refuse to consider the other special access

undertaking.

152CBD Criteria for accepting access undertaking

(1) This section applies if a person gives the Commission a special

access undertaking relating to a service.

(2) The Commission must not accept the undertaking unless:

(a) if paragraph 152CBA(1)(a) applies—the Commission is

satisfied that:

(i) the terms and conditions referred to in

paragraph 152CBA(3)(b) would be consistent with the

obligations referred to in paragraph 152CBA(3)(a); and

(ii) those terms and conditions are reasonable; and

(b) if paragraph 152CBA(1)(b) applies—the Commission is

satisfied that:

(i) the terms and conditions referred to in

subsection 152CBA(3A) would be consistent with the

obligations referred to in section 152AXB; and

(ii) those terms and conditions are reasonable; and

(c) the Commission is satisfied that the undertaking is consistent

with any Ministerial pricing determination; and

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Section 152CBD

Competition and Consumer Act 2010 393

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(ca) if subsection 152CBA(3B) applies—the Commission is

satisfied that:

(i) the conduct referred to in paragraph 152CBA(3B)(a)

will promote the long-term interests of end-users of

carriage services or of services supplied by means of

carriage services; and

(ii) the terms and conditions referred to in

paragraph 152CBA(3B)(b) are reasonable; and

(cb) if subsection 152CBA(3C) applies—the Commission is

satisfied that the conduct specified in accordance with that

subsection will promote the long-term interests of end-users

of carriage services or of services supplied by means of

carriage services; and

(d) the Commission has:

(i) published the undertaking and invited people to make

submissions to the Commission on the undertaking; and

(ii) considered any submissions that were received within

the time limit specified by the Commission when it

published the undertaking.

Note: Section 152AH contains a list of matters to be taken into account in

determining whether terms and conditions are reasonable.

(3) Subsection (2) has effect subject to subsection 152CBAA(5) (fixed

principles terms and conditions).

(4) If the undertaking provides that a term or condition specified in the

undertaking is a fixed principles term or condition for a period

that, under the undertaking, is expressed to be the notional fixed

period for the fixed principles term or condition, the Commission

must refuse to accept the undertaking if the Commission considers

that:

(a) the fixed principles term or condition should not be a fixed

principles term or condition; or

(b) that notional fixed period should not be the notional fixed

period for the fixed principles term or condition; or

(c) if the undertaking provides that one or more specified

circumstances are qualifying circumstances in relation to the

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Section 152CBD

394 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

fixed principles term or condition—any of the qualifying

circumstances should not be qualifying circumstances in

relation to the fixed principles term or condition; or

(d) if the undertaking does not provide that particular

circumstances are qualifying circumstances in relation to the

fixed principles term or condition—those circumstances

should be qualifying circumstances in relation to the fixed

principles term or condition.

(5) Subsection (4) has effect subject to subsection 152CBAA(5) (fixed

principles terms and conditions).

(5A) If:

(a) the undertaking contains price-related terms and conditions

relating to the supply of a service; and

(b) the price-related terms and conditions are reasonably

necessary to achieve uniform national pricing of eligible

services supplied by the NBN corporation to service

providers and utilities;

then:

(c) the Commission must not reject the undertaking for a reason

that concerns the price-related terms and conditions; and

(d) paragraph (2)(b) does not apply to the price-related terms and

conditions.

(5B) In subsection (5A), eligible services, price-related terms and

conditions, uniform national pricing and utilities have the same

meaning as in section 151DA.

(5C) If a refusal is authorised under subsection 151DA(2) or (3) for the

purposes of subsection 51(1):

(a) the Commission must not reject the undertaking for a reason

that concerns that refusal; and

(b) paragraph (2)(b) of this section does not apply to that refusal.

(6) If a special access undertaking is given to the Commission in

response to a notice under section 152CBDA, the Commission is

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Section 152CBDA

Competition and Consumer Act 2010 395

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

not required to publish the undertaking under paragraph (2)(d) of

this section unless the Commission is satisfied that:

(a) the variations specified in the notice are not of a minor

nature; or

(b) the variations specified in the notice are likely to have a

material adverse effect on the legitimate commercial interests

of any person.

152CBDA Variation of special access undertaking

(1) This section applies if a person gives a special access undertaking

(the original undertaking) to the Commission.

(2) The Commission may give the person a written notice stating that,

if the person:

(a) makes such variations to the original undertaking as are

specified in the notice; and

(b) gives the varied undertaking to the Commission within the

period specified in the notice;

the Commission will consider the varied undertaking under

section 152CBC as if the varied undertaking had been given to the

Commission instead of the original undertaking.

(3) If the person gives the Commission a varied undertaking in

response to the notice, the Commission must consider the varied

undertaking under section 152CBC as if the varied undertaking had

been given to the Commission instead of the original undertaking.

(4) The Commission does not have a duty to consider whether to give

a notice under subsection (2).

152CBE Extension of access undertaking

(1) This section applies if:

(a) a special access undertaking is given by a person; and

(b) the undertaking is in operation; and

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Section 152CBE

396 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) the undertaking provides for the person to extend the expiry

time of the undertaking, so long as the extension is approved

by the Commission; and

(d) the undertaking sets out criteria that are to be applied by the

Commission in deciding whether to approve the extension.

(2) The person may apply to the Commission for approval of the

extension. The application must be made in the 12-month period

ending at the expiry time.

(3) An application under subsection (2) must be:

(a) in writing; and

(b) in a form approved in writing by the Commission.

(4) After considering the application, the Commission must decide

whether to:

(a) approve the extension; or

(b) refuse to approve the extension.

(5) The Commission must approve the extension if the Commission is

satisfied that the criteria referred to in paragraph (1)(d) have been

met.

(6) If the Commission approves the extension, the Commission must

give the person a written notice stating that the extension has been

approved.

(7) If the Commission refuses to approve the extension, the

Commission must give the person a written notice:

(a) stating that the Commission has refused to approve the

extension; and

(b) setting out the reasons for the refusal.

(8) In this section, a reference to an extension includes a reference to a

further extension.

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Section 152CBF

Competition and Consumer Act 2010 397

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

152CBF Duration of access undertaking

(1) This section applies if a person gives the Commission a special

access undertaking relating to a service.

(2) If the Commission accepts the undertaking:

(a) the undertaking comes into operation at the time of

acceptance; and

(b) the undertaking continues in operation until:

(i) it expires; or

(ii) it is withdrawn as mentioned in section 152CBI;

even if, in the case of an undertaking covered by

subsection 152CBA(3), the service becomes an active

declared service.

(3) In this section:

active declared service has the same meaning as in section 152AR

(disregarding subsection 152AL(7)).

152CBG Variation of access undertakings

(1) This section applies if a special access undertaking given by a

person is in operation.

(2) The person may give the Commission a variation of the

undertaking.

(2A) Before the Commission makes a decision under subsection (3) in

relation to the variation, the person may, by written notice given to

the Commission within the time allowed by the Procedural Rules,

modify the variation, so long as the modification is a modification

that, under the Procedural Rules, is taken to be a modification of a

minor nature.

Decision to accept or reject variation

(3) After considering the variation, the Commission must decide to:

(a) accept the variation; or

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Section 152CBG

398 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) reject the variation.

(4) Section 152CBD applies to the variation in a corresponding way to

the way in which it applies to an undertaking. However, if the

variation is a variation that, under the Procedural Rules, is taken to

be a variation of a minor nature, the Commission is not required to

comply with paragraph 152CBD(2)(d) in relation to the variation.

(4A) Subsection (4) has effect subject to subsection 152CBAA(6) (fixed

principles terms and conditions).

Notice of decision

(5) If the Commission accepts the variation, the Commission must

give the person a written notice:

(a) stating that the variation has been accepted; and

(b) setting out the terms of the variation.

(6) If the Commission rejects the variation, the Commission must give

the person a written notice:

(a) stating that the variation has been rejected; and

(b) setting out the reasons for the rejection.

Commission to make decision within 6 months

(7) If the Commission does not make a decision under subsection (3)

about the variation within 6 months after receiving the variation,

the Commission is taken to have made, at the end of that 6-month

period, a decision under subsection (3) to accept the variation.

(8) In calculating the 6-month period referred to in subsection (7),

disregard:

(a) if the Commission has published the variation under

paragraph 152CBD(2)(d)—a day in the period:

(i) beginning on the date of publication; and

(ii) ending at the end of the time limit specified by the

Commission when it published the variation; and

(b) if the Commission has requested further information under

section 152CBH in relation to the variation—a day during

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Section 152CBH

Competition and Consumer Act 2010 399

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

any part of which the request, or any part of the request,

remains unfulfilled.

Extension of decision-making period

(9) The Commission may, by written notice given to the person,

extend or further extend the 6-month period referred to in

subsection (7), so long as:

(a) the extension or further extension is for a period of not more

than 3 months; and

(b) the notice includes a statement explaining why the

Commission has been unable to make a decision on the

variation within that 6-month period or that 6-month period

as previously extended, as the case may be.

(10) As soon as practicable after the Commission gives a notice under

subsection (9), the Commission must cause a copy of the notice to

be made available on the internet.

152CBH Further information about variation of access undertaking

(1) This section applies if a person gives the Commission a variation

of a special access undertaking.

(2) The Commission may request the person to give the Commission

further information about the variation.

(2A) If:

(a) the Procedural Rules make provision for or in relation to a

time limit for giving the information; and

(b) the person does not give the Commission the information

within the time limit allowed by the Procedural Rules;

the Commission may, by written notice given to the person, reject

the variation.

(2B) Subsection (2A) has effect despite anything in this Division.

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Section 152CBI

400 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2C) If the Commission makes a decision under subsection (2A) to

reject the variation, subsection 152CBG(7) has effect as if the

decision had been made under subsection 152CBG(3).

(3) If the Procedural Rules do not make provision for or in relation to a

time limit for giving the information, the Commission may refuse

to consider the variation until the person gives the Commission the

information.

(4) The Commission may withdraw its request for further information,

in whole or in part.

152CBI Voluntary withdrawal of undertaking

(1) This section applies if a special access undertaking given by a

person is in operation.

(2) The person may, by written notice given to the Commission,

withdraw the undertaking if:

(a) the service to which the undertaking relates is a declared

service when the notice is given; or

(b) both:

(i) the service to which the undertaking relates is not a

declared service when the notice is given; and

(ii) at least 12 months before the notice is given, the person

informed the Commission in writing that the person

proposed to withdraw the undertaking.

(3) For the purposes of this section, in determining whether a service is

a declared service, disregard subsections 152AL(7) and (8E).

152CBIA Special access undertakings prevail over inconsistent

access determinations

An access determination has no effect to the extent to which it is

inconsistent with a special access undertaking that is in operation.

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Section 152CBIB

Competition and Consumer Act 2010 401

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

152CBIB Special access undertakings prevail over inconsistent

binding rules of conduct

Binding rules of conduct have no effect to the extent to which they

are inconsistent with a special access undertaking that is in

operation.

152CBIC Access agreements prevail over special access

undertakings

A special access undertaking has no effect to the extent to which it

is inconsistent with an access agreement.

152CBJ Proposed service

In this Subdivision, a reference to a service includes a reference to

a proposed service.

Subdivision C—General provisions

152CC Register of access undertakings

(1) The Commission is to maintain a Register in which the

Commission includes:

(a) all access undertakings that have been accepted by the

Commission (including those that are no longer in operation);

and

(b) all variations of access undertakings.

(2) The Register is to be maintained by electronic means.

(3) The Register is to be made available for inspection on the

Commission’s website.

(4) The Register is not a legislative instrument.

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Part XIC Telecommunications access regime

Division 5 Access undertakings

Section 152CD

402 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

152CD Enforcement of access undertakings

(1) This section applies if an access undertaking given by a person (the

first person) is in operation.

(2) If:

(a) the Commission; or

(b) any person (the affected person) whose interests are affected

by the undertaking;

thinks that the first person has breached the access undertaking, the

Commission or affected person may apply to the Federal Court for

an order under subsection (3).

(3) If the Federal Court is satisfied that the first person has breached

the undertaking, the Court may make all or any of the following

orders:

(a) an order directing the first person to comply with the

undertaking;

(b) an order directing the first person to compensate any other

person who has suffered loss or damage as a result of the

breach;

(c) any other order that the Court thinks appropriate.

(4) The Federal Court may discharge or vary an order granted under

this section.

152CDA Deferral of consideration of an access undertaking etc.

(1) The Procedural Rules may authorise the Commission to defer

consideration of:

(a) an access undertaking; or

(b) a variation of an access undertaking.

(2) Subsection (1) has effect despite anything in this Division.

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Ministerial pricing determinations Division 6

Section 152CH

Competition and Consumer Act 2010 403

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 6—Ministerial pricing determinations

152CH Ministerial pricing determinations

(1) The Minister may, by legislative instrument, make a determination

setting out principles dealing with price-related terms and

conditions relating to the standard access obligations. The

determination is to be known as a Ministerial pricing

determination.

Note 3A: Subsection 152CBD(2) provides that the Commission must not accept

a special access undertaking unless the undertaking is consistent with

any Ministerial pricing determination.

Note 4: Subsection 152CI(1) provides that a provision of an access

undertaking has no effect to the extent that the provision is

inconsistent with any Ministerial pricing determination.

Note 5: Subsection 152CI(2) provides that a provision of an access

determination has no effect to the extent that the provision is

inconsistent with any Ministerial pricing determination.

Note 5A: Subsection 152CI(3) provides that a provision of binding rules of

conduct have no effect to the extent that the provision is inconsistent

with any Ministerial pricing determination.

(3) In this section:

price-related terms and conditions means terms and conditions

relating to price or a method of ascertaining price.

152CI Undertakings, access determinations and binding rules of

conduct that are inconsistent with Ministerial pricing

determinations

(1) If a provision of an access undertaking is inconsistent with any

Ministerial pricing determination, the provision has no effect to the

extent of the inconsistency.

(2) If a provision of an access determination is inconsistent with any

Ministerial pricing determination, the provision has no effect to the

extent of the inconsistency.

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Division 6 Ministerial pricing determinations

Section 152CJ

404 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) If a provision of binding rules of conduct is inconsistent with any

Ministerial pricing determination, the provision has no effect to the

extent of the inconsistency.

152CJ Register of Ministerial pricing determinations

(1) The Commission must keep a Register of Ministerial pricing

determinations.

(2) The Register is to be maintained by electronic means.

(3) The Register is to be made available for inspection on the

Commission’s website.

(4) The Register is not a legislative instrument.

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Supply of services by NBN corporations Division 6A

Section 152CJA

Competition and Consumer Act 2010 405

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 6A—Supply of services by NBN corporations

152CJA Supply of services by NBN corporations

(1) An NBN corporation must not supply an eligible service (within

the meaning of section 152AL) to another person unless:

(a) the service is a declared service under

subsection 152AL(8A); or

(b) both:

(i) the NBN corporation has formulated a standard form of

access agreement that relates to access to the service;

and

(ii) the standard form of access agreement is available on

the NBN corporation’s website; or

(c) both:

(i) a special access undertaking given by the NBN

corporation is in operation; and

(ii) the undertaking relates to the service.

(2) If:

(a) as the result of a request made by an access seeker under

section 152AXB, an NBN corporation is subject to a

category B standard access obligation in relation to a

declared service; and

(b) the NBN corporation has formulated a standard form of

access agreement that relates to access to the service; and

(c) the standard form of access agreement is available on the

NBN corporation’s website; and

(d) the access seeker requests the NBN corporation to enter into

an access agreement that:

(i) relates to access to the service; and

(ii) sets out terms and conditions that are the same as the

terms and conditions set out in the standard form of

access agreement;

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Division 6A Supply of services by NBN corporations

Section 152CJB

406 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the NBN corporation must comply with the request mentioned in

paragraph (d).

Note: An NBN corporation will not be subject to a category B standard

access obligation in the circumstances set out in

subsection 152AXB(3) or (6).

(3) If an access seeker does not make a request under paragraph (2)(d),

this Part does not, by implication, prevent the NBN corporation

and the access seeker from entering into an access agreement that

sets out terms and conditions that are not the same as the terms and

conditions set out in the standard form of access agreement.

152CJB Mandatory NBN services

Scope

(1) This section applies if a condition of a carrier licence held by an

NBN corporation requires the NBN corporation to comply with

this section in relation to a specified eligible service (within the

meaning of section 152AL) that is supplied, or is capable of being

supplied, by the NBN corporation (whether to itself or other

persons).

Note 1: See section 41 of the National Broadband Network Companies Act

2011.

Note 2: For declaration of carrier licence conditions, see section 63 of the

Telecommunications Act 1997.

Compliance by NBN corporation

(2) The NBN corporation must, within 90 days after the carrier licence

condition comes into force:

(a) both:

(i) formulate a standard form of access agreement that

relates to access to the service; and

(ii) make the standard form of access agreement available

on the NBN corporation’s website; or

(b) give the Commission a special access undertaking in

connection with the provision of access to the service.

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Supply of services by NBN corporations Division 6A

Section 152CJB

Competition and Consumer Act 2010 407

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) If:

(a) the NBN corporation, in accordance with paragraph (2)(b),

gives the Commission a special access undertaking in

connection with the provision of access to the service; and

(b) the Commission rejects the undertaking;

the NBN corporation must, within 90 days after the rejection of the

undertaking:

(c) formulate a standard form of access agreement that relates to

access to the service; and

(d) make the standard form of access agreement available on the

NBN corporation’s website.

(4) If the NBN corporation, in accordance with

(a) subparagraph (2)(a)(ii); or

(b) paragraph (3)(d);

makes a standard form of access agreement available on the NBN

corporation’s website, the NBN corporation must ensure that a

standard form of access agreement that:

(c) relates to access to the service; and

(d) is formulated by the NBN corporation;

is available on the NBN corporation’s website at all times during

the remainder of the period when the carrier licence condition is in

force.

(5) If:

(a) the NBN corporation, in accordance with paragraph (2)(b),

gives the Commission a special access undertaking in

connection with the provision of access to the service; and

(b) the Commission accepts the undertaking; and

(c) the undertaking subsequently ceases to be in operation;

the NBN corporation must ensure that a standard form of access

agreement that:

(d) relates to access to the service; and

(e) is formulated by the NBN corporation;

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Division 6A Supply of services by NBN corporations

Section 152CJC

408 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

is available on the NBN corporation’s website at all times during

the remainder of the period when the carrier licence condition is in

force.

152CJC Carrier licence condition

A carrier licence held by an NBN corporation is subject to a

condition that the NBN corporation must comply with any rules in

section 152CJA that are applicable to the NBN corporation.

Note: See also section 62D of the Telecommunications Act 1997.

152CJD Service provider rule

(1) In addition to the rules mentioned in section 98 of the

Telecommunications Act 1997, the rule set out in subsection (2) of

this section is a service provider rule for the purposes of that Act.

(2) If an NBN corporation is a service provider, the NBN corporation

must comply with any rules in section 152CJA that are applicable

to the NBN corporation.

152CJE Judicial enforcement of obligations

(1) If the Federal Court is satisfied that an NBN corporation has

contravened an obligation imposed by section 152CJA or 152CJB,

the Court may, on the application of:

(a) the Commission; or

(b) any person whose interests are affected by the contravention;

make all or any of the following orders:

(c) an order directing the NBN corporation to comply with the

obligation;

(d) an order directing the NBN corporation to compensate any

other person who has suffered loss or damage as a result of

the contravention;

(e) any other order that the Court thinks appropriate.

(2) The Federal Court may discharge or vary an order granted under

this section.

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Supply of services by NBN corporations Division 6A

Section 152CJF

Competition and Consumer Act 2010 409

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

152CJF Standard form of access agreement

For the purposes of this Part, if, at a particular time, a service is not

a declared service, a standard form of access agreement relating to

access to the service may be formulated by an NBN corporation at

that time on the assumption that the service is a declared service.

152CJG When NBN corporation is not capable of supplying a

carriage service

Condition of a carrier licence

(1) If a condition of a carrier licence held by an NBN corporation

prohibits the NBN corporation from supplying a specified carriage

service to carriers or service providers, then, for the purposes of:

(a) this Part; and

(b) subsections 41(1) and (2) of the National Broadband

Network Companies Act 2011;

the NBN corporation is taken not to be capable of supplying the

service.

Note: See subsection 41(3) of the National Broadband Network Companies

Act 2011.

Avoidance of doubt

(2) Subsection (1) is enacted for the avoidance of doubt.

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Division 6B Explanatory material relating to anti-discrimination provisions

Section 152CJH

410 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 6B—Explanatory material relating to

anti-discrimination provisions

152CJH Explanatory material relating to anti-discrimination

provisions

The Commission must:

(a) as soon as practicable after the commencement of this

section, publish on its website explanatory material relating

to the following provisions:

(ia) section 152ARA;

(ib) section 152ARB;

(i) section 152AXC;

(ii) section 152AXD;

(iii) subsections 152BCB(4A) to (4C) and (4G) to (4J);

(iv) subsections 152BDA(4A) to (4C) and (4G) to (4J); and

(b) keep that statement up-to-date.

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Relationship between this Part and Part IIIA Division 7

Section 152CK

Competition and Consumer Act 2010 411

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 7—Relationship between this Part and Part IIIA

152CK Relationship between this Part and Part IIIA

(1) A notification must not be given under section 44S in relation to an

access dispute if:

(a) the dispute relates to one or more aspects of access to a

declared service (within the meaning of this Part); and

(b) the third party referred to in that section is a service provider

(within the meaning of this Part).

(2) The Commission must not accept an undertaking under

section 44ZZA that relates to a declared service (within the

meaning of this Part) if the terms and conditions set out in the

undertaking relate to the provision of access to one or more service

providers (within the meaning of this Part).

(3) If:

(a) an undertaking under section 44ZZA is in operation in

relation to a particular service; and

(b) at a particular time, the service becomes a declared service

(within the meaning of this Part);

the undertaking ceases to be in operation to the extent (if any) to

which it sets out terms and conditions relating to the provision of

access to one or more service providers (within the meaning of this

Part).

(4) For the purposes of this section, if a special access undertaking

given by a person other than an NBN corporation is in operation,

assume that subsection 152AL(7) has effect in relation to the

undertaking as if paragraph 152AL(7)(c) had not been enacted.

(5) For the purposes of this section, if a special access undertaking

given by an NBN corporation is in operation, assume that

subsection 152AL(8E) has effect in relation to the undertaking as if

paragraph 152AL(8E)(c) had not been enacted.

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

Section 152EF

412 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 10—Hindering the fulfilment of a standard access

obligation etc.

152EF Prohibition on hindering the fulfilment of a standard access

obligation etc.

(1) A person must not engage in conduct for the purpose of preventing

or hindering the fulfilment of:

(a) a standard access obligation; or

(b) a requirement imposed by an access determination; or

(ba) a requirement imposed by binding rules of conduct;

if the person is:

(c) a carrier or a carriage service provider who supplies a

declared service; or

(d) a service provider to whom a declared service is being

supplied by a carrier or carriage service provider; or

(e) a body corporate that is related to a carrier or provider

referred to in paragraph (c) or (d).

(2) A person may be taken to have engaged in conduct for the purpose

referred to in subsection (1) even though, after all the evidence has

been considered, the existence of that purpose is ascertainable only

by inference from the conduct of the person or from other relevant

circumstances. This subsection does not limit the manner in which

the purpose of a person may be established for the purposes of

subsection (1).

(3) Subsection (1) does not have effect before 1 July 1997.

152EG Enforcement of prohibition on hindering the fulfilment of a

standard access obligation etc.

(1) If the Federal Court is satisfied, on the application of any person,

that another person (the obstructor) has engaged, is engaging, or is

proposing to engage in conduct constituting a contravention of

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

Section 152EH

Competition and Consumer Act 2010 413

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

section 152EF, the Court may make all or any of the following

orders:

(a) an order granting an injunction on such terms as the Court

thinks appropriate:

(i) restraining the obstructor from engaging in the conduct;

or

(ii) if the conduct involves refusing or failing to do

something—requiring the obstructor to do that thing;

(b) an order directing the obstructor to compensate a person who

has suffered loss or damage as a result of the contravention;

(c) any other order that the Court thinks appropriate.

(2) If the Federal Court has power under subsection (1) to grant an

injunction restraining a person from engaging in particular

conduct, or requiring a person to do anything, the Court may make

any other orders (including granting an injunction) that it thinks

appropriate against any other person who was involved in the

contravention concerned.

152EH Consent injunctions

On an application for an injunction under section 152EG, the

Federal Court may grant an injunction by consent of all of the

parties to the proceedings, whether or not the Court is satisfied that

the section applies.

152EI Interim injunctions

(1) The Federal Court may grant an interim injunction pending

determination of an application under section 152EG.

(2) If the Commission makes an application under section 152EG to

the Federal Court for an injunction, the Court must not require the

Commission or any other person, as a condition of granting an

interim injunction, to give any undertakings as to damages.

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

Section 152EJ

414 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

152EJ Factors relevant to granting a restraining injunction

The power of the Federal Court to grant an injunction under

section 152EG restraining a person from engaging in conduct may

be exercised whether or not:

(a) it appears to the Court that the person intends to engage

again, or to continue to engage, in conduct of that kind; or

(b) the person has previously engaged in conduct of that kind; or

(c) there is an imminent danger of substantial damage to any

person if the first-mentioned person engages in conduct of

that kind.

152EK Factors relevant to granting a mandatory injunction

The power of the Federal Court to grant an injunction under

section 152EG requiring a person to do a thing may be exercised

whether or not:

(a) it appears to the Court that the person intends to refuse or fail

again, or to continue to refuse or fail, to do that thing; or

(b) the person has previously refused or failed to do that thing; or

(c) there is an imminent danger of substantial damage to any

person if the first-mentioned person refuses or fails to do that

thing.

152EL Discharge or variation of injunction or other order

The Federal Court may discharge or vary an injunction or order

granted under this Division.

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Procedural Rules Division 10A

Section 152ELA

Competition and Consumer Act 2010 415

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 10A—Procedural Rules

152ELA Procedural Rules

(1) The Commission may, by written instrument, make rules:

(a) making provision for or in relation to the practice and

procedure to be followed by the Commission in performing

functions, or exercising powers, under this Part; or

(b) making provision for or in relation to all matters and things

incidental to any such practice or procedure, or necessary or

convenient to be prescribed for the conduct of any business

of the Commission under this Part; or

(c) prescribing matters required or permitted by any other

provision of this Part to be prescribed by the Procedural

Rules.

(2) Rules under subsection (1) are to be known as Procedural Rules.

(3) The Procedural Rules may make provision for or in relation to any

or all of the following:

(a) the confidentiality of information or documents given to the

Commission by:

(i) an applicant for an order under subsection 152ATA(1);

or

(ii) a person who gave the Commission an access

undertaking or a variation of an access undertaking;

(c) the form and content of applications, undertakings, variations

or other documents given to the Commission under this Part.

(4) Subsection (3) does not limit subsection (1).

(5) The Procedural Rules may make provision for or in relation to a

matter by empowering the Commission to make decisions of an

administrative character.

(6) Subsection (5) does not limit subsection (1).

(8) An instrument under subsection (1) is a legislative instrument.

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Division 10A Procedural Rules

Section 152ELB

416 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note: For variation and revocation of instruments under subsection (1), see

subsection 33(3) of the Acts Interpretation Act 1901.

152ELB Public consultation

(1) Before making any Procedural Rules, the Commission must:

(a) publish a draft of the Procedural Rules on the Commission’s

website and invite people to make submissions to the

Commission on the draft Procedural Rules; and

(b) consider any submissions that are received within the time

limit specified by the Commission when it published the

draft Procedural Rules.

(2) The time limit specified by the Commission must be at least 30

days after the day of publication of the draft Procedural Rules.

152ELC Plan for the development of Procedural Rules

(1) Within 6 months after the commencement of this section, the

Commission must:

(a) prepare a written plan setting out:

(i) an outline of the Commission’s proposals for making

Procedural Rules; and

(ii) an indicative timetable for making those Procedural

Rules; and

(b) make a copy of the plan available on the Commission’s

website.

(2) A failure to comply with the plan does not affect the validity of an

instrument under subsection 152ELA(1).

(3) The plan is not a legislative instrument.

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Miscellaneous Division 11

Section 152ELD

Competition and Consumer Act 2010 417

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 11—Miscellaneous

152ELD Compensation for acquisition of property

(1) If the operation of 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 a

court of competent jurisdiction 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.

this Part includes Division 2 of Part 2 of Schedule 1 to the

Telecommunications Legislation Amendment (Competition and

Consumer Safeguards) Act 2010.

152EM 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.

152EN Treatment of partnerships

This Part applies to a partnership as if the partnership were a

person, but it applies with the following changes:

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Division 11 Miscellaneous

Section 152EO

418 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) obligations that would be imposed on the partnership are

imposed instead on each partner, but may be discharged by

any of the partners;

(b) any offence against this Part that would otherwise be

committed by the partnership is taken to have been

committed by each partner who:

(i) aided, abetted, counselled or procured the relevant act or

omission; or

(ii) was in any way knowingly concerned in, or party to, the

relevant act or omission (whether directly or indirectly

and whether by any act or omission of the partner).

152EO Conduct by directors, servants or agents

(1) If, in a proceeding under this Part in respect of conduct engaged in

by a body corporate, it is necessary to establish the state of mind of

the body corporate in relation to particular conduct, it is sufficient

to show:

(a) that the conduct was engaged in by a director, servant or

agent of the body corporate within the scope of his or her

actual or apparent authority; and

(b) that the director, servant or agent had the state of mind.

(2) Any conduct engaged in on behalf of a body corporate:

(a) by a director, servant or agent of the body corporate within

the scope of the person’s actual or apparent authority; or

(b) by any other person at the direction or with the consent or

agreement (whether express or implied) of a director, servant

or agent of the body corporate, if the giving of the direction,

consent or agreement is within the scope of the actual or

apparent authority of the director, servant or agent;

is taken for the purposes of this Part to have been engaged in also

by the body corporate, unless the body corporate establishes that

the body corporate took reasonable precautions and exercised due

diligence to avoid the conduct.

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Miscellaneous Division 11

Section 152EOA

Competition and Consumer Act 2010 419

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) A reference in subsection (1) to the state of mind of a person

includes a reference to:

(a) the knowledge, intention, opinion, belief or purpose of the

person; and

(b) the person’s reasons for the intention, opinion, belief or

purpose.

(4) A reference in this section to a director of a body corporate

includes a reference to a constituent member of a body corporate

incorporated for a public purpose by a law of the Commonwealth,

of a State or of a Territory.

152EOA Review of operation of this Part etc.

(1) Before 30 June 2014, the Minister must cause to be conducted a

review of the operation of:

(a) this Part; and

(b) the remaining provisions of this Act so far as they relate to

this Part; and

(c) Division 2 of Part 2 of the National Broadband Network

Companies Act 2011; and

(d) the remaining provisions of the National Broadband Network

Companies Act 2011 so far as they relate to Division 2 of

Part 2 of that Act.

(1A) Without limiting subsection (1), a review under that subsection

must consider the following matters:

(a) the supply by NBN corporations of eligible services covered

by section 10, 11, 12, 13, 14, 15 or 16 of the National

Broadband Network Companies Act 2011;

(b) the types of eligible services that have been, are being, or are

proposed to be, supplied by NBN corporations.

(1B) For the purposes of subsection (1A), eligible service has the same

meaning as in section 152AL.

(2) A review under subsection (1) must make provision for public

consultation.

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Division 11 Miscellaneous

Section 152EP

420 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) The Minister must cause to be prepared a report of a review under

subsection (1).

(4) The Minister must cause copies of the report to be tabled in each

House of the Parliament within 15 sitting days of that House after

the completion of the preparation of the report.

152EP Regulations about fees for inspection etc. of registers

The regulations may make provision about the inspection of

registers maintained under this Part (including provision about

fees).

152EQ Assistance to independent telecommunications adjudicator

(1) For the purposes of this section, the independent

telecommunications adjudicator is a company that:

(a) is limited by guarantee; and

(b) is identified, in an undertaking in force under section 577A

of the Telecommunications Act 1997, as the independent

telecommunications adjudicator for the purpose of this

section.

(2) The Commission may assist the independent telecommunications

adjudicator.

(3) The assistance may include the following:

(a) the provision of information (including protected information

within the meaning of section 155AAA);

(b) the provision of advice;

(c) the making available of resources and facilities (including

secretariat services and clerical assistance).

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Miscellaneous Division 11

Section 152ER

Competition and Consumer Act 2010 421

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

152ER Voluntary undertakings given by Telstra

Scope

(1) This section applies if an undertaking given by Telstra is in force

under section 577A, 577C or 577E of the Telecommunications Act

1997.

Note 1: Section 577A of the Telecommunications Act 1997 deals with

undertakings about structural separation.

Note 2: Section 577C of the Telecommunications Act 1997 deals with

undertakings about hybrid fibre-coaxial networks.

Note 3: Section 577E of the Telecommunications Act 1997 deals with

undertakings about subscription television broadcasting licences.

Commission must have regard to Telstra’s conduct

(2) If Telstra has engaged, or is required to engage, in conduct in order

to comply with the undertaking, then, in performing a function, or

exercising a power, under this Part in relation to Telstra, the

Commission must have regard to the conduct to the extent that the

conduct is relevant.

Commission must not prevent Telstra from complying with the

undertaking

(3) The Commission must not perform a function, or exercise a power,

under this Part so as to prevent Telstra from complying with the

undertaking.

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Division 1 Preliminary

Section 154

422 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part XID—Search and seizure

Division 1—Preliminary

154 Simplified outline

The following is a simplified outline of this Part:

• This Part sets out an enforcement regime for the purposes of

finding out whether there has been a contravention of this Act,

Part 20 of the Telecommunications Act 1997 or Part 9 of the

Telecommunications (Consumer Protection and Service

Standards) Act 1999.

• Division 2 provides for the appointment of inspectors and the

issue of identity cards.

• Division 3 deals with entry to premises with the consent of the

occupier of the premises.

• Division 4 deals with entry to premises under a search warrant

issued by a magistrate. It sets out the powers available under a

search warrant, the obligations of persons entering the

premises and the rights and responsibilities of the occupier of

the premises.

• Division 5 contains some general provisions relating to the

operation of electronic equipment at premises.

Note: See also section 155 (which deals with the obtaining of information,

documents and evidence).

154A Definitions

In this Part:

consultant means a person engaged under section 27A.

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Section 154A

Competition and Consumer Act 2010 423

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contravention, in relation to a law, includes an offence against

section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an

offence against that law.

data includes:

(a) information in any form; or

(b) any program (or part of a program).

data held in a computer includes:

(a) data held in any removable data storage device for the time

being held in a computer; or

(b) data held in a data storage device on a computer network of

which the computer forms a part.

data storage device means a thing containing, or designed to

contain, data for use by a computer.

evidential material means a document or other thing that may

afford evidence relating to:

(a) a contravention of this Act; or

(b) a contravention of Part 20 of the Telecommunications Act

1997; or

(c) a contravention of Part 9 of the Telecommunications

(Consumer Protection and Service Standards) Act 1999; or

(d) a contravention of section 137.1, 137.2 or 149.1 of the

Criminal Code that relates to this Part.

executing officer, for a search warrant, means:

(a) the inspector named in the warrant as being responsible for

executing the warrant; or

(b) if that inspector does not intend to be present at the execution

of the warrant—another inspector whose name has been

written in the warrant by the inspector so named; or

(c) another inspector whose name has been written in the

warrant by the inspector last named in the warrant.

inspector means a person appointed as an inspector under

section 154B.

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Section 154A

424 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

occupier, in relation to premises, includes a person present at the

premises who apparently represents the occupier.

officer assisting, for a search warrant, means:

(a) an inspector who is assisting in executing the warrant; or

(b) a person authorised under section 154K in relation to the

warrant.

premises means:

(a) an area of land or any other place (whether or not it is

enclosed or built on); or

(b) a building or other structure; or

(c) a vehicle, vessel or aircraft; or

(d) a part of any such premises.

search warrant means a warrant issued by a magistrate under

section 154X or signed by a magistrate under section 154Y.

thing includes a thing in electronic or magnetic form.

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Appointment of inspectors and identity cards Division 2

Section 154B

Competition and Consumer Act 2010 425

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Appointment of inspectors and identity cards

154B Appointment of inspectors

(1) The Chairperson may, by writing, appoint a member of the staff

assisting the Commission to be an inspector.

Staff member to have suitable qualifications and experience

(2) The Chairperson must not do so unless he or she is satisfied that

the staff member has suitable qualifications and experience to

properly exercise the powers of an inspector.

Inspector to comply with Chairperson’s directions

(3) An inspector must comply with any directions of the Chairperson

in exercising powers or performing functions as an inspector.

154C Identity cards

(1) The Chairperson must issue an identity card to 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 inspector.

Offence

(3) A person commits an offence if:

(a) the person has been issued with an identity card; and

(b) the person ceases to be an inspector; and

(c) the person does not return the identity card to the

Chairperson as soon as practicable.

Penalty: 1 penalty unit.

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Section 154C

426 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(4) An offence against subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

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 must carry his or her identity card at all times when

exercising powers or performing functions as an inspector.

Inspector must produce card on request

(7) An inspector is not entitled to exercise any powers under this Part

in relation to premises if:

(a) the occupier of the premises has requested the inspector to

produce the inspector’s identity card for inspection by the

occupier; and

(b) the inspector fails to comply with the request.

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Entry to premises with consent Division 3

Section 154D

Competition and Consumer Act 2010 427

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Entry to premises with consent

154D Entry with consent

Entry

(1) An inspector may enter premises if:

(a) the Commission, the Chairperson or a Deputy Chairperson

has reasonable grounds for suspecting that there may be

evidential material on the premises; and

(b) the inspector obtains the consent of the occupier of the

premises to enter the premises.

(2) The inspector may be accompanied by any one or more of the

following persons (each of whom is an assistant):

(a) another member of the staff assisting the Commission;

(b) a consultant.

Obtaining consent

(3) Before obtaining the consent of a person to enter premises under

this Division, the inspector must inform the person that the person

may refuse consent.

(4) A consent of a person is not effective for the purposes of this

section unless it is voluntary.

154E Powers in relation to premises

(1) The inspector or an assistant may do any of the following after

entering premises under this Division:

(a) search the premises, and any thing on the premises, for the

evidential material;

(b) make copies of the evidential material found on the premises;

(c) operate electronic equipment at the premises to see whether

the evidential material is accessible by doing so;

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Section 154F

428 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).

(d) remove the evidential material from the premises with the

consent of the owner of the material;

Note: See also subsection (2).

(e) secure the evidential material, pending the obtaining of a

search warrant to seize it;

(f) take equipment and material onto the premises, and use it, for

any of the above purposes.

Obtaining consent to remove evidential material

(2) Before obtaining the consent of a person to remove evidential

material from premises under paragraph (1)(d), the inspector or an

assistant must inform the person of the purpose for which the

material is required and that the person may refuse consent. A

consent of a person is not effective for the purposes of that

paragraph unless the consent is voluntary.

154F Operation of electronic equipment at premises

(1) If:

(a) an inspector or an assistant enters premises under this

Division; and

(b) he or she believes on reasonable grounds that any data

accessed by operating electronic equipment at the premises

(including data not held at the premises) might constitute

evidential material;

he or she may do only 1 of 2 things.

Removal of documents

(2) One thing he or she may do is operate the equipment or other

facilities at the premises to put the data in documentary form and

remove the documents so produced from the premises.

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Section 154F

Competition and Consumer Act 2010 429

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Removal of disk, tape or other storage device

(3) The other thing he or she may do is operate the equipment or other

facilities at the premises to transfer the data to a disk, tape or other

storage device that:

(a) is brought to the premises for the exercise of the power; or

(b) is at the premises and the use of which for the purpose has

been agreed to in writing by the occupier of the premises;

and remove the disk, tape or other storage device from the

premises.

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Division 4 Entry to premises under a search warrant

Section 154G

430 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4—Entry to premises under a search warrant

Subdivision A—Powers available under a search warrant

154G The things that are authorised by a search warrant

(1) A search warrant that is in force in relation to premises authorises

the executing officer or an officer assisting to do any of the

following:

(a) enter the premises;

(b) search the premises, and any thing on the premises, for the

kind of evidential material specified in the warrant, and seize

things of that kind found on the premises;

(c) make copies of the kind of evidential material specified in the

warrant found on the premises;

(d) operate electronic equipment at the premises to see whether

the kind of evidential material specified in the warrant is

accessible by doing so;

Note: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).

(e) take equipment and material onto the premises, and use it, for

any of the above purposes.

(1A) In executing a search warrant that is in force in relation to

premises, the executing officer or an officer assisting may:

(a) for a purpose incidental to the execution of the warrant; or

(b) with the written consent of the occupier of the premises;

take photographs, or make video recordings, of the premises or of

anything at the premises.

(1B) If a search warrant in relation to premises is being executed, the

executing officer and the officers assisting may, if the warrant is

still in force, complete the execution of the warrant after all of

them temporarily cease its execution and leave the premises:

(a) for not more than one hour; or

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Section 154GA

Competition and Consumer Act 2010 431

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) for a longer period if the occupier of the premises consents in

writing.

Seizing other evidence

(2) If:

(a) the executing officer or an officer assisting, in the course of

searching for the kind of evidential material specified in the

warrant, finds another thing that he or she believes on

reasonable grounds to be evidence of:

(i) an indictable offence against this Act; or

(ii) an indictable offence against Part 20 of the

Telecommunications Act 1997; or

(iii) an indictable offence against Part 9 of the

Telecommunications (Consumer Protection and Service

Standards) Act 1999; or

(iv) an offence against section 137.1, 137.2 or 149.1 of the

Criminal Code that relates to this Part; and

(b) he or she believes on reasonable grounds that it is necessary

to seize the other thing in order to prevent its concealment,

loss or destruction;

then he or she may seize that other thing.

154GA Removing things for examination or processing

(1) A thing found at the premises may be moved to another place for

examination or processing in order to determine whether it may be

seized under a search warrant if:

(a) both of the following subparagraphs apply:

(i) it is significantly more practicable to do so having

regard to the timeliness and cost of examining or

processing the thing at another place and the availability

of expert assistance;

(ii) there are reasonable grounds to believe that the thing

contains or constitutes evidential material; or

(b) the occupier of the premises consents in writing.

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Section 154H

432 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Notice to occupier

(2) If a thing is moved to another place for the purpose of examination

or processing under subsection (1), the executing officer must, if it

is practicable to do so:

(a) inform the occupier of the address of the place and the time

at which the examination or processing will be carried out;

and

(b) allow the occupier or his or her representative to be present

during the examination or processing.

Period of removal

(3) The thing may be moved to another place for examination or

processing for no longer than 72 hours.

Extensions

(4) An executing officer may apply to a magistrate for one or more

extensions of that time if the executing officer believes on

reasonable grounds that the thing cannot be examined or processed

within 72 hours or that time as previously extended.

(5) The executing officer must give notice of the application to the

occupier of the premises of his or her intention to apply for an

extension, and the occupier is entitled to be heard in relation to the

application.

(6) The magistrate may order an extension for a period specified in the

order if the magistrate is satisfied that the extension is necessary.

154H Operation of electronic equipment at premises

(1) If:

(a) a search warrant is in force in relation to premises; and

(b) the executing officer or an officer assisting believes on

reasonable grounds that any data accessed by operating

electronic equipment at the premises (including data not held

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Section 154H

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at the premises) might constitute evidential material of the

kind specified in the warrant;

he or she may do only 1 of 3 things.

Seizure

(2) One thing he or she may do is seize the equipment and any disk,

tape or other associated device.

Note: Subsection (5) sets out limitations on seizure.

Removal of documents

(3) Another thing he or she may do is operate the equipment or other

facilities at the premises to put the data in documentary form and

remove the documents so produced from the premises.

Note: An executing officer can obtain an order requiring a person with

knowledge of a computer or computer system to provide assistance—

see section 154RA.

Removal of disk, tape or other storage device

(4) The final thing he or she may do is operate the equipment or other

facilities at the premises to transfer the data to a disk, tape or other

storage device that:

(a) is brought to the premises; or

(b) is at the premises and the use of which for the purpose has

been agreed to in writing by the occupier of the premises;

and remove the disk, tape or other storage device from the

premises.

Note: An executing officer can obtain an order requiring a person with

knowledge of a computer or computer system to provide assistance—

see section 154RA.

Limitation on seizure

(5) A person may seize a thing under subsection (2) only if:

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Section 154J

434 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) it is not practicable to put the data in documentary form as

mentioned in subsection (3) or to transfer the data as

mentioned in subsection (4); or

(b) possession of the thing by the occupier could constitute an

offence against a law of the Commonwealth.

154J Securing electronic equipment for use by experts

(1) If a search warrant in relation to premises is being executed and the

executing officer or an officer assisting believes on reasonable

grounds that:

(a) the kind of evidential material specified in the warrant may

be accessible by operating electronic equipment at the

premises; and

(b) expert assistance is required to operate the equipment; and

(c) if he or she does not take action under this subsection, the

material may be destroyed, altered or otherwise interfered

with;

he or she may do whatever is necessary to secure the equipment,

whether by locking it up, placing a guard or otherwise.

Notice to occupier

(2) The executing officer or officer assisting must give notice to the

occupier of the premises of his or her intention to secure the

equipment and of the fact that the equipment may be secured for up

to 24 hours.

Period equipment may be secured

(3) The equipment may be secured:

(a) for a period not exceeding 24 hours; or

(b) until the equipment has been operated by the expert;

whichever happens first.

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Section 154K

Competition and Consumer Act 2010 435

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Extensions

(4) If the executing officer or officer assisting believes on reasonable

grounds that the expert assistance will not be available within

24 hours, he or she may apply to a magistrate for an extension of

that period.

(5) The executing officer or officer assisting must give notice to the

occupier of the premises of his or her intention to apply for an

extension, and the occupier is entitled to be heard in relation to the

application.

(6) The magistrate may order an extension for a period specified in the

order if the magistrate is satisfied that the extension is necessary.

Subdivision B—Availability of assistance and use of force in

executing a search warrant

154K Authorisation of officers assisting

The executing officer for a search warrant may, by writing,

authorise a member of the Australian Federal Police, a member of

the staff assisting the Commission, or a consultant, to assist in

executing the warrant.

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

warrant

In executing a search warrant:

(a) the executing officer may obtain such assistance as is

necessary and reasonable in the circumstances; and

(b) the executing officer, or another inspector who is an officer

assisting, may use such force against persons and things as is

necessary and reasonable in the circumstances; and

(ba) a member of the Australian Federal Police who is an officer

assisting may use such force against persons and things as is

necessary and reasonable in the circumstances; and

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Section 154M

436 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) a person who is not an inspector, but who is an officer

assisting, may use such force against things as is necessary

and reasonable in the circumstances.

Subdivision C—Obligations of executing officer and officers

assisting

154M Announcement before entry

(1) Before any person enters premises under a search warrant, the

executing officer must:

(a) announce that he or she is authorised to enter the premises;

and

(b) give any person at the premises an opportunity to allow entry

to the premises.

(2) However, the executing officer is not required to comply with

subsection (1) if he or she believes on reasonable grounds that

immediate entry to the premises is required to ensure that the

effective execution of the warrant is not frustrated.

154N Details of warrant to be given to occupier

If a search warrant in relation to premises is being executed and the

occupier of the premises is present at the premises, the executing

officer or an officer assisting must make available to the occupier a

copy of the warrant or a copy of the form of warrant.

Subdivision D—Occupier’s rights and responsibilities

154P Occupier entitled to observe search being conducted

(1) If a search warrant in relation to premises is being executed and the

occupier of the premises is present at the premises, the occupier is

entitled to observe the search being conducted.

(2) The occupier’s right to observe the search being conducted ends if

the occupier impedes the search.

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Section 154Q

Competition and Consumer Act 2010 437

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) This section does not prevent 2 or more areas of the premises being

searched at the same time.

154Q Occupier to provide reasonable facilities and assistance

The occupier of premises in relation to which a search warrant is

being executed must provide the executing officer and any officer

assisting with all reasonable facilities and assistance for the

effective exercise of their powers.

Penalty: 30 penalty units.

154R Answering of questions or producing evidential material

(1) If a search warrant in relation to premises is being executed, the

executing officer or an officer assisting may:

(a) require a person at the premises to answer questions or

produce evidential material to which the warrant relates; and

(b) seize that evidential material.

(2) A person commits an offence if the person fails to comply with a

requirement under subsection (1).

Penalty: 30 penalty units or imprisonment for 12 months, or both.

Self-incrimination is no excuse

(3) An individual is not excused from answering a question or

producing evidential material on the ground that the answer, or the

production of the material, might tend to incriminate the individual

or make the individual liable to a penalty.

(4) However, the answer is not admissible in evidence against the

individual in any criminal proceedings, other than:

(a) proceedings for an offence against subsection (2); or

(b) proceedings for an offence against section 137.1, 137.2 or

149.1 of the Criminal Code that relates to this Part.

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Section 154RA

438 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

154RA Person with computer knowledge to assist access etc.

(1) The executing officer for a search warrant may apply to a

magistrate for an order requiring a specified person to provide any

information or assistance that is reasonable and necessary to allow

the officer to do one or more of the following:

(a) access data held in, or accessible from, a computer that is on

premises to which the warrant relates;

(b) transfer the data to a disk, tape or other storage device;

(c) convert the data into documentary form.

(2) The magistrate may grant the order if the magistrate is satisfied

that:

(a) there are reasonable grounds for suspecting that evidential

material is held in, or is accessible from, the computer; and

(b) the specified person is:

(i) reasonably suspected of having committed the

contravention, or one or more of the contraventions,

stated in the search warrant; or

(ii) the owner or lessee of the computer; or

(iii) an employee of the owner or lessee of the computer; and

(c) the specified person has relevant knowledge of:

(i) the computer or a computer network of which the

computer forms a part; or

(ii) measures applied to protect data held in, or accessible

from, the computer.

(3) A person commits an offence if:

(a) the person is subject to an order under this section; and

(b) the person engages in conduct; and

(c) the person’s conduct breaches the order.

Penalty for a contravention of this subsection: Imprisonment for

6 months.

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Section 154S

Competition and Consumer Act 2010 439

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision E—General provisions relating to seizure

154S Copies of seized things to be provided

(1) If, under a search warrant relating to premises, the executing

officer or an officer assisting seizes:

(a) a document, film, computer file or other thing that can be

readily copied; or

(b) a storage device the information in which can be readily

copied;

then he or she must, if requested to do so by the occupier of the

premises, give a copy of the thing or the information to the

occupier as soon as practicable after the seizure.

(2) However, subsection (1) does not apply if possession of the

document, film, computer file, thing or information by the occupier

could constitute an offence against a law of the Commonwealth.

154T Receipts for things seized or moved under warrant

(1) If a thing is seized under a search warrant or moved under

subsection 154GA(1), the executing officer or an officer assisting

must provide a receipt for the thing.

(2) If 2 or more things are seized or moved, they may be covered in

the one receipt.

154U Return of seized things

(1) Subject to any contrary order of a court, if a person (the seizer)

seizes a thing under this Division, the person must return it if:

(a) the reason for its seizure no longer exists or it is decided that

it is not to be used in evidence; or

(b) the period of 120 days after its seizure ends;

whichever first occurs, unless the thing is forfeited or forfeitable to

the Commonwealth or is the subject of a dispute as to ownership.

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Section 154V

440 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) At the end of the 120 days specified in subsection (1), the seizer

must take reasonable steps to return the thing to the person from

whom it was seized (or to the owner if that person is not entitled to

possess it), unless:

(a) proceedings in respect of which the thing may afford

evidence were instituted before the end of the 120 days and

have not been completed (including an appeal to a court in

relation to those proceedings); or

(b) an inspector may retain the thing because of an order under

section 154V; or

(c) the seizer is otherwise authorised (by a law, or an order of a

court, of the Commonwealth or of a State or Territory) to

retain, destroy or dispose of the thing.

154V Magistrate may permit a thing to be retained

Application for extension

(1) An inspector may apply to a magistrate for an order that he or she

may retain the thing for a further period if:

(a) before the end of 120 days after the seizure; or

(b) before the end of a period previously specified in an order of

a magistrate under this section;

proceedings in respect of which the thing may afford evidence

have not commenced.

Grant of extension

(2) If the magistrate is satisfied that it is necessary for the inspector to

continue to retain the thing for the purposes of an investigation as

to whether there has been:

(a) a contravention of this Act; or

(b) a contravention of Part 20 of the Telecommunications Act

1997; or

(c) a contravention of Part 9 of the Telecommunications

(Consumer Protection and Service Standards) Act 1999; or

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Section 154W

Competition and Consumer Act 2010 441

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(d) a contravention of section 137.1, 137.2 or 149.1 of the

Criminal Code that relates to this Part;

the magistrate may order that the inspector may retain the thing for

a period (not exceeding 3 years) specified in the order.

Affect on interested parties

(3) Before making the application, the inspector must:

(a) take reasonable steps to discover who has an interest in the

retention of the thing; 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.

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

located

If:

(a) a thing is seized under this Division; and

(b) a person would otherwise be required to return the thing to its

owner; and

(c) there is no owner or the person cannot, despite making

reasonable efforts, locate the owner;

the person may dispose of the thing in such manner as he or she

thinks appropriate.

Subdivision F—Search warrants

154X Issue of search warrants

Application for warrant

(1) An inspector may apply to a magistrate for a warrant under this

section in relation to premises.

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Section 154X

442 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Issue of warrant

(2) The magistrate may issue the warrant if the magistrate is satisfied,

by information on oath or affirmation, that there are reasonable

grounds for suspecting that:

(a) there is evidential material on the premises; or

(b) there may be evidential material on the premises within the

next 72 hours.

Note: A magistrate who holds office under a law of a State or Territory may

issue a warrant in relation to premises even if those premises are not

in that State or Territory.

(3) However, the magistrate must not issue the warrant unless the

inspector or some other person has given to the magistrate, either

orally or by affidavit, such further information (if any) as the

magistrate requires concerning the grounds on which the issue of

the warrant is being sought.

Content of warrant

(4) The warrant must state:

(a) a description of the premises to which the warrant relates;

and

(b) the kind of evidential material that is to be searched for under

the warrant (including stating the contraventions to which the

warrant relates); and

(c) the name of the inspector who is to be responsible for

executing the warrant; and

(d) whether the warrant may be executed at any time of the day

or night or during specified hours of the day or night; and

(e) the day (not more than one week after the issue of the

warrant) on which the warrant ceases to have effect.

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154Y Search warrants by telephone, fax etc.

Application for warrant

(1) If, in an urgent case, an inspector considers it necessary to do so,

the inspector may apply to a magistrate by telephone, fax or other

electronic means for a warrant under section 154X in relation to

premises.

Voice communication

(2) The magistrate may require communication by voice to the extent

that it is practicable in the circumstances.

Information

(3) Before applying for the warrant, the inspector must prepare an

information of the kind mentioned in subsection 154X(2) in

relation to the premises that sets out the grounds on which the

warrant is sought. If it is necessary to do so, the inspector may

apply for the warrant before the information is sworn or affirmed.

Issue of warrant

(4) If the magistrate is satisfied:

(a) after having considered the terms of the information; and

(b) after having received such further information (if any) as the

magistrate requires concerning the grounds on which the

issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the

magistrate may complete and sign the same warrant that the

magistrate would issue under section 154X if the application had

been made under that section.

Notification

(5) If the magistrate completes and signs the warrant, the magistrate

must inform the applicant, by telephone, fax or other electronic

means, of:

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(a) the terms of the warrant; and

(b) the day on which and the time at which the warrant was

signed; and

(c) the day (not more than one week after the magistrate

completes and signs the warrant) on which the warrant ceases

to have effect.

Form of warrant

(6) The applicant must then complete a form of warrant in the same

terms as the warrant completed and signed by the magistrate,

stating on the form the name of the magistrate and the day on

which and the time at which the warrant was signed.

Completed form of warrant to be given to magistrate

(7) The applicant must also, not later than the day after the day of

expiry or execution of the warrant, whichever is the earlier, send to

the magistrate:

(a) the form of warrant completed by the applicant; and

(b) the information referred to in subsection (3), which must

have been duly sworn or affirmed.

Attachment

(8) The magistrate is to attach to the documents provided under

subsection (7) the warrant completed by the magistrate.

Authority of warrant

(9) A form of warrant duly completed under subsection (6) is authority

for the same powers as are authorised by the warrant signed by the

magistrate.

(10) 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

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(b) the warrant signed by the magistrate 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.

154Z Offences relating to warrants

(1) An inspector must not make, in an application for a warrant, a

statement that the inspector knows to be false or misleading in a

material particular.

Penalty: Imprisonment for 2 years.

(2) An inspector must not:

(a) state in a document that purports to be a form of warrant

under section 154Y the name of a magistrate unless that

magistrate issued the warrant; or

(b) state on a form of warrant under that section a matter that, to

the inspector’s knowledge, departs in a material particular

from the form authorised by the magistrate; or

(c) purport to execute, or present 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 magistrate under that

section; or

(ii) departs in a material particular from the terms

authorised by a magistrate under that section; or

(d) give to a magistrate a form of warrant under that section that

is not the form of warrant that the inspector purported to

execute.

Penalty: Imprisonment for 2 years.

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Subdivision G—Powers of magistrates

154ZA Powers conferred on magistrates

(1) A power conferred on a magistrate by this Division is conferred on

the magistrate in a personal capacity and not as a court or a

member of a court. The magistrate need not accept the power

conferred.

(2) A magistrate exercising such a power has the same protection and

immunity as if he or she were exercising that power as, or as a

member of, the court of which the magistrate is a member.

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Division 5—General provisions relating to electronic

equipment

154ZB Operation of electronic equipment at premises

A person may operate electronic equipment at premises in order to

exercise a power under this Part only if he or she believes on

reasonable grounds that the operation of the equipment can be

carried out without damage to the equipment.

154ZC Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of electronic equipment being operated as

mentioned in section 154E, 154F, 154G, 154H or 154J:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

damage or corruption as the Commonwealth and the owner or user

agree on.

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in the Federal

Court of Australia for such reasonable amount of compensation as

the Court determines.

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(4) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises, or the occupier’s

employees and agents, if they were available at the time, provided

any appropriate warning or guidance on the operation of the

equipment.

(5) Compensation is payable out of money appropriated by the

Parliament.

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

damage, in relation to data, includes damage by erasure of data or

addition of other data.

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Part XII—Miscellaneous

155 Power to obtain information, documents and evidence

(1) Subject to subsection (2A), if the Commission, the Chairperson or

a Deputy Chairperson has reason to believe that a person is capable

of furnishing information, producing documents or giving evidence

relating to a matter that constitutes, or may constitute, a

contravention of this Act or Division 4A or 4B of Part 3.3 of the

Radiocommunications Act 1992, or is relevant to a designated

communications matter (as defined by subsection (9)) or a

designated water matter (as defined by subsection (9A)) or is

relevant to the making of a decision by the Commission under

subsection 91B(4), 91C(4), 93(3) or (3A) or 93AC(1) or (2) or

95AS(7) or the making of an application under

subsection 95AZM(6), a member of the Commission may, by

notice in writing served on that person, require that person:

(a) to furnish to the Commission, by writing signed by that

person or, in the case of a body corporate, by a competent

officer of the body corporate, within the time and in the

manner specified in the notice, any such information;

(b) to produce to the Commission, or to a person specified in the

notice acting on its behalf, in accordance with the notice, any

such documents; or

(c) to appear before the Commission, or before a member of the

staff assisting the Commission who is an SES employee or an

acting SES employee and who is specified in the notice, at a

time and place specified in the notice to give any such

evidence, either orally or in writing, and produce any such

documents.

(2A) A member of the Commission may not give a notice under

subsection (1) merely because:

(a) a person has refused or failed to comply with a notice under

subsection 95ZK(1) or (2) on the ground that complying with

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the notice would tend to incriminate the person, or to expose

the person to a penalty; or

(b) a person has refused or failed to answer a question that the

person was required to answer by the person presiding at an

inquiry under Part VIIA, on the ground that the answer

would tend to incriminate the person, or to expose the person

to a penalty; or

(c) a person has refused or failed to produce a document referred

to in a summons under subsection 95S(3), on the ground that

production of the document would tend to incriminate the

person, or to expose the person to a penalty.

(3) If a notice under subsection (1) requires a person to appear before

the Commission to give evidence, the Commission may require the

evidence to be given on oath or affirmation. For that purpose, any

member of the Commission may administer an oath or affirmation.

(3A) If a notice under subsection (1) requires a person to appear before a

member of the staff assisting the Commission to give evidence, the

staff member may require the evidence to be given on oath or

affirmation and may administer an oath or affirmation.

(4) A member of the Commission may exercise, or continue to

exercise, a power under subsection (1) in relation to a matter

referred to in that subsection until:

(a) the Commission commences proceedings in relation to the

matter (other than proceedings for an injunction, whether

interim or finan( � or

(b) the close of pleadings in relation to an application by the

Commission for a final injunction in relation to the matter.

(5) A person shall not:

(a) refuse or fail to comply with a notice under this section;

(b) in purported compliance with such a notice, knowingly

furnish information or give evidence that is false or

misleading.

(5A) Paragraph (5)(a) does not apply to the extent that the person is not

capable of complying with the notice.

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Note: A defendant bears an evidential burden in relation to the matters in

subsection (5A), see subsection 13.3(3) of the Criminal Code.

(6A) A person who contravenes subsection (5) is guilty of an offence

punishable on conviction by a fine not exceeding 20 penalty units

or imprisonment for 12 months.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with

penalties.

(7) A person is not excused from furnishing information or producing

a document in pursuance of this section on the ground that the

information or document may tend to incriminate the person or

expose the person to a penalty, but the answer by an individual to

any question asked in a notice under this section or the furnishing

by an individual of any information in pursuance of such a notice is

not admissible in evidence against the individual in any criminal

proceedings, other than:

(a) proceedings for an offence against this section; or

(b) proceedings for an offence against section 137.1, 137.2 or

149.1 of the Criminal Code that relates to this section.

(7A) This section does not require a person:

(a) to give information or evidence that would disclose the

contents of a document prepared for the purposes of a

meeting of the Cabinet of a State or Territory; or

(b) to produce a document prepared for the purposes of a

meeting of the Cabinet of a State or Territory; or

(c) to give information or evidence, or to produce a document,

that would disclose the deliberations of the Cabinet of a State

or Territory.

Note: A defendant bears an evidential burden in relation to the matters in

subsection (7A), see subsection 13.3(3) of the Criminal Code.

(7B) This section does not require a person to produce a document that

would disclose information that is the subject of legal professional

privilege.

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Note: A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

(8) Nothing in this section implies that notices may not be served

under this section and section 155A in relation to the same

conduct.

(9) A reference in this section to a designated communications matter

is a reference to the performance of a function, or the exercise of a

power, conferred on the Commission by or under:

(a) the Telecommunications Act 1997; or

(b) the Telecommunications (Consumer Protection and Service

Standards) Act 1999; or

(ba) the National Broadband Network Companies Act 2011; or

(c) Part XIB or XIC of this Act; or

(d) Division 4A or 4B of Part 3.3 of the Radiocommunications

Act 1992.

(9A) A reference in this section to a designated water matter is a

reference to the performance of a function, or the exercise of a

power, conferred on the Commission by or under:

(a) Part 4 or 4A of the Water Act 2007; or

(b) regulations made under that Act for the purposes of Part 4 of

that Act; or

(c) water charge rules, or water market rules, made under Part 4

of that Act.

(10) In this section:

legal professional privilege includes privilege under Division 1 of

Part 3.10 of the Evidence Act 1995.

155AAA Protection of certain information

(1) A Commission official must not disclose any protected information

to any person except:

(a) when the Commission official is performing duties or

functions as a Commission official; or

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(b) when the Commission official or the Commission is required

or permitted by:

(i) this Act or any other law of the Commonwealth; or

(ii) a prescribed law of a State or internal Territory;

to disclose the information.

(2) Subsection (1) does not allow a Commission official to disclose

protected information when performing a function of the

Commission described in section 28.

Disclosure to Ministers

(3) A Commission official may disclose protected information to the

designated Minister.

(4) If protected information relates to a matter arising under:

(a) a provision of this Act; or

(b) a provision of another Act;

that is administered by a Minister other than the designated

Minister, a Commission official may disclose the protected

information to the other Minister.

(5) Subsection (4) does not limit subsection (3).

Disclosure to Secretaries etc.

(6) A Commission official may disclose protected information to:

(a) the Secretary of the designated Department; or

(b) an officer of the designated Department who is authorised by

the Secretary of that Department, in writing, for the purposes

of this subsection;

for the purpose of advising the designated Minister.

(7) If protected information relates to a matter arising under:

(a) a provision of this Act; or

(b) a provision of another Act;

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that is administered by a Minister other than the designated

Minister, a Commission official may disclose the protected

information to:

(c) the Secretary of the Department that is administered by the

other Minister; or

(d) an officer of that Department who is authorised by the

Secretary of that Department, in writing, for the purposes of

this subsection;

for the purpose of advising the other Minister.

(8) Subsection (7) does not limit subsection (6).

Disclosure to a Royal Commission

(9) A Commission official may disclose protected information to a

Royal Commission.

(10) The Chairperson may, by writing, impose conditions to be

complied with in relation to protected information disclosed under

subsection (9).

(11) An instrument under subsection (10) is not a legislative instrument.

Disclosure to certain agencies, bodies and persons

(12) If the Chairperson is satisfied that particular protected information

will enable or assist any of the following agencies, bodies or

persons:

(a) the Australian Bureau of Statistics;

(b) the Australian Communications and Media Authority;

(c) the Australian Prudential Regulation Authority;

(d) the Australian Securities and Investments Commission;

(e) the National Competition Council;

(f) the Productivity Commission;

(g) any other agency within the meaning of the Freedom of

Information Act 1982;

(h) the Australian Statistician;

(i) the Commissioner of Taxation;

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(j) the Australian Competition Tribunal;

(k) the Director of Public Prosecutions;

(l) the Reserve Bank of Australia;

(la) the Clean Energy Regulator;

(lb) the Climate Change Authority;

(m) a State/Territory government body;

(n) a foreign government body;

to perform or exercise any of the functions or powers of the

agency, body or person, an authorised Commission official may

disclose that protected information to the agency, body or person

concerned.

(13) The Chairperson may, by writing, impose conditions to be

complied with in relation to protected information disclosed under

subsection (12).

(14) An instrument under subsection (13) is not a legislative instrument.

Disclosure with consent

(15) A Commission official may disclose protected information that

relates to the affairs of a person if:

(a) the person has consented to the disclosure; and

(b) the disclosure is in accordance with that consent.

Disclosure of publicly available information

(16) A Commission official may disclose protected information if it is

already publicly available.

Disclosure of summaries or statistics

(17) A Commission official may disclose:

(a) summaries of protected information; or

(b) statistics derived from protected information;

if those summaries or statistics, as the case may be, are not likely

to enable the identification of a person.

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Disclosure authorised by regulations

(18) The regulations may:

(a) authorise a Commission official to disclose protected

information in specified circumstances; and

(b) provide that the Chairperson may, by writing, impose

conditions to be complied with in relation to the disclosure of

protected information in those circumstances.

(19) An instrument under regulations made for the purposes of

paragraph (18)(b) is not a legislative instrument.

Delegation

(20) The Chairperson may, by writing, delegate any or all of his or her

functions and powers under:

(a) this section; or

(b) regulations made for the purposes of subsection (18);

to a member of the Commission.

Definitions

(21) In this section:

authorised Commission official means a Commission official

authorised by the Chairperson, in writing, for the purposes of this

section.

Commission official means:

(a) a member, or associate member, of the Commission; or

(b) a person referred to in subsection 27(1); or

(c) a person engaged under section 27A.

core statutory provision means:

(a) a provision of Part IV, V, VII, VIII, XI, XIB or XIC; or

(b) the remaining provisions of this Act so far as they relate to a

provision covered by paragraph (a); or

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(c) a provision of the regulations made under section 172 so far

as it relates to a provision covered by paragraph (a) or (b); or

(d) a provision of the Australian Consumer Law (other than

Part 5-3); or

(e) a provision of the regulations made under section 139G so far

as it relates to a provision covered by paragraph (d).

designated Department means the Department that is responsible

for the administration of this section (other than subsections (4)

and (7)).

designated Minister means the Minister who is responsible for the

administration of this section (other than subsections (4) and (7)).

disclose means divulge or communicate.

foreign country includes a region where:

(a) the region is a colony, territory or protectorate of a foreign

country; or

(b) the region is part of a foreign country; or

(c) the region is under the protection of a foreign country; or

(d) a foreign country exercises jurisdiction or control over the

region; or

(e) a foreign country is responsible for the region’s international

relations.

foreign government body means:

(a) the government of a foreign country; or

(b) an agency or authority of a foreign country; or

(c) the government of part of a foreign country; or

(d) an agency or authority of part of a foreign country.

information includes information in a document and information

given in evidence.

protected information means:

(a) information that:

(i) was given in confidence to the Commission; and

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(ii) relates to a matter arising under a core statutory

provision; or

(b) information that:

(i) was obtained by the Commission under Part XID or

section 155; and

(ii) relates to a matter arising under a core statutory

provision; or

(ba) information that was obtained by the Commission under

paragraph 60FD(2)(b) or section 60FA or 60H; or

(c) information that:

(i) was obtained by the Commission under section 151AU,

152AU, 152CBB or 152CBH or rules in force under

section 151BU; and

(ii) relates to a matter arising under Part XIB or XIC; or

(d) information that was obtained by the Commission under

section 118C, 118G, 118NE or 118NI of the

Radiocommunications Act 1992; or

(e) information that:

(i) was given in confidence to the Commission by a foreign

government body; and

(ii) relates to a matter arising under a provision of a law of a

foreign country or of a part of a foreign country; or

(f) information that:

(i) was obtained by the Commission under section 155; and

(ii) relates to a designated water matter within the meaning

of that section.

For the purposes of this definition, it is immaterial whether the

information was given to or obtained by the Commission before, at

or after the commencement of this section.

Royal Commission has the same meaning as in the Royal

Commissions Act 1902.

State/Territory government body means:

(a) the government of a State or Territory; or

(b) an agency or authority of a State or Territory.

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155AA Protection of Part VB information

(1) A Commission official must not disclose any protected Part VB

information to any person, except:

(a) when the Commission official is performing duties or

functions as a Commission official; or

(b) when the Commission official or the Commission is required

or permitted by law to disclose the information.

(2) Subsection (1) does not allow a Commission official to disclose

protected Part VB information when performing a function of the

Commission described in section 28.

(3) In this section:

Commission official means:

(a) a member, or associate member, of the Commission;

(b) a person referred to in subsection 27(1);

(c) a person engaged under section 27A.

disclose means divulge or communicate.

information includes information in a document and information

given in evidence.

protected Part VB information means:

(a) information that:

(i) was obtained by the Commission under Part XID or

section 155; and

(ii) relates to a matter that arose under Part VB before its

repeal by item 32 of Schedule 1 to the Statute Stocktake

(Regulatory and Other Laws) Act 2009; or

(b) information that was obtained by the Commission under

section 75AY before its repeal by item 32 of Schedule 1 to

the Statute Stocktake (Regulatory and Other Laws) Act 2009.

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155A Power to obtain information and documents in New Zealand

relating to trans-Tasman markets

(1) Where the Commission, the Chairperson or a Deputy Chairperson

has reason to believe that a person is capable of furnishing

information or producing documents relating to a matter that

constitutes, or may constitute, a contravention of section 46A, a

member of the Commission may, by written notice served on the

person in New Zealand, require the person:

(a) to furnish to the Commission, by writing signed by the

person or, in the case of a body corporate, by a competent

officer of the body corporate, within the time and in the

manner specified in the notice, any such information; or

(b) to produce to the Commission, or to a person specified in the

notice acting on behalf of the Commission, in accordance

with the notice, any such documents.

(2) The person may comply with the notice by providing the

information or document to the New Zealand Commerce

Commission for transmission to the Australian Competition and

Consumer Commission.

(3) Nothing in this section implies that notices may not be served

under this section and section 155 in relation to the same conduct.

(4) This section binds the Crown in all its capacities.

155B Australian Competition and Consumer Commission may

receive information and documents on behalf of New

Zealand Commerce Commission

(1) Where, by notice under section 98H of the Commerce Act 1986 of

New Zealand, the New Zealand Commerce Commission requires a

person to furnish any information or produce any document, the

information or document may be provided to the Australian

Competition and Consumer Commission for transmission to the

New Zealand Commerce Commission.

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(2) As soon as practicable after the information or document is

provided to the Australian Competition and Consumer

Commission, the Australian Competition and Consumer

Commission is to transmit it to the New Zealand Commerce

Commission.

(3) A person must not:

(a) contravene a notice under section 98H of the Commerce Act

1986 of New Zealand; or

(b) in purported compliance with such a notice, knowingly

furnish information that is false or misleading in a material

particular.

Penalty: 20 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with

penalties.

(3A) Paragraph (3)(a) does not apply if the person has a reasonable

excuse.

Note: A defendant bears an evidential burden in relation to the matters in

subsection (3A), see subsection 13.3(3) of the Criminal Code.

(4) A person is not excused from furnishing information or producing

a document under a notice under section 98H of the Commerce Act

1986 of New Zealand on the ground that the information, or the

production of the document, may tend to incriminate the person,

but:

(a) any information furnished or document produced under such

a notice; and

(b) any information, document or thing obtained as a direct or

indirect consequence of furnishing the information or

producing the document;

is not admissible in evidence against the person in any criminal

proceedings, other than proceedings for an offence against

subsection (3).

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(5) This section binds the Crown in all its capacities, but nothing in

this section permits the Crown in any of its capacities to be

prosecuted for an offence.

(6) This section applies in and outside Australia.

156 Inspection of documents by Commission

(1) A member of the Commission, or a person authorized by a member

of the Commission, may inspect a document produced in

pursuance of a notice under section 155 or 155A and may make

copies of, or take extracts from, the document.

(2) The Commission may, for the purposes of this Act, take, and retain

for as long as is necessary for those purposes, possession of a

document produced in pursuance of a notice under section 155 or

155A but the person otherwise entitled to possession of the

document is entitled to be supplied, as soon as practicable, with a

copy certified by a member of the Commission under his or her

hand to be a true copy and the certified copy shall be received in all

courts as evidence as if it were the original.

(3) Until such a certified copy is supplied, the Commission shall, at

such times and places as it thinks appropriate, permit the person

otherwise entitled to possession of the document, or a person

authorized by that person, to inspect and make copies of or take

extracts from the document.

157 Disclosure of documents by Commission

(1) Subject to subsection (1A), if:

(a) a corporation makes an application to the Commission under

section 88, 91A, 91B or 91C or Subdivision B of Division 3

of Part VII; or

(b) the Commission proposes the revocation of an authorization

under subsection 91B(3) or the revocation of an authorization

and the substitution of another authorization under

subsection 91C(3); or

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(ba) the Commission proposes to revoke, or to revoke and

substitute, a clearance under section 95AS; or

(c) a proceeding is instituted against a corporation or other

person under section 77, 80, 80AC, 81 or 81A; or

(d) an application is made under, subsection 51ADB(1),

section 86C or 86D or subsection 87(1A) for an order against

a corporation or other person;

the Commission shall, at the request of the corporation or other

person and upon payment of the prescribed fee (if any), furnish to

the corporation or other person:

(e) a copy of every document that has been furnished to, or

obtained by, the Commission in connexion with the matter to

which the application, notice or proceeding relates and tends

to establish the case of the corporation or other person; and

(f) a copy of any other document in the possession of the

Commission that comes to the attention of the Commission

in connexion with the matter to which the application, notice

or proceeding relates and tends to establish the case of the

corporation or other person;

not being a document obtained from the corporation or other

person or prepared by an officer or professional adviser of the

Commission.

(1AA) Subject to subsections (1AB) and (1A), if an application for an

order against a person is made under:

(a) section 137F; or

(b) subsection 237(1), or section 246 or 247, of the Australian

Consumer Law;

the Commission must, at the request of the person and upon

payment of the prescribed fee (if any), give the person:

(c) a copy of every document that has been given to, or obtained

by, the Commission in connection with the matter to which

the application relates and tends to establish the case of the

person; and

(d) a copy of any other document in the possession of the

Commission that comes to the attention of the Commission

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in connection with the matter to which the application relates

and tends to establish the case of the person.

(1AB) Subsection (1AA) does not apply to a document obtained from the

person, or prepared by an officer or professional adviser of the

Commission.

Protected cartel information—Commission may refuse to comply

with request

(1A) If a request under subsection (1) relates to a document containing

protected cartel information, the Commission may refuse to

comply with the request.

(1B) In exercising its powers under subsection (1A), the Commission

must have regard to the following matters:

(a) the fact that the protected cartel information was given to the

Commission in confidence;

(b) Australia’s relations with other countries;

(c) the need to avoid disruption to national and international

efforts relating to law enforcement, criminal intelligence and

criminal investigation;

(d) in a case where the protected cartel information was given by

an informant:

(i) the protection or safety of the informant or of persons

associated with the informant; and

(ii) the fact that the production of a document containing

protected cartel information, or the disclosure of

protected cartel information, may discourage informants

from giving protected cartel information in the future;

(e) the legitimate interests of the corporation which, or the

person who, made the request under subsection (1);

(f) such other matters (if any) as the Commission considers

relevant.

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Court order

(2) If the Commission does not comply with a request under

subsection (1) otherwise than because of a refusal under

subsection (1A), the Court shall, subject to subsection (3), upon

application by the corporation which, or other person who, made

the request, make an order directing the Commission to comply

with the request.

(3) The Court may refuse to make an order under subsection (2) in

respect of a document or part of a document if the Court considers

it inappropriate to make the order by reason that the disclosure of

the contents of the document or part of the document would

prejudice any person, or for any other reason.

(4) Before the Court gives a decision on an application under

subsection (2), the Court may require any documents to be

produced to it for inspection.

(5) An order under this section may be expressed to be subject to

conditions specified in the order.

Definition

(6) In this section:

protected cartel information has the same meaning as in

section 157B.

157AA Disclosure of documents by Tribunal in relation to merger

authorisations

(1) If:

(a) a corporation makes an application to the Tribunal in relation

to an authorisation under Subdivision C of Division 3 of

Part VII; or

(b) the Tribunal proposes to revoke, or to revoke and substitute,

an authorisation granted to the corporation under

section 95AZM;

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the Tribunal must, at the request of the corporation and upon

payment of the prescribed fee (if any), give to the corporation:

(c) a copy of every document that has been given to, or obtained

by, the Tribunal in relation to the application or revocation

that tends to establish the corporation’s case; and

(d) a copy of any other document in the Tribunal’s possession

that comes to the Tribunal’s attention in relation to the

application or revocation that tends to establish the

corporation’s case.

(2) However, subsection (1) does not require the Tribunal to give to

the corporation a document that was:

(a) obtained from the corporation; or

(b) prepared by an officer or professional adviser of the Tribunal.

(3) If the Tribunal does not comply with a requirement under

subsection (1), then, subject to subsection (4), the Court must, upon

application by the corporation, make an order directing the

Tribunal to comply with the requirement.

(4) The Court may refuse to make an order under subsection (3) in

respect of a document or part of a document if the Court considers

it inappropriate to make the order by reason that the disclosure of

the contents of the document or part of the document would

prejudice any person, or for any other reason.

(5) Before the Court gives a decision on an application under

subsection (3), the Court may require any documents to be

produced to it for inspection.

(6) An order under this section may be expressed to be subject to

conditions specified in the order.

157A Disclosure of information by Commission

(1) The Commission or a Commission official may disclose to:

(a) the AER; or

(b) the AEMC; or

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(c) any staff or consultant assisting the AER or the AEMC in

performing its functions or exercising its powers;

any information that it obtains under this Act that is relevant to the

functions or powers of the AER or the AEMC.

Note: The Privacy Act 1988 also contains provisions relevant to the use and

disclosure of information.

(2) The AER or a person mentioned in paragraph (1)(c) may use the

information for any purpose connected with the performance of the

AER’s functions or the exercise of its powers.

(3) The AEMC or a person mentioned in paragraph (1)(c) may use the

information for any purpose connected with the performance of the

AEMC’s functions or the exercise of its powers.

(4) The Commission or a Commission official may impose conditions

to be complied with in relation to information disclosed.

(5) In this section:

Commission official means:

(a) a member, or associate member, of the Commission; or

(b) a person referred to in subsection 27(1); or

(c) a person engaged under section 27A.

157B Disclosure of protected cartel information to a court or

tribunal

Commission or a Commission official not required to disclose

protected cartel information

(1) The Commission or a Commission official is not to be required:

(a) to produce to a court or tribunal a document containing

protected cartel information; or

(b) to disclose protected cartel information to a court or tribunal;

except with the leave of the court or tribunal.

(2) In exercising its powers to grant leave under subsection (1), the

court or tribunal must have regard to the following matters:

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(a) the fact that the protected cartel information was given to the

Commission in confidence;

(b) Australia’s relations with other countries;

(c) the need to avoid disruption to national and international

efforts relating to law enforcement, criminal intelligence and

criminal investigation;

(d) in a case where the protected cartel information was given by

an informant:

(i) the protection or safety of the informant or of persons

associated with the informant; and

(ii) the fact that the production of a document containing

protected cartel information, or the disclosure of

protected cartel information, may discourage informants

from giving protected cartel information in the future;

(e) in the case of a court—the interests of the administration of

justice;

(f) in the case of a tribunal—the interests of securing the

effective performance of the tribunal’s functions;

and must not have regard to any other matters.

(3) If:

(a) a document is produced; or

(b) information is disclosed;

to a court or tribunal in accordance with leave granted under

subsection (1) in relation to particular proceedings, the document

or information must not be adduced in other proceedings before the

court or tribunal except:

(c) in accordance with leave granted under subsection (1) in

relation to the other proceedings; or

(d) as a result of an exercise of power under subsection (4) in

relation to the other proceedings.

Commission or a Commission official may disclose protected

cartel information

(4) The Commission or a Commission official may:

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(a) produce to the court or tribunal a document containing

protected cartel information; or

(b) disclose protected cartel information to the court or tribunal.

(5) In exercising the powers conferred by subsection (4), the

Commission or Commission official must have regard to the

following matters:

(a) the fact that the protected cartel information was given to the

Commission in confidence;

(b) Australia’s relations with other countries;

(c) the need to avoid disruption to national and international

efforts relating to law enforcement, criminal intelligence and

criminal investigation;

(d) in a case where the protected cartel information was given by

an informant:

(i) the protection or safety of the informant or of persons

associated with the informant; and

(ii) the fact that the production of a document containing

protected cartel information, or the disclosure of

protected cartel information, may discourage informants

from giving protected cartel information in the future;

(e) in the case of production or disclosure to a court—the

interests of the administration of justice;

(f) in the case of production or disclosure to a tribunal—the

interests of securing the effective performance of the

tribunal’s functions;

and must not have regard to any other matters.

(6) If:

(a) a document is produced; or

(b) information is disclosed;

to a court or tribunal as a result of an exercise of power under

subsection (4) in relation to particular proceedings, the document

or information must not be adduced in other proceedings before the

court or tribunal except:

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(c) in accordance with leave granted under subsection (1) in

relation to the other proceedings; or

(d) as a result of an exercise of power under subsection (4) in

relation to the other proceedings.

Definitions

(7) In this section:

Commission official means:

(a) a member, or associate member, of the Commission; or

(b) a person referred to in subsection 27(1); or

(c) a person engaged under section 27A.

disclose means divulge or communicate.

protected cartel information means information that:

(a) was given to the Commission in confidence; and

(b) relates to a breach, or a possible breach, of section 44ZZRF,

44ZZRG, 44ZZRJ or 44ZZRK.

157C Disclosure of protected cartel information to a party to court

proceedings etc.

Commission or Commission official not required to make discovery

of documents containing protected cartel information etc.

(1) If:

(a) a person is a party to proceedings before a court; and

(b) the Commission is not a party to the proceedings;

the Commission or a Commission official is not to be required, in

connection with the proceedings, to:

(c) make discovery (however described) to the person of a

document containing protected cartel information; or

(d) produce to the person a document containing protected cartel

information.

(2) If:

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(a) a person is considering instituting proceedings before a court;

and

(b) the proceedings have not yet been instituted;

the Commission or a Commission official is not to be required, in

connection with the prospective proceedings, to:

(c) make discovery (however described) to the person of a

document containing protected cartel information; or

(d) produce to the person a document containing protected cartel

information.

Commission or Commission official may disclose protected cartel

information

(3) If:

(a) a person is a party to proceedings before a court; and

(b) the Commission is not a party to the proceedings;

the Commission or a Commission official may, on application by

the person:

(c) make a copy of a document containing protected cartel

information; and

(d) give the copy to the person.

(4) If:

(a) a person is considering instituting proceedings before a court;

and

(b) the proceedings have not yet been instituted;

the Commission or a Commission official may, on application by

the person:

(c) make a copy of a document containing protected cartel

information; and

(d) give the copy to the person.

(5) In exercising the powers conferred by subsection (3) or (4), the

Commission or Commission official must have regard to the

following matters:

(a) the fact that the protected cartel information was given to the

Commission in confidence;

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(b) Australia’s relations with other countries;

(c) the need to avoid disruption to national and international

efforts relating to law enforcement, criminal intelligence and

criminal investigation;

(d) in a case where the protected cartel information was given by

an informant:

(i) the protection or safety of the informant or of persons

associated with the informant; and

(ii) the fact that the production of a document containing

protected cartel information, or the disclosure of

protected cartel information, may discourage informants

from giving protected cartel information in the future;

(e) the interests of the administration of justice;

and must not have regard to any other matters.

(6) If a copy of a document is given to a party, or prospective party, to

proceedings before a court as a result of an exercise of power under

subsection (3) or (4), the copy must not be adduced in other

proceedings before:

(a) the court; or

(b) another court; or

(c) a tribunal;

except:

(d) as a result of an exercise of power under subsection (3) or (4)

in relation to the other proceedings; or

(e) in accordance with leave granted under subsection 157B(1)

in relation to the other proceedings; or

(f) as a result of an exercise of power under subsection 157B(4)

in relation to the other proceedings.

Definitions

(7) In this section:

Commission official means:

(a) a member, or associate member, of the Commission; or

(b) a person referred to in subsection 27(1); or

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(c) a person engaged under section 27A.

protected cartel information means information that:

(a) was given to the Commission in confidence; and

(b) relates to a breach, or a possible breach, of section 44ZZRF,

44ZZRG, 44ZZRJ or 44ZZRK.

157D General powers of a court

Power of a court in a criminal or civil proceeding

(1) The power of a court to control the conduct of a criminal or civil

proceeding, in particular with respect to abuse of process, is not

affected by section 157B or 157C, except so far as that section

expressly or impliedly provides otherwise.

Stay order—criminal proceeding

(2) A refusal by a court to grant leave under subsection 157B(1) does

not prevent the court from later ordering that a criminal proceeding

be stayed on the ground that the refusal would have a substantial

adverse effect on a defendant’s right to receive a fair hearing.

Stay order—civil proceeding

(3) A refusal by a court to grant leave under subsection 157B(1) does

not prevent the court from later ordering that a civil proceeding be

stayed on the ground that the refusal would have a substantial

adverse effect on the hearing in the proceeding.

(4) In deciding whether to order a stay of the civil proceeding, the

court must consider:

(a) the extent of any financial loss that a party would suffer as a

result of the proceeding being stayed; and

(b) whether a party has reasonable prospects of obtaining a

remedy in the proceeding; and

(c) any other matter the court considers relevant.

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158 Protection of members of Tribunal, counsel and witnesses

(1) A member of the Tribunal has, in the performance of his or her

duty as a member, the same protection and immunity as a Justice

of the High Court.

(2) A person appearing before the Tribunal on behalf of a person, or

assisting the Tribunal as counsel, has the same protection and

immunity as a barrister has in appearing for a party in proceedings

in the High Court.

(3) Subject to this Act, a person appearing before the Tribunal or the

Commission to give evidence has the same protection, and is, in

addition to the penalties provided by this Act, subject to the same

liabilities, in any civil or criminal proceedings as a witness in

proceedings in the High Court.

159 Incriminating answers

(1) A person appearing before the Commission to give evidence or

produce documents is not excused from answering a question, or

producing a document, on the ground that the answer to the

question, or the document, may tend to incriminate the person or

expose the person to a penalty.

(2) Evidence given by an individual before the Commission is not

admissible against the individual in any criminal proceedings,

other than:

(a) proceedings for an offence against this Part; or

(b) proceedings for an offence against section 137.1, 137.2 or

149.1 of the Criminal Code that relates to this Part.

160 Failure of witness to attend

(1) A person served, as prescribed, with a summons to appear as a

witness before the Tribunal shall not:

(a) fail to attend as required by the summons; or

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(b) fail to appear and report himself or herself from day to day

unless excused, or released from further attendance, by a

member of the Tribunal.

(1A) Subsection (1) does not apply if the person has a reasonable

excuse.

Note: A defendant bears an evidential burden in relation to the matters in

subsection (1A), see subsection 13.3(3) of the Criminal Code.

(2) A person who contravenes subsection (1) is guilty of an offence

punishable on conviction by a fine not exceeding 20 penalty units

or imprisonment for 12 months.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with

penalties.

161 Refusal to be sworn or to answer questions

(1) A person appearing as a witness before the Tribunal shall not:

(a) refuse or fail to be sworn or to make an affirmation;

(b) refuse or fail to answer a question that he or she is required to

answer by the member presiding at the proceedings; or

(c) refuse or fail to produce a document that he or she was

required to produce by a summons under this Act served on

him or her as prescribed.

(1A) Subsection (1) does not apply if the person has a reasonable

excuse.

Note: A defendant bears an evidential burden in relation to the matters in

subsection (1A), see subsection 13.3(3) of the Criminal Code.

(2) It is a reasonable excuse for an individual to refuse or fail to

answer a question that he or she is required to answer under this

section that the answer to the question may tend to incriminate him

or her.

Note: A defendant bears an evidential burden in relation to the matters in

subsection (2), see subsection 13.3(3) of the Criminal Code.

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(3) A person who contravenes subsection (1) is guilty of an offence

punishable on conviction by a fine not exceeding 20 penalty units

or imprisonment for 12 months.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with

penalties.

162 Contempt

(1) A person shall not:

(a) insult a member of the Tribunal, a member of the

Commission or an AER member in the exercise of his or her

powers or functions as a member;

(b) interrupt the proceedings of the Tribunal or a conference held

by the Commission under section 90 or 93A, Division 3 of

Part XI or section 151AZ;

(c) create a disturbance, or take part in creating or continuing a

disturbance, in or near a place where the Tribunal is sitting or

the Commission is holding such a conference; or

(d) do any other act or thing that would, if the Tribunal were a

court of record, constitute a contempt of that court.

(2) A person who contravenes subsection (1) is guilty of an offence

punishable on conviction by a fine not exceeding 20 penalty units

or imprisonment for 12 months.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with

penalties.

162A Intimidation etc.

A person who:

(a) threatens, intimidates or coerces another person; or

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(b) causes or procures damage, loss or disadvantage to another

person;

for or on account of that other person proposing to furnish or

having furnished information, or proposing to produce or having

produced documents, to the Commission, the Tribunal or the AER,

or for or on account of the other person proposing to appear or

having appeared as a witness before the Tribunal is guilty of an

offence punishable on conviction by a fine not exceeding 20

penalty units or imprisonment for 12 months.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with

penalties.

163 Prosecutions

(1) Prosecutions for offences against this Act may be brought in any

court having jurisdiction in the matter.

(2) In so far as this section has effect as a law of the Commonwealth,

the Federal Court has jurisdiction in any matter in respect of which

a criminal proceeding is instituted for an offence to which

subsection (1) applies, and that jurisdiction is exclusive of the

jurisdiction of any other court other than:

(a) the jurisdiction of a Supreme Court of a State or Territory

under section 68 of the Judiciary Act 1903 with respect to

any matter in respect of which a criminal proceeding is

instituted for an offence against section 44ZZRF or 44ZZRG;

and

(b) the jurisdiction of a court under section 68 of the Judiciary

Act 1903 with respect to the examination and commitment

for trial on indictment of a person who is charged with an

indictable offence; and

(c) the jurisdiction of the High Court under section 75 of the

Constitution.

(4) Proceedings under this section, other than proceedings instituted

by:

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(aa) the Director of Public Prosecutions; or

(a) the Commission; or

(b) a person authorised in writing by the Commission; or

(c) a person authorised in writing by the Secretary of the

Department;

shall not be instituted except with the consent in writing of the

Minister or of a person authorised by the Minister in writing to

give such consents.

(5) A prosecution for an offence against section 118, 154Q, 155 or

155B may be commenced at any time after the commission of the

offence.

(6) Despite subsection (2), the Federal Court does not have jurisdiction

in any matter in respect of which a criminal proceeding is instituted

for an offence against section 44ZZRF or 44ZZRG if the

proceeding is instituted before the commencement of Schedule 1 to

the Federal Court of Australia Amendment (Criminal Jurisdiction)

Act 2009.

163A Declarations and orders

Declarations and orders

(1) Subject to this section, a person may, in relation to a matter arising

under this Act, institute a proceeding in a court having jurisdiction

to hear and determine proceedings under this section seeking the

making of:

(a) a declaration in relation to the operation or effect of any

provision of this Act other than the following provisions:

(i) Part V;

(ii) Part XIB;

(iii) Part XIC; or

(aaa) a declaration in relation to the operation or effect of any

provision of the Australian Consumer Law other than

Division 1 of Part 3-2 or Part 5-4; or

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(aa) a declaration in relation to the validity of any act or thing

done, proposed to be done or purporting to have been done

under this Act; or

(b) an order by way of, or in the nature of, prohibition, certiorari

or mandamus;

or both such a declaration and such an order.

(1A) Subsection (1) does not apply in relation to a matter arising under

Part IIIAA.

When Minister may institute, or intervene in, proceedings

(2) Subject to subsection (2A), the Minister may institute a proceeding

under this section and may intervene in any proceeding instituted

under this section or in a proceeding instituted otherwise than

under this section in which a party is seeking the making of a

declaration of a kind mentioned in paragraph (1)(a) or (aa) or an

order of a kind mentioned in paragraph (1)(b).

(2A) Subsections (1) and (2) do not permit the Minister:

(a) to institute a proceeding seeking a declaration, or an order

described in paragraph (1)(b), that relates to Part IV; or

(b) to intervene in a proceeding so far as it relates to a matter that

arises under Part IV.

When Commission may institute proceedings

(3) The Commission may institute a proceeding in the Court seeking,

in relation to a matter arising under this Act, the making of a

declaration of the kind that may be made under paragraph (1)(a).

Jurisdiction of Federal Court

(3A) Subject to subsections (4B) and (4C), in so far as this section has

effect as a law of the Commonwealth, the Federal Court has

jurisdiction to hear and determine proceedings under this section.

(4) The jurisdiction of the Federal Court under subsection (3A) to

make:

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(a) a declaration in relation to the validity of any act or thing

done, proposed to be done or purporting to have been done

under this Act by the Tribunal; or

(b) an order of a kind mentioned in paragraph (1)(b) directed to

the Tribunal;

shall be exercised by not less than 3 Judges.

Jurisdiction of State/Territory Supreme Courts etc.

(4A) In so far as this section has effect as a law of the Commonwealth,

the Supreme Court of a State or Territory does not have

jurisdiction to hear and determine proceedings under this section

otherwise than in accordance with subsection (4B) or (4C). This

subsection has effect despite any other law, including section 39 of

the Judiciary Act 1903.

(4B) If a decision to prosecute a person for an offence against

section 44ZZRF or 44ZZRG has been made and the prosecution is

proposed to be commenced in the Supreme Court of a State or

Territory:

(a) the Federal Court does not have jurisdiction with respect to

any matter in which a person seeks the making of a

paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in

relation to that decision; and

(b) if the Supreme Court is the Supreme Court of a State—in so

far as this section has effect as a law of the Commonwealth,

the Supreme Court is invested with federal jurisdiction with

respect to any such matter; and

(c) if the Supreme Court is the Supreme Court of a Territory,

then:

(i) in so far as this section has effect as a law of the

Commonwealth; and

(ii) subject to the Constitution;

the Supreme Court is conferred with jurisdiction with respect

to any such matter.

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(4C) Subject to subsection (4D), at any time when:

(a) a prosecution for an offence against section 44ZZRF or

44ZZRG is before the Supreme Court of a State or Territory;

or

(b) an appeal arising out of such a prosecution is before the

Supreme Court of a State or Territory;

the following apply:

(c) the Federal Court does not have jurisdiction with respect to

any matter in which the person who is or was the defendant

in the prosecution seeks the making of a paragraph (1)(aa)

declaration, or a paragraph (1)(b) order, in relation to a

related criminal justice process decision;

(d) if the Supreme Court is the Supreme Court of a State—in so

far as this section has effect as a law of the Commonwealth,

the Supreme Court is invested with federal jurisdiction with

respect to any such matter;

(e) if the Supreme Court is the Supreme Court of a Territory,

then:

(i) in so far as this section has effect as a law of the

Commonwealth; and

(ii) subject to the Constitution;

the Supreme Court is conferred with jurisdiction with respect

to any such matter.

(4D) Subsection (4C) does not apply if, before the commencement of a

prosecution for an offence against section 44ZZRF or 44ZZRG, a

person seeks the making of a paragraph (1)(aa) declaration, or a

paragraph (1)(b) order, in relation to a related criminal justice

process decision.

(4E) If subsection (4D) applies, the prosecutor may apply to the Federal

Court for a permanent stay of the paragraph (1)(aa) or (b)

proceedings referred to in that subsection, and the Federal Court

may grant such a stay if the Federal Court determines that:

(a) the matters the subject of the proceedings are more

appropriately dealt with in the criminal justice process; and

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(b) a stay of proceedings will not substantially prejudice the

person.

Definitions

(5) In this section, proceeding includes a cross-proceeding.

(6) In this section:

related criminal justice process decision has the same meaning as

in section 39B of the Judiciary Act 1903.

165 Inspection of, furnishing of copies of, and evidence of,

documents

(1) A person may, on application in accordance with the regulations

and on payment of the prescribed fee (if any):

(a) inspect any document contained in the register kept under

subsection 89(3) or 95(1) or section 95AH; and

(b) obtain a copy of such a document (including, where the

person so requests, a copy certified to be a true copy under

the hand of a person authorized by the Commission to certify

such copies).

(2) Subject to subsection (3) and to any direction under

subsection 106(2), a person may, on application in accordance with

the regulations and on payment of the prescribed fee (if any):

(a) inspect the document recording a declaration under

section 50A or a determination of the Tribunal or any

document furnished to, or recorded in the records of, the

Tribunal in pursuance of this Act or the regulations; and

(b) obtain a copy of such a document (including, where the

person so requests, a copy certified to be a true copy under

the hand of the Registrar or of a Deputy Registrar).

(3) Unless the Tribunal in a particular case otherwise directs,

subsection (2) does not apply in relation to a document furnished to

the Tribunal if the person by whom the document was furnished

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claims, as prescribed, that the document contains matter of a

confidential nature.

(3A) Subject to any direction under subsection 106(2), a person may, on

application in accordance with the regulations and on payment of

the prescribed fee (if any):

(a) inspect any document contained in the register kept under

section 95AZ; and

(b) obtain a copy of such a document (including, where the

person so requests, a copy certified to be a true copy by the

Registrar or a Deputy Registrar).

(4) A copy of a determination of the Commission, certified to be a true

copy by a person authorized by the Commission to certify copies

of determinations of the Commission, shall be received in all

courts as evidence of the determination.

(5) A document purporting to be a copy of a determination of the

Commission and to be certified to be a true copy in accordance

with subsection (4) shall, unless the contrary is established, be

deemed to be such a copy and to be so certified.

(6) A copy of a declaration under section 50A or a determination of, or

undertaking given to, the Tribunal, certified to be a true copy under

the hand of the Registrar or of a Deputy Registrar, shall be

received in all courts as evidence of the declaration, determination

or undertaking.

166 Certificates as to furnishing of particulars to Commission

(1) Where particulars of, or of a provision of, a contract, arrangement

or understanding have been furnished to the Commission for the

purposes of paragraph 51(2)(g), the Commission shall, on

application by a party to the contract or to the arrangement or

understanding, cause to be furnished to the party a certificate

signed by a member of the Commission specifying the particulars

so furnished and the date on which the particulars were furnished.

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(2) A certificate referred to in subsection (1) shall be received in all

courts as evidence that the particulars specified in the certificate

were furnished to the Commission on the date so specified.

(3) A person is not entitled to inspect any particulars of, or of a

provision of, a contract, arrangement or understanding that have

been furnished to the Commission for the purposes of

paragraph 51(2)(g), but the Commission may make those

particulars available to the Minister or to an officer acting on

behalf of, and with the authority of, the Minister or to a court.

167 Judicial notice

(1) All courts shall take judicial notice of:

(a) the official signature of any person who holds or has held the

office of President, Deputy President, member of the

Tribunal, Chairperson, Deputy Chairperson, member of the

Commission, Registrar, Deputy Registrar, AER Chair or

AER member and of the fact that that person holds or has

held that office; and

(b) the official seal of the Tribunal, of the Commission or of the

AER;

if the signature or seal purports to be attached or appended to an

official document.

(1A) All courts must take judicial notice of:

(a) the official signature of a person who holds or has held the

office of Chairman, Deputy Chairman, or member (including

associate member) of the New Zealand Commerce

Commission and of the fact that the person holds or has held

the office; and

(b) the imprint of the common seal of the New Zealand

Commerce Commission;

if the signature or imprint purports to be attached or appended to an

official document.

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(2) In this section, court includes a Federal Court or a court of a State

or Territory and all persons authorized by law or by consent of

parties to receive evidence.

170 Legal and financial assistance

(1) A person:

(a) who has instituted, or proposes to institute, a proceeding

before the Commission or the Tribunal, or a proceeding

before the Court under Part IVB, Part VI or section 163A, or

under Part 3-5 or Chapter 5 of the Australian Consumer Law;

(b) who is entitled to participate, or has been permitted to

intervene, in a proceeding before the Commission or the

Tribunal; or

(c) against whom a proceeding before the Court has been

instituted under Part IVB, Part VI or section 163A, or under

Part 3-5 or Chapter 5 of the Australian Consumer Law;

may apply to the Attorney-General for a grant of assistance under

this section in respect of the proceeding.

(2) Where an application is made by a person under subsection (1), the

Attorney-General, or a person appointed or engaged under the

Public Service Act 1999 (the public servant) authorized in writing

by the Attorney-General, may, if he or she is satisfied that it would

involve hardship to that person to refuse the application and that, in

all the circumstances, it is reasonable that the application should be

granted, authorize the grant by the Commonwealth to the person,

either unconditionally or subject to such conditions as the

Attorney-General or public servant determines, of such legal or

financial assistance in relation to the proceeding as the

Attorney-General or public servant determines.

(3) In this section:

(a) a reference to a proceeding before the Commission is a

reference to a proceeding in relation to an application for, or

in relation to the revocation of, an authorisation under

Division 1 of Part VII or a clearance under Division 3 of

Part VII; and

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(b) a reference to a proceeding before the Tribunal is a reference

to:

(i) an application to the Tribunal for a declaration under

subsection 50A(1); or

(ii) a proceeding in relation to an application for, or the

revocation of, an authorisation under Division 3 of

Part VII; or

(iii) an application for a review of a determination, or of the

giving of a notice, by the Commission.

171 Annual report by Commission

(1) The Commission shall, within 60 days after each year ending on

30 June, furnish to the Minister, for presentation to the Parliament,

a report with respect to its operations in that year.

(2) The report must include a cumulative list of all Commonwealth,

State and Territory laws that the Commission knows about that

authorise things for the purposes of subsection 51(1) of this Act or

subsection 51(1) of the Competition Code (as defined in

section 150A).

(3) The report must also include:

(aa) details of the time taken by the Commission to:

(i) make final determinations under section 44V in relation

to access disputes; and

(ii) make decisions on access undertaking applications

(within the meaning of section 44B) or access code

applications (within the meaning of that section); and

(iii) make decisions on applications under

subsection 44PA(1) (about government tendering); and

(a) the number of:

(i) notices given by the Commission under section 155; and

(iii) notices given by the Commission under section 155A;

and

(b) a general description of the nature of the matters in respect of

which the notices were given; and

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(c) the number of proceedings brought to challenge the validity

of the notices; and

(ca) the number of search warrants issued by a judge under

section 135Z or signed by a judge under section 136; and

(d) the number of search warrants issued by a magistrate under

section 154X or signed by a magistrate under section 154Y;

and

(da) a general description of the nature of the matters in respect of

which the search warrants referred to in paragraph (ca) or (d)

were issued or signed; and

(db) the number of proceedings brought to challenge the validity

of the search warrants referred to in paragraph (ca) or (d);

and

(dc) the number of entries onto premises under section 133B or

133C, Division 6 of Part XI or Part XID; and

(e) the number of complaints received by the Commission; and

(f) a general summary of the kinds of complaints received by the

Commission and how it dealt with them; and

(g) a general description of the major matters investigated by the

Commission; and

(h) the number of times the Commission has intervened in

proceedings and a general description of the reasons for

doing so.

171A Charges by the Commission

(1) The Commission may make a charge of an amount, or at a rate,

determined by the Commission for:

(a) supplying a person with material published by the

Commission in the course of carrying out its functions or

exercising its powers; or

(b) permitting a person to attend or take part in a prescribed

activity arranged by or on behalf of the Commission for the

purpose of carrying out any of its functions.

(2) Where:

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(a) the Commission provides a discretionary service for a

person; and

(b) this Act does not otherwise provide for a charge for the

service;

the Commission may make a charge of such amount, or at such a

rate, as is agreed between the Commission and the person.

(3) In this section, a reference to the provision by the Commission of a

discretionary service for a person is a reference to the doing of an

act by the Commission, being a prescribed act that:

(a) the Commission has power to do but is not required to do by

or under any law; and

(b) the Commission does at the person’s request.

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

Commission

(1) Division 3 of Part IIIA has no effect to the extent (if any) to which

it purports to confer judicial power on the Commission.

(2) In this section:

judicial power means the judicial power of the Commonwealth

referred to in section 71 of the Constitution.

172 Regulations

(1) The Governor-General may make regulations, not inconsistent with

this Act, prescribing all matters that are required or permitted by

this Act (other than Schedule 2) to be prescribed or are necessary

or convenient to be prescribed for carrying out or giving effect to

this Act (other than Schedule 2) and, in particular, prescribing:

(a) matters in connexion with the procedure of the Tribunal, the

Commission and the AER; and

(b) the fees and expenses of witnesses in proceedings before the

Tribunal and the Commission; and

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(c) matters for and in relation to the costs, if any, that may be

awarded by the Court in proceedings before the Court under

this Act; and

(d) the fees payable to the Commission on making a prescribed

application, or giving a prescribed notice, to the Commission

under this Act or the regulations.

(1B) Regulations made for the purposes of paragraph (1)(a) or (b) do not

apply in relation to the functions of the Tribunal under a

State/Territory energy law or a designated Commonwealth energy

law.

Note: See section 44ZZR.

(2) The regulations may, either unconditionally or subject to such

conditions as are specified in the regulations, exempt from the

application of this Act (other than Part IV or Schedule 2) or of

specified provisions of this Act (other than Part IV or Schedule 2):

(a) conduct engaged in by a specified organization or body that

performs functions in relation to the marketing of primary

products;

(b) a prescribed contract or proposed contract, contracts included

in a prescribed class of contracts, or prescribed conduct,

being a contract, proposed contract or class of contracts

made, or conduct engaged in, in pursuance of or for the

purposes of a specified agreement, arrangement or

understanding between the Government of Australia and the

Government of a country outside Australia; 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.

(2A) The regulations may prescribe the circumstances in which the

Commission may, on behalf of the Commonwealth, wholly or

partly waive the fee that would otherwise be payable for an

application referred to in subsection 89(1).

(2B) Subsection (2A) does not apply to an application for an

authorisation under subsection 88(9), a minor variation of such an

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authorisation, a revocation of such an authorisation or a revocation

of such an authorisation and the substitution of another

authorisation.

(3) Strict compliance with a form of application or notice prescribed

for the purposes of this Act is not, and shall be deemed never to

have been, required and substantial compliance is, and shall be

deemed always to have been, sufficient.

173 Authorisation for the purposes of subsection 51(1)

(1) In deciding whether a person (including a corporation) has

contravened section 50 of this Act, the vesting of ownership of

primary products in the person by legislation is to be taken, for the

purposes of subparagraph 51(1)(a)(i), to be specified in, and

specifically authorised by, this section.

(2) In this section:

primary products means:

(a) agricultural or horticultural produce, including produce that

has been subjected to a manufacturing process; or

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

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

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

Note: An example of agricultural produce that has been subjected to a

manufacturing process is sugar cane that has been transformed into

raw sugar.

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Application and transitional provisions relating to the competition provisions Part XIII

Cartel conduct Division 1

Section 174

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Part XIII—Application and transitional provisions

relating to the competition provisions

Division 1—Cartel conduct

174 Definitions

In this Division:

commencement time means the commencement of Division 1 of

Part IV.

175 Giving effect after the commencement time to a cartel provision

in existence before that time

The following provisions of this Act:

(a) paragraph 88(1A)(b);

(b) paragraph 93AB(1A)(c);

(c) paragraph 93AB(1A)(d);

apply in relation to a contract or arrangement made, or an

understanding arrived at, before, at or after the commencement

time.

176 Proceedings relating to price-fixing contraventions taking place

before the commencement time

Despite the repeal of section 76D by the Trade Practices

Amendment (Cartel Conduct and Other Measures) Act 2009, that

section continues to apply, in relation to proceedings (whether

instituted before or after the commencement time) in relation to a

contravention that took place before the commencement time, as if

that repeal had not happened.

177 Authorisations in force before the commencement time

(1) This section applies if:

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(a) an authorisation (the pre-commencement authorisation) was

granted to a person to give effect to a provision of a contract,

arrangement or understanding; and

(b) the provision is a cartel provision; and

(c) the authorisation was in force immediately before the

commencement time.

(2) This Act has effect, after the commencement time, as if:

(a) the Commission had, at the commencement time, granted to

the person an authorisation under subsection 88(1A) to give

effect to the cartel provision; and

(b) the day specified in the subsection 88(1A) authorisation as

the day the authorisation comes into force were the day on

which Division 1 of Part IV commenced; and

(c) if, immediately before the commencement time, the

pre-commencement authorisation was expressed to be in

force for a period (the initial period) specified in that

authorisation—the subsection 88(1A) authorisation were

expressed to be in force for a period specified in the

subsection 88(1A) authorisation, and that period were the

period:

(i) starting at the commencement time; and

(ii) ending at the end of the initial period; and

(d) any requirements for the granting of the subsection 88(1A)

authorisation were satisfied.

(3) Subsection (2) does not prevent the subsection 88(1A)

authorisation from being varied, revoked or set aside in accordance

with this Act.

178 Notifications in force before the commencement time

(1) This section applies if:

(a) a person gave the Commission a collective bargaining notice

under subsection 93AB(1) in relation to a proposal to give

effect to a provision of a contract, arrangement or

understanding; and

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(b) the provision is a cartel provision of the kind referred to in

paragraph 93AB(1A)(c) or (d); and

(c) the subsection 93AB(1) notice is in force immediately before

the commencement time.

(2) This Act has effect, after the commencement time, as if:

(a) the person had, at the commencement time, given the

Commission a collective bargaining notice under

subsection 93AB(1A) in relation to a proposal to give effect

to the cartel provision; and

(b) despite subsections 93AD(1) and (2), the

subsection 93AB(1A) notice had come into force at the

commencement time; and

(c) despite paragraph 93AD(3)(c), the period applicable to the

subsection 93AB(1A) notice for the purposes of

paragraph 93AD(3)(c) were the period:

(i) starting at the commencement time; and

(ii) ending at the end of the period of 3 years starting on the

day the person gave the subsection 93AB(1) notice to

the Commission; and

(d) any requirements for the giving of the subsection 93AB(1A)

notice were satisfied.

(3) Subsection (2) does not prevent the subsection 93AB(1A) notice

from ceasing to be in force in accordance with this Act.

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Part XIII Application and transitional provisions relating to the competition provisions

Division 2 Application of amendments made by the Competition and Consumer

Legislation Amendment Act 2011

Section 179

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Division 2—Application of amendments made by the

Competition and Consumer Legislation

Amendment Act 2011

179 Amendments of section 50

The amendments of section 50 made by Schedule 1 to the

Competition and Consumer Legislation Amendment Act 2011

apply to acquisitions occurring after the commencement of that

Schedule.

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 Competition and Consumer Act 2010 (consolidated as of 23 February 2017)

Prepared by the Office of Parliamentary Counsel, Canberra

Competition and Consumer Act 2010

No. 51, 1974

Compilation No. 107

Compilation date: 23 February 2017

Includes amendments up to: Act No. 5, 2017

Registered: 3 March 2017

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

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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 23 February 2017 (the compilation

date).

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 the Legislation Register (www.legislation.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 the Legislation Register 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.

Editorial changes

For more information about any editorial changes made in this compilation, see

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 the Legislation

Register 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.

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Competition and Consumer Act 2010 i

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Contents

Schedule 1—The Schedule version of Part IV 1

Part 1—Schedule version of Part IV 1

Division 1—Cartel conduct 1

Subdivision A—Introduction 1

44ZZRA Simplified outline..............................................................1

44ZZRB Definitions.........................................................................1

44ZZRC Extended meaning of party ...............................................3

44ZZRD Cartel provisions ...............................................................3

44ZZRE Meaning of expressions in other provisions of this

Act.....................................................................................9

Subdivision B—Offences etc. 9

44ZZRF Making a contract etc. containing a cartel

provision............................................................................9

44ZZRG Giving effect to a cartel provision ...................................10

44ZZRH Determining guilt ............................................................11

44ZZRI Court may make related civil orders................................12

Subdivision C—Civil penalty provisions 12

44ZZRJ Making a contract etc. containing a cartel

provision..........................................................................12

44ZZRK Giving effect to a cartel provision ...................................12

Subdivision D—Exceptions 13

44ZZRL Conduct notified..............................................................13

44ZZRM Cartel provision subject to grant of authorisation............13

44ZZRN Contracts, arrangements or understandings

between related bodies corporate ....................................14

44ZZRO Joint ventures—prosecution ............................................14

44ZZRP Joint ventures—civil penalty proceedings.......................17

44ZZRQ Covenants affecting competition .....................................19

44ZZRR Resale price maintenance ................................................20

44ZZRS Exclusive dealing ............................................................20

44ZZRT Dual listed company arrangement ...................................21

44ZZRU Acquisition of shares or assets.........................................21

44ZZRV Collective acquisition of goods or services by the

parties to a contract, arrangement or understanding ........22

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Division 1A—Anti-competitive disclosure of pricing and other

information 23

44ZZS Definitions.......................................................................23

44ZZT Goods and services to which this Division applies..........23

44ZZU Provisions affecting whether a person has

disclosed information to another person..........................23

44ZZV Meaning of private disclosure to competitors .................25

44ZZW Person must not make private disclosure of pricing

information etc. to competitors........................................26

44ZZX Person must not make disclosure of pricing

information etc. for purpose of substantially

lessening competition ......................................................26

44ZZY Exceptions that apply to sections 44ZZW and

44ZZX.............................................................................28

44ZZZ Additional exceptions that only apply to

section 44ZZW................................................................30

44ZZZA Burden of proof ...............................................................32

44ZZZB Mere receipt of information does not constitute

being knowingly involved in contravention ....................33

Division 2—Other provisions 34

45 Contracts, arrangements or understandings that

restrict dealings or affect competition .............................34

45B Covenants affecting competition .....................................37

45C Covenants in relation to prices ........................................41

45D Secondary boycotts for the purpose of causing

substantial loss or damage ...............................................43

45DA Secondary boycotts for the purpose of causing

substantial lessening of competition................................44

45DC Involvement and liability of employee

organisations ...................................................................45

45DD Situations in which boycotts permitted............................47

45E Prohibition of contracts, arrangements or

understandings affecting the supply or acquisition

of goods or services.........................................................50

45EA Provisions contravening section 45E not to be

given effect......................................................................53

45EB Sections 45D to 45EA do not affect operation of

other provisions of Part ...................................................54

46 Misuse of market power ..................................................54

47 Exclusive dealing ............................................................58

48 Resale price maintenance ................................................65

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49 Dual listed company arrangements that affect

competition......................................................................65

50 Prohibition of acquisitions that would result in a

substantial lessening of competition................................66

51 Exceptions .......................................................................68

Schedule 2—The Australian Consumer Law 73

Chapter 1—Introduction 86 1 Application of this Schedule ...........................................86

2 Definitions.......................................................................86

3 Meaning of consumer ....................................................100

4 Misleading representations with respect to future

matters ...........................................................................104

5 When donations are treated as supplies or

acquisitions....................................................................105

6 Related bodies corporate ...............................................105

7 Meaning of manufacturer..............................................105

8 Goods affixed to land or premises .................................107

9 Meaning of safety defect in relation to goods ................107

10 Asserting a right to payment..........................................108

11 References to acquisition, supply and re-supply............108

12 Application of Schedule in relation to leases and

licences of land and buildings .......................................109

13 Loss or damage to include injury ..................................110

14 Meaning of continuing credit contract ..........................110

15 Contraventions of this Schedule ....................................111

16 Severability ...................................................................111

17 References to provisions in this Schedule .....................111

Chapter 2—General protections 112

Part 2-1—Misleading or deceptive conduct 112

18 Misleading or deceptive conduct ...................................112

19 Application of this Part to information providers ..........112

Part 2-2—Unconscionable conduct 114

20 Unconscionable conduct within the meaning of the

unwritten law.................................................................114

21 Unconscionable conduct in connection with goods

or services......................................................................114

22 Matters the court may have regard to for the

purposes of section 21 ...................................................115

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22A Presumptions relating to whether representations

are misleading ...............................................................118

Part 2-3—Unfair contract terms 119

23 Unfair terms of consumer contracts and small

business contracts ..........................................................119

24 Meaning of unfair..........................................................120

25 Examples of unfair terms...............................................120

26 Terms that define main subject matter of consumer

contracts or small business contracts etc. are

unaffected......................................................................121

27 Standard form contracts.................................................122

28 Contracts to which this Part does not apply...................123

Chapter 3—Specific protections 124

Part 3-1—Unfair practices 124

Division 1—False or misleading representations etc. 124

29 False or misleading representations about goods or

services..........................................................................124

30 False or misleading representations about sale etc.

of land ...........................................................................125

31 Misleading conduct relating to employment .................126

32 Offering rebates, gifts, prizes etc. ..................................127

33 Misleading conduct as to the nature etc. of goods .........128

34 Misleading conduct as to the nature etc. of services......128

35 Bait advertising .............................................................128

36 Wrongly accepting payment..........................................129

37 Misleading representations about certain business

activities ........................................................................131

38 Application of provisions of this Division to

information providers ....................................................131

Division 2—Unsolicited supplies 134

39 Unsolicited cards etc. ....................................................134

40 Assertion of right to payment for unsolicited goods

or services......................................................................135

41 Liability etc. of recipient for unsolicited goods .............136

42 Liability of recipient for unsolicited services ................137

43 Assertion of right to payment for unauthorised

entries or advertisements ...............................................137

Division 3—Pyramid schemes 140

44 Participation in pyramid schemes..................................140

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45 Meaning of pyramid scheme .........................................140

46 Marketing schemes as pyramid schemes .......................141

Division 4—Pricing 143

47 Multiple pricing.............................................................143

48 Single price to be specified in certain

circumstances ................................................................144

Division 5—Other unfair practices 148

49 Referral selling ..............................................................148

50 Harassment and coercion...............................................148

Part 3-2—Consumer transactions 149

Division 1—Consumer guarantees 149

Subdivision A—Guarantees relating to the supply of goods 149

51 Guarantee as to title.......................................................149

52 Guarantee as to undisturbed possession ........................149

53 Guarantee as to undisclosed securities etc. ....................150

54 Guarantee as to acceptable quality ................................151

55 Guarantee as to fitness for any disclosed purpose

etc. .................................................................................152

56 Guarantee relating to the supply of goods by

description .....................................................................153

57 Guarantees relating to the supply of goods by

sample or demonstration model.....................................154

58 Guarantee as to repairs and spare parts..........................154

59 Guarantee as to express warranties................................155

Subdivision B—Guarantees relating to the supply of services 155

60 Guarantee as to due care and skill .................................155

61 Guarantees as to fitness for a particular purpose

etc. .................................................................................155

62 Guarantee as to reasonable time for supply ...................156

63 Services to which this Subdivision does not apply ........157

Subdivision C—Guarantees not to be excluded etc. by contract 157

64 Guarantees not to be excluded etc. by contract..............157

64A Limitation of liability for failures to comply with

guarantees......................................................................157

Subdivision D—Miscellaneous 159

65 Application of this Division to supplies of gas,

electricity and telecommunications ...............................159

66 Display notices ..............................................................159

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67 Conflict of laws .............................................................160

68 Convention on Contracts for the International Sale

of Goods ........................................................................160

Division 2—Unsolicited consumer agreements 161

Subdivision A—Introduction 161

69 Meaning of unsolicited consumer agreement ................161

70 Presumption that agreements are unsolicited

consumer agreements ....................................................162

71 Meaning of dealer .........................................................163

72 Meaning of negotiation .................................................163

Subdivision B—Negotiating unsolicited consumer agreements 163

73 Permitted hours for negotiating an unsolicited

consumer agreement......................................................163

74 Disclosing purpose and identity ....................................164

75 Ceasing to negotiate on request .....................................164

76 Informing person of termination period etc. ..................165

77 Liability of suppliers for contraventions by dealers.......166

Subdivision C—Requirements for unsolicited consumer

agreements etc. 166

78 Requirement to give document to the consumer............166

79 Requirements for all unsolicited consumer

agreements etc. ..............................................................167

80 Additional requirements for unsolicited consumer

agreements not negotiated by telephone........................168

81 Requirements for amendments of unsolicited

consumer agreements ....................................................168

Subdivision D—Terminating unsolicited consumer agreements 169

82 Terminating an unsolicited consumer agreement

during the termination period ........................................169

83 Effect of termination .....................................................170

84 Obligations of suppliers on termination ........................171

85 Obligations and rights of consumers on

termination ....................................................................171

86 Prohibition on supplies etc. for 10 business days ..........173

87 Repayment of payments received after termination ......174

88 Prohibition on recovering amounts after

termination ....................................................................174

Subdivision E—Miscellaneous 175

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89 Certain provisions of unsolicited consumer

agreements void.............................................................175

90 Waiver of rights.............................................................176

91 Application of this Division to persons to whom

rights of consumers and suppliers are assigned etc........176

92 Application of this Division to supplies to third

parties ............................................................................176

93 Effect of contravening this Division..............................177

94 Regulations may limit the application of this

Division.........................................................................177

95 Application of this Division to certain conduct

covered by the Corporations Act ...................................177

Division 3—Lay-by agreements 178

96 Lay-by agreements must be in writing etc.....................178

97 Termination of lay-by agreements by consumers ..........178

98 Termination of lay-by agreements by suppliers.............179

99 Effect of termination .....................................................179

Division 4—Miscellaneous 181

100 Supplier must provide proof of transaction etc..............181

101 Consumer may request an itemised bill .........................182

102 Prescribed requirements for warranties against

defects ...........................................................................183

103 Repairers must comply with prescribed

requirements ..................................................................183

Part 3-3—Safety of consumer goods and product related services 185

Division 1—Safety standards 185

104 Making safety standards for consumer goods and

product related services .................................................185

105 Declaring safety standards for consumer goods

and product related services ..........................................186

106 Supplying etc. consumer goods that do not comply

with safety standards .....................................................186

107 Supplying etc. product related services that do not

comply with safety standards ........................................188

108 Requirement to nominate a safety standard...................189

Division 2—Bans on consumer goods and product related services 190

Subdivision A—Interim bans 190

109 Interim bans on consumer goods or product related

services that will or may cause injury to any

person etc. .....................................................................190

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110 Places in which interim bans apply ...............................191

111 Ban period for interim bans...........................................191

112 Interaction of multiple interim bans ..............................192

113 Revocation of interim bans............................................193

Subdivision B—Permanent bans 193

114 Permanent bans on consumer goods or product

related services ..............................................................193

115 Places in which permanent bans apply ..........................194

116 When permanent bans come into force .........................194

117 Revocation of permanent bans ......................................194

Subdivision C—Compliance with interim bans and permanent

bans 195

118 Supplying etc. consumer goods covered by a ban .........195

119 Supplying etc. product related services covered by

a ban ..............................................................................196

Subdivision D—Temporary exemption from mutual recognition

principles 197

120 Temporary exemption under the Trans-Tasman

Mutual Recognition Act 1997 ........................................197

121 Temporary exemption under the Mutual

Recognition Act 1992 ....................................................197

Division 3—Recall of consumer goods 199

Subdivision A—Compulsory recall of consumer goods 199

122 Compulsory recall of consumer goods ..........................199

123 Contents of a recall notice .............................................199

124 Obligations of a supplier in relation to a recall

notice.............................................................................201

125 Notification by persons who supply consumer

goods outside Australia if there is compulsory

recall..............................................................................201

126 Interaction of multiple recall notices .............................202

127 Compliance with recall notices......................................203

Subdivision B—Voluntary recall of consumer goods 204

128 Notification requirements for a voluntary recall of

consumer goods.............................................................204

Division 4—Safety warning notices 206

129 Safety warning notices about consumer goods and

product related services .................................................206

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130 Announcement of the results of an investigation

etc. .................................................................................206

Division 5—Consumer goods, or product related services,

associated with death or serious injury or illness 208

131 Suppliers to report consumer goods associated

with the death or serious injury or illness of any

person ............................................................................208

132 Suppliers to report product related services

associated with the death or serious injury or

illness of any person ......................................................210

132A Confidentiality of notices given under this

Division.........................................................................212

Division 6—Miscellaneous 213

133 Liability under a contract of insurance ..........................213

Part 3-4—Information standards 214

134 Making information standards for goods and

services..........................................................................214

135 Declaring information standards for goods and

services..........................................................................214

136 Supplying etc. goods that do not comply with

information standards ....................................................215

137 Supplying etc. services that do not comply with

information standards ....................................................216

Part 3-5—Liability of manufacturers for goods with safety

defects 218

Division 1—Actions against manufacturers for goods with safety

defects 218

138 Liability for loss or damage suffered by an injured

individual.......................................................................218

139 Liability for loss or damage suffered by a person

other than an injured individual.....................................218

140 Liability for loss or damage suffered by a person if

other goods are destroyed or damaged ..........................219

141 Liability for loss or damage suffered by a person if

land, buildings or fixtures are destroyed or

damaged ........................................................................219

142 Defences to defective goods actions..............................220

Division 2—Defective goods actions 221

143 Time for commencing defective goods actions .............221

144 Liability joint and several ..............................................221

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145 Survival of actions.........................................................221

146 No defective goods action where workers’

compensation law etc. applies .......................................221

147 Unidentified manufacturer.............................................222

148 Commonwealth liability for goods that are

defective only because of compliance with

Commonwealth mandatory standard .............................222

149 Representative actions by the regulator.........................223

Division 3—Miscellaneous 224

150 Application of all or any provisions of this Part

etc. not to be excluded or modified ...............................224

Chapter 4—Offences 225

Part 4-1—Offences relating to unfair practices 225

Division 1—False or misleading representations etc. 225

151 False or misleading representations about goods or

services..........................................................................225

152 False or misleading representations about sale etc.

of land ...........................................................................227

153 Misleading conduct relating to employment .................227

154 Offering rebates, gifts, prizes etc. ..................................228

155 Misleading conduct as to the nature etc. of goods .........229

156 Misleading conduct as to the nature etc. of services......230

157 Bait advertising .............................................................230

158 Wrongly accepting payment..........................................231

159 Misleading representations about certain business

activities ........................................................................233

160 Application of provisions of this Division to

information providers ....................................................234

Division 2—Unsolicited supplies 237

161 Unsolicited cards etc. ....................................................237

162 Assertion of right to payment for unsolicited goods

or services......................................................................238

163 Assertion of right to payment for unauthorised

entries or advertisements ...............................................239

Division 3—Pyramid schemes 241

164 Participation in pyramid schemes..................................241

Division 4—Pricing 242

165 Multiple pricing.............................................................242

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166 Single price to be specified in certain

circumstances ................................................................242

Division 5—Other unfair practices 244

167 Referral selling ..............................................................244

168 Harassment and coercion...............................................244

Part 4-2—Offences relating to consumer transactions 246

Division 1—Consumer guarantees 246

169 Display notices ..............................................................246

Division 2—Unsolicited consumer agreements 247

Subdivision A—Negotiating unsolicited consumer agreements 247

170 Permitted hours for negotiating an unsolicited

consumer agreement......................................................247

171 Disclosing purpose and identity ....................................247

172 Ceasing to negotiate on request .....................................248

173 Informing person of termination period etc. ..................249

Subdivision B—Requirements for unsolicited consumer

agreements etc. 250

174 Requirement to give document to the consumer............250

175 Requirements for all unsolicited consumer

agreements etc. ..............................................................251

176 Additional requirements for unsolicited consumer

agreements not negotiated by telephone........................252

177 Requirements for amendments of unsolicited

consumer agreements ....................................................253

Subdivision C—Terminating unsolicited consumer agreements 253

178 Obligations of suppliers on termination ........................253

179 Prohibition on supplies for 10 business days.................254

180 Repayment of payments received after termination ......254

181 Prohibition on recovering amounts after

termination ....................................................................255

Subdivision D—Miscellaneous 256

182 Certain provisions of unsolicited consumer

agreements void.............................................................256

183 Waiver of rights.............................................................256

184 Application of this Division to persons to whom

rights of consumers and suppliers are assigned etc........257

185 Application of this Division to supplies to third

parties ............................................................................257

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186 Regulations may limit the application of this

Division.........................................................................257

187 Application of this Division to certain conduct

covered by the Corporations Act ...................................258

Division 3—Lay-by agreements 259

188 Lay-by agreements must be in writing etc.....................259

189 Termination charges ......................................................259

190 Termination of lay-by agreements by suppliers.............260

191 Refund of amounts ........................................................260

Division 4—Miscellaneous 261

192 Prescribed requirements for warranties against

defects ...........................................................................261

193 Repairers must comply with prescribed

requirements ..................................................................261

Part 4-3—Offences relating to safety of consumer goods and

product related services 262

Division 1—Safety standards 262

194 Supplying etc. consumer goods that do not comply

with safety standards .....................................................262

195 Supplying etc. product related services that do not

comply with safety standards ........................................263

196 Requirement to nominate a safety standard...................264

Division 2—Bans on consumer goods and product related services 265

197 Supplying etc. consumer goods covered by a ban .........265

198 Supplying etc. product related services covered by

a ban ..............................................................................266

Division 3—Recall of consumer goods 268

199 Compliance with recall orders.......................................268

200 Notification by persons who supply consumer

goods outside Australia if there is compulsory

recall..............................................................................268

201 Notification requirements for a voluntary recall of

consumer goods.............................................................269

Division 4—Consumer goods, or product related services,

associated with death or serious injury or illness 270

202 Suppliers to report consumer goods etc. associated

with the death or serious injury or illness of any

person ............................................................................270

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Part 4-4—Offences relating to information standards 271

203 Supplying etc. goods that do not comply with

information standards ....................................................271

204 Supplying etc. services that do not comply with

information standards ....................................................272

Part 4-5—Offences relating to substantiation notices 274

205 Compliance with substantiation notices ........................274

206 False or misleading information etc. .............................274

Part 4-6—Defences 276

207 Reasonable mistake of fact ............................................276

208 Act or default of another person etc. .............................276

209 Publication of advertisements in the ordinary

course of business..........................................................277

210 Supplying goods acquired for the purpose of

re-supply........................................................................277

211 Supplying services acquired for the purpose of

re-supply........................................................................279

Part 4-7—Miscellaneous 280

212 Prosecutions to be commenced within 3 years ..............280

213 Preference must be given to compensation for

victims...........................................................................280

214 Penalties for contraventions of the same nature etc. ......280

215 Penalties for previous contraventions of the same

nature etc. ......................................................................281

216 Granting of injunctions etc. ...........................................282

217 Criminal proceedings not to be brought for

contraventions of Chapter 2 or 3 ...................................282

Chapter 5—Enforcement and remedies 283

Part 5-1—Enforcement 283

Division 1—Undertakings 283

218 Regulator may accept undertakings...............................283

Division 2—Substantiation notices 284

219 Regulator may require claims to be substantiated

etc. .................................................................................284

220 Extending periods for complying with

substantiation notices ....................................................285

221 Compliance with substantiation notices ........................286

222 False or misleading information etc. .............................286

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Division 3—Public warning notices 288

223 Regulator may issue a public warning notice ................288

Part 5-2—Remedies 289

Division 1—Pecuniary penalties 289

224 Pecuniary penalties........................................................289

225 Pecuniary penalties and offences...................................293

226 Defence .........................................................................294

227 Preference must be given to compensation for

victims...........................................................................294

228 Civil action for recovery of pecuniary penalties............295

229 Indemnification of officers ............................................295

230 Certain indemnities not authorised and certain

documents void .............................................................295

Division 2—Injunctions 296

232 Injunctions.....................................................................296

233 Consent injunctions .......................................................297

234 Interim injunctions ........................................................298

235 Variation and discharge of injunctions ..........................298

Division 3—Damages 299

236 Actions for damages......................................................299

Division 4—Compensation orders etc. for injured persons and

orders for non-party consumers 300

Subdivision A—Compensation orders etc. for injured persons 300

237 Compensation orders etc. on application by an

injured person or the regulator.......................................300

238 Compensation orders etc. arising out of other

proceedings ...................................................................301

Subdivision B—Orders for non-party consumers 301

239 Orders to redress etc. loss or damage suffered by

non-party consumers .....................................................301

240 Determining whether to make a redress order etc.

for non-party consumers................................................303

241 When a non-party consumer is bound by a redress

order etc.........................................................................303

Subdivision C—Miscellaneous 304

242 Applications for orders ..................................................304

243 Kinds of orders that may be made .................................304

244 Power of a court to make orders ....................................305

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245 Interaction with other provisions...................................305

Division 5—Other remedies 306

246 Non-punitive orders.......................................................306

247 Adverse publicity orders ...............................................307

248 Order disqualifying a person from managing

corporations...................................................................308

249 Privilege against exposure to penalty or

forfeiture—disqualification from managing

corporations...................................................................309

250 Declarations relating to consumer contracts and

small business contracts ................................................309

Division 6—Defences 311

251 Publication of advertisement in the ordinary

course of business..........................................................311

252 Supplying consumer goods for the purpose of

re-supply........................................................................311

253 Supplying product related services for the purpose

of re-supply ...................................................................312

Part 5-3—Country of origin representations 314

254 Overview.......................................................................314

255 Country of origin representations do not

contravene certain provisions ........................................314

258 Proceedings relating to false, misleading or

deceptive conduct or representations.............................316

Part 5-4—Remedies relating to guarantees 317

Division 1—Action against suppliers 317

Subdivision A—Action against suppliers of goods 317

259 Action against suppliers of goods..................................317

260 When a failure to comply with a guarantee is a

major failure ..................................................................318

261 How suppliers may remedy a failure to comply

with a guarantee ............................................................319

262 When consumers are not entitled to reject goods ..........319

263 Consequences of rejecting goods ..................................320

264 Replaced goods .............................................................321

265 Termination of contracts for the supply of services

that are connected with rejected goods..........................321

266 Rights of gift recipients .................................................322

Subdivision B—Action against suppliers of services 322

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267 Action against suppliers of services ..............................322

268 When a failure to comply with a guarantee is a

major failure ..................................................................323

269 Termination of contracts for the supply of services.......324

270 Termination of contracts for the supply of goods

that are connected with terminated services ..................325

Division 2—Action for damages against manufacturers of goods 326

271 Action for damages against manufacturers of

goods .............................................................................326

272 Damages that may be recovered by action against

manufacturers of goods .................................................327

273 Time limit for actions against manufacturers of

goods .............................................................................328

Division 3—Miscellaneous 329

274 Indemnification of suppliers by manufacturers .............329

275 Limitation of liability etc...............................................330

276 This Part not to be excluded etc. by contract .................330

276A Limitation in certain circumstances of liability of

manufacturer to seller ....................................................331

277 Representative actions by the regulator.........................332

Part 5-5—Liability of suppliers and credit providers 333

Division 1—Linked credit contracts 333

278 Liability of suppliers and linked credit providers

relating to linked credit contracts ..................................333

279 Action by consumer to recover amount of loss or

damage ..........................................................................334

280 Cases where a linked credit provider is not liable .........334

281 Amount of liability of linked credit providers ...............336

282 Counter-claims and offsets ............................................337

283 Enforcement of judgments etc. ......................................337

284 Award of interest to consumers .....................................339

285 Liability of suppliers to linked credit providers,

and of linked credit providers to suppliers.....................339

286 Joint liability proceedings and recovery under

section 135 of the National Credit Code........................340

Division 2—Non-linked credit contracts 342

287 Liability of suppliers and credit providers relating

to non-linked credit contracts ........................................342

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Chapter 6—Application and transitional provisions 344

Part 1—Application and transitional provisions relating to the

Consumer Credit Legislation Amendment

(Enhancements) Act 2012 344

288 Application of amendments relating to lay-by

agreements.....................................................................344

289 Application of amendment relating to repairs ...............344

290 Saving of regulations relating to repairs ........................344

Part 1A—Application provision relating to the Treasury

Legislation Amendment (Small Business and Unfair

Contract Terms) Act 2015 345 290A Application....................................................................345

Endnotes 347

Endnote 1—About the endnotes 347

Endnote 2—Abbreviation key 349

Endnote 3—Legislation history 350

Endnote 4—Amendment history 371

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The Schedule version of Part IV Schedule 1

Schedule version of Part IV Part 1

Cartel conduct Division 1

Section 44ZZRA

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Schedule 1—The Schedule version of Part IV

Part 1—Schedule version of Part IV Note: See section 150A.

Division 1—Cartel conduct

Subdivision A—Introduction

44ZZRA Simplified outline

The following is a simplified outline of this Division:

• This Division sets out parallel offences and civil penalty

provisions relating to cartel conduct.

• A person must not make, or give effect to, a contract,

arrangement or understanding that contains a cartel provision.

• A cartel provision is a provision relating to:

(a) price-fixing; or

(b) restricting outputs in the production and supply

chain; or

(c) allocating customers, suppliers or territories; or

(d) bid-rigging;

by parties that are, or would otherwise be, in competition with

each other.

44ZZRB Definitions

In this Division:

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Part 1 Schedule version of Part IV

Division 1 Cartel conduct

Section 44ZZRB

2 Competition and Consumer Act 2010

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annual turnover, of a body corporate during a 12-month period,

means the sum of the values of all the supplies that the body

corporate, and any body corporate related to the body corporate,

have made, or are likely to make, during the 12-month period,

other than:

(a) supplies made from any of those bodies corporate to any

other of those bodies corporate; or

(b) supplies that are input taxed; or

(c) supplies that are not for consideration (and are not taxable

supplies under section 72-5 of the A New Tax System (Goods

and Services Tax) Act 1999); or

(d) supplies that are not made in connection with an enterprise

that the body corporate carries on; or

(e) supplies that are not connected with Australia.

Expressions used in this definition that are also used in the A New

Tax System (Goods and Services Tax) Act 1999 have the same

meaning as in that Act.

benefit includes any advantage and is not limited to property.

bid includes:

(a) tender; and

(b) the taking, by a potential bidder or tenderer, of a preliminary

step in a bidding or tendering process.

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

knowledge has the same meaning as in the Criminal Code.

likely, in relation to any of the following:

(a) a supply of goods or services;

(b) an acquisition of goods or services;

(c) the production of goods;

(d) the capacity to supply services;

includes a possibility that is not remote.

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Schedule version of Part IV Part 1

Cartel conduct Division 1

Section 44ZZRC

Competition and Consumer Act 2010 3

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obtaining includes:

(a) obtaining for another person; and

(b) inducing a third person to do something that results in

another person obtaining.

party has a meaning affected by section 44ZZRC.

production includes manufacture, processing, treatment, assembly,

disassembly, renovation, restoration, growing, raising, mining,

extraction, harvesting, fishing, capturing and gathering.

44ZZRC Extended meaning of party

For the purposes of this Division, if a body corporate is a party to a

contract, arrangement or understanding (otherwise than because of

this section), each body corporate related to that body corporate is

taken to be a party to that contract, arrangement or understanding.

44ZZRD Cartel provisions

(1) For the purposes of this Act, a provision of a contract, arrangement

or understanding is a cartel provision if:

(a) either of the following conditions is satisfied in relation to the

provision:

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

(ii) the purpose condition set out in subsection (3); and

(b) the competition condition set out in subsection (4) is satisfied

in relation to the provision.

Purpose/effect condition

(2) The purpose/effect condition is satisfied if the provision has the

purpose, or has or is likely to have the effect, of directly or

indirectly:

(a) fixing, controlling or maintaining; or

(b) providing for the fixing, controlling or maintaining of;

the price for, or a discount, allowance, rebate or credit in relation

to:

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(c) goods or services supplied, or likely to be supplied, by any or

all of the parties to the contract, arrangement or

understanding; or

(d) goods or services acquired, or likely to be acquired, by any or

all of the parties to the contract, arrangement or

understanding; or

(e) goods or services re-supplied, or likely to be re-supplied, by

persons or classes of persons to whom those goods or

services were supplied by any or all of the parties to the

contract, arrangement or understanding; or

(f) goods or services likely to be re-supplied by persons or

classes of persons to whom those goods or services are likely

to be supplied by any or all of the parties to the contract,

arrangement or understanding.

Note 1: The purpose/effect condition can be satisfied when a provision is

considered with related provisions—see subsection (8).

Note 2: Party has an extended meaning—see section 44ZZRC.

Purpose condition

(3) The purpose condition is satisfied if the provision has the purpose

of directly or indirectly:

(a) preventing, restricting or limiting:

(i) the production, or likely production, of goods by any or

all of the parties to the contract, arrangement or

understanding; or

(ii) the capacity, or likely capacity, of any or all of the

parties to the contract, arrangement or understanding to

supply services; or

(iii) the supply, or likely supply, of goods or services to

persons or classes of persons by any or all of the parties

to the contract, arrangement or understanding; or

(b) allocating between any or all of the parties to the contract,

arrangement or understanding:

(i) the persons or classes of persons who have acquired, or

who are likely to acquire, goods or services from any or

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all of the parties to the contract, arrangement or

understanding; or

(ii) the persons or classes of persons who have supplied, or

who are likely to supply, goods or services to any or all

of the parties to the contract, arrangement or

understanding; or

(iii) the geographical areas in which goods or services are

supplied, or likely to be supplied, by any or all of the

parties to the contract, arrangement or understanding; or

(iv) the geographical areas in which goods or services are

acquired, or likely to be acquired, by any or all of the

parties to the contract, arrangement or understanding; or

(c) ensuring that in the event of a request for bids in relation to

the supply or acquisition of goods or services:

(i) one or more parties to the contract, arrangement or

understanding bid, but one or more other parties do not;

or

(ii) 2 or more parties to the contract, arrangement or

understanding bid, but at least 2 of them do so on the

basis that one of those bids is more likely to be

successful than the others; or

(iii) 2 or more parties to the contract, arrangement or

understanding bid, but not all of those parties proceed

with their bids until the suspension or finalisation of the

request for bids process; or

(iv) 2 or more parties to the contract, arrangement or

understanding bid and proceed with their bids, but at

least 2 of them proceed with their bids on the basis that

one of those bids is more likely to be successful than the

others; or

(v) 2 or more parties to the contract, arrangement or

understanding bid, but a material component of at least

one of those bids is worked out in accordance with the

contract, arrangement or understanding.

Note 1: For example, subparagraph (3)(a)(iii) will not apply in relation to a

roster for the supply of after-hours medical services if the roster does

not prevent, restrict or limit the supply of services.

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Note 2: The purpose condition can be satisfied when a provision is considered

with related provisions—see subsection (9).

Note 3: Party has an extended meaning—see section 44ZZRC.

Competition condition

(4) The competition condition is satisfied if at least 2 of the parties to

the contract, arrangement or understanding:

(a) are or are likely to be; or

(b) but for any contract, arrangement or understanding, would be

or would be likely to be;

in competition with each other in relation to:

(c) if paragraph (2)(c) or (3)(b) applies in relation to a supply, or

likely supply, of goods or services—the supply of those

goods or services; or

(d) if paragraph (2)(d) or (3)(b) applies in relation to an

acquisition, or likely acquisition, of goods or services—the

acquisition of those goods or services; or

(e) if paragraph (2)(e) or (f) applies in relation to a re-supply, or

likely re-supply, of goods or services—the supply of those

goods or services to that re-supplier; or

(f) if subparagraph (3)(a)(i) applies in relation to preventing,

restricting or limiting the production, or likely production, of

goods—the production of those goods; or

(g) if subparagraph (3)(a)(ii) applies in relation to preventing,

restricting or limiting the capacity, or likely capacity, to

supply services—the supply of those services; or

(h) if subparagraph (3)(a)(iii) applies in relation to preventing,

restricting or limiting the supply, or likely supply, of goods

or services—the supply of those goods or services; or

(i) if paragraph (3)(c) applies in relation to a supply of goods or

services—the supply of those goods or services; or

(j) if paragraph (3)(c) applies in relation to an acquisition of

goods or services—the acquisition of those goods or services.

Note: Party has an extended meaning—see section 44ZZRC.

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Immaterial whether identities of persons can be ascertained

(5) It is immaterial whether the identities of the persons referred to in

paragraph (2)(e) or (f) or subparagraph (3)(a)(iii), (b)(i) or (ii) can

be ascertained.

Recommending prices etc.

(6) For the purposes of this Division, a provision of a contract,

arrangement or understanding is not taken:

(a) to have the purpose mentioned in subsection (2); or

(b) to have, or be likely to have, the effect mentioned in

subsection (2);

by reason only that it recommends, or provides for the

recommending of, a price, discount, allowance, rebate or credit.

Immaterial whether particular circumstances or particular

conditions

(7) It is immaterial whether:

(a) for the purposes of subsection (2), subparagraph (3)(a)(iii)

and paragraphs (3)(b) and (c)—a supply or acquisition

happens, or a likely supply or likely acquisition is to happen,

in particular circumstances or on particular conditions; and

(b) for the purposes of subparagraph (3)(a)(i)—the production

happens, or the likely production is to happen, in particular

circumstances or on particular conditions; and

(c) for the purposes of subparagraph (3)(a)(ii)—the capacity

exists, or the likely capacity is to exist, in particular

circumstances or on particular conditions.

Considering related provisions—purpose/effect condition

(8) For the purposes of this Division, a provision of a contract,

arrangement or understanding is taken to have the purpose, or to

have or be likely to have the effect, mentioned in subsection (2) if

the provision, when considered together with any or all of the

following provisions:

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(a) the other provisions of the contract, arrangement or

understanding;

(b) the provisions of another contract, arrangement or

understanding, if the parties to that other contract,

arrangement or understanding consist of or include at least

one of the parties to the first-mentioned contract,

arrangement or understanding;

has that purpose, or has or is likely to have that effect.

Considering related provisions—purpose condition

(9) For the purposes of this Division, a provision of a contract,

arrangement or understanding is taken to have the purpose

mentioned in a paragraph of subsection (3) if the provision, when

considered together with any or all of the following provisions:

(a) the other provisions of the contract, arrangement or

understanding;

(b) the provisions of another contract, arrangement or

understanding, if the parties to that other contract,

arrangement or understanding consist of or include at least

one of the parties to the first-mentioned contract,

arrangement or understanding;

has that purpose.

Purpose/effect of a provision

(10) For the purposes of this Division, a provision of a contract,

arrangement or understanding is not to be taken not to have the

purpose, or not to have or to be likely to have the effect, mentioned

in subsection (2) by reason only of:

(a) the form of the provision; or

(b) the form of the contract, arrangement or understanding; or

(c) any description given to the provision, or to the contract,

arrangement or understanding, by the parties.

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Purpose of a provision

(11) For the purposes of this Division, a provision of a contract,

arrangement or understanding is not to be taken not to have the

purpose mentioned in a paragraph of subsection (3) by reason only

of:

(a) the form of the provision; or

(b) the form of the contract, arrangement or understanding; or

(c) any description given to the provision, or to the contract,

arrangement or understanding, by the parties.

44ZZRE Meaning of expressions in other provisions of this Act

In determining the meaning of an expression used in a provision of

this Act (other than this Division, subsection 6(2C),

paragraph 76(1A)(aa) or subsection 93AB(1A)), this Division is to

be disregarded.

Subdivision B—Offences etc.

44ZZRF Making a contract etc. containing a cartel provision

Offence

(1) A person commits an offence if:

(a) the person makes a contract or arrangement, or arrives at an

understanding; and

(b) the contract, arrangement or understanding contains a cartel

provision.

(2) The fault element for paragraph (1)(b) is knowledge or belief.

Penalty

(3) An offence against subsection (1) committed by a body corporate

is punishable on conviction by a fine not exceeding the greater of

the following:

(a) $10,000,000;

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(b) if the court can determine the total value of the benefits that:

(i) have been obtained by one or more persons; and

(ii) are reasonably attributable to the commission of the

offence;

3 times that total value;

(c) if the court cannot determine the total value of those

benefits—10% of the body corporate’s annual turnover

during the 12-month period ending at the end of the month in

which the body corporate committed, or began committing,

the offence.

(4) An offence against subsection (1) committed by a person other

than a body corporate is punishable on conviction by a term of

imprisonment not exceeding 10 years or a fine not exceeding 2,000

penalty units, or both.

Indictable offence

(5) An offence against subsection (1) is an indictable offence.

44ZZRG Giving effect to a cartel provision

Offence

(1) A person commits an offence if:

(a) a contract, arrangement or understanding contains a cartel

provision; and

(b) the person gives effect to the cartel provision.

(2) The fault element for paragraph (1)(a) is knowledge or belief.

Penalty

(3) An offence against subsection (1) committed by a body corporate

is punishable on conviction by a fine not exceeding the greater of

the following:

(a) $10,000,000;

(b) if the court can determine the total value of the benefits that:

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(i) have been obtained by one or more persons; and

(ii) are reasonably attributable to the commission of the

offence;

3 times that total value;

(c) if the court cannot determine the total value of those

benefits—10% of the body corporate’s annual turnover

during the 12-month period ending at the end of the month in

which the body corporate committed, or began committing,

the offence.

(4) An offence against subsection (1) committed by a person other

than a body corporate is punishable on conviction by a term of

imprisonment not exceeding 10 years or a fine not exceeding 2,000

penalty units, or both.

Pre-commencement contracts etc.

(5) Paragraph (1)(a) applies to contracts or arrangements made, or

understandings arrived at, before, at or after the commencement of

this section.

Indictable offence

(6) An offence against subsection (1) is an indictable offence.

44ZZRH Determining guilt

(1) A person may be found guilty of an offence against

section 44ZZRF or 44ZZRG even if:

(a) each other party to the contract, arrangement or

understanding is a person who is not criminally responsible;

or

(b) subject to subsection (2), all other parties to the contract,

arrangement or understanding have been acquitted of the

offence.

Note: Party has an extended meaning—see section 44ZZRC.

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(2) A person cannot be found guilty of an offence against

section 44ZZRF or 44ZZRG if:

(a) all other parties to the contract, arrangement or understanding

have been acquitted of such an offence; and

(b) a finding of guilt would be inconsistent with their acquittal.

44ZZRI Court may make related civil orders

If a prosecution against a person for an offence against

section 44ZZRF or 44ZZRG is being, or has been, heard by a

court, the court may:

(a) grant an injunction under section 80 against the person in

relation to:

(i) the conduct that constitutes, or is alleged to constitute,

the offence; or

(ii) other conduct of that kind; or

(b) make an order under section 86C, 86D, 86E or 87 in relation

to the offence.

Subdivision C—Civil penalty provisions

44ZZRJ Making a contract etc. containing a cartel provision

A person contravenes this section if:

(a) the person makes a contract or arrangement, or arrives at an

understanding; and

(b) the contract, arrangement or understanding contains a cartel

provision.

Note: For enforcement, see Part VI.

44ZZRK Giving effect to a cartel provision

(1) A person contravenes this section if:

(a) a contract, arrangement or understanding contains a cartel

provision; and

(b) the person gives effect to the cartel provision.

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(2) Paragraph (1)(a) applies to contracts or arrangements made, or

understandings arrived at, before, at or after the commencement of

this section.

Subdivision D—Exceptions

44ZZRL Conduct notified

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply to

a person in relation to a contract, arrangement or understanding

containing a cartel provision, in so far as:

(a) the cartel provision:

(i) has the purpose, or has or is likely to have the effect,

mentioned in subsection 44ZZRD(2); or

(ii) has the purpose mentioned in a paragraph of

subsection 44ZZRD(3) other than paragraph (c); and

(b) the person has given the Commission a collective bargaining

notice under subsection 93AB(1A) setting out particulars of

the contract, arrangement or understanding; and

(c) the notice is in force under section 93AD.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

44ZZRM Cartel provision subject to grant of authorisation

(1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the

making of a contract that contains a cartel provision if:

(a) the contract is subject to a condition that the provision will

not come into force unless and until the person is granted an

authorisation to give effect to the provision; and

(b) the person applies for the grant of such an authorisation

within 14 days after the contract is made.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

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44ZZRN Contracts, arrangements or understandings between

related bodies corporate

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding if the only

parties to the contract, arrangement or understanding are bodies

corporate that are related to each other.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

44ZZRO Joint ventures—prosecution

(1) Sections 44ZZRF and 44ZZRG do not apply in relation to a

contract containing a cartel provision if:

(a) the cartel provision is for the purposes of a joint venture; and

(b) the joint venture is for the production and/or supply of goods

or services; and

(c) in a case where subparagraph 4J(a)(i) applies to the joint

venture—the joint venture is carried on jointly by the parties

to the contract; and

(d) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate

formed by the parties to the contract for the purpose of

enabling those parties to carry on the activity mentioned in

paragraph (b) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

Note: For example, if a joint venture formed for the purpose of research and

development provides the results of its research and development to

participants in the joint venture, it may be a joint venture for the

supply of services.

(1A) Section 44ZZRF does not apply in relation to an arrangement or

understanding containing a cartel provision if:

(a) the arrangement or understanding is not a contract; and

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(b) when the arrangement was made, or the understanding was

arrived at, each party to the arrangement or understanding:

(i) intended the arrangement or understanding to be a

contract; and

(ii) reasonably believed that the arrangement or

understanding was a contract; and

(c) the cartel provision is for the purposes of a joint venture; and

(d) the joint venture is for the production and/or supply of goods

or services; and

(e) in a case where subparagraph 4J(a)(i) applies to the joint

venture—the joint venture is carried on jointly by the parties

to the arrangement or understanding; and

(f) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate

formed by the parties to the arrangement or understanding for

the purpose of enabling those parties to carry on the activity

mentioned in paragraph (d) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

Note: For example, if a joint venture formed for the purpose of research and

development provides the results of its research and development to

participants in the joint venture, it may be a joint venture for the

supply of services.

(1B) Section 44ZZRG does not apply in relation to giving effect to a

cartel provision contained in an arrangement or understanding if:

(a) the arrangement or understanding is not a contract; and

(b) when the arrangement was made, or the understanding was

arrived at, each party to the arrangement or understanding:

(i) intended the arrangement or understanding to be a

contract; and

(ii) reasonably believed that the arrangement or

understanding was a contract; and

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(c) when the cartel provision was given effect to, each party to

the arrangement or understanding reasonably believed that

the arrangement or understanding was a contract; and

(d) the cartel provision is for the purposes of a joint venture; and

(e) the joint venture is for the production and/or supply of goods

or services; and

(f) in a case where subparagraph 4J(a)(i) applies to the joint

venture—the joint venture is carried on jointly by the parties

to the arrangement or understanding; and

(g) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate

formed by the parties to the arrangement or understanding for

the purpose of enabling those parties to carry on the activity

mentioned in paragraph (e) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

Note: For example, if a joint venture formed for the purpose of research and

development provides the results of its research and development to

participants in the joint venture, it may be a joint venture for the

supply of services.

(2) A person who wishes to rely on subsection (1), (1A) or (1B) bears

an evidential burden in relation to that matter.

Notice to prosecutor

(3) A person is not entitled to rely on subsection (1), (1A) or (1B) in a

trial for an offence unless, within 28 days after the day on which

the person is committed for trial, the person gives the prosecutor:

(a) a written notice setting out:

(i) the facts on which the person proposes to rely for the

purpose of discharging the evidential burden borne by

the person in relation to the matter in subsection (1),

(1A) or (1B), as the case may be; and

(ii) the names and address of any witnesses whom the

person proposes to call for the purpose of discharging

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the evidential burden borne by the person in relation to

the matter in subsection (1), (1A) or (1B), as the case

may be; and

(b) certified copies of any documents which the person proposes

to adduce or point to for the purpose of discharging the

evidential burden borne by the person in relation to the

matter in subsection (1), (1A) or (1B), as the case may be.

(4) If the trial of a person for an offence is being, or is to be, held in a

court, the court may, by order:

(a) exempt the person from compliance with subsection (3); or

(b) extend the time within which the person is required to

comply with subsection (3).

(5) For the purposes of paragraph (3)(b), a certified copy of a

document is a copy of the document certified to be a true copy by:

(a) a Justice of the Peace; or

(b) a commissioner for taking affidavits.

44ZZRP Joint ventures—civil penalty proceedings

(1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a

contract containing a cartel provision if:

(a) the cartel provision is for the purposes of a joint venture; and

(b) the joint venture is for the production and/or supply of goods

or services; and

(c) in a case where subparagraph 4J(a)(i) applies to the joint

venture—the joint venture is carried on jointly by the parties

to the contract; and

(d) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate

formed by the parties to the contract for the purpose of

enabling those parties to carry on the activity mentioned in

paragraph (b) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

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Note: For example, if a joint venture formed for the purpose of research and

development provides the results of its research and development to

participants in the joint venture, it may be a joint venture for the

supply of services.

(1A) Section 44ZZRJ does not apply in relation to an arrangement or

understanding containing a cartel provision if:

(a) the arrangement or understanding is not a contract; and

(b) when the arrangement was made, or the understanding was

arrived at, each party to the arrangement or understanding:

(i) intended the arrangement or understanding to be a

contract; and

(ii) reasonably believed that the arrangement or

understanding was a contract; and

(c) the cartel provision is for the purposes of a joint venture; and

(d) the joint venture is for the production and/or supply of goods

or services; and

(e) in a case where subparagraph 4J(a)(i) applies to the joint

venture—the joint venture is carried on jointly by the parties

to the arrangement or understanding; and

(f) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate

formed by the parties to the arrangement or understanding for

the purpose of enabling those parties to carry on the activity

mentioned in paragraph (d) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

Note: For example, if a joint venture formed for the purpose of research and

development provides the results of its research and development to

participants in the joint venture, it may be a joint venture for the

supply of services.

(1B) Section 44ZZRK does not apply in relation to giving effect to a

cartel provision contained in an arrangement or understanding if:

(a) the arrangement or understanding is not a contract; and

(b) when the arrangement was made, or the understanding was

arrived at, each party to the arrangement or understanding:

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(i) intended the arrangement or understanding to be a

contract; and

(ii) reasonably believed that the arrangement or

understanding was a contract; and

(c) when the cartel provision was given effect to, each party to

the arrangement or understanding reasonably believed that

the arrangement or understanding was a contract; and

(d) the cartel provision is for the purposes of a joint venture; and

(e) the joint venture is for the production and/or supply of goods

or services; and

(f) in a case where subparagraph 4J(a)(i) applies to the joint

venture—the joint venture is carried on jointly by the parties

to the arrangement or understanding; and

(g) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate

formed by the parties to the arrangement or understanding for

the purpose of enabling those parties to carry on the activity

mentioned in paragraph (e) jointly by means of:

(i) their joint control; or

(ii) their ownership of shares in the capital;

of that body corporate.

Note: For example, if a joint venture formed for the purpose of research and

development provides the results of its research and development to

participants in the joint venture, it may be a joint venture for the

supply of services.

(2) A person who wishes to rely on subsection (1), (1A) or (1B) bears

an evidential burden in relation to that matter.

44ZZRQ Covenants affecting competition

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract containing a cartel provision, in so far as the

cartel provision constitutes a covenant to which section 45B

applies or, but for subsection 45B(9), would apply.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

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Section 44ZZRR

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44ZZRR Resale price maintenance

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding containing a

cartel provision, in so far as the cartel provision relates to:

(a) conduct that contravenes section 48; or

(b) conduct that would contravene section 48 but for the

operation of subsection 88(8A); or

(c) conduct that would contravene section 48 if this Act defined

the acts constituting the practice of resale price maintenance

by reference to the maximum price at which goods or

services are to be sold or supplied or are to be advertised,

displayed or offered for sale or supply.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

44ZZRS Exclusive dealing

(1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the

making of a contract, arrangement or understanding that contains a

cartel provision, in so far as giving effect to the cartel provision

would, or would but for the operation of subsection 47(10) or 88(8)

or section 93, constitute a contravention of section 47.

(2) Sections 44ZZRG and 44ZZRK do not apply in relation to the

giving effect to a cartel provision by way of:

(a) engaging in conduct that contravenes, or would but for the

operation of subsection 47(10) or 88(8) or section 93

contravene, section 47; or

(b) doing an act by reason of a breach or threatened breach of a

condition referred to in subsection 47(2), (4), (6) or (8), being

an act done by a person at a time when:

(i) an authorisation under subsection 88(8) is in force in

relation to conduct engaged in by that person on that

condition; or

(ii) by reason of subsection 93(7), conduct engaged in by

that person on that condition is not to be taken to have

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the effect of substantially lessening competition within

the meaning of section 47; or

(iii) a notice under subsection 93(1) is in force in relation to

conduct engaged in by that person on that condition.

(3) A person who wishes to rely on subsection (1) or (2) bears an

evidential burden in relation to that matter.

44ZZRT Dual listed company arrangement

(1) Sections 44ZZRF and 44ZZRJ do not apply in relation to the

making of a contract, arrangement or understanding that contains a

cartel provision, in so far as:

(a) the contract, arrangement or understanding is a dual listed

company arrangement; and

(b) the making of the contract, arrangement or understanding

would, or would apart from subsection 88(8B), contravene

section 49.

(2) Sections 44ZZRG and 44ZZRK do not apply in relation to the

giving effect to a cartel provision, in so far as:

(a) the cartel provision is a provision of a dual listed company

arrangement; and

(b) the giving effect to the cartel provision would, or would apart

from subsection 88(8B), contravene section 49.

(3) A person who wishes to rely on subsection (1) or (2) bears an

evidential burden in relation to that matter.

44ZZRU Acquisition of shares or assets

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding containing a

cartel provision, in so far as the cartel provision provides directly

or indirectly for the acquisition of:

(a) any shares in the capital of a body corporate; or

(b) any assets of a person.

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Section 44ZZRV

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(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

44ZZRV Collective acquisition of goods or services by the parties to

a contract, arrangement or understanding

(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in

relation to a contract, arrangement or understanding containing a

cartel provision, in so far as:

(a) the cartel provision has the purpose, or has or is likely to

have the effect, mentioned in subsection 44ZZRD(2); and

(b) either:

(i) the cartel provision relates to the price for goods or

services to be collectively acquired, whether directly or

indirectly, by the parties to the contract, arrangement or

understanding; or

(ii) the cartel provision is for the joint advertising of the

price for the re-supply of goods or services so acquired.

(2) A person who wishes to rely on subsection (1) bears an evidential

burden in relation to that matter.

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Section 44ZZS

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Division 1A—Anti-competitive disclosure of pricing and

other information

44ZZS Definitions

In this Division:

disclose has a meaning affected by section 44ZZU.

Division 1A goods or services means goods or services to which

this Division applies (see section 44ZZT).

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

intermediary: see subsection 44ZZU(3).

private disclosure to competitors: see section 44ZZV.

44ZZT Goods and services to which this Division applies

This Division applies to goods and services of the classes

prescribed by the regulations for the purpose of section 44ZZT of

the Competition and Consumer Act 2010.

44ZZU Provisions affecting whether a person has disclosed

information to another person

Disclosure to director, employee or agent etc. of another person

(1) For the purpose of this Division:

(a) if a person (the first person) makes a disclosure of

information to another person (the second person) in the

second person’s capacity as a director, employee or agent of

a body corporate, the disclosure is taken to have been made

by the first person to the body corporate; and

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(b) if a person (the first person) makes a disclosure of

information to another person (the second person) in the

second person’s capacity as an employee or agent of another

person (not being a body corporate), the disclosure is taken to

have been made by the first person to that other person.

Disclosure to discloser’s own agent

(2) For the purpose of this Division, the disclosure of information by a

person (the first person) to another person is to be disregarded if:

(a) the disclosure is made to the other person in the other

person’s capacity as an agent of the first person; and

(b) subsection (3) does not apply to the disclosure.

Disclosure through intermediary

(3) If:

(a) a person (the first person) makes a disclosure of information

to another person (the intermediary); and

(b) the first person makes the disclosure to the intermediary for

the purpose of the intermediary disclosing (or arranging for

the disclosure of) the information to one or more other

persons; and

(c) the information is so disclosed to one or more of those other

persons (the recipients);

then, for the purpose of this Division:

(d) the disclosure of the information to the recipients is taken to

have been made by the first person; and

(e) the disclosure of the information to the intermediary is to be

disregarded (unless the intermediary is a competitor or

potential competitor of the first person in a market).

Accidental disclosure

(4) For the purpose of this Division, the disclosure of information by a

person (the first person) to another person (the recipient) is to be

disregarded if the disclosure to the recipient is due to:

(a) an accident; or

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(b) the default of a person other than the first person; or

(c) some other cause beyond the control of the first person.

Note: This subsection does not apply to a disclosure of information covered

by subsection (3).

Section 84 not limited

(5) This section does not limit section 84.

44ZZV Meaning of private disclosure to competitors

Main definition

(1) A disclosure of information by a person is a private disclosure to

competitors, in relation to a particular market, if the disclosure is to

one or more competitors or potential competitors of the person in

that market, and is not to any other person.

Note: The effect of section 44ZZU must be taken into account in working

out whether the disclosure is to one or more competitors or potential

competitors, and is not to any other person.

Anti-avoidance

(2) For the purpose of determining whether a person (the first person)

has made a private disclosure to competitors in relation to a

particular market, the fact that the disclosure is also made to

another person who is not a competitor or potential competitor of

the first person in that market is to be disregarded if:

(a) for a disclosure that is not made through an intermediary—

the first person made the disclosure to the other person for

the purpose of avoiding the application of section 44ZZW to

the disclosure; or

(b) for a disclosure that is made through an intermediary—either:

(i) the first person directed or requested the intermediary to

disclose the information to the other person for the

purpose of avoiding the application of section 44ZZW

to the disclosure; or

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(ii) the intermediary disclosed the information to the other

person for the purpose of avoiding the application of

section 44ZZW to the disclosure.

Fact that the information is otherwise available is not relevant

(3) The question whether a disclosure of information by a person is a

private disclosure to competitors is not affected by the information

otherwise being or becoming available to competitors or potential

competitors of the person in the market, or to other persons.

44ZZW Person must not make private disclosure of pricing

information etc. to competitors

A person must not make a disclosure of information if:

(a) the information relates to a price for, or a discount,

allowance, rebate or credit in relation to, Division 1A goods

or services supplied or likely to be supplied, or acquired or

likely to be acquired, by the person in a market (whether or

not the information also relates to other matters); and

(b) the disclosure is a private disclosure to competitors in

relation to that market; and

(c) the disclosure is not in the ordinary course of business.

Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(6A) or notified under

subsection 93(1).

44ZZX Person must not make disclosure of pricing information etc.

for purpose of substantially lessening competition

The prohibition

(1) A person must not make a disclosure of information if:

(a) the information relates to one or more of the following

(whether or not it also relates to other matters):

(i) a price for, or a discount, allowance, rebate or credit in

relation to, Division 1A goods or services supplied or

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likely to be supplied, or acquired or likely to be

acquired, by the person;

(ii) the capacity, or likely capacity, of the person to supply

or acquire Division 1A goods or services;

(iii) any aspect of the commercial strategy of the person that

relates to Division 1A goods or services; and

(b) the person makes the disclosure for the purpose of

substantially lessening competition in a market.

Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(6A).

Determining whether disclosure made for purpose of substantially

lessening competition

(2) In determining, for the purpose of this section, if a person has made

a disclosure for the purpose of substantially lessening competition

in a market, the matters to which the court may have regard include

(but are not limited to):

(a) whether the disclosure was a private disclosure to

competitors in relation to that market; and

(b) the degree of specificity of the information; and

(c) whether the information relates to past, current or future

activities; and

(d) how readily available the information is to the public; and

(e) whether the disclosure is part of a pattern of similar

disclosures by the person.

(3) Without limiting the manner in which the purpose of a person may

be established for the purposes of any other provision of this Act, a

person may be taken to have made a disclosure of information for

the purpose of substantially lessening competition in a market even

though, after all the evidence has been considered, the existence of

that purpose is ascertainable only by inference from the conduct of

the person or of any other person or from other relevant

circumstances.

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44ZZY Exceptions that apply to sections 44ZZW and 44ZZX

Disclosure authorised by law: general exception for 10 years

(1) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a person if:

(a) the disclosure is authorised by or under a law of the

Commonwealth, a State or a Territory; and

(b) the disclosure occurs before the end of 10 years after the day

on which the Competition and Consumer Amendment Act

(No. 1) 2011 receives the Royal Assent.

Note: This subsection has effect in addition to:

(a) subsection (6) (which covers compliance with continuous disclosure requirements of the Corporations Act 2001); and

(b) subsection 51(1) (which covers things authorised by certain laws).

Disclosure to related bodies corporate

(2) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a body corporate (the first body corporate) if the

disclosure is to one or more other bodies corporate that are related

to the first body corporate, and is not to any other person.

Note: The effect of section 44ZZU must be taken into account in working

out whether the disclosure is to one or more bodies corporate that are

related to the first body corporate, and is not to any other person.

Disclosure for collective bargaining

(3) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a person if:

(a) the person has given the Commission a collective bargaining

notice under subsection 93AB(1A) or (1) setting out

particulars of a contract or proposed contract; and

(b) the notice is in force; and

(c) the disclosure is to one or more of the other contracting

parties, and is not to any other person; and

(d) the disclosure of the information:

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(i) if the notice relates to a contract—is required by the

contract; or

(ii) if the notice relates to a proposed contract—is made in

the course of negotiations for the proposed contract or,

if the proposed contract is entered into, is required by

the contract.

Note: The effect of section 44ZZU must be taken into account in working

out whether the disclosure is to one or more of the other contracting

parties, and is not to any other person.

Disclosure in course of authorised conduct

(4) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a person if:

(a) an authorisation under section 88 (other than

subsection 88(6A)) applies to or in relation to the person; and

(b) the authorisation is in force; and

(c) the disclosure of the information is made in the course of

engaging in conduct that is covered by the authorisation.

Note: A disclosure that would otherwise contravene section 44ZZW or

44ZZX can also be directly authorised under subsection 88(6A).

Disclosure covered by notification under section 93

(5) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a person if:

(a) the person has given the Commission a notice under

subsection 93(1) describing conduct; and

(b) the disclosure is conduct described in the notice; and

(c) the notice is in force under section 93.

Compliance with continuous disclosure requirements of the

Corporations Act 2001

(6) Sections 44ZZW and 44ZZX do not apply to the disclosure of

information by a person if the disclosure is made for the purpose of

complying with Chapter 6CA of the Corporations Act 2001.

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44ZZZ Additional exceptions that only apply to section 44ZZW

Disclosure of information to acquirer or supplier of goods or

services

(1) Section 44ZZW does not apply to the disclosure of information by

a person (the first person) to another person (the recipient) if:

(a) the information relates to goods or services supplied or likely

to be supplied, by the first person to the recipient; or

(b) the information relates to goods or services acquired or likely

to be acquired, by the first person from the recipient.

Disclosure to unknown competitor

(2) Section 44ZZW does not apply to the disclosure of information by

a person (the first person) to another person (the recipient) if:

(a) the recipient is a competitor or potential competitor of the

first person in the market referred to in that section; and

(b) the first person did not know, and could not reasonably be

expected to have known, that the recipient was such a

competitor or potential competitor.

Disclosure to participants in joint venture

(3) Section 44ZZW does not apply to the disclosure of information by

a person if:

(a) either:

(i) the person is a participant in a joint venture for the

production and/or supply of goods or services; or

(ii) the person proposes to enter into a joint venture with

one or more other persons (the proposed participants);

and

(b) the disclosure is to one or more participants or proposed

participants in the joint venture, and is not to any other

person; and

(c) the disclosure is made for the purposes of the joint venture or

in the course of negotiations for the joint venture.

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Note: The effect of section 44ZZU must be taken into account in working

out whether the disclosure is to one or more participants in the joint

venture, and is not to any other person.

Disclosure relating to provision of loans etc. to same person

(3A) Section 44ZZW does not apply to the disclosure of information

between 2 or more persons (the relevant persons) if:

(a) the information relates to services, being loans or credit,

supplied, or likely to be supplied, by one or more of the

relevant persons; and

(b) 2 or more of the relevant persons are, in relation to the same

person (the borrower), doing either or both of the following:

(i) providing such services to the borrower;

(ii) considering whether to provide such services to the

borrower;

(c) the disclosure is for the purpose of, or related to, providing

services, or considering whether to provide services, to the

borrower as mentioned in paragraph (b).

Disclosure between credit provider and provider of credit service

(3B) Section 44ZZW does not apply to the disclosure of information by

a person to another person if:

(a) one of the persons is a credit provider, and the other person

provides a credit service, within the meaning of the National

Consumer Credit Protection Act 2009; and

(b) the disclosure is made in the course of the relationship

between the persons in their capacities as credit provider and

provider of a credit service.

Disclosure relating to acquisition of shares or assets

(4) Section 44ZZW does not apply to the disclosure of information by

a person (the first person) in so far as the information is disclosed

in connection with a contract, arrangement or understanding that

provides, or a proposed contract, arrangement or understanding

that would provide, for the acquisition of any shares in the capital

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of a body corporate, or any assets of a person, by or from the first

person.

Note: For the meaning of acquisition of shares, and acquisition of assets, see

subsection 4(4).

Disclosure if borrower insolvent etc.

(5) Section 44ZZW does not apply to the disclosure of information

between 2 or more persons (the relevant persons) if:

(a) at least one of the relevant persons:

(i) has provided a loan or credit to another person (the

borrower); and

(ii) has been notified of a borrower insolvency situation (see

subsection (6)); and

(b) the information relates to services, being loans or credit,

supplied, or likely to be supplied, by one or more of the

relevant persons; and

(c) the disclosure is for the purpose of one or more of the

relevant persons considering whether to take measures to

return the borrower to solvency, or to avoid or reduce the risk

of the borrower becoming insolvent.

(6) For the purpose of subsection (5), a relevant person is notified of a

borrower insolvency situation if:

(a) the person is notified that there are reasonable grounds for

suspecting that one or more of the following may be or

become insolvent:

(i) the borrower;

(ii) a person who has given a guarantee or indemnity in

respect of loans or credit provided to the borrower by

one or more of the relevant persons; and

(b) the notification is given by the borrower, or by a person

referred to in subparagraph (a)(ii).

44ZZZA Burden of proof

If:

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(a) proceedings are brought against a person in respect of

section 44ZZW or 44ZZX; and

(b) the person seeks to rely on subsection 44ZZU(2) or (4), or on

a subsection of section 44ZZY or 44ZZZ;

the person bears an evidential burden in relation to the matters set

out in that subsection on which the person seeks to rely.

44ZZZB Mere receipt of information does not constitute being

knowingly involved in contravention

For the purpose of paragraph 76(1)(e), a person is not taken to be

directly or indirectly knowingly concerned in, or party to, a

contravention of section 44ZZW or 44ZZX merely because the

person is a recipient of information disclosed in contravention of

that section.

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Section 45

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Division 2—Other provisions

45 Contracts, arrangements or understandings that restrict dealings

or affect competition

(1) If a provision of a contract made before the commencement of this

section:

(a) is an exclusionary provision; or

(b) has the purpose, or has or is likely to have the effect, of

substantially lessening competition;

that provision is unenforceable in so far as it confers rights or

benefits or imposes duties or obligations on a person.

(2) A person shall not:

(a) make a contract or arrangement, or arrive at an

understanding, if:

(i) the proposed contract, arrangement or understanding

contains an exclusionary provision; or

(ii) a provision of the proposed contract, arrangement or

understanding has the purpose, or would have or be

likely to have the effect, of substantially lessening

competition; or

(b) give effect to a provision of a contract, arrangement or

understanding, whether the contract or arrangement was

made, or the understanding was arrived at, before or after the

commencement of this section, if that provision:

(i) is an exclusionary provision; or

(ii) has the purpose, or has or is likely to have the effect, of

substantially lessening competition.

(3) For the purposes of this section, competition, in relation to a

provision of a contract, arrangement or understanding or of a

proposed contract, arrangement or understanding, means

competition in any market in which a person who is a party to the

contract, arrangement or understanding or would be a party to the

proposed contract, arrangement or understanding, or any body

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corporate related to such a person, supplies or acquires, or is likely

to supply or acquire, goods or services or would, but for the

provision, supply or acquire, or be likely to supply or acquire,

goods or services.

(4) For the purposes of the application of this section in relation to a

particular person, a provision of a contract, arrangement or

understanding or of a proposed contract, arrangement or

understanding shall be deemed to have or to be likely to have the

effect of substantially lessening competition if that provision and

any one or more of the following provisions, namely:

(a) the other provisions of that contract, arrangement or

understanding or proposed contract, arrangement or

understanding; and

(b) the provisions of any other contract, arrangement or

understanding or proposed contract, arrangement or

understanding to which the person or a body corporate

related to the person is or would be a party;

together have or are likely to have that effect.

(5) This section does not apply to or in relation to:

(a) a provision of a contract where the provision constitutes a

covenant to which section 45B applies or, but for

subsection 45B(9), would apply;

(b) a provision of a proposed contract where the provision would

constitute a covenant to which section 45B would apply or,

but for subsection 45B(9), would apply; or

(c) a provision of a contract, arrangement or understanding or of

a proposed contract, arrangement or understanding in so far

as the provision relates to:

(i) conduct that contravenes section 48; or

(ii) conduct that would contravene section 48 but for the

operation of subsection 88(8A); or

(iii) conduct that would contravene section 48 if this Act

defined the acts constituting the practice of resale price

maintenance by reference to the maximum price at

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which goods or services are to be sold or supplied or are

to be advertised, displayed or offered for sale or supply.

(6) The making of a contract, arrangement or understanding does not

constitute a contravention of this section by reason that the

contract, arrangement or understanding contains a provision the

giving effect to which would, or would but for the operation of

subsection 47(10) or 88(8) or section 93, constitute a contravention

of section 47 and this section does not apply to or in relation to the

giving effect to a provision of a contract, arrangement or

understanding by way of:

(a) engaging in conduct that contravenes, or would but for the

operation of subsection 47(10) or 88(8) or section 93

contravene, section 47; or

(b) doing an act by reason of a breach or threatened breach of a

condition referred to in subsection 47(2), (4), (6) or (8), being

an act done by a person at a time when:

(i) an authorization under subsection 88(8) is in force in

relation to conduct engaged in by that person on that

condition; or

(ii) by reason of subsection 93(7) conduct engaged in by

that person on that condition is not to be taken to have

the effect of substantially lessening competition within

the meaning of section 47; or

(iii) a notice under subsection 93(1) is in force in relation to

conduct engaged in by that person on that condition.

(6A) The following conduct:

(a) the making of a dual listed company arrangement;

(b) the giving effect to a provision of a dual listed company

arrangement;

does not contravene this section if the conduct would, or would

apart from subsection 88(8B), contravene section 49.

(7) This section does not apply to or in relation to a contract,

arrangement or understanding in so far as the contract, arrangement

or understanding provides, or to or in relation to a proposed

contract, arrangement or understanding in so far as the proposed

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contract, arrangement or understanding would provide, directly or

indirectly for the acquisition of any shares in the capital of a body

corporate or any assets of a person.

(8) This section does not apply to or in relation to a contract,

arrangement or understanding, or a proposed contract, arrangement

or understanding, the only parties to which are or would be bodies

corporate that are related to each other.

(8A) Subsection (2) does not apply to a person engaging in conduct

described in that subsection if:

(a) the person has given the Commission a collective bargaining

notice under subsection 93AB(1) describing the conduct; and

(b) the notice is in force under section 93AD.

(9) The making by a person of a contract that contains a provision in

relation to which subsection 88(1) applies is not a contravention of

subsection (2) of this section if:

(a) the contract is subject to a condition that the provision will

not come into force unless and until the person is granted an

authorization to give effect to the provision; and

(b) the person applies for the grant of such an authorization

within 14 days after the contract is made;

but nothing in this subsection prevents the giving effect by a

person to such a provision from constituting a contravention of

subsection (2).

45B Covenants affecting competition

(1) A covenant, whether the covenant was given before or after the

commencement of this section, is unenforceable in so far as it

confers rights or benefits or imposes duties or obligations on a first

person or on a person associated with a first person if the covenant

has, or is likely to have, the effect of substantially lessening

competition in any market in which the first person or any person

associated with the first person supplies or acquires, or is likely to

supply or acquire, goods or services or would, but for the covenant,

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supply or acquire, or be likely to supply or acquire, goods or

services.

(2) A first person or a person associated with a first person shall not:

(a) require the giving of a covenant, or give a covenant, if the

proposed covenant has the purpose, or would have or be

likely to have the effect, of substantially lessening

competition in any market in which:

(i) the first person, or any person associated with the first

person by virtue of paragraph (7)(b), supplies or

acquires, is likely to supply or acquire, or would, but for

the covenant, supply or acquire, or be likely to supply or

acquire, goods or services; or

(ii) any person associated with the first person by virtue of

the operation of paragraph (7)(a) supplies or acquires, is

likely to supply or acquire, or would, but for the

covenant, supply or acquire, or be likely to supply or

acquire, goods or services, being a supply or acquisition

in relation to which that person is, or would be, under an

obligation to act in accordance with directions,

instructions or wishes of the first person;

(b) threaten to engage in particular conduct if a person who, but

for subsection (1), would be bound by a covenant does not

comply with the terms of the covenant; or

(c) engage in particular conduct by reason that a person who, but

for subsection (1), would be bound by a covenant has failed

to comply, or proposes or threatens to fail to comply, with

the terms of the covenant.

(3) Where a person:

(a) issues an invitation to another person to enter into a contract

containing a covenant;

(b) makes an offer to another person to enter into a contract

containing a covenant; or

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(c) makes it known that the person will not enter into a contract

of a particular kind unless the contract contains a covenant of

a particular kind or in particular terms;

the first-mentioned person shall, by issuing that invitation, making

that offer or making that fact known, be deemed to require the

giving of the covenant.

(4) For the purposes of this section, a covenant or proposed covenant

shall be deemed to have, or to be likely to have, the effect of

substantially lessening competition in a market if the covenant or

proposed covenant, as the case may be, would have, or be likely to

have, that effect when taken together with the effect or likely effect

on competition in that market of any other covenant or proposed

covenant to the benefit of which:

(a) a person who is or would be, or but for subsection (1) would

be, entitled to the benefit of the first-mentioned covenant or

proposed covenant; or

(b) a person associated with the person referred to in

paragraph (a);

is or would be, or but for subsection (1) would be, entitled.

(5) The requiring of the giving of, or the giving of, a covenant does not

constitute a contravention of this section by reason that giving

effect to the covenant would, or would but for the operation of

subsection 88(8) or section 93, constitute a contravention of

section 47 and this section does not apply to or in relation to

engaging in conduct in relation to a covenant by way of:

(a) conduct that contravenes, or would but for the operation of

subsection 88(8) or section 93 contravene, section 47; or

(b) doing an act by reason of a breach or threatened breach of a

condition referred to in subsection 47(2), (4), (6) or (8), being

an act done by a person at a time when:

(i) an authorization under subsection 88(8) is in force in

relation to conduct engaged in by that person on that

condition; or

(ii) by reason of subsection 93(7) conduct engaged in by

that person on that condition is not to be taken to have

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the effect of substantially lessening competition within

the meaning of section 47; or

(iii) a notice under subsection 93(1) is in force in relation to

conduct engaged in by that person on that condition.

(6) This section does not apply to or in relation to a covenant or

proposed covenant where the only persons who are or would be

respectively bound by, or entitled to the benefit of, the covenant or

proposed covenant are persons who are associated with each other

or are bodies corporate that are related to each other.

(7) For the purposes of this section, section 45C and

subparagraph 87(3)(a)(ii), the first person and another person (the

second person) shall be taken to be associated with each other in

relation to a covenant or proposed covenant if, and only if:

(a) the first person is a body corporate and the second person is

under an obligation (otherwise than in pursuance of the

covenant or proposed covenant), whether formal or informal,

to act in accordance with directions, instructions or wishes of

the first person in relation to the covenant or proposed

covenant; or

(b) the second person is a body corporate in relation to which the

first person is in the position mentioned in

subparagraph 4A(1)(a)(ii).

(8) The requiring by a person of the giving of, or the giving by a

person of, a covenant in relation to which subsection 88(5) applies

is not a contravention of subsection (2) of this section if:

(a) the covenant is subject to a condition that the covenant will

not come into force unless and until the person is granted an

authorization to require the giving of, or to give, the

covenant; and

(b) the person applies for the grant of such an authorization

within 14 days after the covenant is given;

but nothing in this subsection affects the application of

paragraph (2)(b) or (c) in relation to the covenant.

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(9) This section does not apply to or in relation to a covenant or

proposed covenant if:

(a) the sole or principal purpose for which the covenant was or is

required to be given was or is to prevent the relevant land

from being used otherwise than for residential purposes; or

(b) both of the following subparagraphs apply:

(i) the person who required or requires the covenant to be

given was or is, at that time, a registered charity;

(ii) the covenant was or is required to be given for or in

accordance with the purposes or objects of that

registered charity; or

(c) both of the following subparagraphs apply:

(i) the covenant was or is required to be given in pursuance

of a legally enforceable requirement made by a

registered charity;

(ii) that legally enforceable requirement was or is made for

or in accordance with the purposes or objects of that

registered charity.

45C Covenants in relation to prices

(1) In the application of subsection 45B(1) in relation to a covenant

that has, or is likely to have, the effect of fixing, controlling or

maintaining, or providing for the fixing, controlling or maintaining

of, the price for, or a discount, allowance, rebate or credit in

relation to, goods or services supplied or acquired by the persons

who are, or but for that subsection would be, bound by or entitled

to the benefit of the covenant, or by any of them, or by any persons

associated with any of them, in competition with each other, that

subsection has effect as if the words “if the covenant has, or is

likely to have, the effect of substantially lessening competition in

any market in which the first person or any person associated with

the first person supplies or acquires, or is likely to supply or

acquire, goods or services or would, but for the covenant, supply or

acquire, or be likely to supply or acquire, goods or services” were

omitted.

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(2) In the application of subsection 45B(2) in relation to a proposed

covenant that has the purpose, or would have or be likely to have

the effect, of fixing, controlling or maintaining, or providing for

the fixing, controlling or maintaining of, the price for, or a

discount, allowance, rebate or credit in relation to, goods or

services supplied or acquired by the persons who would, or would

but for subsection 45B(1), be bound by or entitled to the benefit of

the proposed covenant, or by any of them, or by any persons

associated with any of them, in competition with each other,

paragraph 45B(2)(a) has effect as if all the words after the words

“require the giving of a covenant, or give a covenant” were

omitted.

(3) For the purposes of this Act, a covenant shall not be taken not to

have, or not to be likely to have, the effect, or a proposed covenant

shall not be taken not to have the purpose, or not to have, or not to

be likely to have, the effect, of fixing, controlling or maintaining,

or providing for the fixing, controlling or maintaining of, the price

for, or a discount, allowance, rebate or credit in relation to, goods

or services by reason only of:

(a) the form of the covenant or proposed covenant; or

(b) any description given to the covenant by any of the persons

who are, or but for subsection 45B(1) would be, bound by or

entitled to the benefit of the covenant or any description

given to the proposed covenant by any of the persons who

would, or would but for subsection 45B(1), be bound by or

entitled to the benefit of the proposed covenant.

(4) For the purposes of the preceding provisions of this section, but

without limiting the generality of those provisions:

(a) a covenant shall be deemed to have, or to be likely to have,

the effect of fixing, controlling or maintaining, or providing

for the fixing, controlling or maintaining of, the price for, or

a discount, allowance, rebate or credit in relation to, goods or

services supplied as mentioned in subsection (1) if the

covenant has, or is likely to have, the effect of fixing,

controlling or maintaining, or providing for the fixing,

controlling or maintaining of, such a price, discount,

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allowance, rebate or credit in relation to a re-supply of the

goods or services by persons to whom the goods or services

are supplied by the persons who are, or but for

subsection 45B(1) would be, bound by or entitled to the

benefit of the covenant, or by any of them, or by any persons

associated with any of them; and

(b) a proposed covenant shall be deemed to have the purpose, or

to have, or to be likely to have, the effect, of fixing,

controlling or maintaining, or providing for the fixing,

controlling or maintaining of, the price for, or a discount,

allowance, rebate or credit in relation to, goods or services

supplied as mentioned in subsection (2) if the proposed

covenant has the purpose, or would have or be likely to have

the effect, as the case may be, of fixing, controlling or

maintaining, or providing for the fixing, controlling or

maintaining of, such a price, discount, allowance, rebate or

credit in relation to a re-supply of the goods or services by

persons to whom the goods or services are supplied by the

persons who would, or would but for subsection 45B(1), be

bound by or entitled to the benefit of the proposed covenant,

or by any of them, or by any persons associated with any of

them.

(5) The reference in subsection (1) to the supply or acquisition of

goods or services by persons in competition with each other

includes a reference to the supply or acquisition of goods or

services by persons who, but for a provision of any contract,

arrangement or understanding or of any proposed contract,

arrangement or understanding, would be, or would be likely to be,

in competition with each other in relation to the supply or

acquisition of the goods or services.

45D Secondary boycotts for the purpose of causing substantial loss

or damage

(1) A person must not, in concert with a second person, engage in

conduct:

(a) that hinders or prevents:

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(i) a third person supplying goods or services to a fourth

person (who is not an employer of the first person or the

second person); or

(ii) a third person acquiring goods or services from a fourth

person (who is not an employer of the first person or the

second person); and

(b) that is engaged in for the purpose, and would have or be

likely to have the effect, of causing substantial loss or

damage to the business of the fourth person.

Note 1: Conduct that would otherwise contravene this section can be

authorised under subsection 88(7).

Note 2: This section also has effect subject to section 45DD, which deals with

permitted boycotts.

(2) A person is taken to engage in conduct for a purpose mentioned in

subsection (1) if the person engages in the conduct for purposes

that include that purpose.

45DA Secondary boycotts for the purpose of causing substantial

lessening of competition

(1) A person must not, in concert with a second person, engage in

conduct:

(a) that hinders or prevents:

(i) a third person supplying goods or services to a fourth

person (who is not an employer of the first person or the

second person); or

(ii) a third person acquiring goods or services from a fourth

person (who is not an employer of the first person or the

second person); and

(b) that is engaged in for the purpose, and would have or be

likely to have the effect, of causing a substantial lessening of

competition in any market in which the fourth person

supplies or acquires goods or services.

Note 1: Conduct that would otherwise contravene this section can be

authorised under subsection 88(7).

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Note 2: This section also has effect subject to section 45DD, which deals with

permitted boycotts.

(2) A person is taken to engage in conduct for a purpose mentioned in

subsection (1) if the person engages in the conduct for purposes

that include that purpose.

Note: This version of Part IV does not contain an equivalent of

section 45DB of the Competition and Consumer Act 2010.

45DC Involvement and liability of employee organisations

Certain organisations taken to be acting in concert

(1) If 2 or more persons (the participants), each of whom is a member

or officer of the same organisation of employees, engage in

conduct in concert with one another, whether or not the conduct is

also engaged in in concert with another person, then, unless the

organisation proves otherwise, the organisation is taken for the

purposes of sections 45D and 45DA:

(a) to engage in that conduct in concert with the participants; and

(b) to have engaged in that conduct for the purposes for which

the participants engaged in it.

Consequences of organisation contravening subsection 45D(1) or

45DA(1)

(2) The consequences of an organisation of employees engaging, or

being taken by subsection (1) to engage, in conduct in concert with

any of its members or officers in contravention of

subsection 45D(1) or 45DA(1) are as set out in subsections (3), (4)

and (5).

Loss or damage taken to have been caused by organisation’s

conduct

(3) Any loss or damage suffered by a person as a result of the conduct

is taken, for the purposes of this Act, to have been caused by the

conduct of the organisation.

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Taking proceedings if organisation is a body corporate

(4) If the organisation is a body corporate, no action under section 82

to recover the amount of the loss or damage may be brought

against any of the members or officers of the organisation in

respect of the conduct.

Taking proceedings if organisation is not a body corporate

(5) If the organisation is not a body corporate:

(a) a proceeding in respect of the conduct may be brought under

section 77, 80 or 82 against an officer of the organisation as a

representative of the organisation’s members and the

proceeding is taken to be a proceeding against all the persons

who were members of the organisation at the time when the

conduct was engaged in; and

(b) subsection 76(2) does not prevent an order being made in a

proceeding mentioned in paragraph (a) that was brought

under section 77; and

(c) the maximum pecuniary penalty that may be imposed in a

proceeding mentioned in paragraph (a) that was brought

under section 77 is the penalty applicable under section 76 in

relation to a body corporate; and

(d) except as provided by paragraph (a), a proceeding in respect

of the conduct must not be brought under section 77 or 82

against any of the members or officers of the organisation;

and

(e) for the purpose of enforcing any judgment or order given or

made in a proceeding mentioned in paragraph (a) that was

brought under section 77 or 82, process may be issued and

executed against the following property or interests as if the

organisation were a body corporate and the absolute owner of

the property or interests:

(i) any property of the organisation or of any branch or part

of the organisation, whether vested in trustees or

however otherwise held;

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(ii) any property in which the organisation or any branch or

part of the organisation has a beneficial interest,

whether vested in trustees or however otherwise held;

(iii) any property in which any members of the organisation

or of a branch or part of the organisation have a

beneficial interest in their capacity as members, whether

vested in trustees or however otherwise held; and

(f) if paragraph (e) applies, no process is to be issued or

executed against any property of members or officers of the

organisation or of a branch or part of the organisation except

as provided in that paragraph.

45DD Situations in which boycotts permitted

Dominant purpose of conduct relates to employment matters—

conduct by a person

(1) A person does not contravene, and is not involved in a

contravention of, subsection 45D(1) or 45DA(1) by engaging in

conduct if the dominant purpose for which the conduct is engaged

in is substantially related to the remuneration, conditions of

employment, hours of work or working conditions of that person or

of another person employed by an employer of that person.

Dominant purpose of conduct relates to employment matters—

conduct by employee organisation and employees

(2) If:

(a) an employee, or 2 or more employees who are employed by

the same employer, engage in conduct in concert with

another person who is, or with other persons each of whom

is:

(i) an organisation of employees; or

(ii) an officer of an organisation of employees; and

(b) the conduct is only engaged in by the persons covered by

paragraph (a); and

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(c) the dominant purpose for which the conduct is engaged in is

substantially related to the remuneration, conditions of

employment, hours of work or working conditions of the

employee, or any of the employees, covered by

paragraph (a);

the persons covered by paragraph (a) do not contravene, and are

not involved in a contravention of, subsection 45D(1) or 45DA(1)

by engaging in the conduct.

Dominant purpose of conduct relates to environmental protection

or consumer protection

(3) A person does not contravene, and is not involved in a

contravention of, subsection 45D(1) or 45DA(1) by engaging in

conduct if:

(a) the dominant purpose for which the conduct is engaged in is

substantially related to environmental protection or consumer

protection; and

(b) engaging in the conduct is not industrial action.

Note 1: If an environmental organisation or a consumer organisation is a body

corporate:

(a) it is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption; and

(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption.

Note 2: If an environmental organisation or a consumer organisation is not a

body corporate:

(a) it is not a “person” and is therefore not subject to the prohibitions in subsections 45D(1) and 45DA(1) (consequently, this exemption does not cover the organisation as such); but

(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption.

Meaning of industrial action—basic definition

(4) In subsection (3), industrial action means:

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(a) the performance of work in a manner different from that in

which it is customarily performed, or the adoption of a

practice in relation to work, the result of which is a restriction

or limitation on, or a delay in, the performance of the work,

where:

(i) the terms and conditions of the work are prescribed,

wholly or partly, by a workplace instrument or an order

of an industrial body; or

(ii) the work is performed, or the practice is adopted, in

connection with an industrial dispute; or

(b) a ban, limitation or restriction on the performance of work, or

on acceptance of or offering for work, in accordance with the

terms and conditions prescribed by a workplace instrument or

by an order of an industrial body; or

(c) a ban, limitation or restriction on the performance of work, or

on acceptance of or offering for work, that is adopted in

connection with an industrial dispute; or

(d) a failure or refusal by persons to attend for work or a failure

or refusal to perform any work at all by persons who attend

for work.

For this purpose, industrial body and workplace instrument have

the same meanings as in the Fair Work Act 2009.

Meaning of industrial action—further clarification

(5) For the purposes of subsection (3):

(a) conduct is capable of constituting industrial action even if the

conduct relates to part only of the duties that persons are

required to perform in the course of their employment; and

(b) a reference to industrial action includes a reference to a

course of conduct consisting of a series of industrial actions.

Subsections (1), (2) and (3) do not protect people not covered by

them

(6) In applying subsection 45D(1) or 45DA(1) to a person who is not

covered by subsection (1), (2) or (3) in respect of certain conduct,

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disregard the fact that other persons may be covered by one of

those subsections in respect of the same conduct.

Note: Section 415 of the Fair Work Act 2009 limits the right to bring actions

under the Competition Code in respect of industrial action that is

protected action for the purposes of that section.

45E Prohibition of contracts, arrangements or understandings

affecting the supply or acquisition of goods or services

Situations to which section applies

(1) This section applies in the following situations:

(a) a supply situation—in this situation, a person (the first

person) has been accustomed, or is under an obligation, to

supply goods or services to another person (the second

person); or

(b) an acquisition situation—in this situation, a person (the first

person) has been accustomed, or is under an obligation, to

acquire goods or services from another person (the second

person).

Note : For the meanings of accustomed to supply and accustomed to

acquire, see subsections (5) and (7).

Prohibition in a supply situation

(2) In a supply situation, the first person must not make a contract or

arrangement, or arrive at an understanding, with an organisation of

employees, an officer of such an organisation or a person acting for

and on behalf of such an officer or organisation, if the proposed

contract, arrangement or understanding contains a provision

included for the purpose, or for purposes including the purpose, of:

(a) preventing or hindering the first person from supplying or

continuing to supply such goods or services to the second

person; or

(b) preventing or hindering the first person from supplying or

continuing to supply such goods or services to the second

person, except subject to a condition:

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(i) that is not a condition to which the supply of such goods

or services by the first person to the second person has

previously been subject because of a provision in a

contract between those persons; and

(ii) that is about the persons to whom, the manner in which

or the terms on which the second person may supply

any goods or services.

Prohibition in an acquisition situation

(3) In an acquisition situation, the first person must not make a

contract or arrangement, or arrive at an understanding, with an

organisation of employees, an officer of such an organisation or a

person acting for and on behalf of such an officer or organisation,

if the proposed contract, arrangement or understanding contains a

provision included for the purpose, or for purposes including the

purpose, of:

(a) preventing or hindering the first person from acquiring or

continuing to acquire such goods or services from the second

person; or

(b) preventing or hindering the first person from acquiring or

continuing to acquire such goods or services from the second

person, except subject to a condition:

(i) that is not a condition to which the acquisition of such

goods or services by the first person from the second

person has previously been subject because of a

provision in a contract between those persons; and

(ii) that is about the persons to whom, the manner in which

or the terms on which the second person may supply

any goods or services.

No contravention if second person gives written consent to written

contract etc.

(4) Subsections (2) and (3) do not apply to a contract, arrangement or

understanding if it is in writing and was made or arrived at with the

written consent of the second person.

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Meaning of accustomed to supply

(5) In this section, a reference to a person who has been accustomed to

supply goods or services to a second person includes (subject to

subsection (6)):

(a) a regular supplier of such goods or services to the second

person; or

(b) the latest supplier of such goods or services to the second

person; or

(c) a person who, at any time during the immediately preceding

3 months, supplied such goods or services to the second

person.

Exception to subsection (5)

(6) If:

(a) goods or services have been supplied by a person to a second

person under a contract between them that required the first

person to supply such goods or services over a period; and

(b) the period has ended; and

(c) after the end of the period, the second person has been

supplied with such goods or services by another person and

has not also been supplied with such goods or services by the

first person;

then, for the purposes of the application of this section in relation

to anything done after the second person has been supplied with

goods or services as mentioned in paragraph (c), the first person is

not to be taken to be a person who has been accustomed to supply

such goods or services to the second person.

Meaning of accustomed to acquire

(7) In this section, a reference to a person who has been accustomed to

acquire goods or services from a second person includes (subject

to subsection (8)):

(a) a regular acquirer of such goods or services from the second

person; or

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(b) a person who, when last acquiring such goods or services,

acquired them from the second person; or

(c) a person who, at any time during the immediately preceding

3 months, acquired such goods or services from the second

person.

Exception to subsection (7)

(8) If:

(a) goods or services have been acquired by a person from a

second person under a contract between them that required

the first person to acquire such goods or services over a

period; and

(b) the period has ended; and

(c) after the end of the period, the second person has refused to

supply such goods or services to the first person;

then, for the purposes of the application of this section in relation

to anything done after the second person has refused to supply

goods or services as mentioned in paragraph (c), the first person is

not to be taken to be a person who has been accustomed to acquire

such goods or services from the second person.

Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(7A).

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

A person must not give effect to a provision of a contract,

arrangement or understanding if, because of the provision, the

making of the contract or arrangement, or the arriving at the

understanding, by the person:

(a) contravened subsection 45E(2) or (3); or

(b) would have contravened subsection 45E(2) or (3) if:

(i) section 45E had been in force when the contract or

arrangement was made, or the understanding was

arrived at; and

(ii) the words “is in writing and” and “written” were not

included in subsection 45E(4).

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Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(7A).

45EB Sections 45D to 45EA do not affect operation of other

provisions of Part

Nothing in section 45D, 45DA, 45DC, 45DD, 45E or 45EA affects

the operation of any other provision of this Part.

46 Misuse of market power

(1) A person (the first person) who has a substantial degree of power

in a market shall not take advantage of that power in that or any

other market for the purpose of:

(a) eliminating or substantially damaging a competitor of the

first person or of a body corporate that is related to the first

person in that or any other market;

(b) preventing the entry of a person into that or any other market;

or

(c) deterring or preventing a person from engaging in

competitive conduct in that or any other market.

(1AAA) If a person supplies goods or services for a sustained period at a

price that is less than the relevant cost to the person of supplying

the goods or services, the person may contravene subsection (1)

even if the person cannot, and might not ever be able to, recoup

losses incurred by supplying the goods or services.

(1AA) A person that has a substantial share of a market must not supply,

or offer to supply, goods or services for a sustained period at a

price that is less than the relevant cost to the person of supplying

such goods or services, for the purpose of:

(a) eliminating or substantially damaging a competitor of the

person or of a body corporate that is related to the person in

that or any other market; or

(b) preventing the entry of a person into that or any other market;

or

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(c) deterring or preventing a person from engaging in

competitive conduct in that or any other market.

(1AB) For the purposes of subsection (1AA), without limiting the matters

to which the Court may have regard for the purpose of determining

whether a person has a substantial share of a market, the Court may

have regard to the number and size of the competitors of the person

in the market.

(1A) For the purposes of subsections (1) and (1AA):

(a) the reference in paragraphs (1)(a) and (1AA)(a) to a

competitor includes a reference to competitors generally, or

to a particular class or classes of competitors; and

(b) the reference in paragraphs (1)(b) and (c) and (1AA)(b) and

(c) to a person includes a reference to persons generally, or to

a particular class or classes of persons.

(2) If:

(a) a body corporate that is related to a person (the first person)

has, or 2 or more bodies corporate each of which is related to

the one person (the first person) together have, a substantial

degree of power in a market; or

(b) a person (the first person) and a body corporate that is, or a

person (the first person) and 2 or more bodies corporate each

of which is, related to the first person, together have a

substantial degree of power in a market;

the first person shall be taken for the purposes of this section to

have a substantial degree of power in that market.

(3) In determining for the purposes of this section the degree of power

that a person (the first person) or bodies corporate has or have in a

market, the court shall have regard to the extent to which the

conduct of the first person or of any of those bodies corporate in

that market is constrained by the conduct of:

(a) competitors, or potential competitors, of the first person or of

any of those bodies corporate in that market; or

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(b) persons to whom or from whom the first person or any of

those bodies corporate supplies or acquires goods or services

in that market.

(3A) In determining for the purposes of this section the degree of power

that a person (the first person) or bodies corporate has or have in a

market, the court may have regard to the power the first person or

bodies corporate has or have in that market that results from:

(a) any contracts, arrangements or understandings, or proposed

contracts, arrangements or understandings, that the first

person or bodies corporate has or have, or may have, with

another party or other parties; and

(b) any covenants, or proposed covenants, that the first person or

bodies corporate is or are, or would be, bound by or entitled

to the benefit of.

(3B) Subsections (3) and (3A) do not, by implication, limit the matters

to which regard may be had in determining, for the purposes of this

section, the degree of power that a person or bodies corporate has

or have in a market.

(3C) For the purposes of this section, 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 market, a

person may have a substantial degree of power in a 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.

(3D) To avoid doubt, for the purposes of this section, more than 1

person may have a substantial degree of power in a market.

(4) In this section:

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(a) a reference to power is a reference to market power;

(b) a reference to a market is a reference to a market for goods or

services; and

(c) a reference to power in relation to, or to conduct in, a 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.

(4A) Without limiting the matters to which the court may have regard

for the purpose of determining whether a person has contravened

subsection (1), the court may have regard to:

(a) any conduct of the person that consisted of supplying goods

or services for a sustained period at a price that was less than

the relevant cost to the person of supplying such goods or

services; and

(b) the reasons for that conduct.

(5) Without extending by implication the meaning of subsection (1), a

person shall not be taken to contravene that subsection by reason

only that the person acquires plant or equipment.

(6) This section does not prevent a person from engaging in conduct

that does not constitute a contravention of any of the following

sections, namely, sections 45, 45B, 47, 49 and 50, by reason that an

authorization or clearance is in force or by reason of the operation

of subsection 45(8A) or section 93.

(6A) In determining for the purposes of this section whether, by

engaging in conduct, a person has taken advantage of the person’s

substantial degree of power in a market, the court may have regard

to any or all of the following:

(a) whether the conduct was materially facilitated by the

person’s substantial degree of power in the market;

(b) whether the person engaged in the conduct in reliance on the

person’s substantial degree of power in the market;

(c) whether it is likely that the person would have engaged in the

conduct if the person did not have a substantial degree of

power in the market;

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(d) whether the conduct is otherwise related to the person’s

substantial degree of power in the market.

This subsection does not limit the matters to which the court may

have regard.

(7) Without in any way limiting the manner in which the purpose of a

person may be established for the purposes of any other provision

of this Act, a person may be taken to have taken advantage of the

person’s power for a purpose referred to in subsection (1)

notwithstanding that, after all the evidence has been considered,

the existence of that purpose is ascertainable only by inference

from the conduct of the person or of any other person or from other

relevant circumstances.

47 Exclusive dealing

(1) Subject to this section, a person shall not, in trade or commerce,

engage in the practice of exclusive dealing.

(2) A person (the first person) engages in the practice of exclusive

dealing if the first person:

(a) supplies, or offers to supply, goods or services;

(b) supplies, or offers to supply, goods or services at a particular

price; or

(c) gives or allows, or offers to give or allow, a discount,

allowance, rebate or credit in relation to the supply or

proposed supply of goods or services by the first person;

on the condition that the person (the second person) to whom the

first person supplies, or offers or proposes to supply, the goods or

services or, if the second person is a body corporate, a body

corporate related to that body corporate:

(d) will not, or will not except to a limited extent, acquire goods

or services, or goods or services of a particular kind or

description, directly or indirectly from a competitor of the

first person or from a competitor of a body corporate related

to the first person;

(e) will not, or will not except to a limited extent, re-supply

goods or services, or goods or services of a particular kind or

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description, acquired directly or indirectly from a competitor

of the first person or from a competitor of a body corporate

related to the first person; or

(f) in the case where the first person supplies or would supply

goods or services, will not re-supply the goods or services to

any person, or will not, or will not except to a limited extent,

re-supply the goods or services:

(i) to particular persons or classes of persons or to persons

other than particular persons or classes of persons; or

(ii) in particular places or classes of places or in places

other than particular places or classes of places.

(3) A person (the first person) also engages in the practice of

exclusive dealing if the first person refuses:

(a) to supply goods or services to a second person;

(b) to supply goods or services to a second person at a particular

price; or

(c) to give or allow a discount, allowance, rebate or credit in

relation to the supply or proposed supply of goods or services

to a second person;

for the reason that the second person or, if the second person is a

body corporate, a body corporate related to that body corporate:

(d) has acquired, or has not agreed not to acquire, goods or

services, or goods or services of a particular kind or

description, directly or indirectly from a competitor of the

first person or from a competitor of a body corporate related

to the first person;

(e) has re-supplied, or has not agreed not to re-supply, goods or

services, or goods or services of a particular kind or

description, acquired directly or indirectly from a competitor

of the first person or from a competitor of a body corporate

related to the first person; or

(f) has re-supplied, or has not agreed not to re-supply, goods or

services, or goods or services of a particular kind or

description, acquired from the first person to any person, or

has re-supplied, or has not agreed not to re-supply, goods or

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services, or goods or services of a particular kind or

description, acquired from the first person:

(i) to particular persons or classes of persons or to persons

other than particular persons or classes of persons; or

(ii) in particular places or classes of places or in places

other than particular places or classes of places.

(4) A person (the first person) also engages in the practice of

exclusive dealing if the first person:

(a) acquires, or offers to acquire, goods or services; or

(b) acquires, or offers to acquire, goods or services at a particular

price;

on the condition that the person (the second person) from whom

the first person acquires or offers to acquire the goods or services

or, if the second person is a body corporate, a body corporate

related to that body corporate will not supply goods or services, or

goods or services of a particular kind or description, to any person,

or will not, or will not except to a limited extent, supply goods or

services, or goods or services of a particular kind or description:

(c) to particular persons or classes of persons or to persons other

than particular persons or classes of persons; or

(d) in particular places or classes of places or in places other than

particular places or classes of places.

(5) A person (the first person) also engages in the practice of

exclusive dealing if the first person refuses:

(a) to acquire goods or services from a second person; or

(b) to acquire goods or services at a particular price from a

second person;

for the reason that the second person or, if the second person is a

body corporate, a body corporate related to that body corporate has

supplied, or has not agreed not to supply, goods or services, or

goods or services of a particular kind or description:

(c) to particular persons or classes of persons or to persons other

than particular persons or classes of persons; or

(d) in particular places or classes of places or in places other than

particular places or classes of places.

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(6) A person (the first person) also engages in the practice of

exclusive dealing if the first person:

(a) supplies, or offers to supply, goods or services;

(b) supplies, or offers to supply, goods or services at a particular

price; or

(c) gives or allows, or offers to give or allow, a discount,

allowance, rebate or credit in relation to the supply or

proposed supply of goods or services by the first person;

on the condition that the person (the second person) to whom the

first person supplies or offers or proposes to supply the goods or

services or, if the second person is a body corporate, a body

corporate related to that body corporate will acquire goods or

services of a particular kind or description directly or indirectly

from another person not being a body corporate related to the first

person.

(7) A person (the first person) also engages in the practice of

exclusive dealing if the first person refuses:

(a) to supply goods or services to a second person;

(b) to supply goods or services at a particular price to a second

person; or

(c) to give or allow a discount, allowance, rebate or credit in

relation to the supply of goods or services to a second person;

for the reason that the second person or, if the second person is a

body corporate, a body corporate related to that body corporate has

not acquired, or has not agreed to acquire, goods or services of a

particular kind or description directly or indirectly from another

person not being a body corporate related to the first person.

(8) A person (the first person) also engages in the practice of

exclusive dealing if the first person grants or renews, or makes it

known that the first person will not exercise a power or right to

terminate, a lease of, or a licence in respect of, land or a building or

part of a building on the condition that another party to the lease or

licence or, if that other party is a body corporate, a body corporate

related to that body corporate:

(a) will not, or will not except to a limited extent:

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(i) acquire goods or services, or goods or services of a

particular kind or description, directly or indirectly from

a competitor of the first person or from a competitor of

a body corporate related to the first person; or

(ii) re-supply goods or services, or goods or services of a

particular kind or description, acquired directly or

indirectly from a competitor of the first person or from a

competitor of a body corporate related to the first

person;

(b) will not supply goods or services, or goods or services of a

particular kind or description, to any person, or will not, or

will not except to a limited extent, supply goods or services,

or goods or services of a particular kind or description:

(i) to particular persons or classes of persons or to persons

other than particular persons or classes of persons; or

(ii) in particular places or classes of places or in places

other than particular places or classes of places; or

(c) will acquire goods or services of a particular kind or

description directly or indirectly from another person not

being a body corporate related to the first person.

(9) A person (the first person) also engages in the practice of

exclusive dealing if the first person refuses to grant or renew, or

exercises a power or right to terminate, a lease of, or a licence in

respect of, land or a building or part of a building for the reason

that another party to the lease or licence or, if that other party is a

body corporate, a body corporate related to that body corporate:

(a) has acquired, or has not agreed not to acquire, goods or

services, or goods or services of a particular kind or

description, directly or indirectly from a competitor of the

first person or from a competitor of a body corporate related

to the first person;

(b) has re-supplied, or has not agreed not to re-supply, goods or

services, or goods or services of a particular kind or

description, acquired directly or indirectly from a competitor

of the first person or from a competitor of a body corporate

related to the first person;

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(c) has supplied goods or services, or goods or services of a

particular kind or description:

(i) to particular persons or classes of persons or to persons

other than particular persons or classes of persons; or

(ii) in particular places or classes of places or in places

other than particular places or classes of places; or

(d) has not acquired, or has not agreed to acquire, goods or

services of a particular kind or description directly or

indirectly from another person not being a body corporate

related to the first person.

(10) Subsection (1) does not apply to the practice of exclusive dealing

constituted by a person engaging in conduct of a kind referred to in

subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or (9)(a),

(b) or (c) unless:

(a) the engaging by the person in that conduct has the purpose,

or has or is likely to have the effect, of substantially lessening

competition; or

(b) the engaging by the person in that conduct, and the engaging

by the person, or by a body corporate related to the person, in

other conduct of the same or a similar kind, together have or

are likely to have the effect of substantially lessening

competition.

(10A) Subsection (1) does not apply to a person engaging in conduct

described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if:

(a) the person has given the Commission a notice under

subsection 93(1) describing the conduct; and

(b) the notice is in force under section 93.

(11) Subsections (8) and (9) do not apply with respect to:

(a) conduct engaged in:

(i) by a registered charity; and

(ii) for or in accordance with the purposes or objects of that

registered charity; or

(b) conduct engaged in in pursuance of a legally enforceable

requirement made by a registered charity, being a

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requirement made for or in accordance with the purposes or

objects of that registered charity.

(12) Subsection (1) does not apply with respect to any conduct engaged

in by a body corporate by way of restricting dealings by another

body corporate if those bodies corporate are related to each other.

(13) In this section:

(a) a reference to a condition shall be read as a reference to any

condition, whether direct or indirect and whether having

legal or equitable force or not, and includes a reference to a

condition the existence or nature of which is ascertainable

only by inference from the conduct of persons or from other

relevant circumstances;

(b) a reference to competition, in relation to conduct to which a

provision of this section other than subsection (8) or (9)

applies, shall be read as a reference to competition in any

market in which:

(i) the person engaging in the conduct or any body

corporate related to that person; or

(ii) any person whose business dealings are restricted,

limited or otherwise circumscribed by the conduct or, if

that person is a body corporate, any body corporate

related to that body corporate;

supplies or acquires, or is likely to supply or acquire, goods

or services or would, but for the conduct, supply or acquire,

or be likely to supply or acquire, goods or services; and

(c) a reference to competition, in relation to conduct to which

subsection (8) or (9) applies, shall be read as a reference to

competition in any market in which the person engaging in

the conduct or any other person whose business dealings are

restricted, limited or otherwise circumscribed by the conduct,

or any body corporate related to either of those persons,

supplies or acquires, or is likely to supply or acquire, goods

or services or would, but for the conduct, supply or acquire,

or be likely to supply or acquire, goods or services.

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48 Resale price maintenance

A person shall not engage in the practice of resale price

maintenance.

49 Dual listed company arrangements that affect competition

(1) A person must not:

(a) make a dual listed company arrangement if a provision of the

proposed arrangement has the purpose, or would have or be

likely to have the effect, of substantially lessening

competition; or

(b) give effect to a provision of a dual listed company

arrangement if that provision has the purpose, or has or is

likely to have the effect, of substantially lessening

competition.

Note: Conduct that would otherwise contravene this section can be

authorised under subsection 88(8B).

Exception

(2) The making by a person of a dual listed company arrangement that

contains a provision that has the purpose, or would have or be

likely to have the effect, of substantially lessening competition

does not contravene this section if:

(a) the arrangement is subject to a condition that the provision

will not come into force unless and until the person is granted

an authorisation to give effect to the provision; and

(b) the person applies for the grant of such an authorisation

within 14 days after the arrangement is made.

However, this subsection does not permit the person to give effect

to such a provision.

Meaning of competition

(3) For the purposes of this section, competition, in relation to a

provision of a dual listed company arrangement or of a proposed

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dual listed company arrangement, means competition in any

market in which:

(a) a person that is a party to the arrangement or would be a

party to the proposed arrangement; or

(b) any body corporate related to such a person;

supplies or acquires, or is likely to supply or acquire, goods or

services or would, apart from the provision, supply or acquire, or

be likely to supply or acquire, goods or services.

(4) For the purposes of the application of this section in relation to a

particular person, a provision of a dual listed company arrangement

or of a proposed dual listed company arrangement is taken to have,

or to be likely to have, the effect of substantially lessening

competition if that provision and any one or more of the following

provisions:

(a) the other provisions of that arrangement or proposed

arrangement;

(b) the provisions of any other contract, arrangement or

understanding or proposed contract, arrangement or

understanding to which the person or a body corporate

related to the person is or would be a party;

together have or are likely to have that effect.

50 Prohibition of acquisitions that would result in a substantial

lessening of competition

(1) A person must not directly or indirectly:

(a) acquire shares in the capital of a body corporate; or

(b) acquire any assets of a person;

if the acquisition would have the effect, or be likely to have the

effect, of substantially lessening competition in any market.

Note: The person will not be prevented from making the acquisition if the

corporation is granted a clearance or an authorisation for the

acquisition under Division 3 of Part VII: see subsections 95AC(2) and

95AT(2).

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(3) Without limiting the matters that may be taken into account for the

purposes of subsection (1) in determining whether the acquisition

would have the effect, or be likely to have the effect, of

substantially lessening competition in a market, the following

matters must be taken into account:

(a) the actual and potential level of import competition in the

market;

(b) the height of barriers to entry to the market;

(c) the level of concentration in the market;

(d) the degree of countervailing power in the market;

(e) the likelihood that the acquisition would result in the acquirer

being able to significantly and sustainably increase prices or

profit margins;

(f) the extent to which substitutes are available in the market or

are likely to be available in the market;

(g) the dynamic characteristics of the market, including growth,

innovation and product differentiation;

(h) the likelihood that the acquisition would result in the removal

from the market of a vigorous and effective competitor;

(i) the nature and extent of vertical integration in the market.

(4) Where:

(a) a person has entered into a contract to acquire shares in the

capital of a body corporate or assets of a person;

(b) the contract is subject to a condition that the provisions of the

contract relating to the acquisition will not come into force

unless and until the person has been granted a clearance or an

authorization to acquire the shares or assets; and

(c) the person applied for the grant of such a clearance or an

authorization before the expiration of 14 days after the

contract was entered into;

the acquisition of the shares or assets shall not be regarded for the

purposes of this Act as having taken place in pursuance of the

contract before:

(d) the application for the clearance or authorization is disposed

of; or

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(e) the contract ceases to be subject to the condition;

whichever first happens.

(5) For the purposes of subsection (4), an application for a clearance

shall be taken to be disposed of:

(a) in a case to which paragraph (b) of this subsection does not

apply—at the expiration of 14 days after the period in which

an application may be made to the Tribunal for a review of

the determination by the Commission of the application for

the clearance; or

(b) if an application is made to the Tribunal for a review of the

determination by the Commission of the application for the

clearance—at the expiration of 14 days after the date of the

making by the Tribunal of a determination on the review.

(5A) For the purposes of subsection (4), an application for an

authorisation is taken to be disposed of 14 days after the day the

Tribunal makes a determination on the application.

(6) In this section:

market means a market for goods or services in:

(a) Australia; or

(b) a State; or

(c) a Territory; or

(d) a region of Australia.

51 Exceptions

(1) In deciding whether a person has contravened this Part, the

following must be disregarded:

(a) anything that is disregarded for the purposes of Part IV of the

Competition and Consumer Act 2010 because of

subsection 51(1) of that Act;

(b) anything done in a State, if the thing is specified in, and

specifically authorised by:

(i) an Act passed by the Parliament of that State; or

(ii) regulations made under such an Act;

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(c) anything done in the Australian Capital Territory, if the thing

is specified in, and specifically authorised by:

(i) an enactment as defined in section 3 of the Australian

Capital Territory (Self-Government) Act 1988; or

(ii) regulations made under such an enactment;

(d) anything done in the Northern Territory, if the thing is

specified in, and specifically authorised by:

(i) an enactment as defined in section 4 of the Northern

Territory (Self-Government) Act 1978; or

(ii) regulations made under such an enactment;

(e) anything done in another Territory, if the thing is specified

in, and specifically authorised by:

(i) an Ordinance of that Territory; or

(ii) regulations made under such an Ordinance.

(1A) Without limiting subsection (1), conduct is taken to be specified in,

and authorised by, a law for the purposes of that subsection if:

(a) a licence or other instrument issued or made under the law

specifies one or both of the following:

(i) the person authorised to engage in the conduct;

(ii) the place where the conduct is to occur; and

(b) the law specifies the attributes of the conduct except those

mentioned in paragraph (a).

For this purpose, law means a State Act, enactment or Ordinance.

(1B) Subsections (1) and (1A) apply regardless of when the State Acts,

enactments, Ordinances, regulations or instruments referred to in

those subsections were passed, made or issued.

(1C) The operation of subsection (1) (other than paragraph (1)(a)) is

subject to the following limitations:

(a) in order for something to be regarded as specifically

authorised for the purposes of subsection (1), the authorising

provision must expressly refer to the Competition Code;

(b) paragraphs (1)(b), (c), (d) and (e) do not apply in deciding

whether a person has contravened section 50;

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(c) regulations referred to in subparagraph (1)(b)(ii), (c)(ii),

(d)(ii) or (e)(ii) do not have the effect of requiring a particular

thing to be disregarded if the thing happens more than 2

years after those regulations came into operation;

(d) regulations referred to in subparagraph (1)(b)(ii), (c)(ii) or

(d)(ii) do not have the effect of requiring a particular thing to

be disregarded to the extent that the regulations are the same

in substance as other regulations that:

(i) were made for the purposes of the subparagraph

concerned; and

(ii) came into operation more than 2 years before the

particular thing happened.

(2) In determining whether a contravention of a provision of this Part

other than section 45D, 45DA, 45E, 45EA or 48 has been

committed, regard shall not be had:

(a) to any act done in relation to, or to the making of a contract

or arrangement or the entering into of an understanding, or to

any provision of a contract, arrangement or understanding, to

the extent that the contract, arrangement or understanding, or

the provision, relates to, the remuneration, conditions of

employment, hours of work or working conditions of

employees;

(b) to any provision of a contract of service or of a contract for

the provision of services, being a provision under which a

person, not being a body corporate, agrees to accept

restrictions as to the work, whether as an employee or

otherwise, in which he or she may engage during, or after the

termination of, the contract;

(c) to any provision of a contract, arrangement or understanding,

being a provision obliging a person to comply with or apply

standards of dimension, design, quality or performance

prepared or approved by Standards Australia or by a

prescribed association or body;

(d) to any provision of a contract, arrangement or understanding

between partners none of whom is a body corporate, being a

provision in relation to the terms of the partnership or the

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conduct of the partnership business or in relation to

competition between the partnership and a party to the

contract, arrangement or understanding while he or she is, or

after he or she ceases to be, a partner;

(e) in the case of a contract for the sale of a business or of shares

in the capital of a body corporate carrying on a business—to

any provision of the contract that is solely for the protection

of the purchaser in respect of the goodwill of the business; or

(g) to any provision of a contract, arrangement or understanding,

being a provision that relates exclusively to the export of

goods from Australia or to the supply of services outside

Australia, if full and accurate particulars of the provision (not

including particulars of prices for goods or services but

including particulars of any method of fixing, controlling or

maintaining such prices) were furnished to the Commission

before the expiration of 14 days after the date on which the

contract or arrangement was made or the understanding was

arrived at, or before 8 September 1976, whichever was the

later.

(2A) In determining whether a contravention of a provision of this Part

other than section 48 has been committed, regard shall not be had

to any acts done, otherwise than in the course of trade or

commerce, in concert by ultimate users or consumers of goods or

services against the suppliers of those goods or services.

(3) A contravention of a provision of this Part other than section 46 or

48 shall not be taken to have been committed by reason of:

(a) the imposing of, or giving effect to, a condition of:

(i) a licence granted by the proprietor, licensee or owner of

a patent, of a registered design, of a copyright or of EL

rights within the meaning of the Circuit Layouts Act

1989, or by a person who has applied for a patent or for

the registration of a design; or

(ii) an assignment of a patent, of a registered design, of a

copyright or of such EL rights, or of the right to apply

for a patent or for the registration of a design;

to the extent that the condition relates to:

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(iii) the invention to which the patent or application for a

patent relates or articles made by the use of that

invention;

(iv) goods in respect of which the design is, or is proposed

to be, registered and to which it is applied;

(v) the work or other subject matter in which the copyright

subsists; or

(vi) the eligible layout in which the EL rights subsist;

(b) the inclusion in a contract, arrangement or understanding

authorizing the use of a certification trade mark of a

provision in accordance with rules applicable under Part XI

of the Trade Marks Act 1955, or the giving effect to such a

provision; or

(c) the inclusion in a contract, arrangement or understanding

between:

(i) the registered proprietor of a trade mark other than a

certification trade mark; and

(ii) a person registered as a registered user of that trade

mark under Part IX of the Trade Marks Act 1955 or a

person authorized by the contract to use the trade mark

subject to his or her becoming registered as such a

registered user;

of a provision to the extent that it relates to the kinds,

qualities or standards of goods bearing the mark that may be

produced or supplied, or the giving effect to the provision to

that extent.

(4) This section applies in determining whether a provision of a

contract is unenforceable by reason of subsection 45(1), or whether

a covenant is unenforceable by reason of subsection 45B(1), in like

manner as it applies in determining whether a contravention of a

provision of this Part has been committed.

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Schedule 2—The Australian Consumer Law Note: See Part XI.

Chapter 1—Introduction 1 Application of this Schedule

2 Definitions

3 Meaning of consumer

4 Misleading representations with respect to future matters

5 When donations are treated as supplies or acquisitions

6 Related bodies corporate

7 Meaning of manufacturer

8 Goods affixed to land or premises

9 Meaning of safety defect in relation to goods

10 Asserting a right to payment

11 References to acquisition, supply and re-supply

12 Application of Schedule in relation to leases and licences of land

and buildings

13 Loss or damage to include injury

14 Meaning of continuing credit contract

15 Contraventions of this Schedule

16 Severability

17 References to provisions in this Schedule

Chapter 2—General protections

Part 2-1—Misleading or deceptive conduct 18 Misleading or deceptive conduct

19 Application of this Part to information providers

Part 2-2—Unconscionable conduct 20 Unconscionable conduct within the meaning of the unwritten law

21 Unconscionable conduct in connection with goods or services

22 Matters the court may have regard to for the purposes of

section 21

22A Presumptions relating to whether representations are misleading

Part 2-3—Unfair contract terms 23 Unfair terms of consumer contracts

24 Meaning of unfair

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25 Examples of unfair terms

26 Terms that define main subject matter of consumer contracts etc.

are unaffected

27 Standard form contracts

28 Contracts to which this Part does not apply

Chapter 3—Specific protections

Part 3-1—Unfair practices

Division 1—False or misleading representations etc.

29 False or misleading representations about goods or services

30 False or misleading representations about sale etc. of land

31 Misleading conduct relating to employment

32 Offering rebates, gifts, prizes etc.

33 Misleading conduct as to the nature etc. of goods

34 Misleading conduct as to the nature etc. of services

35 Bait advertising

36 Wrongly accepting payment

37 Misleading representations about certain business activities

38 Application of provisions of this Division to information providers

Division 2—Unsolicited supplies

39 Unsolicited cards etc.

40 Assertion of right to payment for unsolicited goods or services

41 Liability etc. of recipient for unsolicited goods

42 Liability of recipient for unsolicited services

43 Assertion of right to payment for unauthorised entries or

advertisements

Division 3—Pyramid schemes

44 Participation in pyramid schemes

45 Meaning of pyramid scheme

46 Marketing schemes as pyramid schemes

Division 4—Pricing

47 Multiple pricing

48 Single price to be specified in certain circumstances

Division 5—Other unfair practices

49 Referral selling

50 Harassment and coercion

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Part 3-2—Consumer transactions

Division 1—Consumer guarantees

Subdivision A—Guarantees relating to the supply of goods

51 Guarantee as to title

52 Guarantee as to undisturbed possession

53 Guarantee as to undisclosed securities etc.

54 Guarantee as to acceptable quality

55 Guarantee as to fitness for any disclosed purpose etc.

56 Guarantee relating to the supply of goods by description

57 Guarantees relating to the supply of goods by sample or

demonstration model

58 Guarantee as to repairs and spare parts

59 Guarantee as to express warranties

Subdivision B—Guarantees relating to the supply of services

60 Guarantee as to due care and skill

61 Guarantees as to fitness for a particular purpose etc.

62 Guarantee as to reasonable time for supply

63 Services to which this Subdivision does not apply

Subdivision C—Guarantees not to be excluded etc. by contract

64 Guarantees not to be excluded etc. by contract

64A Limitation of liability for failures to comply with guarantees

Subdivision D—Miscellaneous

65 Application of this Division to supplies of gas, electricity and

telecommunications

66 Display notices

67 Conflict of laws

68 Convention on Contracts for the International Sale of Goods

Division 2—Unsolicited consumer agreements

Subdivision A—Introduction

69 Meaning of unsolicited consumer agreement

70 Presumption that agreements are unsolicited consumer agreements

71 Meaning of dealer

72 Meaning of negotiation

Subdivision B—Negotiating unsolicited consumer agreements

73 Permitted hours for negotiating an unsolicited consumer

agreement

74 Disclosing purpose and identity

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75 Ceasing to negotiate on request

76 Informing person of termination period etc.

77 Liability of suppliers for contraventions by dealers

Subdivision C—Requirements for unsolicited consumer

agreements etc.

78 Requirement to give document to the consumer

79 Requirements for all unsolicited consumer agreements etc.

80 Additional requirements for unsolicited consumer agreements not

negotiated by telephone

81 Requirements for amendments of unsolicited consumer

agreements

Subdivision D—Terminating unsolicited consumer agreements

82 Terminating an unsolicited consumer agreement during the

termination period

83 Effect of termination

84 Obligations of suppliers on termination

85 Obligations and rights of consumers on termination

86 Prohibition on supplies etc. for 10 business days

87 Repayment of payments received after termination

88 Prohibition on recovering amounts after termination

Subdivision E—Miscellaneous

89 Certain provisions of unsolicited consumer agreements void

90 Waiver of rights

91 Application of this Division to persons to whom rights of

consumers and suppliers are assigned etc.

92 Application of this Division to supplies to third parties

93 Effect of contravening this Division

94 Regulations may limit the application of this Division

95 Application of this Division to certain conduct covered by the

Corporations Act

Division 3—Lay-by agreements

96 Lay-by agreements must be in writing etc.

97 Termination of lay-by agreements by consumers

98 Termination of lay-by agreements by suppliers

99 Effect of termination

Division 4—Miscellaneous

100 Supplier must provide proof of transaction etc.

101 Consumer may request an itemised bill

102 Prescribed requirements for warranties against defects

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103 Repairers must comply with prescribed requirements

Part 3-3—Safety of consumer goods and product related

services

Division 1—Safety standards

104 Making safety standards for consumer goods and product related

services

105 Declaring safety standards for consumer goods and product

related services

106 Supplying etc. consumer goods that do not comply with safety

standards

107 Supplying etc. product related services that do not comply with

safety standards

108 Requirement to nominate a safety standard

Division 2—Bans on consumer goods and product related

services

Subdivision A—Interim bans

109 Interim bans on consumer goods or product related services that

will or may cause injury to any person etc.

110 Places in which interim bans apply

111 Ban period for interim bans

112 Interaction of multiple interim bans

113 Revocation of interim bans

Subdivision B—Permanent bans

114 Permanent bans on consumer goods or product related services

115 Places in which permanent bans apply

116 When permanent bans come into force

117 Revocation of permanent bans

Subdivision C—Compliance with interim bans and permanent

bans

118 Supplying etc. consumer goods covered by a ban

119 Supplying etc. product related services covered by a ban

Subdivision D—Temporary exemption from mutual recognition

principles

120 Temporary exemption under the Trans-Tasman Mutual

Recognition Act 1997

121 Temporary exemption under the Mutual Recognition Act 1992

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Division 3—Recall of consumer goods

Subdivision A—Compulsory recall of consumer goods

122 Compulsory recall of consumer goods

123 Contents of a recall notice

124 Obligations of a supplier in relation to a recall notice

125 Notification by persons who supply consumer goods outside

Australia if there is compulsory recall

126 Interaction of multiple recall notices

127 Compliance with recall notices

Subdivision B—Voluntary recall of consumer goods

128 Notification requirements for a voluntary recall of consumer

goods

Division 4—Safety warning notices

129 Safety warning notices about consumer goods and product

related services

130 Announcement of the results of an investigation etc.

Division 5—Consumer goods, or product related services,

associated with death or serious injury or illness

131 Suppliers to report consumer goods associated with the death or

serious injury or illness of any person

132 Suppliers to report product related services associated with the

death or serious injury or illness of any person

132A Confidentiality of notices given under this Division

Division 6—Miscellaneous

133 Liability under a contract of insurance

Part 3-4—Information standards 134 Making information standards for goods and services

135 Declaring information standards for goods and services

136 Supplying etc. goods that do not comply with information

standards

137 Supplying etc. services that do not comply with information

standards

Part 3-5—Liability of manufacturers for goods with safety

defects

Division 1—Actions against manufacturers for goods with safety

defects

138 Liability for loss or damage suffered by an injured individual

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139 Liability for loss or damage suffered by a person other than an

injured individual

140 Liability for loss or damage suffered by a person if other goods

are destroyed or damaged

141 Liability for loss or damage suffered by a person if land,

buildings or fixtures are destroyed or damaged

142 Defences to defective goods actions

Division 2—Defective goods actions

143 Time for commencing defective goods actions

144 Liability joint and several

145 Survival of actions

146 No defective goods action where workers’ compensation law etc.

applies

147 Unidentified manufacturer

148 Commonwealth liability for goods that are defective only

because of compliance with Commonwealth

mandatory standard

149 Representative actions by the regulator

Division 3—Miscellaneous

150 Application of all or any provisions of this Part etc. not to be

excluded or modified

Chapter 4—Offences

Part 4-1—Offences relating to unfair practices

Division 1—False or misleading representations etc.

151 False or misleading representations about goods or services

152 False or misleading representations about sale etc. of land

153 Misleading conduct relating to employment

154 Offering rebates, gifts, prizes etc.

155 Misleading conduct as to the nature etc. of goods

156 Misleading conduct as to the nature etc. of services

157 Bait advertising

158 Wrongly accepting payment

159 Misleading representations about certain business activities

160 Application of provisions of this Division to information

providers

Division 2—Unsolicited supplies

161 Unsolicited cards etc.

162 Assertion of right to payment for unsolicited goods or services

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163 Assertion of right to payment for unauthorised entries or

advertisements

Division 3—Pyramid schemes

164 Participation in pyramid schemes

Division 4—Pricing

165 Multiple pricing

166 Single price to be specified in certain circumstances

Division 5—Other unfair practices

167 Referral selling

168 Harassment and coercion

Part 4-2—Offences relating to consumer transactions

Division 1—Consumer guarantees

169 Display notices

Division 2—Unsolicited consumer agreements

Subdivision A—Negotiating unsolicited consumer agreements

170 Permitted hours for negotiating an unsolicited consumer

agreement

171 Disclosing purpose and identity

172 Ceasing to negotiate on request

173 Informing person of termination period etc.

Subdivision B—Requirements for unsolicited consumer

agreements etc.

174 Requirement to give document to the consumer

175 Requirements for all unsolicited consumer agreements etc.

176 Additional requirements for unsolicited consumer agreements not

negotiated by telephone

177 Requirements for amendments of unsolicited consumer

agreements

Subdivision C—Terminating unsolicited consumer agreements

178 Obligations of suppliers on termination

179 Prohibition on supplies for 10 business days

180 Repayment of payments received after termination

181 Prohibition on recovering amounts after termination

Subdivision D—Miscellaneous

182 Certain provisions of unsolicited consumer agreements void

183 Waiver of rights

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184 Application of this Division to persons to whom rights of

consumers and suppliers are assigned etc.

185 Application of this Division to supplies to third parties

186 Regulations may limit the application of this Division

187 Application of this Division to certain conduct covered by the

Corporations Act

Division 3—Lay-by agreements

188 Lay-by agreements must be in writing etc.

189 Termination charges

190 Termination of lay-by agreements by suppliers

191 Refund of amounts

Division 4—Miscellaneous

192 Prescribed requirements for warranties against defects

193 Repairers must comply with prescribed requirements

Part 4-3—Offences relating to safety of consumer goods and

product related services

Division 1—Safety standards

194 Supplying etc. consumer goods that do not comply with safety

standards

195 Supplying etc. product related services that do not comply with

safety standards

196 Requirement to nominate a safety standard

Division 2—Bans on consumer goods and product related

services

197 Supplying etc. consumer goods covered by a ban

198 Supplying etc. product related services covered by a ban

Division 3—Recall of consumer goods

199 Compliance with recall orders

200 Notification by persons who supply consumer goods outside

Australia if there is compulsory recall

201 Notification requirements for a voluntary recall of consumer

goods

Division 4—Consumer goods, or product related services,

associated with death or serious injury or illness

202 Suppliers to report consumer goods etc. associated with the death

or serious injury or illness of any person

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Part 4-4—Offences relating to information standards 203 Supplying etc. goods that do not comply with information

standards

204 Supplying etc. services that do not comply with information

standards

Part 4-5—Offences relating to substantiation notices 205 Compliance with substantiation notices

206 False or misleading information etc.

Part 4-6—Defences 207 Reasonable mistake of fact

208 Act or default of another person etc.

209 Publication of advertisements in the ordinary course of business

210 Supplying goods acquired for the purpose of re-supply

211 Supplying services acquired for the purpose of re-supply

Part 4-7—Miscellaneous 212 Prosecutions to be commenced within 3 years

213 Preference must be given to compensation for victims

214 Penalties for contraventions of the same nature etc.

215 Penalties for previous contraventions of the same nature etc.

216 Granting of injunctions etc.

217 Criminal proceedings not to be brought for contraventions of

Chapter 2 or 3

Chapter 5—Enforcement and remedies

Part 5-1—Enforcement

Division 1—Undertakings

218 Regulator may accept undertakings

Division 2—Substantiation notices

219 Regulator may require claims to be substantiated etc.

220 Extending periods for complying with substantiation notices

221 Compliance with substantiation notices

222 False or misleading information etc.

Division 3—Public warning notices

223 Regulator may issue a public warning notice

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Part 5-2—Remedies

Division 1—Pecuniary penalties

224 Pecuniary penalties

225 Pecuniary penalties and offences

226 Defence

227 Preference must be given to compensation for victims

228 Civil action for recovery of pecuniary penalties

229 Indemnification of officers

230 Certain indemnities not authorised and certain documents void

Division 2—Injunctions

232 Injunctions

233 Consent injunctions

234 Interim injunctions

235 Variation and discharge of injunctions

Division 3—Damages

236 Actions for damages

Division 4—Compensation orders etc. for injured persons and

orders for non-party consumers

Subdivision A—Compensation orders etc. for injured persons

237 Compensation orders etc. on application by an injured person or

the regulator

238 Compensation orders etc. arising out of other proceedings

Subdivision B—Orders for non-party consumers

239 Orders to redress etc. loss or damage suffered by non-party

consumers

240 Determining whether to make a redress order etc. for non-party

consumers

241 When a non-party consumer is bound by a redress order etc.

Subdivision C—Miscellaneous

242 Applications for orders

243 Kinds of orders that may be made

244 Power of a court to make orders

245 Interaction with other provisions

Division 5—Other remedies

246 Non-punitive orders

247 Adverse publicity orders

248 Order disqualifying a person from managing corporations

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249 Privilege against exposure to penalty or forfeiture—

disqualification from managing corporations

250 Declarations relating to consumer contracts

Division 6—Defences

251 Publication of advertisement in the ordinary course of business

252 Supplying consumer goods for the purpose of re-supply

253 Supplying product related services for the purpose of re-supply

Part 5-3—Country of origin representations 254 Overview

255 Country of origin representations do not contravene certain

provisions

256 Cost of producing or manufacturing goods

257 Rules for determining the percentage of costs of production or

manufacture attributable to a country

258 Proceedings relating to false, misleading or deceptive conduct or

representations

Part 5-4—Remedies relating to guarantees

Division 1—Action against suppliers

Subdivision A—Action against suppliers of goods

259 Action against suppliers of goods

260 When a failure to comply with a guarantee is a major failure

261 How suppliers may remedy a failure to comply with a guarantee

262 When consumers are not entitled to reject goods

263 Consequences of rejecting goods

264 Replaced goods

265 Termination of contracts for the supply of services that are

connected with rejected goods

266 Rights of gift recipients

Subdivision B—Action against suppliers of services

267 Action against suppliers of services

268 When a failure to comply with a guarantee is a major failure

269 Termination of contracts for the supply of services

270 Termination of contracts for the supply of goods that are

connected with terminated services

Division 2—Action for damages against manufacturers of goods

271 Action for damages against manufacturers of goods

272 Damages that may be recovered by action against manufacturers

of goods

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273 Time limit for actions against manufacturers of goods

Division 3—Miscellaneous

274 Indemnification of suppliers by manufacturers

275 Limitation of liability etc.

276 This Part not to be excluded etc. by contract

276A Limitation in certain circumstances of liability of manufacturer

to seller

277 Representative actions by the regulator

Part 5-5—Liability of suppliers and credit providers

Division 1—Linked credit contracts

278 Liability of suppliers and linked credit providers relating to

linked credit contracts

279 Action by consumer to recover amount of loss or damage

280 Cases where a linked credit provider is not liable

281 Amount of liability of linked credit providers

282 Counter-claims and offsets

283 Enforcement of judgments etc.

284 Award of interest to consumers

285 Liability of suppliers to linked credit providers, and of linked

credit providers to suppliers

286 Joint liability proceedings and recovery under section 135 of the

National Credit Code

Division 2—Non-linked credit contracts

287 Liability of suppliers and credit providers relating to non-linked

credit contracts

Chapter 6—Application and transitional provisions

Part 1—Application and transitional provisions relating to the

Consumer Credit Legislation Amendment

(Enhancements) Act 2012 288 Application of amendments relating to lay-by agreements

289 Application of amendment relating to repairs

290 Saving of regulations relating to repairs

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Chapter 1—Introduction

1 Application of this Schedule

This Schedule applies to the extent provided by:

(a) Part XI of the Competition and Consumer Act; or

(b) an application law.

2 Definitions

(1) In this Schedule:

ABN has the meaning given by section 41 of the A New Tax

System (Australian Business Number) Act 1999.

acceptable quality: see sections 54(2) to (7).

ACN has the meaning given by section 9 of the Corporations Act

2001.

acquire includes:

(a) in relation to goods—acquire by way of purchase, exchange

or taking on lease, on hire or on hire-purchase; and

(b) in relation to services—accept.

Note: Section 5 deals with when receipt of a donation is an acquisition.

adverse publicity order: see section 247(2).

affected person, in relation to goods, means:

(a) a consumer who acquires the goods; or

(b) a person who acquires the goods from the consumer (other

than for the purpose of re-supply); or

(c) a person who derives title to the goods through or under the

consumer.

agreement document: see section 78(2).

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applicable industry code has the meaning given by

section 51ACA(1) of the Competition and Consumer Act.

application law has the same meaning as in section 140 of the

Competition and Consumer Act.

article includes a token, card or document.

ASIC means the Australian Securities and Investments

Commission.

assert a right to payment: see section 10(1).

associate regulator:

(a) for the purposes of the application of this Schedule as a law

of the Commonwealth—means a body that is, for the

purposes of the application of this Schedule as a law of a

State or a Territory, the regulator within the meaning of the

application law of the State or Territory; or

(b) for the purposes of the application of this Schedule as a law

of a State or a Territory—means:

(i) the Commission; or

(ii) a body that is, for the purposes of the application of this

Schedule as a law of another State or a Territory, the

regulator within the meaning of the application law of

that other State or Territory.

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

Territory), means:

(a) a body corporate established for a purpose of the State or the

Territory by or under a law of the State or Territory; or

(b) an incorporated company in which the State or the Territory,

or a body corporate referred to in paragraph (a), has a

controlling interest.

authority of the Commonwealth means:

(a) a body corporate established for a purpose of the

Commonwealth by or under a law of the Commonwealth or a

law of a Territory; or

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(b) an incorporated company in which the Commonwealth, or a

body corporate referred to in paragraph (a), has a controlling

interest.

banker has the same meaning as in section 4(1) of the Competition

and Consumer Act.

ban period for an interim ban: see section 111(1).

business includes a business not carried on for profit.

business day, in relation to an unsolicited consumer agreement,

means a day that is not:

(a) a Saturday or Sunday; or

(b) a public holiday in the place where the agreement was made.

business or professional relationship includes a relationship

between employer and employee, or a similar relationship.

call on, in relation to negotiating an unsolicited consumer

agreement, does not include call by telephone.

Commission has the same meaning as in section 4(1) of the

Competition and Consumer Act.

Commonwealth mandatory standard, in relation to goods, means

a mandatory standard in respect of the goods imposed by a law of

the Commonwealth.

Commonwealth Minister means the Minister who administers

Part XI of the Competition and Consumer Act.

Competition and Consumer Act means the Competition and

Consumer Act 2010.

consumer: see section 3.

consumer contract: see section 23(3).

consumer goods means goods that are intended to be used, or are

of a kind likely to be used, for personal, domestic or household use

or consumption, and includes any such goods that have become

fixtures since the time they were supplied if:

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(a) a recall notice for the goods has been issued; or

(b) a person has voluntarily taken action to recall the goods.

continuing credit contract: see section 14(1).

contravening conduct: see section 239(1)(a)(i).

court, in relation to a matter, means any court having jurisdiction

in the matter.

covering includes a stopper, glass, bottle, vessel, box, capsule,

case, frame or wrapper.

credit card: see section 39(5).

credit provider means a person providing, or proposing to provide,

in the course of a business carried on by the person, credit to

consumers in relation to the acquisition of goods or services.

dealer: see section 71.

debit card: see section 39(6).

declared term: see section 239(1)(a)(ii).

defective goods action means an action under section 138, 139,

140 or 141, and includes such an action because of section 138(3)

or 145.

disclosed purpose: see section 55(2).

displayed price: see sections 47(2) to (5).

document means any record of information, and includes:

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols or

perforations having a meaning for persons qualified to

interpret them; and

(c) anything from which sounds, images or writings can be

reproduced with or without the aid of anything else; and

(d) a map, plan, drawing or photograph.

enforcement proceeding means:

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(a) a proceeding for an offence against Chapter 4; or

(b) a proceeding instituted under Chapter 5 (other than under

sections 237 and 239).

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

express warranty, in relation to goods, means an undertaking,

assertion or representation:

(a) that relates to:

(i) the quality, state, condition, performance or

characteristics of the goods; or

(ii) the provision of services that are or may at any time be

required for the goods; or

(iii) the supply of parts that are or may at any time be

required for the goods; or

(iv) the future availability of identical goods, or of goods

constituting or forming part of a set of which the goods,

in relation to which the undertaking, assertion or

representation is given or made, form part; and

(b) that is given or made in connection with the supply of the

goods, or in connection with the promotion by any means of

the supply or use of the goods; and

(c) the natural tendency of which is to induce persons to acquire

the goods.

financial product has the meaning given by section 12BAA of the

Australian Securities and Investments Commission Act 2001.

financial service has the meaning given by section 12BAB of the

Australian Securities and Investments Commission Act 2001.

free item includes a free service.

goods includes:

(a) ships, aircraft and other vehicles; and

(b) animals, including fish; and

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(c) minerals, trees and crops, whether on, under or attached to

land or not; and

(d) gas and electricity; and

(e) computer software; and

(f) second-hand goods; and

(g) any component part of, or accessory to, goods.

grown: see section 255(7).

GST has the meaning given by section 195-1 of the A New Tax

System (Goods and Services Tax) Act 1999.

industry code has the meaning given by section 51ACA of the

Competition and Consumer Act.

information provider: see sections 19(5) and (6).

information standard: see sections 134(1) and 135(1).

inner container includes any container into which goods are

packed, other than a shipping or airline container, pallet or other

similar article.

interest, in relation to land, means:

(a) a legal or equitable estate or interest in the land; or

(b) a right of occupancy of the land, or of a building or part of a

building erected on the land, arising by virtue of the holding

of shares, or by virtue of a contract to purchase shares, in an

incorporated company that owns the land or building; or

(c) a right, power or privilege over, or in connection with, the

land.

interim ban: see sections 109(1) and (2).

involved: a person is involved, in a contravention of a provision of

this Schedule or in conduct that constitutes such a contravention, if

the person:

(a) has aided, abetted, counselled or procured the contravention;

or

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(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.

joint liability proceedings means proceedings relating to the joint

and several liability under section 278 of a linked credit provider

and a supplier of goods or services.

label includes a band or ticket.

lay-by agreement: see section 96(3).

linked credit contract: see section 278(2).

linked credit provider, in relation to a supplier of goods or

services, means a credit provider:

(a) with whom the supplier has a contract, arrangement or

understanding relating to:

(i) the supply to the supplier of goods in which the supplier

deals; or

(ii) the business carried on by the supplier of supplying

goods or services; or

(iii) the provision to persons to whom goods or services are

supplied by the supplier of credit in respect of payment

for those goods or services; or

(b) to whom the supplier, by arrangement with the credit

provider, regularly refers persons for the purpose of

obtaining credit; or

(c) whose forms of contract, forms of application or offers for

credit are, by arrangement with the credit provider, made

available to persons by the supplier; or

(d) with whom the supplier has a contract, arrangement or

understanding under which contracts, applications or offers

for credit from the credit provider may be signed by persons

at premises of the supplier.

listed public company has the meaning given by section 995-1(1)

the Income Tax Assessment Act 1997.

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loan contract means a contract under which a person in the course

of a business carried on by that person provides or agrees to

provide, whether on one or more occasions, credit to a consumer in

one or more of the following ways:

(a) by paying an amount to, or in accordance with the

instructions of, the consumer;

(b) by applying an amount in satisfaction or reduction of an

amount owed to the person by the consumer;

(c) by varying the terms of a contract under which money owed

to the person by the consumer is payable;

(d) by deferring an obligation of the consumer to pay an amount

to the person;

(e) by taking from the consumer a bill of exchange or other

negotiable instrument on which the consumer (whether alone

or with another person or other persons) is liable as drawer,

acceptor or endorser.

major failure: see sections 260 and 268.

mandatory standard, in relation to goods, means a standard:

(a) for the goods or anything relating to the goods; and

(b) that, under a law of the Commonwealth, a State or a

Territory, must be complied with when the goods are

supplied by their manufacturer, being a law creating an

offence or liability if there is such non-compliance;

but does not include a standard which may be complied with by

meeting a higher standard.

manufacturer: see section 7.

market has the same meaning as in section 4E of the Competition

and Consumer Act.

materials, in relation to goods, means:

(a) if the goods are unmanufactured raw products—those

products; and

(b) if the goods are manufactured goods—all matter or

substances used or consumed in the manufacture of the goods

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(other than matter or substances that are treated as

overheads); and

(c) in either case—the inner containers in which the goods are

packed.

mixed supply: see section 3(11).

National Credit Code has the meaning given by section 5(1) of the

National Consumer Credit Protection Act 2009.

negotiated by telephone: see section 78(3).

negotiation: see section 72.

new participant: see section 45(2).

non-linked credit contract: see section 287(5).

non-party consumer means:

(a) in relation to conduct referred to in section 239(1)(a)(i)—a

person who is not, or has not been, a party to an enforcement

proceeding in relation to the conduct; and

(b) in relation to a term of a contract referred to in

section 239(1)(a)(ii)—a person who is not, or has not been, a

party to an enforcement proceeding in relation to the term.

participant, in a pyramid scheme, means a person who participates

in the scheme.

participate, in a pyramid scheme: see section 44(3).

participation payment: see section 45(1)(a).

permanent ban: see sections 114(1) and (2).

premises means:

(a) an area of land or any other place (whether or not it is

enclosed or built on); or

(b) a building or other structure; or

(c) a vehicle, vessel or aircraft; or

(d) a part of any such premises.

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price, of goods or services, means:

(a) the amount paid or payable (including any charge of any

description) for their acquisition; or

(b) if such an amount is not specified because the acquisition is

part only of a transaction for which a total amount is paid or

payable:

(i) the lowest amount (including any charge of any

description) for which the goods or services could

reasonably have been acquired from the supplier at the

time of the transaction or, if not from the supplier, from

another supplier; or

(ii) if they could not reasonably have been acquired

separately from another supplier—their value at the

time of the transaction.

prior negotiations or arrangements, in relation to the acquisition

of goods by a consumer, means negotiations or arrangements:

(a) that were conducted or made with the consumer by another

person in the course of a business carried on by the other

person; and

(b) that induced the consumer to acquire the goods, or otherwise

promoted the acquisition of the goods by the consumer.

product related service means a service for or relating to:

(a) the installation of consumer goods of a particular kind; or

(b) the maintenance, repair or cleaning of consumer goods of a

particular kind; or

(c) the assembly of consumer goods of a particular kind; or

(d) the delivery of consumer goods of a particular kind;

and, without limiting paragraphs (a) to (d), includes any other

service that relates to the supply of consumer goods of that kind.

proof of transaction: see section 100(4).

publish, in relation to an advertisement, means include in a

publication intended for sale or public distribution (whether to the

public generally or to a restricted class or number of persons) or for

public display (including in an electronic form).

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pyramid scheme: see section 45(1).

recall notice: see section 122(1).

recovery period: see section 41(4).

recruitment payment: see section 45(1)(b).

regulations means regulations made under section 139G of the

Competition and Consumer Act.

regulator:

(a) for the purposes of the application of this Schedule as a law

of the Commonwealth—means the Commission; or

(b) for the purposes of the application of this Schedule as a law

of a State or a Territory—has the meaning given by the

application law of the State or Territory.

rejection period: see section 262(2).

related, in relation to a body corporate: see section 6.

related contract or instrument: see section 83(2).

rely on, in relation to a term of a consumer contract or small

business contract, includes the following:

(a) attempt to enforce the term;

(b) attempt to exercise a right conferred, or purportedly

conferred, by the term;

(c) assert the existence of a right conferred, or purportedly

conferred, by the term.

responsible Minister means:

(a) the Commonwealth Minister; or

(b) the Minister of a State who administers the application law of

the State; or

(c) the Minister of a Territory who administers the application

law of the Territory.

safety defect, in relation to goods: see section 9.

safety standard: see sections 104(1) and 105(1).

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sale by auction, in relation to the supply of goods by a person,

means a sale by auction that is conducted by an agent of the person

(whether the agent acts in person or by electronic means).

send includes deliver, and sent and sender have corresponding

meanings.

serious injury or illness means an acute physical injury or illness

that requires medical or surgical treatment by, or under the

supervision of, a medical practitioner or a nurse (whether or not in

a hospital, clinic or similar place), but does not include:

(a) an ailment, disorder, defect or morbid condition (whether of

sudden onset or gradual development); or

(b) the recurrence, or aggravation, of such an ailment, disorder,

defect or morbid condition.

services includes:

(a) any rights (including rights in relation to, and interests in,

real or personal property), benefits, privileges or facilities

that are, or are to be, provided, granted or conferred in trade

or commerce; and

(b) without limiting paragraph (a), the rights, benefits, privileges

or facilities that are, or are to be, provided, granted or

conferred under:

(i) a contract for or in relation to the performance of work

(including work of a professional nature), whether with

or without the supply of goods; or

(ii) a contract for or in relation to the provision of, or the

use or enjoyment of facilities for, amusement,

entertainment, recreation or instruction; or

(iii) a contract for or in relation to the conferring of rights,

benefits or privileges for which remuneration is payable

in the form of a royalty, tribute, levy or similar exaction;

or

(iv) a contract of insurance; or

(v) a contract between a banker and a customer of the

banker entered into in the course of the carrying on by

the banker of the business of banking; or

(vi) any contract for or in relation to the lending of money;

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but does not include rights or benefits being the supply of goods or

the performance of work under a contract of service.

share includes stock.

ship has the meaning given by section 3(1) of the Admiralty Act

1988.

single price: see section 48(7).

small business contract: see subsection 23(4).

standard form contract has a meaning affected by section 27.

substantially transformed, in relation to goods: see section 255(2).

substantiation notice means a notice under section 219.

substantiation notice compliance period: see section 221(2).

supply, when used as a verb, includes:

(a) in relation to goods—supply (including re-supply) by way of

sale, exchange, lease, hire or hire-purchase; and

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

and, when used as a noun, has a corresponding meaning, and

supplied and supplier have corresponding meanings.

Note: Section 5 deals with when a donation is a supply.

supply of limited title: see section 51(2).

telecommunications service: see section 65(2).

termination charge: see section 97(2).

termination period, in relation to an unsolicited consumer

agreement, means the period within which the consumer under the

agreement is, under section 82 or under the agreement, entitled to

terminate the agreement.

tied continuing credit contract means a continuing credit contract

under which a credit provider provides credit in respect of the

payment by a consumer for goods or services supplied by a

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supplier in relation to whom the credit provider is a linked credit

provider.

tied loan contract means a loan contract entered into between a

credit provider and a consumer where:

(a) the credit provider knows, or ought reasonably to know, that

the consumer enters into the loan contract wholly or partly

for the purposes of payment for goods or services supplied by

a supplier; and

(b) at the time the loan contract is entered into the credit provider

is a linked credit provider of the supplier.

trade or commerce means:

(a) trade or commerce within Australia; or

(b) trade or commerce between Australia and places outside

Australia;

and includes any business or professional activity (whether or not

carried on for profit).

transparent:

(a) in relation to a document—means:

(i) expressed in reasonably plain language; and

(ii) legible; and

(iii) presented clearly; and

(b) in relation to a term of a consumer contract or small business

contract—see section 24(3).

unfair, in relation to a term of a consumer contract or small

business contract: see section 24(1).

unsolicited consumer agreement: see section 69.

unsolicited goods means goods sent to a person without any

request made by the person or on his or her behalf.

unsolicited services means services supplied to a person without

any request made by the person or on his or her behalf.

upfront price: see section 26(2).

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warranty against defects: see section 102(3).

(2) In this Schedule:

(a) a reference to engaging in conduct is a reference to doing or

refusing to do any act, including:

(i) the making of, or the giving effect to a provision of, a

contract or arrangement; or

(ii) the arriving at, or the giving effect to a provision of, an

understanding; or

(iii) the requiring of the giving of, or the giving of, a

covenant; and

(b) a reference to conduct, when that expression is used as a

noun otherwise than as mentioned in paragraph (a), is a

reference to the doing of or the refusing to do any act,

including:

(i) the making of, or the giving effect to a provision of, a

contract or arrangement; or

(ii) the arriving at, or the giving effect to a provision of, an

understanding; or

(iii) the requiring of the giving of, or the giving of, a

covenant; and

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

(i) refraining (otherwise than inadvertently) from doing

that act; or

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

(d) a reference to a person offering to do an act, or to do an act

on a particular condition, includes a reference to the person

making it known that the person will accept applications,

offers or proposals for the person to do that act or to do that

act on that condition, as the case may be.

3 Meaning of consumer

Acquiring goods as a consumer

(1) A person is taken to have acquired particular goods as a consumer

if, and only if:

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(a) the amount paid or payable for the goods, as worked out

under subsections (4) to (9), did not exceed:

(i) $40,000; or

(ii) if a greater amount is prescribed for the purposes of this

paragraph—that greater amount; or

(b) the goods were of a kind ordinarily acquired for personal,

domestic or household use or consumption; or

(c) the goods consisted of a vehicle or trailer acquired for use

principally in the transport of goods on public roads.

(2) However, subsection (1) does not apply if the person acquired the

goods, or held himself or herself out as acquiring the goods:

(a) for the purpose of re-supply; or

(b) for the purpose of using them up or transforming them, in

trade or commerce:

(i) in the course of a process of production or manufacture;

or

(ii) in the course of repairing or treating other goods or

fixtures on land.

Acquiring services as a consumer

(3) A person is taken to have acquired particular services as a

consumer if, and only if:

(a) the amount paid or payable for the services, as worked out

under subsections (4) to (9), did not exceed:

(i) $40,000; or

(ii) if a greater amount is prescribed for the purposes of

subsection (1)(a)—that greater amount; or

(b) the services were of a kind ordinarily acquired for personal,

domestic or household use or consumption.

Amounts paid or payable for purchases

(4) For the purposes of subsection (1) or (3), the amount paid or

payable for goods or services purchased by a person is taken to be

the price paid or payable by the person for the goods or services,

unless subsection (5) applies.

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(5) For the purposes of subsection (1) or (3), if a person purchased

goods or services by a mixed supply and a specified price was not

allocated to the goods or services in the contract under which they

were purchased, the amount paid or payable for goods or services

is taken to be:

(a) if, at the time of the acquisition, the person could have

purchased from the supplier the goods or services other than

by a mixed supply—the price at which they could have been

purchased from the supplier; or

(b) if:

(i) paragraph (a) does not apply; but

(ii) at the time of the acquisition, goods or services of the

kind acquired could have been purchased from another

supplier other than by a mixed supply;

the lowest price at which the person could, at that time,

reasonably have purchased goods or services of that kind

from another supplier; or

(c) if, at the time of the acquisition, goods or services of the kind

acquired could not have been purchased from any supplier

except by a mixed supply—the value of the goods or services

at that time.

Amounts paid or payable for other acquisitions

(6) For the purposes of subsection (1) or (3), the amount paid or

payable for goods or services acquired by a person other than by

way of purchase is taken to be the price at which, at the time of the

acquisition, the person could have purchased the goods or services

from the supplier, unless subsection (7) or (8) applies.

(7) For the purposes of subsection (1) or (3), if:

(a) goods or services acquired by a person other than by way of

purchase could not, at the time of the acquisition, have been

purchased from the supplier, or could have been purchased

only by a mixed supply; but

(b) at that time, goods or services of the kind acquired could

have been purchased from another supplier other than by a

mixed supply;

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the amount paid or payable for the goods or services is taken to be

the lowest price at which the person could, at that time, reasonably

have purchased goods or services of that kind from another

supplier.

(8) For the purposes of subsection (1) or (3), if goods or services

acquired by a person other than by way of purchase could not, at

the time of the acquisition, have been purchased from any supplier

other than by a mixed supply, the amount paid or payable for the

goods or services is taken to be the value of the goods or services

at that time.

Amounts paid or payable for obtaining credit

(9) If:

(a) a person obtains credit in connection with the acquisition of

goods or services by him or her; and

(b) the amount paid or payable by him or her for the goods or

services is increased because he or she so obtains credit;

obtaining the credit is taken for the purposes of subsection (3) to be

the acquisition of a service, and the amount paid or payable by him

or her for the service of being provided with the credit is taken to

include the amount of the increase.

Presumption that persons are consumers

(10) If it is alleged in any proceeding under this Schedule, or in any

other proceeding in respect of a matter arising under this Schedule,

that a person was a consumer in relation to particular goods or

services, it is presumed, unless the contrary is established, that the

person was a consumer in relation to those goods or services.

Mixed supplies

(11) A purchase or other acquisition of goods or services is made by a

mixed supply if the goods or services are purchased or acquired

together with other property or services, or together with both other

property and other services.

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Supplies to consumers

(12) In this Schedule, a reference to a supply of goods or services to a

consumer is a reference to a supply of goods or services to a person

who is taken to have acquired them as a consumer.

4 Misleading representations with respect to future matters

(1) If:

(a) a person makes a representation with respect to any future

matter (including the doing of, or the refusing to do, any act);

and

(b) the person does not have reasonable grounds for making the

representation;

the representation is taken, for the purposes of this Schedule, to be

misleading.

(2) For the purposes of applying subsection (1) in relation to a

proceeding concerning a representation made with respect to a

future matter by:

(a) a party to the proceeding; or

(b) any other person;

the party or other person is taken not to have had reasonable

grounds for making the representation, unless evidence is adduced

to the contrary.

(3) To avoid doubt, subsection (2) does not:

(a) have the effect that, merely because such evidence to the

contrary is adduced, the person who made the representation

is taken to have had reasonable grounds for making the

representation; or

(b) have the effect of placing on any person an onus of proving

that the person who made the representation had reasonable

grounds for making the representation.

(4) Subsection (1) does not limit by implication the meaning of a

reference in this Schedule to:

(a) a misleading representation; or

(b) a representation that is misleading in a material particular; or

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(c) conduct that is misleading or is likely or liable to mislead;

and, in particular, does not imply that a representation that a person

makes with respect to any future matter is not misleading merely

because the person has reasonable grounds for making the

representation.

5 When donations are treated as supplies or acquisitions

(1) For the purposes of this Schedule, other than Parts 3-3, 3-4, 4-3

and 4-4:

(a) a donation of goods or services is not treated as a supply of

the goods or services unless the donation is for promotional

purposes; and

(b) receipt of a donation of goods or services is not treated as an

acquisition of the goods or services unless the donation is for

promotional purposes.

(2) For the purposes of Parts 3-3, 3-4, 4-3 and 4-4:

(a) any donation of goods or services is treated as a supply of the

goods or services; and

(b) receipt of any donation of goods or services is treated as an

acquisition of the goods or services.

6 Related bodies corporate

(1) A body corporate is taken to be related to another body corporate if

the bodies corporate would, under section 4A(5) of the

Competition and Consumer Act, be deemed to be related to each

other.

(2) In proceedings under this Schedule, it is presumed, unless the

contrary is established, that bodies corporate are not, or were not at

a particular time, related to each other.

7 Meaning of manufacturer

(1) A manufacturer includes the following:

(a) a person who grows, extracts, produces, processes or

assembles goods;

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(b) a person who holds himself or herself out to the public as the

manufacturer of goods;

(c) a person who causes or permits the name of the person, a

name by which the person carries on business or a brand or

mark of the person to be applied to goods supplied by the

person;

(d) a person (the first person) who causes or permits another

person, in connection with:

(i) the supply or possible supply of goods by that other

person; or

(ii) the promotion by that other person by any means of the

supply or use of goods;

to hold out the first person to the public as the manufacturer

of the goods;

(e) a person who imports goods into Australia if:

(i) the person is not the manufacturer of the goods; and

(ii) at the time of the importation, the manufacturer of the

goods does not have a place of business in Australia.

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

(a) a name, brand or mark is taken to be applied to goods if:

(i) it is woven in, impressed on, worked into or annexed or

affixed to the goods; or

(ii) it is applied to a covering, label, reel or thing in or with

which the goods are supplied; and

(b) if the name of a person, a name by which a person carries on

business or a brand or mark of a person is applied to goods, it

is presumed, unless the contrary is established, that the

person caused or permitted the name, brand or mark to be

applied to the goods.

(3) If goods are imported into Australia on behalf of a person, the

person is taken, for the purposes of paragraph (1)(e), to have

imported the goods into Australia.

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8 Goods affixed to land or premises

For the purposes of this Schedule, goods are taken to be supplied to

a consumer even if they are affixed to land or premises at the time

of the supply.

9 Meaning of safety defect in relation to goods

(1) For the purposes of this Schedule, goods have a safety defect if

their safety is not such as persons generally are entitled to expect.

(2) In determining the extent of the safety of goods, regard is to be

given to all relevant circumstances, including:

(a) the manner in which, and the purposes for which, they have

been marketed; and

(b) their packaging; and

(c) the use of any mark in relation to them; and

(d) any instructions for, or warnings with respect to, doing, or

refraining from doing, anything with or in relation to them;

and

(e) what might reasonably be expected to be done with or in

relation to them; and

(f) the time when they were supplied by their manufacturer.

(3) An inference that goods have a safety defect is not to be made only

because of the fact that, after they were supplied by their

manufacturer, safer goods of the same kind were supplied.

(4) An inference that goods have a safety defect is not to be made only

because:

(a) there was compliance with a Commonwealth mandatory

standard for them; and

(b) that standard was not the safest possible standard having

regard to the latest state of scientific or technical knowledge

when they were supplied by their manufacturer.

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10 Asserting a right to payment

(1) A person is taken to assert a right to payment from another person

if the person:

(a) makes a demand for the payment or asserts a present or

prospective right to the payment; or

(b) threatens to bring any legal proceedings with a view to

obtaining the payment; or

(c) places or causes to be placed the name of the other person on

a list of defaulters or debtors, or threatens to do so, with a

view to obtaining the payment; or

(d) invokes or causes to be invoked any other collection

procedure, or threatens to do so, with a view to obtaining the

payment; or

(e) sends any invoice or other document that:

(i) states the amount of the payment; or

(ii) sets out the price of unsolicited goods or unsolicited

services; or

(iii) sets out the charge for placing, in a publication, an entry

or advertisement;

and does not contain a statement, to the effect that the

document is not an assertion of a right to a payment, that

complies with any requirements prescribed by the

regulations.

(2) For the purposes of this section, an invoice or other document

purporting to have been sent by or on behalf of a person is taken to

have been sent by that person unless the contrary is established.

11 References to acquisition, supply and re-supply

In this Schedule:

(a) a reference to the acquisition of goods includes a reference to

the acquisition of property in, or rights in relation to, goods

pursuant to a supply of the goods; and

(b) a reference to the supply or acquisition of goods or services

includes a reference to agreeing to supply or acquire goods or

services; and

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(c) a reference to the supply or acquisition of goods includes a

reference to the supply or acquisition of goods together with

other property or services, or both; and

(d) a reference to the supply or acquisition of services includes a

reference to the supply or acquisition of services together

with property or other services, or both; and

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

includes a reference to:

(i) a supply of the goods to another person in an altered

form or condition; and

(ii) a supply to another person of goods in which the

first-mentioned goods have been incorporated; and

(f) a reference to the re-supply of services (the original services)

acquired from a person (the original supplier) includes a

reference to:

(i) a supply of the original services to another person in an

altered form or condition; and

(ii) a supply to another person of other services that are

substantially similar to the original services, and could

not have been supplied if the original services had not

been acquired by the person who acquired them from

the original supplier.

12 Application of Schedule in relation to leases and licences of land

and buildings

In this Schedule:

(a) a reference to a contract includes a reference to a lease of, or

a licence in respect of, land or a building or part of a building

(despite the express references in this Schedule to such leases

or licences); and

(b) a reference to making or entering into a contract, in relation

to such a lease or licence, is a reference to granting or taking

the lease or licence; and

(c) a reference to a party to a contract, in relation to such a lease

or licence, includes a reference to any person bound by, or

entitled to the benefit of, any provision contained in the lease

or licence.

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13 Loss or damage to include injury

In this Schedule:

(a) a reference to loss or damage, other than a reference to the

amount of any loss or damage, includes a reference to injury;

and

(b) a reference to the amount of any loss or damage includes a

reference to damages in respect of an injury.

14 Meaning of continuing credit contract

(1) If:

(a) a person (the creditor), in the course of a business carried on

by the creditor, agrees with a consumer to provide credit to

the consumer in relation to:

(i) payment for goods or services; or

(ii) cash supplied by the creditor to the consumer from time

to time; or

(iii) payment by the creditor to another person in relation to

goods or services, or cash, supplied by that other person

to the consumer from time to time; and

(b) the creditor:

(i) has an agreement, arrangement or understanding (the

credit agreement) with the consumer in relation to the

provision of the credit; or

(ii) is engaged in a course of dealing (the credit dealing)

with the consumer in relation to the provision of the

credit; and

(c) the amounts owing to the creditor from time to time under

the credit agreement or credit dealing are, or are to be,

calculated on the basis that:

(i) all amounts owing; and

(ii) all payments made;

by the consumer under, or in respect of, the credit agreement

or credit dealing are entered in one or more accounts kept for

the purpose of that agreement or dealing;

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the credit agreement or credit dealing is taken, for the purposes of

this Schedule, to be a continuing credit contract.

(2) If subsection (1)(a)(iii) applies, the creditor is taken, for the

purposes of this section, to have provided credit to the consumer in

relation to any goods or services, or cash, supplied by another

person to the consumer to the extent of any payments made, or to

be made, by the creditor to that other person.

15 Contraventions of this Schedule

Conduct is not taken, for the purposes of this Schedule, to

contravene a provision of this Schedule merely because of the

application of:

(a) section 23(1); or

(b) a provision of Division 1 of Part 3-2 (other than

section 66(2)); or

(c) a provision of Part 3-5.

16 Severability

(1) If the making of a contract after the commencement of this section

contravenes this Schedule because the contract includes a

particular provision, nothing in this Schedule affects the validity or

enforceability of the contract otherwise than in relation to that

provision, so far as that provision is severable.

(2) This section has effect subject to any order made under Division 4

of Part 5-2.

17 References to provisions in this Schedule

In this Schedule, a reference to a provision is a reference to a

provision of this Schedule, unless the contrary intention appears.

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Part 2-1 Misleading or deceptive conduct

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Chapter 2—General protections

Part 2-1—Misleading or deceptive conduct

18 Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in conduct that is

misleading or deceptive or is likely to mislead or deceive.

(2) Nothing in Part 3-1 (which is about unfair practices) limits by

implication subsection (1).

Note: For rules relating to representations as to the country of origin of

goods, see Part 5-3.

19 Application of this Part to information providers

(1) This Part does not apply to a publication of matter by an

information provider if:

(a) in any case—the information provider made the publication

in the course of carrying on a business of providing

information; or

(b) if the information provider is the Australian Broadcasting

Corporation, the Special Broadcasting Service Corporation or

the holder of a licence granted under the Broadcasting

Services Act 1992—the publication was by way of a radio or

television broadcast by the information provider.

(2) Subsection (1) does not apply to a publication of an advertisement.

(3) Subsection (1) does not apply to a publication of matter in

connection with the supply or possible supply of, or the promotion

by any means of the supply or use of, goods or services (the

publicised goods or services), if:

(a) the publicised goods or services were goods or services of a

kind supplied by the information provider or, if the

information provider is a body corporate, by a body corporate

that is related to the information provider; or

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(b) the publication was made on behalf of, or pursuant to a

contract, arrangement or understanding with, a person who

supplies goods or services of the same kind as the publicised

goods or services; or

(c) the publication was made on behalf of, or pursuant to a

contract, arrangement or understanding with, a body

corporate that is related to a body corporate that supplies

goods or services of the same kind as the publicised goods or

services.

(4) Subsection (1) does not apply to a publication of matter in

connection with the sale or grant, or possible sale or grant, of, or

the promotion by any means of the sale or grant of, interests in land

(the publicised interests in land), if:

(a) the publicised interests in land were interests of a kind sold

or granted by the information provider or, if the information

provider is a body corporate, by a body corporate that is

related to the information provider; or

(b) the publication was made on behalf of, or pursuant to a

contract, arrangement or understanding with, a person who

sells or grants interests of the same kind as the publicised

interests in land; or

(c) the publication was made on behalf of, or pursuant to a

contract, arrangement or understanding with, a body

corporate that is related to a body corporate that sells or

grants interests of the same kind as the publicised interests in

land.

(5) An information provider is a person who carries on a business of

providing information.

(6) Without limiting subsection (5), each of the following is an

information provider:

(a) the holder of a licence granted under the Broadcasting

Services Act 1992;

(b) a person who is the provider of a broadcasting service under

a class licence under that Act;

(d) the Australian Broadcasting Corporation;

(e) the Special Broadcasting Service Corporation.

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Part 2-2 Unconscionable conduct

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Part 2-2—Unconscionable conduct

20 Unconscionable conduct within the meaning of the unwritten law

(1) A person must not, in trade or commerce, engage in conduct that is

unconscionable, within the meaning of the unwritten law from time

to time.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) This section does not apply to conduct that is prohibited by

section 21.

21 Unconscionable conduct in connection with goods or services

(1) A person must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a person

(other than a listed public company); or

(b) the acquisition or possible acquisition of goods or services

from a person (other than a listed public company);

engage in conduct that is, in all the circumstances, unconscionable.

(2) This section does not apply to conduct that is engaged in only

because the person engaging in the conduct:

(a) institutes legal proceedings in relation to the supply or

possible supply, or in relation to the acquisition or possible

acquisition; or

(b) refers to arbitration a dispute or claim in relation to the

supply or possible supply, or in relation to the acquisition or

possible acquisition.

(3) For the purpose of determining whether a person has contravened

subsection (1):

(a) the court must not have regard to any circumstances that

were not reasonably foreseeable at the time of the alleged

contravention; and

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(b) the court may have regard to conduct engaged in, or

circumstances existing, before the commencement of this

section.

(4) It is the intention of the Parliament that:

(a) this section is not limited by the unwritten law relating to

unconscionable conduct; and

(b) this section is capable of applying to a system of conduct or

pattern of behaviour, whether or not a particular individual is

identified as having been disadvantaged by the conduct or

behaviour; and

(c) in considering whether conduct to which a contract relates is

unconscionable, a court’s consideration of the contract may

include consideration of:

(i) the terms of the contract; and

(ii) the manner in which and the extent to which the

contract is carried out;

and is not limited to consideration of the circumstances

relating to formation of the contract.

22 Matters the court may have regard to for the purposes of

section 21

(1) Without limiting the matters to which the court may have regard

for the purpose of determining whether a person (the supplier) has

contravened section 21 in connection with the supply or possible

supply of goods or services to a person (the customer), the court

may have regard to:

(a) the relative strengths of the bargaining positions of the

supplier and the customer; and

(b) whether, as a result of conduct engaged in by the supplier,

the customer was required to comply with conditions that

were not reasonably necessary for the protection of the

legitimate interests of the supplier; and

(c) whether the customer was able to understand any documents

relating to the supply or possible supply of the goods or

services; and

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(d) whether any undue influence or pressure was exerted on, or

any unfair tactics were used against, the customer or a person

acting on behalf of the customer by the supplier or a person

acting on behalf of the supplier in relation to the supply or

possible supply of the goods or services; and

(e) the amount for which, and the circumstances under which,

the customer could have acquired identical or equivalent

goods or services from a person other than the supplier; and

(f) the extent to which the supplier’s conduct towards the

customer was consistent with the supplier’s conduct in

similar transactions between the supplier and other like

customers; and

(g) the requirements of any applicable industry code; and

(h) the requirements of any other industry code, if the customer

acted on the reasonable belief that the supplier would comply

with that code; and

(i) the extent to which the supplier unreasonably failed to

disclose to the customer:

(i) any intended conduct of the supplier that might affect

the interests of the customer; and

(ii) any risks to the customer arising from the supplier’s

intended conduct (being risks that the supplier should

have foreseen would not be apparent to the customer);

and

(j) if there is a contract between the supplier and the customer

for the supply of the goods or services:

(i) the extent to which the supplier was willing to negotiate

the terms and conditions of the contract with the

customer; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the supplier and the customer in

complying with the terms and conditions of the contract;

and

(iv) any conduct that the supplier or the customer engaged

in, in connection with their commercial relationship,

after they entered into the contract; and

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(k) without limiting paragraph (j), whether the supplier has a

contractual right to vary unilaterally a term or condition of a

contract between the supplier and the customer for the supply

of the goods or services; and

(l) the extent to which the supplier and the customer acted in

good faith.

(2) Without limiting the matters to which the court may have regard

for the purpose of determining whether a person (the acquirer) has

contravened section 21 in connection with the acquisition or

possible acquisition of goods or services from a person (the

supplier), the court may have regard to:

(a) the relative strengths of the bargaining positions of the

acquirer and the supplier; and

(b) whether, as a result of conduct engaged in by the acquirer,

the supplier was required to comply with conditions that

were not reasonably necessary for the protection of the

legitimate interests of the acquirer; and

(c) whether the supplier was able to understand any documents

relating to the acquisition or possible acquisition of the goods

or services; and

(d) whether any undue influence or pressure was exerted on, or

any unfair tactics were used against, the supplier or a person

acting on behalf of the supplier by the acquirer or a person

acting on behalf of the acquirer in relation to the acquisition

or possible acquisition of the goods or services; and

(e) the amount for which, and the circumstances in which, the

supplier could have supplied identical or equivalent goods or

services to a person other than the acquirer; and

(f) the extent to which the acquirer’s conduct towards the

supplier was consistent with the acquirer’s conduct in similar

transactions between the acquirer and other like suppliers;

and

(g) the requirements of any applicable industry code; and

(h) the requirements of any other industry code, if the supplier

acted on the reasonable belief that the acquirer would comply

with that code; and

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(i) the extent to which the acquirer unreasonably failed to

disclose to the supplier:

(i) any intended conduct of the acquirer that might affect

the interests of the supplier; and

(ii) any risks to the supplier arising from the acquirer’s

intended conduct (being risks that the acquirer should

have foreseen would not be apparent to the supplier);

and

(j) if there is a contract between the acquirer and the supplier for

the acquisition of the goods or services:

(i) the extent to which the acquirer was willing to negotiate

the terms and conditions of the contract with the

supplier; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the acquirer and the supplier in

complying with the terms and conditions of the contract;

and

(iv) any conduct that the acquirer or the supplier engaged in,

in connection with their commercial relationship, after

they entered into the contract; and

(k) without limiting paragraph (j), whether the acquirer has a

contractual right to vary unilaterally a term or condition of a

contract between the acquirer and the supplier for the

acquisition of the goods or services; and

(l) the extent to which the acquirer and the supplier acted in

good faith.

22A Presumptions relating to whether representations are

misleading

Section 4 applies for the purposes of sections 21 and 22 in the

same way as it applies for the purposes of Division 1 of Part 3-1.

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Section 23

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Part 2-3—Unfair contract terms

23 Unfair terms of consumer contracts and small business contracts

(1) A term of a consumer contract or small business contract is void if:

(a) the term is unfair; and

(b) the contract is a standard form contract.

(2) The contract continues to bind the parties if it is capable of

operating without the unfair term.

(3) A consumer contract is a contract for:

(a) a supply of goods or services; or

(b) a sale or grant of an interest in land;

to an individual whose acquisition of the goods, services or interest

is wholly or predominantly for personal, domestic or household use

or consumption.

(4) A contract is a small business contract if:

(a) the contract is for a supply of goods or services, or a sale or

grant of an interest in land; and

(b) at the time the contract is entered into, at least one party to

the contract is a business that employs fewer than 20 persons;

and

(c) either of the following applies:

(i) the upfront price payable under the contract does not

exceed $300,000;

(ii) the contract has a duration of more than 12 months and

the upfront price payable under the contract does not

exceed $1,000,000.

(5) In counting the persons employed by a business for the purposes of

paragraph (4)(b), a casual employee is not to be counted unless he

or she is employed by the business on a regular and systematic

basis.

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Part 2-3 Unfair contract terms

Section 24

120 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

24 Meaning of unfair

(1) A term of a consumer contract or small business contract is unfair

if:

(a) it would cause a significant imbalance in the parties’ rights

and obligations arising under the contract; and

(b) it is not reasonably necessary in order to protect the

legitimate interests of the party who would be advantaged by

the term; and

(c) it would cause detriment (whether financial or otherwise) to a

party if it were to be applied or relied on.

(2) In determining whether a term of a contract is unfair under

subsection (1), a court may take into account such matters as it

thinks relevant, but must take into account the following:

(a) the extent to which the term is transparent;

(b) the contract as a whole.

(3) A term is transparent if the term is:

(a) expressed in reasonably plain language; and

(b) legible; and

(c) presented clearly; and

(d) readily available to any party affected by the term.

(4) For the purposes of subsection (1)(b), a term of a contract is

presumed not to be reasonably necessary in order to protect the

legitimate interests of the party who would be advantaged by the

term, unless that party proves otherwise.

25 Examples of unfair terms

Without limiting section 24, the following are examples of the

kinds of terms of a consumer contract or small business contract

that may be unfair:

(a) a term that permits, or has the effect of permitting, one party

(but not another party) to avoid or limit performance of the

contract;

(b) a term that permits, or has the effect of permitting, one party

(but not another party) to terminate the contract;

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(c) a term that penalises, or has the effect of penalising, one

party (but not another party) for a breach or termination of

the contract;

(d) a term that permits, or has the effect of permitting, one party

(but not another party) to vary the terms of the contract;

(e) a term that permits, or has the effect of permitting, one party

(but not another party) to renew or not renew the contract;

(f) a term that permits, or has the effect of permitting, one party

to vary the upfront price payable under the contract without

the right of another party to terminate the contract;

(g) a term that permits, or has the effect of permitting, one party

unilaterally to vary the characteristics of the goods or

services to be supplied, or the interest in land to be sold or

granted, under the contract;

(h) a term that permits, or has the effect of permitting, one party

unilaterally to determine whether the contract has been

breached or to interpret its meaning;

(i) a term that limits, or has the effect of limiting, one party’s

vicarious liability for its agents;

(j) a term that permits, or has the effect of permitting, one party

to assign the contract to the detriment of another party

without that other party’s consent;

(k) a term that limits, or has the effect of limiting, one party’s

right to sue another party;

(l) a term that limits, or has the effect of limiting, the evidence

one party can adduce in proceedings relating to the contract;

(m) a term that imposes, or has the effect of imposing, the

evidential burden on one party in proceedings relating to the

contract;

(n) a term of a kind, or a term that has an effect of a kind,

prescribed by the regulations.

26 Terms that define main subject matter of consumer contracts or

small business contracts etc. are unaffected

(1) Section 23 does not apply to a term of a consumer contract or small

business contract to the extent, but only to the extent, that the term:

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(a) defines the main subject matter of the contract; or

(b) sets the upfront price payable under the contract; or

(c) is a term required, or expressly permitted, by a law of the

Commonwealth, a State or a Territory.

(2) The upfront price payable under a contract is the consideration

that:

(a) is provided, or is to be provided, for the supply, sale or grant

under the contract; and

(b) is disclosed at or before the time the contract is entered into;

but does not include any other consideration that is contingent on

the occurrence or non-occurrence of a particular event.

27 Standard form contracts

(1) If a party to a proceeding alleges that a contract is a standard form

contract, it is presumed to be a standard form contract unless

another party to the proceeding proves otherwise.

(2) In determining whether a contract is a standard form contract, a

court may take into account such matters as it thinks relevant, but

must take into account the following:

(a) whether one of the parties has all or most of the bargaining

power relating to the transaction;

(b) whether the contract was prepared by one party before any

discussion relating to the transaction occurred between the

parties;

(c) whether another party was, in effect, required either to accept

or reject the terms of the contract (other than the terms

referred to in section 26(1)) in the form in which they were

presented;

(d) whether another party was given an effective opportunity to

negotiate the terms of the contract that were not the terms

referred to in section 26(1);

(e) whether the terms of the contract (other than the terms

referred to in section 26(1)) take into account the specific

characteristics of another party or the particular transaction;

(f) any other matter prescribed by the regulations.

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28 Contracts to which this Part does not apply

(1) This Part does not apply to:

(a) a contract of marine salvage or towage; or

(b) a charterparty of a ship; or

(c) a contract for the carriage of goods by ship.

(2) Without limiting subsection (1)(c), the reference in that subsection

to a contract for the carriage of goods by ship includes a reference

to any contract covered by a sea carriage document within the

meaning of the amended Hague Rules referred to in section 7(1) of

the Carriage of Goods by Sea Act 1991.

(3) This Part does not apply to a contract that is the constitution

(within the meaning of section 9 of the Corporations Act 2001) of

a company, managed investment scheme or other kind of body.

(4) This Part does not apply to a small business contract to which a

prescribed law of the Commonwealth, a State or a Territory

applies.

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Chapter 3 Specific protections

Part 3-1 Unfair practices

Division 1 False or misleading representations etc.

Section 29

124 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Chapter 3—Specific protections

Part 3-1—Unfair practices

Division 1—False or misleading representations etc.

29 False or misleading representations about goods or services

(1) A person must not, in trade or commerce, in connection with the

supply or possible supply of goods or services or in connection

with the promotion by any means of the supply or use of goods or

services:

(a) make a false or misleading representation that goods are of a

particular standard, quality, value, grade, composition, style

or model or have had a particular history or particular

previous use; or

(b) make a false or misleading representation that services are of

a particular standard, quality, value or grade; or

(c) make a false or misleading representation that goods are new;

or

(d) make a false or misleading representation that a particular

person has agreed to acquire goods or services; or

(e) make a false or misleading representation that purports to be

a testimonial by any person relating to goods or services; or

(f) make a false or misleading representation concerning:

(i) a testimonial by any person; or

(ii) a representation that purports to be such a testimonial;

relating to goods or services; or

(g) make a false or misleading representation that goods or

services have sponsorship, approval, performance

characteristics, accessories, uses or benefits; or

(h) make a false or misleading representation that the person

making the representation has a sponsorship, approval or

affiliation; or

(i) make a false or misleading representation with respect to the

price of goods or services; or

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(j) make a false or misleading representation concerning the

availability of facilities for the repair of goods or of spare

parts for goods; or

(k) make a false or misleading representation concerning the

place of origin of goods; or

(l) make a false or misleading representation concerning the

need for any goods or services; or

(m) make a false or misleading representation concerning the

existence, exclusion or effect of any condition, warranty,

guarantee, right or remedy (including a guarantee under

Division 1 of Part 3-2); or

(n) make a false or misleading representation concerning a

requirement to pay for a contractual right that:

(i) is wholly or partly equivalent to any condition,

warranty, guarantee, right or remedy (including a

guarantee under Division 1 of Part 3-2); and

(ii) a person has under a law of the Commonwealth, a State

or a Territory (other than an unwritten law).

Note 1: A pecuniary penalty may be imposed for a contravention of this

subsection.

Note 2: For rules relating to representations as to the country of origin of

goods, see Part 5-3.

(2) For the purposes of applying subsection (1) in relation to a

proceeding concerning a representation of a kind referred to in

subsection (1)(e) or (f), the representation is taken to be misleading

unless evidence is adduced to the contrary.

(3) To avoid doubt, subsection (2) does not:

(a) have the effect that, merely because such evidence to the

contrary is adduced, the representation is not misleading; or

(b) have the effect of placing on any person an onus of proving

that the representation is not misleading.

30 False or misleading representations about sale etc. of land

(1) A person must not, in trade or commerce, in connection with the

sale or grant, or the possible sale or grant, of an interest in land or

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Section 31

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in connection with the promotion by any means of the sale or grant

of an interest in land:

(a) make a false or misleading representation that the person

making the representation has a sponsorship, approval or

affiliation; or

(b) make a false or misleading representation concerning the

nature of the interest in the land; or

(c) make a false or misleading representation concerning the

price payable for the land; or

(d) make a false or misleading representation concerning the

location of the land; or

(e) make a false or misleading representation concerning the

characteristics of the land; or

(f) make a false or misleading representation concerning the use

to which the land is capable of being put or may lawfully be

put; or

(g) make a false or misleading representation concerning the

existence or availability of facilities associated with the land.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) This section does not affect the application of any other provision

of Part 2-1 or this Part in relation to the supply or acquisition, or

the possible supply or acquisition, of interests in land.

31 Misleading conduct relating to employment

A person must not, in relation to employment that is to be, or may

be, offered by the person or by another person, engage in conduct

that is liable to mislead persons seeking the employment as to:

(a) the availability, nature, terms or conditions of the

employment; or

(b) any other matter relating to the employment.

Note: A pecuniary penalty may be imposed for a contravention of this

section.

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Section 32

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32 Offering rebates, gifts, prizes etc.

(1) A person must not, in trade or commerce, offer any rebate, gift,

prize or other free item with the intention of not providing it, or of

not providing it as offered, in connection with:

(a) the supply or possible supply of goods or services; or

(b) the promotion by any means of the supply or use of goods or

services; or

(c) the sale or grant, or the possible sale or grant, of an interest in

land; or

(d) the promotion by any means of the sale or grant of an interest

in land.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) If a person offers any rebate, gift, prize or other free item in

connection with:

(a) the supply or possible supply of goods or services; or

(b) the promotion by any means of the supply or use of goods or

services; or

(c) the sale or grant, or the possible sale or grant, of an interest in

land; or

(d) the promotion by any means of the sale or grant of an interest

in land;

the person must, within the time specified in the offer or (if no such

time is specified) within a reasonable time after making the offer,

provide the rebate, gift, prize or other free item in accordance with

the offer.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) Subsection (2) does not apply if:

(a) the person’s failure to provide the rebate, gift, prize or other

free item in accordance with the offer was due to the act or

omission of another person, or to some other cause beyond

the person’s control; and

(b) the person took reasonable precautions and exercised due

diligence to avoid the failure.

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Division 1 False or misleading representations etc.

Section 33

128 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(4) Subsection (2) does not apply to an offer that the person makes to

another person if:

(a) the person offers to the other person a different rebate, gift,

prize or other free item as a replacement; and

(b) the other person agrees to receive the different rebate, gift,

prize or other free item.

(5) This section does not affect the application of any other provision

of Part 2-1 or this Part in relation to the supply or acquisition, or

the possible supply or acquisition, of interests in land.

33 Misleading conduct as to the nature etc. of goods

A person must not, in trade or commerce, engage in conduct that is

liable to mislead the public as to the nature, the manufacturing

process, the characteristics, the suitability for their purpose or the

quantity of any goods.

Note: A pecuniary penalty may be imposed for a contravention of this

section.

34 Misleading conduct as to the nature etc. of services

A person must not, in trade or commerce, engage in conduct that is

liable to mislead the public as to the nature, the characteristics, the

suitability for their purpose or the quantity of any services.

Note: A pecuniary penalty may be imposed for a contravention of this

section.

35 Bait advertising

(1) A person must not, in trade or commerce, advertise goods or

services for supply at a specified price if:

(a) there are reasonable grounds for believing that the person

will not be able to offer for supply those goods or services at

that price for a period that is, and in quantities that are,

reasonable, having regard to:

(i) the nature of the market in which the person carries on

business; and

(ii) the nature of the advertisement; and

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(b) the person is aware or ought reasonably to be aware of those

grounds.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A person who, in trade or commerce, advertises goods or services

for supply at a specified price must offer such goods or services for

supply at that price for a period that is, and in quantities that are,

reasonable having regard to:

(a) the nature of the market in which the person carries on

business; and

(b) the nature of the advertisement.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

36 Wrongly accepting payment

(1) A person must not, in trade or commerce, accept payment or other

consideration for goods or services if, at the time of the acceptance,

the person intends not to supply the goods or services.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A person must not, in trade or commerce, accept payment or other

consideration for goods or services if, at the time of the acceptance,

the person intends to supply goods or services materially different

from the goods or services in respect of which the payment or other

consideration is accepted.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) A person must not, in trade or commerce, accept payment or other

consideration for goods or services if, at the time of the acceptance:

(a) there are reasonable grounds for believing that the person

will not be able to supply the goods or services:

(i) within the period specified by or on behalf of the person

at or before the time the payment or other consideration

was accepted; or

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(ii) if no period is specified at or before that time—within a

reasonable time; and

(b) the person is aware or ought reasonably to be aware of those

grounds.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(4) A person who, in trade or commerce, accepts payment or other

consideration for goods or services must supply all the goods or

services:

(a) within the period specified by or on behalf of the person at or

before the time the payment or other consideration was

accepted; or

(b) if no period is specified at or before that time—within a

reasonable time.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(5) Subsection (4) does not apply if:

(a) the person’s failure to supply all the goods or services within

the period, or within a reasonable time, was due to the act or

omission of another person, or to some other cause beyond

the person’s control; and

(b) the person took reasonable precautions and exercised due

diligence to avoid the failure.

(6) Subsection (4) does not apply if:

(a) the person offers to supply different goods or services as a

replacement to the person (the customer) to whom the

original supply was to be made; and

(b) the customer agrees to receive the different goods or services.

(7) Subsections (1), (2), (3) and (4) apply whether or not the payment

or other consideration that the person accepted represents the

whole or a part of the payment or other consideration for the

supply of the goods or services.

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37 Misleading representations about certain business activities

(1) A person must not, in trade or commerce, make a representation

that:

(a) is false or misleading in a material particular; and

(b) concerns the profitability, risk or any other material aspect of

any business activity that the person has represented as one

that can be, or can be to a considerable extent, carried on at

or from a person’s place of residence.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A person must not, in trade or commerce, make a representation

that:

(a) is false or misleading in a material particular; and

(b) concerns the profitability, risk or any other material aspect of

any business activity:

(i) that the person invites (whether by advertisement or

otherwise) other persons to engage or participate in, or

to offer or apply to engage or participate in; and

(ii) that requires the performance of work by other persons,

or the investment of money by other persons and the

performance by them of work associated with the

investment.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

38 Application of provisions of this Division to information

providers

(1) Sections 29, 30, 33, 34 and 37 do not apply to a publication of

matter by an information provider if:

(a) in any case—the information provider made the publication

in the course of carrying on a business of providing

information; or

(b) if the information provider is the Australian Broadcasting

Corporation, the Special Broadcasting Service Corporation or

the holder of a licence granted under the Broadcasting

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Section 38

132 Competition and Consumer Act 2010

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Services Act 1992—the publication was by way of a radio or

television broadcast by the information provider.

(2) Subsection (1) does not apply to a publication of an advertisement.

(3) Subsection (1) does not apply to a publication of matter in

connection with the supply or possible supply of, or the promotion

by any means of the supply or use of, goods or services (the

publicised goods or services), if:

(a) the publicised goods or services were goods or services of a

kind supplied by the information provider or, if the

information provider is a body corporate, by a body corporate

that is related to the information provider; or

(b) the publication was made on behalf of, or pursuant to a

contract, arrangement or understanding with, a person who

supplies goods or services of the same kind as the publicised

goods or services; or

(c) the publication was made on behalf of, or pursuant to a

contract, arrangement or understanding with, a body

corporate that is related to a body corporate that supplies

goods or services of the same kind as the publicised goods or

services.

(4) Subsection (1) does not apply to a publication of matter in

connection with the sale or grant, or possible sale or grant, of, or

the promotion by any means of the sale or grant of, interests in land

(the publicised interests in land), if:

(a) the publicised interests in land were interests of a kind sold

or granted by the information provider or, if the information

provider is a body corporate, by a body corporate that is

related to the information provider; or

(b) the publication was made on behalf of, or pursuant to a

contract, arrangement or understanding with, a person who

sells or grants interests of the same kind as the publicised

interests in land; or

(c) the publication was made on behalf of, or pursuant to a

contract, arrangement or understanding with, a body

corporate that is related to a body corporate that sells or

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grants interests of the same kind as the publicised interests in

land.

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Part 3-1 Unfair practices

Division 2 Unsolicited supplies

Section 39

134 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Unsolicited supplies

39 Unsolicited cards etc.

(1) A person must not send a credit card or a debit card, or an article

that may be used as a credit card and a debit card, to another

person except:

(a) pursuant to a written request by the person who will be under

a liability to the person who issued the card or article in

respect of the use of the card or article; or

(b) in renewal or replacement of, or in substitution for:

(i) a card or article of the same kind previously sent to the

other person pursuant to a written request by the person

who was under a liability, to the person who issued the

card previously so sent, in respect of the use of that

card; or

(ii) a card or article of the same kind previously sent to the

other person and used for a purpose for which it was

intended to be used.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) Subsection (1) does not apply unless the card or article is sent by or

on behalf of the person who issued it.

(3) A person must not take any action that enables another person who

has a credit card to use the card as a debit card, except in

accordance with the other person’s written request.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(4) A person must not take any action that enables another person who

has a debit card to use the card as a credit card, except in

accordance with the other person’s written request.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(5) A credit card is an article that is one or more of the following:

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(a) an article of a kind commonly known as a credit card;

(b) a similar article intended for use in obtaining cash, goods or

services on credit;

(c) an article of a kind that persons carrying on business

commonly issue to their customers, or prospective customers,

for use in obtaining goods or services from those persons on

credit;

and includes an article that may be used as an article referred to in

paragraph (a), (b) or (c).

(6) A debit card is:

(a) an article intended for use by a person in obtaining access to

an account that is held by the person for the purpose of

withdrawing or depositing cash or obtaining goods or

services; or

(b) an article that may be used as an article referred to in

paragraph (a).

40 Assertion of right to payment for unsolicited goods or services

(1) A person must not, in trade or commerce, assert a right to payment

from another person for unsolicited goods unless the person has

reasonable cause to believe that there is a right to the payment.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A person must not, in trade or commerce, assert a right to payment

from another person for unsolicited services unless the person has

reasonable cause to believe that there is a right to the payment.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) A person must not, in trade or commerce, send to another person

an invoice or other document that:

(a) states the amount of a payment, or sets out the charge, for

supplying unsolicited goods or unsolicited services; and

(b) does not contain a warning statement that complies with the

requirements set out in the regulations;

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Chapter 3 Specific protections

Part 3-1 Unfair practices

Division 2 Unsolicited supplies

Section 41

136 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

unless the person has reasonable cause to believe that there is a

right to the payment or charge.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(4) In a proceeding against a person in relation to a contravention of

this section, the person bears the onus of proving that the person

had reasonable cause to believe that there was a right to the

payment or charge.

41 Liability etc. of recipient for unsolicited goods

(1) If a person, in trade or commerce, supplies unsolicited goods to

another person, the other person:

(a) is not liable to make any payment for the goods; and

(b) is not liable for loss of or damage to the goods, other than

loss or damage resulting from the other person doing a wilful

and unlawful act in relation to the goods during the recovery

period.

(2) If a person sends, in trade or commerce, unsolicited goods to

another person:

(a) neither the sender nor any person claiming under the sender

is entitled, after the end of the recovery period, to take action

for the recovery of the goods from the other person; and

(b) at the end of the recovery period, the goods become, by force

of this section, the property of the other person freed and

discharged from all liens and charges of any description.

(3) However, subsection (2) does not apply to or in relation to

unsolicited goods sent to a person if:

(a) the person has, at any time during the recovery period,

unreasonably refused to permit the sender or the owner of the

goods to take possession of the goods; or

(b) the sender or the owner of the goods has within the recovery

period taken possession of the goods; or

(c) the goods were received by the person in circumstances in

which the person knew, or might reasonably be expected to

have known, that the goods were not intended for him or her.

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Unsolicited supplies Division 2

Section 42

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(4) The recovery period is whichever of the following periods ends

first:

(a) the period of 3 months starting on the day after the day on

which the person received the goods;

(b) if the person who receives the unsolicited goods gives notice

with respect to the goods to the supplier or sender in

accordance with subsection (5)—the period of one month

starting on the day after the day on which the notice is given.

(5) A notice under subsection (4)(b):

(a) must be in writing; and

(b) must state the name and address of the person who received

the goods; and

(c) must state the address at which possession may be taken of

the goods, if it is not the address of the person; and

(d) must contain a statement to the effect that the goods are

unsolicited goods.

42 Liability of recipient for unsolicited services

If a person, in trade or commerce, supplies unsolicited services to

another person, the other person:

(a) is not liable to make any payment for the services; and

(b) is not liable for loss or damage as a result of the supply of the

services.

43 Assertion of right to payment for unauthorised entries or

advertisements

(1) A person must not assert a right to payment from another person of

a charge for placing, in a publication, an entry or advertisement

relating to:

(a) the other person; or

(b) the other person’s profession, business, trade or occupation;

unless the person knows, or has reasonable cause to believe, that

the other person authorised the placing of the entry or

advertisement.

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Schedule 2 The Australian Consumer Law

Chapter 3 Specific protections

Part 3-1 Unfair practices

Division 2 Unsolicited supplies

Section 43

138 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A person must not send to another person an invoice or other

document that:

(a) states the amount of a payment, or sets out the charge, for

placing, in a publication, an entry or advertisement relating

to:

(i) the other person; or

(ii) the other person’s profession, business, trade or

occupation; and

(b) does not contain a warning statement that complies with the

requirements set out in the regulations;

unless the person knows, or has reasonable cause to believe, that

the other person authorised the placing of the entry or

advertisement.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) Subsections (1) and (2) do not apply to an entry or advertisement

that is placed in a publication published by a person who is:

(a) the publisher of a publication that has an audited circulation

of 10,000 copies or more per week, as confirmed by the most

recent audit of the publication by a body specified in the

regulations; or

(b) a body corporate related to such a publisher; or

(c) the Commonwealth, a State or a Territory, or an authority of

the Commonwealth, a State or a Territory; or

(d) a person specified in the regulations.

(4) A person:

(a) is not liable to make any payment to another person; and

(b) is entitled to recover by action in a court against another

person any payment made by the person to the other person;

in full or part satisfaction of a charge for placing, in a publication,

an entry or advertisement, unless the person authorised the placing

of the entry or advertisement.

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Unsolicited supplies Division 2

Section 43

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(5) A person is not taken for the purposes of this section to have

authorised the placing of the entry or advertisement, unless:

(a) a document authorising the placing of the entry or

advertisement has been signed by the person or by another

person authorised by him or her; and

(b) a copy of the document has been given to the person before

the right to payment of a charge for the placing of the entry

or advertisement is asserted; and

(c) the document specifies:

(i) the name and address of the person publishing the entry

or advertisement; and

(ii) particulars of the entry or advertisement; and

(iii) the amount of the charge for the placing of the entry or

advertisement, or the basis on which the charge is, or is

to be, calculated.

(6) In a proceeding against a person in relation to a contravention of

this section, the person bears the onus of proving that the person

knew or had reasonable cause to believe that the person against

whom a right to payment was asserted had authorised the placing

of the entry or advertisement.

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Schedule 2 The Australian Consumer Law

Chapter 3 Specific protections

Part 3-1 Unfair practices

Division 3 Pyramid schemes

Section 44

140 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Pyramid schemes

44 Participation in pyramid schemes

(1) A person must not participate in a pyramid scheme.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A person must not induce, or attempt to induce, another person to

participate in a pyramid scheme.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) To participate in a pyramid scheme is:

(a) to establish or promote the scheme (whether alone or

together with another person); or

(b) to take part in the scheme in any capacity (whether or not as

an employee or agent of a person who establishes or

promotes the scheme, or who otherwise takes part in the

scheme).

45 Meaning of pyramid scheme

(1) A pyramid scheme is a scheme with both of the following

characteristics:

(a) to take part in the scheme, some or all new participants must

provide, to another participant or participants in the scheme,

either of the following (a participation payment):

(i) a financial or non-financial benefit to, or for the benefit

of, the other participant or participants;

(ii) a financial or non-financial benefit partly to, or for the

benefit of, the other participant or participants and

partly to, or for the benefit of, other persons;

(b) the participation payments are entirely or substantially

induced by the prospect held out to new participants that they

will be entitled, in relation to the introduction to the scheme

of further new participants, to be provided with either of the

following (a recruitment payment):

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(i) a financial or non-financial benefit to, or for the benefit

of, new participants;

(ii) a financial or non-financial benefit partly to, or for the

benefit of, new participants and partly to, or for the

benefit of, other persons.

(2) A new participant includes a person who has applied, or been

invited, to participate in the scheme.

(3) A scheme may be a pyramid scheme:

(a) no matter who holds out to new participants the prospect of

entitlement to recruitment payments; and

(b) no matter who is to make recruitment payments to new

participants; and

(c) no matter who is to make introductions to the scheme of

further new participants.

(4) A scheme may be a pyramid scheme even if it has any or all of the

following characteristics:

(a) the participation payments may (or must) be made after the

new participants begin to take part in the scheme;

(b) making a participation payment is not the only requirement

for taking part in the scheme;

(c) the holding out of the prospect of entitlement to recruitment

payments does not give any new participant a legally

enforceable right;

(d) arrangements for the scheme are not recorded in writing

(whether entirely or partly);

(e) the scheme involves the marketing of goods or services (or

both).

46 Marketing schemes as pyramid schemes

(1) To decide, for the purpose of this Schedule, whether a scheme that

involves the marketing of goods or services (or both) is a pyramid

scheme, a court must have regard to the following matters in

working out whether participation payments under the scheme are

entirely or substantially induced by the prospect held out to new

participants of entitlement to recruitment payments:

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Schedule 2 The Australian Consumer Law

Chapter 3 Specific protections

Part 3-1 Unfair practices

Division 3 Pyramid schemes

Section 46

142 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) whether the participation payments bear a reasonable

relationship to the value of the goods or services that

participants are entitled to be supplied with under the scheme

(as assessed, if appropriate, by reference to the price of

comparable goods or services available elsewhere);

(b) the emphasis given in the promotion of the scheme to the

entitlement of participants to the supply of goods or services

by comparison with the emphasis given to their entitlement

to recruitment payments.

(2) Subsection (1) does not limit the matters to which the court may

have regard in working out whether participation payments are

entirely or substantially induced by the prospect held out to new

participants of entitlement to recruitment payments.

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Pricing Division 4

Section 47

Competition and Consumer Act 2010 143

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4—Pricing

47 Multiple pricing

(1) A person must not, in trade or commerce, supply goods if:

(a) the goods have more than one displayed price; and

(b) the supply takes place for a price that is not the lower, or

lowest, of the displayed prices.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A displayed price for goods is a price for the goods, or any

representation that may reasonably be inferred to be a

representation of a price for the goods:

(a) that is annexed or affixed to, or is written, printed, stamped

or located on, or otherwise applied to, the goods or any

covering, label, reel or thing used in connection with the

goods; or

(b) that is used in connection with the goods or anything on

which the goods are mounted for display or exposed for

supply; or

(c) that is determined on the basis of anything encoded on or in

relation to the goods; or

(d) that is published in relation to the goods in a catalogue

available to the public if:

(i) a time is specified in the catalogue as the time after

which the goods will not be sold at that price and that

time has not passed; or

(ii) in any other case—the catalogue may reasonably be

regarded as not out-of-date; or

(e) that is in any other way represented in a manner from which

it may reasonably be inferred that the price or representation

is applicable to the goods;

and includes such a price or representation that is partly obscured

by another such price or representation that is written, stamped or

located partly over that price or representation.

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Schedule 2 The Australian Consumer Law

Chapter 3 Specific protections

Part 3-1 Unfair practices

Division 4 Pricing

Section 48

144 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) If:

(a) a price or representation is included in a catalogue; and

(b) the catalogue is expressed to apply only to goods supplied at

a specified location, or in a specified region;

the price or representation is taken, for the purposes of

subsection (2)(d), not to have been made in relation to supply of

the goods at a different location, or in a different region, as the case

may be.

(4) Despite subsection (2), a price or representation is not a displayed

price for goods if:

(a) the price or representation is wholly obscured by another

such price or representation that is written, stamped or

located wholly over that price or representation; or

(b) the price or representation:

(i) is expressed as a price per unit of mass, volume, length

or other unit of measure; and

(ii) is presented as an alternative means of expressing the

price for supply of the goods that is a displayed price for

the goods; or

(c) the price or representation is expressed as an amount in a

currency other than Australian currency; or

(d) the price or representation is expressed in a way that is

unlikely to be interpreted as an amount of Australian

currency.

(5) Despite subsection (2), a displayed price for goods that is a

displayed price because it has been published in a catalogue or

advertisement ceases to be a displayed price for the goods if:

(a) the displayed price is retracted; and

(b) the retraction is published in a manner that has at least a

similar circulation or audience as the catalogue or

advertisement.

48 Single price to be specified in certain circumstances

(1) A person must not, in trade or commerce, in connection with:

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(a) the supply, or possible supply, to another person of goods or

services of a kind ordinarily acquired for personal, domestic

or household use or consumption; or

(b) the promotion by any means of the supply to another person,

or of the use by another person, of goods or services of a kind

ordinarily acquired for personal, domestic or household use

or consumption;

make a representation with respect to an amount that, if paid,

would constitute a part of the consideration for the supply of the

goods or services unless the person also specifies, in a prominent

way and as a single figure, the single price for the goods or

services.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A person is not required to include, in the single price for goods, a

charge that is payable in relation to sending the goods from the

supplier to the other person.

(3) However, if:

(a) the person does not include in the single price a charge that is

payable in relation to sending the goods from the supplier to

the other person; and

(b) the person knows, at the time of the representation, the

minimum amount of a charge in relation to sending the goods

from the supplier to the other person that must be paid by the

other person;

the person must not make the representation referred to in

subsection (1) unless the person also specifies that minimum

amount.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(4) Subsection (1) does not apply if the representation is made

exclusively to a body corporate.

(4A) Subsection (1) does not apply if:

(a) the representation is in a class of representations prescribed

by the regulations; and

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Chapter 3 Specific protections

Part 3-1 Unfair practices

Division 4 Pricing

Section 48

146 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the conditions (if any) prescribed by the regulations in

relation to representations in that class have been complied

with.

Note: If the representation is in a class prescribed for paragraph (a) of this

subsection and subsection (1) is complied with in relation to the

representation, there is no need to also comply with any conditions

prescribed for paragraph (b) of this subsection.

(5) For the purposes of subsection (1), the person is taken not to have

specified a single price for the goods or services in a prominent

way unless the single price is at least as prominent as the most

prominent of the parts of the consideration for the supply.

(6) Subsection (5) does not apply in relation to services to be supplied

under a contract if:

(a) the contract provides for the supply of the services for the

term of the contract; and

(b) the contract provides for periodic payments for the services

to be made during the term of the contract; and

(c) if the contract also provides for the supply of goods—the

goods are directly related to the supply of the services.

(7) The single price is the minimum quantifiable consideration for the

supply of the goods or services at the time of the representation,

including each of the following amounts (if any) that is

quantifiable at that time:

(a) a charge of any description payable to the person making the

representation by another person (other than a charge that is

payable at the option of the other person);

(b) the amount which reflects any tax, duty, fee, levy or charge

imposed on the person making the representation in relation

to the supply;

(c) any amount paid or payable by the person making the

representation in relation to the supply with respect to any

tax, duty, fee, levy or charge if:

(i) the amount is paid or payable under an agreement or

arrangement made under a law of the Commonwealth, a

State or a Territory; and

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Pricing Division 4

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(ii) the tax, duty, fee, levy or charge would have otherwise

been payable by another person in relation to the supply.

Example 1: A person advertises lounge suites for sale. Persons have the option of

paying for fabric protection. The fabric protection charge does not

form part of the single price because of the exception in paragraph (a).

Example 2: The GST may be an example of an amount covered by paragraph (b).

Example 3: The passenger movement charge imposed under the Passenger

Movement Charge Act 1978 may be an example of an amount covered

by paragraph (c). Under an arrangement under section 10 of the

Passenger Movement Charge Collection Act 1978, airlines may pay

an amount equal to the charge that would otherwise be payable by

passengers departing Australia.

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Schedule 2 The Australian Consumer Law

Chapter 3 Specific protections

Part 3-1 Unfair practices

Division 5 Other unfair practices

Section 49

148 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 5—Other unfair practices

49 Referral selling

A person must not, in trade or commerce, induce a consumer to

acquire goods or services by representing that the consumer will,

after the contract for the acquisition of the goods or services is

made, receive a rebate, commission or other benefit in return for:

(a) giving the person the names of prospective customers; or

(b) otherwise assisting the person to supply goods or services to

other consumers;

if receipt of the rebate, commission or other benefit is contingent

on an event occurring after that contract is made.

Note: A pecuniary penalty may be imposed for a contravention of this

section.

50 Harassment and coercion

(1) A person must not use physical force, or undue harassment or

coercion, in connection with:

(a) the supply or possible supply of goods or services; or

(b) the payment for goods or services; or

(c) the sale or grant, or the possible sale or grant, of an interest in

land; or

(d) the payment for an interest in land.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) Subsections (1)(c) and (d) do not affect the application of any other

provision of Part 2-1 or this Part in relation to the supply or

acquisition, or the possible supply or acquisition, of interests in

land.

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The Australian Consumer Law Schedule 2

Specific protections Chapter 3

Consumer transactions Part 3-2

Consumer guarantees Division 1

Section 51

Competition and Consumer Act 2010 149

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part 3-2—Consumer transactions

Division 1—Consumer guarantees

Subdivision A—Guarantees relating to the supply of goods

51 Guarantee as to title

(1) If a person (the supplier) supplies goods to a consumer, there is a

guarantee that the supplier will have a right to dispose of the

property in the goods when that property is to pass to the

consumer.

(2) Subsection (1) does not apply to a supply (a supply of limited title)

if an intention that the supplier of the goods should transfer only

such title as the supplier, or another person, may have:

(a) appears from the contract for the supply; or

(b) is to be inferred from the circumstances of that contract.

(3) This section does not apply if the supply is a supply by way of hire

or lease.

52 Guarantee as to undisturbed possession

(1) If:

(a) a person (the supplier) supplies goods to a consumer; and

(b) the supply is not a supply of limited title;

there is a guarantee that the consumer has the right to undisturbed

possession of the goods.

(2) Subsection (1) does not apply to the extent that the consumer’s

undisturbed possession of the goods may be lawfully disturbed by

a person who is entitled to the benefit of any security, charge or

encumbrance disclosed to the consumer before the consumer

agreed to the supply.

(3) If:

(a) a person (the supplier) supplies goods to a consumer; and

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Subdivision A Guarantees relating to the supply of goods

Section 53

150 Competition and Consumer Act 2010

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(b) the supply is a supply of limited title;

there is a guarantee that the following persons will not disturb the

consumer’s possession of the goods:

(c) the supplier;

(d) if the parties to the contract for the supply intend that the

supplier should transfer only such title as another person may

have—that other person;

(e) anyone claiming through or under the supplier or that other

person (otherwise than under a security, charge or

encumbrance disclosed to the consumer before the consumer

agreed to the supply).

(4) This section applies to a supply by way of hire or lease only for the

period of the hire or lease.

53 Guarantee as to undisclosed securities etc.

(1) If:

(a) a person (the supplier) supplies goods to a consumer; and

(b) the supply is not a supply of limited title;

there is a guarantee that:

(c) the goods are free from any security, charge or encumbrance:

(i) that was not disclosed to the consumer, in writing,

before the consumer agreed to the supply; or

(ii) that was not created by or with the express consent of

the consumer; and

(d) the goods will remain free from such a security, charge or

encumbrance until the time when the property in the goods

passes to the consumer.

(2) A supplier does not fail to comply with the guarantee only because

of the existence of a floating charge over the supplier’s assets

unless and until the charge becomes fixed and enforceable by the

person to whom the charge is given.

Note: Section 339 of the Personal Property Securities Act 2009 affects the

meaning of the references in this subsection to a floating charge and a

fixed charge.

(3) If:

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(a) a person (the supplier) supplies goods to a consumer; and

(b) the supply is a supply of limited title;

there is a guarantee that all securities, charges or encumbrances

known to the supplier, and not known to the consumer, were

disclosed to the consumer before the consumer agreed to the

supply.

(4) This section does not apply if the supply is a supply by way of hire

or lease.

54 Guarantee as to acceptable quality

(1) If:

(a) a person supplies, in trade or commerce, goods to a

consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.

(2) Goods are of acceptable quality if they are as:

(a) fit for all the purposes for which goods of that kind are

commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from defects; and

(d) safe; and

(e) durable;

as a reasonable consumer fully acquainted with the state and

condition of the goods (including any hidden defects of the goods),

would regard as acceptable having regard to the matters in

subsection (3).

(3) The matters for the purposes of subsection (2) are:

(a) the nature of the goods; and

(b) the price of the goods (if relevant); and

(c) any statements made about the goods on any packaging or

label on the goods; and

(d) any representation made about the goods by the supplier or

manufacturer of the goods; and

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Subdivision A Guarantees relating to the supply of goods

Section 55

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(e) any other relevant circumstances relating to the supply of the

goods.

(4) If:

(a) goods supplied to a consumer are not of acceptable quality;

and

(b) the only reason or reasons why they are not of acceptable

quality were specifically drawn to the consumer’s attention

before the consumer agreed to the supply;

the goods are taken to be of acceptable quality.

(5) If:

(a) goods are displayed for sale or hire; and

(b) the goods would not be of acceptable quality if they were

supplied to a consumer;

the reason or reasons why they are not of acceptable quality are

taken, for the purposes of subsection (4), to have been specifically

drawn to a consumer’s attention if those reasons were disclosed on

a written notice that was displayed with the goods and that was

transparent.

(6) Goods do not fail to be of acceptable quality if:

(a) the consumer to whom they are supplied causes them to

become of unacceptable quality, or fails to take reasonable

steps to prevent them from becoming of unacceptable

quality; and

(b) they are damaged by abnormal use.

(7) Goods do not fail to be of acceptable quality if:

(a) the consumer acquiring the goods examines them before the

consumer agrees to the supply of the goods; and

(b) the examination ought reasonably to have revealed that the

goods were not of acceptable quality.

55 Guarantee as to fitness for any disclosed purpose etc.

(1) If:

(a) a person (the supplier) supplies, in trade or commerce, goods

to a consumer; and

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(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are reasonably fit for any

disclosed purpose, and for any purpose for which the supplier

represents that they are reasonably fit.

(2) A disclosed purpose is a particular purpose (whether or not that

purpose is a purpose for which the goods are commonly supplied)

for which the goods are being acquired by the consumer and that:

(a) the consumer makes known, expressly or by implication, to:

(i) the supplier; or

(ii) a person by whom any prior negotiations or

arrangements in relation to the acquisition of the goods

were conducted or made; or

(b) the consumer makes known to the manufacturer of the goods

either directly or through the supplier or the person referred

to in paragraph (a)(ii).

(3) This section does not apply if the circumstances show that the

consumer did not rely on, or that it was unreasonable for the

consumer to rely on, the skill or judgment of the supplier, the

person referred to in subsection (2)(a)(ii) or the manufacturer, as

the case may be.

56 Guarantee relating to the supply of goods by description

(1) If:

(a) a person supplies, in trade or commerce, goods by

description to a consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods correspond with the description.

(2) A supply of goods is not prevented from being a supply by

description only because, having been exposed for sale or hire,

they are selected by the consumer.

(3) If goods are supplied by description as well as by reference to a

sample or demonstration model, the guarantees in this section and

in section 57 both apply.

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Subdivision A Guarantees relating to the supply of goods

Section 57

154 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

57 Guarantees relating to the supply of goods by sample or

demonstration model

(1) If:

(a) a person supplies, in trade or commerce, goods to a consumer

by reference to a sample or demonstration model; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that:

(c) the goods correspond with the sample or demonstration

model in quality, state or condition; and

(d) if the goods are supplied by reference to a sample—the

consumer will have a reasonable opportunity to compare the

goods with the sample; and

(e) the goods are free from any defect that:

(i) would not be apparent on reasonable examination of the

sample or demonstration model; and

(ii) would cause the goods not to be of acceptable quality.

(2) If goods are supplied by reference to a sample or demonstration

model as well as by description, the guarantees in section 56 and in

this section both apply.

58 Guarantee as to repairs and spare parts

(1) If:

(a) a person supplies, in trade or commerce, goods to a

consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the manufacturer of the goods will take

reasonable action to ensure that facilities for the repair of the

goods, and parts for the goods, are reasonably available for a

reasonable period after the goods are supplied.

(2) This section does not apply if the manufacturer took reasonable

action to ensure that the consumer would be given written notice,

at or before the time when the consumer agrees to the supply of the

goods, that:

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Guarantees relating to the supply of services Subdivision B

Section 59

Competition and Consumer Act 2010 155

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) facilities for the repair of the goods would not be available or

would not be available after a specified period; or

(b) parts for the goods would not be available or would not be

available after a specified period.

59 Guarantee as to express warranties

(1) If:

(a) a person supplies, in trade or commerce, goods to a

consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the manufacturer of the goods will comply

with any express warranty given or made by the manufacturer in

relation to the goods.

(2) If:

(a) a person supplies, in trade or commerce, goods to a

consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the supplier will comply with any express

warranty given or made by the supplier in relation to the goods.

Subdivision B—Guarantees relating to the supply of services

60 Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer,

there is a guarantee that the services will be rendered with due care

and skill.

61 Guarantees as to fitness for a particular purpose etc.

(1) If:

(a) a person (the supplier) supplies, in trade or commerce,

services to a consumer; and

(b) the consumer, expressly or by implication, makes known to

the supplier any particular purpose for which the services are

being acquired by the consumer;

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Subdivision B Guarantees relating to the supply of services

Section 62

156 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

there is a guarantee that the services, and any product resulting

from the services, will be reasonably fit for that purpose.

(2) If:

(a) a person (the supplier) supplies, in trade or commerce,

services to a consumer; and

(b) the consumer makes known, expressly or by implication, to:

(i) the supplier; or

(ii) a person by whom any prior negotiations or

arrangements in relation to the acquisition of the

services were conducted or made;

the result that the consumer wishes the services to achieve;

there is a guarantee that the services, and any product resulting

from the services, will be of such a nature, and quality, state or

condition, that they might reasonably be expected to achieve that

result.

(3) This section does not apply if the circumstances show that the

consumer did not rely on, or that it was unreasonable for the

consumer to rely on, the skill or judgment of the supplier.

(4) This section does not apply to a supply of services of a professional

nature by a qualified architect or engineer.

62 Guarantee as to reasonable time for supply

If:

(a) a person (the supplier) supplies, in trade or commerce,

services to a consumer; and

(b) the time within which the services are to be supplied:

(i) is not fixed by the contract for the supply of the

services; or

(ii) is not to be determined in a manner agreed to by the

consumer and supplier;

there is a guarantee that the services will be supplied within a

reasonable time.

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Guarantees not to be excluded etc. by contract Subdivision C

Section 63

Competition and Consumer Act 2010 157

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

63 Services to which this Subdivision does not apply

This Subdivision does not apply to services that are, or are to be,

supplied under:

(a) a contract for or in relation to the transportation or storage of

goods for the purposes of a business, trade, profession or

occupation carried on or engaged in by the person for whom

the goods are transported or stored; or

(b) a contract of insurance.

Subdivision C—Guarantees not to be excluded etc. by contract

64 Guarantees not to be excluded etc. by contract

(1) A term of a contract (including a term that is not set out in the

contract but is incorporated in the contract by another term of the

contract) is void to the extent that the term purports to exclude,

restrict or modify, or has the effect of excluding, restricting or

modifying:

(a) the application of all or any of the provisions of this

Division; or

(b) the exercise of a right conferred by such a provision; or

(c) any liability of a person for a failure to comply with a

guarantee that applies under this Division to a supply of

goods or services.

(2) A term of a contract is not taken, for the purposes of this section, to

exclude, restrict or modify the application of a provision of this

Division unless the term does so expressly or is inconsistent with

the provision.

64A Limitation of liability for failures to comply with guarantees

(1) A term of a contract for the supply by a person of goods other than

goods of a kind ordinarily acquired for personal, domestic or

household use or consumption is not void under section 64 merely

because the term limits the person’s liability for failure to comply

with a guarantee (other than a guarantee under section 51, 52 or

53) to one or more of the following:

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Subdivision C Guarantees not to be excluded etc. by contract

Section 64A

158 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) the replacement of the goods or the supply of equivalent

goods;

(b) the repair of the goods;

(c) the payment of the cost of replacing the goods or of acquiring

equivalent goods;

(d) the payment of the cost of having the goods repaired.

(2) A term of a contract for the supply by a person of services other

than services of a kind ordinarily acquired for personal, domestic

or household use or consumption is not void under section 64

merely because the term limits the person’s liability for failure to

comply with a guarantee to:

(a) the supplying of the services again; or

(b) the payment of the cost of having the services supplied again.

(3) This section does not apply in relation to a term of a contract if the

person to whom the goods or services were supplied establishes

that it is not fair or reasonable for the person who supplied the

goods or services to rely on that term of the contract.

(4) In determining for the purposes of subsection (3) whether or not

reliance on a term of a contract is fair or reasonable, a court is to

have regard to all the circumstances of the case, and in particular to

the following matters:

(a) the strength of the bargaining positions of the person who

supplied the goods or services and the person to whom the

goods or services were supplied (the buyer) relative to each

other, taking into account, among other things, the

availability of equivalent goods or services and suitable

alternative sources of supply;

(b) whether the buyer received an inducement to agree to the

term or, in agreeing to the term, had an opportunity of

acquiring the goods or services or equivalent goods or

services from any source of supply under a contract that did

not include that term;

(c) whether the buyer knew or ought reasonably to have known

of the existence and extent of the term (having regard, among

other things, to any custom of the trade and any previous

course of dealing between the parties);

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Section 65

Competition and Consumer Act 2010 159

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(d) in the case of the supply of goods, whether the goods were

manufactured, processed or adapted to the special order of

the buyer.

Subdivision D—Miscellaneous

65 Application of this Division to supplies of gas, electricity and

telecommunications

(1) This Division does not apply to a supply if the supply:

(a) is a supply of a kind specified in the regulations; and

(b) is a supply of gas, electricity or a telecommunications

service.

(2) A telecommunications service is a service for carrying

communications by means of guided or unguided electromagnetic

energy or both.

66 Display notices

(1) The Commonwealth Minister may determine, in writing, that

persons (the suppliers) who make supplies, or supplies of a

specified kind, to which guarantees apply under this Division are

required to display, in accordance with the determination, a notice

that meets the requirements of the determination.

(2) A supplier who makes a supply to a consumer to which a guarantee

applies under this Division, and to which such a determination

relates, must ensure that a notice that meets those requirements is,

in accordance with the determination:

(a) if the consumer takes delivery of the goods or services at the

supplier’s premises—displayed at those premises; or

(b) otherwise—drawn to the consumer’s attention before the

consumer agrees to the supply of the goods.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) Without limiting subsection (1), a determination under that

subsection may do all or any of the following:

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Subdivision D Miscellaneous

Section 67

160 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) require the notice to include specified information about the

application of all or any of the provisions of this Division and

Part 5-4;

(b) specify where the notice must be displayed;

(c) specify how the notice must be drawn to the attention of

consumers;

(d) specify requirements as to the form of the notice.

67 Conflict of laws

If:

(a) the proper law of a contract for the supply of goods or

services to a consumer would be the law of any part of

Australia but for a term of the contract that provides

otherwise; or

(b) a contract for the supply of goods or services to a consumer

contains a term that purports to substitute, or has the effect of

substituting, the following provisions for all or any of the

provisions of this Division:

(i) the provisions of the law of a country other than

Australia;

(ii) the provisions of the law of a State or a Territory;

the provisions of this Division apply in relation to the supply under

the contract despite that term.

68 Convention on Contracts for the International Sale of Goods

The provisions of the United Nations Convention on Contracts for

the International Sale of Goods, done at Vienna on 11 April 1980,

as amended and in force for Australia from time to time, prevail

over the provisions of this Division to the extent of any

inconsistency.

Note: The text of the Convention is set out in Australian Treaty Series 1988

No. 32 ([1988] ATS 32). In 2010, the text of a Convention in the

Australian Treaty Series was accessible through the Australian

Treaties Library on the AustLII website (www.austlii.edu.au).

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Unsolicited consumer agreements Division 2

Section 69

Competition and Consumer Act 2010 161

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Unsolicited consumer agreements

Subdivision A—Introduction

69 Meaning of unsolicited consumer agreement

(1) An agreement is an unsolicited consumer agreement if:

(a) it is for the supply, in trade or commerce, of goods or

services to a consumer; and

(b) it is made as a result of negotiations between a dealer and the

consumer:

(i) in each other’s presence at a place other than the

business or trade premises of the supplier of the goods

or services; or

(ii) by telephone;

whether or not they are the only negotiations that precede the

making of the agreement; and

(c) the consumer did not invite the dealer to come to that place,

or to make a telephone call, for the purposes of entering into

negotiations relating to the supply of those goods or services

(whether or not the consumer made such an invitation in

relation to a different supply); and

(d) the total price paid or payable by the consumer under the

agreement:

(i) is not ascertainable at the time the agreement is made;

or

(ii) if it is ascertainable at that time—is more than $100 or

such other amount prescribed by the regulations.

(1A) The consumer is not taken, for the purposes of subsection (1)(c), to

have invited the dealer to come to that place, or to make a

telephone call, merely because the consumer has:

(a) given his or her name or contact details other than for the

predominant purpose of entering into negotiations relating to

the supply of the goods or services referred to in

subsection (1)(c); or

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Subdivision A Introduction

Section 70

162 Competition and Consumer Act 2010

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(b) contacted the dealer in connection with an unsuccessful

attempt by the dealer to contact the consumer.

(2) An invitation merely to quote a price for a supply is not taken, for

the purposes of subsection (1)(c), to be an invitation to enter into

negotiations for a supply.

(3) An agreement is also an unsolicited consumer agreement if it is an

agreement of a kind that the regulations provide are unsolicited

consumer agreements.

(4) However, despite subsections (1) and (3), an agreement is not an

unsolicited consumer agreement if it is an agreement of a kind

that the regulations provide are not unsolicited consumer

agreements.

70 Presumption that agreements are unsolicited consumer

agreements

(1) In a proceeding relating to a contravention or possible

contravention of this Division (other than a criminal proceeding),

an agreement is presumed to be an unsolicited consumer agreement

if:

(a) a party to the proceeding alleges that the agreement is an

unsolicited consumer agreement; and

(b) no other party to the proceeding proves that the agreement is

not an unsolicited consumer agreement.

(2) In a proceeding relating to a contravention or possible

contravention of this Division (other than a criminal proceeding), it

is presumed that a proposed agreement would be an unsolicited

consumer agreement if it were made if:

(a) a party to the proceeding alleges that the proposed agreement

would be an unsolicited consumer agreement if it were made;

and

(b) no other party to the proceeding proves that the proposed

agreement would not be an unsolicited consumer agreement

if it were made.

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Negotiating unsolicited consumer agreements Subdivision B

Section 71

Competition and Consumer Act 2010 163

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

71 Meaning of dealer

A dealer is a person who, in trade or commerce:

(a) enters into negotiations with a consumer with a view to

making an agreement for the supply of goods or services to

the consumer; or

(b) calls on, or telephones, a consumer for the purpose of

entering into such negotiations;

whether or not that person is, or is to be, the supplier of the goods

or services.

72 Meaning of negotiation

A negotiation, in relation to an agreement or a proposed

agreement, includes any discussion or dealing directed towards the

making of the agreement or proposed agreement (whether or not

the terms of the agreement or proposed agreement are open to any

discussion or dealing).

Subdivision B—Negotiating unsolicited consumer agreements

73 Permitted hours for negotiating an unsolicited consumer

agreement

(1) A dealer must not call on a person for the purpose of negotiating an

unsolicited consumer agreement, or for an incidental or related

purpose:

(a) at any time on a Sunday or a public holiday; or

(b) before 9 am on any other day; or

(c) after 6 pm on any other day (or after 5 pm if the other day is

a Saturday).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) Subsection (1) does not apply if the dealer calls on the person in

accordance with consent that:

(a) was given by the person to the dealer or a person acting on

the dealer’s behalf; and

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Subdivision B Negotiating unsolicited consumer agreements

Section 74

164 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) was not given in the presence of the dealer or a person acting

on the dealer’s behalf.

Note: The Do Not Call Register Act 2006 may apply to a telephone call

made for the purpose of negotiating an unsolicited consumer

agreement.

74 Disclosing purpose and identity

A dealer who calls on a person for the purpose of negotiating an

unsolicited consumer agreement, or for an incidental or related

purpose, must, as soon as practicable and in any event before

starting to negotiate:

(a) clearly advise the person that the dealer’s purpose is to seek

the person’s agreement to a supply of the goods or services

concerned; and

(b) clearly advise the person that the dealer is obliged to leave

the premises immediately on request; and

(c) provide to the person such information relating to the

dealer’s identity as is prescribed by the regulations.

Note: A pecuniary penalty may be imposed for a contravention of this

section.

75 Ceasing to negotiate on request

(1) A dealer who calls on a person at any premises for the purpose of

negotiating an unsolicited consumer agreement, or for an incidental

or related purpose, must leave the premises immediately on the

request of:

(a) the occupier of the premises, or any person acting with the

actual or apparent authority of the occupier; or

(b) the person (the prospective consumer) with whom the

negotiations are being conducted.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) If the prospective consumer makes such a request, the dealer must

not contact the prospective consumer for the purpose of negotiating

an unsolicited consumer agreement (or for an incidental or related

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Section 76

Competition and Consumer Act 2010 165

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purpose) for at least 30 days after the prospective consumer makes

the request.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) If the dealer is not, or is not to be, the supplier of the goods or

services to which the negotiations relate:

(a) subsection (2) applies to that supplier, and any person acting

on behalf of that supplier, in the same way that it applies to

the dealer; but

(b) subsection (2) does not apply to the dealer contacting the

prospective customer in relation to a supply by another

supplier.

76 Informing person of termination period etc.

A dealer must not make an unsolicited consumer agreement with a

person unless:

(a) before the agreement is made, the person is given

information as to the following:

(i) the person’s right to terminate the agreement during the

termination period;

(ii) the way in which the person may exercise that right;

(iii) such other matters as are prescribed by the regulations;

and

(b) if the agreement is made in the presence of both the dealer

and the person—the person is given the information in

writing; and

(c) if the agreement is made by telephone—the person is given

the information by telephone, and is subsequently given the

information in writing; and

(d) the form in which, and the way in which, the person is given

the information complies with any other requirements

prescribed by the regulations.

Note: A pecuniary penalty may be imposed for a contravention of this

section.

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Subdivision C Requirements for unsolicited consumer agreements etc.

Section 77

166 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

77 Liability of suppliers for contraventions by dealers

If:

(a) a dealer contravenes a provision of this Subdivision in

relation to an unsolicited consumer agreement; and

(b) the dealer is not, or is not to be, the supplier of the goods or

services to which the agreement relates;

the supplier of the goods or services is also taken to have

contravened that provision in relation to the agreement.

Subdivision C—Requirements for unsolicited consumer

agreements etc.

78 Requirement to give document to the consumer

(1) If an unsolicited consumer agreement was not negotiated by

telephone, the dealer who negotiated the agreement must give a

copy of the agreement to the consumer under the agreement

immediately after the consumer signs the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) If an unsolicited consumer agreement was negotiated by telephone,

the dealer who negotiated the agreement must, within 5 business

days after the agreement was made or such longer period agreed by

the parties, give to the consumer under the agreement:

(a) personally; or

(b) by post; or

(c) with the consumer’s consent—by electronic communication;

a document (the agreement document) evidencing the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) An unsolicited consumer agreement was negotiated by telephone if

the negotiations that resulted in the making of the agreement took

place by telephone (whether or not other negotiations preceded the

making of the agreement).

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Section 79

Competition and Consumer Act 2010 167

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

79 Requirements for all unsolicited consumer agreements etc.

The supplier under an unsolicited consumer agreement must ensure

that the agreement, or (if the agreement was negotiated by

telephone) the agreement document, complies with the following

requirements:

(a) it must set out in full all the terms of the agreement,

including:

(i) the total consideration to be paid or provided by the

consumer under the agreement or, if the total

consideration is not ascertainable at the time the

agreement is made, the way in which it is to be

calculated; and

(ii) any postal or delivery charges to be paid by the

consumer;

(b) its front page must include a notice that:

(i) conspicuously and prominently informs the consumer of

the consumer’s right to terminate the agreement; and

(ii) conspicuously and prominently sets out any other

information prescribed by the regulations; and

(iii) complies with any other requirements prescribed by the

regulations;

(c) it must be accompanied by a notice that:

(i) may be used by the consumer to terminate the

agreement; and

(ii) complies with any requirements prescribed by the

regulations;

(d) it must conspicuously and prominently set out in full:

(i) the supplier’s name; and

(ii) if the supplier has an ABN—the supplier’s ABN; and

(iii) if the supplier does not have an ABN but has an ACN—

the supplier’s ACN; and

(iv) the supplier’s business address (not being a post box) or,

if the supplier does not have a business address, the

supplier’s residential address; and

(v) if the supplier has an email address—the supplier’s

email address; and

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Subdivision C Requirements for unsolicited consumer agreements etc.

Section 80

168 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(vi) if the supplier has a fax number—the supplier’s fax

number;

(e) it must be printed clearly or typewritten (apart from any

amendments to the printed or typewritten form, which may

be handwritten);

(f) it must be transparent.

Note: A pecuniary penalty may be imposed for a contravention of this

section.

80 Additional requirements for unsolicited consumer agreements

not negotiated by telephone

The supplier under an unsolicited consumer agreement that was not

negotiated by telephone must ensure that, in addition to complying

with the requirements of section 79, the agreement complies with

the following requirements:

(a) the agreement must be signed by the consumer under the

agreement;

(b) if the agreement is signed by a person on the supplier’s

behalf—the agreement must state that the person is acting on

the supplier’s behalf, and must set out in full:

(i) the person’s name; and

(ii) the person’s business address (not being a post box) or,

if the person does not have a business address, the

person’s residential address; and

(iii) if the person has an email address—the person’s email

address.

Note: A pecuniary penalty may be imposed for a contravention of this

section.

81 Requirements for amendments of unsolicited consumer

agreements

The supplier under an unsolicited consumer agreement must ensure

that any amendments to the agreement are signed by both parties to

the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this

section.

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Section 82

Competition and Consumer Act 2010 169

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Subdivision D—Terminating unsolicited consumer agreements

82 Terminating an unsolicited consumer agreement during the

termination period

(1) The consumer under an unsolicited consumer agreement may,

during the period provided under subsection (3), terminate the

agreement by indicating, in an oral or written notice to the supplier

under the agreement, an intention to terminate the agreement.

(2) A right of termination under this section may be exercised:

(a) despite affirmation of the agreement by the consumer; and

(b) even though the agreement has been fully executed.

(3) The period during which the consumer may terminate the

agreement is whichever of the following periods is the longest:

(a) if the agreement was not negotiated by telephone—the period

of 10 business days starting at the start of the first business

day after the day on which the agreement was made;

(b) if the agreement was negotiated by telephone—the period of

10 business days starting at the start of the first business day

after the day on which the consumer was given the agreement

document relating to the agreement;

(c) if one or more of the following were contravened in relation

to the agreement:

(i) section 73 (permitted hours for negotiating an

unsolicited consumer agreement);

(ii) section 74 (disclosing purpose and identity);

(iii) section 75 (ceasing to negotiate on request);

the period of 3 months starting at the start of the first day

after the day on which the agreement was made or, if the

agreement was negotiated by telephone, the agreement

document was given;

(d) if one or more of the following were contravened in relation

to the agreement:

(i) section 76 (informing consumer of termination period);

(ii) a provision of Subdivision C (requirements for

unsolicited consumer agreements);

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Subdivision D Terminating unsolicited consumer agreements

Section 83

170 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(iii) section 86 (prohibition on supplies for 10 business

days);

the period of 6 months starting at the start of the first day

after the day on which the agreement was made or, if the

agreement was negotiated by telephone, the agreement

document was given;

(e) such other period as the agreement provides.

(4) If the notice under subsection (1) is written, it may be given:

(a) by delivering it personally to the supplier; or

(b) by delivering it, or sending it by post, in an envelope

addressed to the supplier, to the supplier’s address referred to

in section 79(d)(iv); or

(c) if the supplier has an email address—by sending it to the

supplier’s email address referred to in section 79(d)(v); or

(d) if the supplier has a fax number—by faxing it to the

supplier’s fax number referred to in section 79(d)(vi).

(5) A notice under subsection (1) sent by post to a supplier is taken to

have been given to the supplier at the time of posting.

(6) There are no requirements relating to the form or content of a

notice under subsection (1).

83 Effect of termination

(1) If an unsolicited consumer agreement is terminated in accordance

with section 82:

(a) the agreement is taken to have been rescinded by mutual

consent; and

(b) any related contract or instrument is void.

(2) A related contract or instrument, in relation to an unsolicited

consumer agreement, is:

(a) any contract of guarantee or indemnity that is related to the

agreement; or

(b) any instrument related to the agreement that creates a

mortgage or charge in favour of the supplier under the

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contract or the dealer in relation to the contract (or a person

nominated by the supplier or dealer); or

(c) any contract or instrument (other than an instrument of a kind

referred to in paragraph (b)) that is collateral or related to the

agreement;

but does not include a tied continuing credit contract (within the

meaning of section 127(2) of Schedule 1 to the National Consumer

Credit Protection Act 2009), or a tied loan contract (within the

meaning of section 127(3) of that Schedule).

(3) The termination of an unsolicited consumer agreement has effect

for the purposes of section 82 and this section even if:

(a) the supplier under the agreement has not received the notice

of termination; or

(b) the goods or services supplied under the agreement have

been wholly or partly consumed or used.

84 Obligations of suppliers on termination

If an unsolicited consumer agreement is terminated in accordance

with section 82, the supplier under the agreement must,

immediately upon being notified of the termination, return or

refund to the consumer under the agreement any consideration (or

the value of any consideration) that the consumer gave under the

agreement or a related contract or instrument.

Note: A pecuniary penalty may be imposed for a contravention of this

section.

85 Obligations and rights of consumers on termination

(1) If an unsolicited consumer agreement is terminated in accordance

with section 82, the consumer under the agreement must, within a

reasonable time:

(a) return to the supplier under the agreement any goods:

(i) that have been received from the supplier under the

agreement; and

(ii) that the consumer has not already consumed; or

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Subdivision D Terminating unsolicited consumer agreements

Section 85

172 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) notify the supplier of the place where the supplier may

collect the goods.

(2) The goods become the property of the consumer, freed and

discharged from all liens and charges of any description, if:

(a) the consumer gives notice to the supplier under

subsection (1)(b); and

(b) the supplier does not collect the goods within 30 days after

the termination of the contract.

(3) If:

(a) the agreement is terminated in accordance with section 82

after the end of the period of 10 business days starting:

(i) if the agreement was not negotiated by telephone—at

the start of the first business day after the day on which

the agreement was made; or

(ii) if the agreement was negotiated by telephone—at the

start of the first business day after the day on which the

consumer was given the agreement document relating to

the agreement; and

(b) the consumer returns the goods to the supplier, or the

supplier collects the goods, under this section; and

(c) the consumer has failed to take reasonable care of the goods;

the consumer is liable to pay compensation to the supplier for the

damage to, or depreciation in the value of, the goods.

(4) The compensation is recoverable in a court of competent

jurisdiction.

(5) However, the consumer is not liable for any such damage or

depreciation attributable to normal use of the goods or to

circumstances beyond the consumer’s control.

(6) If:

(a) an unsolicited consumer agreement is terminated in

accordance with section 82 after the end of the period of 10

business days starting:

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(i) if the agreement was not negotiated by telephone—at

the start of the first business day after the day on which

the agreement was made; or

(ii) if the agreement was negotiated by telephone—at the

start of the first business day after the day on which the

consumer was given the agreement document relating to

the agreement; and

(b) prior to the termination, but after the end of that period, a

service was supplied under the agreement;

the termination does not affect any liability of the consumer under

the agreement to provide consideration for the service.

86 Prohibition on supplies etc. for 10 business days

(1) The supplier under an unsolicited consumer agreement must not:

(a) supply to the consumer under the agreement the goods or

services to be supplied under the agreement; or

(b) accept any payment, or any other consideration, in

connection with those goods or services; or

(c) require any payment, or any other consideration, in

connection with those goods or services;

during the period of 10 business days starting:

(d) if the agreement was not negotiated by telephone—at the

start of the first business day after the day on which the

agreement was made; or

(e) if the agreement was negotiated by telephone—at the start of

the first business day after the day on which the consumer

was given the agreement document relating to the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) If the supplier supplies goods to the consumer in contravention of

this section, the consumer has the same rights in relation to the

goods as if the goods were unsolicited goods.

Note: Section 41 deals with unsolicited goods.

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Subdivision D Terminating unsolicited consumer agreements

Section 87

174 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) If the supplier supplies services to the consumer in contravention

of this section, the consumer has the same rights in relation to the

services as if the services were unsolicited services.

Note: Section 42 deals with unsolicited services.

87 Repayment of payments received after termination

If an unsolicited consumer agreement is terminated in accordance

with section 82, the supplier under the agreement must

immediately refund to the consumer under the agreement any

payment:

(a) that the consumer, or a person acting on the consumer’s

behalf, makes to the supplier after the termination; and

(b) that purports to be made under the agreement or a related

contract or instrument.

Note: A pecuniary penalty may be imposed for a contravention of this

section.

88 Prohibition on recovering amounts after termination

(1) If an unsolicited consumer agreement is terminated in accordance

with section 82, a person must not:

(a) bring, or assert an intention to bring, legal proceedings

against the consumer; or

(b) take, or assert an intention to take, any other action against

the consumer;

in relation to an amount alleged to be payable, under the agreement

or a related contract or instrument, by the consumer under the

agreement.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(1A) Subsection (1) does not apply to:

(a) bringing, or asserting an intention to bring, legal proceedings

against the consumer; or

(b) taking, or asserting an intention to take, any other action

against the consumer;

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Miscellaneous Subdivision E

Section 89

Competition and Consumer Act 2010 175

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to enforce a liability under section 85(3), or a liability of a kind

referred to in section 85(6).

(2) If an unsolicited consumer agreement is terminated in accordance

with section 82, a person must not, for the purpose of recovering an

amount alleged to be payable, under the agreement or a related

contract or instrument, by the consumer under the agreement:

(a) place the consumer’s name, or cause the consumer’s name to

be placed, on a list of defaulters or debtors; or

(b) assert an intention to place the consumer’s name, or cause the

consumer’s name to be placed, on such a list.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) Without limiting Division 2 of Part 5-2, an injunction granted

under that Division may require a person responsible for keeping a

list of defaulters or debtors on which the consumer’s name has

been wrongly placed to remove the name from that list.

Subdivision E—Miscellaneous

89 Certain provisions of unsolicited consumer agreements void

(1) A provision (however described) of an unsolicited consumer

agreement is void if it has the effect of, or purports to have the

effect of:

(a) excluding, limiting, modifying or restricting a right of the

consumer under the agreement to terminate the agreement

under this Division; or

(b) otherwise excluding, limiting, modifying or restricting the

effect or operation of this Division; or

(c) making a dispute relating to the agreement, or to a supply to

which the agreement relates, justiciable by a court by which

the dispute would not otherwise be justiciable.

(2) The supplier under an unsolicited consumer agreement must ensure

that the agreement does not include, or purport to include, a

provision (however described) that is, or would be, void because of

subsection (1).

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Subdivision E Miscellaneous

Section 90

176 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) The supplier under an unsolicited consumer agreement must not

attempt to enforce or rely on a provision (however described) that

is void because of subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

90 Waiver of rights

(1) The consumer under an unsolicited consumer agreement is not

competent to waive any right conferred by this Division.

(2) The supplier under the unsolicited consumer agreement must not

induce, or attempt to induce, the consumer to waive any right

conferred by this Division.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

91 Application of this Division to persons to whom rights of

consumers and suppliers are assigned etc.

(1) This Division applies in relation to a person to whom the rights of

a consumer (the original consumer) under a contract for the supply

of goods or services are assigned or transferred, or pass by

operation of law, (whether from the original consumer or from

another person) as if the person were the original consumer.

(2) This Division applies in relation to a person to whom the rights of

a supplier (the original supplier) under a contract for the supply of

goods or services are assigned or transferred, or pass by operation

of law, (whether from the original supplier or from another person)

as if the person were the original supplier.

92 Application of this Division to supplies to third parties

This Division applies in relation to a contract for the supply of

goods or services to a consumer (the original consumer) on the

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order of another person as if the other person were also the

consumer.

93 Effect of contravening this Division

(1) The supplier under an unsolicited consumer agreement cannot

enforce the agreement against the consumer under the agreement if

a provision of this Division (other than section 85) has been

contravened in relation to the agreement.

(2) This section does not prevent any action being taken under this

Schedule in relation to the contravention.

94 Regulations may limit the application of this Division

This Division (other than section 73) does not apply, or provisions

of this Division (other than section 73) that are specified in the

regulations do not apply, to or in relation to:

(a) circumstances of a kind specified in the regulations; or

(b) agreements of a kind specified in the regulations; or

(c) the conduct of businesses of a kind specified in the

regulations.

95 Application of this Division to certain conduct covered by the

Corporations Act

This Division does not apply in relation to conduct to which

section 736, 992A or 992AA of the Corporations Act 2001 applies.

Note: Section 736 of the Corporations Act 2001 prohibits hawking of

securities. Section 992A of that Act prohibits hawking of certain

financial products. Section 992AA of that Act prohibits hawking of

managed investment products.

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Division 3 Lay-by agreements

Section 96

178 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Lay-by agreements

96 Lay-by agreements must be in writing etc.

(1) A supplier of goods who is a party to a lay-by agreement must

ensure that:

(a) the agreement is in writing; and

(b) a copy of the agreement is given to the consumer to whom

the goods are, or are to be, supplied.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A supplier of goods who is a party to a lay-by agreement must

ensure that the agreement is transparent.

(3) A lay-by agreement is an agreement between a supplier of goods

and a consumer for the supply, in trade or commerce, of the goods

on terms (whether express or implied) which provide that:

(a) the goods will not be delivered to the consumer until the total

price of the goods has been paid; and

(b) the price of the goods is to be paid by:

(i) 3 or more instalments; or

(ii) if the agreement specifies that it is a lay-by agreement—

2 or more instalments.

(4) For the purposes of subsection (3)(b), any deposit paid by the

consumer for the goods is taken to be an instalment.

97 Termination of lay-by agreements by consumers

(1) A consumer who is party to a lay-by agreement may terminate the

agreement at any time before the goods to which the agreement

relates are delivered to the consumer under the agreement.

(2) A supplier of goods who is a party to a lay-by agreement must

ensure that the agreement does not require the consumer to pay a

charge (a termination charge) for the termination of the agreement

unless:

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(a) the agreement is terminated by the consumer; and

(b) the supplier has not breached the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) A supplier of goods who is a party to a lay-by agreement must

ensure that, if the agreement provides that a termination charge is

payable, the amount of the charge is not more than the supplier’s

reasonable costs in relation to the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

98 Termination of lay-by agreements by suppliers

A supplier of goods who is a party to a lay-by agreement must not

terminate the agreement unless:

(a) the consumer who is a party to the agreement breached a

term of the agreement; or

(b) the supplier is no longer engaged in trade or commerce; or

(c) the goods to which the agreement relates are no longer

available.

Note: A pecuniary penalty may be imposed for a contravention of this

section.

99 Effect of termination

(1) If a lay-by agreement is terminated by a party to the agreement, the

supplier must refund to the consumer all the amounts paid by the

consumer under the agreement other than any termination charge

that is payable under the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) The supplier is entitled to recover any unpaid termination charge

from the consumer as a debt if the amounts paid by the consumer

under the lay-by agreement are not enough to cover the charge.

(3) If a lay-by agreement is terminated by a party to the agreement, the

supplier is not entitled to damages, or to enforce any other remedy,

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Section 99

180 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

in relation to that termination except as provided for by this

section.

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Division 4—Miscellaneous

100 Supplier must provide proof of transaction etc.

(1) If:

(a) a person (the supplier), in trade or commerce, supplies goods

or services to a consumer; and

(b) the total price (excluding GST) of the goods or services is

$75 or more;

the supplier must give the consumer a proof of transaction as soon

as practicable after the goods or services are so supplied.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) If:

(a) a person (the supplier), in trade or commerce, supplies goods

or services to a consumer; and

(b) the total price (excluding GST) of the goods or services is

less than $75;

the consumer may request a proof of transaction from the supplier

as soon as practicable after the goods or services are so supplied.

(3) If a request is made under subsection (2), the supplier must give

the proof of transaction within 7 days after the request is made.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(4) A proof of transaction for a supply of goods or services to a

consumer is a document that:

(a) identifies the supplier of the goods or services; and

(b) if the supplier has an ABN—states the supplier’s ABN; and

(c) if the supplier does not have an ABN but has an ACN—

states the supplier’s ACN; and

(d) states the date of the supply; and

(e) states the goods or services supplied to the consumer; and

(f) states the price of the goods or services.

Note: The following are examples of a proof of transaction:

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(a) a tax invoice within the meaning of the A New Tax System (Goods and Services Tax) Act 1999;

(b) a cash register receipt;

(c) a credit card or debit card statement;

(d) a handwritten receipt;

(e) a lay-by agreement;

(f) a confirmation or receipt number provided for a telephone or internet transaction.

(5) The supplier must ensure that the proof of transaction given under

subsection (1) or (3) is transparent.

101 Consumer may request an itemised bill

(1) If a person (the supplier), in trade or commerce, supplies services

to a consumer, the consumer may request that the supplier give the

consumer an itemised bill that:

(a) specifies how the price of the services was calculated; and

(b) includes, if applicable, the number of hours of labour that

related to the supply of the services and the hourly rate for

that labour; and

(c) includes, if applicable, a list of the materials used to supply

the services and the amount charged for those materials.

(2) The request under subsection (1) must be made within 30 days

after:

(a) the services are supplied; or

(b) the consumer receives a bill or account from the supplier for

the supply of the services;

whichever occurs later.

(3) The supplier must give the consumer the itemised bill within 7

days after the request is made.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(4) The supplier must not charge the consumer for the itemised bill.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(5) The supplier must ensure that the itemised bill is transparent.

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102 Prescribed requirements for warranties against defects

(1) The regulations may prescribe requirements relating to the form

and content of warranties against defects.

(2) A person must not, in connection with the supply, in trade or

commerce, of goods or services to a consumer:

(a) give to the consumer a document that evidences a warranty

against defects that does not comply with the requirements

prescribed for the purposes of subsection (1); or

(b) represent directly to the consumer that the goods or services

are goods or services to which such a warranty against

defects relates.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) A warranty against defects is a representation communicated to a

consumer in connection with the supply of goods or services, at or

about the time of supply, to the effect that a person will

(unconditionally or on specified conditions):

(a) repair or replace the goods or part of them; or

(b) provide again or rectify the services or part of them; or

(c) wholly or partly recompense the consumer;

if the goods or services or part of them are defective, and includes

any document by which such a representation is evidenced.

103 Repairers must comply with prescribed requirements

(1) The regulations may prescribe requirements relating to the form

and content of notices to be given relating to the repair of goods

supplied to a consumer.

(2) A person (the repairer) must not, in trade or commerce, accept

from another person goods that the other person acquired as a

consumer if the repairer:

(a) accepts the goods for the purpose of repairing them; and

(b) does not give to the other person a notice that complies with

the requirements prescribed for the purposes of

subsection (1).

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Division 4 Miscellaneous

Section 103

184 Competition and Consumer Act 2010

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Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

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Section 104

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Part 3-3—Safety of consumer goods and product related

services

Division 1—Safety standards

104 Making safety standards for consumer goods and product

related services

(1) The Commonwealth Minister may, by written notice published on

the internet, make a safety standard for one or both of the

following:

(a) consumer goods of a particular kind;

(b) product related services of a particular kind.

(2) A safety standard for consumer goods of a particular kind may

consist of such requirements about the following matters as are

reasonably necessary to prevent or reduce risk of injury to any

person:

(a) the performance, composition, contents, methods of

manufacture or processing, design, construction, finish or

packaging of consumer goods of that kind;

(b) the testing of consumer goods of that kind during, or after the

completion of, manufacture or processing;

(c) the form and content of markings, warnings or instructions to

accompany consumer goods of that kind.

(3) A safety standard for product related services of a particular kind

may consist of such requirements about the following matters as

are reasonably necessary to prevent or reduce risk of injury to any

person:

(a) the manner in which services of that kind are supplied

(including, but not limited to, the method of supply);

(b) the skills or qualifications of persons who supply such

services;

(c) the materials used in supplying such services;

(d) the testing of such services;

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Section 105

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(e) the form and content of warnings, instructions or other

information about such services.

105 Declaring safety standards for consumer goods and product

related services

(1) The Commonwealth Minister may, by written notice published on

the internet, declare that the following is a safety standard for

consumer goods, or product related services, of a kind specified in

the instrument:

(a) a particular standard, or a particular part of a standard,

prepared or approved by Standards Australia or by an

association prescribed by the regulations;

(b) such a standard, or such a part of a standard, with additions

or variations specified in the notice.

(2) The Commonwealth Minister must not declare under

subsection (1) that a standard, or a part of a standard, referred to in

that subsection is a safety standard for:

(a) consumer goods of a particular kind; or

(b) product related services of a particular kind;

if that standard or part is inconsistent with a safety standard for

those goods or services that is in force and that was made under

section 104(1).

106 Supplying etc. consumer goods that do not comply with safety

standards

(1) A person must not, in trade or commerce, supply consumer goods

of a particular kind if:

(a) a safety standard for consumer goods of that kind is in force;

and

(b) those goods do not comply with the standard.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A person must not, in trade or commerce, offer for supply (other

than for export) consumer goods the supply of which is prohibited

by subsection (1).

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Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) A person must not, in or for the purposes of trade or commerce,

manufacture, possess or have control of consumer goods the supply

of which is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(4) In a proceeding under Part 5-2 in relation to a contravention of

subsection (3), it is a defence if the defendant proves that the

defendant’s manufacture, possession or control of the goods was

not for the purpose of supplying the goods (other than for export).

(5) A person must not, in trade or commerce, export consumer goods

the supply of which is prohibited by subsection (1) unless:

(a) the person applies, in writing, to the Commonwealth Minister

for an approval to export those goods; and

(b) the Commonwealth Minister gives such an approval by

written notice given to the person.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(6) If the Commonwealth Minister gives an approval under

subsection (5), he or she must cause a statement setting out

particulars of the approval to be tabled in each House of the

Parliament of the Commonwealth within 7 sitting days of that

House after the approval is given.

(7) If:

(a) a person supplies consumer goods in contravention of this

section; and

(b) another person suffers loss or damage:

(i) because of a defect in, or a dangerous characteristic of,

the goods; or

(ii) because of a reasonably foreseeable use (including a

misuse) of the goods; or

(iii) because, contrary to the safety standard, he or she was

not provided with particular information in relation to

the goods; and

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Chapter 3 Specific protections

Part 3-3 Safety of consumer goods and product related services

Division 1 Safety standards

Section 107

188 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) the other person would not have suffered the loss or damage

if the goods had complied with the safety standard;

the other person is taken, for the purposes of this Schedule, to have

suffered the loss or damage because of that supply.

107 Supplying etc. product related services that do not comply with

safety standards

(1) A person must not, in trade or commerce, supply product related

services of particular kind if:

(a) a safety standard for services of that kind is in force; and

(b) those services do not comply with the standard.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A person must not, in trade or commerce, offer for supply product

related services the supply of which is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) If:

(a) a person supplies product related services in contravention of

this section; and

(b) another person suffers loss or damage:

(i) because of defect in, or a dangerous characteristic of,

consumer goods that results from the services being

supplied; or

(ii) because of a reasonably foreseeable use (including a

misuse) of consumer goods that results from the

services being supplied; or

(iii) because, contrary to the safety standard, he or she was

not provided with particular information in relation to

the services; and

(c) the other person would not have suffered the loss or damage

if the services had complied with the safety standard;

the other person is taken, for the purposes of this Schedule, to have

suffered the loss or damage because of that supply.

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Section 108

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108 Requirement to nominate a safety standard

If:

(a) a safety standard for consumer goods of a particular kind is

in force; and

(b) the standard specifies, as alternative methods of complying

with the standard (or part of the standard), 2 or more sets of

requirements relating to goods of that kind; and

(c) the regulator gives to a supplier of goods of that kind a

written request that the supplier nominate which of those sets

of requirements the supplier intends to comply with as the

supplier’s method of complying with the standard;

the supplier must, within the period specified in the request, give to

the regulator a written notice specifying which of those sets of

requirements the supplier intends to comply with as the supplier’s

method of complying with the standard.

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Part 3-3 Safety of consumer goods and product related services

Division 2 Bans on consumer goods and product related services

Section 109

190 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Bans on consumer goods and product related

services

Subdivision A—Interim bans

109 Interim bans on consumer goods or product related services

that will or may cause injury to any person etc.

(1) A responsible Minister may, by written notice published on the

internet, impose an interim ban on consumer goods of a particular

kind if:

(a) it appears to the responsible Minister 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; or

(b) another responsible Minister has imposed, under

paragraph (a), an interim ban:

(i) on consumer goods of the same kind; or

(ii) on consumer goods of a kind that includes those goods;

and that ban is still in force.

(2) A responsible Minister may, by written notice published on the

internet, impose an interim ban on product related services of a

particular kind if:

(a) it appears to the responsible Minister 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; or

(b) another responsible Minister has imposed, under

paragraph (a), an interim ban:

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Section 110

Competition and Consumer Act 2010 191

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(i) on product related services of the same kind; or

(ii) on product related services that include those services;

and that ban is still in force.

110 Places in which interim bans apply

(1) An interim ban imposed by the Commonwealth Minister applies in

all States and Territories.

(2) An interim ban imposed by a responsible Minister who is Minister

of a State applies in the State.

(3) An interim ban imposed by a responsible Minister who is a

Minister of a Territory applies in the Territory.

111 Ban period for interim bans

(1) An interim ban imposed by a responsible Minister is in force

during the period (the ban period) that:

(a) starts on the day (the start day) specified in the notice

imposing the ban; and

(b) subject to this Subdivision, ends at the end of 60 days after

the start day.

(2) Before the ban period for the interim ban ends, the responsible

Minister may, by written notice published on the internet, extend

the ban period for the ban by a period of up to 30 days.

(3) If:

(a) the ban period for the interim ban is extended under

subsection (2); and

(b) the extended ban period for the ban has not ended; and

(c) the interim ban was not imposed by the Commonwealth

Minister;

the responsible Minister may, in writing, request the

Commonwealth Minister to extend the extended ban period for the

ban.

(4) If a request is made under subsection (3), the Commonwealth

Minister may, by written notice published on the internet, extend

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Subdivision A Interim bans

Section 112

192 Competition and Consumer Act 2010

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the extended ban period for the interim ban by a further period of

up to 30 days.

(5) If:

(a) a request is made under subsection (3); and

(b) the Commonwealth Minister has not made a decision on the

request immediately before the extended ban period for the

interim ban is to end;

the Commonwealth Minister is taken to have decided to extend the

extended ban period for the ban by a further period of 30 days.

(6) If:

(a) the ban period for the interim ban is extended under

subsection (2); and

(b) the extended ban period for the ban has not ended; and

(c) the interim ban was imposed by the Commonwealth

Minister;

the Commonwealth Minister may, by written notice published on

the internet, extend the extended ban period for the interim ban by

a further period of up to 30 days.

112 Interaction of multiple interim bans

(1) If:

(a) an interim ban (the original ban) on consumer goods of a

particular kind (the banned goods) is imposed by a

responsible Minister other than the Commonwealth Minister;

and

(b) while the original ban is in force, the Commonwealth

Minister imposes an interim ban (the Commonwealth ban):

(i) on the banned goods; or

(ii) on consumer goods of a kind that includes the banned

goods;

the original ban, to the extent that it is a ban on the banned goods,

ceases to be in force immediately before the Commonwealth ban

comes into force.

(2) If:

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Section 113

Competition and Consumer Act 2010 193

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(a) an interim ban (the original ban) on product related services

of a particular kind (the banned services) is imposed by a

responsible Minister other than the Commonwealth Minister;

and

(b) while the original ban is in force, the Commonwealth

Minister imposes an interim ban (the Commonwealth ban):

(i) on the banned services; or

(ii) on product related services of a kind that includes the

banned services;

the original ban, to the extent that it is a ban on the banned

services, ceases to be in force immediately before the

Commonwealth ban comes into force.

113 Revocation of interim bans

If a responsible Minister imposes an interim ban:

(a) the responsible Minister may, by written notice published on

the internet, revoke the ban at any time; and

(b) the ban ceases to be in force on the day specified by the

responsible Minister in the notice.

Subdivision B—Permanent bans

114 Permanent bans on consumer goods or product related services

(1) The Commonwealth Minister may, by written notice published on

the internet, impose a permanent ban on consumer goods of a

particular kind if:

(a) one or more interim bans on consumer goods of that kind

(the banned goods), or on consumer goods of a kind that

include the banned goods, are in force; or

(b) it appears to the Commonwealth Minister 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.

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Subdivision C Compliance with interim bans and permanent bans

Section 115

194 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) The Commonwealth Minister may, by written notice published on

the internet, impose a permanent ban on product related services

of a particular kind if:

(a) one or more interim bans on product related services of that

kind (the banned services), or on product related services of

a kind that include the banned services, are in force; or

(b) it appears to the Commonwealth Minister 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.

115 Places in which permanent bans apply

A permanent ban applies in all States and Territories.

116 When permanent bans come into force

A permanent ban comes into force on the day specified by the

Commonwealth Minister in the instrument imposing the ban.

117 Revocation of permanent bans

If the Commonwealth Minister imposes a permanent ban:

(a) the Commonwealth Minister may, by written notice

published on the internet, revoke the ban at any time; and

(b) the ban ceases to be in force on the day specified by the

Commonwealth Minister in the notice.

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Section 118

Competition and Consumer Act 2010 195

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Subdivision C—Compliance with interim bans and permanent

bans

118 Supplying etc. consumer goods covered by a ban

(1) A person must not, in trade or commerce, supply consumer goods

of a particular kind if:

(a) an interim ban on consumer goods of that kind is in force in

the place where the supply occurs; or

(b) a permanent ban on consumer goods of that kind is in force.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A person must not, in trade or commerce, offer for supply (other

than for export) consumer goods the supply of which is prohibited

by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) A person must not, in or for the purposes of trade or commerce,

manufacture, possess or have control of consumer goods the supply

of which is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(4) In a proceeding under Part 5-2 in relation to a contravention of

subsection (3), it is a defence if the defendant proves that the

defendant’s manufacture, possession or control of the goods was

not for the purpose of supplying the goods (other than for export).

(5) A person must not, in trade or commerce, export consumer goods

the supply of which is prohibited by subsection (1) unless:

(a) the person applies, in writing, to the Commonwealth Minister

for an approval to export those goods; and

(b) the Commonwealth Minister gives such an approval by

written notice given to the person.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

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Subdivision C Compliance with interim bans and permanent bans

Section 119

196 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(6) If the Commonwealth Minister gives an approval under

subsection (5), he or she must cause a statement setting out

particulars of the approval to be tabled in each House of the

Parliament of the Commonwealth within 7 sitting days of that

House after the approval is given.

(7) If:

(a) a person supplies consumer goods in contravention of

subsection (1); and

(b) another person suffers loss or damage:

(i) because of a defect in, or a dangerous characteristic of,

the goods; or

(ii) because of a reasonably foreseeable use (including a

misuse) of the goods;

the other person is taken, for the purposes of this Schedule, to have

suffered the loss or damage because of that supply.

119 Supplying etc. product related services covered by a ban

(1) A person must not, in trade or commerce, supply product related

services of a particular kind if:

(a) an interim ban on services of that kind is in force in the place

where the supply occurs; or

(b) a permanent ban on services of that kind is in force.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A person must not, in trade or commerce, offer for supply product

related services the supply of which is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) If:

(a) a person supplies product related services in contravention of

subsection (1); and

(b) another person suffers loss or damage:

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Temporary exemption from mutual recognition principles Subdivision D

Section 120

Competition and Consumer Act 2010 197

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(i) because of a defect in, or a dangerous characteristic of,

consumer goods that results from the services being

supplied; or

(ii) because of a reasonably foreseeable use (including a

misuse) of consumer goods that results from the

services being supplied;

the other person is taken, for the purposes of this Schedule, to have

suffered the loss or damage because of that supply.

Subdivision D—Temporary exemption from mutual

recognition principles

120 Temporary exemption under the Trans-Tasman Mutual

Recognition Act 1997

(1) If:

(a) an interim ban on consumer goods of a particular kind is in

force; or

(b) a permanent ban on consumer goods of a particular kind is in

force;

the goods are taken, for the purposes of section 46 of the

Trans-Tasman Mutual Recognition Act 1997, to be goods of a kind

that are declared, in the manner provided by section 46(2) of that

Act, to be exempt from the operation of that Act.

(2) This section does not affect the application of section 46(4) of that

Act in relation to such an exemption.

121 Temporary exemption under the Mutual Recognition Act 1992

(1) If:

(a) an interim ban on consumer goods of a particular kind is in

force; and

(b) the interim ban was not imposed by the Commonwealth

Minister;

the goods are taken, for the purposes of section 15 of the Mutual

Recognition Act 1992, to be goods of a kind that are declared, in

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Subdivision D Temporary exemption from mutual recognition principles

Section 121

198 Competition and Consumer Act 2010

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the manner provided by section 15(1) of that Act, to be goods to

which that section applies.

(2) This section does not affect the application of section 15(3) of that

Act in relation to such an exemption.

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Recall of consumer goods Division 3

Section 122

Competition and Consumer Act 2010 199

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Division 3—Recall of consumer goods

Subdivision A—Compulsory recall of consumer goods

122 Compulsory recall of consumer goods

(1) A responsible Minister may, by written notice published on the

internet, issue a recall notice for consumer goods of a particular

kind if:

(a) a person, in trade or commerce, supplies consumer goods of

that kind; and

(b) any of the following applies:

(i) it appears to the responsible Minister that such goods

will or may cause injury to any person;

(ii) it appears to the responsible Minister that a reasonably

foreseeable use (including a misuse) of such goods will

or may cause injury to any person;

(iii) a safety standard for such goods is in force and the

goods do not comply with the standard;

(iv) an interim ban, or a permanent ban, on such goods is in

force; and

(c) it appears to the responsible Minister that one or more

suppliers of such goods have not taken satisfactory action to

prevent those goods causing injury to any person.

(2) It is not necessary for the purposes of subsection (1)(c) for the

responsible Minister to know the identities of any of the suppliers

of the consumer goods of that kind.

(3) A recall notice for consumer goods may be issued under

subsection (1) even if the consumer goods have become fixtures

since the time they were supplied.

123 Contents of a recall notice

(1) A recall notice for the consumer goods may require one or more

suppliers of the goods, or (if no such supplier is known to the

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Subdivision A Compulsory recall of consumer goods

Section 123

200 Competition and Consumer Act 2010

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responsible Minister who issued the notice) the regulator, to take

one or more of the following actions:

(a) recall the goods;

(b) disclose to the public, or to a class of persons specified in the

notice, one or more of the following:

(i) the nature of a defect in, or a dangerous characteristic

of, the goods as identified in the notice;

(ii) the circumstances as identified in the notice in which a

reasonably foreseeable use or misuse of the goods is

dangerous;

(iii) procedures as specified in the notice for disposing of the

goods;

(c) if the identities of any of those suppliers are known to the

responsible Minister—inform the public, or a class of

persons specified in the notice, that the supplier undertakes to

do whichever of the following the supplier thinks is

appropriate:

(i) unless the notice identifies a dangerous characteristic of

the goods—repair the goods;

(ii) replace the goods;

(iii) refund to a person to whom the goods were supplied

(whether by the supplier or by another person) the price

of the goods.

(2) The recall notice may specify:

(a) the manner in which the action required to be taken by the

notice must be taken; and

(b) the period within which the action must be taken.

(3) If the recall notice requires the regulator to take action to recall the

consumer goods, the responsible Minister may specify in the notice

that the regulator must retain, destroy or otherwise dispose of the

goods.

(4) If the recall notice requires a supplier of the consumer goods to

take action of a kind referred to in subsection (1)(c), the

responsible Minister may specify in the notice that, if:

(a) the supplier undertakes to refund the price of the goods; and

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Section 124

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(b) a period of more than 12 months has elapsed since a person

(whether or not the person to whom the refund is to be made)

acquired the goods from the supplier;

the amount of a refund may be reduced by the supplier by an

amount calculated in a manner specified in the notice that is

attributable to the use which a person has had of the goods.

124 Obligations of a supplier in relation to a recall notice

(1) This section applies if a recall notice for consumer goods requires a

supplier to take action of a kind referred to in section 123(1)(c).

(2) If the supplier undertakes to repair the consumer goods, the

supplier must cause the goods to be repaired so that:

(a) any defect in the goods identified in the recall notice is

remedied; and

(b) if a safety standard for the goods is in force—the goods

comply with that standard.

(3) If the supplier undertakes to replace the consumer goods, the

supplier must replace the goods with similar consumer goods

which:

(a) if a defect in, or a dangerous characteristic of, the goods to be

replaced was identified in the recall notice—do not contain

that defect or have that characteristic; and

(b) if a safety standard for the goods to be replaced is in force—

comply with that standard.

(4) If the supplier undertakes:

(a) to repair the consumer goods; or

(b) to replace the consumer goods;

the cost of the repair or replacement, including any necessary

transportation costs, must be paid by the supplier.

125 Notification by persons who supply consumer goods outside

Australia if there is compulsory recall

(1) If consumer goods of a particular kind are recalled as required by a

recall notice, a person who has supplied or supplies those

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Subdivision A Compulsory recall of consumer goods

Section 126

202 Competition and Consumer Act 2010

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consumer goods to a person outside Australia must give the person

outside Australia a written notice that complies with subsection (2).

(2) The notice given under subsection (1) must:

(a) state that the consumer goods are subject to recall; and

(b) if the consumer goods contain a defect or have a dangerous

characteristic—set out the nature of that defect or

characteristic; and

(c) if a reasonably foreseeable use or misuse of the consumer

goods is dangerous—set out the circumstances of that use or

misuse; and

(d) if the consumer goods do not comply with a safety standard

for such goods that is in force—set out the nature of the

non-compliance; and

(e) if an interim ban, or a permanent ban, on the consumer goods

is in force—state that fact.

(3) The notice under subsection (1) must be given as soon as

practicable after the supply of the consumer goods to the person

outside Australia.

(4) A person who is required to give a notice under subsection (1)

must, within 10 days after giving the notice, give a copy of the

notice to the responsible Minister who issued the recall notice.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

126 Interaction of multiple recall notices

If:

(a) a recall notice (the original recall notice) for consumer

goods of a particular kind (the recalled goods) is issued by a

responsible Minister other than the Commonwealth Minister;

and

(b) while the original recall notice is in force, the

Commonwealth Minister issues a recall notice (the

Commonwealth recall notice):

(i) for the recalled goods; or

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(ii) for consumer goods of a kind that includes the recalled

goods;

the original recall notice, to the extent that it relates to the recalled

goods, ceases to be in force immediately before the

Commonwealth recall notice is issued.

127 Compliance with recall notices

(1) If:

(a) a recall notice for consumer goods is in force; and

(b) the notice requires a person (other than the regulator) to do

one or more things;

the person must comply with the notice.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) If a recall notice for consumer goods is in force, a person must not,

in trade or commerce:

(a) if the notice identifies a defect in, or a dangerous

characteristic of, the consumer goods—supply consumer

goods of the kind to which the notice relates which contain

that defect or have that characteristic; or

(b) in any other case—supply consumer goods of the kind to

which the notice relates.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) If:

(a) a person contravenes subsection (1) or (2) in relation to

consumer goods; and

(b) another person suffers loss or damage:

(i) because of a defect in, or a dangerous characteristic of,

the goods; or

(ii) because of a reasonably foreseeable use (including a

misuse) of the goods; or

(iii) because, contrary to the recall notice, the other person

was not provided with particular information in relation

to the goods;

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Subdivision B Voluntary recall of consumer goods

Section 128

204 Competition and Consumer Act 2010

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the other person is taken, for the purposes of this Schedule, to have

suffered the loss or damage because of the contravention.

Subdivision B—Voluntary recall of consumer goods

128 Notification requirements for a voluntary recall of consumer

goods

(1) This section applies if a person voluntarily takes action to recall

consumer goods of a particular kind (including consumer goods

that have become fixtures since being supplied) because:

(a) the consumer goods will or may cause injury to any other

person; or

(b) a reasonably foreseeable use (including a misuse) of the

consumer goods will or may cause injury to any other person;

or

(c) a safety standard for the consumer goods is in force and they

do not, or it is likely that they do not, comply with the

standard; or

(d) an interim ban, or a permanent ban, on the consumer goods is

in force.

(2) The person must, within 2 days after taking the action, give the

Commonwealth Minister a written notice that complies with

subsection (7).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) The Commonwealth Minister may publish a copy of the notice on

the internet.

(4) A person who has supplied or supplies consumer goods of that

kind to another person outside Australia must give the other person

a written notice that complies with subsection (7).

(5) The notice under subsection (4) must be given as soon as

practicable after the supply of the consumer goods to the person

outside Australia.

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Section 128

Competition and Consumer Act 2010 205

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(6) A person who is required to give a notice under subsection (4)

must, within 10 days after giving the notice, give a copy of the

notice to the Commonwealth Minister.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(7) A notice given under subsection (2) or (4) must:

(a) state that the consumer goods are subject to recall; and

(b) if the consumer goods contain a defect or have a dangerous

characteristic—set out the nature of that defect or

characteristic; and

(c) if a reasonably foreseeable use or misuse of the consumer

goods is dangerous—set out the circumstances of that use or

misuse; and

(d) if the consumer goods do not, or it is likely that they do not,

comply with a safety standard for the goods that is in force—

set out the nature of the non-compliance or likely

non-compliance; and

(e) if an interim ban, or a permanent ban, on the consumer goods

is in force—state that fact.

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Division 4 Safety warning notices

Section 129

206 Competition and Consumer Act 2010

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Division 4—Safety warning notices

129 Safety warning notices about consumer goods and product

related services

(1) A responsible Minister may publish on the internet a written notice

containing one or both of the following:

(a) a statement that consumer goods of a kind specified in the

notice are under investigation to determine whether:

(i) those goods will or may cause injury to any person; or

(ii) a reasonably foreseeable use (including a misuse) of

those goods will or may cause injury to any person;

(b) a warning of possible risks involved in the use of consumer

goods of a kind specified in the notice.

(2) A responsible Minister may publish on the internet a written notice

containing one or both of the following:

(a) a statement that product related services of a kind specified in

the notice are under investigation to determine whether:

(i) consumer goods of a particular kind will or may cause

injury to any person as a result of services of that kind

being supplied; 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;

(b) a warning of possible risks involved in the supply of product

related services of a kind specified in the notice.

130 Announcement of the results of an investigation etc.

(1) If:

(a) an investigation of consumer goods, or product related

services, specified in a notice under section 129(1) or (2) has

been completed; and

(b) none of the following have been published or issued in

relation to those goods or services:

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(i) a proposed ban notice under section 132 of the

Competition and Consumer Act;

(ii) a proposed recall notice under section 132A of that Act;

(iii) a notice under section 132J(1) or (2) of that Act;

the responsible Minister who issued the notice under

section 129(1) or (2) must, as soon as practicable after the

completion of the investigation, announce, by written notice

published on the internet, the results of the investigation.

(2) The responsible Minister may announce in a notice published

under subsection (1) of this section:

(a) whether any action under this Part is proposed to be taken in

relation to the consumer goods or product related services;

and

(b) if it is proposed to take any such action—what action is

proposed to be taken.

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Chapter 3 Specific protections

Part 3-3 Safety of consumer goods and product related services

Division 5 Consumer goods, or product related services, associated with death or

serious injury or illness

Section 131

208 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 5—Consumer goods, or product related services,

associated with death or serious injury or illness

131 Suppliers to report consumer goods associated with the death or

serious injury or illness of any person

(1) If:

(a) a person (the supplier), in trade or commerce, supplies

consumer goods; and

(b) the supplier becomes aware of the death or serious injury or

illness of any person and:

(i) considers that the death or serious injury or illness was

caused, or may have been caused, by the use or

foreseeable misuse of the consumer goods; or

(ii) becomes aware that a person other than the supplier

considers that the death or serious injury or illness was

caused, or may have been caused, by the use or

foreseeable misuse of the consumer goods;

the supplier must, within 2 days of becoming so aware, give the

Commonwealth Minister a written notice that complies with

subsection (5).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) Subsection (1) does not apply if:

(a) it is clear that the death or serious injury or illness was not

caused by the use or foreseeable misuse of the consumer

goods; or

(b) it is very unlikely that the death or serious injury or illness

was caused by the use or foreseeable misuse of the consumer

goods; or

(c) the supplier, or another person, is required to notify the death

or serious injury or illness in accordance with a law of the

Commonwealth, a State or a Territory that is a law specified

in the regulations; or

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illness Division 5

Section 131

Competition and Consumer Act 2010 209

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(d) the supplier, or another person, is required to notify the death

or serious injury or illness in accordance with an industry

code of practice that:

(i) applies to the supplier or other person; and

(ii) is specified in the regulations.

(3) Subsection (1) applies whether or not the consumer goods were

being used before or at the time the death or serious injury or

illness occurred.

(4) Without limiting subsection (1), the ways in which the supplier

may become aware as mentioned in subsection (1)(b) include

receiving the relevant information from any of the following:

(a) a consumer;

(b) a person who re-supplies the consumer goods;

(c) a repairer or insurer of the goods;

(d) an industry organisation or consumer organisation.

(5) The notice must:

(a) identify the consumer goods; and

(b) include information about the following matters to the extent

that it is known by the supplier at the time the notice is given:

(i) when, and in what quantities, the consumer goods were

manufactured in Australia, supplied in Australia,

imported into Australia or exported from Australia;

(ii) the circumstances in which the death or serious injury or

illness occurred;

(iii) the nature of any serious injury or illness suffered by

any person;

(iv) any action that the supplier has taken, or is intending to

take, in relation to the consumer goods.

(6) The giving of the notice under subsection (1) is not to be taken for

any purpose to be an admission by the supplier of any liability in

relation to:

(a) the consumer goods; or

(b) the death or serious injury or illness of any person.

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Chapter 3 Specific protections

Part 3-3 Safety of consumer goods and product related services

Division 5 Consumer goods, or product related services, associated with death or

serious injury or illness

Section 132

210 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

132 Suppliers to report product related services associated with the

death or serious injury or illness of any person

(1) If:

(a) a person (the supplier), in trade or commerce, supplies

product related services; and

(b) the supplier becomes aware of the death or serious injury or

illness of any person and:

(i) considers that the death or serious injury or illness was

caused, or may have been caused, by the use or

foreseeable misuse of the consumer goods to which the

services relate; or

(ii) becomes aware that a person other than the supplier

considers that the death or serious injury or illness was

caused, or may have been caused, by the use or

foreseeable misuse of the consumer goods to which the

services relate;

the supplier must, within 2 days of becoming so aware, give the

Commonwealth Minister a written notice that complies with

subsection (5).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) Subsection (1) does not apply if:

(a) it is clear that the death or serious injury or illness was not

caused by the use or foreseeable misuse of the consumer

goods to which the services relate; or

(b) it is very unlikely that the death or serious injury or illness

was caused by the use or foreseeable misuse of the consumer

goods to which the services relate; or

(c) the supplier, or another person, is required to notify the death

or serious injury or illness in accordance with a law of the

Commonwealth, a State or a Territory that is a law specified

in the regulations; or

(d) the supplier, or another person, has notified the death or

serious injury or illness in accordance with an industry code

of practice that:

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illness Division 5

Section 132

Competition and Consumer Act 2010 211

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(i) applies to the supplier or other person; and

(ii) is specified in the regulations.

(3) Subsection (1) applies whether or not consumer goods to which the

product related services relate were being used before or at the

time the death or serious injury or illness occurred.

(4) Without limiting subsection (1), the ways in which the supplier

may become aware as mentioned in subsection (1)(b) include

receiving the relevant information from any of the following:

(a) a consumer;

(b) a person who re-supplies the product related services;

(c) an insurer of the services;

(d) an industry organisation or consumer organisation.

(5) The notice must:

(a) identify the product related services and the consumer goods

to which the services relate; and

(b) include information about the following matters to the extent

that it is known by the supplier at the time the notice is given:

(i) when the services have been supplied;

(ii) the circumstances in which the death or serious injury or

illness occurred;

(iii) the nature of any serious injury or illness suffered by

any person;

(iv) any action that the supplier has taken, or is intending to

take, in relation to the services.

(6) The giving of the notice under subsection (1) is not to be taken for

any purpose to be an admission by the supplier of any liability in

relation to:

(a) the product related services; or

(b) the consumer goods to which the services relate; or

(c) the death or serious injury or illness of any person.

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Chapter 3 Specific protections

Part 3-3 Safety of consumer goods and product related services

Division 5 Consumer goods, or product related services, associated with death or

serious injury or illness

Section 132A

212 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

132A Confidentiality of notices given under this Division

(1) A person must not disclose to any other person a notice given

under this Division, or any part of or information contained in such

a notice, unless the person who gave the notice has consented to

the notice, or that part or information, not being treated as

confidential.

(2) This section does not apply if:

(a) the disclosure is made by the Commonwealth Minister to:

(i) another responsible Minister; or

(ii) the regulator; or

(iii) an associate regulator; or

(b) the disclosure is made by the Commonwealth Minister and

the Commonwealth Minister considers that the disclosure is

in the public interest; or

(c) the disclosure is made by a member of the staff of the

regulator, or an associate regulator, in the performance of his

or her duties as such a member of staff, and is made:

(i) to another member of the staff of the regulator or

associate regulator; or

(ii) if the person making the disclosure is a member of the

staff of the regulator—to an associate regulator; or

(iii) if the person making the disclosure is a member of the

staff of an associate regulator—to the regulator or

another associate regulator; or

(d) the disclosure is required or authorised by or under law; or

(e) the disclosure is reasonably necessary for the enforcement of

the criminal law or of a law imposing a pecuniary penalty.

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Section 133

Competition and Consumer Act 2010 213

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Division 6—Miscellaneous

133 Liability under a contract of insurance

If:

(a) a contract of insurance between an insurer and a person

relates to:

(i) the recall of consumer goods that are supplied by the

person, or which the person proposes to supply; or

(ii) the liability of the person with respect to possible

defects in such consumer goods; and

(b) the person gives information relating to any such consumer

goods to:

(i) a responsible Minister; or

(ii) the regulator; or

(iii) a person appointed or engaged under the Public Service

Act 1999, or under a corresponding law of a State or a

Territory; or

(iv) an officer of an authority of the Commonwealth or of a

State or Territory;

the liability of the insurer under the contract is not affected only

because the person gave the information.

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Chapter 3 Specific protections

Part 3-4 Information standards

Section 134

214 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part 3-4—Information standards

134 Making information standards for goods and services

(1) The Commonwealth Minister may, by written notice published on

the internet, make an information standard for one or both of the

following:

(a) goods of a particular kind;

(b) services of a particular kind.

(2) Without limiting subsection (1), an information standard for goods

or services of a particular kind may:

(a) make provision in relation to the content of information

about goods or services of that kind; or

(b) require the provision of specified information about goods or

services of that kind; or

(c) provide for the manner or form in which such information is

to be provided; or

(d) provide that such information is not to be provided in a

specified manner or form; or

(e) provide that information of a specified kind is not to be

provided about goods or services of that kind; or

(f) assign a meaning to specified information about goods or

services.

135 Declaring information standards for goods and services

(1) The Commonwealth Minister may, by written notice published on

the internet, declare that the following is an information standard

for goods or services of a kind specified in the instrument:

(a) a particular standard, or a particular part of a standard,

prepared or approved by Standards Australia or by an

association prescribed by the regulations;

(b) such a standard, or such a part of a standard, with additions

or variations specified in the notice.

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Section 136

Competition and Consumer Act 2010 215

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(2) The Commonwealth Minister must not declare under

subsection (1) that a standard, or a part of a standard, referred to in

that subsection is an information standard for:

(a) goods of a particular kind; or

(b) services of a particular kind;

if that standard or part is inconsistent with an information standard

for those goods or services that is in force and was made under

section 134(1).

136 Supplying etc. goods that do not comply with information

standards

(1) A person must not, in trade or commerce, supply goods of a

particular kind if:

(a) an information standard for goods of that kind is in force; and

(b) the person has not complied with that standard.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) A person must not, in trade or commerce, offer for supply goods

the supply of which is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) A person must not, in or for the purposes of trade or commerce,

manufacture, possess or have control of goods the supply of which

is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(4) In a proceeding under Part 5-2 in relation to a contravention of

subsection (3), it is a defence if the defendant proves that the

defendant’s manufacture, possession or control of the goods was

not for the purpose of supplying the goods.

(5) Subsections (1), (2) and (3) do not apply to goods that are intended

to be used outside Australia.

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Chapter 3 Specific protections

Part 3-4 Information standards

Section 137

216 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(6) Unless the contrary is established, it is presumed, for the purposes

of this section, that goods are intended to be used outside Australia

if either of the following is applied to the goods:

(a) a statement that the goods are for export only;

(b) a statement indicating, by the use of words authorised by the

regulations to be used for the purposes of this subsection, that

the goods are intended to be used outside Australia.

(7) Without limiting subsection (6), a statement may, for the purposes

of that subsection, be applied to goods by being:

(a) woven in, impressed on, worked into or annexed or affixed to

the goods; or

(b) applied to a covering, label, reel or thing in or with which the

goods are supplied.

(8) If:

(a) a person (the supplier) supplies goods in contravention of

subsection (1), (2) or (3); and

(b) another person suffers loss or damage because, contrary to

the information standard, he or she was not provided with

particular information in relation to the goods; and

(c) the other person would not have suffered the loss or damage

if the supplier had complied with the information standard;

the other person is taken, for the purposes of this Schedule, to have

suffered the loss or damage because of that supply.

137 Supplying etc. services that do not comply with information

standards

(1) A person must not, in trade or commerce, supply services of a

particular kind if:

(a) an information standard for services of that kind is in force;

and

(b) the person has not complied with that standard.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

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Section 137

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(2) A person must not, in trade or commerce, offer for supply services

the supply of which is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) If:

(a) a person (the supplier) supplies services in contravention of

subsection (1) or (2); and

(b) another person suffers loss or damage because, contrary to

the information standard, he or she was not provided with

particular information in relation to the services; and

(c) the other person would not have suffered the loss or damage

if the supplier had complied with the information standard;

the other person is taken, for the purposes of this Schedule, to have

suffered the loss or damage because of that supply.

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Schedule 2 The Australian Consumer Law

Chapter 3 Specific protections

Part 3-5 Liability of manufacturers for goods with safety defects

Division 1 Actions against manufacturers for goods with safety defects

Section 138

218 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part 3-5—Liability of manufacturers for goods with safety

defects

Division 1—Actions against manufacturers for goods with

safety defects

138 Liability for loss or damage suffered by an injured individual

(1) A manufacturer of goods is liable to compensate an individual if:

(a) the manufacturer supplies the goods in trade or commerce;

and

(b) the goods have a safety defect; and

(c) the individual suffers injuries because of the safety defect.

(2) The individual may recover, by action against the manufacturer,

the amount of the loss or damage suffered by the individual.

(3) If the individual dies because of the injuries, a law of a State or a

Territory about liability in respect of the death of individuals

applies as if:

(a) the action were an action under the law of the State or

Territory for damages in respect of the injuries; and

(b) the safety defect were the manufacturer’s wrongful act,

neglect or default.

139 Liability for loss or damage suffered by a person other than an

injured individual

(1) A manufacturer of goods is liable to compensate a person if:

(a) the manufacturer supplies the goods in trade or commerce;

and

(b) the goods have a safety defect; and

(c) an individual (other than the person) suffers injuries because

of the safety defect; and

(d) the person suffers loss or damage because of:

(i) the injuries; or

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Actions against manufacturers for goods with safety defects Division 1

Section 140

Competition and Consumer Act 2010 219

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(ii) if the individual dies because of the injuries—the

individual’s death; and

(e) the loss or damage does not come about because of a

business or professional relationship between the person and

the individual.

(2) The person may recover, by action against the manufacturer, the

amount of the loss or damage suffered by the person.

140 Liability for loss or damage suffered by a person if other goods

are destroyed or damaged

(1) A manufacturer of goods is liable to compensate a person if:

(a) the manufacturer supplies the goods in trade or commerce;

and

(b) the goods have a safety defect; and

(c) other goods of a kind ordinarily acquired for personal,

domestic or household use or consumption are destroyed or

damaged because of the safety defect; and

(d) the person used or consumed, or intended to use or consume,

the destroyed or damaged goods for personal, domestic or

household use or consumption; and

(e) the person suffers loss or damage as a result of the

destruction or damage.

(2) The person may recover, by action against the manufacturer, the

amount of the loss or damage suffered by the person.

141 Liability for loss or damage suffered by a person if land,

buildings or fixtures are destroyed or damaged

(1) A manufacturer of goods is liable to compensate a person if:

(a) the manufacturer supplies the goods in trade or commerce;

and

(b) the goods have a safety defect; and

(c) land, buildings or fixtures are destroyed or damaged because

of the safety defect; and

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Chapter 3 Specific protections

Part 3-5 Liability of manufacturers for goods with safety defects

Division 1 Actions against manufacturers for goods with safety defects

Section 142

220 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(d) the land, buildings or fixtures are ordinarily acquired for

private use; and

(e) the person used, or intended to use, the land, buildings or

fixtures for private use; and

(f) the person suffers loss or damage as a result of the

destruction or damage.

(2) The person may recover, by action against the manufacturer, the

amount of the loss or damage suffered by the person.

142 Defences to defective goods actions

In a defective goods action, it is a defence if it is established that:

(a) the safety defect in the goods that is alleged to have caused

the loss or damage did not exist:

(i) in the case of electricity—at the time at which the

electricity was generated, being a time before it was

transmitted or distributed; or

(ii) in any other case—at the time when the goods were

supplied by their actual manufacturer; or

(b) the goods had that safety defect only because there was

compliance with a mandatory standard for them; or

(c) the state of scientific or technical knowledge at the time

when the goods were supplied by their manufacturer was not

such as to enable that safety defect to be discovered; or

(d) if the goods that had that safety defect were comprised in

other goods—that safety defect is attributable only to:

(i) the design of the other goods; or

(ii) the markings on or accompanying the other goods; or

(iii) the instructions or warnings given by the manufacturer

of the other goods.

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Liability of manufacturers for goods with safety defects Part 3-5

Defective goods actions Division 2

Section 143

Competition and Consumer Act 2010 221

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Division 2—Defective goods actions

143 Time for commencing defective goods actions

(1) Subject to subsection (2), a person may commence a defective

goods action at any time within 3 years after the time the person

became aware, or ought reasonably to have become aware, of all of

the following:

(a) the alleged loss or damage;

(b) the safety defect of the goods;

(c) the identity of the person who manufactured the goods.

(2) A defective goods action must be commenced within 10 years of

the supply by the manufacturer of the goods to which the action

relates.

144 Liability joint and several

If 2 or more persons are liable under Division 1 for the same loss

or damage, they are jointly and severally liable.

145 Survival of actions

A law of a State or a Territory about the survival of causes of

action vested in persons who die applies to actions under

Division 1.

146 No defective goods action where workers’ compensation law etc.

applies

Division 1 does not apply to a loss or damage in respect of which

an amount has been, or could be, recovered under a law of the

Commonwealth, a State or a Territory that:

(a) relates to workers’ compensation; or

(b) gives effect to an international agreement.

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Schedule 2 The Australian Consumer Law

Chapter 3 Specific protections

Part 3-5 Liability of manufacturers for goods with safety defects

Division 2 Defective goods actions

Section 147

222 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

147 Unidentified manufacturer

(1) A person who:

(a) wishes to institute a defective goods action; but

(b) does not know who is the manufacturer of the goods to which

the action would relate;

may, by written notice given to a supplier, or each supplier, of the

goods who is known to the person, request the supplier or suppliers

to give the person particulars identifying the manufacturer of the

goods, or the supplier of the goods to the supplier requested.

(2) If, 30 days after the person made the request or requests, the person

still does not know who is the manufacturer of the goods, then each

supplier:

(a) to whom the request was made; and

(b) who did not comply with the request;

is taken, for the purposes of the defective goods liability action (but

not for the purposes of section 142(c)), to be the manufacturer of

the goods.

148 Commonwealth liability for goods that are defective only

because of compliance with Commonwealth mandatory

standard

(1) If a person (however described) against whom a defective goods

action is brought raises the defence that the goods had the alleged

safety defect only because there was compliance with a

Commonwealth mandatory standard for the goods, the person

must, as soon as practicable after raising that defence, give the

Commonwealth:

(a) a prescribed notice of the action and of that defence; and

(b) a copy of the person’s defence in the action.

(2) The giving of the notice and defence makes the Commonwealth a

defendant in the action.

(3) If, in the action, the court finds that the person (the plaintiff) by

whom the action is brought would, but for the defence referred to

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Defective goods actions Division 2

Section 149

Competition and Consumer Act 2010 223

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in subsection (1), have succeeded against the person (other than the

Commonwealth) against which the action is brought, then:

(a) the Commonwealth, and not the person (other than the

Commonwealth) against which the action is brought, is liable

to pay the plaintiff for the amount of the loss or damage

caused by the safety defect; and

(b) the court is to enter judgment against the Commonwealth for

that amount; and

(c) the court may make such orders for costs as the court

considers just.

149 Representative actions by the regulator

(1) The regulator may, by application, commence a defective goods

action on behalf of one or more persons identified in the

application who have suffered the loss or damage in relation to

which the action is commenced.

(2) The regulator may only make the application if it has obtained the

written consent of the person, or each of the persons, on whose

behalf the application is being made.

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Chapter 3 Specific protections

Part 3-5 Liability of manufacturers for goods with safety defects

Division 3 Miscellaneous

Section 150

224 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Miscellaneous

150 Application of all or any provisions of this Part etc. not to be

excluded or modified

(1) Any term of a contract (including a term that is not set out in the

contract but is incorporated in the contract by another term) that

purports to exclude, restrict or modify, or has the effect of

excluding, restricting or modifying, any of the following is void:

(a) the application of all or any of the provisions of this Part;

(b) the exercise of a right conferred by any of those provisions;

(c) any liability under any of those provisions.

(2) A term of a contract is not taken to exclude, restrict or modify the

application of a provision of this Part unless the term does so

expressly or is inconsistent with that provision.

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Offences Chapter 4

Offences relating to unfair practices Part 4-1

False or misleading representations etc. Division 1

Section 151

Competition and Consumer Act 2010 225

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Chapter 4—Offences

Part 4-1—Offences relating to unfair practices

Division 1—False or misleading representations etc.

151 False or misleading representations about goods or services

(1) A person commits an offence if the person, in trade or commerce,

in connection with the supply or possible supply of goods or

services or in connection with the promotion by any means of the

supply or use of goods or services:

(a) makes a false or misleading representation that goods are of a

particular standard, quality, value, grade, composition, style

or model or have had a particular history or particular

previous use; or

(b) makes a false or misleading representation that services are

of a particular standard, quality, value or grade; or

(c) makes a false or misleading representation that goods are

new; or

(d) makes a false or misleading representation that a particular

person has agreed to acquire goods or services; or

(e) makes a false or misleading representation that purports to be

a testimonial by any person relating to goods or services; or

(f) makes a false or misleading representation concerning:

(i) a testimonial by any person; or

(ii) a representation that purports to be such a testimonial;

relating to goods or services; or

(g) makes a false or misleading representation that goods or

services have sponsorship, approval, performance

characteristics, accessories, uses or benefits; or

(h) makes a false or misleading representation that the person

making the representation has a sponsorship, approval or

affiliation; or

(i) makes a false or misleading representation with respect to the

price of goods or services; or

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Chapter 4 Offences

Part 4-1 Offences relating to unfair practices

Division 1 False or misleading representations etc.

Section 151

226 Competition and Consumer Act 2010

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(j) makes a false or misleading representation concerning the

availability of facilities for the repair of goods or of spare

parts for goods; or

(k) makes a false or misleading representation concerning the

place of origin of goods; or

(l) makes a false or misleading representation concerning the

need for any goods or services; or

(m) makes a false or misleading representation concerning the

existence, exclusion or effect of any condition, warranty,

guarantee, right or remedy (including a guarantee under

Division 1 of Part 3-2); or

(n) makes a false or misleading representation concerning a

requirement to pay for a contractual right that:

(i) is wholly or partly equivalent to any condition,

warranty, guarantee, right or remedy (including a

guarantee under Division 1 of Part 3-2); and

(ii) a person has under a law of the Commonwealth, a State

or a Territory (other than an unwritten law).

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

Note: For rules relating to representations as to the country of origin of

goods, see Part 5-3.

(2) For the purposes of applying subsection (1) in relation to a

proceeding concerning a representation of a kind referred to in

subsection (1)(e) or (f), the representation is taken to be misleading

unless evidence is adduced to the contrary.

(3) To avoid doubt, subsection (2) does not:

(a) have the effect that, merely because such evidence to the

contrary is adduced, the representation is not misleading; or

(b) have the effect of placing on any person an onus of proving

that the representation is not misleading.

(4) Subsection (1) is an offence of strict liability.

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False or misleading representations etc. Division 1

Section 152

Competition and Consumer Act 2010 227

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152 False or misleading representations about sale etc. of land

(1) A person commits an offence if the person, in trade or commerce,

in connection with the sale or grant, or the possible sale or grant, of

an interest in land or in connection with the promotion by any

means of the sale or grant of an interest in land:

(a) makes a false or misleading representation that the person

making the representation has a sponsorship, approval or

affiliation; or

(b) makes a false or misleading representation concerning the

nature of the interest in the land; or

(c) makes a false or misleading representation concerning the

price payable for the land; or

(d) makes a false or misleading representation concerning the

location of the land; or

(e) makes a false or misleading representation concerning the

characteristics of the land; or

(f) makes a false or misleading representation concerning the

use to which the land is capable of being put or may lawfully

be put; or

(g) makes a false or misleading representation concerning the

existence or availability of facilities associated with the land.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) Subsection (1) is an offence of strict liability.

(3) This section does not affect the application of any other provision

of this Part in relation to the supply or acquisition, or the possible

supply or acquisition, of interests in land.

153 Misleading conduct relating to employment

(1) A person commits an offence if the person, in relation to

employment that is to be, or may be, offered by the person or by

another person, engages in conduct that is liable to mislead persons

seeking the employment as to:

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Chapter 4 Offences

Part 4-1 Offences relating to unfair practices

Division 1 False or misleading representations etc.

Section 154

228 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) the availability, nature, terms or conditions of the

employment; or

(b) any other matter relating to the employment.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) Subsection (1) is an offence of strict liability.

154 Offering rebates, gifts, prizes etc.

(1) A person commits an offence if:

(a) the person, in trade or commerce, offers any rebate, gift,

prize or other free item; and

(b) the offer is connected with:

(i) the supply or possible supply of goods or services; or

(ii) the promotion by any means of the supply or use of

goods or services; or

(iii) the sale or grant, or the possible sale or grant, of an

interest in land; or

(iv) the promotion by any means of the sale or grant of an

interest in land; and

(c) the offer is made with the intention of not providing the

rebate, gift, prize or other free item, or of not providing it as

offered.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers any rebate, gift,

prize or other free item; and

(b) the offer is connected with:

(i) the supply or possible supply of goods or services; or

(ii) the promotion by any means of the supply or use of

goods or services; or

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False or misleading representations etc. Division 1

Section 155

Competition and Consumer Act 2010 229

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(iii) the sale or grant, or the possible sale or grant, of an

interest in land; or

(iv) the promotion by any means of the sale or grant of an

interest in land; and

(c) the person fails to provide the rebate, gift, prize or other free

item, in accordance with the offer, within the time specified

in the offer or (if no such time is specified) within a

reasonable time after making the offer.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(3) Subsection (2) does not apply if:

(a) the person’s failure to provide the rebate, gift, prize or other

free item in accordance with the offer was due to the act or

omission of another person, or to some other cause beyond

the person’s control; and

(b) the person took reasonable precautions and exercised due

diligence to avoid the failure.

(4) Subsection (2) does not apply to an offer that the person makes to

another person if:

(a) the person offers to the other person a different rebate, gift,

prize or other free item as a replacement; and

(b) the other person agrees to receive the different rebate, gift,

prize or other free item.

(5) Strict liability applies to subsections (1)(b) and (2)(b).

(6) This section does not affect the application of any other provision

of this Part in relation to the supply or acquisition, or the possible

supply or acquisition, of interests in land.

155 Misleading conduct as to the nature etc. of goods

(1) A person commits an offence if the person, in trade or commerce,

engages in conduct that is liable to mislead the public as to the

nature, the manufacturing process, the characteristics, the

suitability for their purpose or the quantity of any goods.

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Chapter 4 Offences

Part 4-1 Offences relating to unfair practices

Division 1 False or misleading representations etc.

Section 156

230 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) Subsection (1) is an offence of strict liability.

156 Misleading conduct as to the nature etc. of services

(1) A person commits an offence if the person, in trade or commerce,

engages in conduct that is liable to mislead the public as to the

nature, the characteristics, the suitability for their purpose or the

quantity of any services.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) Subsection (1) is an offence of strict liability.

157 Bait advertising

(1) A person commits an offence if:

(a) the person, in trade or commerce, advertises goods or

services for supply at a specified price; and

(b) there are reasonable grounds for believing that the person

will not be able to offer for supply those goods or services at

that price for a period that is, and in quantities that are,

reasonable, having regard to:

(i) the nature of the market in which the person carries on

business; and

(ii) the nature of the advertisement.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if:

(a) the person, in trade or commerce, advertises goods or

services for supply at a specified price; and

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False or misleading representations etc. Division 1

Section 158

Competition and Consumer Act 2010 231

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the person fails to offer such goods or services for supply at

that price for a period that is, and in quantities that are,

reasonable having regard to:

(i) the nature of the market in which the person carries on

business; and

(ii) the nature of the advertisement.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(3) Subsections (1) and (2) are offences of strict liability.

(4) In a prosecution of a person (the defendant) under subsection (2),

for failing to offer goods or services to another person (the

customer), it is a defence if:

(a) the defendant proves that:

(i) he or she offered to supply, or to procure a third person

to supply, goods or services of the kind advertised to the

customer within a reasonable time, in a reasonable

quantity and at the advertised price; or

(ii) he or she offered to supply immediately, or to procure a

third person to supply within a reasonable time,

equivalent goods or services to the customer in a

reasonable quantity and at the price at which the

first-mentioned goods or services were advertised; and

(b) in either case, if the offer was accepted by the customer, the

defendant proves that he or she has so supplied, or procured a

third person to supply, the goods or services.

158 Wrongly accepting payment

(1) A person commits an offence if:

(a) the person, in trade or commerce, accepts payment or other

consideration for goods or services; and

(b) at the time of the acceptance, the person intends not to supply

the goods or services.

Penalty:

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Chapter 4 Offences

Part 4-1 Offences relating to unfair practices

Division 1 False or misleading representations etc.

Section 158

232 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) Strict liability applies to subsection (1)(a).

(3) A person commits an offence if:

(a) the person, in trade or commerce, accepts payment or other

consideration for goods or services; and

(b) at the time of the acceptance, the person intends to supply

goods or services materially different from the goods or

services in respect of which the payment or other

consideration is accepted.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(4) Strict liability applies to subsection (3)(a).

(5) A person commits an offence if:

(a) the person, in trade or commerce, accepts payment or other

consideration for goods or services; and

(b) at the time of the acceptance, the person was reckless as to

whether he or she would be able to supply the goods or

services:

(i) within the period specified by or on behalf of the person

at or before the time the payment or other consideration

was accepted; or

(ii) if no period is specified at or before that time—within a

reasonable time.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(6) Strict liability applies to subsection (5)(a).

(7) A person commits an offence if:

(a) the person, in trade or commerce, accepts payment or other

consideration for goods or services; and

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False or misleading representations etc. Division 1

Section 159

Competition and Consumer Act 2010 233

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the person fails to supply all the goods or services:

(i) within the period specified by or on behalf of the person

at or before the time the payment or other consideration

was accepted; or

(ii) if no period is specified at or before that time—within a

reasonable time.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(8) Subsection (7) does not apply if:

(a) the person’s failure to supply all the goods or services within

the period, or within a reasonable time, was due to the act or

omission of another person, or to some other cause beyond

the person’s control; and

(b) the person took reasonable precautions and exercised due

diligence to avoid the failure.

(9) Subsection (7) does not apply if:

(a) the person offers to supply different goods or services as a

replacement to the person (the customer) to whom the

original supply was to be made; and

(b) the customer agrees to receive the different goods or services.

(10) Subsection (7) is an offence of strict liability.

(11) Subsections (1), (3), (5) and (7) apply whether or not the payment

or other consideration that the person accepted represents the

whole or a part of the payment or other consideration for the

supply of the goods or services.

159 Misleading representations about certain business activities

(1) A person commits an offence if:

(a) the person, in trade or commerce, makes a representation;

and

(b) the representation is false or misleading in a material

particular; and

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Chapter 4 Offences

Part 4-1 Offences relating to unfair practices

Division 1 False or misleading representations etc.

Section 160

234 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) the representation concerns the profitability, risk or any other

material aspect of any business activity that the person has

represented as one that can be, or can be to a considerable

extent, carried on at or from a person’s place of residence.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if:

(a) the person, in trade or commerce, makes a representation;

and

(b) the representation is false or misleading in a material

particular; and

(c) the representation concerns the profitability, risk or any other

material aspect of any business activity:

(i) that the person invites (whether by advertisement or

otherwise) other persons to engage or participate in, or

to offer or apply to engage or participate in; and

(ii) that requires the performance of work by other persons,

or the investment of money by other persons and the

performance by them of work associated with the

investment.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(3) Subsections (1) and (2) are offences of strict liability.

160 Application of provisions of this Division to information

providers

(1) Sections 151, 152, 155, 156 and 159 do not apply to a publication

of matter by an information provider if:

(a) in any case—the information provider made the publication

in the course of carrying on a business of providing

information; or

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Section 160

Competition and Consumer Act 2010 235

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) if the information provider is the Australian Broadcasting

Corporation, the Special Broadcasting Service Corporation or

the holder of a licence granted under the Broadcasting

Services Act 1992—the publication was by way of a radio or

television broadcast by the information provider.

(2) Subsection (1) does not apply to a publication of an advertisement.

(3) Subsection (1) does not apply to a publication of matter in

connection with the supply or possible supply of, or the promotion

by any means of the supply or use of, goods or services (the

publicised goods or services), if:

(a) the publicised goods or services were goods or services of a

kind supplied by the information provider or, if the

information provider is a body corporate, by a body corporate

that is related to the information provider; or

(b) the publication was made on behalf of, or pursuant to a

contract, arrangement or understanding with, a person who

supplies goods or services of the same kind as the publicised

goods or services; or

(c) the publication was made on behalf of, or pursuant to a

contract, arrangement or understanding with, a body

corporate that is related to a body corporate that supplies

goods or services of the same kind as the publicised goods or

services.

(4) Subsection (1) does not apply to a publication of matter in

connection with the sale or grant, or possible sale or grant, of, or

the promotion by any means of the sale or grant of, interests in land

(the publicised interests in land), if:

(a) the publicised interests in land were interests of a kind sold

or granted by the information provider or, if the information

provider is a body corporate, by a body corporate that is

related to the information provider; or

(b) the publication was made on behalf of, or pursuant to a

contract, arrangement or understanding with, a person who

sells or grants interests of the same kind as the publicised

interests in land; or

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Chapter 4 Offences

Part 4-1 Offences relating to unfair practices

Division 1 False or misleading representations etc.

Section 160

236 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(c) the publication was made on behalf of, or pursuant to a

contract, arrangement or understanding with, a body

corporate that is related to a body corporate that sells or

grants interests of the same kind as the publicised interests in

land.

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Unsolicited supplies Division 2

Section 161

Competition and Consumer Act 2010 237

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Division 2—Unsolicited supplies

161 Unsolicited cards etc.

(1) A person commits an offence if:

(a) the person sends a credit card or a debit card, or an article

that may be used as a credit card and a debit card, to another

person; and

(b) either:

(i) the person had issued the card; or

(ii) the card was sent on behalf of the person who had

issued the card.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) Subsection (1) does not apply if the person sends the card to the

other person:

(a) pursuant to a written request by the person who will be under

a liability to the person who issued the card or article in

respect of the use of the card or article; or

(b) in renewal or replacement of, or in substitution for:

(i) a card or article of the same kind previously sent to the

other person pursuant to a written request by the person

who was under a liability, to the person who issued the

card previously so sent, in respect of the use of that

card; or

(ii) a card or article of the same kind previously sent to the

other person and used for a purpose for which it was

intended to be used.

(3) A person commits an offence if the person takes any action that

enables another person who has a credit card to use the card as a

debit card.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

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Division 2 Unsolicited supplies

Section 162

238 Competition and Consumer Act 2010

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(b) if the person is not a body corporate—$220,000.

(4) A person commits an offence if the person takes any action that

enables another person who has a debit card to use the card as a

credit card.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(5) Subsection (3) or (4) does not apply if the person takes the action

in accordance with the other person’s written request.

(6) Subsections (1), (3) and (4) are offences of strict liability.

162 Assertion of right to payment for unsolicited goods or services

(1) A person commits an offence if the person, in trade or commerce,

asserts a right to payment from another person for unsolicited

goods.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if the person, in trade or commerce,

asserts a right to payment from another person for unsolicited

services.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(3) A person commits an offence if the person, in trade or commerce,

sends to another person an invoice or other document that:

(a) states the amount of a payment, or sets out the charge, for

supplying unsolicited goods or unsolicited services; and

(b) does not contain a warning statement that complies with the

requirements set out in the regulations made for the purposes

of section 40(3)(b).

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Unsolicited supplies Division 2

Section 163

Competition and Consumer Act 2010 239

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(4) Subsection (1), (2) or (3) does not apply if the person proves that

he or she had reasonable cause to believe that there was a right to

the payment or charge.

(5) Subsections (1), (2) and (3) are offences of strict liability.

163 Assertion of right to payment for unauthorised entries or

advertisements

(1) A person commits an offence if the person asserts a right to

payment from another person of a charge for placing, in a

publication, an entry or advertisement relating to:

(a) the other person; or

(b) the other person’s profession, business, trade or occupation.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if the person sends to another person

an invoice or other document that:

(a) states the amount of a payment, or sets out the charge, for

placing, in a publication, an entry or advertisement relating

to:

(i) the other person; or

(ii) the other person’s profession, business, trade or

occupation; and

(b) does not contain a warning statement that complies with the

requirements set out in the regulations made for the purposes

of section 43(2)(b).

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

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Part 4-1 Offences relating to unfair practices

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Section 163

240 Competition and Consumer Act 2010

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(3) Subsections (1) and (2) do not apply if the person proves that he or

she knew, or had reasonable cause to believe, that the other person

authorised the placing of the entry or advertisement.

(4) Subsections (1) and (2) do not apply to an entry or advertisement

that is placed in a publication published by a person who is:

(a) the publisher of a publication that has an audited circulation

of 10,000 copies or more per week, as confirmed by the most

recent audit of the publication by a body specified in the

regulations made for the purposes of section 43(3)(a); or

(b) a body corporate related to such a publisher; or

(c) the Commonwealth, a State or a Territory, or an authority of

the Commonwealth, a State or a Territory; or

(d) a person specified in regulations made for the purposes of

section 43(3)(d).

(5) Subsections (1) and (2) are offences of strict liability.

(6) A person is not taken for the purposes of this section to have

authorised the placing of the entry or advertisement, unless:

(a) a document authorising the placing of the entry or

advertisement has been signed by the person or by another

person authorised by him or her; and

(b) a copy of the document has been given to the person before

the right to payment of a charge for the placing of the entry

or advertisement is asserted; and

(c) the document specifies:

(i) the name and address of the person publishing the entry

or advertisement; and

(ii) particulars of the entry or advertisement; and

(iii) the amount of the charge for the placing of the entry or

advertisement, or the basis on which the charge is, or is

to be, calculated.

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Pyramid schemes Division 3

Section 164

Competition and Consumer Act 2010 241

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Division 3—Pyramid schemes

164 Participation in pyramid schemes

(1) A person commits an offence if the person participates in a

pyramid scheme.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if the person induces another person

to participate in a pyramid scheme.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(3) Subsections (1) and (2) are offences of strict liability.

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Chapter 4 Offences

Part 4-1 Offences relating to unfair practices

Division 4 Pricing

Section 165

242 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4—Pricing

165 Multiple pricing

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies goods; and

(b) the goods have more than one displayed price; and

(c) the supply takes place for a price that is not the lower, or

lowest, of the displayed prices.

Penalty:

(a) if the person is a body corporate—$5,000; or

(b) if the person is not a body corporate—$1,000.

(2) Subsection (1) is an offence of strict liability.

166 Single price to be specified in certain circumstances

(1) A person commits an offence if the person, in trade or commerce,

in connection with:

(a) the supply, or possible supply, to another person of goods or

services of a kind ordinarily acquired for personal, domestic

or household use or consumption; or

(b) the promotion by any means of the supply to another person,

or of the use by another person, of goods or services of a kind

ordinarily acquired for personal, domestic or household use

or consumption;

makes a representation with respect to an amount that, if paid,

would constitute a part of the consideration for the supply of the

goods or services.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person is not required to include, in the single price for goods, a

charge that is payable in relation to sending the goods from the

supplier to the other person.

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Offences Chapter 4

Offences relating to unfair practices Part 4-1

Pricing Division 4

Section 166

Competition and Consumer Act 2010 243

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(3) Subsection (1) does not apply if the person also:

(a) specifies, in a prominent way and as a single figure, the

single price for the goods or services; and

(b) if, in relation to goods:

(i) the person does not include in the single price a charge

that is payable in relation to sending the goods from the

supplier to the other person; and

(ii) the person knows, at the time of the representation, the

minimum amount of a charge in relation to sending the

goods from the supplier to the other person that must be

paid by the other person;

specifies that minimum amount.

(4) Subsection (1) does not apply if the representation is made

exclusively to a body corporate.

(5) For the purposes of subsection (3)(a), the person is taken not to

have specified a single price for the goods or services in a

prominent way unless the single price is at least as prominent as

the most prominent of the parts of the consideration for the supply.

(6) Subsection (5) does not apply in relation to services to be supplied

under a contract if:

(a) the contract provides for the supply of the services for the

term of the contract; and

(b) the contract provides for periodic payments for the services

to be made during the term of the contract; and

(c) if the contract also provides for the supply of goods—the

goods are directly related to the supply of the services.

(7) Subsection (1) is an offence of strict liability.

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Chapter 4 Offences

Part 4-1 Offences relating to unfair practices

Division 5 Other unfair practices

Section 167

244 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 5—Other unfair practices

167 Referral selling

(1) A person commits an offence if:

(a) the person, in trade or commerce, induces a consumer to

acquire goods or services by representing that the consumer

will, after the contract for the acquisition of the goods or

services is made, receive a rebate, commission or other

benefit in return for:

(i) giving the person the names of prospective customers;

or

(ii) otherwise assisting the person to supply goods or

services to other consumers; and

(b) the receipt of the rebate, commission or other benefit is

contingent on an event occurring after that contract is made.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) Subsection (1) is an offence of strict liability.

168 Harassment and coercion

(1) A person commits an offence if:

(a) the person uses physical force, or undue harassment or

coercion; and

(b) the physical force, or undue harassment or coercion is used in

connection with:

(i) the supply or possible supply of goods or services; or

(ii) the payment for goods or services; or

(iii) the sale or grant, or the possible sale or grant, of an

interest in land; or

(iv) the payment for an interest in land.

Penalty:

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Offences relating to unfair practices Part 4-1

Other unfair practices Division 5

Section 168

Competition and Consumer Act 2010 245

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) Subsection (1) is an offence of strict liability.

(3) Subsections (1)(b)(iii) and (iv) do not affect the application of any

other provision of this Part in relation to the supply or acquisition,

or the possible supply or acquisition, of interests in land.

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Chapter 4 Offences

Part 4-2 Offences relating to consumer transactions

Division 1 Consumer guarantees

Section 169

246 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part 4-2—Offences relating to consumer transactions

Division 1—Consumer guarantees

169 Display notices

(1) A person commits an offence if:

(a) the person makes a supply to a consumer to which:

(i) guarantees apply under Division 1 of Part 3-2; and

(ii) a determination under subsection 66(1) applies; and

(b) a notice that meets the requirements of the determination is

not, in accordance with the determination:

(i) if the consumer takes delivery of the goods or services

at the supplier’s premises—displayed at those premises;

or

(ii) otherwise—drawn to the consumer’s attention before

the consumer agrees to the supply of the goods.

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) Subsection (1) is an offence of strict liability.

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Offences Chapter 4

Offences relating to consumer transactions Part 4-2

Unsolicited consumer agreements Division 2

Section 170

Competition and Consumer Act 2010 247

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Unsolicited consumer agreements

Subdivision A—Negotiating unsolicited consumer agreements

170 Permitted hours for negotiating an unsolicited consumer

agreement

(1) A dealer commits an offence if the dealer calls on a person for the

purpose of negotiating an unsolicited consumer agreement, or for

an incidental or related purpose:

(a) at any time on a Sunday or a public holiday; or

(b) before 9 am on any other day; or

(c) after 6 pm on any other day (or after 5 pm if the other day is

a Saturday).

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) Subsection (1) does not apply if the dealer calls on, or telephones,

the person in accordance with consent that:

(a) was given by the person to the dealer or a person acting on

the dealer’s behalf; and

(b) was not given in the presence of the dealer or a person acting

on the dealer’s behalf.

(3) Subsection (1) is an offence of strict liability.

171 Disclosing purpose and identity

(1) A dealer commits an offence if the dealer:

(a) calls on a person for the purpose of negotiating an unsolicited

consumer agreement, or for an incidental or related purpose;

and

(b) does not as soon as practicable and in any event before

starting to negotiate:

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Part 4-2 Offences relating to consumer transactions

Subdivision A Negotiating unsolicited consumer agreements

Section 172

248 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(i) clearly advise the person that the dealer’s purpose is to

seek the person’s agreement to a supply of the goods or

services concerned; and

(ii) clearly advise the person that the dealer is obliged to

leave the premises immediately on request; and

(iii) provide to the person such information relating to the

dealer’s identity as is prescribed by the regulations

made for the purposes of section 74(c).

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) Subsection (1) is an offence of strict liability.

172 Ceasing to negotiate on request

(1) A dealer commits an offence if the dealer:

(a) calls on a person at any premises for the purpose of

negotiating an unsolicited consumer agreement, or for an

incidental or related purpose; and

(b) does not leave the premises immediately on the request of:

(i) the occupier of the premises, or any person acting with

the actual or apparent authority of the occupier; or

(ii) the person (the prospective consumer) with whom the

negotiations are being conducted.

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) A dealer commits an offence if:

(a) the prospective consumer has made the request referred to in

subsection (1)(b); and

(b) the dealer contacts the prospective consumer for the purpose

of negotiating an unsolicited consumer agreement (or for an

incidental or related purpose) within 30 days after the

prospective consumer made the request.

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Offences relating to consumer transactions Part 4-2

Negotiating unsolicited consumer agreements Subdivision A

Section 173

Competition and Consumer Act 2010 249

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(3) If the dealer is not, or is not to be, the supplier of the goods or

services to which the negotiations relate, subsection (2) applies to

that supplier, and any person acting on behalf of the supplier, in the

same way that it applies to the dealer.

(4) Subsection (2) does not apply to the dealer contacting the

prospective consumer if:

(a) the dealer is not, or is not to be, the supplier of the goods or

services to which the negotiations relate; and

(b) the contact relates to a supply by another supplier.

(5) Subsections (1) and (2) are offences of strict liability.

173 Informing person of termination period etc.

(1) A dealer commits an offence if the dealer makes an unsolicited

consumer agreement with a person, and:

(a) before the agreement is made, the person is not given

information as to the following:

(i) the person’s right to terminate the agreement during the

termination period;

(ii) the way in which the person may exercise that right;

(iii) such other matters as are prescribed by regulations made

for the purposes of section 76(a)(iii); or

(b) if the agreement is made in the presence of both the dealer

and the person—the person is not given the information in

writing; or

(c) if the agreement is made by telephone—the person is not:

(i) given the information by telephone; and

(ii) subsequently given the information in writing; or

(d) the form in which, and the way in which, the person is given

the information does not comply with any other requirements

prescribed by regulations made for the purposes of

section 76(d).

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Part 4-2 Offences relating to consumer transactions

Subdivision B Requirements for unsolicited consumer agreements etc.

Section 174

250 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) If:

(a) a dealer contravenes subsection (1) in relation to an

unsolicited consumer agreement; and

(b) the dealer is not, or is not to be, the supplier of the goods or

services to which the agreement relates;

the supplier of the goods or services is also taken to have

contravened subsection (1) in relation to the agreement.

(3) Subsection (1) is an offence of strict liability.

Subdivision B—Requirements for unsolicited consumer

agreements etc.

174 Requirement to give document to the consumer

(1) The dealer who negotiated an unsolicited consumer agreement

commits an offence if:

(a) the agreement was not negotiated by telephone; and

(b) the dealer does not give a copy of the agreement to the

consumer under the agreement immediately after the

consumer signs the agreement.

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) The dealer who negotiated an unsolicited consumer agreement

commits an offence if:

(a) the agreement was negotiated by telephone; and

(b) the dealer does not, within 5 business days after the

agreement was made or such longer period agreed by the

parties, give to the consumer under the agreement:

(i) personally; or

(ii) by post; or

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Requirements for unsolicited consumer agreements etc. Subdivision B

Section 175

Competition and Consumer Act 2010 251

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(iii) with the consumer’s consent—by electronic

communication;

an agreement document evidencing the agreement.

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(3) Subsections (1) and (2) are offences of strict liability.

175 Requirements for all unsolicited consumer agreements etc.

(1) The supplier under an unsolicited consumer agreement commits an

offence if the agreement, or (if the agreement was negotiated by

telephone) the agreement document, does not comply with the

following requirements:

(a) it must set out in full all the terms of the agreement,

including:

(i) the total consideration to be paid or provided by the

consumer under the agreement or, if the total

consideration is not ascertainable at the time the

agreement is made, the way in which it is to be

calculated; and

(ii) any postal or delivery charges to be paid by the

consumer;

(b) its front page must include a notice that:

(i) conspicuously and prominently informs the consumer of

the consumer’s right to terminate the agreement; and

(ii) conspicuously and prominently sets out any other

information prescribed by regulations made for the

purposes of section 79(b)(ii); and

(iii) complies with any other requirements prescribed by

regulations made for the purposes of section 79(b)(iii);

(c) it must be accompanied by a notice that:

(i) may be used by the consumer to terminate the

agreement; and

(ii) complies with any requirements prescribed by

regulations made for the purposes of section 79(c)(ii);

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Part 4-2 Offences relating to consumer transactions

Subdivision B Requirements for unsolicited consumer agreements etc.

Section 176

252 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(d) it must conspicuously and prominently set out in full:

(i) the supplier’s name; and

(ii) if the supplier has an ABN—the supplier’s ABN; and

(iii) if the supplier does not have an ABN but has an ACN—

the supplier’s ACN; and

(iv) the supplier’s business address (not being a post box) or,

if the supplier does not have a business address, the

supplier’s residential address; and

(v) if the supplier has an email address—the supplier’s

email address; and

(vi) if the supplier has a fax number—the supplier’s fax

number;

(e) it must be printed clearly or typewritten (apart from any

amendments to the printed or typewritten form, which may

be handwritten);

(f) it must be transparent.

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) Subsection (1) is an offence of strict liability.

176 Additional requirements for unsolicited consumer agreements

not negotiated by telephone

(1) The supplier under an unsolicited consumer agreement that was not

negotiated by telephone commits an offence if the agreement does

not comply with the following requirements:

(a) the agreement must be signed by the consumer under the

agreement;

(b) if the agreement is signed by a person on the supplier’s

behalf—the agreement must state that the person is acting on

the supplier’s behalf, and must set out in full:

(i) the person’s name; and

(ii) the person’s business address (not being a post box) or,

if the person does not have a business address, the

person’s residential address; and

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Offences relating to consumer transactions Part 4-2

Terminating unsolicited consumer agreements Subdivision C

Section 177

Competition and Consumer Act 2010 253

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(iii) if the person has an email address—the person’s email

address.

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) Subsection (1) is an offence of strict liability.

(3) This section does not limit the operation of section 175.

177 Requirements for amendments of unsolicited consumer

agreements

(1) The supplier under an unsolicited consumer agreement commits an

offence if any amendments to the agreement are not signed by both

parties to the agreement.

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) Subsection (1) is an offence of strict liability.

Subdivision C—Terminating unsolicited consumer agreements

178 Obligations of suppliers on termination

(1) The supplier under an unsolicited consumer agreement commits an

offence if:

(a) the agreement is terminated in accordance with section 82;

and

(b) the supplier does not, immediately upon being notified of the

termination, return or refund to the consumer under the

agreement any consideration (or the value of any

consideration) that the consumer gave under the agreement or

a related contract or instrument.

Penalty:

(a) if the person is a body corporate—$50,000; or

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Part 4-2 Offences relating to consumer transactions

Subdivision C Terminating unsolicited consumer agreements

Section 179

254 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) if the person is not a body corporate—$10,000.

(2) Subsection (1) is an offence of strict liability.

179 Prohibition on supplies for 10 business days

(1) The supplier under an unsolicited consumer agreement commits an

offence if:

(a) the supplier:

(i) supplies to the consumer under the agreement the goods

or services to be supplied under the agreement; or

(ii) accepts any payment, or any other consideration, in

connection with those goods or services; or

(iii) requires any payment, or any other consideration, in

connection with those goods or services; and

(b) the supply, acceptance or requirement occurs during the

period of 10 business days starting:

(i) if the agreement was not negotiated by telephone—at

the start of the first business day after the day on which

the agreement was made; or

(ii) if the agreement was negotiated by telephone—at the

start of the first business day after the day on which the

consumer was given the agreement document relating to

the agreement.

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) Strict liability applies to subsection (1)(a).

180 Repayment of payments received after termination

(1) The supplier under an unsolicited consumer agreement commits an

offence if:

(a) the agreement is terminated in accordance with section 82;

and

(b) the supplier does not immediately refund to the consumer

under the agreement any payment:

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Terminating unsolicited consumer agreements Subdivision C

Section 181

Competition and Consumer Act 2010 255

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(i) that the consumer, or a person acting on the consumer’s

behalf, makes to the supplier after the termination; and

(ii) that purports to be made under the agreement or a

related contract or instrument.

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) Subsection (1) is an offence of strict liability.

181 Prohibition on recovering amounts after termination

(1) A person commits an offence if:

(a) an unsolicited consumer agreement is terminated in

accordance with section 82; and

(b) the person:

(i) brings, or asserts an intention to bring, legal proceedings

against the consumer; or

(ii) takes, or asserts an intention to take, any other action

against the consumer;

in relation to an amount alleged to be payable, under the

agreement or a related contract or instrument, by the

consumer under the agreement.

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) A person commits an offence if:

(a) an unsolicited consumer agreement is terminated in

accordance with section 82; and

(b) for the purpose of recovering an amount alleged to be

payable, under the agreement or a related contract or

instrument, by the consumer under the agreement, the person:

(i) places the consumer’s name, or causes the consumer’s

name to be placed, on a list of defaulters or debtors; or

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Part 4-2 Offences relating to consumer transactions

Subdivision D Miscellaneous

Section 182

256 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(ii) asserts an intention to place the consumer’s name, or to

cause the consumer’s name to be placed, on such a list.

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(3) Subsection (1) is an offence of strict liability.

(4) Strict liability applies to subsection (2)(a).

Subdivision D—Miscellaneous

182 Certain provisions of unsolicited consumer agreements void

(1) The supplier under an unsolicited consumer agreement commits an

offence if the agreement includes, or purports to include, a

provision (however described) that is, or would be, void because of

section 89(1).

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) The supplier under an unsolicited consumer agreement commits an

offence if the supplier attempts to enforce or rely on a provision

(however described) that is void because of section 89(1).

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(3) Subsections (1) and (2) are offences of strict liability.

183 Waiver of rights

(1) The supplier under an unsolicited consumer agreement commits an

offence if the supplier induces the consumer to waive any right

conferred by Division 2 of Part 3-2.

Penalty:

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Miscellaneous Subdivision D

Section 184

Competition and Consumer Act 2010 257

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) Subsection (1) is an offence of strict liability.

184 Application of this Division to persons to whom rights of

consumers and suppliers are assigned etc.

(1) This Division applies in relation to a person to whom the rights of

a consumer (the original consumer) under a contract for the supply

of goods or services are assigned or transferred, or pass by

operation of law, (whether from the original consumer or from

another person) as if the person were the original consumer.

(2) This Division applies in relation to a person to whom the rights of

a supplier (the original supplier) under a contract for the supply of

goods or services are assigned or transferred, or pass by operation

of law, (whether from the original supplier or from another person)

as if the person were the original supplier.

185 Application of this Division to supplies to third parties

This Division applies in relation to a contract for the supply of

goods or services to a consumer (the original consumer) on the

order of another person as if the other person were also the

consumer.

186 Regulations may limit the application of this Division

This Division (other than section 170) does not apply, or

provisions of this Division (other than section 170) that are

specified in regulations made for the purposes of section 94 do not

apply, to or in relation to:

(a) circumstances of a kind specified in those regulations; or

(b) agreements of a kind specified in those regulations; or

(c) the conduct of businesses of a kind specified in those

regulations.

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Subdivision D Miscellaneous

Section 187

258 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

187 Application of this Division to certain conduct covered by the

Corporations Act

This Division does not apply in relation to conduct to which

section 736, 992A or 992AA of the Corporations Act 2001 applies.

Note: Section 736 of the Corporations Act 2001 prohibits hawking of

securities. Section 992A of that Act prohibits hawking of certain

financial products. Section 992AA of that Act prohibits hawking of

managed investment products.

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Lay-by agreements Division 3

Section 188

Competition and Consumer Act 2010 259

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Lay-by agreements

188 Lay-by agreements must be in writing etc.

(1) A supplier of goods who is a party to a lay-by agreement commits

an offence if:

(a) the agreement is not in writing; or

(b) a copy of the agreement is not given to the consumer to

whom the goods are, or are to be, supplied.

Penalty:

(a) if the person is a body corporate—$30,000; or

(b) if the person is not a body corporate—$6,000.

(2) Subsection (1) is an offence of strict liability.

189 Termination charges

(1) A supplier of goods who is a party to a lay-by agreement commits

an offence if the agreement requires the consumer to pay a

termination charge.

Penalty:

(a) if the person is a body corporate—$30,000; or

(b) if the person is not a body corporate—$6,000.

(2) Subsection (1) does not apply if the termination charge is payable

only if:

(a) the agreement is terminated by the consumer; and

(b) the supplier has not breached the agreement.

(3) A supplier of goods who is a party to a lay-by agreement commits

an offence if:

(a) the agreement provides that a termination charge is payable;

and

(b) the amount of the charge is more than the supplier’s

reasonable costs in relation to the agreement.

Penalty:

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Division 3 Lay-by agreements

Section 190

260 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) if the person is a body corporate—$30,000; or

(b) if the person is not a body corporate—$6,000.

(4) Subsections (1) and (3) are offences of strict liability.

190 Termination of lay-by agreements by suppliers

(1) A supplier of goods who is a party to a lay-by agreement commits

an offence if the supplier terminates the agreement.

Penalty:

(a) if the person is a body corporate—$30,000; or

(b) if the person is not a body corporate—$6,000.

(2) Subsection (1) does not apply if:

(a) the consumer who is a party to the agreement breached a

term of the agreement; or

(b) the supplier is no longer engaged in trade or commerce; or

(c) the goods to which the agreement relates are no longer

available.

(3) Subsection (1) is an offence of strict liability.

191 Refund of amounts

(1) A supplier of goods who is a party to a lay-by agreement commits

an offence if:

(a) the agreement is terminated by a party to the agreement; and

(b) the supplier fails to refund to the consumer all the amounts

paid by the consumer under the agreement (other than any

termination charge that is payable under the agreement).

Penalty:

(a) if the person is a body corporate—$30,000; or

(b) if the person is not a body corporate—$6,000.

(2) Subsection (1) is an offence of strict liability.

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Offences Chapter 4

Offences relating to consumer transactions Part 4-2

Miscellaneous Division 4

Section 192

Competition and Consumer Act 2010 261

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4—Miscellaneous

192 Prescribed requirements for warranties against defects

(1) A person commits an offence if the person, in connection with the

supply, in trade or commerce, of goods or services to a consumer:

(a) gives to the consumer a document that evidences a warranty

against defects and that does not comply with the

requirements prescribed for the purposes of section 102(1);

or

(b) represents directly to the consumer that the goods or services

are goods or services to which such a warranty against

defects relates.

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) Subsection (1) is an offence of strict liability.

193 Repairers must comply with prescribed requirements

(1) A person commits an offence if:

(a) the person accepts from another person goods that the other

person acquired as a consumer; and

(b) the goods are accepted for the purpose of repairing them; and

(c) the person does not give to the other person a notice that

complies with the requirements prescribed for the purposes

of section 103(1).

Penalty:

(a) if the person is a body corporate—$50,000; or

(b) if the person is not a body corporate—$10,000.

(2) Subsection (1) is an offence of strict liability.

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Chapter 4 Offences

Part 4-3 Offences relating to safety of consumer goods and product related services

Division 1 Safety standards

Section 194

262 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part 4-3—Offences relating to safety of consumer goods

and product related services

Division 1—Safety standards

194 Supplying etc. consumer goods that do not comply with safety

standards

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies consumer goods

of a particular kind; and

(b) a safety standard for consumer goods of that kind is in force;

and

(c) those goods do not comply with the standard.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers for supply (other

than for export) consumer goods of a particular kind; and

(b) a safety standard for consumer goods of that kind is in force;

and

(c) those goods do not comply with the standard.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(3) A person commits an offence if:

(a) the person, in or for the purposes of trade or commerce,

manufactures, possesses or has control of consumer goods of

a particular kind; and

(b) a safety standard for consumer goods of that kind is in force;

and

(c) those goods do not comply with the standard.

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Offences relating to safety of consumer goods and product related services Part 4-3

Safety standards Division 1

Section 195

Competition and Consumer Act 2010 263

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(4) Subsection (3) does not apply if the person does not manufacture,

possess or control the goods for the purpose of supplying the goods

(other than for export).

(5) A person commits an offence if:

(a) the person, in trade or commerce, exports consumer goods of

a particular kind; and

(b) a safety standard for consumer goods of that kind is in force;

and

(c) those goods do not comply with the standard.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(6) Subsection (5) does not apply if the Commonwealth Minister has,

by written notice given to the person, approved the export of the

goods under section 106(5).

(7) Subsections (1), (2), (3) and (5) are offences of strict liability.

195 Supplying etc. product related services that do not comply with

safety standards

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies product related

services of a particular kind; and

(b) a safety standard for services of that kind is in force; and

(c) those services do not comply with the standard.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if:

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Chapter 4 Offences

Part 4-3 Offences relating to safety of consumer goods and product related services

Division 1 Safety standards

Section 196

264 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) the person, in trade or commerce, offers for supply product

related services of a particular kind; and

(b) a safety standard for services of that kind is in force; and

(c) those services do not comply with the standard.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(3) Subsections (1) and (2) are offences of strict liability.

196 Requirement to nominate a safety standard

(1) A person commits an offence if the person refuses or fails to

comply with a request given to the person under section 108.

Penalty:

(a) if the person is a body corporate—$22,000; or

(b) if the person is not a body corporate—$4,400.

(2) Subsection (1) is an offence of strict liability.

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Bans on consumer goods and product related services Division 2

Section 197

Competition and Consumer Act 2010 265

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Bans on consumer goods and product related

services

197 Supplying etc. consumer goods covered by a ban

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies consumer goods

of a particular kind; and

(b) either:

(i) an interim ban on goods of that kind is in force in the

place where the supply occurs; or

(ii) a permanent ban on goods of that kind is in force.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers for supply (other

than for export) consumer goods of a particular kind; and

(b) the supply would be prohibited by subsection (1).

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(3) A person commits an offence if:

(a) the person, in or for the purposes of trade or commerce,

manufactures, possesses or has control of consumer goods of

a particular kind; and

(b) supply of the goods would be prohibited by subsection (1).

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

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Part 4-3 Offences relating to safety of consumer goods and product related services

Division 2 Bans on consumer goods and product related services

Section 198

266 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(4) Subsection (3) does not apply if the person does not manufacture,

possess or control the goods for the purpose of supplying the goods

(other than for export).

(5) A person commits an offence if:

(a) the person exports consumer goods of a particular kind; and

(b) supply of the goods would be prohibited by subsection (1).

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(6) Subsection (5) does not apply if the Commonwealth Minister has,

by written notice given to the person, approved the export of the

goods under section 118(5).

(7) Subsections (1), (2), (3) and (5) are offences of strict liability.

198 Supplying etc. product related services covered by a ban

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies product related

services of a particular kind; and

(b) either:

(i) an interim ban on services of that kind is in force in the

place where the supply occurs; or

(ii) a permanent ban on services of that kind is in force.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers for supply product

related services of a particular kind; and

(b) the supply would be prohibited by subsection (1).

Penalty:

(a) if the person is a body corporate—$1,100,000; or

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Bans on consumer goods and product related services Division 2

Section 198

Competition and Consumer Act 2010 267

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(b) if the person is not a body corporate—$220,000.

(3) Subsections (1) and (2) are offences of strict liability.

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Chapter 4 Offences

Part 4-3 Offences relating to safety of consumer goods and product related services

Division 3 Recall of consumer goods

Section 199

268 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Recall of consumer goods

199 Compliance with recall orders

(1) A person commits an offence if:

(a) a recall notice for consumer goods is in force; and

(b) the notice requires the person (other than the regulator) to do

one or more things; and

(c) the person refuses or fails to comply with the notice.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if:

(a) a recall notice for consumer goods is in force; and

(b) the person, in trade or commerce:

(i) if the notice identifies a defect in, or a dangerous

characteristic of, the consumer goods—supplies

consumer goods of the kind to which the notice relates

which contain that defect or have that characteristic; or

(ii) in any other case—supplies consumer goods of the kind

to which the notice relates.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(3) Subsections (1) and (2) are offences of strict liability.

200 Notification by persons who supply consumer goods outside

Australia if there is compulsory recall

(1) A person commits an offence if:

(a) the person is required by section 125(4) to give a copy of a

notice to a responsible Minister; and

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Recall of consumer goods Division 3

Section 201

Competition and Consumer Act 2010 269

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the person refuses or fails to give the copy as required by that

section.

Penalty:

(a) if the person is a body corporate—$16,650; or

(b) if the person is not a body corporate—$3,330.

(2) Subsection (1) is an offence of strict liability.

201 Notification requirements for a voluntary recall of consumer

goods

(1) A person commits an offence if:

(a) the person is required by section 128(2) to give a notice to

the Commonwealth Minister; and

(b) the person refuses or fails to give the notice as required by

that section.

Penalty:

(a) if the person is a body corporate—$16,650; or

(b) if the person is not a body corporate—$3,330.

(2) A person commits an offence if:

(a) the person is required by section 128(6) to give a copy of a

notice to the Commonwealth Minister; and

(b) the person refuses or fails to give the copy as required by that

section.

Penalty:

(a) if the person is a body corporate—$16,650; or

(b) if the person is not a body corporate—$3,330.

(3) Subsections (1) and (2) are offences of strict liability.

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Chapter 4 Offences

Part 4-3 Offences relating to safety of consumer goods and product related services

Division 4 Consumer goods, or product related services, associated with death or

serious injury or illness

Section 202

270 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 4—Consumer goods, or product related services,

associated with death or serious injury or illness

202 Suppliers to report consumer goods etc. associated with the

death or serious injury or illness of any person

(1) A person commits an offence if:

(a) the person is required by section 131 or 132 to give a notice

to the Commonwealth Minister; and

(b) the person refuses or fails to give the notice as required by

that section.

Penalty:

(a) if the person is a body corporate—$16,650; or

(b) if the person is not a body corporate—$3,330.

(2) Subsection (1) is an offence of strict liability.

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Offences relating to information standards Part 4-4

Section 203

Competition and Consumer Act 2010 271

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part 4-4—Offences relating to information standards

203 Supplying etc. goods that do not comply with information

standards

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies goods of a

particular kind; and

(b) an information standard for goods of that kind is in force; and

(c) the person has not complied with the standard in relation to

the goods.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers for supply goods of

a particular kind; and

(b) an information standard for goods of that kind is in force; and

(c) the person has not complied with the standard in relation to

the goods.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(3) A person commits an offence if:

(a) the person, in or for the purposes of trade or commerce,

manufactures, possesses or has control of goods of a

particular kind; and

(b) an information standard for goods of that kind is in force; and

(c) the person has not complied with the standard in relation to

the goods.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

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Section 204

272 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) if the person is not a body corporate—$220,000.

(4) Subsection (3) does not apply if the person does not manufacture,

possess or control the goods for the purpose of supplying the

goods.

(5) Subsection (1), (2) or (3) does not apply to goods that are intended

to be used outside Australia.

(6) Unless the contrary is established, it is presumed, for the purposes

of this section, that goods are intended to be used outside Australia

if either of the following is applied to the goods:

(a) a statement that the goods are for export only;

(b) a statement indicating, by the use of words authorised by

regulations made for the purposes of section 136(6)(b) to be

used for the purposes of section 136(6), that the goods are

intended to be used outside Australia.

(7) Without limiting subsection (6), a statement may, for the purposes

of that subsection, be applied to goods by being:

(a) woven in, impressed on, worked into or annexed or affixed to

the goods; or

(b) applied to a covering, label, reel or thing in or with which the

goods are supplied.

(8) Subsections (1), (2) and (3) are offences of strict liability.

204 Supplying etc. services that do not comply with information

standards

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies services of a

particular kind; and

(b) an information standard for services of that kind is in force;

and

(c) the person has not complied with the standard in relation to

the services.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

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Section 204

Competition and Consumer Act 2010 273

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(b) if the person is not a body corporate—$220,000.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers for supply services

of a particular kind; and

(b) an information standard for services of that kind is in force;

and

(c) the person has not complied with the standard in relation to

the services.

Penalty:

(a) if the person is a body corporate—$1,100,000; or

(b) if the person is not a body corporate—$220,000.

(3) Subsections (1) and (2) are offences of strict liability.

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Chapter 4 Offences

Part 4-5 Offences relating to substantiation notices

Section 205

274 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part 4-5—Offences relating to substantiation notices

205 Compliance with substantiation notices

(1) A person commits an offence if the person:

(a) is given a substantiation notice; and

(b) refuses or fails to comply with it within the substantiation

notice compliance period for the notice.

Penalty:

(a) if the person is a body corporate—$16,500; or

(b) if the person is not a body corporate—$3,300.

(2) Subsection (1) does not apply if:

(a) the person is an individual; and

(b) the person refuses or fails to give particular information or

produce a particular document in compliance with a

substantiation notice; and

(c) the information, or production of the document, might tend to

incriminate the individual or to expose the individual to a

penalty.

(3) Subsection (1) is an offence of strict liability.

206 False or misleading information etc.

(1) A person commits an offence if the person, in compliance or

purported compliance with a substantiation notice given by the

regulator:

(a) gives to the regulator false or misleading information; or

(b) produces to the regulator documents that contain false or

misleading information.

Penalty:

(a) if the person is a body corporate—$27,500; or

(b) if the person is not a body corporate—$5,500.

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Section 206

Competition and Consumer Act 2010 275

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) This section does not apply to:

(a) information that the person could not have known was false

or misleading; or

(b) the production to the regulator of a document containing

false or misleading information if the document is

accompanied by a statement of the person that the

information is false or misleading.

(3) Subsection (1) is an offence of strict liability.

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Chapter 4 Offences

Part 4-6 Defences

Section 207

276 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part 4-6—Defences

207 Reasonable mistake of fact

(1) In a prosecution for a contravention of a provision of this Chapter,

it is a defence if the defendant proves that the contravention was

caused by a reasonable mistake of fact, including a mistake of fact

caused by reasonable reliance on information supplied by another

person.

(2) However, subsection (1) does not apply in relation to information

relied upon by the defendant that was supplied to the defendant by

another person who was, at the time when the contravention

occurred:

(a) an employee or agent of the defendant; or

(b) if the defendant is a body corporate—a director, employee or

agent of the defendant.

(3) If a defence provided by subsection (1) involves an allegation that

a contravention was due to reliance on information supplied by

another person, the defendant is not entitled to rely on that defence

unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the day on

which the hearing of the proceeding commences, served on

the person who instituted the proceeding a written notice

giving such information as the defendant then had that would

identify or assist in identifying the other person.

208 Act or default of another person etc.

(1) In a prosecution for a contravention of a provision of this Chapter,

it is a defence if the defendant proves that:

(a) the contravention was due to the act or default of another

person, to an accident or to some other cause beyond the

defendant’s control; and

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Section 209

Competition and Consumer Act 2010 277

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(b) the defendant took reasonable precautions and exercised due

diligence to avoid the contravention.

(2) However, subsection (1) does not apply in relation to the act or

default of another person who was, at the time when the

contravention occurred:

(a) an employee or agent of the defendant; or

(b) if the defendant is a body corporate—a director, employee or

agent of the defendant.

(3) If a defence provided by subsection (1) involves an allegation that

a contravention was due to the act or default of another person, the

defendant is not entitled to rely on that defence unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the day on

which the hearing of the proceeding commences, served on

the person who instituted the proceeding a written notice

giving such information as the defendant then had that would

identify or assist in identifying the other person.

209 Publication of advertisements in the ordinary course of business

In a prosecution for a contravention of a provision of this Chapter

that was committed by publication of an advertisement, it is a

defence if the defendant proves that:

(a) the defendant is a person whose business it is to publish or

arrange for the publication of advertisements; and

(b) the defendant received the advertisement for publication in

the ordinary course of business; and

(c) the defendant did not know, and had no reason to suspect,

that its publication would amount to a contravention of such

a provision.

210 Supplying goods acquired for the purpose of re-supply

(1) In a prosecution for a contravention of a provision of this Chapter

that was committed by supplying goods in contravention of

section 194 or 203, it is a defence if the defendant proves that:

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(a) the goods were acquired by the defendant for the purpose of

re-supply; and

(b) the goods were so acquired from a person who carried on in

Australia a business of supplying such goods otherwise than

as the agent of a person outside Australia; and

(c) in the case of a contravention of section 194—the defendant:

(i) did not know, and could not with reasonable diligence

have ascertained, that the goods did not comply with the

safety standard to which the contravention relates; or

(ii) relied in good faith on a representation by the person

from whom the defendant acquired the goods that there

was no safety standard for such goods; and

(d) in the case of a contravention of section 203—the defendant:

(i) did not know, and could not with reasonable diligence

have ascertained, that the defendant had not complied

with the information standard to which the

contravention relates; or

(ii) relied in good faith on a representation by the person

from whom the defendant acquired the goods that there

was no information standard for such goods.

Note: Section 194 is about supply of consumer goods that do not comply

with safety standards, and section 203 is about supply of goods that do

not comply with information standards.

(2) A defendant is not entitled to rely on the defence provided by

subsection (1) unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the day on

which the hearing of the proceeding commences, served on

the person who instituted the proceeding a written notice

identifying the person from whom the defendant acquired the

goods.

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Section 211

Competition and Consumer Act 2010 279

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211 Supplying services acquired for the purpose of re-supply

(1) In a prosecution for a contravention of a provision of this Chapter

that was committed by supplying services in contravention of

section 195 or 204, it is a defence if the defendant proves that:

(a) the services were acquired by the defendant for the purpose

of re-supply; and

(b) the services were so acquired from a person who carried on

in Australia a business of supplying such services otherwise

than as the agent of a person outside Australia; and

(c) in the case of a contravention of section 195—the defendant:

(i) did not know, and could not with reasonable diligence

have ascertained, that the services did not comply with

the safety standard to which the contravention relates; or

(ii) relied in good faith on a representation by the person

from whom the defendant acquired the services that

there was no safety standard for such services; and

(d) in the case of a contravention of section 204—the defendant:

(i) did not know, and could not with reasonable diligence

have ascertained, that the defendant had not complied

with the information standard to which the

contravention relates; or

(ii) relied in good faith on a representation by the person

from whom the defendant acquired the services that

there was no information standard for such services.

Note: Section 195 is about supply of product related services that do not

comply with safety standards, and section 204 is about supply of

services that do not comply with information standards.

(2) A defendant is not entitled to rely on the defence provided by

subsection (1) unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the day on

which the hearing of the proceeding commences, served on

the person who instituted the proceeding a written notice

identifying the person from whom the defendant acquired the

services.

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Schedule 2 The Australian Consumer Law

Chapter 4 Offences

Part 4-7 Miscellaneous

Section 212

280 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part 4-7—Miscellaneous

212 Prosecutions to be commenced within 3 years

A prosecution for an offence against a provision of this Chapter

may be commenced at any time within 3 years after the

commission of the offence.

213 Preference must be given to compensation for victims

If a court considers that:

(a) it is appropriate to impose a fine on a person (the defendant)

under this Chapter in relation to:

(i) a contravention of a provision of this Schedule; or

(ii) an attempt to contravene such a provision; or

(iii) aiding, abetting, counselling or procuring a person to

contravene such a provision; or

(iv) inducing, or attempting to induce, a person, whether by

threats or promises or otherwise, to contravene such a

provision; or

(v) being in any way, directly or indirectly, knowingly

concerned in, or party to, the contravention by a person

of such a provision; or

(vi) conspiring with others to contravene such a provision;

and

(b) it is appropriate to order the defendant to pay compensation

to a person who has suffered loss or damage as result of that

contravention or conduct; and

(c) the defendant does not have sufficient financial resources to

pay both the fine and the compensation;

the court must give preference to making an order for

compensation.

214 Penalties for contraventions of the same nature etc.

(1) If:

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Section 215

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(a) a person is convicted of 2 or more offences constituted by, or

relating to, contraventions of the same provision of this

Chapter; and

(b) the contraventions appear to the court:

(i) to have been of the same nature or a substantially

similar nature; and

(ii) to have occurred at or about the same time;

the court must not, in respect of the offences, impose on the person

fines that, in the aggregate, exceed the maximum fine that would

be applicable in respect of one offence by that person against that

provision.

(2) This section applies whether or not the person is also convicted of

an offence or offences constituted by, or relating to, another

contravention or other contraventions of that provision that were of

a different nature or occurred at a different time.

215 Penalties for previous contraventions of the same nature etc.

(1) If:

(a) a person is convicted of an offence constituted by, or relating

to, a contravention of a provision of this Chapter; and

(b) a fine has, or fines have, previously been imposed on the

person by the court for an offence or offences constituted by,

or relating to, another contravention or other contraventions

of the same provision; and

(c) the contravention, or each of the contraventions, mentioned

in paragraph (b) appear to the court:

(i) to have been of the same nature as, or a substantially

similar nature to, the contravention mentioned in

paragraph (a); and

(ii) to have occurred at or about the same time as the

contravention mentioned in paragraph (a);

the court must not, in respect of the offence mentioned in

paragraph (a), impose on the person a fine that exceeds the amount

(if any) by which the maximum fine applicable in respect of that

offence is greater than the amount of the fine, or the sum of the

amounts of the fines, referred to in paragraph (b).

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Chapter 4 Offences

Part 4-7 Miscellaneous

Section 216

282 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) This section applies whether or not a fine has, or fines have, also

previously been imposed on the person for an offence or offences

constituted by, or relating to, a contravention or contraventions of

that provision that were of a different nature or occurred at a

different time.

216 Granting of injunctions etc.

In proceedings against a person for a contravention of a provision

of this Chapter, the court may:

(a) grant an injunction under Division 2 of Part 5-2 against the

person in relation to:

(i) the conduct that constitutes, or is alleged to constitute,

the contravention; or

(ii) other conduct of that kind; or

(b) make an order under section 246, 247 or 248 in relation to

the contravention.

217 Criminal proceedings not to be brought for contraventions of

Chapter 2 or 3

Criminal proceedings do not lie against a person only because the

person:

(a) has contravened a provision of Chapter 2 or 3; or

(b) has attempted to contravene such a provision; or

(c) has aided, abetted, counselled or procured a person to

contravene such a provision; or

(d) has induced, or attempted to induce, a person, whether by

threats or promises or otherwise, to contravene such a

provision; or

(e) has been in any way, directly or indirectly, knowingly

concerned in, or party to, the contravention by a person of

such a provision; or

(f) has conspired with others to contravene such a provision.

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The Australian Consumer Law Schedule 2

Enforcement and remedies Chapter 5

Enforcement Part 5-1

Undertakings Division 1

Section 218

Competition and Consumer Act 2010 283

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Chapter 5—Enforcement and remedies

Part 5-1—Enforcement

Division 1—Undertakings

218 Regulator may accept undertakings

(1) The regulator may accept a written undertaking given by a person

for the purposes of this section in connection with a matter in

relation to which the regulator has a power or function under this

Schedule.

(2) The person may, with the consent of the regulator, withdraw or

vary the undertaking at any time.

(3) If the regulator considers that the person who gave the undertaking

has breached any of its terms, the regulator may apply to a court

for an order under subsection (4).

(4) If the court is satisfied that the person has breached a term of the

undertaking, the court may make all or any of the following orders:

(a) an order directing the person to comply with that term of the

undertaking;

(b) an order directing the person to pay to the Commonwealth, or

to a State or Territory, an amount up to the amount of any

financial benefit that the person has obtained directly or

indirectly and that is reasonably attributable to the breach;

(c) any order that the court considers appropriate directing the

person to compensate any other person who has suffered loss

or damage as a result of the breach;

(d) any other order that the court considers appropriate.

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-1 Enforcement

Division 2 Substantiation notices

Section 219

284 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Substantiation notices

219 Regulator may require claims to be substantiated etc.

(1) This section applies if a person has, in trade or commerce, made a

claim or representation promoting, or apparently intended to

promote:

(a) a supply, or possible supply, of goods or services by the

person or another person; or

(b) a sale or grant, or possible sale or grant, of an interest in land

by the person or another person; or

(c) employment that is to be, or may be, offered by the person or

another person.

(2) The regulator may give the person who made the claim or

representation a written notice that requires the person to do one or

more of the following:

(a) give information and/or produce documents to the regulator

that could be capable of substantiating or supporting the

claim or representation;

(b) if the claim or representation relates to a supply, or possible

supply, of goods or services by the person or another

person—give information and/or produce documents to the

regulator that could be capable of substantiating:

(i) the quantities in which; and

(ii) the period for which;

the person or other person is or will be able to make such a

supply (whether or not the claim or representation relates to

those quantities or that period);

(c) give information and/or produce documents to the regulator

that are of a kind specified in the notice;

within 21 days after the notice is given to the person who made the

claim or representation.

(3) Any kind of information or documents that the regulator specifies

under subsection (2)(c) must be a kind that the regulator is satisfied

is relevant to:

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Enforcement Part 5-1

Substantiation notices Division 2

Section 220

Competition and Consumer Act 2010 285

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(a) substantiating or supporting the claim or representation; or

(b) if the claim or representation relates to a supply, or possible

supply, of goods or services by the person or another

person—substantiating the quantities in which, or the period

for which, the person or other person is or will be able to

make such a supply.

(4) The notice must:

(a) name the person to whom it is given; and

(b) specify the claim or representation to which it relates; and

(c) explain the effect of sections 220, 221 and 222.

(5) The notice may relate to more than one claim or representation that

the person has made.

(6) This section does not apply to a person who made the claim or

representation if the person:

(a) is an information provider; and

(b) made the claim or representation by publishing it on behalf of

another person in the course of carrying on a business of

providing information; and

(c) does not have a commercial relationship with the other

person other than for the purpose of:

(i) publishing claims or representations promoting, or

apparently intended to promote, the other person’s

business or other activities; or

(ii) the other person supplying goods or services, or selling

or granting interests in land to the person.

220 Extending periods for complying with substantiation notices

(1) A person who has been given a substantiation notice may, at any

time within 21 days after the notice was given to the person by the

regulator, apply in writing to the regulator for an extension of the

period for complying with the notice.

(2) The regulator may, by written notice given to the person, extend

the period within which the person must comply with the notice.

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-1 Enforcement

Division 2 Substantiation notices

Section 221

286 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

221 Compliance with substantiation notices

(1) A person who is given a substantiation notice must comply with it

within the substantiation notice compliance period for the notice.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) The substantiation notice compliance period for a substantiation

notice is:

(a) the period of 21 days specified in the notice; or

(b) if the period for complying with the notice has been extended

under section 220—the period as so extended;

and includes (if an application has been made under section 220(1)

for an extension of the period for complying with the notice) the

period up until the time when the applicant is given notice of the

regulator’s decision on the application.

(3) Despite subsection (1), an individual may refuse or fail to give

particular information or produce a particular document in

compliance with a substantiation notice on the ground that the

information or production of the document might tend to

incriminate the individual or to expose the individual to a penalty.

222 False or misleading information etc.

(1) A person must not, in compliance or purported compliance with a

substantiation notice given by the regulator:

(a) give to the regulator false or misleading information; or

(b) produce to the regulator documents that contain false or

misleading information.

Note: A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) This section does not apply to:

(a) information that the person could not have known was false

or misleading; or

(b) the production to the regulator of a document containing

false or misleading information if the document is

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Enforcement and remedies Chapter 5

Enforcement Part 5-1

Substantiation notices Division 2

Section 222

Competition and Consumer Act 2010 287

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

accompanied by a statement of the person that the

information is false or misleading.

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-1 Enforcement

Division 3 Public warning notices

Section 223

288 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 3—Public warning notices

223 Regulator may issue a public warning notice

(1) The regulator may issue to the public a written notice containing a

warning about the conduct of a person if:

(a) the regulator has reasonable grounds to suspect that the

conduct may constitute a contravention of a provision of

Chapter 2, 3 or 4; and

(b) the regulator is satisfied that one or more other persons has

suffered, or is likely to suffer, detriment as a result of the

conduct; and

(c) the regulator is satisfied that it is in the public interest to

issue the notice.

(2) Without limiting subsection (1), if:

(a) a person refuses to respond to a substantiation notice given

by the regulator to the person, or fails to respond to the notice

before the end of the substantiation notice compliance period

for the notice; and

(b) the regulator is satisfied that it is in the public interest to

issue a notice under this subsection;

the regulator may issue to the public a written notice containing a

warning that the person has refused or failed to respond to the

substantiation notice within that period, and specifying the matter

to which the substantiation notice related.

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The Australian Consumer Law Schedule 2

Enforcement and remedies Chapter 5

Remedies Part 5-2

Pecuniary penalties Division 1

Section 224

Competition and Consumer Act 2010 289

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part 5-2—Remedies

Division 1—Pecuniary penalties

224 Pecuniary penalties

(1) If a court is satisfied that a person:

(a) has contravened any of the following provisions:

(i) a provision of Part 2-2 (which is about unconscionable

conduct);

(ii) a provision of Part 3-1 (which is about unfair practices);

(iii) section 66(2) (which is about display notices);

(iv) a provision (other than section 85) of Division 2 of

Part 3-2 (which is about unsolicited consumer

agreements);

(v) a provision (other than section 96(2)) of Division 3 of

Part 3-2 (which is about lay-by agreements);

(vi) section 100(1) or (3) or 101(3) or (4) (which are about

proof of transactions and itemised bills);

(vii) section 102(2) or 103(2) (which are about prescribed

requirements for warranties and repairers);

(viii) section 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) or 132(1) (which are about safety of

consumer goods and product related services);

(ix) section 136(1), (2) or (3) or 137(1) or (2) (which are

about information standards);

(x) section 221(1) or 222(1) (which are about substantiation

notices); or

(b) has attempted to contravene such a provision; or

(c) has aided, abetted, counselled or procured a person to

contravene such a provision; or

(d) has induced, or attempted to induce, a person, whether by

threats or promises or otherwise, to contravene such a

provision; or

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-2 Remedies

Division 1 Pecuniary penalties

Section 224

290 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(e) has been in any way, directly or indirectly, knowingly

concerned in, or party to, the contravention by a person of

such a provision; or

(f) has conspired with others to contravene such a provision;

the court may order the person to pay to the Commonwealth, State

or Territory, as the case may be, such pecuniary penalty, in respect

of each act or omission by the person to which this section applies,

as the court determines to be appropriate.

(2) In determining the appropriate pecuniary penalty, the court must

have regard to all relevant matters including:

(a) the nature and extent of the act or omission and of any loss or

damage suffered as a result of the act or omission; and

(b) the circumstances in which the act or omission took place;

and

(c) whether the person has previously been found by a court in

proceedings under Chapter 4 or this Part to have engaged in

any similar conduct.

(3) The pecuniary penalty payable under subsection (1) is not to

exceed the amount worked out using the following table:

Amount of pecuniary penalty

Item For each act or omission to

which this section applies

that relates to ...

the pecuniary penalty is

not to exceed ...

1 a provision of Part 2-2 (a) if the person is a body

corporate—$1.1 million;

or

(b) if the person is not a

body corporate—

$220,000.

2 a provision of Part 3-1 (other

than section 47(1))

(a) if the person is a body

corporate—$1.1 million;

or

(b) if the person is not a

body corporate—

$220,000.

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Remedies Part 5-2

Pecuniary penalties Division 1

Section 224

Competition and Consumer Act 2010 291

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Amount of pecuniary penalty

Item For each act or omission to

which this section applies

that relates to ...

the pecuniary penalty is

not to exceed ...

3 section 47(1) (a) if the person is a body

corporate—$5,000; or

(b) if the person is not a

body corporate—$1,000.

4 section 66(2) (a) if the person is a body

corporate—$50,000; or

(b) if the person is not a

body corporate—

$10,000.

5 a provision of Division 2 of

Part 3-2 (other than

section 85)

(a) if the person is a body

corporate—$50,000; or

(b) if the person is not a

body corporate—

$10,000.

6 a provision of Division 3 of

Part 3-2 (other than

section 96(2))

(a) if the person is a body

corporate—$30,000; or

(b) if the person is not a

body corporate—$6,000.

7 section 100(1) or (3) or 101(3)

or (4)

(a) if the person is a body

corporate—$15,000; or

(b) if the person is not a

body corporate—$3,000.

8 section 102(2) or 103(2) (a) if the person is a body

corporate—$50,000; or

(b) if the person is not a

body corporate—

$10,000.

9 section 106(1), (2), (3) or (5),

107(1) or (2), 118(1), (2), (3)

or (5) or 119(1) or (2)

(a) if the person is a body

corporate—$1.1 million;

or

(b) if the person is not a

body corporate—

$220,000.

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-2 Remedies

Division 1 Pecuniary penalties

Section 224

292 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Amount of pecuniary penalty

Item For each act or omission to

which this section applies

that relates to ...

the pecuniary penalty is

not to exceed ...

10 section 125(4) (a) if the person is a body

corporate—$16,500; or

(b) if the person is not a

body corporate—$3,300.

11 section 127(1) or (2) (a) if the person is a body

corporate—$1.1 million;

or

(b) if the person is not a

body corporate—

$220,000.

12 section 128(2) or (6), 131(1)

or 132(1)

(a) if the person is a body

corporate—$16,500; or

(b) if the person is not a

body corporate—$3,300.

13 section 136(1), (2) or (3) or

137(1) or (2)

(a) if the person is a body

corporate—$1.1 million;

or

(b) if the person is not a

body corporate—

$220,000.

14 section 221(1) (a) if the person is a body

corporate—$16,500; or

(b) if the person is not a

body corporate—$3,300.

15 section 222(1) (a) if the person is a body

corporate—$27,500; or

(b) if the person is not a

body corporate—$5,500.

(4) If conduct constitutes a contravention of 2 or more provisions

referred to in subsection (1)(a):

(a) a proceeding may be instituted under this Schedule against a

person in relation to the contravention of any one or more of

the provisions; but

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Remedies Part 5-2

Pecuniary penalties Division 1

Section 225

Competition and Consumer Act 2010 293

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) a person is not liable to more than one pecuniary penalty

under this section in respect of the same conduct.

225 Pecuniary penalties and offences

(1) A court must not make an order under section 224 against a person

in relation to either of the following matters (a consumer

protection breach):

(a) a contravention of a provision referred to in

section 224(1)(a);

(b) conduct referred to in section 224(1)(b), (c), (d), (e) or (f)

that relates to a contravention of such a provision;

if the person has been convicted of an offence constituted by

conduct that is substantially the same as the conduct constituting

the consumer protection breach.

(2) Proceedings for an order under section 224 against a person in

relation to a consumer protection breach are stayed if:

(a) criminal proceedings are started or have already been started

against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the

same as the conduct alleged to constitute the consumer

protection breach.

The proceedings for the order may be resumed if the person is not

convicted of the offence. Otherwise, the proceedings are dismissed.

(3) Criminal proceedings may be started against a person for conduct

that is substantially the same as conduct constituting a consumer

protection breach regardless of whether an order under section 224

has been made against the person in respect of the breach.

(4) Evidence of information given, or evidence of the production of

documents, by an individual is not admissible in criminal

proceedings against the individual if:

(a) the individual previously gave the evidence or produced the

documents in proceedings for an order under section 224

against the individual in relation to a consumer protection

breach (whether or not the order was made); and

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-2 Remedies

Division 1 Pecuniary penalties

Section 226

294 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the conduct alleged to constitute the offence is substantially

the same as the conduct that was claimed to constitute the

consumer protection breach.

However, this does not apply to a criminal proceeding in respect of

the falsity of the evidence given by the individual in the

proceedings for the order.

226 Defence

If, in proceedings under section 224 against a person other than a

body corporate, it appears to a court that the person has, or may

have:

(a) engaged in conduct in contravention of a provision referred

to in subsection (1)(a) of that section; or

(b) engaged in conduct referred to in subsection (1)(b), (c), (d),

(e) or (f) of that section that relates to a contravention of such

a provision;

but that the person acted honestly and reasonably and, having

regard to all the circumstances of the case, ought fairly to be

excused, the court may relieve the person either wholly or partly

from liability to a pecuniary penalty under that section.

227 Preference must be given to compensation for victims

If a court considers that:

(a) it is appropriate to order a person (the defendant) to pay a

pecuniary penalty under section 224 in relation to:

(i) a contravention of a provision referred to in

subsection (1)(a) of that section; or

(ii) conduct referred to in subsection (1)(b), (c), (d), (e) or

(f) of that section that relates to a contravention such a

provision; and

(b) it is appropriate to order the defendant to pay compensation

to a person who has suffered loss or damage as result of that

contravention or conduct; and

(c) the defendant does not have sufficient financial resources to

pay both the pecuniary penalty and the compensation;

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Enforcement and remedies Chapter 5

Remedies Part 5-2

Pecuniary penalties Division 1

Section 228

Competition and Consumer Act 2010 295

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

the court must give preference to making an order for

compensation.

228 Civil action for recovery of pecuniary penalties

(1) The regulator may institute a proceeding in a court for the recovery

on behalf of the Commonwealth, a State or a Territory, as the case

may be, of a pecuniary penalty referred to in section 224.

(2) A proceeding under subsection (1) may be commenced at any time

within 6 years after the contravention or conduct.

229 Indemnification of officers

(1) A body corporate (the first body), or a body corporate related to the

first body, commits an offence if it indemnifies a person (whether

by agreement or by making a payment and whether directly or

through an interposed entity) against either of the following

liabilities incurred as an officer (within the meaning of the

Corporations Act 2001) of the first body:

(a) a liability to pay a pecuniary penalty under section 224;

(b) legal costs incurred in defending or resisting proceedings in

which the person is found to have such a liability.

Penalty: $2,750.

(2) For the purposes of subsection (1), the outcome of proceedings is

the outcome of the proceedings and any appeal in relation to the

proceedings.

230 Certain indemnities not authorised and certain documents void

(1) Section 229 does not authorise anything that would otherwise be

unlawful.

(2) Anything that purports to indemnify a person against a liability is

void to the extent that it contravenes section 229.

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-2 Remedies

Division 2 Injunctions

Section 232

296 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Injunctions

232 Injunctions

(1) A court may grant an injunction, in such terms as the court

considers appropriate, if the court is satisfied that a person has

engaged, or is proposing to engage, in conduct that constitutes or

would constitute:

(a) a contravention of a provision of Chapter 2, 3 or 4; or

(b) attempting to contravene such a provision; or

(c) aiding, abetting, counselling or procuring a person to

contravene such a provision; or

(d) inducing, or attempting to induce, whether by threats,

promises or otherwise, a person to contravene such a

provision; or

(e) being in any way, directly or indirectly, knowingly concerned

in, or party to, the contravention by a person of such a

provision; or

(f) conspiring with others to contravene such a provision.

(2) The court may grant the injunction on application by the regulator

or any other person.

(3) Subsection (1) applies in relation to conduct constituted by

applying or relying on, or purporting to apply or rely on, a term of

a contract that has been declared under section 250 to be an unfair

term as if the conduct were a contravention of a provision of

Chapter 2.

(4) The power of the court to grant an injunction under subsection (1)

restraining a person from engaging in conduct may be exercised:

(a) whether or not it appears to the court that the person intends

to engage again, or to continue to engage, in conduct of a

kind referred to in that subsection; and

(b) whether or not the person has previously engaged in conduct

of that kind; and

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(c) whether or not there is an imminent danger of substantial

damage to any other person if the person engages in conduct

of that kind.

(5) Without limiting subsection (1), the court may grant an injunction

under that subsection restraining a person from carrying on a

business or supplying goods or services (whether or not as part of,

or incidental to, the carrying on of another business):

(a) for a specified period; or

(b) except on specified terms and conditions.

(6) Without limiting subsection (1), the court may grant an injunction

under that subsection requiring a person to do any of the following:

(a) refund money;

(b) transfer property;

(c) honour a promise;

(d) destroy or dispose of goods.

(7) The power of the court to grant an injunction under subsection (1)

requiring a person to do an act or thing may be exercised:

(a) whether or not it appears to the court that the person intends

to refuse or fail again, or to continue to refuse or fail, to do

that act or thing; and

(b) whether or not the person has previously refused or failed to

do that act or thing; and

(c) whether or not there is an imminent danger of substantial

damage to any other person if the person refuses or fails to do

that act or thing.

233 Consent injunctions

If an application is made under section 232, the court may, if it

considers that it is appropriate to do so, grant an injunction under

this section by consent of all the parties to the proceedings,

whether or not the court is satisfied as required by section 232(1).

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234 Interim injunctions

(1) If an application is made under section 232, the court may, if it

considers it is desirable to do so, grant an interim injunction under

this subsection pending the determination of the application.

(2) If a responsible Minister or the regulator made the application

under section 232, the court must not require the applicant or any

other person to give any undertakings as to damages as a condition

of granting the interim injunction.

(3) If:

(a) in a case to which subsection (2) does not apply the court

would, but for this subsection, require a person to give an

undertaking as to damages or costs; and

(b) a responsible Minister gives the undertaking;

the court must accept the undertaking by the responsible Minister

and must not require a further undertaking from any other person.

235 Variation and discharge of injunctions

A court may vary or discharge an injunction (including an interim

injunction) that it has granted under this Division.

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Division 3—Damages

236 Actions for damages

(1) If:

(a) a person (the claimant) suffers loss or damage because of the

conduct of another person; and

(b) the conduct contravened a provision of Chapter 2 or 3;

the claimant may recover the amount of the loss or damage by

action against that other person, or against any person involved in

the contravention.

(2) An action under subsection (1) may be commenced at any time

within 6 years after the day on which the cause of action that

relates to the conduct accrued.

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consumers

Section 237

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Division 4—Compensation orders etc. for injured persons and

orders for non-party consumers

Subdivision A—Compensation orders etc. for injured persons

237 Compensation orders etc. on application by an injured person

or the regulator

(1) A court may:

(a) on application of a person (the injured person) who has

suffered, or is likely to suffer, loss or damage because of the

conduct of another person that:

(i) was engaged in a contravention of a provision of

Chapter 2, 3 or 4; or

(ii) constitutes applying or relying on, or purporting to

apply or rely on, a term of a contract that has been

declared under section 250 to be an unfair term; or

(b) on the application of the regulator made on behalf of one or

more such injured persons;

make such order or orders as the court thinks appropriate against

the person who engaged in the conduct, or a person involved in

that conduct.

Note 1: For applications for an order or orders under this subsection, see

section 242.

Note 2: The orders that the court may make include all or any of the orders set

out in section 243.

(2) The order must be an order that the court considers will:

(a) compensate the injured person, or any such injured persons,

in whole or in part for the loss or damage; or

(b) prevent or reduce the loss or damage suffered, or likely to be

suffered, by the injured person or any such injured persons.

(3) An application under subsection (1) may be made at any time

within 6 years after the day on which:

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(a) if subsection (1)(a)(i) applies—the cause of action that relates

to the conduct referred to in that subsection accrued; or

(b) if subsection (1)(a)(ii) applies—the declaration referred to in

that subsection is made.

238 Compensation orders etc. arising out of other proceedings

(1) If a court finds, in a proceeding instituted under a provision of

Chapter 4 or this Chapter (other than this section), that a person

(the injured person) who is a party to the proceeding has suffered,

or is likely to suffer, loss or damage because of the conduct of

another person that:

(a) was engaged in a contravention of a provision of Chapter 2, 3

or 4; or

(b) constitutes applying or relying on, or purporting to apply or

rely on, a term of a contract that has been declared under

section 250 to be an unfair term;

the court may make such order or orders as it thinks appropriate

against the person who engaged in the conduct, or a person

involved in that conduct.

Note: The orders that the court may make include all or any of the orders set

out in section 243.

(2) The order must be an order that the court considers will:

(a) compensate the injured person in whole or in part for the loss

or damage; or

(b) prevent or reduce the loss or damage.

Subdivision B—Orders for non-party consumers

239 Orders to redress etc. loss or damage suffered by non-party

consumers

(1) If:

(a) a person:

(i) engaged in conduct (the contravening conduct) in

contravention of a provision of Chapter 2, Part 3-1,

Division 2, 3 or 4 of Part 3-2 or Chapter 4; or

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(ii) is a party to a contract who is advantaged by a term (the

declared term) of the contract in relation to which a

court has made a declaration under section 250; and

(b) the contravening conduct or declared term caused, or is likely

to cause, a class of persons to suffer loss or damage; and

(c) the class includes persons who are non-party consumers in

relation to the contravening conduct or declared term;

a court may, on the application of the regulator, make such order or

orders (other than an award of damages) as the court thinks

appropriate against a person referred to in subsection (2) of this

section.

Note 1: For applications for an order or orders under this subsection, see

section 242.

Note 2: The orders that the court may make include all or any of the orders set

out in section 243.

(2) An order under subsection (1) may be made against:

(a) if subsection (1)(a)(i) applies—the person who engaged in

the contravening conduct, or a person involved in that

conduct; or

(b) if subsection (1)(a)(ii) applies—a party to the contract who is

advantaged by the declared term.

(3) The order must be an order that the court considers will:

(a) redress, in whole or in part, the loss or damage suffered by

the non-party consumers in relation to the contravening

conduct or declared term; or

(b) prevent or reduce the loss or damage suffered, or likely to be

suffered, by the non-party consumers in relation to the

contravening conduct or declared term.

(4) An application under subsection (1) may be made at any time

within 6 years after the day on which:

(a) if subsection (1)(a)(i) applies—the cause of action that relates

to the contravening conduct accrued; or

(b) if subsection (1)(a)(ii) applies—the declaration is made.

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240 Determining whether to make a redress order etc. for non-party

consumers

(1) In determining whether to make an order under section 239(1)

against a person referred to in section 239(2)(a), the court may

have regard to the conduct of the person, and of the non-party

consumers in relation to the contravening conduct, since the

contravention occurred.

(2) In determining whether to make an order under section 239(1)

against a person referred to in section 239(2)(b), the court may

have regard to the conduct of the person, and of the non-party

consumers in relation to the declared term, since the declaration

was made.

(3) In determining whether to make an order under section 239(1), the

court need not make a finding about either of the following

matters:

(a) which persons are non-party consumers in relation to the

contravening conduct or declared term;

(b) the nature of the loss or damage suffered, or likely to be

suffered, by such persons.

241 When a non-party consumer is bound by a redress order etc.

(1) A non-party consumer is bound by an order made under

section 239(1) against a person if:

(a) the loss or damage suffered, or likely to be suffered, by the

non-party consumer in relation to the contravening conduct,

or the declared term, to which the order relates has been

redressed, prevented or reduced in accordance with the order;

and

(b) the non-party consumer has accepted the redress, prevention

or reduction.

(2) Any other order made under section 239(1) that relates to that loss

or damage has no effect in relation to the non-party consumer.

(3) Despite any other provision of:

(a) this Schedule; or

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(b) any other law of the Commonwealth, or a State or a

Territory;

no claim, action or demand may be made or taken against the

person by the non-party consumer in relation to that loss or

damage.

Subdivision C—Miscellaneous

242 Applications for orders

(1) An application may be made under section 237(1) or 239(1) even if

an enforcement proceeding in relation to the conduct, or the term

of a contract, referred to in that subsection has not been instituted.

(2) The regulator must not make an application under

section 237(1)(b) on behalf of one or more persons unless those

persons have consented in writing to the making of the application.

243 Kinds of orders that may be made

Without limiting section 237(1), 238(1) or 239(1), the orders that a

court may make under any of those sections against a person (the

respondent) include all or any of the following:

(a) an order declaring the whole or any part of a contract made

between the respondent and a person (the injured person)

who suffered, or is likely to suffer, the loss or damage

referred to in that section, or of a collateral arrangement

relating to such a contract:

(i) to be void; and

(ii) if the court thinks fit—to have been void ab initio or

void at all times on and after such date as is specified in

the order (which may be a date that is before the date on

which the order is made);

(b) an order:

(i) varying such a contract or arrangement in such manner

as is specified in the order; and

(ii) if the court thinks fit—declaring the contract or

arrangement to have had effect as so varied on and after

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such date as is specified in the order (which may be a

date that is before the date on which the order is made);

(c) an order refusing to enforce any or all of the provisions of

such a contract or arrangement;

(d) an order directing the respondent to refund money or return

property to the injured person;

(e) except if the order is to be made under section 239(1)—an

order directing the respondent to pay the injured person the

amount of the loss or damage;

(f) an order directing the respondent, at his or her own expense,

to repair, or provide parts for, goods that had been supplied

by the respondent to the injured person;

(g) an order directing the respondent, at his or her own expense,

to supply specified services to the injured person;

(h) an order, in relation to an instrument creating or transferring

an interest in land, directing the respondent to execute an

instrument that:

(i) varies, or has the effect of varying, the first mentioned

instrument; or

(ii) terminates or otherwise affects, or has the effect of

terminating or otherwise affecting, the operation or

effect of the first mentioned instrument.

244 Power of a court to make orders

A court may make an order under Subdivision A or B of this

Division whether or not the court:

(a) grants an injunction under Division 2 of this Part; or

(b) makes an order under section 236, 246, 247 or 248.

245 Interaction with other provisions

Subdivisions A and B of this Division do not limit the generality of

Division 2 of this Part.

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Division 5—Other remedies

246 Non-punitive orders

(1) A court may, on application of the regulator, make one or more of

the orders mentioned in subsection (2) in relation to a person who

has engaged in conduct that:

(a) contravenes a provision of Chapter 2, 3 or 4; or

(b) constitutes an involvement in a contravention of such a

provision.

(2) The court may make the following orders in relation to the person

who has engaged in the conduct:

(a) an order directing the person to perform a service that is

specified in the order, and that relates to the conduct, for the

benefit of the community or a section of the community;

(b) an order for the purpose of ensuring that the person does not

engage in the conduct, similar conduct, or related conduct,

during the period of the order (which must not be longer than

3 years) including:

(i) an order directing the person to establish a compliance

program for employees or other persons involved in the

person’s business, being a program designed to ensure

their awareness of the responsibilities and obligations in

relation to such conduct; and

(ii) an order directing the person to establish an education

and training program for employees or other persons

involved in the person’s business, being a program

designed to ensure their awareness of the

responsibilities and obligations in relation to such

conduct; and

(iii) an order directing the person to revise the internal

operations of the person’s business which led to the

person engaging in such conduct;

(c) an order requiring the person to disclose, in the way and to

the persons specified in the order, such information as is so

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specified, being information that the person has possession of

or access to;

(d) an order requiring the person to publish, at the person’s

expense and in the way specified in the order, an

advertisement in the terms specified in, or determined in

accordance with, the order.

Note: The following are examples of orders that the court may make under

subsection (2)(a):

(a) an order requiring a person who has made false representations to make available a training video which explains advertising obligations under this Schedule;

(b) an order requiring a person who has engaged in misleading or deceptive conduct in relation to a product to carry out a community awareness program to address the needs of consumers when purchasing the product.

(3) This section does not limit a court’s powers under any other

provision of this Schedule.

247 Adverse publicity orders

(1) A court may, on application of the regulator, make an adverse

publicity order in relation to a person who:

(a) has contravened a provision of Part 2-2 or Chapter 3; or

(b) has committed an offence against Chapter 4.

(2) An adverse publicity order in relation to a person is an order that

requires the person:

(a) to disclose, in the way and to the persons specified in the

order, such information as is so specified, being information

that the person has possession of or access to; and

(b) to publish, at the person’s expense and in the way specified

in the order, an advertisement in the terms specified in, or

determined in accordance with, the order.

(3) This section does not limit a court’s powers under any other

provision of this Schedule.

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248 Order disqualifying a person from managing corporations

(1) A court may, on application of the regulator, make an order

disqualifying a person from managing corporations for a period

that the court considers appropriate if:

(a) the court is satisfied that the person has contravened, has

attempted to contravene or has been involved in a

contravention of any of the following provisions:

(i) a provision of Part 2-2 (which is about unconscionable

conduct);

(ii) a provision of Part 3-1 (which is about unfair practices);

(iii) a provision (other than section 85) of Division 2 of

Part 3-2 (which is about unsolicited consumer

agreements);

(iv) section 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) or 132(1) (which are about safety of

consumer goods and product related services);

(v) section 136(1), (2) or (3) or 137(1) or (2) (which are

about information standards);

(vi) a provision of Chapter 4 (which is about offences); and

(b) the court is satisfied that the disqualification is justified.

Note: Section 206EA of the Corporations Act 2001 provides that a person is

disqualified from managing corporations if a court order is in force

under this section. That Act contains various consequences for persons

so disqualified.

(2) In determining under subsection (1) whether the disqualification is

justified, the court may have regard to:

(a) the person’s conduct in relation to the management, business

or property of any corporation; and

(b) any other matters that the court considers appropriate.

(3) If the court makes an order under subsection (1), the regulator

must:

(a) notify ASIC; and

(b) give ASIC a copy of any such order.

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Note: ASIC must keep a register of persons who have been disqualified

from managing corporations: see section 1274AA of the Corporations

Act 2001.

(4) For the purposes of this Schedule (other than this section or

section 249), an order under this section is not a penalty.

249 Privilege against exposure to penalty or forfeiture—

disqualification from managing corporations

(1) In a civil or criminal proceeding under, or arising out of, this

Schedule, a person is not entitled to refuse or fail to comply with a

requirement:

(a) to answer a question or give information; or

(b) to produce a document or any other thing; or

(c) to do any other act;

on the ground that the answer or information, production of the

document or other thing, or doing that other act, as the case may

be, might tend to expose the person to a penalty (including

forfeiture) by way of an order under section 248.

(2) Subsection (1) applies whether or not the person is a defendant in

the proceeding or in any other proceeding.

(3) A person is not entitled to refuse or fail to comply with a

requirement under this Schedule:

(a) to answer a question or give information; or

(b) to produce a document or any other thing; or

(c) to do any other act;

on the ground that the answer or information, production of the

document or other thing, or doing that other act, as the case may

be, might tend to expose the person to a penalty (including

forfeiture) by way of an order under section 248.

250 Declarations relating to consumer contracts and small business

contracts

(1) The Court may declare that a term of a consumer contract is an

unfair term, on application by:

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(a) a party to the contract; or

(b) the regulator.

(2) The Court may declare that a term of a small business contract is

an unfair term, on application by:

(a) a party to the contract, if the party was a business of the kind

referred to in paragraph 23(4)(b) at the time the contract was

entered into; or

(b) the regulator.

(3) Subsections (1) and (2) do not apply unless the contract is a

standard form contract.

(4) Subsections (1) and (2) do not apply if Part 2-3 does not apply to

the contract.

(5) Subsections (1) and (2) do not limit any other power of the court to

make declarations.

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Division 6—Defences

251 Publication of advertisement in the ordinary course of business

(1) This section applies to a proceeding under this Part in relation to a

contravention of a provision of Part 2-1 or 2-2 or Chapter 3 if the

contravention was committed by the publication of an

advertisement.

(2) In the proceeding, it is a defence if the defendant proves that:

(a) the defendant is a person whose business it is to publish or

arrange for the publication of advertisements; and

(b) the defendant received the advertisement for publication in

the ordinary course of business; and

(c) the defendant did not know, and had no reason to suspect,

that its publication would amount to a contravention of such

a provision.

252 Supplying consumer goods for the purpose of re-supply

(1) This section applies to a proceeding under this Part in relation to a

contravention of a provision of Part 2-1 or 2-2 or Chapter 3

committed by:

(a) the supplying of consumer goods that did not comply with a

safety standard for such goods; or

(b) the supplying of consumer goods by a supplier who did not

comply with an information standard for such goods.

(2) In the proceeding, it is a defence if the defendant proves that:

(a) the consumer goods were acquired by the defendant for the

purpose of re-supply; and

(b) the consumer goods were so acquired from a person who

carried on in Australia a business of supplying such goods

otherwise than as the agent of a person outside Australia; and

(c) either:

(i) the defendant did not know, and could not with

reasonable diligence have ascertained, that the

consumer goods did not comply with that safety

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standard, or that the defendant had not complied with

that information standard, as the case may be; or

(ii) the defendant relied in good faith on a representation by

the person from whom the defendant acquired the goods

that there was no safety standard or information

standard, as the case may be, for such consumer goods.

(3) A defendant is not entitled to rely on the defence provided by

subsection (2) unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the day on

which the hearing of the proceeding commences, served on

the person who instituted the proceeding a written notice

identifying the person from whom the defendant acquired the

consumer goods.

253 Supplying product related services for the purpose of re-supply

(1) This section applies to a proceeding under this Part in relation to a

contravention of a provision of Part 2-1 or 2-2 or Chapter 3

committed by:

(a) the supplying of product related services that did not comply

with a safety standard for such services; or

(b) the supplying of product related services by a supplier who

did not comply with an information standard for such

services.

(2) In the proceeding, it is a defence if the defendant proves that:

(a) the product related services were acquired by the defendant

for the purpose of re-supply; and

(b) the product related services were so acquired from a person

who carried on in Australia a business of supplying such

services otherwise than as the agent of a person outside

Australia; and

(c) either:

(i) the defendant did not know, and could not with

reasonable diligence have ascertained, that the product

related services did not comply with that safety

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standard, or that the defendant had not complied with

that information standard, as the case may be; or

(ii) the defendant relied in good faith on a representation by

the person from whom the defendant acquired the goods

that there was no safety standard or information

standard, as the case may be, for such product related

services.

(3) A defendant is not entitled to rely on the defence provided by

subsection (2) unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the day on

which the hearing of the proceeding commences, served on

the person who instituted the proceeding a written notice

identifying the person from whom the defendant acquired the

product related services.

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Part 5-3 Country of origin representations

Section 254

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Part 5-3—Country of origin representations

254 Overview

This Part provides that certain country of origin representations

made about goods do not contravene:

(a) section 18 (which deals with misleading or deceptive

conduct); or

(b) section 29(1)(a) or (k) or 151(1)(a) or (k) (which deal with

false or misleading representations).

255 Country of origin representations do not contravene certain

provisions

(1) A person does not contravene section 18, 29(1)(a) or (k) or

151(1)(a) or (k) only by making a representation of a kind referred

to in an item in the first column of this table, if the requirements of

the corresponding item in the second column are met.

Country of origin representations

Item Representation Requirements to be met

1 A representation that goods

were grown in a particular

country

(a) each significant ingredient or significant

component of the goods was grown in

that country; and

(b) all, or virtually all, processes involved in

the production or manufacture of the

goods happened in that country.

2 A representation that goods

are the produce of a

particular country

(a) the country was the country of origin of

each significant ingredient or significant

component of the goods; and

(b) all, or virtually all, processes involved in

the production or manufacture of the

goods happened in that country.

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Country of origin representations

Item Representation Requirements to be met

3 A representation that goods

were made or manufactured

in, or otherwise originate in,

a particular country

(a) the goods were last substantially

transformed in that country; and

(b) the representation is not a representation

to which item 1 or 2 of this table applies.

4 A representation in the form

of a mark specified in an

information standard

relating to country of origin

labelling of goods

the requirements under the information

standard relating to the use of that mark.

(2) Goods were substantially transformed in a country if:

(a) the goods met, in relation to that country, the requirements of

item 1 or 2 in the second column of the table in

subsection (1); or

(b) as a result of one or more processes undertaken in that

country, the goods are fundamentally different in identity,

nature or essential character from all of their ingredients or

components that were imported into that country.

(3) Without limiting subsection (2), the regulations:

(a) may prescribe (in relation to particular classes of goods or

otherwise) processes or combinations of processes that, for

the purposes of that subsection, do not have the result

described in subsection (2)(b); and

(b) may include examples (in relation to particular classes of

goods or otherwise) of processes or combinations of

processes that, for the purposes of that subsection, have the

result described in subsection (2)(b).

(5) Item 2 of the table in subsection (1) applies to a representation that

goods are the produce of a particular country whether the

representation uses the words “product of”, “produce of” or any

other grammatical variation of the word “produce”.

(7) Goods, or ingredients or components of goods, are grown in a

country if they:

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(a) are materially increased in size or materially altered in

substance in that country by natural development; or

(b) germinated or otherwise arose in, or issued in, that country;

or

(c) are harvested, extracted or otherwise derived from an

organism that has been materially increased in size, or

materially altered in substance, in that country by natural

development.

(8) For the purposes of item 1 of the table in subsection (1) in relation

to particular goods, packaging materials are not treated as

ingredients or components of the goods.

(9) For the purposes of item 1 of the table in subsection (1) in relation

to an ingredient or component, water added to the ingredient or

component is treated as having the same origin as the ingredient or

component, regardless of its actual origin, if:

(a) the ingredient or component has been dried or concentrated

by the evaporation of water; and

(b) the added water returns the water content of the ingredient or

component to no more than its natural level.

258 Proceedings relating to false, misleading or deceptive conduct or

representations

If:

(a) proceedings are brought against a person in respect of

section 18, 29(1)(a) or (k) or 151(1)(a) or (k); and

(b) the person seeks to rely on a provision of this Part, or of a

regulation made for the purposes of a provision of this Part,

in the proceedings;

the person bears an evidential burden in relation to the matters set

out in the provision on which the person seeks to rely.

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Remedies relating to guarantees Part 5-4

Action against suppliers Division 1

Section 259

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Part 5-4—Remedies relating to guarantees

Division 1—Action against suppliers

Subdivision A—Action against suppliers of goods

259 Action against suppliers of goods

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or commerce, goods

to the consumer; and

(b) a guarantee that applies to the supply under Subdivision A of

Division 1 of Part 3-2 (other than sections 58 and 59(1)) is

not complied with.

(2) If the failure to comply with the guarantee can be remedied and is

not a major failure:

(a) the consumer may require the supplier to remedy the failure

within a reasonable time; or

(b) if such a requirement is made of the supplier but the supplier

refuses or fails to comply with the requirement, or fails to

comply with the requirement within a reasonable time—the

consumer may:

(i) otherwise have the failure remedied and, by action

against the supplier, recover all reasonable costs

incurred by the consumer in having the failure so

remedied; or

(ii) subject to section 262, notify the supplier that the

consumer rejects the goods and of the ground or

grounds for the rejection.

(3) If the failure to comply with the guarantee cannot be remedied or is

a major failure, the consumer may:

(a) subject to section 262, notify the supplier that the consumer

rejects the goods and of the ground or grounds for the

rejection; or

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(b) by action against the supplier, recover compensation for any

reduction in the value of the goods below the price paid or

payable by the consumer for the goods.

(4) The consumer may, by action against the supplier, recover

damages for any loss or damage suffered by the consumer because

of the failure to comply with the guarantee if it was reasonably

foreseeable that the consumer would suffer such loss or damage as

a result of such a failure.

(5) Subsection (4) does not apply if the failure to comply with the

guarantee occurred only because of a cause independent of human

control that occurred after the goods left the control of the supplier.

(6) To avoid doubt, subsection (4) applies in addition to

subsections (2) and (3).

(7) The consumer may take action under this section whether or not

the goods are in their original packaging.

260 When a failure to comply with a guarantee is a major failure

A failure to comply with a guarantee referred to in

section 259(1)(b) that applies to a supply of goods is a major

failure if:

(a) the goods would not have been acquired by a reasonable

consumer fully acquainted with the nature and extent of the

failure; or

(b) the goods depart in one or more significant respects:

(i) if they were supplied by description—from that

description; or

(ii) if they were supplied by reference to a sample or

demonstration model—from that sample or

demonstration model; or

(c) the goods are substantially unfit for a purpose for which

goods of the same kind are commonly supplied and they

cannot, easily and within a reasonable time, be remedied to

make them fit for such a purpose; or

(d) the goods are unfit for a disclosed purpose that was made

known to:

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(i) the supplier of the goods; or

(ii) a person by whom any prior negotiations or

arrangements in relation to the acquisition of the goods

were conducted or made;

and they cannot, easily and within a reasonable time, be

remedied to make them fit for such a purpose; or

(e) the goods are not of acceptable quality because they are

unsafe.

261 How suppliers may remedy a failure to comply with a guarantee

If, under section 259(2)(a), a consumer requires a supplier of goods

to remedy a failure to comply with a guarantee referred to in

section 259(1)(b), the supplier may comply with the requirement:

(a) if the failure relates to title—by curing any defect in title; or

(b) if the failure does not relate to title—by repairing the goods;

or

(c) by replacing the goods with goods of an identical type; or

(d) by refunding:

(i) any money paid by the consumer for the goods; and

(ii) an amount that is equal to the value of any other

consideration provided by the consumer for the goods.

262 When consumers are not entitled to reject goods

(1) A consumer is not entitled, under section 259, to notify a supplier

of goods that the consumer rejects the goods if:

(a) the rejection period for the goods has ended; or

(b) the goods have been lost, destroyed or disposed of by the

consumer; or

(c) the goods were damaged after being delivered to the

consumer for reasons not related to their state or condition at

the time of supply; or

(d) the goods have been attached to, or incorporated in, any real

or personal property and they cannot be detached or isolated

without damaging them.

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(2) The rejection period for goods is the period from the time of the

supply of the goods to the consumer within which it would be

reasonable to expect the relevant failure to comply with a

guarantee referred to in section 259(1)(b) to become apparent

having regard to:

(a) the type of goods; and

(b) the use to which a consumer is likely to put them; and

(c) the length of time for which it is reasonable for them to be

used; and

(d) the amount of use to which it is reasonable for them to be put

before such a failure becomes apparent.

263 Consequences of rejecting goods

(1) This section applies if, under section 259, a consumer notifies a

supplier of goods that the consumer rejects the goods.

(2) The consumer must return the goods to the supplier unless:

(a) the goods have already been returned to, or retrieved by, the

supplier; or

(b) the goods cannot be returned, removed or transported without

significant cost to the consumer because of:

(i) the nature of the failure to comply with the guarantee to

which the rejection relates; or

(ii) the size or height, or method of attachment, of the

goods.

(3) If subsection (2)(b) applies, the supplier must, within a reasonable

time, collect the goods at the supplier’s expense.

(4) The supplier must, in accordance with an election made by the

consumer:

(a) refund:

(i) any money paid by the consumer for the goods; and

(ii) an amount that is equal to the value of any other

consideration provided by the consumer for the goods;

or

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(b) replace the rejected goods with goods of the same type, and

of similar value, if such goods are reasonably available to the

supplier.

(5) The supplier cannot satisfy subsection (4)(a) by permitting the

consumer to acquire goods from the supplier.

(6) If the property in the rejected goods had passed to the consumer

before the rejection was notified, the property in those goods

revests in the supplier on the notification of the rejection.

264 Replaced goods

If the goods are replaced under section 261(c) or 263(4)(b):

(a) the replacement goods are taken, for the purposes of

Division 1 of Part 3-2 and this Part, to be supplied by the

supplier; and

(b) the provisions of Division 1 of Part 3-2 and this Part apply in

relation to the replacement goods.

265 Termination of contracts for the supply of services that are

connected with rejected goods

(1) If:

(a) under section 259, a consumer notifies a supplier of goods

that the consumer rejects the goods; and

(b) the supplier is required under section 263(4)(a) to give the

consumer a refund; and

(c) a person supplies, in trade or commerce, services to the

consumer that are connected with the rejected goods;

the consumer may terminate the contract for the supply of the

services.

(2) The termination takes effect:

(a) at the time the termination is made known to the supplier of

the services (whether by words or by conduct indicating the

consumer’s intention to terminate the contract); or

(b) if it is not reasonably practicable to communicate with the

supplier of the services—at the time the consumer indicates,

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by means which are reasonable in the circumstances, his or

her intention to terminate the contract.

(3) The consumer is entitled to recover, by action against the supplier

of the services, a refund of:

(a) any money paid by the consumer for the services; and

(b) an amount that is equal to the value of any other

consideration provided by the consumer for the services;

to the extent that the consumer has not already consumed the

services at the time the termination takes effect.

266 Rights of gift recipients

If a consumer acquires goods from a supplier and gives them to

another person as a gift, the other person may, subject to any

defence which would be available to the supplier against the

consumer:

(a) exercise any rights or remedies under this Subdivision which

would be available to the other person if he or she had

acquired the goods from the supplier; and

(b) any reference in this Subdivision to a consumer includes a

reference to the other person accordingly.

Subdivision B—Action against suppliers of services

267 Action against suppliers of services

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or commerce,

services to the consumer; and

(b) a guarantee that applies to the supply under Subdivision B of

Division 1 of Part 3-2 is not complied with; and

(c) unless the guarantee is the guarantee under section 60—the

failure to comply with the guarantee did not occur only

because of:

(i) an act, default or omission of, or a representation made

by, any person other than the supplier, or an agent or

employee of the supplier; or

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(ii) a cause independent of human control that occurred

after the services were supplied.

(2) If the failure to comply with the guarantee can be remedied and is

not a major failure:

(a) the consumer may require the supplier to remedy the failure

within a reasonable time; or

(b) if such a requirement is made of the supplier but the supplier

refuses or fails to comply with the requirement, or fails to

comply with the requirement within a reasonable time—the

consumer may:

(i) otherwise have the failure remedied and, by action

against the supplier, recover all reasonable costs

incurred by the consumer in having the failure so

remedied; or

(ii) terminate the contract for the supply of the services.

(3) If the failure to comply with the guarantee cannot be remedied or is

a major failure, the consumer may:

(a) terminate the contract for the supply of the services; or

(b) by action against the supplier, recover compensation for any

reduction in the value of the services below the price paid or

payable by the consumer for the services.

(4) The consumer may, by action against the supplier, recover

damages for any loss or damage suffered by the consumer because

of the failure to comply with the guarantee if it was reasonably

foreseeable that the consumer would suffer such loss or damage as

a result of such a failure.

(5) To avoid doubt, subsection (4) applies in addition to

subsections (2) and (3).

268 When a failure to comply with a guarantee is a major failure

A failure to comply with a guarantee referred to in

section 267(1)(b) that applies to a supply of services is a major

failure if:

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(a) the services would not have been acquired by a reasonable

consumer fully acquainted with the nature and extent of the

failure; or

(b) the services are substantially unfit for a purpose for which

services of the same kind are commonly supplied and they

cannot, easily and within a reasonable time, be remedied to

make them fit for such a purpose; or

(c) both of the following apply:

(i) the services, and any product resulting from the

services, are unfit for a particular purpose for which the

services were acquired by the consumer that was made

known to the supplier of the services;

(ii) the services, and any of those products, cannot, easily

and within a reasonable time, be remedied to make them

fit for such a purpose; or

(d) both of the following apply:

(i) the services, and any product resulting from the

services, are not of such a nature, or quality, state or

condition, that they might reasonably be expected to

achieve a result desired by the consumer that was made

known to the supplier;

(ii) the services, and any of those products, cannot, easily

and within a reasonable time, be remedied to achieve

such a result; or

(e) the supply of the services creates an unsafe situation.

269 Termination of contracts for the supply of services

(1) This section applies if, under section 267, a consumer terminates a

contract for the supply of services.

(2) The termination takes effect:

(a) at the time the termination is made known to the supplier of

the services (whether by words or by conduct indicating the

consumer’s intention to terminate the contract); or

(b) if it is not reasonably practicable to communicate with the

supplier of the services—at the time the consumer indicates,

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by means which are reasonable in the circumstances, his or

her intention to terminate the contract.

(3) The consumer is entitled to recover, by action against the supplier

of the services, a refund of:

(a) any money paid by the consumer for the services; and

(b) an amount that is equal to the value of any other

consideration provided by the consumer for the services;

to the extent that the consumer has not already consumed the

services at the time the termination takes effect.

270 Termination of contracts for the supply of goods that are

connected with terminated services

(1) If:

(a) under section 267, a consumer terminates a contract for the

supply of services; and

(b) a person (the supplier) has supplied, in trade or commerce,

goods to the consumer that are connected with the services;

then:

(c) the consumer is taken to have rejected the goods at the time

the termination of the contract takes effect; and

(d) the consumer must return the goods to the supplier of the

goods unless:

(i) the goods have already been returned to, or retrieved by,

the supplier; or

(ii) the goods cannot be returned, removed or transported

without significant cost to the consumer because of the

nature of the failure to comply with the guarantee to

which the rejection relates, or because of the size or

height, or method of attachment, of the goods; and

(e) the supplier must refund:

(i) any money paid by the consumer for the goods; and

(ii) an amount that is equal to the value of any other

consideration provided by the consumer for the goods.

(2) If subsection (1)(d)(ii) applies, the supplier must collect the goods

at the supplier’s expense.

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Section 271

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Division 2—Action for damages against manufacturers of goods

271 Action for damages against manufacturers of goods

(1) If:

(a) the guarantee under section 54 applies to a supply of goods to

a consumer; and

(b) the guarantee is not complied with;

an affected person in relation to the goods may, by action against

the manufacturer of the goods, recover damages from the

manufacturer.

(2) Subsection (1) does not apply if the guarantee under section 54 is

not complied with only because of:

(a) an act, default or omission of, or any representation made by,

any person other than the manufacturer or an employee or

agent of the manufacturer; or

(b) a cause independent of human control that occurred after the

goods left the control of the manufacturer; or

(c) the fact that the price charged by the supplier was higher than

the manufacturer’s recommended retail price, or the average

retail price, for the goods.

(3) If:

(a) a person supplies, in trade or commerce, goods by

description to a consumer; and

(b) the description was applied to the goods by or on behalf of

the manufacturer of the goods, or with express or implied

consent of the manufacturer; and

(c) the guarantee under section 56 applies to the supply and it is

not complied with;

an affected person in relation to the goods may, by action against

the manufacturer of the goods, recover damages from the

manufacturer.

(4) Subsection (3) does not apply if the guarantee under section 56 is

not complied with only because of:

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(a) an act, default or omission of any person other than the

manufacturer or an employee or agent of the manufacturer;

or

(b) a cause independent of human control that occurred after the

goods left the control of the manufacturer.

(5) If:

(a) the guarantee under section 58 or 59(1) applies to a supply of

goods to a consumer; and

(b) the guarantee is not complied with;

an affected person in relation to the goods may, by action against

the manufacturer of the goods, recover damages from the

manufacturer.

(6) If an affected person in relation to goods has, in accordance with

an express warranty given or made by the manufacturer of the

goods, required the manufacturer to remedy a failure to comply

with a guarantee referred to in subsection (1), (3) or (5):

(a) by repairing the goods; or

(b) by replacing the goods with goods of an identical type;

then, despite that subsection, the affected person is not entitled to

commence an action under that subsection to recover damages of a

kind referred to in section 272(1)(a) unless the manufacturer has

refused or failed to remedy the failure, or has failed to remedy the

failure within a reasonable time.

(7) The affected person in relation to the goods may commence an

action under this section whether or not the goods are in their

original packaging.

272 Damages that may be recovered by action against

manufacturers of goods

(1) In an action for damages under this Division, an affected person in

relation to goods is entitled to recover damages for:

(a) any reduction in the value of the goods, resulting from the

failure to comply with the guarantee to which the action

relates, below whichever of the following prices is lower:

(i) the price paid or payable by the consumer for the goods;

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(ii) the average retail price of the goods at the time of

supply; and

(b) any loss or damage suffered by the affected person because

of the failure to comply with the guarantee to which the

action relates if it was reasonably foreseeable that the

affected person would suffer such loss or damage as a result

of such a failure.

(2) Without limiting subsection (1)(b), the cost of inspecting and

returning the goods to the manufacturer is taken to be a reasonably

foreseeable loss suffered by the affected person as a result of the

failure to comply with the guarantee.

(3) Subsection (1)(b) does not apply to loss or damage suffered

through a reduction in the value of the goods.

273 Time limit for actions against manufacturers of goods

An affected person may commence an action for damages under

this Division at any time within 3 years after the day on which the

affected person first became aware, or ought reasonably to have

become aware, that the guarantee to which the action relates has

not been complied with.

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Division 3—Miscellaneous

274 Indemnification of suppliers by manufacturers

(1) A manufacturer of goods is liable to indemnify a person (the

supplier) who supplies the goods to a consumer if:

(a) the supplier is liable to pay damages under section 259(4) to

the consumer for loss or damage suffered by the consumer;

and

(b) the manufacturer is or would be liable under section 271 to

pay damages to the consumer for the same loss or damage.

(2) Without limiting subsection (1), a manufacturer of goods is liable

to indemnify a person (the supplier) who supplies the goods to a

consumer if:

(a) the supplier incurs costs because the supplier is liable under

this Part for a failure to comply with a guarantee that applies

to the supply under Subdivision A of Division 1 of Part 3-2;

and

(b) the failure is:

(i) a failure to comply with the guarantee under section 54;

or

(ii) a failure to comply with the guarantee under section 55

in relation to a disclosed purpose that the consumer

made known to the manufacturer either directly or

through the supplier or the person referred to in

section 55(2)(a)(ii); or

(iii) a failure to comply with the guarantee under section 56

in relation to a description that was applied to the goods

by or on behalf of the manufacturer of the goods, or

with the express or implied consent of the manufacturer.

(3) The supplier may, with respect to the manufacturer’s liability to

indemnify the supplier, commence an action against the

manufacturer in a court of competent jurisdiction for such legal or

equitable relief as the supplier could have obtained if that liability

had arisen under a contract of indemnity made between them.

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(4) The supplier may commence the action at any time within 3 years

after the earliest of the following days:

(a) the day, or the first day, as the case may be, on which the

supplier made a payment with respect to, or otherwise

discharged in whole or in part, the liability of the supplier to

the consumer;

(b) the day on which a proceeding was commenced by the

consumer against the supplier with respect to that liability or,

if more than one such proceeding was commenced, the day

on which the first such proceeding was commenced.

275 Limitation of liability etc.

If:

(a) there is a failure to comply with a guarantee that applies to a

supply of services under Subdivision B of Division 1 of

Part 3-2; and

(b) the law of a State or a Territory is the proper law of the

contract;

that law applies to limit or preclude liability for the failure, and

recovery of that liability (if any), in the same way as it applies to

limit or preclude liability, and recovery of any liability, for a

breach of a term of the contract for the supply of the services.

276 This Part not to be excluded etc. by contract

(1) A term of a contract (including a term that is not set out in the

contract but is incorporated in the contract by another term of the

contract) is void to the extent that the term purports to exclude,

restrict or modify, or has the effect of excluding, restricting or

modifying:

(a) the application of all or any of the provisions of this Part; or

(b) the exercise of a right a conferred by such a provision; or

(c) any liability of a person in relation to a failure to comply with

a guarantee that applies under Division 1 of Part 3-2 to a

supply of goods or services.

(2) A term of a contract is not taken, for the purposes of this section, to

exclude, restrict or modify the application of a provision of this

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Part unless the term does so expressly or is inconsistent with the

provision.

(3) This section does not apply to a term of a contract that is a term

referred to in section 276A(4).

276A Limitation in certain circumstances of liability of

manufacturer to seller

(1) Despite section 274, if goods are not of a kind ordinarily acquired

for personal, domestic or household use or consumption, the

liability under that section of the manufacturer of the goods to a

person (the supplier) who supplied the goods to a consumer is

limited to a liability to pay to the supplier an amount equal to:

(a) the cost of replacing the goods; or

(b) the cost of obtaining equivalent goods; or

(c) the cost of having the goods repaired;

whichever is the lowest amount.

(2) Subsection (1) does not apply in relation to particular goods if the

supplier establishes that it is not fair or reasonable for the liability

of the manufacturer of the goods to be limited as mentioned in

subsection (1).

(3) In determining for the purposes of subsection (2) whether or not it

is fair or reasonable for the liability of a manufacturer to a supplier

in relation to goods to be limited as mentioned in subsection (1), a

court is to have regard to all the circumstances of the case, and in

particular to the following matters:

(a) the availability of suitable alternative sources of supply of the

goods;

(b) the availability of equivalent goods;

(c) whether the goods were manufactured, processed or adapted

to the special order of the supplier.

(4) This section is subject to any term of a contract between the

manufacturer and the supplier imposing on the manufacturer a

greater liability than the liability mentioned in subsection (1).

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-4 Remedies relating to guarantees

Division 3 Miscellaneous

Section 277

332 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

277 Representative actions by the regulator

(1) The regulator may, by application, commence an action under this

Part on behalf of one or more persons identified in the application

who are entitled under this Part to take the action.

(2) The regulator may only make the application if it has obtained the

written consent of the person, or each of the persons, on whose

behalf the application is being made.

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The Australian Consumer Law Schedule 2

Enforcement and remedies Chapter 5

Liability of suppliers and credit providers Part 5-5

Linked credit contracts Division 1

Section 278

Competition and Consumer Act 2010 333

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part 5-5—Liability of suppliers and credit providers

Division 1—Linked credit contracts

278 Liability of suppliers and linked credit providers relating to

linked credit contracts

(1) If a consumer who is a party to a linked credit contract suffers loss

or damage as a result of:

(a) a misrepresentation relating to the credit provided under that

linked credit contract, or to a supply of goods or services (a

related supply) to which that contract relates; or

(b) a breach of the linked credit contract, or of a contract for a

related supply; or

(c) the failure of consideration in relation to the linked credit

contract, or to a contract for a related supply; or

(d) a failure to comply with a guarantee that applies, under

section 54, 55, 56, 57, 60, 61 or 62, in relation to a related

supply; or

(e) a breach of a warranty that is implied in the linked credit

contract by section 12ED of the Australian Securities and

Investments Commission Act 2001;

the linked credit provider who is a party to the contract, and the

supplier of a related supply, are jointly and severally liable to the

consumer for the amount of the loss or damage.

(2) A linked credit contract is a contract that a consumer enters into

with a linked credit provider of a person (the supplier) for the

provision of credit in relation to:

(a) the supply by way of sale, lease, hire or hire-purchase of

goods to the consumer by the linked credit provider where

the supplier supplies the goods, or causes the goods to be

supplied, to the linked credit provider; or

(b) the supply by the supplier of goods or services, or goods and

services, to the consumer.

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-5 Liability of suppliers and credit providers

Division 1 Linked credit contracts

Section 279

334 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

279 Action by consumer to recover amount of loss or damage

(1) If a linked credit provider, and a supplier of the goods or services,

are liable under section 278 to a consumer for an amount of loss or

damage, the consumer may recover the amount by action in a court

of competent jurisdiction.

(2) The consumer must bring the action against the linked credit

provider and the supplier jointly.

(3) Subsection (2) does not apply if:

(a) the supplier has been dissolved or the winding up of the

supplier has commenced; or

(b) both of the following apply:

(i) in the opinion of the court in which the action is taken,

it is not reasonably likely that a judgment obtained

against the supplier would be satisfied;

(ii) that court has, on the application of the consumer,

declared that that subsection does not apply in relation

to the proceedings.

280 Cases where a linked credit provider is not liable

(1) In joint liability proceedings, a linked credit provider is not liable

to a consumer under section 278 if the linked credit provider

establishes that:

(a) the credit provided by the credit provider to the consumer

was the result of an approach made to the credit provider by

the consumer; and

(b) the approach was not induced by the supplier of the goods or

services to which the linked credit contract relates.

(2) In joint liability proceedings, a linked credit provider is not liable

to a consumer under section 278 if the proceedings relate to the

supply by way of lease, hire or hire-purchase of goods to the

consumer by the linked credit provider, and the credit provider

establishes that:

(a) after due inquiry before becoming a linked credit provider of

the supplier of the goods, the credit provider was satisfied

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The Australian Consumer Law Schedule 2

Enforcement and remedies Chapter 5

Liability of suppliers and credit providers Part 5-5

Linked credit contracts Division 1

Section 280

Competition and Consumer Act 2010 335

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

that the reputation of the supplier in respect of the supplier’s

financial standing and business conduct was good; and

(b) after becoming a linked credit provider of the supplier, the

credit provider had not had cause to suspect that:

(i) the consumer might be entitled to recover an amount of

loss or damage suffered as a result of a

misrepresentation, breach, failure of consideration,

failure to comply with a guarantee, or breach of a

warranty, referred to in section 278(1); and

(ii) the supplier might be unable to meet the supplier’s

liabilities as and when they fall due.

(3) In joint liability proceedings, a linked credit provider is not liable

to a consumer under section 278 if the proceedings relate to a

contract of sale in relation to which a tied loan contract applies and

the linked credit provider establishes that:

(a) after due inquiry before becoming a linked credit provider of

the supplier of goods to which the contract relates, the credit

provider was satisfied that the reputation of the supplier in

respect of the supplier’s financial standing and business

conduct was good; and

(b) after becoming a linked credit provider of the supplier, but

before the tied loan contract was entered into, the linked

credit provider had not had cause to suspect that:

(i) the consumer might, if the tied loan contract was

entered into, be entitled to recover an amount of loss or

damage suffered as a result of a misrepresentation,

breach, failure of consideration, failure to comply with a

guarantee, or breach of a warranty, referred to in

section 278(1); and

(ii) the supplier might be unable to meet the supplier’s

liabilities as and when they fall due.

(4) In joint liability proceedings, a linked credit provider is not liable

to a consumer under section 278 if:

(a) the proceedings relate to a contract of sale in relation to

which a tied continuing credit contract entered into by the

linked credit provider applies; and

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-5 Liability of suppliers and credit providers

Division 1 Linked credit contracts

Section 281

336 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(b) the credit provider establishes the matter referred to in

subsection (5), having regard to:

(i) the nature and volume of business carried on by the

credit provider; and

(ii) such other matters as appear to be relevant in the

circumstances of the case.

(5) The matter for the purposes of subsection (4) is that the linked

credit provider, before first becoming aware of:

(a) the contract of sale referred to in paragraph (a) of that

subsection; or

(b) proposals for the making of such a contract;

had not had cause to suspect that a person entering into such a

contract with the supplier might be entitled to claim damages

against, or recover a sum of money from, the supplier for a

misrepresentation, breach, failure of consideration, failure to

comply with a guarantee, or a breach of a warranty, referred to in

section 278(1).

(6) This section has effect despite section 278(1).

281 Amount of liability of linked credit providers

The liability of a linked credit provider to a consumer under

section 278(1) in relation to a contract referred to in section 278(1)

is limited to an amount that does not exceed the sum of:

(a) the amount financed under the tied loan contract, tied

continuing credit contract, lease contract, contract of hire or

contract of hire-purchase; and

(b) the amount of interest (if any), or damages in the nature of

interest, allowed or awarded against the credit provider by

the court in which the action in relation to the liability is

taken; and

(c) the amount of costs (if any) awarded by that court against the

credit provider or supplier, or both.

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The Australian Consumer Law Schedule 2

Enforcement and remedies Chapter 5

Liability of suppliers and credit providers Part 5-5

Linked credit contracts Division 1

Section 282

Competition and Consumer Act 2010 337

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

282 Counter-claims and offsets

(1) If proceedings in relation to a linked credit contract are brought

against a consumer who is party to the contract by the linked credit

provider who is a party to the contract, the consumer is not entitled

to:

(a) make a counter-claim in relation to the credit provider’s

liability under section 278(1); or

(b) exercise a right conferred by subsection (3) of this section in

relation to that liability;

unless the consumer claims in the proceedings against the supplier

in respect of the liability, by third-party proceedings or otherwise.

(2) Subsection (1) does not apply if:

(a) the supplier has been dissolved or the winding up of the

supplier has commenced; or

(b) both of the following apply:

(i) in the opinion of the court in which the proceedings are

taken, it is not reasonably likely that a judgment

obtained against the supplier would be satisfied;

(ii) that court has, on the application of the consumer,

declared that that subsection does not apply in relation

to the proceedings.

(3) In any proceedings in relation to a linked credit contract in which

the linked credit provider who is a party to the contract claims

damages or an amount of money from a consumer, the consumer

may offset, in whole or in part, the consumer’s liability against any

liability of the credit provider under section 278(1).

283 Enforcement of judgments etc.

(1) If, in joint liability proceedings, judgment is given against a

supplier and a linked credit provider, the judgment must not be

enforced against the credit provider unless a written demand made

on the supplier for satisfaction of the judgment has remained

unsatisfied for at least 30 days.

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-5 Liability of suppliers and credit providers

Division 1 Linked credit contracts

Section 283

338 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(2) If the judgment can be enforced against the linked credit provider,

it may only be enforced to the extent of the lesser of the following

amounts:

(a) the amount calculated in accordance with section 281;

(b) so much of the judgment debt as has not been satisfied by the

supplier.

(3) If, in joint liability proceedings, a right conferred by section 282(3)

is established by a consumer against a linked credit provider, the

consumer must not receive the benefit of the right unless:

(a) judgment has been given against the supplier and credit

provider; and

(b) a written demand has been made on the supplier for

satisfaction of the judgment; and

(c) the demand has remained unsatisfied for at least 30 days.

(4) If the consumer can receive the benefit of a right conferred by

section 282(3), the consumer may only receive the benefit to the

extent of the lesser of the following amounts:

(a) the amount calculated in accordance with section 281;

(b) so much of the judgment debt as has not been satisfied by the

supplier.

(5) Subsections (1) and (3) do not apply if:

(a) the supplier has been dissolved or the winding up of the

supplier has commenced; or

(b) both of the following apply:

(i) in the opinion of the court in which the proceedings are

taken, it is not reasonably likely that a judgment

obtained against the supplier would be satisfied;

(ii) that court has, on the application of the consumer,

declared that those subsections do not apply in relation

to the proceedings.

(6) If a judgment given in joint liability proceedings is enforced

against a linked credit provider of a supplier, the credit provider is

subrogated to the extent of the enforced judgment to any rights that

the consumer would have had but for the judgment against the

supplier or any other person.

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The Australian Consumer Law Schedule 2

Enforcement and remedies Chapter 5

Liability of suppliers and credit providers Part 5-5

Linked credit contracts Division 1

Section 284

Competition and Consumer Act 2010 339

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

284 Award of interest to consumers

(1) If, in joint liability proceedings, judgment is given against the

following (the defendant) for an amount of loss or damage:

(a) a supplier and a linked credit provider;

(b) a linked credit provider;

the court must, on the application of the consumer who suffered the

loss or damage, award interest to the consumer against the

defendant upon the whole or a part of the amount, unless good

cause is shown to the contrary.

(2) The interest must be awarded from the time when the consumer

became entitled to recover the amount until the date on which the

judgment is given, at the greater of the following rates:

(a) if the amount payable by the consumer to the linked credit

provider for obtaining credit in connection with the goods or

services to which the proceedings relate may be calculated at

a percentage rate per annum—that rate or, if more than one

such rate may be calculated, the lower or lowest of those

rates;

(b) 8%, or such other rate as is prescribed by the regulations.

(3) In determining whether good cause is shown against the awarding

of interest under subsection (1), the court must take into account

any payment made into court by the supplier or the linked credit

provider.

(4) This section applies despite any other law.

285 Liability of suppliers to linked credit providers, and of linked

credit providers to suppliers

(1) If a linked credit provider and supplier are liable, under

section 278, to a consumer who is a party to a linked credit

contract:

(a) if the liability relates to a supply of goods or services to

which the linked credit contract relates—the supplier is liable

to the credit provider for the amount of loss suffered by the

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-5 Liability of suppliers and credit providers

Division 1 Linked credit contracts

Section 286

340 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

credit provider, unless the supplier and credit provider

otherwise agree; or

(b) if the liability relates to the linked credit contract—the credit

provider is liable to the supplier for the amount of loss

suffered by the supplier, unless the supplier and credit

provider otherwise agree.

(2) The amount for which the supplier is liable under subsection (1)(a)

of this section is an amount not exceeding the sum of the following

amounts:

(a) the maximum amount of the linked credit provider’s liability

under section 281;

(b) unless the court otherwise determines, the amount of costs (if

any) reasonably incurred by the linked credit provider in

defending the joint liability proceedings.

286 Joint liability proceedings and recovery under section 135 of the

National Credit Code

(1) If:

(a) a consumer is seeking, in joint liability proceedings, to

recover an amount under section 279 in relation to a contract

for the supply of goods or services; and

(b) the contract has been rescinded or discharged (whether under

this Schedule or any other law); and

(c) as a result of the contract being rescinded or discharged, the

consumer is entitled under section 135 of the National Credit

Code to terminate a linked credit contract; and

(d) the consumer terminates the linked credit contract under that

section;

the following amounts may be recovered in the joint liability

proceedings (to the extent that they have not been recovered under

section 135 of the National Credit Code):

(e) any amount that the consumer is entitled under section 135 of

the National Credit Code to recover from the credit provider

under the linked credit contract;

(f) any amount that the credit provider is entitled under

section 135 of the National Credit Code to recover from:

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The Australian Consumer Law Schedule 2

Enforcement and remedies Chapter 5

Liability of suppliers and credit providers Part 5-5

Linked credit contracts Division 1

Section 286

Competition and Consumer Act 2010 341

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(i) the consumer; or

(ii) if the supplier under the contract for the supply of goods

or services is a party to the joint liability proceedings—

the supplier.

(2) An amount that is recovered under subsection (1) ceases to be

recoverable under section 135 of the National Credit Code.

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Schedule 2 The Australian Consumer Law

Chapter 5 Enforcement and remedies

Part 5-5 Liability of suppliers and credit providers

Division 2 Non-linked credit contracts

Section 287

342 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Division 2—Non-linked credit contracts

287 Liability of suppliers and credit providers relating to non-linked

credit contracts

(1) If a consumer who is a party to a non-linked credit contract suffers

loss or damage as a result of a failure to comply with a guarantee

that applies, under section 54, 55, 56, 57, 60, 61 or 62, in relation

to a supply to which the contract relates, the credit provider who is

a party to the contract is not under any liability to the consumer for

the amount of the loss or damage.

(2) Subsection (1) does not prevent the consumer from recovering that

amount by action against the supplier of the goods or services to

which the contract relates.

(3) If a consumer who is a party to a non-linked credit contract suffers

loss or damage as a result of a breach of a warranty that is implied

in the contract by section 12ED of the Australian Securities and

Investments Commission Act 2001, the supplier of the goods or

services to which the contract relates is not under any liability to

the consumer for the amount of the loss or damage.

(4) Subsection (3) does not prevent the consumer from recovering that

amount by action against the credit provider who is a party to the

contract.

(5) A non-linked credit contract is a contract that a consumer enters

into with a credit provider for the provision of credit in relation to:

(a) the supply by way of sale, lease, hire or hire-purchase of

goods to the consumer where:

(i) a person (the supplier) supplies the goods, or the causes

the goods to be supplied, to the credit provider; and

(ii) the credit provider is not a linked credit provider of the

supplier; and

(iii) prior negotiations or arrangements in relation to the

acquisition of the goods were conducted or made with

the consumer by or on behalf of the supplier; and

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The Australian Consumer Law Schedule 2

Enforcement and remedies Chapter 5

Liability of suppliers and credit providers Part 5-5

Non-linked credit contracts Division 2

Section 287

Competition and Consumer Act 2010 343

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

(iv) the credit provider did not take physical possession of

the goods before they were delivered to the consumer;

or

(b) the supply of services to the consumer by a person in relation

to whom the credit provider is not a linked credit provider.

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Schedule 2 The Australian Consumer Law

Chapter 6 Application and transitional provisions

Part 1 Application and transitional provisions relating to the Consumer Credit

Legislation Amendment (Enhancements) Act 2012

Section 288

344 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Chapter 6—Application and transitional provisions

Part 1—Application and transitional provisions relating to

the Consumer Credit Legislation Amendment

(Enhancements) Act 2012

288 Application of amendments relating to lay-by agreements

The amendments made by items 1 to 8 and 10 to 15 of Schedule 7

to the Consumer Credit Legislation Amendment (Enhancements)

Act 2012 apply to lay-by agreements entered into on or after the

commencement of those items.

289 Application of amendment relating to repairs

The amendment made by item 9 of Schedule 7 to the Consumer

Credit Legislation Amendment (Enhancements) Act 2012 applies to

notices to be given in relation to the repair of goods accepted on or

after the commencement of that item.

290 Saving of regulations relating to repairs

Despite the amendment made to subsection 103(1) of Schedule 2 to

the Competition and Consumer Act 2010 by item 9 of Schedule 7

to the Consumer Credit Legislation Amendment (Enhancements)

Act 2012, regulations that:

(a) were made for the purposes of that subsection; and

(b) were in force immediately before the commencement of that

item;

continue in force (and may be dealt with) as if they were made for

the purposes of that subsection as amended by that item.

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The Australian Consumer Law Schedule 2

Application provision relating to the Treasury Legislation Amendment (Small Business

and Unfair Contract Terms) Act 2015 Part 1A

Section 290A

Competition and Consumer Act 2010 345

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Part 1A—Application provision relating to the

Treasury Legislation Amendment (Small

Business and Unfair Contract Terms) Act

2015

290A Application

(1) The amendments made by Schedule 1 to the Treasury Legislation

Amendment (Small Business and Unfair Contract Terms) Act 2015

apply in relation to a contract entered into on or after the

commencement of that Schedule.

(2) The amendments do not apply to a contract entered into before the

commencement of that Schedule. However:

(a) if the contract is renewed on or after that commencement—

the amendments apply to the contract as renewed, on and

from the day (the renewal day) on which the renewal takes

effect, in relation to conduct that occurs on or after the

renewal day; or

(b) if a term of the contract is varied on or after that

commencement and paragraph (a) has not already applied in

relation to the contract—the amendments apply to the term as

varied, on and from the day (the variation day) on which the

variation takes effect, in relation to conduct that occurs on

and after the variation day.

(3) If paragraph (2)(b) of this section applies to a term of a contract,

subsection 23(2) and section 27 apply to the contract.

(4) Despite paragraphs (2)(a) and (b) and subsection (3) of this section,

the amendments do not apply to a contract, or a term of a contract,

to the extent that the operation of the amendments would result in

an acquisition of property (within the meaning of

paragraph 51(xxxi) of the Constitution) from a person otherwise

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Schedule 2 The Australian Consumer Law

Part 1A Application provision relating to the Treasury Legislation Amendment (Small

Business and Unfair Contract Terms) Act 2015

Section 290A

346 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

than on just terms (within the meaning of that paragraph of the

Constitution).

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Endnotes

Endnote 1—About the endnotes

Competition and Consumer Act 2010 347

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that

has amended (or will amend) the compiled law. The information includes

commencement details for amending laws and details of any application, saving

or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at

the provision (generally section or equivalent) level. It also includes information

about any provision of the compiled law that has been repealed in accordance

with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make

editorial and presentational changes to a compiled law in preparing a

compilation of the law for registration. The changes must not change the effect

of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief

outline of the changes in general terms. Full details of any changes can be

obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe

the amendment to be made. If, despite the misdescription, the amendment can

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Endnotes

Endnote 1—About the endnotes

348 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

be given effect as intended, the amendment is incorporated into the compiled

law and the abbreviation “(md)” added to the details of the amendment included

in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the

abbreviation “(md not incorp)” is added to the details of the amendment

included in the amendment history.

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Endnotes

Endnote 2—Abbreviation key

Competition and Consumer Act 2010 349

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Endnote 2—Abbreviation key

ad = added or inserted o = order(s)

am = amended Ord = Ordinance

amdt = amendment orig = original

c = clause(s) par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x /sub-subparagraph(s)

Ch = Chapter(s) pres = present

def = definition(s) prev = previous

Dict = Dictionary (prev…) = previously

disallowed = disallowed by Parliament Pt = Part(s)

Div = Division(s) r = regulation(s)/rule(s)

ed = editorial change reloc = relocated

exp = expires/expired or ceases/ceased to have renum = renumbered

effect rep = repealed

F = Federal Register of Legislation rs = repealed and substituted

gaz = gazette s = section(s)/subsection(s)

LA = Legislation Act 2003 Sch = Schedule(s)

LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given SLI = Select Legislative Instrument

effect SR = Statutory Rules

(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)

cannot be given effect SubPt = Subpart(s)

mod = modified/modification underlining = whole or part not

No. = Number(s) commenced or to be commenced

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Endnotes

Endnote 3—Legislation history

350 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Endnote 3—Legislation history

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Trade Practices Act 1974 51, 1974 24 Aug

1974

s 1 and 2: 24 Aug 1974

(s 2(1))

s 55: 27 Sept 1975 (s 2(2)

and gaz 1975, No. S178)

Remainder: 1 Oct 1974

(s 2(3) and gaz 1974,

No. 75B)

Postal and

Telecommunications

Commissions

(Transitional Provisions)

Act 1975

56, 1975 12 June

1975

Sch 2 and 3: 1 July 1975

(s 2(1) and gaz 1975, No

S122)

Trade Practices Act 1975 63, 1975 19 June

1975

19 June 1975 (s 2) —

Trade Practices

Amendment Act 1976

88, 1976 31 Aug

1976

s 3(a), 8 and 17: 1 Oct

1974 (s 2)

Remainder: 31 Aug 1976

(s 2)

s 2 and 6(2)

Federal Court of

Australia (Consequential

Provisions) Act 1976

157, 1976 9 Dec 1976 Sch: 1 Feb 1977 (s 2 and

gaz 1977, No S3)

Trade Practices

Amendment Act 1977

81, 1977 16 June

1977

s 3–80, 82: 1 July 1977

(s 2)

s 8(2)–(6), 22(2),

40(2), 41(2),

42(2), 47(2),

52(2), 54(2)–(7),

58(2), 62(2),

63(2) and 82

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Endnotes

Endnote 3—Legislation history

Competition and Consumer Act 2010 351

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Remuneration and

Allowances Amendment

Act 1977

111, 1977 28 Oct

1977

s 18, 19(2): 28 Oct 1977

(s 2(1))

s 19(1): 1 June 1977

(s 2(2))

s 19(2)

Trade Practices

Amendment Act (No. 2)

1977

151, 1977 10 Nov

1977

10 Nov 1977 (s 2) s 6

Trade Practices

Amendment Act 1978

206, 1978 6 Dec 1978 6 Dec 1978 (s 2) s 8(2) and 20

Trade Practices

Amendment Act (No. 2)

1978

207, 1978 6 Dec 1978 6 Dec 1978 (s 2) —

Trade Practices

(Boycotts) Amendment

Act 1980

73, 1980 29 May

1980

29 May 1980 (s 2) —

Statute Law Revision

Act 1981

61, 1981 12 June

1981

Sch 1: 12 June 1981

(s 2(1))

Statute Law

(Miscellaneous

Amendments) Act 1981

176, 1981 2 Dec 1981 s 68: 30 Dec 1981

(s 2(12))

Statute Law

(Miscellaneous

Amendments) Act

(No. 2) 1982

80, 1982 22 Sept

1982

s 279: 20 Oct 1982

(s 2(16))

s 280(2) and (3): 22 Sept

1982 (s 2(1))

s 280(2) and (3)

Statute Law

(Miscellaneous

Provisions) Act (No. 1)

1983

39, 1983 20 June

1983

s 7(1), (3), (4) and Sch 1:

18 July 1983 (s 2(1))

s 7(1), (3) and (4)

Public Service Reform

Act 1984

63, 1984 25 June

1984

s 151(9) and Sch 4: 1 July

1984 (s 2(4) and gaz

1984, No S245)

s 151(9)

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Endnotes

Endnote 3—Legislation history

352 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Remuneration and

Allowances Amendment

Act 1984

73, 1984 25 June

1984

s 22: 25 June 1984 (s 2) —

Statute Law

(Miscellaneous

Provisions) Act (No. 2)

1984

165, 1984 25 Oct

1984

s 2(32): 22 Nov 1984

(s 2(1))

Sch 1: 25 Oct 1984

(s 2(28))

s 2(32)

as amended by

Trade Practices

Revision Act 1986

17, 1986 13 May

1986

s 75 and 76: 25 Oct 1984

(s 2(2))

Statute Law

(Miscellaneous

Provisions) Act (No. 1)

1985

65, 1985 5 June 1985 Sch 1: 3 July 1985

(s 2(1))

Trade Practices (Transfer

of Market Dominance)

Amendment Act 1986

8, 1986 1 May 1986 1 June 1986 (s 2 and gaz

1986, No S251)

Trade Practices Revision

Act 1986

17, 1986 13 May

1986

s 4–30, 32–34, 36–48,

49(2), 50, 51(2), 52–63,

64(2), 65–73: 1 June 1986

(s 2(4) and gaz 1986, No

S251)

s 31 and 35: 1 July 1986

(s 2(3))

s 49(1), 51(1) and 64(1):

13 May 1986 (s 2(1))

s 27(2), 31(2),

33(2), 34(2),

47(2), 50(2),

59(3) and 65(2)

Statute Law

(Miscellaneous

Provisions) Act (No. 2)

1986

168, 1986 18 Dec

1986

s 5(1) and Sch 1: 18 Dec

1986 (s 2(1))

s 5(1)

Jurisdiction of Courts

(Miscellaneous

Amendments) Act 1987

23, 1987 26 May

1987

s 4: 26 May 1987 (s 2(1))

Sch: 1 Sept 1987 (s 2(2)

and gaz 1987, No S217)

s 4

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Endnotes

Endnote 3—Legislation history

Competition and Consumer Act 2010 353

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Statute Law

(Miscellaneous

Provisions) Act 1987

141, 1987 18 Dec

1987

s 5(1): 18 Dec 1987

(s 2(1))

Sch 1: 1 Apr 1989

(s 2(32) and gaz 1989, No

S88)

s 5(1)

Family Court of

Australia (Additional

Jurisdiction and Exercise

of Powers) Act 1988

8, 1988 5 Apr 1988 s 41 and 42: 1 July 1988

(s 2(3) and gaz 1988, No

S191)

as amended by

Law and Justice

Legislation

Amendment Act 1988

120, 1988 14 Dec

1988

s 35: 5 Apr 1988 (s 2(6)) —

Trade Practices

Amendment Act 1988

20, 1988 11 May

1988

s 4: 1 July 1988 (s 2(2))

Remainder: 11 May 1988

(s 2(1))

Industrial Relations

(Consequential

Provisions) Act 1988

87, 1988 8 Nov 1988 Sch 2: 1 Mar 1989

(s 2(2))

as amended by

Industrial Relations

Legislation

Amendment Act

(No. 2) 1990

108, 1990 18 Dec

1990

s 24(d): 1 Mar 1989

(s 2(2))

Circuit Layouts Act

1989

28, 1989 22 May

1989

Sch: 1 Oct 1990 (s 2(2)

and gaz 1990, No S261)

Trade Practices

(International Liner

Cargo Shipping)

Amendment Act 1989

34, 1989 30 May

1989

1 Aug 1989 (s 2(1) and

gaz 1989, No S260)

s 6

Law and Justice

Legislation Amendment

Act 1989

11, 1990 17 Jan 1990 s 58 and 59: 14 Feb 1990

(s 2(1))

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

354 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Trade Practices (Misuse

of Trans-Tasman Market

Power) Act 1990

70, 1990 16 June

1990

s 4–15: 1 July 1990

(s 2(1) and gaz 1990, No

S172)

Trade Practices

Amendment Act 1991

49, 1991 24 Apr

1991

21 Dec 1990 (s 2) —

Industrial Relations

Legislation Amendment

Act 1991

122, 1991 27 June

1991

Sch: 10 Dec 1991 (s 2(3)

and gaz 1991, No S332)

s 31(2)

Law and Justice

Legislation Amendment

Act 1991

136, 1991 12 Sept

1991

s 23–25: 10 Oct 1991

(s 2(1))

s 25

Transport and

Communications

Legislation Amendment

Act 1991

173, 1991 25 Nov

1991

s 49–56: 25 Nov 1991

(s 2(1))

Special Broadcasting

Service Act 1991

180, 1991 25 Nov

1991

Sch: 23 Dec 1991 (s 2(1)) —

Law and Justice

Legislation Amendment

Act 1992

22, 1992 13 Apr

1992

Sch: 13 Apr 1992 (s 2(1)) —

Territories Law Reform

Act 1992

104, 1992 30 June

1992

Sch 4: 1 July 1992

(s 2(3))

Broadcasting Services

(Transitional Provisions

and Consequential

Amendments) Act 1992

105, 1992 9 July 1992 Sch 2: 5 Oct 1992 (s 2) —

Trade Practices

Amendment Act 1992

106, 1992 9 July 1992 9 July 1992 (s 2) s 3

Trade Practices

Legislation Amendment

Act 1992

222, 1992 24 Dec

1992

s 2–18, 21 and Sch 1:

21 Jan 1993 (Date of

commencement)

s 10(2), 16(2),

18(2) and 21

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

Competition and Consumer Act 2010 355

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Industrial Relations

Reform Act 1993

98, 1993 22 Dec

1993

s 43–47, 54 and Sch 3:

30 Mar 1994 (s 2(6) and

gaz 1994, No S104)

s 54

Insurance Laws

Amendment Act (No. 2)

1994

49, 1994 7 Apr 1994 Sch (item 19): 7 Apr 1994

(s 2(1))

Law and Justice

Legislation Amendment

Act (No. 2) 1994

141, 1994 28 Nov

1994

Sch 1 (items 21–26):

28 Nov 1994 (s 2(1))

Competition Policy

Reform Act 1995

88, 1995 20 July

1995

s 3–30, 32, 88–90, 92 and

Sch 1: 17 Aug 1995

(s 2(1))

s 35–76 and 78: 6 Nov

1995 (s 2(2) and gaz

1995, No S423)

s 80–87 and 91: 20 July

1996 (s 2(4), (5))

s 33, 34, 78, 88–

90 and 92

Statute Law Revision

Act 1996

43, 1996 25 Oct

1996

Sch 4 (items 1, 147):

25 Oct 1996 (s 2(1))

Workplace Relations and

Other Legislation

Amendment Act 1996

60, 1996 25 Nov

1996

Sch 17 (items 1–11, 14–

24, 29–37): 17 Jan 1997

(s 2(2) and gaz 1997, No

S18)

Sch 17 (items 29–

37)

as amended by

Workplace Relations

and Other Legislation

Amendment Act

(No. 2) 1996

77, 1996 19 Dec

1996

Sch 3 (items 1, 2):

25 Nov 1996 (s 2(4))

Trade Practices

Amendment (Industry

Access Codes) Act 1997

28, 1997 10 Apr

1997

10 Apr 1997 (s 2) —

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

356 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Trade Practices

Amendment

(Telecommunications)

Act 1997

58, 1997 30 Apr

1997

30 Apr 1997 (s 2) Sch 1 (item 15)

Audit (Transitional and

Miscellaneous)

Amendment Act 1997

152, 1997 24 Oct

1997

Sch 2 (item 1260): 1 Jan

1998 (s 2(2))

Telecommunications

Legislation Amendment

Act 1997

200, 1997 16 Dec

1997

Sch 2 (items 30–34):

30 Apr 1997 (s 2(4))

Trade Practices

Amendment (Fair

Trading) Act 1998

36, 1998 22 Apr

1998

Sch 2: 1 July 1998

(s 2(2)(b)(i) and gaz

1998, No S301)

Remainder: 22 Apr 1998

(s 2(1))

Financial Sector Reform

(Consequential

Amendments) Act 1998

48, 1998 29 June

1998

Sch 1 (item 194) and

Sch 2 (items 24–29):

1 July 1998 (s 2(2))

Gas Pipelines Access

(Commonwealth) Act

1998

101, 1998 30 July

1998

Sch 1 (items 11–26):

30 July 1998 (s 2(1))

Sch 1 (items 27–56):

30 July 1998 (s 2(3))

Sch 1 (items 36,

47, 50)

Trade Practices

Amendment (Country of

Origin Representations)

Act 1998

106, 1998 30 July

1998

Sch 1: 13 Aug 1998

(s 2(2) and gaz 1998, No

S398)

Remainder: 30 July 1998

(s 2(1))

Telecommunications

Legislation Amendment

Act 1999

52, 1999 5 July 1999 Sch 1 (items 6–77): 5 July

1999 (s 2(1))

Sch 3 (items 69–76, 81):

2 Aug 1999 (s 2(4))

Sch 4 (items 17–20, 28):

1 July 1999 (s 2(6))

Sch 1 (items 72–

77), Sch 3

(item 81) and Sch

4 (item 28)

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

Competition and Consumer Act 2010 357

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

A New Tax System

(Trade Practices

Amendment) Act 1999

61, 1999 8 July 1999 9 July 1999 (s 2) —

Public Employment

(Consequential and

Transitional)

Amendment Act 1999

146, 1999 11 Nov

1999

Sch 1 (items 944–955):

5 Dec 1999 (s 2(1), (2))

A New Tax System

(Indirect Tax and

Consequential

Amendments) Act 1999

176, 1999 22 Dec

1999

Sch 4: 22 Dec 1999

(s 2(1))

Federal Magistrates

(Consequential

Amendments) Act 1999

194, 1999 23 Dec

1999

Sch 25: 23 Dec 1999

(s 2(1))

Jurisdiction of Courts

Legislation Amendment

Act 2000

57, 2000 30 May

2000

Sch 1 (items 77–90):

30 May 2000 (s 2(1))

A New Tax System

(Trade Practices

Amendment) Act 2000

69, 2000 22 June

2000

Sch 2 (item 1): 6 Nov

1995 (s 2(2))

Sch 2 (item 2): 10 Apr

1997 (s 2(3))

Remainder: 22 June 2000

(s 2(1))

Trade Practices

Amendment

(International Liner

Cargo Shipping) Act

2000

123, 2000 5 Oct 2000 Sch 1 (items 154–170,

180): 2 Mar 2001

(s 2(2)(a))

Remainder: 2 Nov 2000

(s 2(1))

Sch 1 (items 171–

180)

Jurisdiction of Courts

(Miscellaneous

Amendments) Act 2000

161, 2000 21 Dec

2000

Sch 1 (items 4, 5): 21 Dec

2000 (s 2)

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

358 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Treasury Legislation

Amendment

(Application of Criminal

Code) Act (No. 1) 2001

31, 2001 28 Apr

2001

Sch 1 (items 240–290):

15 Dec 2001 (s 2(4))

as amended by

Statute Law Revision

Act 2002

63, 2002 3 July 2002 Sch 2 (item 35): 15 Dec

2001 (s 2(1) item 64)

Communications and the

Arts Legislation

Amendment Act 2001

46, 2001 5 June 2001 s 6 and Sch 1 (items 9–

18): 5 June 2001 (s 2)

s 6

Corporations (Repeals,

Consequentials and

Transitionals) Act 2001

55, 2001 28 June

2001

s 4–14 and Sch 3

(items 550–557): 15 July

2001 (s 2(3))

s 4–14

Trade Practices

Amendment Act (No. 1)

2001

63, 2001 28 June

2001

Sch 2 (items 1–3, 6–8):

15 Dec 2001 (s 2(3))

Remainder: 26 July 2001

(s 2(1), (2)(a))

Sch 1 (items 5, 8,

10, 13, 15, 17, 19,

21, 23, 25, 27, 29,

32, 34, 36, 38)

and Sch 2

(items 3, 5, 8)

as amended by

Statute Law Revision

Act 2002

63, 2002 3 July 2002 Sch 2 (item 32): 15 Dec

2001 (s 2(1) item 61)

Treasury Legislation

Amendment

(Application of Criminal

Code) Act (No. 3) 2001

117, 2001 18 Sept

2001

s 4 and Sch 3 (items 16–

56): 15 Dec 2001 (s 2(1),

(4))

s 4

Financial Services

Reform (Consequential

Provisions) Act 2001

123, 2001 27 Sept

2001

Sch 1 (items 364–364D,

365–365B): 11 Mar 2002

(s 2(1), (6), (15))

Trade Practices

Amendment

(Telecommunications)

Act 2001

124, 2001 27 Sept

2001

27 Sept 2001 (s 2) Sch 1 (items 23,

24)

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

Competition and Consumer Act 2010 359

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Treasury Legislation

Amendment

(Application of Criminal

Code) Act (No. 2) 2001

146, 2001 1 Oct 2001 s 4 and Sch 2: 15 Dec

2001 (s 2(1), (2))

s 4

Statute Law Revision

Act 2002

63, 2002 3 July 2002 Sch 1 (items 34, 35, 38):

1 July 1999 s 2(1)

items 27, 29)

Sch 1 (items 36, 37):

3 July 2002 (s 2(1)

item 28)

Trade Practices

Amendment Act (No. 1)

2002

128, 2002 11 Dec

2002

11 Dec 2002 (s 2) Sch 1 (items 4, 7,

9)

Telecommunications

Competition Act 2002

140, 2002 19 Dec

2002

Sch 2: 19 Dec 2002 (s 2) Sch 2 (items 9,

15, 19, 21, 69,

110, 111, 113,

115)

Trade Practices

Amendment (Liability

for Recreational

Services) Act 2002

146, 2002 19 Dec

2002

19 Dec 2002 (s 2) —

Maritime Legislation

Amendment Act 2003

7, 2003 19 Mar

2003

Sch 2: 19 Mar 2003

(s 2(1) item 4)

Industry, Tourism and

Resources Legislation

Amendment Act 2003

21, 2003 11 Apr

2003

Sch 1 (items 25–29):

12 Apr 2003 (s 2(1)

item 7)

Sch 1 (item 29)

Trade Practices

Legislation Amendment

Act 2003

134, 2003 17 Dec

2003

Sch 1 and Sch 2

(items 32–44–53, 56): 1

Mar 2004 (s 2(1) item 2

and gaz 2004, No GN8)

Sch 2 (items 44–

53, 56)

Postal Services

Legislation Amendment

Act 2004

69, 2004 22 June

2004

Sch 1 (item 25): 22 June

2004 (s 2)

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

360 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Corporate Law

Economic Reform

Program (Audit Reform

and Corporate

Disclosure) Act 2004

103, 2004 30 June

2004

Sch 3 (items 5, 6): 26 July

2004 (s 2(1) item 3 and

gaz 2004, No GN28)

Trade Practices

Amendment (Australian

Energy Market) Act

2004

108, 2004 30 June

2004

Sch 1: 23 May 2005

(s 2(1) item 2)

Trade Practices

Amendment (Personal

Injuries and Death) Act

(No. 2) 2004

113, 2004 13 July

2004

13 July 2004 (s 2) Sch 1 (item 11)

Treasury Legislation

Amendment

(Professional Standards)

Act 2004

118, 2004 13 July

2004

Sch 1 (items 8A, 9–11):

13 July 2004 (s 2)

Australian

Communications and

Media Authority

(Consequential and

Transitional Provisions)

Act 2005

45, 2005 1 Apr 2005 Sch 1 (items 168–171),

Sch 2 and 4: 1 July 2005

(s 2(1) items 2, 3, 10)

Sch 4

Telecommunications

Legislation Amendment

(Competition and

Consumer Issues) Act

2005

119, 2005 23 Sept

2005

Sch 4–6, Sch 7 (items 1–

3, 5–12, 14–19, 21–28),

Sch 9 and 12: 24 Sept

2005 (s 2(1) items 4, 5, 7,

9, 11, 12, 14)

Sch 7 (items 4, 13, 20):

23 Mar 2006 (s 2(1)

items 6, 8, 10)

Sch 11 (items 8, 9): 1 Jan

2006 (s 2(1) item 13)

Sch 4 (item 2)

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Endnotes

Endnote 3—Legislation history

Competition and Consumer Act 2010 361

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Trade Practices

Amendment (Personal

Injuries and Death) Act

2006

11, 2006 23 Mar

2006

Sch 1: 20 Apr 2006

(s 2(1) item 2)

Sch 1 (item 8)

Offshore Petroleum

(Repeals and

Consequential

Amendments) Act 2006

17, 2006 29 Mar

2006

Sch 2 (items 113–116):

1 July 2008 (s 2(1)

item 2)

Jurisdiction of the

Federal Magistrates

Court Legislation

Amendment Act 2006

23, 2006 6 Apr 2006 Sch 1: 4 May 2006 (s 2(1)

item 2)

Sch 1 (items 2, 5)

Energy Legislation

Amendment Act 2006

60, 2006 22 June

2006

Sch 1 (items 2–13) and

Sch 2 (item 14): 22 June

2006 (s 2(1) items 2, 6)

Sch 2 (items 12, 13, 15,

16): 23 May 2005 (s 2(1)

items 5, 7)

Trade Practices

Amendment (National

Access Regime) Act

2006

92, 2006 18 Aug

2006

Sch 1: 1 Oct 2006 (s 2(1)

item 2)

Sch 1 (items 114–

136)

Tax Laws Amendment

(Repeal of Inoperative

Provisions) Act 2006

101, 2006 14 Sept

2006

Sch 5 (items 164, 165):

14 Sept 2006 (s 2(1)

item 4)

Maritime Transport and

Offshore Facilities

Security Amendment

(Security Plans and

Other Measures) Act

2006

109, 2006 27 Sept

2006

Sch 2 (items 97–103):

27 Sept 2006 (s 2(1)

item 5)

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

362 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Trade Practices

Legislation Amendment

Act (No. 1) 2006

131, 2006 6 Nov 2006 Sch 1–8 and Sch 9

(items 1–15, 20–24):

1 Jan 2007 (s 2(1)

items 2, 3)

Sch 10: 7 Nov 2006

(s 2(1) item 54)

Sch 11: 6 Nov 2006

(s 2(1) item 5)

Sch 1 (items 52,

53), Sch 2

(items 13, 14),

Sch 3 (items 28,

29), Sch4

(item 2), Sch 5

(item 4), Sch 6

(item 20), Sch 7

(items 18, 33, 35),

Sch 8 (items 28,

29) and Sch 9

(items 15, 21, 24)

Australian Energy

Market Amendment

(Gas Legislation) Act

2007

45, 2007 10 Apr

2007

Sch 1 (items 58–81):

1 July 2008 (s 2(1)

item 2)

Broadcasting Legislation

Amendment (Digital

Radio) Act 2007

68, 2007 28 May

2007

Sch 1 (items 178–182):

29 May 2007 (s 2(1)

item 2)

Sch 2 (item 3): 19 July

2007 (s 2(1) item 3)

Corporations (NZ Closer

Economic Relations) and

Other Legislation

Amendment Act 2007

85, 2007 21 June

2007

Sch 3 (items 3–9): 19 July

2007 (s 2(1) item 7)

Water (Consequential

Amendments) Act 2007

138, 2007 3 Sept 2007 Sch 1 (items 6–8): 3 Mar

2008 (s 2(1) item 2)

Trade Practices

Legislation Amendment

Act (No. 1) 2007

159, 2007 24 Sept

2007

Sch 1, 2 and Sch 3

(items 5–9): 25 Sept 2007

(s 2)

Sch 1 (item 4),

Sch 2 (item 12)

and Sch 3 (item 9)

Trade Practices

Amendment (Access

Declarations) Act 2008

7, 2008 20 Mar

2008

20 Mar 2008 (s 2) —

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

Competition and Consumer Act 2010 363

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Australian Energy

Market Amendment

(Minor Amendments)

Act 2008

60, 2008 30 June

2008

Sch 4: 1 July 2008 (s 2(1)

item 4)

Trade Practices

Legislation Amendment

Act 2008

116, 2008 21 Nov

2008

Sch 1, 2 and Sch 3

(items 7–15): 22 Nov

2008 (s 2)

Sch 3 (items 13,

15)

Offshore Petroleum

Amendment

(Greenhouse Gas

Storage) Act 2008

117, 2008 21 Nov

2008

Sch 3 (item 60): 22 Nov

2008 (s 2(1) item 4)

Trade Practices

Amendment (Clarity in

Pricing) Act 2008

126, 2008 25 Nov

2008

Sch 1: 25 May 2009

(s 2(1) item 2)

Sch 2: 26 Nov 2008

(s 2(1) item 3)

Sch 1 (item 5)

Water Amendment Act

2008

139, 2008 8 Dec 2008 Sch 2 (items 3–5): 15 Dec

2008 (s 2(1) item 3)

Australian Energy

Market Amendment

(AEMO and Other

Measures) Act 2009

17, 2009 26 Mar

2009

Sch 1 (items 12, 14):

27 Mar 2009 (s 2(1)

items 4, 6)

Sch 1 (item 13): 1 July

2009 (s 2(1) item 5)

Fair Work (State

Referral and

Consequential and Other

Amendments) Act 2009

54, 2009 25 June

2009

Sch 18 (items 24–31):

1 July 2009 (s 2(1)

item 41)

Trade Practices

Amendment (Cartel

Conduct and Other

Measures) Act 2009

59, 2009 26 June

2009

Sch 1 (items 3–128) and

Sch 2 (items 1–49, 52,

53): 24 July 2009 (s 2(1)

items 2, 3, 5)

Sch 2 (items 50, 51):

27 June 2009 (s 2(1)

item 4)

Sch 1 (item 118)

and Sch 2

(items 52, 53)

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

364 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Statute Stocktake

(Regulatory and Other

Laws) Act 2009

111, 2009 16 Nov

2009

Sch 1 (items 26–50, 107–

109): 17 Nov 2009 (s 2)

Sch 1 (items 49,

50)

Crimes Legislation

Amendment (Serious

and Organised Crime)

Act (No. 2) 2010

4, 2010 19 Feb

2010

Sch 11 (item 23): 20 Feb

2010 (s 2(1) item 13)

Statute Law Revision

Act 2010

8, 2010 1 Mar 2010 Sch 5 (items 125, 126,

137): 1 Mar 2010 (s 2(1)

items 37, 38)

Trade Practices

Amendment (Australian

Consumer Law) Act

(No. 1) 2010

44, 2010 14 Apr

2010

Sch 1, Sch 2 (items 27,

29, 31, 32, 41–43, 46–50,

56–70, 72–74) and Sch 4

(items 4, 5): 1 July 2010

(s 2(1) items 2, 4, 6, 7,

14)

Sch 2 (items 1–26) and

Sch 4 (item 3): 15 Apr

2010 (s 2(1) items 3, 13)

Sch 2 (item 40): never

commenced (s 2(1)

item 5)

Sch 1 (item 2)

Trade Practices

Amendment

(Infrastructure Access)

Act 2010

102, 2010 13 July

2010

Sch 1–5: 14 July 2010

(s 2(1) items 2–5)

Sch 1 (item 72),

Sch 3 (item 11),

Sch 4 (item 5) and

Sch 5 (items 20–

25)

Trade Practices

Amendment (Australian

Consumer Law) Act

(No. 2) 2010

103, 2010 13 July

2010

Sch 1, 2, 4, 5 and 7: 1 Jan

2011 (s 2(1) items 2, 8)

Sch 4 (item 5) and

Sch 7

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Endnotes

Endnote 3—Legislation history

Competition and Consumer Act 2010 365

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

as amended by

Competition and

Consumer Legislation

Amendment Act 2011

184, 2011 6 Dec 2011 Sch 3: 1 Jan 2011 (s 2(1)

(item 4)

Statute Law Revision

Act 2012

136, 2012 22 Sept

2012

Sch 2 (items 39, 40):

12 Apr 2012 (s 2(1)

item 30)

Sch 2 (item 43): 1 Jan

2011 (s 2(1) item 33)

Telecommunications

Legislation Amendment

(Competition and

Consumer Safeguards)

Act 2010

140, 2010 15 Dec

2010

Sch 1 (items 32–40, 114–

195, 195A, 196–198,

202–213): 1 Jan 2011

(s 2(1) items 2, 5)

Sch 1 (items 57–59):

awaiting commencement

(s 2(1) item 3)

Sch 1 (items 66, 67):

6 Mar 2012 (s 2(1)

item 4)

Sch 1 (items 40,

198, 202–210,

213)

Financial Framework

Legislation Amendment

Act 2010

148, 2010 17 Dec

2010

Sch 6: 18 Dec 2010

(s 2(1) item 6)

Sch 6 (items 2, 3)

Statute Law Revision

Act 2011

5, 2011 22 Mar

2011

Sch 7 (items 38, 39):

19 Apr 2011 (s 2(1)

item 18)

Telecommunications

Legislation Amendment

(National Broadband

Network Measures—

Access Arrangements)

Act 2011

23, 2011 12 Apr

2011

Sch 1 (items 25–83):

13 Apr 2011 (s 2(1)

item 2)

Sch 1 (items 89–114):

12 Apr 2012 (s 2(1)

item 4)

Sch 1 (item 83)

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Endnotes

Endnote 3—Legislation history

366 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

as amended by

Statute Law Revision

Act 2012

136, 2012 22 Sept

2012

Sch 2 (items 39, 40):

12 Apr 2012 (s 2(1)

item 30)

Acts Interpretation

Amendment Act 2011

46, 2011 27 June

2011

Sch 2 (items 409–441)

and Sch 3 (items 10, 11):

27 Dec 2011 (s 2(1)

items 3, 12)

Sch 3 (items 10,

11)

Carbon Credits

(Consequential

Amendments) Act 2011

102, 2011 15 Sept

2011

Sch 1 (item 8): 8 Dec

2011 (s 2(1) item 2)

Australian Energy

Market Amendment

(National Energy Retail

Law) Act 2011

119, 2011 14 Oct

2011

Sch 2 (items 2–25): 1 July

2012 (s 2(1) items 3–5)

Sch 2 (item 13)

Clean Energy

(Consequential

Amendments) Act 2011

132, 2011 18 Nov

2011

Sch 1 (items 100–102):

2 Apr 2012 (s 2(1) item 2)

Sch 1 (items 258B–

258D): 1 July 2012

(s 2(1) item 3)

Competition and

Consumer Legislation

Amendment Act 2011

184, 2011 6 Dec 2011 Sch 1: 6 Feb 2012 (s 2(1)

item 2)

Sch 2 (items 2–4): 1 Jan

2012 (s 2(1) item 3)

Competition and

Consumer Amendment

Act (No. 1) 2011

185, 2011 6 Dec 2011 Sch 1: 6 June 2012 (s 2(1)

item 2)

Telecommunications

Legislation Amendment

(Universal Service

Reform) Act 2012

44, 2012 16 Apr

2012

Sch 1 (item 4): 1 July

2012 (s 2(1) item 2)

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Endnotes

Endnote 3—Legislation history

Competition and Consumer Act 2010 367

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Consumer Credit

Legislation Amendment

(Enhancements) Act

2012

130, 2012 17 Sept

2012

Sch 7: 17 Sept 2013

(s 2(1) item 5)

Statute Law Revision

Act 2012

136, 2012 22 Sept

2012

Sch 1 (items 31–36):

22 Sept 2012 (s 2(1)

item 2)

Australian Charities and

Not-for-profits

Commission

(Consequential and

Transitional) Act 2012

169, 2012 3 Dec 2012 Sch 2 (items 160–168):

3 Dec 2012 (s 2(1)

item 7)

Sch 4 (item 14): never

commenced (s 2(1)

item 14)

Sch 2 (item 168)

Federal Circuit Court of

Australia (Consequential

Amendments) Act 2013

13, 2013 14 Mar

2013

Sch 1 (items 87–92) and

Sch 2 (item 1): 12 Apr

2013 (s 2(1) items 2, 3)

Statute Law Revision

Act 2013

103, 2013 29 June

2013

Sch 1 (item 32) and Sch 3

(items 69–74, 343):

29 June 2013 (s 2(1)

items 2, 16)

Sch 3 (item 343)

Competition and

Consumer Amendment

Act 2013

104, 2013 29 June

2013

30 June 2013 (s 2) —

Public Governance,

Performance and

Accountability

(Consequential and

Transitional Provisions)

Act 2014

62, 2014 30 June

2014

Sch 5 (items 111, 112),

Sch 6 (item 35) and Sch

14: 1 July 2014 (s 2(1)

items 5, 6, 14)

Sch 14

as amended by

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

368 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Public Governance

and Resources

Legislation

Amendment Act

(No. 1) 2015

36, 2015 13 Apr

2015

Sch 2 (items 7–9) and Sch

7: 14 Apr 2015 (s 2)

Sch 7

as amended by

Acts and

Instruments

(Framework

Reform)

(Consequential

Provisions) Act

2015

126, 2015 10 Sept

2015

Sch 1 (item 486): 5 Mar

2016 (s 2(1) item 2)

Acts and Instruments

(Framework Reform)

(Consequential

Provisions) Act 2015

126, 2015 10 Sept

2015

Sch 1 (item 495): 5 Mar

2016 (s 2(1) item 2)

Clean Energy

Legislation (Carbon Tax

Repeal) Act 2014

83, 2014 17 July

2014

Sch 2: 18 July 2014

(s 2(1) item 6)

Competition and

Consumer Amendment

(Industry Code

Penalties) Act 2014

107, 2014 24 Sept

2014

1 Jan 2015 (s 2) —

Omnibus Repeal Day

(Autumn 2014) Act 2014

109, 2014 16 Oct

2014

Sch 2 (items 2–4, 112,

113, 187): 17 Oct 2014

(s 2(1) item 2)

Sch 2 (item 4)

Acts and Instruments

(Framework Reform)

Act 2015

10, 2015 5 Mar 2015 Sch 3 (items 68–75, 348,

349): 5 Mar 2016 (s 2(1)

item 2)

Sch 3 (items 348,

349)

Telecommunications

Legislation Amendment

(Deregulation) Act 2015

38, 2015 13 Apr

2015

Sch 1 (items 7–10, 138–

163): 1 July 2015 (s 2(1)

item 3)

Sch 1 (items 138–

163)

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

Competition and Consumer Act 2010 369

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Acts and Instruments

(Framework Reform)

(Consequential

Provisions) Act 2015

126, 2015 10 Sept

2015

Sch 1 (items 128–148):

5 Mar 2016 (s 2(1)

item 2)

Treasury Legislation

Amendment (Small

Business and Unfair

Contract Terms) Act

2015

147, 2015 12 Nov

2015

Sch 1 (items 19–47):

12 Nov 2016 (s 2(1)

item 2)

Statute Law Revision

Act (No. 1) 2016

4, 2016 11 Feb

2016

Sch 4 (items 1, 66–68)

and Sch 5 (item 4):

10 Mar 2016 (s 2(1)

item 6)

Competition and

Consumer Amendment

(Payment Surcharges)

Act 2016

9, 2016 25 Feb

2016

25 Feb 2016 (s 2(1)

item 1)

Courts Administration

Legislation Amendment

Act 2016

24, 2016 18 Mar

2016

Sch 5 (item 8): 1 July

2016 (s 2(1) item 7)

Sch 6: 18 Mar 2016

(s 2(1) item 9)

Sch 6

Territories Legislation

Amendment Act 2016

33, 2016 23 Mar

2016

Sch 5 (items 25–28):

1 July 2016 (s 2(1)

item 7)

Statute Update Act 2016 61, 2016 23 Sept

2016

Sch 1 (items 152, 153)

and Sch 3 (items 13, 14):

21 Oct 2016 (s 2(1)

item 1)

Competition and

Consumer Amendment

(Country of Origin) Act

2017

5, 2017 22 Feb

2017

23 Feb 2017 (s 2(1)

item 1)

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 3—Legislation history

370 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Name Registration Commencement Application,

saving and

transitional

provisions

Workplace Relations

Amendment (Work

Choices) (Consequential

Amendments)

Regulations 2006

(No. 1) (SLI No. 50,

2006)

17 Mar 2006

(F2006L00820)

Sch 15: 27 Mar 2006

(r 2(b))

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 371

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Endnote 4—Amendment history

Provision affected How affected

Title ............................................... am. No. 103, 2010

Part I

s. 1 ................................................. am. No. 103, 2010

s. 2 ................................................. rep. No. 81, 1977

ad. No. 88, 1995

s. 2A............................................... ad. No. 81, 1977

am. No. 34, 1989; No. 88, 1995; No. 134, 2003; No. 108, 2004

s. 2B............................................... ad. No. 88, 1995

am. No. 58, 1997; No. 61, 1999; No. 111, 2009; No 83, 2014

s. 2BA............................................ ad. No. 131, 2006

s. 2C............................................... ad. No. 88, 1995

am. No. 131, 2006

s. 2D............................................... ad. No. 88, 1995

rep. No. 131, 2006

s. 4 ................................................. am. Nos. 88 and 157, 1976; No. 81, 1977; No. 206, 1978; No. 17,

1986; No. 8, 1988; No. 70, 1990; Nos. 104 and 222, 1992; No. 88,

1995; No. 60, 1996; No. 48, 1998; No. 55, 2001; Nos. 108 and 113,

2004; No. 131, 2006; Nos. 45 and 159, 2007; No. 60, 2008; Nos. 17

and 59, 2009; Nos. 44, 103 and 140, 2010; Nos. 46 and 119, 2011;

No. 169, 2012; No. 13, 2013; No 9, 2016

s. 4A............................................... ad. No. 81, 1977

am. No. 88, 1995; No. 131, 2006

s. 4B............................................... ad. No. 81, 1977

am. No. 151, 1977; No. 17, 1986; No. 88, 1995

s. 4C............................................... ad. No. 81, 1977

am. No. 88, 1995

s. 4D............................................... ad. No. 81, 1977

am. No. 206, 1978; No. 17, 1986

s. 4E............................................... ad. No. 81, 1977

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Endnotes

Endnote 4—Amendment history

372 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 70, 1990

s. 4F ............................................... ad. No. 81, 1977

am. No. 60, 1996

ss. 4G, 4H ...................................... ad. No. 81, 1977

ss. 4J, 4K........................................ ad. No. 81, 1977

s. 4KA............................................ ad. No. 113, 2004

rs. No. 103, 2010

ss. 4KB, 4KC ................................. ad. No. 44, 2010

rep. No. 103, 2010

s. 4L............................................... ad. No. 81, 1977

am. No. 17, 1986; Nos. 44 and 103, 2010

s. 4M.............................................. ad. No. 81, 1977

s. 4N............................................... ad. No. 101, 1998

am. Nos. 17 and 92, 2006; No. 117, 2008

s. 5 ................................................. am. No. 17, 1986; No. 70, 1990; No. 222, 1992; No. 106, 1998;

No. 61, 1999; No. 31, 2001; Nos. 59 and 111, 2009; Nos. 44 and 103,

2010

s. 6 ................................................. am. No. 88, 1976; No. 81, 1977; Nos. 206 and 207, 1978; No. 73,

1980; No. 17, 1986; No. 70, 1990; Nos. 106 and 222, 1992; No. 98,

1993; No. 88, 1995; No. 60, 1996; No. 58, 1997; No. 106, 1998;

No. 61, 1999; No. 69, 2000; No. 31, 2001 (as am. by No. 63, 2002);

No. 117, 2001; No. 134, 2003; No. 131, 2006; No. 126, 2008; Nos.

59 and 111, 2009; No. 44, 2010; No. 103, 2010 (as am. by No. 184,

2011); No. 185, 2011; No. 103, 2013; No 83, 2014; No 9, 2016

s. 6AA............................................ ad. No. 146, 2001

am. No. 59, 2009; No. 103, 2010

Part II

Heading to Part II........................... rs. No. 88, 1995

s. 6A............................................... ad. No. 81, 1977

am. No. 88, 1995; No. 148, 2010; No 62, 2014

s. 7 ................................................. rs. No. 81, 1977

am. No. 88, 1995; No. 106, 1998; No. 108, 2004

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 373

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 8 ................................................. am. No. 81, 1977; No. 88, 1995

s. 8A............................................... ad. No. 81, 1977

am. No. 88, 1995; No. 131, 2006

s. 8AB............................................ ad. No. 108, 2004

s. 9 ................................................. am. No. 81, 1977; No. 88, 1995

s. 10 ............................................... am. No. 81, 1977; No. 88, 1995; No. 159, 2007; No. 116, 2008

s. 11 ............................................... am. No. 88, 1976; No. 17, 1986; No. 88, 1995; No. 159, 2007;

No. 46, 2011

s. 12 ............................................... am. No. 88, 1976; No. 81, 1977

rs. No. 122, 1991

am. No. 146, 1999

s. 13 ............................................... am. No. 88, 1976

rs. No. 81, 1977

am. No. 206, 1978; No. 88, 1995

s. 14 ............................................... rs. No. 81, 1977

am. No. 88, 1995

s. 15 ............................................... am. No. 81, 1977; No. 88, 1995

s. 16 ............................................... am. No. 88, 1995

s. 17 ............................................... am. No. 88, 1976; No. 81, 1977

rs. No. 17, 1986

am. No. 88, 1995

s. 18 ............................................... am. No. 17, 1986; No. 88, 1995; No. 159, 2007

s. 19 ............................................... am. No. 88, 1995; No. 159, 2007

s. 20 ............................................... rep. No. 81, 1977

ad. No. 88, 1995

rep. No. 152, 1997

ss. 21–23........................................ rep. No. 81, 1977

s. 24 ............................................... am. No. 88, 1976

rep. No. 81, 1977

s. 25 ............................................... am. No. 58, 1997; No. 52, 1999; No. 134, 2003; No. 69, 2004;

No. 119, 2005; No. 131, 2006; No. 138, 2007; No. 23, 2011

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

374 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 26 ............................................... am. No. 81, 1977

rep. No. 65, 1985

ad. No. 48, 1998

am. Nos. 31 and 55, 2001; No. 103, 2010

s. 27 ............................................... am. No. 63, 1984; No. 88, 1995; No. 146, 1999

s. 27A............................................. ad. No. 88, 1995

s. 28 ............................................... am. No. 88, 1976; No. 81, 1977; No. 88, 1995

s. 29 ............................................... am. No. 88, 1976; No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 58,

1997; No. 123, 2000; No. 134, 2003; No. 103, 2010

Part IIA

Part IIA .......................................... ad. No. 88, 1995

s. 29AA.......................................... ad. No. 60, 2006

rep. No. 45, 2007

s. 29A............................................. ad. No. 88, 1995

s. 29B............................................. ad. No. 88, 1995

am. No. 101, 1998; No. 60, 2006; No. 45, 2007

ss. 29BA, 29BB ............................. ad. No. 60, 2006

am. No. 45, 2007

s. 29BC .......................................... ad. No. 60, 2006

am. No. 45, 2007

ss. 29C, 29D................................... ad. No. 88, 1995

s. 29E............................................. ad. No. 88, 1995

am. No. 46, 2011

s. 29F ............................................. ad. No. 88, 1995

s. 29G............................................. ad. No. 88, 1995

am. No. 146, 1999

ss. 29H, 29I.................................... ad. No. 88, 1995

s. 29J.............................................. ad. No. 88, 1995

am. No. 134, 2003

ss. 29K, 29L................................... ad. No. 88, 1995

s. 29LA .......................................... ad. No. 102, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 375

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 29M............................................ ad. No. 88, 1995

am. No. 146, 1999

s. 29N............................................. ad. No. 88, 1995

s. 29O............................................. ad. No. 88, 1995

am. No. 92, 2006

Part III

Heading to Part III ......................... rs. No. 88, 1995

s. 29P ............................................. ad. No. 131, 2006

s. 30 ............................................... am. No. 88, 1995

s. 31 ............................................... am. No. 81, 1977; No. 88, 1995

s. 31A............................................. ad. No. 111, 1977

am. No. 88, 1995

s. 32 ............................................... am. No. 88, 1995

s. 33 ............................................... rs. No. 88, 1976

am. No. 81, 1977

rs. No. 111, 1977

am. No. 73, 1984; No. 88, 1995; No. 43, 1996

s. 34 ............................................... am. No. 80, 1982; No. 106, 1998; No. 46, 2011

s. 35 ............................................... am. No. 81, 1977; No. 61, 1981; No. 88, 1995

s. 36 ............................................... am. No. 88, 1995

s. 39 ............................................... am. No. 131, 2006

s. 40 ............................................... rs. No. 17, 1986

am. No. 123, 2000

s. 43 ............................................... am. No. 88, 1995

ss. 43A, 43B................................... ad. No. 88, 1995

s. 44 ............................................... am. No. 81, 1977; No. 88, 1995; No. 146, 1999

s. 44A............................................. ad. No. 206, 1978

am. No. 88, 1995; No. 146, 1999; No. 46, 2011

Part IIIAA

Part IIIAA...................................... ad. No. 108, 2004

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

376 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Division 1

s. 44AB.......................................... ad. No. 108, 2004

am. No. 60, 2006; No. 45, 2007

ss. 44AC, 44AD............................. ad. No. 108, 2004

Division 2

s. 44AE .......................................... ad. No. 108, 2004

am No 62, 2014

s. 44AF .......................................... ad. No. 108, 2004

s. 44AG.......................................... ad. No. 108, 2004

Division 3

s. 44AH.......................................... ad. No. 108, 2004

am. No. 45, 2007

s. 44AI ........................................... ad. No. 108, 2004

am. No. 119, 2011

s. 44AJ ........................................... ad. No. 108, 2004

am. No. 119, 2011

s. 44AK.......................................... ad. No. 108, 2004

am. No. 119, 2011

s. 44AL .......................................... ad. No. 108, 2004

am. No. 119, 2011

Division 4

Subdivision A

ss. 44AM, 44AN ............................ ad. No. 108, 2004

s. 44AO.......................................... ad. No. 108, 2004

am. No. 46, 2011

s. 44AP .......................................... ad. No. 108, 2004

s 44AQ........................................... ad. No. 108, 2004

am. No. 46, 2011

s. 44AR.......................................... ad. No. 108, 2004

s. 44AS .......................................... ad. No. 108, 2004

am. No. 46, 2011

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 377

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

ss. 44AT–44AZ.............................. ad. No. 108, 2004

s. 44AAB ....................................... ad. No. 108, 2004

Subdivision B

s. 44AAC ....................................... ad. No. 108, 2004

Subdivision C

ss. 44AAD, 44AAE ....................... ad. No. 108, 2004

s. 44AAEA..................................... ad. No. 45, 2007

Subdivision D

s. 44AAF........................................ ad. No. 108, 2004

am. No. 17, 2009; No. 132, 2011

s. 44AAG....................................... ad. No. 108, 2004

s. 44AAGA .................................... ad. No. 60, 2006

s. 44AAH....................................... ad. No. 108, 2004

am. No. 46, 2011

ss. 44AAI–44AAK......................... ad. No. 108, 2004

Part IIIAB

Part IIIAB ...................................... ad No 62, 2014

s 44AAL ........................................ ad No 62, 2014

Part IIIA

Part IIIA......................................... ad. No. 88, 1995

Division 1

s. 44AA.......................................... ad. No. 92, 2006

s. 44B............................................. ad. No. 88, 1995

am. No. 28, 1997; No. 55, 2001; No. 134, 2003; No. 92, 2006;

No. 45, 2007; No. 60, 2008; No. 17, 2009; No. 102, 2010

s. 44C............................................. ad. No. 88, 1995

s. 44D............................................. ad. No. 88, 1995

am. No. 102, 2010

s. 44DA.......................................... ad. No. 101, 1998

am. No. 102, 2010

s. 44E............................................. ad. No. 88, 1995

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

378 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Division 2

Subdivision A

s. 44F ............................................. ad. No. 88, 1995

am. No. 92, 2006; No. 102, 2010

s. 44FA .......................................... ad. No. 102, 2010

s. 44G............................................. ad. No. 88, 1995

am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007; No. 102,

2010

s. 44GA.......................................... ad. No. 92, 2006

rs. No. 102, 2010

s. 44GB.......................................... ad. No. 92, 2006

am. No. 102, 2010

s. 44GC.......................................... ad. No. 92, 2006

Subdivision B

s. 44H............................................. ad. No. 88, 1995

am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007; No. 102,

2010

s. 44HA.......................................... ad. No. 92, 2006

s. 44I .............................................. ad. No. 88, 1995

am. No. 102, 2010

s. 44J.............................................. ad. No. 88, 1995

am. No. 92, 2006; No. 102, 2010

s. 44JA........................................... ad. No. 92, 2006

rep. No. 102, 2010

s. 44K............................................. ad. No. 88, 1995

am. No. 92, 2006; No. 102, 2010

ss. 44KA, 44KB............................. ad. No. 102, 2010

s. 44L............................................. ad. No. 88, 1995

am. No. 92, 2006; No. 102, 2010

Heading to Subdiv. C of.................

Div. 2 of Part IIIA

rep. No. 92, 2006

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 379

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Division 2AA

Div. 2AA of Part IIIA .................... ad. No. 102, 2010

Subdivision A

s. 44LA .......................................... ad. No. 102, 2010

Subdivision B

ss. 44LB–44LF .............................. ad. No. 102, 2010

Subdivision C

ss. 44LG, 44LH.............................. ad. No. 102, 2010

Subdivision D

s. 44LI............................................ ad. No. 102, 2010

Subdivision E

ss. 44LJ, 44LK............................... ad. No. 102, 2010

Subdivision F

s. 44LL........................................... ad. No. 102, 2010

Division 2A

Heading to Div. 2A of....................

Part IIIA

ad. No. 92, 2006

Subdivision A

Heading to Subdiv. A of ................

Div. 2A of Part IIIA

ad. No. 92, 2006

s. 44M............................................ ad. No. 88, 1995

am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007; No. 102,

2010

s. 44MA ......................................... ad. No. 102, 2010

Subdivision B

Heading to Subdiv. B of.................

Div. 2A of Part IIIA

ad. No. 92, 2006

s. 44N............................................. ad. No. 88, 1995

am. No. 101, 1998; Nos. 60 and 92, 2006; No. 45, 2007; No. 102,

2010

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Endnotes

Endnote 4—Amendment history

380 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Subdivision C

Subdiv. C of Div. 2A of .................

Part IIIA

ad. No. 92, 2006

s. 44NA.......................................... ad. No. 92, 2006

am. No. 102, 2010

s. 44NAA....................................... ad. No. 102, 2010

s. 44NB.......................................... ad. No. 92, 2006

am. No. 102, 2010

Subdivision D

Subdiv. D of Div. 2A of.................

Part IIIA

ad. No. 92, 2006

s. 44NC.......................................... ad. No. 92, 2006

rs. No. 102, 2010

s. 44ND.......................................... ad. No. 92, 2006

rep. No. 102, 2010

s. 44NE .......................................... ad. No. 92, 2006

am. No. 102, 2010

ss. 44NF, 44NG ............................. ad. No. 92, 2006

Subdivision E

Heading to Subdiv. E of.................

Div. 2A of Part IIIA

ad. No. 92, 2006

s. 44O............................................. ad. No. 88, 1995

am. No. 92, 2006; No. 102, 2010

Subdivision F

Heading to Subdiv. F of .................

Div. 2A of Part IIIA

ad. No. 92, 2006

s. 44P ............................................. ad. No. 88, 1995

am. No. 101, 1998

Division 2B

Div. 2B of Part IIIA ....................... ad. No. 92, 2006

s. 44PA .......................................... ad. No. 92, 2006

am No 102, 2010; No 126, 2015

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Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 381

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 44PAA........................................ ad. No. 102, 2010

s 44PB............................................ ad No 92, 2006

am No 126, 2015

s 44PC............................................ ad No 92, 2006

s. 44PD .......................................... ad. No. 92, 2006

rs. No. 102, 2010

s. 44PE........................................... ad. No. 92, 2006

am. No. 102, 2010

s. 44PF ........................................... ad. No. 92, 2006

s. 44PG .......................................... ad. No. 92, 2006

am. No. 102, 2010

s. 44PH .......................................... ad. No. 92, 2006

am. No. 102, 2010

Division 2C

Heading to Div. 2C of....................

Part IIIA

ad. No. 92, 2006

s. 44Q............................................. ad. No. 88, 1995

am. No. 101, 1998; No. 92, 2006; No. 102, 2010

Division 3

Subdivision A

s. 44R............................................. ad. No. 88, 1995

Subdivision B

ss. 44S, 44T ................................... ad. No. 88, 1995

am. No. 92, 2006

Subdivision C

s. 44U............................................. ad. No. 88, 1995

s. 44V............................................. ad. No. 88, 1995

am. No. 92, 2006; No. 102, 2010; No 126, 2015

s. 44W............................................ ad. No. 88, 1995

am. No. 92, 2006; No. 102, 2010

s. 44X............................................. ad. No. 88, 1995

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Endnotes

Endnote 4—Amendment history

382 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 92, 2006

s. 44XA.......................................... ad. No. 92, 2006

rs. No. 102, 2010

s. 44Y............................................. ad. No. 88, 1995

am. No. 92, 2006

s. 44YA.......................................... ad. No. 102, 2010

Subdivision D

s. 44Z............................................. ad. No. 88, 1995

ss. 44ZA–44ZN.............................. ad. No. 88, 1995

s. 44ZNA ....................................... ad. No. 92, 2006

am No 126, 2015

Subdivision DA

Subdiv. DA of Div. 3 of.................

Part IIIA

ad. No. 92, 2006

s. 44ZNB........................................ ad. No. 92, 2006

am No 126, 2015

Subdivision E

s. 44ZO .......................................... ad. No. 88, 1995

am. No. 92, 2006

s. 44ZOA ....................................... ad. No. 92, 2006

Subdivision F

Heading to Subdiv. F of .................

Div. 3 of Part IIIA

rs. No. 92, 2006

s. 44ZP........................................... ad. No. 88, 1995

am. No. 92, 2006; No. 102, 2010

s. 44ZQ .......................................... ad. No. 88, 1995

am. No. 92, 2006

ss. 44ZR–44ZT .............................. ad. No. 88, 1995

Subdivision G

Heading to Subdiv. G of ................

Div. 3 of Part IIIA

rs. No. 92, 2006

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Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 383

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 44ZU .......................................... ad. No. 88, 1995

am. No. 92, 2006

s. 44ZUA ....................................... ad. No. 92, 2006

Division 4

s. 44ZV .......................................... ad. No. 88, 1995

s. 44ZW ......................................... ad. No. 88, 1995

am. No. 92, 2006

s. 44ZX .......................................... ad. No. 88, 1995

am. No. 92, 2006; No. 102, 2010

s. 44ZY .......................................... ad. No. 88, 1995

Division 5

s. 44ZZ........................................... ad. No. 88, 1995

Division 6

Heading to Div. 6 of ......................

Part IIIA

rs. No. 92, 2006

Subdivision A

Heading to Subdiv. A of ................

Div. 6 of Part IIIA

ad. No. 92, 2006

s. 44ZZA........................................ ad. No. 88, 1995

am. No. 28, 1997; No. 69, 2000; No. 92, 2006; No. 102, 2010

ss. 44ZZAAA, 44ZZAAB.............. ad. No. 102, 2010

s. 44ZZAA..................................... ad. No. 28, 1997

am. No. 108, 2004; No. 92, 2006; No. 102, 2010

s. 44ZZAB ..................................... ad. No. 108, 2004

am. No. 102, 2010

s. 44ZZB ........................................ ad. No. 88, 1995

rep. No. 92, 2006

Subdivision B

Subdiv. B of Div. 6 of....................

Part IIIA

ad. No. 92, 2006

s. 44ZZBA ..................................... ad. No. 92, 2006

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Endnotes

Endnote 4—Amendment history

384 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 102, 2010

Subdivision C

Subdiv. C of Div. 6 of....................

Part IIIA

ad. No. 92, 2006

s. 44ZZBB ..................................... ad. No. 92, 2006

am. No. 102, 2010

Subdivision D

Subdiv. D of Div. 6 of....................

Part IIIA

ad. No. 92, 2006

s. 44ZZBC ..................................... ad. No. 92, 2006

rs. No. 102, 2010

s. 44ZZBCA................................... ad. No. 102, 2010

s. 44ZZBD ..................................... ad. No. 92, 2006

am. No. 102, 2010

s. 44ZZBE...................................... ad. No. 92, 2006

Subdivision E

Subdiv. E of Div. 6 of ....................

Part IIIA

ad. No. 92, 2006

s. 44ZZBF...................................... ad. No. 92, 2006

am. No. 102, 2010

Subdivision F

Heading to Subdiv. F of .................

Div. 6 of Part IIIA

ad. No. 92, 2006

s. 44ZZC ........................................ ad. No. 88, 1995

rs. No. 28, 1997

am. No. 92, 2006; No. 102, 2010

Division 6A

Div. 6A of Part IIIA....................... ad. No. 92, 2006

s. 44ZZCA ..................................... ad. No. 92, 2006

Division 6B

Heading to Div. 6B of....................

Part IIIA

rs. No. 102, 2010

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Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 385

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Div. 6B of Part IIIA ....................... ad. No. 92, 2006

s. 44ZZCB ..................................... ad. No. 92, 2006

am No 126, 2015

s. 44ZZCBA................................... ad. No. 102, 2010

ss. 44ZZCC, 44ZZCD.................... ad. No. 92, 2006

Division 7

ss. 44ZZD–44ZZI .......................... ad. No. 88, 1995

s. 44ZZJ ......................................... ad. No. 88, 1995

am. No. 69, 2000; No. 92, 2006

s. 44ZZK........................................ ad. No. 88, 1995

Division 8

s. 44ZZL ........................................ ad. No. 88, 1995

s. 44ZZM ....................................... ad. No. 88, 1995

rs. No. 101, 1998; No. 134, 2003

s. 44ZZMA .................................... ad. No. 134, 2003

am. No. 119, 2011

s. 44ZZMB..................................... ad. No. 134, 2003

s. 44ZZN........................................ ad. No. 88, 1995

s. 44ZZNA..................................... ad. No. 28, 1997

s. 44ZZO........................................ ad. No. 88, 1995

s. 44ZZOAAA ............................... ad. No. 102, 2010

s. 44ZZOAA .................................. ad. No. 102, 2010

s. 44ZZOA..................................... ad. No. 101, 1998

rep. No. 134, 2003

ad. No. 92, 2006

rs. No. 102, 2010

s. 44ZZP ........................................ ad. No. 88, 1995

am. No. 45, 2007

s. 44ZZQ........................................ ad. No. 88, 1995

s. 44ZZR ........................................ ad. No. 45, 2007

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Endnotes

Endnote 4—Amendment history

386 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Part IV

Division 1

Div. 1 of Part IV ............................ ad. No. 59, 2009

Subdivision A

ss. 44ZZRA–44ZZRE.................... ad. No. 59, 2009

Subdivision B

ss. 44ZZRF–44ZZRI...................... ad. No. 59, 2009

Subdivision C

ss. 44ZZRJ, 44ZZRK..................... ad. No. 59, 2009

Subdivision D

ss. 44ZZRL–44ZZRV.................... ad. No. 59, 2009

Division 1A

Div. 1A of Part IV.......................... ad. No. 185, 2011

s. 44ZZS ........................................ ad. No. 185, 2011

s. 44ZZT ........................................ ad. No. 185, 2011

s. 44ZZU........................................ ad. No. 185, 2011

s. 44ZZV........................................ ad. No. 185, 2011

s. 44ZZW....................................... ad. No. 185, 2011

s. 44ZZX........................................ ad. No. 185, 2011

s. 44ZZY........................................ ad. No. 185, 2011

s. 44ZZZ ........................................ ad. No. 185, 2011

s. 44ZZZA ..................................... ad. No. 185, 2011

s. 44ZZZB...................................... ad. No. 185, 2011

Division 2

Heading to Div. 2 of Part IV .......... ad. No. 59, 2009

s. 45 ............................................... rs. No. 81, 1977

am. No. 17, 1986; No. 222, 1992; No. 88, 1995; No. 131, 2006;

No. 59, 2009

s. 45A............................................. ad. No. 81, 1977

am. No. 206, 1978; No. 88, 1995; No. 131, 2006

rep. No. 59, 2009

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Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 387

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 45B............................................. ad. No. 81, 1977

am. No. 88, 1995; No. 169, 2012

s. 45C............................................. ad. No. 81, 1977

am. No. 17, 1986; No. 88, 1995

s. 45D............................................. ad. No. 81, 1977

am. No. 207, 1978; No. 73, 1980; No. 176, 1981

rs. No. 98, 1993; No. 60, 1996

ss. 45DA–45DC............................. ad. No. 60, 1996

s. 45DD.......................................... ad. No. 60, 1996

am. SLI 2006 No. 50; No. 54, 2009

s. 45E............................................. ad. No. 73, 1980

rep. No. 98, 1993

ad. No. 60, 1996

ss. 45EA, 45EB.............................. ad. No. 60, 1996

s. 46 ............................................... rs. No. 81, 1977

am. No. 17, 1986; No. 222, 1992; No. 131, 2006; No. 159, 2007;

No. 116, 2008

s. 46A............................................. ad. No. 70, 1990

am. No. 222, 1992; No. 131, 2006

s. 46B............................................. ad. No. 70, 1990

s. 47 ............................................... am. No. 88, 1976

rs. No. 81, 1977

am. No. 206, 1978; No. 88, 1995; No. 131, 2006; No. 169, 2012

s. 49 ............................................... am. No. 81, 1977

rep. No. 88, 1995

ad. No. 131, 2006

s. 50 ............................................... rs. No. 81, 1977

am. Nos. 8, 17 and 168, 1986; No. 49, 1991; No. 222, 1992; No. 63,

2001; No. 131, 2006; No. 184, 2011

s. 50A............................................. ad. No. 17, 1986

am. Nos. 22 and 222, 1992

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Endnotes

Endnote 4—Amendment history

388 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 51 ............................................... am. No. 63, 1975; No. 88, 1976; No. 81, 1977; No. 73, 1980; No. 17,

1986; No. 28, 1989; No. 70, 1990; No. 98, 1993; No. 88, 1995;

No. 60, 1996; No. 63, 2002; No. 46, 2011

s. 51AAA....................................... ad. No. 88, 1995

Part IVA......................................... ad. No. 222, 1992

rep. No. 103, 2010

s. 51AAB ....................................... ad. No. 48, 1998

rep. No. 103, 2010

s. 51AA.......................................... ad. No. 222, 1992

am. No. 36, 1998

rep. No. 103, 2010

s. 51AB (formerly s. 52A) ............. No. 222, 1992

am. No. 116, 2008

rep. No. 103, 2010

s. 51AC.......................................... ad. No. 36, 1998

am. No. 63, 2001; No. 159, 2007; No. 116, 2008

rep. No. 103, 2010

s. 51ACAA .................................... ad. No. 63, 2001

rep. No. 103, 2010

Part IVB

Part IVB......................................... ad. No. 36, 1998

Division 1

Heading to Div. 1 of ......................

Part IVB

ad. No. 103, 2010

s. 51ACA ....................................... ad. No. 36, 1998

am. No. 103, 2010; No 107, 2014

Division 2

Heading to Div. 2 of ......................

Part IVB

ad. No. 103, 2010

s. 51AD.......................................... ad. No. 36, 1998

renum No 107, 2014

s 51ACB (prev s 51AD)

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Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 389

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Division 2A

Division 2A.................................... ad No 107, 2014

s 51ACC ........................................ ad No 107, 2014

s 51ACD ........................................ ad No 107, 2014

s 51ACE......................................... ad No 107, 2014

s 51ACF......................................... ad No 107, 2014

s 51ACG ........................................ ad No 107, 2014

s 51ACH ........................................ ad No 107, 2014

s 51ACI.......................................... ad No 107, 2014

s 51ACJ ......................................... ad No 107, 2014

Division 3

Div. 3 of Part IVB.......................... ad. No. 103, 2010

s. 51ADA....................................... ad. No. 103, 2010

Division 4

Div. 4 of Part IVB.......................... ad. No. 103, 2010

ss. 51ADB, 51ADC ....................... ad. No. 103, 2010

Division 5

Div. 5 of Part IVB.......................... ad. No. 103, 2010

ss. 51ADD–51ADG....................... ad. No. 103, 2010

Division 6

Heading to Div. 6 of ......................

Part IVB

ad. No. 103, 2010

s. 51AE .......................................... ad. No. 36, 1998

am No 107, 2014

s. 51AEA ....................................... ad. No. 63, 2001

s. 51AF .......................................... ad. No. 48, 1998

am. Nos. 55 and 123, 2001

rep. No. 103, 2010

s. 51A............................................. ad. No. 17, 1986

rep. No. 103, 2010

s. 52 ............................................... am. No. 81, 1977; No. 106, 1998

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Endnotes

Endnote 4—Amendment history

390 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

rep. No. 103, 2010

s. 52A............................................. ad. No. 17, 1986

am. No. 222, 1992

Renumbered s. 51AB..................... No. 222, 1992

s. 53 ............................................... am. No. 81, 1977; No. 17, 1986; No. 20, 1988; No. 106, 1998

rep. No. 103, 2010

s. 53A............................................. ad. No. 81, 1977

am. No. 206, 1978; No. 17, 1986

rep. No. 103, 2010

s. 53B............................................. ad. No. 206, 1978

rs. No. 17, 1986

rep. No. 103, 2010

s. 53C............................................. ad. No. 17, 1986

rs. No. 126, 2008

rep. No. 103, 2010

s. 54 ............................................... am. No. 81, 1977

rep. No. 103, 2010

Part IVC

Part IVC......................................... ad No 9, 2016

Division 1

s. 55 ............................................... rep. No. 103, 2010

ad No 9, 2016

s. 55A............................................. ad. No. 81, 1977

rep. No. 103, 2010

ad No 9, 2016

Division 2

s 55B.............................................. ad No 9, 2016

Division 3

s 55C.............................................. ad No 9, 2016

s 55D.............................................. ad No 9, 2016

s 55E.............................................. ad No 9, 2016

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Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 391

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Division 4

s 55F .............................................. ad No 9, 2016

s 55G.............................................. ad No 9, 2016

s 55H.............................................. ad No 9, 2016

s 55J............................................... ad No 9, 2016

s 55K.............................................. ad No 9, 2016

s 55L.............................................. ad No 9, 2016

s 55M............................................. ad No 9, 2016

s 55N.............................................. ad No 9, 2016

s. 56 ............................................... am. No. 81, 1977; No. 17, 1986; No. 31, 2001

rep. No. 103, 2010

s. 57 ............................................... rep. No. 103, 2010

s. 58 ............................................... rs. No. 17, 1986

rep. No. 103, 2010

s. 59 ............................................... am. No. 81, 1977; No. 17, 1986

rep. No. 103, 2010

Part V

Part V............................................. rep. No. 103, 2010

ad No 83, 2014

Division 1

s. 60 ............................................... rs. No. 17, 1986

rep. No. 103, 2010

ad No 83, 2014

s 60AA........................................... ad No 83, 2014

s 60A.............................................. ad No 83, 2014

s 60B.............................................. ad No 83, 2014

Division 2

s 60C.............................................. ad No 83, 2014

s 60CA........................................... ad No 83, 2014

s 60D.............................................. ad No 83, 2014

s 60E.............................................. ad No 83, 2014

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Endnotes

Endnote 4—Amendment history

392 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s 60F .............................................. ad No 83, 2014

Division 2A

s 60FA ........................................... ad No 83, 2014

s 60FB............................................ ad No 83, 2014

s 60FC............................................ ad No 83, 2014

Division 2B

s 60FD ........................................... ad No 83, 2014

Division 2C

s 60FE............................................ ad No 83, 2014

Division 3

s 60G.............................................. ad No 83, 2014

s 60H.............................................. ad No 83, 2014

s 60J............................................... ad No 83, 2014

Division 4

s 60K.............................................. ad No 83, 2014

Division 5

s 60L.............................................. ad No 83, 2014

s 60M............................................. ad No 83, 2014

s 60N.............................................. ad No 83, 2014

s 60P .............................................. ad No 83, 2014

s 60Q.............................................. ad No 83, 2014

s 60R.............................................. ad No 83, 2014

s. 61 ............................................... am. No. 17, 1986; No. 88, 1995

rep. No. 128, 2002

s. 62 ............................................... am. No. 63, 1975; No. 81, 1977; No. 206, 1978

rep. No. 17, 1986

s. 63 ............................................... am. No. 63, 1975; No. 81, 1977

rep. No. 17, 1986

s. 63AA.......................................... ad. No. 151, 1977

rep. No. 17, 1986

s. 63A............................................. ad. No. 63, 1975

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 393

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 81, 1977; Nos. 17 and 168, 1986; No. 123, 2001

rep. No. 103, 2010

s. 64 ............................................... am. No. 56, 1975; No. 81, 1977; No. 17, 1986; No. 88, 1995

rep. No. 103, 2010

s. 65 ............................................... am. No. 17, 1986; No. 88, 1995

rep. No. 103, 2010

s. 65A............................................. ad. No. 165, 1984

am. No. 180, 1991; No. 105, 1992

rep. No. 103, 2010

Div. 1AAA of Part V ..................... ad. No. 128, 2002

rep. No. 103, 2010

ss. 65AAA–65AAE ....................... ad. No. 128, 2002

rep. No. 103, 2010

Div. 1AA of Part V........................ ad. No. 106, 1998

rep. No. 103, 2010

ss. 65AA–65AD............................. ad. No. 106, 1998

am. No. 31, 2001; No. 21, 2003

rep. No. 103, 2010

ss. 65AE–65AH ............................. ad. No. 106, 1998

rep. No. 103, 2010

ss. 65AJ–65AM ............................. ad. No. 106, 1998

rep. No. 103, 2010

s. 65AN.......................................... ad. No. 106, 1998

am. No. 31, 2001; No. 21, 2003

rep. No. 103, 2010

Div. 1A of Part V........................... ad. No. 17, 1986

rep. No. 103, 2010

ss. 65B–65D................................... ad. No. 17, 1986

rep. No. 103, 2010

s. 65E............................................. ad. No. 17, 1986

am. No. 63, 2002; No. 126, 2008

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

394 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

rep. No. 103, 2010

s. 65F ............................................. ad. No. 17, 1986

am. No. 141, 1994; Nos. 31 and 63, 2001; No. 63, 2002

rep. No. 103, 2010

ss. 65G, 65H .................................. ad. No. 17, 1986

rep. No. 103, 2010

s. 65J.............................................. ad. No. 17, 1986

am. No. 88, 1995

rep. No. 103, 2010

ss. 65K–65N .................................. ad. No. 17, 1986

rep. No. 103, 2010

s. 65P ............................................. ad. No. 17, 1986

rep. No. 103, 2010

s. 65Q............................................. ad. No. 17, 1986

am. No. 168, 1986; No. 141, 1994; No. 31, 2001

rep. No. 103, 2010

s. 65R............................................. ad. No. 17, 1986

am. No. 141, 1994; Nos. 31 and 63, 2001; No. 63, 2002

rep. No. 103, 2010

s. 65S ............................................. ad. No. 17, 1986

rep. No. 103, 2010

s. 65T............................................. ad. No. 17, 1986

am. No. 146, 1999

rep. No. 103, 2010

s. 65U............................................. ad. No. 17, 1986

rep. No. 20, 1988

s. 66 ............................................... rep. No. 103, 2010

s. 66A............................................. ad. No. 141, 1987

rep. No. 103, 2010

s. 67 ............................................... rep. No. 103, 2010

s. 68 ............................................... am. No. 206, 1978; No. 17, 1986

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 395

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

rep. No. 103, 2010

s. 68A............................................. ad. No. 151, 1977

rep. No. 103, 2010

s. 68B............................................. ad. No. 146, 2002

rep. No. 103, 2010

s. 69 ............................................... am. No. 88, 1995

rep. No. 103, 2010

s. 70 ............................................... am. No. 81, 1977

rep. No. 103, 2010

s. 71 ............................................... am. No. 81, 1977; No. 88, 1995

rep. No. 103, 2010

s. 72 ............................................... am. No. 81, 1977

rep. No. 103, 2010

s. 73 ............................................... rs. No. 17, 1986

am. No. 48, 1998; No. 55, 2001

rep. No. 103, 2010

ss. 73A, 73B................................... ad. No. 17, 1986

rep. No. 103, 2010

s. 74 ............................................... am. No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 118, 2004

rep. No. 103, 2010

Div. 2A of Part V........................... ad. No. 206, 1978

rep. No. 103, 2010

ss. 74A–74C................................... ad. No. 206, 1978

am. No. 17, 1986

rep. No. 103, 2010

s. 74D............................................. ad. No. 206, 1978

am. Nos. 17 and 168, 1986

rep. No. 103, 2010

s. 74E............................................. ad. No. 206, 1978

am. No. 17, 1986

rep. No. 103, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

396 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 74F ............................................. ad. No. 206, 1978

am. No. 17, 1986; No. 88, 1995

rep. No. 103, 2010

s. 74G............................................. ad. No. 206, 1978

am. No. 17, 1986

rep. No. 103, 2010

s. 74H............................................. ad. No. 206, 1978

rep. No. 103, 2010

s. 74J.............................................. ad. No. 206, 1978

am. No. 17, 1986; No. 11, 1990; No. 113, 2004

rep. No. 103, 2010

ss. 74K, 74L................................... ad. No. 206, 1978

rep. No. 103, 2010

s. 74M............................................ ad. No. 113, 2004

rep. No. 103, 2010

s. 75 ............................................... am. No. 88, 1995

rep. No. 103, 2010

s. 75A............................................. ad. No. 81, 1977

am. No. 88, 1995

rep. No. 103, 2010

Part VA.......................................... ad. No. 106, 1992

rep. No. 103, 2010

ss. 75AA–75AN............................. ad. No. 106, 1992

rep. No. 103, 2010

s. 75AO.......................................... ad. No. 106, 1992

am. No. 113, 2004

rep. No. 103, 2010

s. 75AP .......................................... ad. No. 106, 1992

rep. No. 103, 2010

ss. 75AQ, 75AR............................. ad. No. 106, 1992

am. No. 88, 1995

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 397

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

rep. No. 103, 2010

s. 75AS .......................................... ad. No. 106, 1992

am. No. 106, 1998; No. 194, 1999

rep. No. 103, 2010

Part VB.......................................... ad. No. 61, 1999

rep. No. 111, 2009

s. 75AT .......................................... ad. No. 61, 1999

am. No. 176, 1999; No. 101, 2006

rep. No. 111, 2009

s. 75AU.......................................... ad. No. 61, 1999

am. No. 176, 1999

rep. No. 111, 2009

ss. 75AV–75AX............................. ad. No. 61, 1999

rep. No. 111, 2009

s. 75AY.......................................... ad. No. 61, 1999

am. No. 146, 2001

rep. No. 111, 2009

s. 75AYA....................................... ad. No. 69, 2000

rep. No. 111, 2009

s. 75AZ .......................................... ad. No. 61, 1999

rep. No. 111, 2009

Part VC.......................................... ad. No. 31, 2001

rep. No. 103, 2010

s. 75AZA ....................................... ad. No. 31, 2001

am. Nos. 55 and 123, 2001

rep. No. 103, 2010

s. 75AZAA..................................... ad. No. 126, 2008

rep. No. 103, 2010

s. 75AZB........................................ ad. No. 31, 2001

rep. No. 103, 2010

ss. 75AZC, 75AZD ........................ ad. No. 31, 2001

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

398 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 117, 2001

rep. No. 103, 2010

s. 75AZE........................................ ad. No. 31, 2001

am. No. 117, 2001

rep. No. 103, 2010

s. 75AZF........................................ ad. No. 31, 2001

am. No. 117, 2001; No. 126, 2008

rep. No. 103, 2010

s. 75AZG ....................................... ad. No. 31, 2001

am. No. 117, 2001

rep. No. 103, 2010

ss. 75AZH–75AZL ........................ ad. No. 31, 2001

am. No. 117, 2001

rep. No. 103, 2010

ss. 75AZM, 75AZN ....................... ad. No. 31, 2001

am. No. 117, 2001

rep. No. 103, 2010

s. 75AZO ....................................... ad. No. 31, 2001

am. No. 117, 2001

rs. No. 128, 2002

rep. No. 103, 2010

ss. 75AZP, 75AZQ......................... ad. No. 31, 2001

am. No. 117, 2001

rep. No. 103, 2010

s. 75AZR........................................ ad. No. 31, 2001

rep. No. 103, 2010

s. 75AZS ........................................ ad. No. 31, 2001

am. No. 117, 2001; No. 126, 2008

rep. No. 103, 2010

s. 75AZT........................................ ad. No. 31, 2001

am. No. 117, 2001; No. 126, 2008

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 399

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

rep. No. 103, 2010

s. 75AZU ....................................... ad. No. 31, 2001

am. No. 117, 2001

rep. No. 103, 2010

Part VI

s. 75B............................................. ad. No. 81, 1977

am. No. 23, 1987; No. 222, 1992; No. 36, 1998; No. 61, 1999;

No. 69, 2000; No. 31, 2001; No. 131, 2006; No. 111, 2009; No. 103,

2010 (as am. by No. 184, 2011); No 83, 2014; No 9, 2016

s. 76 ............................................... am. No. 88, 1976; No. 81, 1977; No. 207, 1978; No. 73, 1980;

No. 222, 1992; No. 98, 1993; No. 60, 1996; No. 58, 1997; No. 61,

1999; No. 69, 2000; No. 131, 2006; No. 59, 2009; No. 111, 2009;

Nos. 44 and 103, 2010; No 83, 2014; No 107, 2014; No 9, 2016

s. 76A............................................. ad. No. 69, 2000

am. No. 131, 2006; No. 111, 2009

s. 76B............................................. ad. No. 69, 2000

am. No. 131, 2006; Nos. 59 and 111, 2009

s. 76C............................................. ad. No. 131, 2006

s. 76D............................................. ad. No. 131, 2006

rep. No. 59, 2009

ss. 76E, 76F ................................... ad. No. 44, 2010

rep. No. 103, 2010

s. 77 ............................................... am. No. 88, 1976; No. 88, 1995; Nos. 44 and 103, 2010

s. 77A............................................. ad. No. 131, 2006

am. Nos. 44 and 103, 2010; No 83, 2014

ss. 77B, 77C................................... ad. No. 131, 2006

s. 78 ............................................... am. No. 61, 1999; No. 69, 2000; No. 31, 2001; Nos. 59 and 111,

2009; No. 103, 2010 (as am. by No. 184, 2011)

s. 79 ............................................... am. No. 81, 1977; No. 17, 1986; No. 222, 1992; Nos. 31 and 63,

2001; No. 59, 2009; Nos. 4 and 103, 2010

s. 79A............................................. ad. No. 17, 1986

am. No. 31, 2001; No. 131, 2006; No. 59, 2009; No. 103, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

400 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 79B............................................. ad. No. 63, 2001

am. No. 63, 2001 (as am. by No. 63, 2002); No. 59, 2009; Nos. 44

and 103, 2010

s. 80 ............................................... am. No. 88, 1976; No. 81, 1977; No. 39, 1983; No. 17, 1986;

No. 222, 1992; No. 88, 1995; No. 60, 1996; No. 36, 1998; No. 61,

1999; No. 69, 2000; No. 31, 2001; Nos. 59 and 111, 2009; Nos. 44

and 103, 2010; No 83, 2014; No 9, 2016

s. 80A............................................. ad. No. 81, 1977

am. No. 39, 1983; No. 17, 1986; No. 222, 1992; No. 88, 1995;

No. 36, 1998

rep. No. 63, 2001

ad No 83, 2014

s. 80AA.......................................... ad. No. 73, 1980

am. No. 39, 1983; No. 87, 1988 (as am. by No. 108, 1990)

rep. No. 98, 1993

ad. No. 60, 1996

rep. SLI 2006 No. 50

s. 80AB.......................................... ad. No. 60, 1996

am. SLI 2006 No. 50

s. 80AC.......................................... ad. No. 131, 2006

s. 80B............................................. ad. No. 61, 1999

rep. No. 111, 2009

s. 81 ............................................... am. No. 88, 1976

rs. No. 81, 1977

am. No. 17, 1986; No. 222, 1992; No. 88, 1995; No. 131, 2006

s. 81A............................................. ad. No. 131, 2006

s. 82 ............................................... rs. No. 81, 1977

am. No. 17, 1986; No. 222, 1992; No. 36, 1998; No. 63, 2001; No

103, 2004: No 113, 2004; No 118, 2004; No. 11, 2006; No. 103,

2010 (as am. by No. 184, 2011); No 83, 2014; No 9, 2016

s. 83 ............................................... rs. No. 81, 1977

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 401

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 222, 1992; No. 36, 1998; Nos. 31 and 63, 2001; No. 59,

2009; No. 44, 2010; No. 103, 2010 (as am. by No. 184, 2011); No

83, 2014; No 9, 2016

ed C105

s. 84 ............................................... rs. No. 17, 1986

am. No. 70, 1990; No. 222, 1992; No. 36, 1998; No. 61, 1999; Nos.

31 and 146, 2001; Nos. 59 and 111, 2009; Nos. 44 and 103, 2010;

No. 185, 2011; No 83, 2014; No 9, 2016

s. 85 ............................................... am. No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 31, 2001;

No. 128, 2002; No. 44, 2010

rs. No. 103, 2010

am No 83, 2014

s. 86 ............................................... rs. No. 23, 1987

am. No. 222, 1992; Nos. 36 and 106, 1998; No. 194, 1999; No. 57,

2000; No. 23, 2006; No. 116, 2008; No. 59, 2009; No. 44, 2010;

No. 103, 2010 (as am. by No. 184, 2011); No. 13, 2013; No 9, 2016

s. 86AA.......................................... ad. No. 194, 1999

am. No. 161, 2000; No. 23, 2006; No. 103, 2010; No. 13, 2013

s. 86A............................................. ad. No. 23, 1987

am. No. 222, 1992; Nos. 36 and 106, 1998; Nos. 44 and 103, 2010;

No 9, 2016

s. 86B............................................. ad. No. 8, 1988

am. No. 222, 1992; No. 106, 1998; No. 44, 2010

rep. No. 103, 2010

s. 86C............................................. ad. No. 63, 2001

am. No. 63, 2001; No. 131, 2006; Nos. 59 and 111, 2009; No. 103,

2010; No 83, 2014; No 9, 2016

s. 86D............................................. ad. No. 63, 2001

am. No. 63, 2001; No. 59, 2009; Nos. 44 and 103, 2010

s. 86DA.......................................... ad. No. 44, 2010

rep. No. 103, 2010

s. 86E............................................. ad. No. 131, 2006

am. No. 59, 2009; Nos. 44 and 103, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

402 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 86F ............................................. ad. No. 59, 2009

s. 87 ............................................... am. No. 81, 1977; No. 39, 1983; Nos. 17 and 168, 1986; No. 222,

1992; No. 49, 1994; No. 88, 1995; No. 36, 1998; Nos. 31 and 63,

2001; No 113, 2004; No. 118, 2004; No. 11, 2006; No. 59, 2009;

No. 44, 2010; No. 103, 2010 (as am. by No. 184, 2011; No. 136,

2012); No 83, 2014; No 9, 2016

s. 87AAA....................................... ad. No. 44, 2010

am. No. 44, 2010

rep. No. 103, 2010

s. 87AAB ....................................... ad. No. 44, 2010

rep. No. 103, 2010

s. 87A............................................. ad. No. 17, 1986

am. No. 222, 1992; Nos. 31 and 146, 2001; No. 44, 2010

rep. No. 103, 2010

s. 87AA.......................................... ad. No. 60, 1996

am. SLI 2006 No. 50; No. 54, 2009

s. 87AB.......................................... ad. No. 118, 2004

rep. No. 103, 2010

s. 87AC.......................................... ad. No. 44, 2010

rep. No. 103, 2010

s. 87B............................................. ad. No. 222, 1992

am. No. 131, 2006

s. 87C............................................. ad. No. 141, 1994

am. No. 5, 2011

s. 87CA.......................................... ad. No. 63, 2001

s. 87CAA ....................................... ad. No. 113, 2004

rep. No. 103, 2010

Part VIA

Part VIA......................................... ad. No. 103, 2004

s. 87CB .......................................... ad. No. 103, 2004

am. No. 103, 2010

ss. 87CC–87CI............................... ad. No. 103, 2004

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Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 403

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Part VIB

Part VIB......................................... ad. No. 113, 2004

Division 1

s. 87D............................................. ad. No. 113, 2004

am. No. 59, 2009; No. 103, 2010

s. 87E............................................. ad. No. 113, 2004

am. No. 103, 2010

Division 2

ss. 87F–87H................................... ad. No. 113, 2004

ss. 87J, 87K.................................... ad. No. 113, 2004

Division 3

s 87L.............................................. ad No 113, 2004

s 87M............................................. ad No 113, 2004

s 87N.............................................. ad No 113, 2004

am No 4, 2016

ss. 87P–87T ................................... ad. No. 113, 2004

Division 4

ss. 87U, 87V .................................. ad. No. 113, 2004

Division 5

ss. 87W, 87X ................................. ad. No. 113, 2004

Division 6

s. 87Y............................................. ad. No. 113, 2004

am. No. 103, 2013; No 126, 2015

s. 87Z............................................. ad. No. 113, 2004

ss. 87ZA, 87ZB.............................. ad. No. 113, 2004

Division 7

s. 87ZC .......................................... ad. No. 113, 2004

Part VIC......................................... ad. No. 44, 2010

rep. No. 103, 2010

ss. 87ZD–87ZK.............................. ad. No. 44, 2010

rep. No. 103, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

404 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Part VID......................................... ad. No. 44, 2010

rep. No. 103, 2010

ss. 87ZL–87ZO.............................. ad. No. 44, 2010

rep. No. 103, 2010

Part VII

Heading to Part VII........................ am. No. 81, 1977; No. 206, 1978

rs. No. 131, 2006

Division 1

Heading to Div. 1 of ......................

Part VII

rs. No. 131, 2006

s. 87D.............................................

Renumbered s. 87ZD .....................

ad. No. 101, 1998

No. 113, 2004

s. 87ZD ..........................................

Renumbered s. 87ZP......................

am. No. 131, 2006

No. 44, 2010

s. 88 ............................................... rs. No. 81, 1977

am. Nos. 206 and 207, 1978; No. 73, 1980; No. 17, 1986; No. 222,

1992; No. 98, 1993; No. 88, 1995; No. 60, 1996; No. 101, 1998;

No. 131, 2006; No. 59, 2009; No. 185, 2011

s. 89 ............................................... am. No. 88, 1976; No. 81, 1977; No. 17, 1986; No. 222, 1992;

No. 88, 1995; No. 101, 1998; No. 131, 2006; No. 103, 2010

s. 90 ............................................... am. No. 88, 1976; No. 81, 1977; No. 206, 1978; No. 73, 1980;

No. 17, 1986; No. 11, 1990; No. 222, 1992; No. 98, 1993; No. 88,

1995; No. 60, 1996; No. 108, 2004; No. 131, 2006; No. 59, 2009;

No. 185, 2011

s. 90A............................................. ad. No. 81, 1977

am. No. 17, 1986; No. 88, 1995; No 61, 2016

s. 90B............................................. ad. No. 108, 2004

am. No. 60, 2006

s. 91 ............................................... am. No. 81, 1977; No. 17, 1986; No. 101, 1998

s. 91A............................................. ad. No. 101, 1998

am. No. 108, 2004; No. 131, 2006; No. 59, 2009; No. 185, 2011

s. 91B............................................. ad. No. 101, 1998

am. No. 108, 2004; No. 131, 2006; No. 59, 2009; No. 185, 2011

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 405

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 91C............................................. ad. No. 101, 1998

am. No. 108, 2004; No. 131, 2006; No. 59, 2009; No. 185, 2011

Division 2

Heading to Div. 2 of ......................

Part VII

rs. No. 81, 1977

am. No. 206, 1978

s. 92 ............................................... rep. No. 81, 1977

Subdivision A

Heading to Subdiv. A of ................

Div. 2 of Part VII

ad. No. 131, 2006

rs. No. 185, 2011

s. 93 ............................................... rs. No. 81, 1977

am. No. 206, 1978; No. 17, 1986; No. 88, 1995; No. 131, 2006;

No. 185, 2011

Subdivision B

Subdiv. B of Div. 2 of....................

Part VII

ad. No. 131, 2006

s. 93AA.......................................... ad. No. 131, 2006

am. No. 59, 2009

s. 93AB.......................................... ad. No. 131, 2006

am. Nos. 54 and 59, 2009

s. 93AC.......................................... ad. No. 131, 2006

am. No. 59, 2009

ss. 93AD, 93AE ............................. ad. No. 131, 2006

s. 93AEA ....................................... ad. No. 59, 2009

s. 93AF .......................................... ad. No. 131, 2006

am. No. 59, 2009

Subdivision C

Heading to Subdiv. C of.................

Div. 2 of Part VII

ad. No. 131, 2006

s. 93A............................................. ad. No. 81, 1977

am. No. 88, 1995; No. 131, 2006; No. 59, 2009; No 61, 2016

s. 94 ............................................... rep. No. 81, 1977

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

406 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Subdivision D

Heading to Subdiv. D of ................

Div. 2 of Part VII

ad. No. 131, 2006

s. 95 ............................................... rs. No. 81, 1977

am. No. 17, 1986; No. 222, 1992; No. 88, 1995; No. 36, 1998;

No. 131, 2006; No. 103, 2010

Division 3

Div. 3 of Part VII ........................... ad. No. 131, 2006

Subdivision A

ss. 95AA, 95AB............................. ad. No. 131, 2006

Subdivision B

ss. 95AC–95AF.............................. ad. No. 131, 2006

s. 95AG.......................................... ad. No. 131, 2006

am. No. 8, 2010

ss. 95AH–95AQ............................. ad. No. 131, 2006

s. 95AR.......................................... ad. No. 131, 2006

am. No. 8, 2010

s. 95AS .......................................... ad. No. 131, 2006

am. No. 8, 2010

Subdivision C

ss. 95AT–95AX ............................. ad. No. 131, 2006

s 95AY........................................... ad. No. 131, 2006

am. No. 8, 2010

s 95AZ ........................................... ad. No. 131, 2006

s. 95AZA ....................................... ad. No. 131, 2006

ss. 95AZC–95AZE......................... ad. No. 131, 2006

s. 95AZEA..................................... ad. No. 131, 2006

s. 95AZF........................................ ad. No. 131, 2006

s. 95AZFA ..................................... ad. No. 131, 2006

ss. 95AZG–95AZK........................ ad. No. 131, 2006

s. 95AZL........................................ ad. No. 131, 2006

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 407

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 8, 2010

s. 95AZM....................................... ad. No. 131, 2006

am. No. 8, 2010

Subdivision D

s. 95AZN ....................................... ad. No. 131, 2006

Part VIIA

Part VIIA ....................................... ad. No. 134, 2003

Division 1

ss. 95A–95F................................... ad. No. 134, 2003

Division 2

s. 95G............................................. ad. No. 134, 2003

Division 3

Subdivision A

s 95H.............................................. ad No 134, 2003

s 95J............................................... ad No 134, 2003

s 95K.............................................. ad No 134, 2003

s 95L.............................................. ad No 134, 2003

s 95M............................................. ad No 134, 2003

s 95N.............................................. ad No 134, 2003

am No 4, 2016

Subdivision B

s 95P .............................................. ad No 134, 2003

s 95Q.............................................. ad No 134, 2003

am No 4, 2016

Subdivision C

s 95R.............................................. ad No 134, 2003

s 95S .............................................. ad No 134, 2003

s 95T.............................................. ad No 134, 2003

am No 4, 2016

s 95U.............................................. ad No 134, 2003

s 95V.............................................. ad No 134, 2003

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

408 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s 95W............................................. ad No 134, 2003

Division 4

s 95X.............................................. ad No 134, 2003

s 95Y.............................................. ad No 134, 2003

s 95Z.............................................. ad No 134, 2003

am No 4, 2016

ss. 95ZA–95ZD.............................. ad. No. 134, 2003

Division 5

ss. 95ZE–95ZG.............................. ad. No. 134, 2003

Division 6

s 95ZH ........................................... ad No 134, 2003

s 95ZI............................................. ad No 134, 2003

s 95ZJ ............................................ ad No 134, 2003

s 95ZK ........................................... ad No 134, 2003

am No 4, 2016

s 95ZL............................................ ad No 134, 2003

s 95ZM........................................... ad No 134, 2003

s 95ZN ........................................... ad No 134, 2003

s 95ZO ........................................... ad No 134, 2003

s 95ZP............................................ ad No 134, 2003

am No 4, 2016

s 95ZQ ........................................... ad No 134, 2003

am No 4, 2016

Part VIII

s. 96 ............................................... am. No. 88, 1995

s. 96A............................................. ad. No. 88, 1995

s. 97 ............................................... am. No. 88, 1995

s. 100 ............................................. am. No. 88, 1976; No. 88, 1995

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 409

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Part IX

Division 1

Heading to Div. 1 of ......................

Part IX

rs. No. 131, 2006

s. 101 ............................................. am. No. 88, 1976; No. 81, 1977; No. 17, 1986; No. 88, 1995;

No. 101, 1998; No. 131, 2006; No. 59, 2009; No. 185, 2011

s. 101A........................................... ad. No. 81, 1977

am. No. 88, 1995; No. 131, 2006

s. 102 ............................................. rs. No. 81, 1977

am. No. 222, 1992; No. 88, 1995; No. 101, 1998; No. 131, 2006

Division 2

s. 102A........................................... ad. No. 131, 2006

s. 103 ............................................. am. No. 131, 2006

s. 104 ............................................. am. No. 88, 1995

s. 109 ............................................. am. No. 81, 1977; No. 88, 1995; No. 131, 2006

s. 110 ............................................. am. No. 88, 1976

Division 3

Div. 3 of Part IX ............................ ad. No. 131, 2006

s. 111 ............................................. am. No. 88, 1976

rep. No. 34, 1989

ad. No. 131, 2006

ss. 112–119 .................................... rep. No. 34, 1989

ad. No. 131, 2006

Part X

Part X............................................. rs. No. 34, 1989

Division 1

s. 10.01........................................... ad. No. 34, 1989

am. No. 123, 2000

s. 10.01A........................................ ad. No. 123, 2000

am. No. 59, 2009

s. 10.02........................................... ad. No. 34, 1989

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

410 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 173, 1991; No. 123, 2000

s. 10.02A........................................ ad. No. 123, 2000

am. No. 109, 2006

s. 10.03........................................... ad. No. 34, 1989

am. No. 123, 2000; No. 109, 2006

Division 2

s. 10.04........................................... ad. No. 34, 1989

s. 10.05........................................... ad. No. 34, 1989

rep. No. 123, 2000

Division 3

ss. 10.06, 10.07 .............................. ad. No. 34, 1989

am. No. 123, 2000

s. 10.08........................................... ad. No. 34, 1989

am. No. 123, 2000; No. 59, 2009

s. 10.09........................................... ad. No. 34, 1989

Division 4

s. 10.10........................................... ad. No. 34, 1989

s. 10.11........................................... ad. No. 34, 1989

am. No. 123, 2000

s. 10.12........................................... ad. No. 34, 1989

s. 10.13........................................... ad. No. 34, 1989

am. No. 123, 2000

Division 5

Subdivision A

s. 10.14........................................... ad. No. 34, 1989

rs. No. 123, 2000

s. 10.15........................................... ad. No. 34, 1989

am. No. 123, 2000

s. 10.15A........................................ ad. No. 123, 2000

rep. No. 123, 2000

s. 10.16........................................... ad. No. 34, 1989

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 411

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 123, 2000

s. 10.17........................................... ad. No. 34, 1989

am. No. 123, 2000; No. 59, 2009

s. 10.17A........................................ ad. No. 173, 1991

rs. No. 123, 2000

am. No. 59, 2009

s. 10.18........................................... ad. No. 34, 1989

am. No. 123, 2000

s. 10.18A........................................ ad. No. 173, 1991

rs. No. 123, 2000

Subdivision B

s. 10.19........................................... ad. No. 34, 1989

am. No. 123, 2000; No. 59, 2009

s. 10.20........................................... ad. No. 34, 1989

am. No. 123, 2000

s. 10.21........................................... ad. No. 34, 1989

s. 10.21A........................................ ad. No. 123, 2000

rep. No. 123, 2000

Subdiv. C of Div. 5 of....................

Part X

rep. No. 123, 2000

ss. 10.22, 10.23 .............................. ad. No. 34, 1989

rep. No. 123, 2000

Subdivision D

s. 10.24........................................... ad. No. 34, 1989

am. No. 123, 2000; No. 59, 2009

s. 10.24A........................................ ad. No. 123, 2000

am. No. 7, 2003; No. 59, 2009

Division 6

Subdivision A

ss. 10.25, 10.26 .............................. ad. No. 34, 1989

s. 10.27........................................... ad. No. 34, 1989

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

412 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 173, 1991; No. 123, 2000

s. 10.27A........................................ ad. No. 123, 2000

ss. 10.28, 10.29 .............................. ad. No. 34, 1989

am. No. 123, 2000

Subdivision B

ss. 10.30, 10.31 .............................. ad. No. 34, 1989

s. 10.32........................................... ad. No. 34, 1989

am. No. 173, 1991

s. 10.33........................................... ad. No. 34, 1989

am. No. 123, 2000

Subdivision C

ss. 10.34–10.36 .............................. ad. No. 34, 1989

s. 10.37........................................... ad. No. 34, 1989

am. No. 123, 2000

s. 10.38........................................... ad. No. 34, 1989

Subdivision D

s. 10.39........................................... ad. No. 34, 1989

am. No. 173, 1991

s. 10.40........................................... ad. No. 34, 1989

am. No. 123, 2000

Division 7

s. 10.41........................................... ad. No. 34, 1989

am. No. 123, 2000

s. 10.42........................................... ad. No. 34, 1989

am. No. 173, 1991

s. 10.43........................................... ad. No. 34, 1989

am. No. 123, 2000

Division 8

s. 10.44........................................... ad. No. 34, 1989

am. No. 123, 2000

s. 10.45........................................... ad. No. 34, 1989

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Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 413

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 123, 2000; No. 59, 2009

ss. 10.46, 10.47 .............................. ad. No. 34, 1989

am. No. 123, 2000

s. 10.48........................................... ad. No. 34, 1989

am. No. 123, 2000

s. 10.49........................................... ad. No. 34, 1989

s. 10.49A........................................ ad. No. 123, 2000

Division 9

s. 10.50–10.53................................ ad. No. 34, 1989

am. No. 123, 2000

Division 10

s. 10.54........................................... ad. No. 34, 1989

ss. 10.55, 10.56 .............................. ad. No. 34, 1989

am. No. 123, 2000

s. 10.57........................................... ad. No. 34, 1989

s. 10.58........................................... ad. No. 34, 1989

am. No. 123, 2000

ss. 10.59, 10.60 .............................. ad. No. 34, 1989

Division 11

s. 10.61........................................... ad. No. 34, 1989

s. 10.62........................................... ad. No. 34, 1989

am. No. 123, 2000

ss. 10.63, 10.64 .............................. ad. No. 34, 1989

am. No. 123, 2000

s. 10.65........................................... ad. No. 34, 1989

ss. 10.66, 10.67 .............................. ad. No. 34, 1989

am. No. 123, 2000

Division 12

s 10.68 ........................................... ad No 34, 1989

am No 4, 2016; No 61, 2016

s 10.69 ........................................... ad No 34, 1989

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Endnotes

Endnote 4—Amendment history

414 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s 10.70 ........................................... ad No 34, 1989

s 10.71 ........................................... ad No 34, 1989

s 10.72 ........................................... ad No 34, 1989

Division 12A

Div. 12A of Part X......................... ad. No. 123, 2000

s. 10.72A........................................ ad. No. 123, 2000

am. No. 123, 2000; No. 109, 2006; No 126, 2015

ss. 10.72B–10.72D......................... ad. No. 123, 2000

Division 13

ss. 10.73–10.76 .............................. ad. No. 34, 1989

Division 14

ss. 10.77–10.79 .............................. ad. No. 34, 1989

s. 10.80........................................... ad. No. 34, 1989

am. No. 146, 1999

s. 10.81........................................... ad. No. 34, 1989

am. No. 123, 2000

s. 10.82........................................... ad. No. 34, 1989

Division 14A

Div. 14A of Part X......................... ad. No. 123, 2000

ss. 10.82A–10.82C......................... ad. No. 123, 2000

Division 14B

Div. 14B of Part X ......................... ad. No. 123, 2000

ss. 10.82D–10.82G......................... ad. No. 123, 2000

Division 15

s 10.83 ........................................... ad No 34, 1989

s 10.84 ........................................... ad No 34, 1989

s 10.85 ........................................... ad No 34, 1989

s 10.86 ........................................... ad No 34, 1989

ed C105

ss. 10.87, 10.88 .............................. ad. No. 34, 1989

am. No. 123, 2000

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 415

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 10.89........................................... ad. No. 34, 1989

s. 10.90........................................... ad. No. 34, 1989

am. No. 173, 1991; No. 123, 2000

s. 10.91........................................... ad. No. 34, 1989

am. No. 131, 2006

ss. 10.92, 10.93 .............................. ad. No. 34, 1989

rep. No. 123, 2000

ss. 120–129 .................................... rep. No. 34, 1989

Part XI

Part XI ........................................... rep. No. 88, 1995

ad. No. 44, 2010

rs. No. 103, 2010

Division 1

s. 130 ............................................. rep. No. 34, 1989

ad. No. 44, 2010

rs. No. 103, 2010

am No 24, 2016

s. 130A........................................... ad. No. 103, 2010

Division 2

Subdivision A

s. 131 ............................................. rep. No. 34, 1989

ad. No. 44, 2010

rs. No. 103, 2010

am. No. 184, 2011

ss. 131A–131C............................... ad. No. 103, 2010

Subdivision B

s 131D............................................ ad No 103, 2010

s 131E ............................................ ad No 103, 2010

am No 126, 2015

s 131F ............................................ ad No 103, 2010

s 131G............................................ ad No 103, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

416 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Division 3

Subdivision A

s. 132 ............................................. rep. No. 34, 1989

ad. No. 44, 2010

rs. No. 103, 2010

ss. 132A–132D .............................. ad. No. 103, 2010

Subdivision B

ss. 132E–132G............................... ad. No. 103, 2010

Subdivision C

s. 132H........................................... ad. No. 103, 2010

Subdivision D

ss. 132J, 132K................................ ad. No. 103, 2010

Division 4

Subdivision A

s. 133 ............................................. rep. No. 34, 1989

ad. No. 44, 2010

rs. No. 103, 2010

s. 133A........................................... ad. No. 103, 2010

Subdivision B

ss. 133B, 133C............................... ad. No. 103, 2010

Subdivision C

ss. 133D–133G .............................. ad. No. 103, 2010

Subdivision D

s. 133H........................................... ad. No. 103, 2010

s. 133J............................................ ad. No. 103, 2010

Division 5

s. 134 ............................................. rep. No. 34, 1989

ad. No. 44, 2010

rs. No. 103, 2010

ss. 134A–134G .............................. ad. No. 103, 2010

Division 6

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 417

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Subdivision A

s. 135 ............................................. rep. No. 34, 1989

ad. No. 44, 2010

rs. No. 103, 2010

ss. 135A–135G .............................. ad. No. 103, 2010

Subdivision B

s. 135H........................................... ad. No. 103, 2010

s. 135J............................................ ad. No. 103, 2010

Subdivision C

ss. 135K–135N .............................. ad. No. 103, 2010

s. 135P ........................................... ad. No. 103, 2010

Subdivision D

ss. 135Q, 135R............................... ad. No. 103, 2010

Subdivision E

ss. 135S–135Y............................... ad. No. 103, 2010

Subdivision F

s. 135Z ........................................... ad. No. 103, 2010

s. 136 ............................................. rep. No. 34, 1989

ad. No. 44, 2010

rs. No. 103, 2010

s. 136A........................................... ad. No. 103, 2010

Subdivision G

s. 136B........................................... ad. No. 103, 2010

Division 7

s. 137 ............................................. am. No. 88, 1976

rep. No. 34, 1989

ad. No. 44, 2010

rs. No. 103, 2010

s 137A............................................ ad No 103, 2010

s 137B............................................ ad No 103, 2010

s 137C............................................ ad No 103, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

418 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s 137D............................................ ad No 103, 2010

am No 147, 2015

s 137E ............................................ ad No 103, 2010

s 137F ............................................ ad No 103, 2010

am No 147, 2015

s 137G............................................ ad No 103, 2010

s 137H............................................ ad No 103, 2010

Division 8

s. 138 ............................................. rep. No. 34, 1989

ad. No. 44, 2010

rs. No. 103, 2010

am. No. 13, 2013

s. 138A........................................... ad. No. 103, 2010

am. No. 13, 2013

s. 138B........................................... ad. No. 103, 2010

s. 138C........................................... ad. No. 103, 2010

s. 138D........................................... ad. No. 103, 2010

s. 138E ........................................... ad. No. 103, 2010

Division 9

s. 139 ............................................. rep. No. 34, 1989

ad. No. 44, 2010

rs. No. 103, 2010

s. 139A........................................... ad. No. 103, 2010

s. 139B........................................... ad. No. 103, 2010

s. 139C........................................... ad. No. 103, 2010

am. No. 136, 2012

s. 139D........................................... ad. No. 103, 2010

s. 139DA........................................ ad. No. 103, 2010

s 139E ............................................ ad No 103, 2010

s 139F ............................................ ad No 103, 2010

s 139G............................................ ad No 103, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 419

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am No 147, 2015

Part XIAA

Part XIAA...................................... ad. No. 61, 1999

rep. No. 111, 2009

ad. No. 103, 2010

s. 140 ............................................. am. No. 88, 1976

rep. No. 34, 1989

ad. No. 44, 2010

rs. No. 103, 2010

ss. 140A–140H .............................. ad. No. 103, 2010

ss. 140J, 140K................................ ad. No. 103, 2010

ss. 141–143 .................................... rep. No. 34, 1989

ad. No. 44, 2010

rep. No. 103, 2010

ss. 144–146 .................................... rep. No. 34, 1989

ss. 147, 148 .................................... rep. No. 88, 1995

s. 149 ............................................. am. No. 88, 1976; No. 81, 1977

rep. No. 88, 1995

s. 150 ............................................. rep. No. 173, 1991

Part XIA

Part XIA......................................... ad. No. 88, 1995

s. 150A........................................... ad. No. 88, 1995

am. No. 61, 1999; No. 131, 2006; No. 44, 2010

ss. 150B, 150C............................... ad. No. 88, 1995

s. 150D........................................... ad. No. 88, 1995

am. No. 57, 2000

s. 150E ........................................... ad. No. 88, 1995

s. 150F ........................................... ad. No. 88, 1995

rs. No. 131, 2006

ss. 150FA, 150FB .......................... ad. No. 131, 2006

ss. 150G–150I................................ ad. No. 88, 1995

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

420 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 150J............................................ ad. No. 88, 1995

am. No. 131, 2006

s. 150K........................................... ad. No. 88, 1995

ss. 150L–150N............................... ad. No. 61, 1999

rep. No. 111, 2009

s. 150O........................................... ad. No. 61, 1999

am. No. 57, 2000

rep. No. 111, 2009

ss. 150P–150T................................ ad. No. 61, 1999

rep. No. 111, 2009

s. 151 ............................................. rep. No. 173, 1991

Part XIB

Part XIB......................................... ad. No. 58, 1997

Division 1

s. 151AA........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 140, 2002

s. 151AB ........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 140, 2002; No. 45, 2005; No. 23, 2011

s. 151AC ........................................ ad. No. 58, 1997

am No 33, 2016

s. 151AD........................................ ad. No. 58, 1997

s. 151AE ........................................ ad. No. 58, 1997

s. 151AF ........................................ ad. No. 58, 1997

am. No. 140, 2010

s. 151AG........................................ ad. No. 58, 1997

s. 151AH........................................ ad. No. 58, 1997

am. No. 159, 2007

s. 151AI ......................................... ad. No. 58, 1997

Division 2

s. 151AJ ......................................... ad. No. 58, 1997

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 421

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 200, 1997; No. 52, 1999; No. 131, 2006; No. 159, 2007;

No. 59, 2009; No. 140, 2010; No. 23, 2011

s. 151AK........................................ ad. No. 58, 1997

Division 3

Subdivision A

s. 151AKA..................................... ad. No. 52, 1999

am. No. 140, 2002; No. 140, 2010

s. 151AL ........................................ ad. No. 58, 1997

am. No. 200, 1997; No. 52, 1999

s. 151AM ....................................... ad. No. 58, 1997

am. No. 200, 1997

s. 151AN........................................ ad. No. 58, 1997

am. No. 200, 1997; No. 52, 1999

s. 151AO........................................ ad. No. 58, 1997

am. No. 52, 1999

ss. 151AOA, 151AOB ................... ad. No. 52, 1999

s. 151AP ........................................ ad. No. 58, 1997

am. No. 140, 2002

s. 151AQ........................................ ad. No. 58, 1997

s. 151AQA..................................... ad. No. 52, 1999

am. No. 194, 1999; No. 13, 2013

s. 151AQB ..................................... ad. No. 52, 1999

am. No. 46, 2001; No. 140, 2002

s. 151AR ........................................ ad. No. 58, 1997

Subdivision B

ss. 151AS, 151AT.......................... ad. No. 58, 1997

s. 151AU........................................ am. No. 140, 2002

ss. 151AV–151AX......................... ad. No. 58, 1997

s. 151AY........................................ ad. No. 58, 1997

am. No. 131, 2006; No. 59, 2009

s. 151AZ ........................................ ad. No. 58, 1997

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

422 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 151BA........................................ ad. No. 58, 1997

s. 151BB ........................................ ad. No. 58, 1997

s. 151BC ........................................ ad. No. 58, 1997

am. No. 169, 2012

s. 151BD........................................ ad. No. 58, 1997

s. 151BE ........................................ ad. No. 58, 1997

s. 151BF......................................... ad. No. 58, 1997

s. 151BG........................................ ad. No. 58, 1997

s. 151BH........................................ ad. No. 58, 1997

s. 151BI.......................................... ad. No. 58, 1997

rep. No. 146, 2001

Subdivision C

s. 151BJ ......................................... ad. No. 58, 1997

Division 4

ss. 151BK–151BR ......................... ad. No. 58, 1997

s. 151BS......................................... ad. No. 58, 1997

rep. No. 146, 2001

s. 151BT ........................................ ad. No. 58, 1997

Division 5

s. 151BTA...................................... ad. No. 58, 1997

am. No. 146, 2001; No. 140, 2010

Division 6

Heading to Div. 6 of ......................

Part XIB

rs. No. 52, 1999

s. 151BU........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 23, 2011

s 151BUAA ................................... ad. No. 140, 2002

am. No. 46, 2011; No 10, 2015; No 126, 2015

s. 151BUAAA................................ ad. No. 140, 2002

rep. No. 140, 2010

s. 151BUAB................................... ad. No. 140, 2002

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 423

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 151BUA ..................................... ad. No. 52, 1999

am No 52, 1999; No 146, 2001; No 23, 2011; No 46, 2011; No 4,

2016

s. 151BUB ..................................... ad. No. 52, 1999

am No 52, 1999; No 146, 2001; No 23, 2011; No 46, 2011; No 4,

2016

s. 151BUC ..................................... ad. No. 52, 1999

am. No. 52, 1999; No. 146, 2001; No 23, 2011; No 46, 2011; No 4,

2016

s. 151BUD ..................................... ad. No. 52, 1999

am No 46, 2011; No 103, 2013; No 126, 2015

s. 151BUDA .................................. ad. No. 140, 2002

am. No. 46, 2011; No 4, 2016

s. 151BUDB................................... ad. No. 140, 2002

am. No. 46, 2011; No 4, 2016

s. 151BUDC................................... ad. No. 140, 2002

am. No. 46, 2011; No 4, 2016

s. 151BUE...................................... ad. No. 52, 1999

am. No. 8, 2010

s. 151BUF...................................... ad. No. 52, 1999

s. 151BV........................................ ad. No. 58, 1997

am. No. 146, 2001; No 4, 2016

Division 7

Heading to Div. 7 of ......................

Part XIB

rs. No. 52, 1999

s. 151BW ....................................... ad. No. 58, 1997

am. No. 52, 1999

s. 151BX........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 119, 2005

s. 151BY........................................ ad. No. 58, 1997

am. No. 52, 1999

s. 151BZ ........................................ ad. No. 58, 1997

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

424 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 52, 1999; No. 146, 2001; No. 59, 2009

ss. 151CA–151CC ......................... ad. No. 58, 1997

am. No. 52, 1999

s. 151CD........................................ ad. No. 58, 1997

s. 151CE ........................................ ad. No. 58, 1997

am. No. 52, 1999

s. 151CF......................................... ad. No. 58, 1997

Division 8

s. 151CG........................................ ad. No. 58, 1997

Division 9

s. 151CH........................................ ad. No. 58, 1997

Division 10

s. 151CI.......................................... ad. No. 58, 1997

am. No. 52, 1999

s. 151CJ ......................................... ad. No. 58, 1997

am. No. 140, 2002

s. 151CK........................................ ad. No. 58, 1997

Division 11

s. 151CL ........................................ ad. No. 58, 1997

Division 12

s. 151CM ....................................... ad. No. 58, 1997

am. No. 52, 1999; No. 46, 2001; No. 111, 2009; No 38, 2015

Division 12A

Div. 12A of Part XIB ..................... ad. No. 52, 1999

s 151CMA ..................................... ad. No. 52, 1999

am No 10, 2015

s 151CMB...................................... ad. No. 52, 1999

am No 10, 2015

s 151CMC...................................... ad. No. 52, 1999

am No 10, 2015

Division 13 .................................... rep No 109, 2014

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 425

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 151CN........................................ ad. No. 58, 1997

rep No 109, 2014

Division 14 .................................... ad No 119, 2005

rep No 140, 2010

rs No 140, 2010

s. 151CP......................................... ad No 119, 2005

rep No 140, 2010

rs No 140, 2010

Division 15

Div. 15 of Part XIB........................ ad. No. 140, 2010

s. 151CQ........................................ ad. No. 140, 2010

Division 16

Div. 16 of Part XIB........................ ad. No. 23, 2011

s. 151DA........................................ ad. No. 23, 2011

s. 151DB........................................ ad. No. 23, 2011

s. 151DC........................................ ad. No. 23, 2011

rep No 109, 2014

s. 151DD........................................ ad. No. 23, 2011

rep No 109, 2014

s. 152 ............................................. rep. No. 173, 1991

Part XIC

Part XIC......................................... ad. No. 58, 1997

Division 1

s. 152AA........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 140, 2010; No. 23, 2011

s. 152AB ........................................ ad. No. 58, 1997

am. No. 119, 2005

s. 152AC ........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 140, 2002; Nos. 45 and 119, 2005; No. 140,

2010; No. 23, 2011; No 109, 2014

s. 152AD........................................ ad. No. 58, 1997

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

426 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 152AE ........................................ ad. No. 58, 1997

am No 33, 2016

s. 152AF ........................................ ad. No. 58, 1997

am. No. 140, 2010

s. 152AG........................................ ad. No. 58, 1997

am. No. 23, 2011

s. 152AGA..................................... ad. No. 23, 2011

am. No. 136, 2012

s. 152AH........................................ ad. No. 58, 1997

s. 152AI ......................................... ad. No. 58, 1997

rep. No. 140, 2002

ad. No. 140, 2010

ss. 152AJ, 152AK .......................... ad. No. 58, 1997

Division 2

s. 152AL ........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 7, 2008; No. 23, 2011; No 126, 2015

s. 152ALA ..................................... ad. No. 140, 2002

am. No. 7, 2008; No. 140, 2010; No. 23, 2011; No 126, 2015

s. 152AM ....................................... ad. No. 58, 1997

am. No. 140, 2002; No. 45, 2005; No. 140, 2010; No. 23, 2011

s. 152AN........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 140, 2002; No. 23, 2011

s. 152AO........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 119, 2005; No. 23, 2011

s. 152AP ........................................ ad. No. 58, 1997

rep. No. 140, 2002

s. 152AQ........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 140, 2010; No. 23, 2011

s. 152AQA..................................... ad. No. 124, 2001

am. No. 140, 2002

rep. No. 140, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 427

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 152AQB ..................................... ad. No. 140, 2002

am. No. 45, 2005

rep. No. 140, 2010

s. 152AQC ..................................... ad. No. 7, 2008

Division 3

Subdivision A

Heading to Subdiv. A of ................

Div. 3 of Part XIC

ad. No. 23, 2011

s. 152AR ........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 140, 2010; No 23, 2011; No 46, 2011; No

126, 2015

ss. 152ARA, 152ARB.................... ad. No. 23, 2011

s. 152AS ........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 119, 2005

rep. No. 140, 2010

s. 152ASA...................................... ad. No. 140, 2002

am. No. 119, 2005; No. 140, 2010; No. 23, 2011

s. 152AT ........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 119, 2005; No. 8, 2010

rep. No. 140, 2010

s. 152ATA ..................................... ad. No. 140, 2002

am. No. 119, 2005; Nos. 8 and 140, 2010; No. 23, 2011

s. 152AU........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 119, 2005; No. 140, 2010

s. 152AV........................................ ad. No. 58, 1997

am. No. 140, 2002

rep. No. 140, 2010

s. 152AW....................................... ad. No. 58, 1997

rs. No. 140, 2002

am. No. 8, 2010

rep. No. 140, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

428 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 152AX........................................ ad. No. 58, 1997

am. No. 140, 2002

rep. No. 140, 2010

s. 152AXA..................................... ad. No. 140, 2002

am. No. 140, 2010

Subdivision B

Subdiv. B of Div. 3 of....................

Part XIC

ad. No. 23, 2011

ss. 152AXB–152AXD ................... ad. No. 23, 2011

Subdivision C

Heading to Subdiv. C of.................

Div. 3 of Part XIC

ad. No. 23, 2011

s. 152AY........................................ ad. No. 58, 1997

rs. No. 140, 2010

s. 152AYA..................................... ad. No. 52, 1999

s. 152AZ ........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 23, 2011

s. 152BA........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 23, 2011

s. 152BB ........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 119, 2005; No. 23, 2011

s. 152BBAA................................... ad. No. 119, 2005

am. No. 140, 2010

ss. 152BBA, 152BBB .................... ad. No. 52, 1999

s. 152BBC...................................... ad. No. 52, 1999

am. No. 140, 2010

s. 152BBD ..................................... ad. No. 124, 2001

am. No. 23, 2011

Division 4

Div. 4 of Part XIC.......................... rs. No. 140, 2010

Subdivision A

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 429

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Subdiv. A of Div. 4 of....................

Part XIC

rep. No. 140, 2002

ad. No. 140, 2010

s. 152BC ........................................ ad. No. 58, 1997

rep. No. 140, 2002

ad. No. 140, 2010

am. No. 23, 2011; No. 136, 2012

s. 152BCA ..................................... ad. No. 140, 2010

s. 152BCB...................................... ad. No. 140, 2010

am. No. 23, 2011

s. 152BCC...................................... ad. No. 140, 2010

s. 152BCCA................................... ad. No. 140, 2010

ss. 152BCD, 152BCE .................... ad. No. 140, 2010

s. 152BCF...................................... ad. No. 140, 2010

am. No. 23, 2011

s. 152BCG ..................................... ad. No. 140, 2010

s. 152BCGA................................... ad. No. 140, 2010

Subdivision B

Heading to Subdiv. B of.................

Div. 4 of Part XIC

rep. No. 140, 2002

ad. No. 140, 2010

ss. 152BCH–152BCJ ..................... ad. No. 140, 2010

s. 152BCK ..................................... ad. No. 140, 2010

am. No. 23, 2011

Subdivision C

Subdiv. C of Div. 4 of....................

Part XIC

rep. No. 140, 2002

ad. No. 140, 2010

s. 152BCN ..................................... ad. No. 140, 2010

Subdivision D

Heading to Subdiv. D of ................

Div. 4 of Part XIC

rep. No. 140, 2002

ad. No. 140, 2010

ss. 152BCO, 152BCP..................... ad. No. 140, 2010

Subdivision E

ss. 152BCQ–152BCV.................... ad. No. 140, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

430 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Subdivision F

s. 152BCW..................................... ad. No. 140, 2010

Division 4A

Div. 4A of Part XIC....................... ad. No. 140, 2010

Subdivision A

s. 152BD........................................ ad. No. 58, 1997

rep. No. 140, 2002

ad. No. 140, 2010

am. No. 23, 2011

s. 152BDAA .................................. ad. No. 140, 2010

s. 152BDA ..................................... ad. No. 140, 2010

am. No. 23, 2011

ss. 152BDB, 152BDC.................... ad. No. 140, 2010

s. 152BDCA................................... ad. No. 140, 2010

ss. 152BDD, 152BDE.................... ad. No. 140, 2010

s. 152BDEA................................... ad. No. 140, 2010

Subdivision B

ss. 152BDF, 152BDG .................... ad. No. 140, 2010

Subdivision C

ss. 152BDH–152BDM................... ad. No. 140, 2010

Subdivision D

s. 152BDN ..................................... ad. No. 140, 2010

Division 4B

Div. 4B of Part XIC ....................... ad. No. 140, 2010

s. 152BE ........................................ ad. No. 58, 1997

rep. No. 140, 2002

ad. No. 140, 2010

am. No. 23, 2011

s 152BEA....................................... ad. No. 140, 2010

rs No 109, 2014

s 152BEB....................................... ad. No. 140, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 431

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

rs No 109, 2014

ss. 152BEBA–152BEBG ............... ad. No. 23, 2011

ss. 152BEC, 152BED..................... ad. No. 140, 2010

am. No. 23, 2011

ss. 152BF–152BI ........................... ad. No. 58, 1997

rep. No. 140, 2002

s. 152BJ ......................................... ad. No. 58, 1997

rs. No. 140, 2002

rep. No. 140, 2010

s. 152BK........................................ ad. No. 58, 1997

am. No. 140, 2002

rep. No. 140, 2010

s. 152BL ........................................ ad. No. 58, 1997

am. No. 140, 2002

rep. No. 140, 2010

s. 152BM ....................................... ad. No. 58, 1997

am. No. 140, 2002; No. 45, 2005

rep. No. 140, 2010

s. 152BN........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 45, 2005

rep. No. 140, 2010

s. 152BO........................................ ad. No. 58, 1997

rep. No. 140, 2002

ss. 152BP, 152BQ.......................... ad. No. 58, 1997

rep. No. 140, 2002

s. 152BR ........................................ ad. No. 58, 1997

am. No. 140, 2002

rep. No. 140, 2010

Division 5

Heading to Subdiv. A of ................

Div. 5 of Part XIC

ad. No. 140, 2002

rep. No. 140, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

432 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Subdiv. A of Div. 5 of....................

Part XIC

rep. No. 140, 2010

s. 152BS......................................... ad. No. 58, 1997

am. No. 140, 2002

rep. No. 140, 2010

s. 152BT ........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 119, 2005

rep. No. 140, 2010

s. 152BU........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 119, 2005; No. 8, 2010

rep. No. 140, 2010

ss. 152BV–152BX ......................... ad. No. 58, 1997

am. No. 140, 2002

rep. No. 140, 2010

s. 152BY........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 119, 2005; No. 8, 2010

rep. No. 140, 2010

s. 152BZ ........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 119, 2005

rep. No. 140, 2010

ss. 152CA, 152CB ......................... ad. No. 58, 1997

am. No. 140, 2002

rep. No. 140, 2010

Subdivision B

Subdiv. B of Div. 5 of....................

Part XIC

ad. No. 140, 2002

s. 152CBA ..................................... ad. No. 140, 2002

am. No. 140, 2010; No. 23, 2011

s. 152CBAA................................... ad. No. 140, 2010

s. 152CBB...................................... ad. No. 140, 2002

am. No. 119, 2005

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 433

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 152CBC...................................... ad. No. 140, 2002

am. No. 119, 2005; Nos. 8 and 140, 2010

s. 152CBCA................................... ad. No. 140, 2010

s. 152CBD ..................................... ad. No. 140, 2002

am. No. 140, 2010; No. 23, 2011

s. 152CBDA................................... ad. No. 140, 2010

s. 152CBE...................................... ad. No. 140, 2002

s. 152CBF...................................... ad. No. 140, 2002

am. No. 23, 2011

s. 152CBG ..................................... ad. No. 140, 2002

am. No. 119, 2005; Nos. 8 and 140, 2010

s. 152CBH ..................................... ad. No. 140, 2002

am. No. 119, 2005

s. 152CBI....................................... ad. No. 140, 2002

am. No. 23, 2011

ss. 152CBIA–152CBIC.................. ad. No. 140, 2010

s. 152CBJ....................................... ad. No. 140, 2002

Subdivision C

Heading to Subdiv. C of.................

Div. 5 of Part XIC

ad. No. 140, 2002

s. 152CC ........................................ ad. No. 58, 1997

am. No. 140, 2010

s. 152CD........................................ ad. No. 58, 1997

am. No. 140, 2002

s. 152CDA ..................................... ad. No. 119, 2005

s. 152CE ........................................ ad. No. 58, 1997

am. No. 140, 2002

rep. No. 140, 2010

s. 152CF......................................... ad. No. 58, 1997

rs. No. 140, 2002

am. No. 8, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

434 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

rep. No. 140, 2010

s. 152CG........................................ ad. No. 58, 1997

am. No. 140, 2002

rep. No. 140, 2010

ss. 152CGA, 152CGB.................... ad. No. 140, 2002

rep. No. 140, 2010

Division 6

s. 152CH........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 140, 2010; No. 103, 2013

s. 152CI.......................................... ad. No. 58, 1997

am. No. 140, 2002; No. 140, 2010

s. 152CJ ......................................... ad. No. 58, 1997

am. No. 140, 2010

Division 6A

Div. 6A of Part XIC....................... ad. No. 23, 2011

ss. 152CJA–152CJG ...................... ad. No. 23, 2011

Division 6B

Div. 6B of Part XIC ....................... ad. No. 23, 2011

s. 152CJH ...................................... ad. No. 23, 2011

am. No. 23, 2011

Division 7

s. 152CK........................................ ad. No. 58, 1997

am. No. 140, 2002; No. 23, 2011

Div. 8 of Part XIC.......................... rep. No. 140, 2010

s. 152CL ........................................ ad. No. 58, 1997

am. No. 52, 1999

rep. No. 140, 2010

s. 152CLA...................................... ad. No. 124, 2001

am. No. 140, 2002; No. 119, 2005; No. 8, 2010

rep. No. 140, 2010

s. 152CM ....................................... ad. No. 58, 1997

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Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 435

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

rep. No. 140, 2010

s. 152CN........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 124, 2001

rep. No. 140, 2010

ss. 152CO, 152CP.......................... ad. No. 58, 1997

rep. No. 140, 2010

s. 152CPA...................................... ad. No. 52, 1999

am. No. 124, 2001; No. 119, 2005

rep. No. 140, 2010

s. 152CQ........................................ ad. No. 58, 1997

am. No. 140, 2002

rep. No. 140, 2010

s. 152CR ........................................ ad. No. 58, 1997

am. No. 52, 1999

rep. No. 140, 2010

s. 152CRA ..................................... ad. No. 124, 2001

rep. No. 140, 2010

s. 152CS......................................... ad. No. 58, 1997

rep. No. 140, 2010

s. 152CT ........................................ ad. No. 58, 1997

am. No. 200, 1997; No. 52, 1999

rep. No. 140, 2010

s. 152CU........................................ ad. No. 58, 1997

rep. No. 140, 2010

s. 152CV........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 124, 2001

rep. No. 140, 2010

s. 152CW ....................................... ad. No. 58, 1997

rs. No. 124, 2001

rep. No. 140, 2010

s. 152CWA .................................... ad. No. 46, 2001

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

436 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

rs. No. 124, 2001

rep. No. 140, 2010

s. 152CX........................................ ad. No. 58, 1997

am. No. 124, 2001

rep. No. 140, 2010

s 152CY......................................... ad. No. 58, 1997

rep. No. 140, 2010

s 152CZ ......................................... ad. No. 58, 1997

am. No. 124, 2001

rep. No. 140, 2010

s. 152DA........................................ ad. No. 58, 1997

rep. No. 140, 2010

s. 152DB........................................ ad. No. 58, 1997

am. No. 124, 2001; No. 119, 2005

rep. No. 140, 2010

s. 152DBA ..................................... ad. No. 124, 2001

rep. No. 140, 2010

ss. 152DC, 152DD......................... ad. No. 58, 1997

rep. No. 140, 2010

ss. 152DE–152DG ......................... ad. No. 58, 1997

am. No. 146, 2001

rep. No. 140, 2010

ss. 152DH–152DJ .......................... ad. No. 58, 1997

rep. No. 140, 2010

s. 152DK........................................ ad. No. 58, 1997

am. No. 119, 2005

rep. No. 140, 2010

ss. 152DL, 152DM......................... ad. No. 58, 1997

rep. No. 140, 2010

s. 152DMA .................................... ad. No. 124, 2001

am. No. 119, 2005

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Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 437

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

rep. No. 140, 2010

s. 152DN........................................ ad. No. 58, 1997

rs. No. 52, 1999

am. No. 140, 2002

rep. No. 140, 2010

s. 152DNA..................................... ad. No. 52, 1999

am. No. 124, 2001; No. 140, 2002; No. 8, 2010

rep. No. 140, 2010

s. 152DNB ..................................... ad. No. 52, 1999

am. No. 194, 1999

rep. No. 140, 2010

s. 152DNC ..................................... ad. No. 140, 2002

rep. No. 140, 2010

Subdiv. F of Div. 8 of ....................

Part XIC

rep. No. 140, 2002

s. 152DO........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 124, 2001

rep. No. 140, 2002

s. 152DOA..................................... ad. No. 124, 2001

rep. No. 140, 2002

s. 152DP ........................................ ad. No. 58, 1997

rep. No. 140, 2002

s. 152DPA...................................... ad. No. 124, 2001

rep. No. 140, 2002

s. 152DQ........................................ ad. No. 58, 1997

rep. No. 140, 2002

s. 152DR........................................ ad. No. 58, 1997

rs. No. 124, 2001

rep. No. 140, 2002

s. 152DS ........................................ ad. No. 58, 1997

rep. No. 140, 2002

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Endnotes

Endnote 4—Amendment history

438 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 152DT ........................................ ad. No. 58, 1997

am. No. 52, 1999

rep. No. 140, 2010

s. 152DU........................................ ad. No. 58, 1997

am. No. 52, 1999

rep. No. 140, 2010

ss. 152DV–152DZ ......................... ad. No. 58, 1997

rep. No. 140, 2010

s. 152EA ........................................ ad. No. 58, 1997

rep. No. 140, 2010

s. 152EAA ..................................... ad. No. 124, 2001

rep. No. 140, 2010

s. 152EB ........................................ ad. No. 58, 1997

rep. No. 140, 2010

Div. 9 of Part XIC.......................... rep. No. 140, 2010

ss. 152EC–152EE .......................... ad. No. 58, 1997

rep. No. 140, 2010

Division 10

Heading to Div. 10 of.....................

Part XIC

rs. No. 140, 2002

s. 152EF......................................... ad. No. 58, 1997

am. No. 140, 2002; No. 140, 2010

s 152EG ......................................... ad. No. 58, 1997

am. No. 140, 2002

ss. 152EH–152EL .......................... ad. No. 58, 1997

Division 10A

Div. 10A of Part XIC ..................... ad. No. 119, 2005

s. 152ELA...................................... ad. No. 119, 2005

am. No. 140, 2010; No 126, 2015

s 152ELB ....................................... ad. No. 119, 2005

am. No. 8, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 439

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s 152ELC ....................................... ad No 119, 2005

am. No. 8, 2010; No 126, 2015

Division 11

s. 152ELD...................................... ad. No. 140, 2010

ss. 152EM–152EO......................... ad. No. 58, 1997

s. 152EOA ..................................... ad. No. 140, 2010

am. No. 23, 2011

s. 152EP......................................... ad. No. 58, 1997

s 152EPA....................................... ad No 140, 2010

s. 152EQ ........................................ ad. No. 119, 2005

rs. No. 140, 2010 (Sch 1 item 59)

s. 152ER ........................................ ad. No. 140, 2010

s. 153 ............................................. rep. No. 173, 1991

Part XID

Part XID......................................... ad. No. 131, 2006

Division 1

s. 154 ............................................. rep. No. 34, 1989

ad. No. 131, 2006

s. 154A........................................... ad. No. 131, 2006

am. No. 59, 2009

Division 2

ss. 154B, 154C............................... ad. No. 131, 2006

Division 3

s. 154D........................................... ad. No. 131, 2006

am. No. 159, 2007

ss. 154E, 154F................................ ad. No. 131, 2006

s. 154F ........................................... ad. No. 131, 2006

am. No. 59, 2009

Division 4

Subdivision A

s. 154G........................................... ad. No. 131, 2006

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

440 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am. No. 59, 2009

s. 154GA........................................ ad. No. 59, 2009

s. 154H........................................... ad. No. 131, 2006

am. No. 59, 2009

s. 154J............................................ ad. No. 131, 2006

Subdivision B

ss. 154K, 154L............................... ad. No. 131, 2006

am. No. 59, 2009

Subdivision C

ss. 154M, 154N.............................. ad. No. 131, 2006

Subdivision D

ss. 154P, 154Q............................... ad. No. 131, 2006

s. 154R........................................... ad. No. 131, 2006

am. No. 59, 2009

s. 154RA........................................ ad. No. 59, 2009

Subdivision E

s. 154S ........................................... ad. No. 131, 2006

s. 154T ........................................... ad. No. 131, 2006

am. No. 59, 2009

ss. 154U, 154V .............................. ad. No. 131, 2006

am. No. 59, 2009

s. 154W.......................................... ad. No. 131, 2006

Subdivision F

s. 154X........................................... ad. No. 131, 2006

am. No. 59, 2009

ss. 154Y, 154Z............................... ad. No. 131, 2006

Subdivision G

s. 154ZA ........................................ ad. No. 131, 2006

Division 5

ss. 154ZB, 154ZC .......................... ad. No. 131, 2006

Part XII

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 441

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 155 ............................................. am. No. 81, 1977; No. 17, 1986; No. 70, 1990; No. 88, 1995; No. 58,

1997; No. 52, 1999; No. 146, 2001; No. 128, 2002; No. 134, 2003;

No. 131, 2006; Nos. 68, 138 and 159, 2007; Nos. 116 and 139, 2008;

No. 59, 2009; No. 23, 2011

s. 155AAA..................................... ad. No. 85, 2007

am. No. 68, 2007; No. 139, 2008; Nos. 103 and 140, 2010; Nos. 102

and 132, 2011; No. 44, 2012; No 83, 2014; No 38, 2015

s. 155AA........................................ ad. No. 88, 1995

am. No. 61, 1999; No. 131, 2006; No. 85, 2007; No. 111, 2009

s. 155AB ........................................ ad. No. 58, 1997

am. No. 52, 1999; No. 140, 2002; No. 131, 2006

rep. No. 85, 2007

s. 155A........................................... ad. No. 70, 1990

am. No. 88, 1995; No. 159, 2007

s. 155B........................................... ad. No. 70, 1990

am. No. 88, 1995; No. 146, 2001

s. 156 ............................................. am. No. 70, 1990; No. 88, 1995

s. 157 ............................................. am. No. 81, 1977; No. 17, 1986; No. 101, 1998; No. 63, 2001;

No. 131, 2006; No. 59, 2009; Nos. 44 and 103, 2010

s. 157AA........................................ ad. No. 131, 2006

s. 157A........................................... ad. No. 108, 2004

ss. 157B–157D............................... ad. No. 59, 2009

s. 158 ............................................. am. No. 81, 1977; No. 88, 1995

s. 159 ............................................. am. No. 81, 1977; No. 88, 1995; No. 59, 2009

s. 160 ............................................. am. No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 146, 2001

s 161 .............................................. am. No. 81, 1977; No. 17, 1986; No. 88, 1995; No. 146, 2001

s. 162 ............................................. rs. No. 81, 1977

am. No. 17, 1986; No. 88, 1995; No. 58, 1997; No. 146, 2001;

No. 108, 2004; No. 103, 2010

s. 162A........................................... ad. No. 17, 1986

am. No. 146, 2001; No. 108, 2004

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

442 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

s. 163 ............................................. am. No. 88, 1976; No. 17, 1986; No. 20, 1988; No. 70, 1990;

No. 106, 1998; No. 57, 2000; No. 131, 2006; No. 59, 2009; No. 5,

2011

s. 163A........................................... ad. No. 88, 1976

am. No. 81, 1977; No. 39, 1983; No. 88, 1995; No. 58, 1997; No. 61,

1999; No. 57, 2000; No. 63, 2001; No. 108, 2004; Nos. 59 and 111,

2009; No. 103, 2010; No. 136, 2012; No 83, 2014

s. 164 ............................................. rep. No. 81, 1977

s. 165 ............................................. am. No. 17, 1986; No. 59, 2009

s. 166 ............................................. am. No. 88, 1976; No. 81, 1977

s. 167 ............................................. am. No. 70, 1990; No. 88, 1995; No. 108, 2004

s. 168 ............................................. rep. No. 81, 1977

s. 169 ............................................. rs. No. 88, 1976

rep. No. 81, 1977

s. 170 ............................................. am. No. 88, 1976; No. 81, 1977; No. 61, 1981; No. 17, 1986;

No. 106, 1992; No. 88, 1995; No. 36, 1998; No. 146, 1999; No. 131,

2006; No. 103, 2010

s. 171 ............................................. am. No. 88, 1976; No. 88, 1995; No. 63, 2001; Nos. 92 and 131,

2006; No. 103, 2010

s. 171A........................................... ad. No. 136, 1991

s. 171B........................................... ad. No. 58, 1997

am. No. 140, 2010

s. 172 ............................................. am. No. 81, 1977; No. 136, 1991; No. 141, 1994; No. 88, 1995;

No. 108, 2004; No. 131, 2006; No. 45, 2007; No. 103, 2010

s. 173 ............................................. ad. No. 106, 1998

Part XIII

Part XIII......................................... ad. No. 59, 2009

Division 1

ss. 174–178 .................................... ad. No. 59, 2009

Division 2

Div. 2 of Part XIII.......................... ad. No. 184, 2011

s. 179 ............................................. ad. No. 184, 2011

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 443

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Schedule 1

Heading to Schedule ...................... rs. No. 61, 1999

am. No. 111, 2009

Renumbered Schedule 1 ................ No. 44, 2010

Schedule ........................................ ad. No. 88, 1995

Part 1

Heading to Part 1 ........................... ad. No. 61, 1999

Division 1

Div. 1 of Part 1............................... ad. No. 59, 2009

Subdivision A

ss. 44ZZRA–44ZZRE.................... ad. No. 59, 2009

Subdivision B

ss. 44ZZRF–44ZZRI...................... ad. No. 59, 2009

Subdivision C

ss. 44ZZRJ, 44ZZRK..................... ad. No. 59, 2009

Subdivision D

ss. 44ZZRL–44ZZRV.................... ad. No. 59, 2009

Division 1A

Div. 1A of Part 1............................ ad. No. 185, 2011

s. 44ZZS ........................................ ad. No. 185, 2011

s. 44ZZT ........................................ ad. No. 185, 2011

s. 44ZZU........................................ ad. No. 185, 2011

s. 44ZZV........................................ ad. No. 185, 2011

s. 44ZZW....................................... ad. No. 185, 2011

s. 44ZZX........................................ ad. No. 185, 2011

s. 44ZZY........................................ ad. No. 185, 2011

s. 44ZZZ ........................................ ad. No. 185, 2011

s. 44ZZZA ..................................... ad. No. 185, 2011

s. 44ZZZB...................................... ad. No. 185, 2011

Division 2

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

444 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Heading to Div. 2 of ......................

Part 1

ad. No. 59, 2009

s. 45 ............................................... ad. No. 88, 1995

am. No. 131, 2006; No. 59, 2009

s. 45A............................................. ad. No. 88, 1995

am. No. 131, 2006

rep. No. 59, 2009

s. 45B............................................. ad. No. 88, 1995

am. No. 169, 2012

s. 45C............................................. ad. No. 88, 1995

s. 45D............................................. ad. No. 88, 1995

rs. No. 60, 1996

s. 45DA.......................................... ad. No. 60, 1996

am. No. 103, 2010

s. 45DC.......................................... ad. No. 60, 1996

s. 45DD.......................................... ad. No. 60, 1996

am. No. 54, 2009

s. 45E............................................. ad. No. 60, 1996

ss. 45EA, 45EB.............................. ad. No. 60, 1996

s. 46 ............................................... ad. No. 88, 1995

am. No. 131, 2006; No. 159, 2007; No. 116, 2008

s. 47 ............................................... ad. No. 88, 1995

am. No. 131, 2006; No. 169, 2012

s. 48 ............................................... ad. No. 88, 1995

s. 49 ............................................... ad. No. 131, 2006

s. 50 ............................................... ad. No. 88, 1995

am. No. 63, 2001; No. 131, 2006; No. 184, 2011

s. 51 ............................................... ad. No. 88, 1995

am. No. 88, 1995; No. 60, 1996; No. 63, 2002; No. 103, 2010;

No. 46, 2011

Part 2.............................................. ad. No. 61, 1999

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 445

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

rep. No. 111, 2009

ss. 75AT, 75AU ............................. ad. No. 61, 1999

am. No. 176, 1999

rep. No. 111, 2009

ss. 75AV–75AY............................. ad. No. 61, 1999

rep. No. 111, 2009

s. 75AYA....................................... ad. No. 69,2000

rep. No. 111, 2009

s. 75AZ .......................................... ad. No. 61, 1999

rep. No. 111, 2009

Schedule 2

Schedule 2...................................... ad. No. 44, 2010

rs. No. 103, 2010

Chapter 1

s. 1 ................................................. ad. No. 44, 2010

rs. No. 103, 2010

s. 2 ................................................. ad. No. 44, 2010

rs. No. 103, 2010

am. No. 46, 2011; No 147, 2015; No 5, 2017

ss. 3–5............................................ ad. No. 44, 2010

rs. No. 103, 2010

s. 6 ................................................. ad. No. 103, 2010

ss. 7, 8............................................ ad. No. 44, 2010

rs. No. 103, 2010

ss. 9–17.......................................... ad. No. 103, 2010

Chapter 2

Part 2-1

s. 18 ............................................... ad. No. 103, 2010

s. 19 ............................................... ad. No. 103, 2010

am No 109, 2014

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

446 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Part 2-2

s. 20 ............................................... ad. No. 103, 2010

am. No. 184, 2011

ss. 21, 22 ........................................ ad. No. 103, 2010

rs. No. 184, 2011

s. 22A............................................. ad. No. 184, 2011

Part 2-3

s 23 ................................................ ad No. 103, 2010

am No 147, 2015

s 24 ................................................ ad No. 103, 2010

am No 147, 2015

s 25 ................................................ ad No. 103, 2010

am No 147, 2015

s 26 ................................................ ad No. 103, 2010

am No 147, 2015

s 27 ................................................ ad No. 103, 2010

s 28 ................................................ ad No. 103, 2010

am No 147, 2015

Chapter 3

Part 3-1

Division 1

ss. 29–38........................................ ad. No. 103, 2010

Division 2

ss. 39–43........................................ ad. No. 103, 2010

Division 3

ss. 44–46........................................ ad. No. 103, 2010

Division 4

s. 47 ............................................... ad. No. 103, 2010

s. 48 ............................................... ad. No. 103, 2010

am. No. 104, 2013

Division 5

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 447

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

ss. 49, 50 ........................................ ad. No. 103, 2010

Part 3-2

Division 1

Subdivision A

ss. 51–59........................................ ad. No. 103, 2010

Subdivision B

ss. 60–63........................................ ad. No. 103, 2010

Subdivision C

s. 64 ............................................... ad. No. 103, 2010

s. 64A............................................. ad. No. 103, 2010

Subdivision D

ss. 65–68........................................ ad. No. 103, 2010

Division 2

Subdivision A

ss. 69–72........................................ ad. No. 103, 2010

Subdivision B

ss. 73–77........................................ ad. No. 103, 2010

Subdivision C

ss. 78–81........................................ ad. No. 103, 2010

Subdivision D

ss. 82–88........................................ ad. No. 103, 2010

Subdivision E

ss. 89–95........................................ ad. No. 103, 2010

Division 3

s 96 ................................................ ad No 103, 2010

am No 130, 2012

s 97 ................................................ ad No 103, 2010

am No 130, 2012

s 98 ................................................ ad No 103, 2010

am No 130, 2012

s 99 ................................................ ad No 103, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

448 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Division 4

s 100 .............................................. ad No 103, 2010

s 101 .............................................. ad No 103, 2010

s 102 .............................................. ad No 103, 2010

s 103 .............................................. ad No 103, 2010

am No 130, 2012

Part 3-3

Division 1

s. 104 ............................................. ad. No. 103, 2010

s. 105 ............................................. ad. No. 103, 2010

am. No. 46, 2011

ss. 106–108 .................................... ad. No. 103, 2010

Division 2

Subdivision A

ss. 109–113 .................................... ad. No. 103, 2010

Subdivision B

ss. 114–117 .................................... ad. No. 103, 2010

Subdivision C

ss. 118, 119 .................................... ad. No. 103, 2010

Subdivision D

ss. 120, 121 .................................... ad. No. 103, 2010

Division 3

Subdivision A

ss. 122–127 .................................... ad. No. 103, 2010

Subdivision B

s. 128 ............................................. ad. No. 103, 2010

Division 4

ss. 129, 130 .................................... ad. No. 103, 2010

Division 5

ss. 131, 132 .................................... ad. No. 103, 2010

s. 132A........................................... ad. No. 103, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 449

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Division 6

s. 133 ............................................. ad. No. 103, 2010

Part 3-4

s. 134 ............................................. ad. No. 103, 2010

s. 135 ............................................. ad. No. 103, 2010

am. No. 46, 2011

ss. 136, 137 .................................... ad. No. 103, 2010

Part 3-5

Division 1

ss. 138–142 .................................... ad. No. 103, 2010

Division 2

ss. 143–149 .................................... ad. No. 103, 2010

Division 3

s. 150 ............................................. ad. No. 103, 2010

Chapter 4

Part 4-1

Division 1

ss. 151–160 .................................... ad. No. 103, 2010

Division 2

ss. 161–163 .................................... ad. No. 103, 2010

Division 3

s. 164 ............................................. ad. No. 103, 2010

Division 4

ss. 165, 166 .................................... ad. No. 103, 2010

Division 5

ss. 167, 168 .................................... ad. No. 103, 2010

Part 4-2

Division 1

s. 169 ............................................. ad. No. 103, 2010

Division 2

Subdivision A

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

450 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

ss. 170–173 .................................... ad. No. 103, 2010

Subdivision B

ss. 174–177 .................................... ad. No. 103, 2010

Subdivision C

ss. 178–181 .................................... ad. No. 103, 2010

Subdivision D

ss. 182–187 .................................... ad. No. 103, 2010

Division 3

s 188 .............................................. ad No 103, 2010

am No 130, 2012

s 189 .............................................. ad No 103, 2010

am No 130, 2012

s 190 .............................................. ad No 103, 2010

am No 130, 2012

s 191 .............................................. ad No 103, 2010

am No 130, 2012

Division 4

ss. 192, 193 .................................... ad. No. 103, 2010

Part 4-3

Division 1

ss. 194–196 .................................... ad. No. 103, 2010

Division 2

ss. 197, 198 .................................... ad. No. 103, 2010

Division 3

ss. 199–201 .................................... ad. No. 103, 2010

Division 4

s. 202 ............................................. ad. No. 103, 2010

Part 4-4

ss. 203, 204 .................................... ad. No. 103, 2010

Part 4-5

ss. 205, 206 .................................... ad. No. 103, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 451

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Part 4-6

ss. 207–211 .................................... ad. No. 103, 2010

Part 4-7

ss. 212–217 .................................... ad. No. 103, 2010

Chapter 5

Part 5-1

Division 1

s. 218 ............................................. ad. No. 103, 2010

Division 2

ss. 219–222 .................................... ad. No. 103, 2010

Division 3

s. 223 ............................................. ad. No. 103, 2010

Part 5-2

Division 1

ss. 224–230 .................................... ad. No. 103, 2010

Division 2

s 232 .............................................. ad No 103, 2010

am No 147, 2015

s 233 .............................................. ad No 103, 2010

s 234 .............................................. ad No 103, 2010

s 235 .............................................. ad No 103, 2010

Division 3

s. 236 ............................................. ad. No. 103, 2010

Division 4

Subdivision A

s 237 .............................................. ad No 103, 2010

am No 147, 2015

s 238 .............................................. ad No 103, 2010

am No 147, 2015

Subdivision B

s 239 .............................................. ad No 103, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

452 Competition and Consumer Act 2010

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

am No 147, 2015

s 240 .............................................. ad No 103, 2010

s 241 .............................................. ad No 103, 2010

Subdivision C

s 242 .............................................. ad No 103, 2010

am No 147, 2015

s 243 .............................................. ad No 103, 2010

s 244 .............................................. ad No 103, 2010

s 245 .............................................. ad No 103, 2010

Division 5

s 246 .............................................. ad No 103, 2010

s 247 .............................................. ad No 103, 2010

s 248 .............................................. ad No 103, 2010

s 249 .............................................. ad No 103, 2010

s 250 .............................................. ad No 103, 2010

rs No 147, 2015

Division 6

ss. 251–253 .................................... ad. No. 103, 2010

Part 5-3

s 254 .............................................. ad No 103, 2010

s 255 .............................................. ad No 103, 2010

am No 5, 2017

s 256 .............................................. ad No 103, 2010

rep No 5, 2017

s 257 .............................................. ad No 103, 2010

rep No 5, 2017

s 258 .............................................. ad No 103, 2010

Part 5-4

Division 1

Subdivision A

ss. 259–266 .................................... ad. No. 103, 2010

Authorised Version C2017C00062 registered 03/03/2017

Endnotes

Endnote 4—Amendment history

Competition and Consumer Act 2010 453

Compilation No. 107 Compilation date: 23/2/17 Registered: 3/3/17

Provision affected How affected

Subdivision B

ss. 267–270 .................................... ad. No. 103, 2010

Division 2

ss. 271–273 .................................... ad. No. 103, 2010

Division 3

ss. 274–276 .................................... ad. No. 103, 2010

s. 276A........................................... ad. No. 103, 2010

s. 277 ............................................. ad. No. 103, 2010

Part 5-5

Division 1

ss. 278–286 .................................... ad. No. 103, 2010

Division 2

s. 287 ............................................. ad. No. 103, 2010

Chapter 6

Chapter 6 ....................................... ad No 130, 2012

Part 1

s 288 .............................................. ad No 130, 2012

s 289 .............................................. ad No 130, 2012

s 290 .............................................. ad No 130, 2012

Part 1A

Part 1A........................................... ad No 147, 2015

s 290A............................................ ad No 147, 2015

Authorised Version C2017C00062 registered 03/03/2017


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